“Towards a European e-Justice strategy” - a review of the Communication from the Commission in May 2008
by Louise Hodges Partner at Kingsley Napley solicitors, and Vice Chair of the European Criminal Bar Association (ECBA).

E-Justice is coming to Europe, and it is coming fast.  The European Commission’s  Communication “Towards a European e-Justice Strategy” was published on 30 May 2008. On the same day at the Commission’s Justice Forum inaugural meeting, “e-Justice” was listed as one of the first topics to be considered by a sub-group scheduled for September 2008.  The initiative is also described as a priority during the French presidency which run from July to December 2008 and the rumour in Brussels is that the French will ignore the usual slow down over July and August and will expedite progress on this and other projects over the summer.

Jacques Barrot, Vice-president of the European Commission and Commissioner responsible for Justice Freedom and Security has set out the rationale for the strategy in a press release stating "European citizens and businesses advocate better justice systems across Europe, which are capable of delivering better results in a more efficient way. The Commission believes that e-Justice can provide effective tools to make justice easier to access, speedier and less costly".  He also noted that "Judges, prosecutors and legal practitioners are also more and more vocal in demanding more effective judicial co-operation within the EU. This is also essential in order to provide adequate responses to cross-border crime. e-Justice can contribute to this aim too".

The Commission aims to draw up an inventory of the existing national and cross border e-Justice projects and propose coordinated action at an EU level in the future, to avoid the risk of diverging technical solutions and to identify best practice.  The Commission notes that several professional organisations are developing noteworthy projects involving information exchange or networking.  The Commission propose that the e-Justice sub-group in the Justice Forum will serve as a “catalyst for the exchange of best practices among national judicial systems and among legal professionals”. The e-Justice programme encompasses both criminal and civil justice, although this review concentrates on the criminal law areas.

The stated objectives of e-Justice are broadly the following:

1. The creation of a European portal designed to facilitate access to justice by citizens and businesses across Europe.
2. The reinforcement of judicial co-operation, on the basis of existing legal instruments.

European Portal

The Commission have identified that the portal will contain in particular the following:

1. European and national information on victims’ rights in criminal cases and their rights to compensation;
2. The fundamental rights enjoyed by citizens in each Member State (rights of persons charged under criminal proceedings);
3. Fundamental principles relating to a citizens’ ability to initiate proceedings before a court in another Member State, or to their defence when summoned to appear before such a court.

The intention is to provide practical information, in particular regarding the competent authorities and how to contact them, the use (obligatory or optional) of lawyers and procedures for obtaining legal aid. 

The Communication does not comment on who will be providing the information, who will determine what is ‘relevant’ or what mechanisms will be in place to ensure that the information is kept updated.  Will the information on “fundamental rights” just refer to headline rights or how those rights can be invoked in practice? It appears that the intended audience is lay persons, however  criminal justice can be notoriously complex in the applicability and use of defence rights.  There is a risk that the information provided may either have to be edited and selective in order for it to be comprehensible to a layperson, or so detailed that it risks being too complex to be of any useful general use.

As many of our defence colleagues will know, the section on legal aid could be extremely short for many jurisdictions, particularly in relation to cross-border cases.  There is none.

The reinforcement of judicial co-operation, on the basis of existing legal instruments.

Under this heading are initiatives encompassing the following:

1. Continuing the interconnection of criminal records
2. Creating a network of secure exchanges for information among judicial authorities
3. Facilitating use of video conferencing
4. Aids for translation
   1. Development of automated translation tools
   2. Creating a database of legal translators and interpretors
   3. Online forms for automated translation

Criminal Record Database

A priority for the Commission is the “interconnection” of Criminal Record Databases. They describe this as an ongoing project which allows judges and enforcement agencies across the EU to take account of defendants' past criminal convictions.

This raises various issues concerning the accuracy, access, use and understanding of the information stored.  There is no consistency or harmonisation either in the description of or essential elements that make up criminal offences in different Member States.  It is dangerous to exchange information with a view to it being used by the requesting Member State without there being a better understanding of what the offence is and the level of seriousness.  This raises questions about what information will be held on the criminal database and will this vary depending on the information held by a Member State on the national database?  If the criminal record data contains information limited to the date of offence, conviction, type of offence and sentence will the recipient of the information rely on the level of sentence to gauge the seriousness of the offence? Unless the recipient is familiar with the offence as it is understood in the Member State and the requisite sentencing framework at the relevant time, how can they interpret the information accurately and fairly?  Will some or all of the databases include information on arrests or investigations which have not resulted in a criminal conviction or judicial sentence for some or all of the Member States?  Who is included in the term “enforcement agencies” and how will they access and use the information?

