During the first part of the last day of the informal meeting of justice and home affairs ministers at Brdo, the ministers of justice discussed judicial cooperation in criminal matters, with particular attention paid to the fundamental rights of the individual and to strengthening the principle of mutual recognition of judgements.
“The fundamental rights of the individual need to be set at the highest level acceptable and defined as clearly and unambiguously as possible. This is a task which cannot be put off too far into the future," said Minister Šturm.
The Slovenian Presidency wishes to strengthen the level of rights in the area of judicial cooperation in criminal matters in cases where a judgement has been passed on the defendant in absentia. Here Slovenia also wishes to contribute to fulfilment of the principle of mutual recognition of judgements. Slovenia, Germany, France, the United Kingdom, Czech Republic, Slovakia and Sweden have launched an initiative which emphasises the right to a fair trial and the right to be present at the trial, proceeding from the provision of Article 6 of the European Convention on Human Rights. The proposal introduces a standardised approach in procedures of mutual recognition of judgements given in proceedings at which the defendant was not present.
Four framework decisions on the basis of the principle of mutual recognition of judgements already enable the enforcement of judgements passed in absentia, although this issue is not dealt with in a uniform way. This weakens legal safety and hinders judicial cooperation.
The proposal identifies cases and conditions where Member States must ensure the right to a re-trial if a defendant so requests, where they wish the judicial authorities of another country to recognise a judgement given in absentia. The proposal envisages the condition of proper summonsing of the defendant to the main hearing and the duty to apprise the defendant of the possibility that a judgement may be given in his absence, if he does not attend the main hearing. Where these standards are not fulfilled, the country in which the defendant is located may deny a request from the country demanding his extradition. The proposal does not envisage a harmonisation of the procedural provisions of Member States.
The ministers welcomed the initiative for standardised arrangements regarding judgements in absentia. The discussion showed that the question of the balance of basic rights of the individual and the principle of mutual recognition is an issue that is both worthy of concern and necessary to consider.
The second part of the meeting was devoted to issues of family law: how to strengthen judicial cooperation and improve access to the courts in family matters.
According to European Commission data, as much as 16% of all divorces in the territory of the EU occur in marriages in which the partners are from different countries or they do not live in their country of origin. Unfortunately the claiming of maintenance abroad is much harder than in the country where the maintenance order has been issued. Ministers discussed the possibility of easing procedures for claiming maintenance rights. Here the costs of claiming maintenance in transboundary procedures would also be reduced. The proposed regulation on maintenance envisages the elimination of intermediary steps for recognising and enforcing foreign court orders. “This means that in practice a court order obtained by the beneficiary in one EU Member State could be directly enforceable in all other Member States. This would contribute significantly to simplifying and shortening procedures for those entitled to maintenance," stressed Minister Šturm.
In transboundary procedures, children as well as other beneficiaries of maintenance frequently encounter numerous issues involving how even to begin the procedure against a debtor abroad, how the debtor can even be found and which authority is competent for this procedure. The maintenance regulation therefore envisages the establishing of an effective system of cooperation between central authorities of the Member States, whose primary task will be to ease the claiming of transboundary maintenance.
At the meeting, the participants were in accord that the Hague Convention and the Protocol on the Law Applicable to Maintenance Obligations, adopted on November 2007, were extremely important international instruments that will ease the enforcement of maintenance claims on a global level. The delegation agreed that this act should be acceded to as soon as possible.
The participants also agreed that even closer cooperation can be achieved at the EU level and thus ease the transboundary acquisition of maintenance even more by abolishing the existing intermediate measures for recognising and executing judgements. A condition for this would be certain safety valves, above all harmonised decrees on the law applied.
Discussion also focused on what is called the Rome III regulation, which sets out the law applicable to divorce in cases where the partners are not from the same Member State, or are citizens of the same country but live outside that country. In the event of a breakdown of such marriages, spouses for the most part are not familiar with the law of the other spouse, or the law of the country to which they have moved. Such a situation is injurious to legal safety, and enables the partner with a better knowledge of the law to file for divorce at a court which will apply more favourable laws for that partner.
A great majority of Member States supported the proposal of the Commission that all spouses or former spouses have the possibility of concluding an agreement on which court would be authorised and which law would be applied for their divorce. This constitutes a limited choice, since they can only select among those courts and laws that have a specific connection with their situation.