Joe Costello (Dublin Central, Labour)
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Question 996: To ask the Minister for Justice, Equality and Law Reform if his attention has been drawn to the proposed EU Framework Decision on procedural rights in criminal proceedings; the reason Ireland has opposed the measure which would provide minimum standards for treatment of suspects in custody; and if he will make a statement on the matter. [20411/07]

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I am aware of the proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union. The proposal has been before the JHA Council for over three years and an overall consensus has not been reached.

A number of Member States, including Ireland, have difficulties of various kinds with the proposal. Our difficulties have always concerned legal competence and certainty rather than substance. We are not opposed to effective procedural safeguards. Indeed Ireland has a comprehensive set of procedural rights in place which exceed those in the current proposal. Our position, formulated in consultation with the Attorney General, is that:

(i) there is no legal base within the Treaties for procedural safeguards and therefore the Union lacks the competence to legislate in this area, and

(ii) there is already a set of procedural safeguards enshrined in Articles 5 and 6 of the European Convention on Human Rights, to which all Member States of the Union are party and over which the European Court of Human Rights has jurisdiction.

The cited legal base, Article 31(1)(c) of the Treaty of European Union, provides for measures to improve judicial cooperation by ensuring compatibility between Member States' rules as may be necessary for that purpose. It has never been demonstrated that this measure is necessary for the purpose of judicial cooperation and mutual recognition, as is required by that Article. Furthermore the proposals which are on the table add nothing to either domestic law or the European Convention on Human Rights. Bearing this in mind, we are unwilling to accept the risks arising from a potential conflict of jurisdiction between the European Court of Justice and the European Court of Human Rights, increasing complexity for practitioners, and legal uncertainty.

Notwithstanding our fundamental objections to the proposal, we have actively supported initiatives to promote improvements in the standard of procedural safeguards throughout the Union. We have cosponsored a resolution with the United Kingdom, the Czech Republic, Cyprus, Malta and Slovakia which would promote a package of practical measures to enhance compliance with the existing ECHR standards on procedural rights. In addition, we indicated our willingness at the JHA Council in April to consider a binding proposal for proceedings with a cross border dimension. Regrettably the Presidency initiatives which followed sought to encroach on the domestic jurisdiction of Member States through time clauses and other procedures.

This proposal was last discussed at the JHA Council on 12/13 June. At that time Ireland, and several other Member States, took the view that progress could be achieved by means of the adoption of a political resolution on practical action to implement the ECHR benchmark on procedural rights. Such an approach would avoid the potential for legal conflicts between Union law and the jurisprudence of the European Court of Human Rights. However no agreement was reached. I now await any further proposals from the Presidency on how the matter might be progressed.