Inevitably there will be issues concerning the accuracy of the information held, whether there will be a positive duty to inform the individual what is being held on any pan-European criminal record database and how they can rectify any errors or misunderstandings and communicate these to any authority who may have accessed the information.  Is the information to be held securely and will there be levels of authorisation before the record can be accessed?  How will the database exchange comply with EU data protection legislation?   There are numerous cases of misconduct of officers accessing databases at a national level, how will this be policed on a European level?  There has also been a spate of breaches of data security held by government departments in the UK.  How will such information be protected where such broad access is being contemplated? These problems will be exacerbated if access is granted to third party countries.  Again, how will the integrity of the system be protected to ensure that there are no errors in access or interpretation?

These are all areas that need to be considered to ensure that appropriate and effective safeguards are in place to protect the rights of citizens.

Video conferencing

In some Member States there is an increasing trend to use video conferencing during criminal proceedings.  For example, this may be in place of a defendant who is in custody being produced at court for certain hearings,  the giving of oral evidence by witnesses who are vulnerable, minors or resident overseas, and to facilitate client/lawyer consultations where the client is in prison.  Although at first blush these appear to be convenient, pragmatic and cost-effective ways of reducing travel and waiting time and reduce the upheaval that can occur for a suspect who is held in custody, there are serious concerns about the unchecked expansion in the use of such facilities.  In many jurisdictions it is important that individuals attend hearings and are active in their representation at court; similarly there are questions about whether witnesses who provide evidence via video link treat the court process with the same gravitas as if they were in attendance.  At a recent ECBA conference, defence practitioners discussed the increasing trend of authorities tapping telephone communications between lawyers and their clients.  Many practitioners would be reluctant to rely on the confidentiality of communications with their clients over a video conferencing medium.  Further, it is essential that lawyers have access to their clients to build up a relationship of trust and confidence.  The risk is that the trend to provide video conferencing as an additional option can quickly move to it being the main or only form of access to a suspect in custody – a position that cannot be allowed to develop.

Aid for translation

Language differences are inevitably an issue in cross-border cases in Europe.  The Commission’s Communication sets out a programme for a gradual compilation of comparative multilingual legal vocabulary, financing for legal translation tools in all European language pairs and the creation of a database of legal translators and interpreters.  It would be of interest to know how accurate the proposed automated translation tools may be.  The idea for such tools to rapidly identify those elements of documents that are useful for a case which could then be translated by a professional and to give parties basic information about court decisions or procedural documents.  However, there will inevitably be occasions where decisions are made or authorised, based on these rapid translations which could impact on the fundamental rights of individuals. The tools need to be accurate, fit for purpose and there need to be a similarly rapid mechanism by which decisions made based on such translations can be challenged.

The hope is also that a European database of legal translators and interpreters could lead to the improvement of legal translation.  This would obviously be a welcome development as there are frequent issues about the availability and quality of translation and interpretation professionals used in criminal proceedings. 

Conclusion – practitioners need to engage in the debate now

It is inevitable that information technology will have an increasing impact on all areas of our lives including criminal Justice.  A form of pan-European e-Justice will happen, either in a piecemeal uncoordinated fashion, or with some form of structure and attempt to harmonise the process.   The Commissions proposed timetable is for the “interconnection of national criminal records” to be dealt with over the period from 2008 – 2011. The “gradual compilation of comparative multilingual legal vocabulary” is scheduled for 2009-2013. The Justice Forum will be looking at this topic in a sub-group meeting currently scheduled for September 2008.  Therefore practitioners need to engage in the debate now.  The European Criminal Bar Association (ECBA) are one of the organisations represented at the Justice Forum and welcome any views, comments, experiences or suggestions defence practitioners may have which we can take to the Forum.

In particular it would be useful to hear of any practical examples where e-Justice either has or has not worked in national jurisdictions to support the objectives of the right to a fair trial.  Please could you contact in the first instance This email address is being protected from spambots. You need JavaScript enabled to view it. or This email address is being protected from spambots. You need JavaScript enabled to view it.