The theme this week is detention and the fundamental rights associated with it: first, the story of a particular man; and then the rights of detained persons in general in the EU.
The detained person is not in the EU, but he is someone I know, Esteban Peralta Losilla from Spain. It is not often that I have heard of people in international news stories, but this week I found that Esteban, who is well known to the organisation for which I work (the Council of Bars and Law Societies of Europe – CCBE), was one of the four staff members of the International Criminal Court detained in Libya while on a privileged visit in the country. He is married to a member of our Greek delegation, and I first met her years ago in a different career incarnation, when I visited Piraeus with the chair of the Law Society’s International Committee to plead for greater practice rights for English solicitors in Greece. His future wife translated the robust words exchanged between the Piraeus Bar and Law Society representatives (although we have all since become good friends). Esteban’s marriage is a CCBE affair, since he and his wife met at one of our meetings.
At the time of writing, Esteban is still detained. I have never been to Zintan where he is being held with his three colleagues, but I can imagine that the conditions of its jail – or even its guest house, where they are said to be – are not of the best after the vicious fighting in Libya. Governments and international organisations are engaged in active diplomacy to seek their release, and the CCBE – along with many other bodies – has written a letter to the Libyan transitional government.
The fundamentals of his case are important: diplomatic immunity (which he and his colleagues enjoy as members of an International Criminal Court delegation) should be respected; and the rights of detainees – in this case, Saif al-Islam Gaddafi, the son of the late dictator – to have confidential communication with, and access to, a lawyer should be respected. One of the four detainees is an Australian lawyer, and Esteban is chief of the counsel support section of the court. The delegation travelled to Libya in part as a privileged visit by the Office of Public Counsel for the Defence, currently appointed to represent Saif al-Islam Gaddafi in the case brought against him.
At the same time as all this is happening, an institutional battle is being fought at the highest levels of the EU over the minimum procedural safeguards for suspects and defendants in Europe, and particularly over the right to a lawyer, about which I have written before. The original draft of the directive emanating from the European Commission, which aimed to establish this right, was rather positive. Not surprisingly perhaps, the member states want to water it down, to the point where we believe that it no longer conforms with fundamental rights as defined in the European Convention on Human Rights and the relevant case law. Most worryingly – and here there is an echo to the case above – the latest text would justify derogating from the confidentiality of communication between a suspect or accused person and his or her lawyer.
We have a string of other concerns, too – for instance, in the current draft proposed by the member states, the directive would apply only ‘from the time a person has been ‘officially notified or informed otherwise’ that he is suspected or accused of having committed a criminal offence, a notion that is vague and therefore open to abuse; the directive would not apply to ‘minor offences’, a concept that is not defined and therefore equally open to abuse; the suspect or accused could well not have access to a lawyer before being interviewed by the police or other authority, if the interview is not considered ‘official’ – but is it not always official?; and in the pre-trial stage, member states could derogate temporarily from the right of access to a lawyer ‘in exceptional circumstances (…) when this is justified by compelling reasons in the light of the particular circumstances of the case’, a vague concept again open to all kinds of abuses – moreover, such derogations could be authorised not only by a judicial authority but also ‘by another competent authority'.
On an on it goes. I have not listed all our concerns. But it is alarming that the right of confidential access to a lawyer is apparently denied both in Libya, and, in different circumstances, is proposed to be denied to its full extent in future EU-wide legislation. EU governments should readily sign up fully to this basic right.
I hope that by the time you read this Esteban will be free – and that, shortly after that, our EU lords and masters will have seen sense and guaranteed the right to a lawyer, at least in accordance with the European Convention on Human Rights and the relevant case law, and indeed even more fully.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs