Select Committee on European Scrutiny Thirty-Ninth Report










Draft Framework Decision on the application of the principle of mutual recognition to financial penalties.



Draft Framework Decision on the application of the principle of mutual recognition to financial penalties.

Legal base:

Articles 31(a) and 34(2)(b) EU; consultation; unanimity


Document originated:

(b) 19 July 2002

Deposited in Parliament:

(b) 19 July 2002


Home Office

Basis of consideration:

(a) Minister's letter of 1 August 2002

(b) EM of 1 August 2002

Previous Committee Report:

(a) HC 152-xxxii (2001-02), paragraph 7 (12 June 2002), HC 152-xxxvii (2001-02), paragraph 6 (17 July 2002)

To be discussed in Council

No date fixed

Committee's assessment:

Legally and politically important

Committee's decision:

(a) Cleared; (b) not cleared: further information requested


    1. We have now considered earlier drafts of a proposal for the mutual recognition and enforcement of financial penalties on six occasions.[23] We were concerned that in the first version of the proposal there was no express reference to procedural unfairness as a ground for refusal of recognition, particularly in relation to the case where a penalty is imposed in a person's absence.
    2. When we considered a revised version on 12 June we therefore welcomed the provision in Article 4(2)(e) which provided that recognition may be refused where the criminal judgment was given in absentia and the defendant was not served with a document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so.[24] We considered a further revision of the proposal (document (a)) on 17 July and were dismayed to note that the former provisions on the rights of defendants tried in their absence had been replaced by a provision requiring the court in the executing State to rely on a certificate from the issuing State. We noted further that this certificate did not even have to be signed or confirmed by any person holding judicial office. We asked the Minister to explain how this had come about.
    3. We also asked the Minister to provide details of the amendment he was proposing which would make it clear that nothing in it would have the effect of amending the obligation in Article 6 EU to respect fundamental rights as guaranteed by the European Convention on Human Rights (ECHR).
    4. The Minister's reply

    5. In his letter of 1 August 2002 the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) deals first with the question of his amendment relating to fundamental rights. He explains that the proposal is based on the model of the European Arrest Warrant (EAW) and provides that the Framework Decision will not amend the obligation to respect fundamental rights that is contained in Article 6 of the Treaty on European Union[25], and explains that the effect of this is that the operation of the Framework Decision will have to be consistent with the ECHR.
    6. The Minister explains further that Clause 17 of the Extradition Bill will require the courts in the United Kingdom to refuse extradition if this would not be compatible with the UK's obligations under the ECHR. The Minister comments that he is 'quite satisfied that this is compatible with the wording of the EAW, and therefore that the similar wording we are proposing for the Financial Penalties Framework Decision will allow the protection of ECHR rights'.
    7. In relation to the enforcement of penalties imposed in criminal proceedings conducted in the absence of the defendant, the Minister replies as follows:
    8. "I am sorry that the Committee is unhappy with the change to Article 4(2)(e). The change came about because a number of Member States took the view, as did we, that the previous text was too broadly drafted and would encourage executing states to re-examine the issuing state's decision in in absentia cases. As I said in my letter of 2 July, we do prefer the new text. It affirms that the issuing state must properly notify the defendant of the proceedings, and allows execution to be refused where it cannot give this assurance. At the same time, it does not encourage the re-opening of cases in the executing state. In the vast majority of cases we would expect enforcement to proceed on the basis of the certificate.

      "Our proposed human rights amendment would in any event provide the

      defendant with some relief in an in absentia case where there was evidence that the certificate was incorrect. In such a case, where it appears that there has been a flagrant breach of the defendant's ECHR rights (in this case of ECHR Article 6), it would be possible for the executing state to go behind the certificate and consider whether the breach had in fact taken place.

      "However, we expect such instances to be very rare, and in cases where there are no such human rights issues, we wish to see the judgment executed on the basis of the certificate, without further formality. We do not feel, therefore, that a specific ground for refusal, allowing the executing state to go behind the certificate in all in absentia cases, would be helpful."

