European Union: Presence of Democractic Policy

A representative democracy is a type of government where officials are elected by the people to make decisions on their behalf. It is a prevalent type of government in Europe and is a defining political characteristic. The right to civil liberties is a universal concern among representative democracies in Europe and they have an attachment to the EU. The EU is a political union of 28 member states located on the continent of Europe. It sets up policies and a system of laws to govern the member states. One civil liberty that has raised questions is the right to access a lawyer when accused of a crime. The purpose of this paper is to describe the agenda setting stage in the case concerning “the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (COM/2011/0326).” The goal of the proposal is to make sure the accused person in a criminal or an European arrest warrant proceeding have access to a lawyer and the right to have contact while being detained.

The proposal is a directive of the European Parliament and Council and is described as an ordinary legislative procedure. Since it is an ordinary legislative proposal, the policy making stage to be addressed first is the Commission proposal. It is an interesting case to study because “the directive allows for the possibility to derogate temporarily from certain rights in exceptional circumstances and under strictly defined conditions”(COM/2011/0326). It also is the last legal text proposed in order to ensure the rights of accused persons in criminal proceedings. The primary sections in this paper will be a case description, analysis of the presented case, and conclusion on the further investigation.

The policy issue made it onto the agenda of the EU because of the need to reform the traditional concept of informal questioning of a suspect. It was stated that by Soo, a lecturer of Criminal Law at the University of Tartu, that “there is room for further action on the part of the European Union to ensure full implementation and respect of Convention standards, and, where appropriate, to ensure consistent application of the applicable standards and to raise existing standards”(Soo 2014). The proposal was considered because of a need to abide by ethical standards and to reform the law that could be deemed “outdated.” The implementation of recognition of resolutions in criminal proceedings implies that the EU member states believe in the individual criminal justice systems of each other. The EU believes that it has the role of maintaining an area of justice within the intergovernmental relations between countries and to validate the principle of mutual recognition.The proposal dictates common rules that entail the right to legal assistance for accused persons. One such requirement of EU countries is that they need to ensure suspects who have insufficient means for a lawyer to have the right to legal assistance. However, the government can determine if the suspect is eligible to be granted assistance with a merits test.

The circumstances leading up to the proposal had to do with the basis of Article 82 of the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights of the European Union (2000) and the European Convention on Human Rights. Article 82 states in defense of mutual recognition that the European Parliament and the Council may set up minimum rules. The rules should take into account the differences between the judicial systems of the Member States. Article 6 in the Treaty of the European Union, another relevant document, dictates the rights that are fundamentally inherent and constitutes the basic principles of EU law. Article 6 also provides that the EU recognizes the rights and freedoms written in the Charter of Fundamental Rights of the EU. There had been a proposal by the Commission in 2004 that was very similar to this present day case. The Council did not adopt it. In 2009, there was a plan (roadmap) to be set in place for suspect’s rights. The Council was invited to draft proposals relating to this plan because it was believed that there was not enough action taken to secure the basic rights of accused persons. The Stockholm Programme, adopted by the European Council in 2009, reasserted the importance of basic rights of accused persons. The Stockholm Programme had referred to the previous plan or “roadmap” described. Mutual trust between member states in the EU was also a prevalent concern on the agenda of the EU.

Recent rulings of the European Court of Human Rights have clarified these freedoms. The Court stated that Article 6 of the Treaty of the European Union applies to the pre-trial stage of criminal proceedings. In the case of Panovits, the Court found a violation of Article 6 where the suspect’s statements were used to secure an accusation without the presence of a lawyer. The country dictated that lack of legal aid is a breach of the suspect’s rights and lacks fairness in the justice system. Many people over the last few years have been complaining about this issue and it continues to become a popular topic. In the recent two decades, the topic was addressed but was not taken seriously as it should have been. The EU is now attempting to set the universal standard for the member states but some are still hesitant at abiding by a policy that could change the traditional judicial system of one’s country.

The proposal being discussed articulates basic requirements of the European Union agenda on “governing the right of suspected and accused persons to have access to a lawyer.” It enforces the implementation of the Charter of Fundamental Rights, with references to Articles 6, 47 and 48. It also abides by the decision of the European Court of Human Rights and their interpretation on Article 6 of the Treaty of the European Union. On the Explanatory Memorandum, they are 14 key articles that lay out the basis for the proposal. The first few articles lay out the basic declarations to what the proposal is about. As the articles go on they get more specific such as discussing the right to a waiver or confidentiality agreement. The objective gives the premise and is stated below:

“The objective of the Directive is to lay down rules governing the rights of suspected and accused persons and persons subject to an European Arrest Warrant to have access to a lawyer in criminal proceedings against them, and rules governing the right of suspects and accused persons who are deprived of their liberty to communicate upon arrest with a third party” (COM/2011/0326). This clause means that there needs to be guidelines on how to go about detaining someone and make sure all precautions are taken to inform them of their rights.The next article is the scope which dictates what will happen when that person is convicted:

“The Directive applies from the time that a person is made aware by the competent authorities of a Member State, by official notification or otherwise, that he is suspected or accused of having committed a criminal offence until the conclusion of the proceedings (COM/2011/0326).”This clause gives a time stance but proves vague. The very nature of this topic is complex and is intended on the right of access to a lawyer. It is insinuated by some secondary sources that the road to evaluating this directive will be “long and difficult.” Some EU member states predict that the proposal will threaten the diversity of justice systems in the EU. Soo, a researcher mentioned earlier, argues that there will be four components that contribute to significant difficulty within negotiation. There is the variation in member states’ legal aid in regards to the right of access to a lawyer. The second and third items that are components of the difficulty of negotiation related to the far reaching effect that the directive had on national legal systems and safeguards of confidentiality. The fourth item will encompass the potential changes in regards to the European Arrest Warrant system. The ultimate goal of the proposal is to help with procedural rights of accused persons in criminal proceedings. The EU wants to raise existing standards as explained in the background to how the proposal originated.

