Securing Defence Rights in Transnational Proceedings

Abstract

This paper identifies and analyses problems and weaknesses standing in the way of the provision of an effective defence in transnational criminal proceedings. Drawing upon some key findings of the EuroNEEDs study, it extrapolates results from that examination of eu criminal justice as valid for all transnational justice settings. It is argued that the failure to recognise legally the difference between national and transnational proceedings leads to a lacuna. Transnational criminal law and justice mechanisms are recognised as developed, above all, as tools of repressive criminal procedure leaving individuals facing them stripped of their constitutional identities and corresponding protective rights. It is argued that those creating transnational criminal law and justice mechanisms must recognise and provide for a more balanced system to avoid such contexts acting as constitutional loop-holes and to ensure the provision of defence rights and procedural safeguards in such proceedings.

Importance of defence counsel's presence in the interrogation of a suspect in a criminal procedure

“…Право на приступ браниоцу може се ограничити у случају постојања убедљивих разлога и мора бити привремено и за снова но на процени сваког појединачног случаја. 43 У својој пракси Суд је истакао да убедљив разлог због којег се може ограничити право на приступ браниоцу јесте хитна потреба да се избегну озбиљне ште тне последице по живот, слободу или физички интегритет. 44 Огра ничење права које ће најчешће и угрозити правичност пос туп ка може се састојати у онемогућавању браниоцу да приступи списима предмета или да учествује у предузимању одређених доказних радњи (нпр.…”

EPPO and a common sense of justice

“…61 It has been called 'a serious warning that effective defence is endangered in transnationalised proceedings.' 62 Cross-border investigations are regulated by Article 31 of the EPPO Regulation. However, while Article 31 sets out a general framework for this procedure, it leaves a number of issues open for interpretation.…”

Transnational policing in Southern Africa

“…The application of mutual recognition meant that judges of a common law, adversarial tradition, who typically questioned applicant police officers and prosecutors in court to scrutinize the integrity of warrant applications, were required to take foreign applications for warrants at face value, without further scrutiny (Walsh, 2009b). By eroding these long-standing judicial safeguards, the instrument was criticized for being weighted in favour of catching suspects and repressive crime control rather than adequately protecting the due process and human rights protections of the alleged criminals (Ouwerkerk, 2015;Wade 2015). Furthermore, in terms of transparency and accountability, details about the number and nature of cases which involved minor crimes, the fairness of the process, the protection of human rights, the punishment of political opinion and the sentences handed down were almost impossible to quantify or determine (Ouwerkerk, 2015).…”

“…Nevertheless, it is remarkable that the EAW was in place for more than a decade before these basic and necessary procedural rights were introduced at the transnational level. The differences and clear gaps between national criminal justice systems and between national and transnational proceedings, which could strip individuals of their constitutional identities and protective rights, were plainly evident at the start of the EAW project and were the primary cause of the initial political hesitancy to introduce such measures through previous institutions, such as the CoE, in the first place (Walsh 2002(Walsh , 2016Wade 2015). The experience has served as a lesson to the EU, and to communities such as the SADC who may seek to mimic it, that justice ministers, EU officials, ambassadors, 'interest shapers' and technocrats on working groups and committees can have a propensity for valuing procedural expediency and the appearance of political productivity over and above legal tradition and the needs, expectations and preparedness of practitioners.…”