Tutorial 1
Question 1
In the early years of European integration, cooperation between the Member States of the
EU focused mainly on economic issues. However, over the years, European integration has
widened and it now covers many other policy areas, including even criminal law. With
specific regard to judicial cooperation in criminal matters and police cooperation, numerous
measures are currently in place, addressing matters ranging from countering terrorism to
sharing evidence and enforcing penalties. The most high profile instrument of them all is
perhaps the European Arrest Warrant (=Europees aanhoudingsbevel), an arrest warrant
valid throughout all Member States of the European Union. Once issued, it requires another
member state to arrest and transfer a criminal suspect or sentenced person to the issuing
state, so that the person can be put on trial or complete his or her prison sentence.
Cooperation between Member States in criminal law and policy requires common
standards, also regarding the rights and procedural safeguards for accused persons. The EU
has adopted three Directives in this area, covering respectively the right to an interpreter
and to translation in criminal proceedings, the right to information, and the right to legal
assistance in such proceedings (Directives 2010/64/EU, 2012/13/EU and 2013/48).
a. Which fundamental right of the individual do these Directives aim to protect? Can
you point at the provision in the ECHR that corresponds to that right? These
Directives aim to protect the right to a fair trial as defined in article 6 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
covers civil rights or criminal charges. It doesn’t cover administrative law
(=bestuursrecht).
Laura, a national of Member State Y, is arrested while she is on vacation in Member State X.
The authorities of X suspect her of being engaged in terrorist activities, and they want to
charge her with several offences, one of which is conspiring to prepare the preparation of a
terrorist attack. Laura does not speak the language of Member State X, and is held in pre-
trial detention for two weeks. She is immediately informed of the charges against her, but
not in a language that she understands. The failure of the authorities to provide an
interpreter to Laura is partly caused by there not being a register of qualified interpreters
available to the police. While appealing against the pre-trial detention, her lawyer claims a
violation of the ECHR.
Please note: Member State X has a dualist system regarding the effect of international law in
the domestic legal order. Thus, the constitution of Member State X stipulates that the
government can enact legislation to incorporate international treaty obligations into the
domestic law of X. Without such implementing acts, international law does not form part of
the national legal system.
, b. Can Laura invoke the relevant provision of the ECHR (see your answer under a)
before the Court hearing her appeal against her pre-trial detention? Member State
X has a dualist system regarding the effect of international law in the domestic legal
order. In a dualism system international law only exists at national level.
International law and domestic law are separated and need to be translated.
Without enacting legislation to incorporate international treaty obligations into the
domestic law, international law does not form part of the national legal system.
Laura can’t invoke the relevant provision of the ECHR (international law), but she
can go to the ECHR to complain that there has been a violation. Van Gend and Loos
is not relevant, because it is about EU-law ECHR is about international law.
In EU-law there are two systems:
Monist system: international law and domestic law are different branches of
the same three International law would prevail over a conflicting rule of
domestic law. International law should have direct effect in the domestic
legal order (=main rule);
Dualism system:
o International law deals with relations between states;
o Domestic law deals with relations between individuals and
individuals against the States.
For an international rule to become effective, it must be transposed into
domestic law, before it can be invoked.
Laura’s lawyer also claims that her rights under Directive 2010/64 on the right to
interpretation and translation in criminal proceedings have been violated. In particular, she
thinks that Member State X has acted in violation of Article 2 and 5 of that Directive. These
provisions read as follows:
Article 2: Right to interpretation
1. Member States shall ensure that suspected or accused persons who do not speak or
understand the language of the criminal proceedings concerned are provided, without
delay, with interpretation during criminal proceedings before investigative and judicial
authorities, including during police questioning, all court hearings and any necessary interim
hearings clear: obligations unconditional: no choices left for the member states.
Article 5: Quality of the interpretation and translation
2. In order to promote the adequacy of interpretation and translation and efficient access
thereto, Member States shall endeavour (=streven) to establish a register or registers of
independent translators and interpreters who are appropriately qualified. Once established,
such register or registers shall, where appropriate, be made available to legal counsel and
relevant authorities clear: obligations unconditional: states need to try.
However, the prosecutor’s office argues before the court hearing Laura’s appeal against pre-
trial detention that Laura cannot appeal to these provisions of Directive 2010/64 as there is
no implementing act – Member State X has not yet transposed Directive 2010/64, even
though the deadline for transposition has already passed since a long time.
, c. What do you think of the argument of the prosecutor? Can Laura rely on articles 2
and 5 of Directive 2010/64 before the national court? Directives are binding as to
the result to each state to achieve. Nevertheless, a citizen may invoke a provision of
a directive against the national government if the deadline for implementing is
expired (Becker).
Van Gend and Loos showed directives can have direct effect. The fact that directives
are directed to member states it could not be invoked by individuals. After the
developing of international law, it became clear that it depends on the content
whether a directive has directive effect or not. Treaties should have direct effect
(Van Gend and Loos): EU-law is a different order and can’t be effective when
individuals can’t invoke a directive Direct effect means that individuals can go to
the national court. Directives can contain direct effect when the wording contains a
clear and unconditional prohibition (Van Gend and Loos). In Van Duyn the court
repeated Van Gend and Loos. An individual can invoke a directive after the deadline
has passed a member state should not be profiting from its own failing.
Answer:
1) Van Gend and Loos, a treaty has direct effect when:
Clear;
Unconditional.
2) Van Duyn, a directive has direct effect when:
Clear: does it takes in a clear way what the obligations are;
Unconditional: the provision asks of the member states to take
measures in order to transpose it into domestic law does the
member state has to take measures article 2 is, article 5 isn’t;
Deadline passed.
Distinction:
ECJ EU-law
ECtHR
As time passes, it becomes clear that the prosecutor cannot gather enough evidence to
bring a successful case against Laura. Her pre-trial detention is lifted. However, Member
State Y has issued a European Arrest Warrant for Laura. They request her surrender because
a court in Member State Y has sentenced her to five years imprisonment for financial fraud.
Although Laura was well aware of the time and place of the trial in her home country, she
chose not to attend it personally. Instead, she went on vacation and sent her lawyers. Laura
argues that surrender on the basis of the European Arrest Warrant would be in violation of
article 7 of the Constitution of Member State X. That provision stipulates that someone who
has been tried in absentia, can only be extradited if the requesting state provides
guarantees that person’s right to challenge the conviction, even if she has been represented
by a lawyer. However, the lawyers working for Member State X maintain that EU law cannot
be tested against fundamental rights guarantees in national constitutional law.