When trying to analyze this proposal Anneli Soo (as mentioned above), lecturer of Criminal Law at the University of Tartu was very helpful in understanding the later process of policy making but did offer some insight into the agenda-setting stage. Soo notices the vagueness of some complex details in the proposal. The lecturer states “due to inherent and cultural differences there is unlikely to be common practice on remedies for violation of the right to counsel among Member States unless the European Court of Justice gives further guidelines” (Soo 2014). This statement insinuates that there will need to be further development of the proposal and input from other outside actors (primarily the justice system) to help further along the purpose of the proposal which is to offer legal assistance to accused persons in criminal proceedings. There are going to be differences among member states because of judicial institutions that handle criminal proceedings differently according to laws and customary protocol. There needs to be a common understanding on the guidelines for remedies on the right to receive legal aid. There is a potential for lack of trust in the EU member states’ justice systems which is why the proposal entails mutual recognition. Judicial systems of the member states of the EU are not perfect but have to come to a common understanding of a need to have a standard when carrying out criminal proceedings.

Kingdon's model, an explanatory theory of agenda-setting, displays how that while problems, policies, and politics are possibly operating independent of each other, they need to coexist in order to spark the agenda-setting stage. There are influences on these streams uniquely but there needs to be a recognition these influences are important as a whole. The problem is that there is not a set standard for accused person's right to a lawyer in criminal proceedings and there is a concern with right to civil liberties. The Commission had a window of opportunity to write this proposal when the Council was asked to draft legislation in response to the Stockholm Programme. This issue is seen as important because of its debate at the time this proposal was drafted. It has favorable political circumstances due to people’s growing concern with equality and civil liberties. The original proposal will need to be compromised in later stages by adding onto the articles already present. The articles need to account for various political issues that many EU countries are concerned with. Kingdon intended the multiple-streams approach to be for the framework of comparative policy research. This can relate to the EU member states and their different judicial systems and what various factors come into play in influencing their justice system.

The main question to be analyzed is “how the influence on the content of the adopted proposal varied across actors and why some actors were more influential than others (Haege 2019).” When researching the actors related to this issue, there were not many outside partakers considered except the input from the EU member states. A case dealing with environmental change or social policy could benefit from outside actors, but in this particular case, the actors are mostly countries within the EU or the higher courts within the EU. The primary concern addressed had to deal with the change in the individual judicial systems of the EU member states. It was a big issue addressed in regards to a standard being set for legal protocol. The proposal, as analyzed, needs to be further developed. It was slightly vague and contained complex issues that need more narrow understanding. This directive, according to Soo, was proposed when the Salduz case law was happening. The Salduz case was when the court stated that people held by law enforcement were to have the right to legal aid.This proposal took into account preexisting verdicts and judgements as seen with the European Court of Human Rights.

The issue being discussed concerns very important rights that are inherent in democratic governments. Most of the governments of the member states in the EU are democratic. Therefore, they take into account the majority. Political conditions in the last decade have regarded equality as very important factor in having a successful governmental platform. Even persons accused of a crime are worthy of the right to the fairness of the judicial system. In the United States, it is not a negotiable process on the rights of citizens. Governments in Europe in the last century have been reformed such as Germany and France. The EU is a fairly new intergovernmental organization that guides European countries that wish to be a part of the connective network. However, some countries wish to be independent, such as the United Kingdom with Brexit in the recent decade. (At the time of this paper Brexit is set to be official at the end of the month).

The background on the proposal is very important in order to understand the origin of it and its influences. The EU is a fairly recent system that was created almost 30 years ago. This topic came about 20 years after the EU was created. Equality has been a heated topic in recent decades because of modernization. The social implications of the proposal are quite evident and will make for a successful directive. The Commission was articulate in the articles but lack clarity is regards to generalizations.

The case of “the right of access to a lawyer in criminal proceedings…” proposed by the European Commission was a thoughtful draft that was attempting to reform traditional systems in order to set a standard. The proposal, however, did have vague clauses and needs further review in order to be a sufficient directive. The agenda setting stage is a very critical part on the beginnings of policy because it sets up the framework. Framework is critical to the foundations of law and the security of citizens. Many are in support of the EU and the policy making process but many also see the flaws. Nothing is perfect but the Commission should take into account vague ideas and clarify them a little further. The agenda-setting stage was somewhat hard to navigate as in it was difficult to separate ideas from the proposal and evaluated directive (the secondary source by Soo evaluates the finished product but does talk about the process to getting there). The original proposal is not complete so it is hard to clarify concepts that can be deemed as important in the title.