LEAP Advisory Board Meeting - Internal Document

Communiqué

issued after the

Legal Experts Advisory Panel

Advisory Board Meeting

Brussels, 20November 2015

INTRODUCTION

1. On 20 November 2015, Fair Trials Europe (‘Fair Trials’) brought together members of the Advisory Board (‘AB’) of the Legal Experts Advisory Panel (‘LEAP’) for the Annual Advisory Board meeting (the ‘meeting’), to review LEAP’s work in the last year (Part I), discuss key aspects of the plan for 2016/17 (Part II), discuss LEAP’s communications role (Part III) and discuss the 2016 LEAP Annual Conference (Part IV). 14 representatives representing 14EU Member States attended the meeting.

I – REVIEW OF 2015/16 WORK TO DATE

1. The Advisory Board meeting takes place mid-way through the LEAP year, which lasts from April to end of March of the following year. The current year (April 2015-March 2016) is the first of three covered by the 2015-18 framework agreement entered into by the European Commission and Fair Trials Europe, the coordinator of LEAP. The discussion at the meeting focused on this though also drew upon lessons from previous LEAP grants.

General comments

1. Appreciation was expressed by Fair Trials’ Head of EU Office, Alex Tinsley, for the commitment shown by the AB during the year, giving time for phone calls, surveys, ad-hoc enquiries and taking on an active role in implementation work. The AB also expressed its appreciation for Fair Trials’ role in building a sense of belonging to a community dedicated to the protection of defence rights, and in providing support on an ad-hoc basis for instance in the context of litigation on individual cases. New members of the AB expressed their enthusiasm for the role.

About the Advisory Board role

1. Fair Trials was keen to explore whether the demands it placed upon AB members’ time were excessive or whether, particularly for practising lawyers, the activities it asked them to engage in took them outside their usual remit and whether they had any issues with this.
2. Regarding the main feature of AB membership, the system of quarterly telephone calls, it was agreed (as discussed at the previous year’s Advisory Board meeting) that these were an effective way of keeping in touch and that there was no reason to change the system significantly.
3. There was, however, some agreement that AB members could act more as a conduit for other contacts within the relevant jurisdiction, in particular bar associations. AB members were happy with the idea that Fair Trials staff might, in 2016/17, be in touch with other LEAP members or non-LEAP contacts under their stewardship if this made sense in a specific context.

LEAP’s role in EU-level lobbying

1. Fair Trials routinely draws upon LEAP (typically the AB in the context of quarterly phone calls, but also via ad-hoc emails addressed to the broader LEAP network) to obtain information as to national law and practice. This information often feeds into LEAP positions and briefings on draft EU laws as good/bad practice examples. Fair Trials stressed the importance of this: a provision in the recently agreed directive on the Presumption of innocence, for instance, was attributable largely to LEAP.
2. Some AB members commented on the fact that they did not always understand the policy and legislative processes in which Fair Trials sought to involve them. They provide answers to questions asked by Fair Trials staff and know that they will be used effectively, but felt that it might be possible for them to provide more pertinent information if they understood the context better.
3. Fair Trials welcomed this insight, recognising that Brussels legislative processes were not always clear to insiders, let alone busy lawyers. Fair Trials agreed that it would be helpful to (i) provide more information explaining the context and reason for each request, and (ii) establish a diagram describing the EU legislative processes and the points at which LEAP input is sought and deployed, which could be shown and distributed at the Annual Conference in Budapest in February 2016.
4. As to the actual positions formed on the basis of views and information solicited from LEAP, the AB members were comfortable with the approach whereby LEAP encompasses a range of (not necessarily identical) views which provide parameters for a consensual position to be expressed in the resulting briefings, which are attributable to LEAP. There was, however, interest in ensuring greater LEAP participation in position development through a working group (see part II below).

LEAP’s role in implementation

1. A significant feature of the first six months of the 2015/16 year (building on the first months of 2015 under a previous grant) was the continued work in execution of LEAP’s strategy for implementation of the Roadmap Directives, presented at the Annual Conference in February 2015.[1] The discussion at the meeting focused on LEAP’s role in litigation, with some comments on training and informing national legislative processes for implementation of the Roadmap Directives.

