Cross-border cooperation in criminal matters is an important component of European integration and serves to promote respect for fundamental rights. Its importance became evident with the progressive elimination of border controls within the European Union, which facilitated free movement within the European Union, but also – at the same time – cross-border crime.

The European Union has regulated the main elements of cross-border cooperation in criminal matters. For instance, the European Arrest Warrant (EAW) entering into force in 2004 facilitated the surrender of suspects or convicted persons, without the need to apply long and cumbersome extradition proceedings. The EAW was followed by other framework decisions aiming to facilitate transfer of prisoners, transfer of probation and alternative sanctions, and transfer of pre-trial non-custodial measures. At the same time, the operation of the EAW, which hinges on the principles of mutual trust and mutual recognition, made it clear that the procedural rights guaranteed in national proceedings should be comparable; so courts can easily recognise decisions adopted by other jurisdictions without the need to examine the respect of fundamental rights during the proceedings in another Member State.

With the operation of the EAW, it also became clear that conditions of detention (pre-and post-trial) differ in the EU Member States. The Court of Justice of the European Union (CJEU) ruled that Member States executing the EAW should ensure that a requested person would not risk being held in inhumane conditions after the transfer to the issuing Member State.

In 2009, the Council of the European Union issued a resolution on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings. Since then, the EU has put in place six directives on the right to interpretation and translation, information, access to a lawyer, legal aid, the presumption of innocence and the procedural safeguards for children suspected or accused in criminal proceedings. The directives apply to a certain extent also to the cross-border proceedings triggered by the issuing of the EAW.

In turn, cross-border collection and sharing of evidence have become increasingly important with the ongoing EU harmonisation in certain fields of criminal law, leading to challenges both in terms of effectiveness as well as safeguarding fundamental rights.

This article reflects the work of the European Union Agency for Fundamental Human Rights’ (FRA), which to date has covered three main areas: procedural rights[1], detention conditions, and cross-border collection and exchange of evidence. These areas are particularly pertinent to fundamental rights and important for ensuring the efficiency of cross-border cooperation in criminal matters.

Criminal detention and alternatives

The EAW framework decision regulating transfer of detained persons between Member States is the most important legal instrument for effective cross-border cooperation in the area of criminal law. The CJEU clarified[2] that Member States executing such transfers must ensure that persons transferred will not run a real risk of inhumane conditions of detention in the requesting Member State. More specifically, in the Dorobantu judgement, the CJEU pointed out that ‘as regards, in particular, the personal space available to each detainee, the executing judicial authority must, in the absence, currently, of minimum standards in that respect under EU law, take account of the minimum requirements under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms’.[3]

FRA research showed that the conditions of detention still vary considerably across Member States. Detainees remain vulnerable, as data presented in FRA’s Criminal Detention Database[4] show, with some Member States lacking standards that would meet the minimum requirements set by the European courts. Establishing that such differences exist in the treatment of detainees opens an opportunity for discussing common minimum standards in the EU with respect to pre-trial detention which could improve mutual trust between Member States, increase the effectiveness of mutual recognition instruments, and demonstrate commitment to upholding the EU's fundamental rights and other values.

The work of the Agency identified three areas for prioritising action to improve the current situation: first, physical conditions, such as living space, access to sanitary facilities and access to meaningful activities, which should reflect respect for human dignity and other fundamental rights, including privacy and respect for family life. Second, adequate access to healthcare; this requires the presence of a sufficient number of medical staff in detention facilities, which proved to be a particularly important issue during the COVID-19 pandemic. Third, protection from violence. Authorities need to acknowledge that violence is endemic in prison environments and should apply effective measures to protect detainees from violence, both from prison staff and from other inmates. Particular attention should be given to those considered most vulnerable, such as LGBTI prisoners for whom only a few Member States provide special protection measures.

One of the underlying reasons for the shortcomings in detention conditions is overcrowding in detention facilities, which is in turn closely related to the overuse of detention measures and underuse of non-custodial measures. In 2016, FRA published a report on fundamental rights aspects of criminal detention and alternatives in EU cross-border transfers[5]. It examined a range of fundamental rights issues related specifically to three EU instruments concerning transfers of prison sentences between EU Member States, probation measures and alternative sanctions, as well as pre-trial supervision measures: the Framework Decision on transfer of prisoners, the Framework Decision on probation and alternative sanctions, and the Framework Decision on the European supervision order.

FRA research showed that the EU instruments providing for the cross-border transfer of such alternatives to detention in pre- and post-trial phases remain underutilised, arguably because alternative measures to detention are still not perceived as an effective deterrent to crime.

In the light of these findings, FRA continues to encourage Member States to make full use of the framework decisions related to cross-border proceedings, on probation and alternative sanctions and on the European supervision order, but also to use alternative measures more often in domestic proceedings to help reduce prison populations. The use of alternatives is even more important at the pre-trial stage, where individuals remain innocent until proven guilty in a court of law. Promoting and establishing widely alternative measures to detention needs to go hand in hand with a shift in public opinion coupled with a better understanding of their effectiveness and added value to society. At the same time, it would have a clear positive impact both for fundamental rights as well as for further stimulating cross-border cooperation.

Criminal procedural rights

Over the past years, the FRA has conducted research and published reports concerning the respect of fundamental rights in a number of core areas of criminal procedural rights, covering five directives adopted under the Criminal Procedural Roadmap[6]. The Agency’s research examines the legal provisions in place, as well as the practical implementation of the law to identify shortcomings, as well as promising practices, and suggest improvements.

