Study finds major gaps in criminal defence access in Europe

Issue date: 20 July 2010


Legal access in Europe A major study of criminal defence in Europe has found significant breaches of rights to effective criminal defence. The study took in Belgium, England and Wales, Finland, France, Germany, Hungary, Italy, Poland and Turkey, and found important gaps in access to effective legal advice for defendants.

The research was carried out by Professor Ed Cape, Director of the Centre for Legal Research, at the University of the West of England, Professor Taru Spronken of Maastricht University, Roger Smith, Director of the London-based NGO JUSTICE, and Zaza Namoradze of Open Society Justice Initiative (OSJI) in Budapest.

Ed Cape said, “Every year, millions of people across Europe – innocent and guilty – are arrested and detained by the police. For some, their cases go no further than the police station, but many others eventually appear before a court. Many will spend time in custody both before and following trial. Breaches of defendants' rights were found in all countries, although some were worse than others.

“Basic requirements, such as interpretation and translation for suspects and defendants who do not understand the language are not met in many countries. Apart from in England and Wales, and Finland, legal aid for those who cannot afford a lawyer is often not available. In Italy, for example, even though it is compulsory for a suspect to have a lawyer when interviewed by the police, legal aid eligibility is so low that in 2006 only just over 6 percent of defendants received it. And this in a country where more than half of the prison population is in pre-trial detention or awaiting sentence, and where the average length of a criminal case is over four years.”

The researchers have jointly authored a book, Effective Criminal Defence in Europe, which was launched at a conference, Effective Criminal Defence in Europe: Advancing Beyond Stockholm, held in Brussels on 24 and 25 June 2010. The three-year research project was funded by the European Commission and the Open Society Justice Initiative (OSJI), and examined access to effective criminal defence in nine European jurisdictions.

The EU aims to achieve cooperation in crime investigation and law enforcement among its member states, and mutual recognition of the court decisions. In particular, it has created the European Arrest Warrant (EAW) to provide a fast-track extradition process. Over 9,000 EAWs are issued every year by judges of member states.

However, attempts by the EU to establish minimum procedural rights for suspects and defendants failed in 2007 in the face of opposition by a number of member states, including the British government, who argued that the existence of the European Convention on Human Rights rendered EU legislation unnecessary.

Ed Cape continued, “Many delegates at the conference were genuinely shocked by some of the findings, and heard that there are significant limits on the ability of the European Court of Human Rights to establish minimum procedural rights – not least because it has a backlog of over 125,000 cases. The research produced a wealth of data regarding the countries in the study, and with ratification of the Lisbon Treaty and agreement on the Stockholm Programme putting criminal defence rights on the agenda again it is likely to have a significant impact on the development of EU policy over the next few years.”

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