      The revised draft Framework Decision

    9. A number of detailed amendments have been made to the proposal in its latest version. Article 1 (a) on the definition of 'judgment' has been expanded by a new Article 1(a)(iii) and (iv) so as include orders of an authority other than a court, provided that the person has had 'an opportunity to have the case tried according to general rules and principles of criminal procedure by a court having jurisdiction in particular in criminal matters'.
    10. Article 1a has been amended to allow each Member State to designate one or more central authorities to be responsible for the administrative transmission and reception of judgments[26].
    11. Article 4(2)(e) provides a revised ground for non-recognition in the case of judgments given in the absence of the defendant. It provides that recognition may be refused if, according to the certificate accompanying the judgment, the person concerned did not appear personally or was not represented at the proceedings, 'and the certificate does not state that the person has been duly notified in accordance with the law of the issuing State'.
    12. Article 8 is a new provision which provides that a pardon or amnesty may be granted by the issuing State and by the executing State. Article 12 has been amended to make clear that in cases where the executing State grants a pardon or amnesty, the right to enforce the judgment will revert to the issuing State.
    13. Article 13 has been amended to remove the right of the court in the executing State to require a translation of the judgment[27].
    14. The Government's view

    15. In his Explanatory Memorandum of 1 August 2002 the Parliamentary Under-Secretary of State at the Home Office indicates that a number of changes have been made to the proposal and that overall he regards the new text as an improvement. The Minister states that he is open to including administrative offences within the scope of the proposal, provided that the defendant had the right to have the matter dealt with in a criminal court, and that he is therefore 'broadly happy' with the new Articles 1(a)(iii) and (iv). The Minister is also content with the new Article1a, since he believes that the new instrument should be flexible enough to meet the needs of those States that wish to use central authorities to transmit and receive judgments.
    16. On the provisions of Article 4(2)(e) relating to orders made in the absence of the defendant, the Minister essentially repeats the arguments he made in his letter. He considers that it affirms that judgments should only be imposed following a fair procedure, because if the issuing State is unable to certify that the person was duly notified, the executing State will be able to refuse enforcement. The Minister comments further:
    17. "However, by requiring the issuing State to certify that a fair procedure was followed[28], rather than by requiring the executing State to satisfy itself of this fact, it avoids encouraging the executing State to re-examine the decision. As we have previously stated to the Committees, we consider that for executing States to routinely re-open in absentia cases would be both unnecessary and contrary to the principle of mutual recognition."

    18. In relation to Article 8(1) (which now provides for pardons and amnesties), the Minister explains that many other Member States argued that their constitutions required that they have this power when executing a penalty, and that he can support this change. The Minister wishes to ensure that a pardon or amnesty granted in the executing State does not prejudice the issuing State's ability to have the penalty enforced elsewhere and points out that this is now dealt with in Article 12.
    19. The Minister states that he supports the amendment to Article 13 removing the right of the executing State to require a translation of the judgment. The Minister explains that the certificate accompanying the judgment will have to be translated and that 'this will contain all the information that will be needed in order to execute the judgment'. The Minister also explains that the executing State may arrange for a translation at its own expense, where it considers this is necessary.
    20. Conclusion

    21. We thank the Minister for his letter, explaining why he does not propose to give effect to our concerns about the enforcement of penalties which have been imposed in the absence of the defendant. We remain concerned on this issue and do not think the present version of the proposal is satisfactory. We note the Minister's reference to Article 6 of the European Convention on Human Rights and ask him to confirm that nothing in the Framework Decision, or in its implementation in this country, will require a court in the United Kingdom to give effect to a foreign order which, in the opinion of the UK court, has been made in violation of the defendant's rights under the ECHR.
    22. We note the Minister's support for the new provision in Article 8, which allows an executing State to grant an amnesty or pardon, but we ask the Minister if this provision is really consistent with the principle of mutual recognition.
    23. We clear document (a) on the basis that it has been superseded but we shall hold the current version, document (b), under scrutiny pending the Minister's reply.


23  (22622) 10710/01; HC 152-viii (2001-02), paragraph 2 (28 November 2001), HC 152-xii (2001-02), paragraph 5 (16 January 2002); (22622) 10710/01 (23164) 5299/02; HC 152-xx (2001-02), paragraph 7 (6 March 2002), (23164) 5299/02; HC 152-xxvii (2001-02), paragraph 4 (1 May 2002); (23392) HC 152- xxxvii (2001-02), paragraph 6 (17 July 2002). Back

24  This follows closely the wording of Article 34(2) of Council Regulation (EC) No. 44/2001 on the recognition of civil judgments given in default of appearance. Back

25  Such an amendment does no more than state the obvious truth that a Framework Decision cannot alter the obligations assumed under the EU Treaty. Back

26  Direct transmission of judgments is not appropriate for the UK, since it is not for the foreign court to determine which court in England and Wales, Scotland or Northern Ireland is competent for the purposes of enforcement, a point we raised on 6 March 2002 (23164) HC 152-xx (2001-02) paragraph 7.  Back

27  The certificate must, however, be translated into the official language, or one of the official languages, of the executing State.  Back

28  The certificate does not require such a statement to be made, only to tick boxes to state that the sentenced person has been duly notified of the proceedings against him, and of any procedures and deadlines for appeal. Back

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