European justice is just for the natives

Date: 03/10/1996

BEN Rensink, a Dutch driver, was sent to the UK with an empty lorry in November 1995 to pick up a load of plastic suitcases.

On reaching Dover he was arrested and 75,000 ecstasy tablets were found in the bodywork of the trailer. He spent ten months in prison before being acquitted.

Juan Cegarra Martinez, an elderly Spaniard who did freelance relief truck driving, joined a vehicle in Barcelona for a trip to England after the truck had been loaded. He spent a miserable year in a Kent jail before his acquittal.

Stanley Allsop, a British driver, has just been released from a French jail after being held incommunicado from his wife and family for ten weeks.

His smuggling 'crime' was to pick up, as part of a routine and regular run, a sealed pre-packed trailer containing a miscellaneous load of goods. One lot of sealed cartons within that load contained heroin.

Barely a week passes by without a possible miscarriage of justice involving a non-native trucker being reported to my organisation, the Fair Trials Abroad Trust. International trucking is the most easily identifiable occupation demonstrating the systematic injustice which foreigners face in legal systems throughout the European Union.

We have a common citizenship and one would have thought that the practicalities of access to justice would be one of the priorities of the Union's institutions. Such concepts have little meaning when equality before criminal law so often becomes a hollow sham.

The major causes of this situation appear to be discrimination in the field of provisional liberty (bail), the uneven quality of - and difficulty in obtaining - international evidence, and the provision of interpretation and translation services.

It is indicative of the neglect and indifference shown by national authorities and academic institutions that the only research into the possible scale of these problems has been performed by us, entirely unfunded. The results show how far things have been allowed to slip due to this combination of failings.

Take the problem of provisional liberty. The long detention periods - up to two years in some cases - spent in prison by innocent foreigners waiting for their cases to be heard is a reproach to European society as a whole.

Our statistical research, incomplete though it is, reveals a surprising number of Union citizens in serious trouble outside their own countries.

The most comprehensive statistical material appears to have been compiled by the crime problem division of the Council of Europe. The latest returns from member states were for the prison population on 1 September 1993. Since they cover both foreigners (Union citizens) and aliens (non-EU nationals) and some returns are incomplete, it is only possible to provide rough estimates of the numbers affected.

But the figures suggest that over 45,000 non-natives were being held in prisons in the EU on the date in question, of whom about half were awaiting trial. Only a proportion of these were Union citizens.

Our own research has concentrated on obtaining information from EU member states' consular departments on the numbers of their own nationals being held in prisons elsewhere in the Union, either on remand or after being sentenced.

We have received returns from Austria, Denmark, Ireland, Germany, the Netherlands, Spain and the UK. These show that, between them, close to 5,000 of their nationals are imprisoned abroad, which would suggest an overall minimum of 10,000 EU citizens.

Figures obtained so far for those being held on remand are reasonably consistent at about 50&percent; of the foreign prison population as a whole. Council of Europe statistics on native prison remands average out at 28&percent;.

The statistical information we have supports a number of important conclusions.

There are at least 5,000 prisoners in the EU at any one time who are on remand and facing discriminatory practices which cause great concern. Nearly half of them - equivalent to more than one in five of all 'foreign' EU prisoners - would not be in prison if they were natives of the country holding them.

A foreigner, once accused, is invariably dependent on some form of evidence from abroad during the investigation and trial, even if this is only to establish his previous movements. The truckers' long periods of remand are mainly attributable to the painfully slow and unreliable cooperation procedures for providing evidence to assist the courts in dispensing justice when another country is involved.

The case of Scott v Spain was heard in the European Court of Human Rights last month. Although he was eventually acquitted, Scott was imprisoned for two and a half years whilst evidence was awaited from Finland. Such a long delay is a record, but periods of several months are commonplace since every official request from sender to responder has to work its way up and down two separate national systems.

If an essential witness is required from another part of Europe, it is unlikely that person will attend the trial. Probably the worst feature of the convention governing these matters is that attendance in court is voluntary.

Some measure of the mass injustice caused may be gleaned from the UK's experience. The British Home Office recently stated that it had been overwhelmed with requests for assistance under the convention and was currently handling some 1,000 appeals to serve witness summons.

It is therefore obvious that many thousands of such witness requests are issued in the Union every year. The UK picture suggests that most of these summons are ineffective, indicating a large number of miscarriages of justice.

One such case concerned a young man convicted in Spain of rape. He provided an alibi and had a supporting witness. Unfortunately, she was not present at the trial, despite official requests from the Spanish court to the British government to serve a witness summons. The Home Office explained to the Spanish authorities that, on the information supplied, it could not trace the girl.

The accused's parents traced her through telephone inquiries after the trial, only to discover that she would have come forward but, having heard nothing more about the affair, thought it had blown over.

Provision of adequate interpretation is also fundamental to a fair trial. We have received so many well-founded allegations of incompetent translation, at all stages of proceedings, that we believe problems of interpretation constitute the third main discriminatory barrier to justice for EU citizens.

The European Convention on Human Rights states that anyone charged with a criminal offence has the right “to be informed properly in a language which he understands and in detail, of the nature and the cause of the accusation against him” and “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”.

A ruling by the European Court of Human Rights (Kamasinski v Austria) relates specifically to the provision of court interpretation services. It emphasised that all written documents necessary for the defendant to put his or her case adequately before the court, should be translated.

It also stated that the provision of interpreting facilities did not, on its own, satisfy this requirement - those providing the service were also responsible for the competence of the interpreter.

It is now six years since that ruling was delivered, yet the standards that it demanded are universally ignored throughout the Union.

We have yet to be consulted in a case in either France or Spain where the conditions laid down on the translation of documents have been observed.

We are particularly concerned by the number of instances where the accused's statement is taken down in the local language and he is coerced into signing a statement he can neither read nor understand. This is then frequently used as an incriminatory document at the subsequent trial, despite the protestations of the accused and his or her lawyer.

Under the Maastricht Treaty, the only body with power to initiate European-level action to clean up this scandalous mess is the Council of Justice Ministers. To date not only has nothing been done, but there are no plans to do anything about these problems in the future.

The Council seems to be too busy concentrating on punishing the guilty to remember that the first requirement of justice is to protect the innocent. We are all at risk.

Stephen Jakobi is the founder and director of the Fair Trials Abroad Trust, an EU citizenship organisation concerned with legal rights.