Our research shows, as a general trend, a positive influence of the EU directives on criminal procedural rights. Member States appear to be gradually harmonising the application of EU standards. Nevertheless, challenges persist – for example, information in criminal proceedings is not always conveyed in an understandable manner; access to a lawyer is delayed; and the right to remain silent is not always respected in practice. Moreover, our research shows that these issues continue to affect children too when they are involved in criminal proceedings.

Recognising linguistic diversity in the EU, the legislator guaranteed every suspect, accused and requested person the right to interpretation and translation to enable them to participate in proceedings at the same level as persons speaking the language of the proceedings. Our survey of national associations of legal interpreters and translators identified problems particularly with less common languages. For example, respondents in our interviews complained about the inadequate interpretation services and even mentioned using other inmates or family members and friends as interpreters, although poor or inaccurate interpretation could have serious legal consequences. National requirements and practices on interpretation and translation services for criminal proceedings vary, for example as regards the qualifications and certification of official legal interpreters and translators, resulting in varying quality of these services within the EU.

The right to information is another important right in criminal proceedings enabling full and engaged participation. The EU has introduced an obligation to provide a written ‘letter of rights’ to those deprived of liberty. However, in practice, as our research indicates, often defendants felt inadequately informed – either because the provision of information is delayed or conveyed as uncomprehensible legal jargon.

Access to a lawyer is the most important right in the course of criminal proceedings but also EAW proceedings. Our research found instances where access to a lawyer was delayed and suspects were questioned without the presence of a lawyer. FRA recommended that Member States take appropriate measures to avoid such practices. Additionally, our findings show that authorities do not always inform persons arrested on an EAW about their right to be assisted by lawyers in both states – issuing and executing. Even more so, the authorities do not facilitate this access. Moreover, given the difficulties some defendants deprived of their liberty had in accessing their lawyers, FRA recommended that national authorities should issue specific guidance to law enforcement authorities for prompt, direct and confidential access to a lawyer before the first questioning of defendants deprived of their liberty.

FRA provided a range of recommendations for improvement concerning the different criminal procedural rights, some of which have a transnational dimension. For instance, with regard to translation and interpretation, which can be a critical factor for ensuring fair proceedings, we recommend considering cooperation between Member States on interpretation, for example by sharing a pool of interpreters. Moreover, FRA recommends enabling criminal justice authorities to monitor and assess the quality of national interpretation or translation services.

The Agency recommended that national authorities put in place robust safeguards to ensure that individuals are effectively informed about their criminal procedural rights as soon as they become suspects. Particular attention should be paid to language barriers, lack of education or any physical or intellectual disability that individuals may have. We also suggested that information should be provided both orally and in writing using non-technical and accessible language. In particular, FRA pointed out that law enforcement should inform any suspect or a potential suspect (sometimes called ‘a person of interest’) about their rights as suspects, in particular the right to remain silent and not to incriminate themselves. With regard to the recurrent practice of questioning as witnesses persons who are likely to become suspects, we call for abandoning this practice to ensure that questioning is immediately stopped once it becomes clear that the person might be charged with a crime, to inform this person fully about their procedural rights, and to enable their consultation with a defence lawyer.

Concerning the letter of rights, we recommend introducing a uniform template for all criminal justice authorities in the EU to improve legal certainty and clarity. In addition, as national laws rarely include detailed rules and measures to cater for the needs of persons with disabilities, practical measures, such as transcribing written text into braille for individuals with visual impairments or providing audio files and easy-to-read versions, would improve fundamental rights protection.

Specifically concerning children, our ongoing research indicates that when they are involved in criminal proceedings, national authorities do not always follow the safeguards provided by EU law, nor are children treated in the way recommended by the Council of Europe Guidelines on child-friendly justice[7]. We find, for example, that authorities inform children in the same way as adult defendants by handing out a letter of rights or a leaflet; and that their parents are not always involved as required by EU law. On the other hand, we find that children involved in criminal proceedings are rarely detained and, in general, authorities apply non-custodial measures to children.

Cross-border collection and sharing of evidence

Cross-border collection and sharing of evidence is often necessary for the successful investigation of serious crime, including terrorism. The Agency’s research into the fundamental rights impact of EU counter-terrorism legislation shows that EU level action has helped foster cooperation between Member States when detecting, investigating and prosecuting these offences[8].

Moreover, counter-terrorism practitioners interviewed for this research underlined the added value of Eurojust in setting up and supporting joint investigation teams, in supporting investigations and by exchanging information. The prosecutors and judges interviewed across the EU consider Eurojust as an important facilitator of their work to keep Europe safe.

Nevertheless, the research also identified persistent challenges, such as the vague definitions of certain offences which affect legal clarity and foreseeability. Different interpetations of what conduct constitutes an offence such as travelling for the purpose of terrorism, receiving training to terrorism or public provocation to commit a terrorist offence, can have an adverse impact on fundamental rights and discourage lawful conduct but also can hinder cross-border cooperation. Rules for the use of evidence from intelligence work or collected in conflict zones are also not always clear and would benefit from explicit fundamental rights safeguards. Practitioners we interviewed for our research also claimed that information provided by non-EU countries for criminal proceedings in terrorism cases was not systematically verified. It was therefore not clear if it had been obtained legally or not, for example through torture. Such factors can have a real impact on the rights of individuals involved in criminal proceedings and also hinder effective cross-border cooperation in terrorism cases.

In closing, I would reiterate the importance of fundamental rights for cross-border cooperatation in criminal matters. FRA research clearly shows that respect for fundamental rights and a clear legislative framework with robust safeguards are prerequisites of Member States’ mutual trust in each other’s justice systems, and therefore for effective cross-border cooperation and the prevention of impunity in the European Union. EU Agencies can assist Member States and EU institutions with capacity building, operational support and data in this important field, and can help promote these shared objectives of criminal justice.