Litigation in the national courts

1. The AB heard about three cases in which LEAP expertise has been brought to bear:
2. A challenge to an arrest warrant before the Supreme Court of Sweden, in which it was alleged that the restriction of the possibility of copying and taking notes from the file infringed Article 7(1) of Directive 2012/13/EU on the right to information (‘Right to Information Directive’);
3. An appeal against a conviction before the Supreme Court of Cyprus in which a question arose as to the relevance of the Roadmap Directives to facts arising after their adoption but before their implementation deadlines;and
4. A challenge before the Supreme Court of Estonia to the constitutionality of a rule of criminal procedure allowing a prosecutor to withhold access to the case file even where a person was detained, on the basis that this infringed the Right to Information Directive.
5. In all of these cases, Fair Trials had submitted, or was seeking to submit, an ‘Opinion’ (a five- to 10-page document signed by a representative of Fair Trials) setting out relevant standards derived from the case-law of the European Court of Human Rights; its view on the interpretation of relevant EU law norms; and comparative law examples drawn from the network. AB members present at the meeting commented that the Opinions had been useful in the context of the individual cases.
6. As set out in the Implementation Strategy, Fair Trials considers the comparative law aspect to be LEAP’s key value-add in the context of litigation. LEAP has accumulated a fund of knowledge supplied at roundtable meetings, in response to surveys etc. In one of the cases above, Fair Trials also sent out specific questions to the network to ask for information specific to the issue under consideration, setting a short deadline of a week, and received 17 responses.
7. Fair Trials has seen considerable engagement and enthusiasm in the network for this sort of activity, which enabled LEAP members (mostly practising lawyers) to support each other in the development of comparative law for use in daily practice, inter alia in litigation before national and regional courts. In discussions with Alex Tinsley around the 2016/17 work plan (Part II below), other AB members suggested that the clear, recognisable context meant this work made sense to them.
8. There was a discussion at the meeting as to the procedural status of the Opinions produced by Fair Trials with LEAP’s comparative law input. A distinction was drawn between the institution of amicus curiae (friend of the court)[2] and the practice of adding information to lawyers’ pleadings.
9. Regarding the independent amicus curiae approach, AB members mostly responded that in their jurisdictions no such procedure was formally provided for in the procedural rules, and that they did not believe courts would be receptive to such submissions, though it could be tried. Fair Trials is current working with one AB member to seek to take this route, which is preferable in that it enables the amicus to participate if the proceedings are referred to the Court of Justice of the EU.
10. The practice of adding information to lawyers’ pleadings was the option taken in two of the three cases mentioned above. Fair Trials’ Opinion becomes an annex to the written pleadings, which can refer back to it. AB members commented that this approach was definitely an option in their jurisdictions and that, in some places at least, the court would have to take account of it. There was general agreement that the comparative law content in these Opinions could be very useful.
11. There was some discussion as to the distinction between an Opinion annexed to a pleading and an expert evidence report ordered by the court and the practice of law professors giving opinions on the law. Much depended on the procedural rules and the way the contribution was presented.
12. There was, finally, a discussion around the fact that the cases themselves might not be cases in which LEAP members are directly involved. The Estonian case above, for instance, was not the LEAP AB member’s but a colleague’s, and the AB member organised the LEAP support. Fair Trials noted that it would be useful if LEAP members could ensure other lawyers came to them with proposals for cooperation. AB members commented that there might be opportunities to promote LEAP in their jurisdictions, to ensure other non-LEAP lawyers were aware that the assistance was available, though conferences, publications, even Facebook groups etc. The idea was to ensure that LEAP offered visible EU law-based solutions to problems currently considered essentially national.

Training and other implementation work

1. Several AB members have been involved in training activities of Fair Trials International (Fair Trials’ UK office) on the Roadmap Directives, which are connected to LEAP’s work coordinated byFair Trials Europe. Reflections on this focused on the possibility of involving judges, prosecutors and others like judicial assistants from senior courts, who are influential (they write the judgments) and are able to be seen to be inquisitive as to emerging standards. AB members commented that it would be beneficial to work with bar associations and other groups to deliver seminars focused on specific countries. Fair Trials is keen to pursue these initiatives, and is keen to support LEAP members in organising their own trainings (as it has done in Spain). Regarding other implementation work, there are specific plans for 2016/17, discussed below (Part II).

Fair trials Scoreboard consultation

1. The final issue discussed in relation to the 2015/16 year was the ongoing consultation on the Fair Trials Scoreboard, a system for measuring fair trial rights protection in EU Member States.[3] It was noted that there had been some 25 responses (the target was a total of 100) and that it might be useful to expand the consultation to government officials, prosecutors etc.
2. There was further discussion as to the way of taking forward this initiative (which LEAP has bound itself to do in its commitments to the European Commission). One option raised in the meeting was to provide the Commission with proposals for the incorporation of a criminal justice element within its existing EU Justice Scoreboard, though this naturally presents some issues in so far as it relies on information supplied by the EU Member States’ governments. Other options need to be examined and will be the subject of a workshop at the Annual Conference 2016 in Budapest.

II – KEY ASPECTS OF 2016/17 WORK PLAN

1. Fair Trials submitted the application for funding for LEAP for 2016/17 on 11 November 2015, shortly before the meeting. Comments were obtained from the AB on the draft 2016/17 work plan before the 11 November submission. The meeting focused on certain aspects of the 2016/17 work plan, focusing on how best to implement these in practice.

Plans for implementation of the Access to a Lawyer Directive

1. The AB reviewed an outline of the plan relating to implementation of Directive 2013/48/EU on the right of access to a lawyer (the ‘Access to a Lawyer Directive’): (1) LEAP will complete a Toolkit on this measure by March 2016 including an implementation checklist for national authorities; (2) in Quarter 1 of the next grant (April 2016 – June 2016), existing national law will be reviewed against the requirements of the Directive and the Toolkit checklist and action plans will be drawn up; (3) in the following three Quarters (June 2016 – March 2017) LEAP members and Fair Trials will work together to approach national authorities with written submissions to try to address these.
2. AB members flagged up concrete examples of how this could work. Previously, Fair Trials worked with a LEAP Advisory Board member to highlight ways in which draft criminal procedure reforms in Lithuania failed to meet requirements of the Right to Information Directive. The suggestions were reflected in the final law. The same could be done for the Access to a Lawyer Directive. In the Netherlands (at the time of writing, pending reforms) it is still not permitted for a lawyer to assist a suspect in questioning, after the initial consultation. This is something the Access to a Lawyer Directive requires explicitly. Fair Trials and LEAP could together to address the relevant parliamentary committee in a process like this, as they have done in Lithuania previously.
3. AB members pointed out that there were various institutions which could be worked with on this implementation work and agreed to agree plans for this in AB calls for the final quarter of 2015.

Judicial Remedies Working Group

1. Fair Trials has proposed that LEAP should institute one or more working groups, to begin with a trial of a Judicial Remedies Working Group in 2016/17. The idea is to give a group of LEAP members a greater role in the development of LEAP positions and enable more forensic discussion over a period of time, the group engaging via virtual platforms, an email list and an in-person roundtable.
2. AB members suggested there should be clear leadership (probably one LEAP member and one Fair Trials staff member). It was suggested that there should be at least one AB member on the group, ideally with specific expertise on the topic, to ensure feedback to the AB and continuity with general LEAP strategy, but that the rest of the membership should draw upon the wider network given the demands already placed upon the AB. AB members from the European Criminal Bar Association (‘ECBA’) suggested that it would be helpful for Working Group members to be in touch with the relevant policy-makers, at the European Commission in the first instance. It was noted that AB member for Portugal, Vania Costa Ramos, is leading a working group of the ECBA on linked issues, and that there could be synergies between this and the LEAP Judicial Remedies Working Group.

Improving uptake of the LEAP Quarterly Bulletin / Judicial Decisions Database

1. Using new software for the LEAP Quarterly Bulletin in 2015 (the ‘Bulletin’), Fair Trials has found that the latter is not always opened by all LEAP members, despite AB members confirming that the content is very useful. There was discussion as to how to improve the accessibility of the Bulletin.
2. One suggestion was to make it shorter; another was to make it monthly rather than Bulletin, with less content; another option is to create an application which would emit notifications and which LEAP members could refer back to in their own time.
3. A key aspect was the judicial decisions (of regional and national courts) relating to EU law which are circulated ad-hoc via the Bulletin. There was agreement among the AB that it would be useful to have these all in one place, as foreseen in the 2016/17 plan with the creation of a Judicial Decisions Database, a simple web page which would act as a repository for decisions forwarded to Fair Trials.

Training materials

1. Fair Trials has produced a series of Toolkits on the Roadmap Directives, including extensive case-law, template arguments and other information.[4]The plan for 2016/17, discussed with AB members, is to enhance the accessibility and circulation of these by producing 10 ‘Country-Specific Packages’, comprising written forewords in the local language by the AB member (including template legal arguments), translations of selected extracts of the Toolkits, video forewords to the online training videos on the Roadmap Directives, and an email in the local language for circulation via local bars.
2. AB members agreed that local language resources would help, noting that the Toolkits were quite long and that accessibility was key. A range of suggestions were made in relation to possible partners who could cooperate (especially in bar associations) and this would be discussed in the final round of AB calls in March 2016.

III – LEAP COMMUNICATIONS

1. Building upon a consultation within the AB in August-October 2015, AB members discussed the growing communications aspect of LEAP’s work and how best to take this forward. There was agreement that LEAP needed a clearer identity that its members were clear about and could communicate externally. There was particular discussion of (a) a LEAP item to be included in email signatures and (b) template communications – an example from another sector was given – which could be quickly adapted and circulated by LEAP members. AB members approved of both ideas.

IV – ANNUAL CONFERENCE 2016

1. AB members reviewed key proposals for themes and speakers at the 2016 Annual Conference, due to take place on 5-6 February 2016. It was agreed that an update on debates in Brussels would be useful, and that this should be seen as an opportunity for LEAP and EU policy-makers to interact. There was agreement that it was valuable hearing from a local prosecutor at the last conference in Amsterdam, and that it would be worth exploring this for 2016. AB members commented that given the increasing role of the Court of Justice of the EU in criminal cases, it would be well worthwhile for LEAP to hear from someone with experience of that process. AB members also approved of the idea of holding discussions on new ideas not currently covered by existing EU law instruments, such as plea bargaining, evidence (electronic, intelligence and from third countries) and judicial remedies.[5]

CONCLUSION