3. MUTUAL RECOGNITION OF FINANCIAL
PENALTIES
| (23677)
11079/02
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| Draft Framework Decision on the application of the principle of mutual recognition to financial penalties.
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| Legal base: | Articles 31(a) and 34(2)(b) EU; consultation; unanimity
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| Department: | Home Office
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| Basis of consideration: | Minister's letter of 8 November 2002
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| Previous Committee Report: | HC 152-xxxix (2001-02), paragraph 4 (23 October 2002)
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| To be discussed in Council | No date fixed
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | For debate in European Standing Committee B
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Background
3.1
We have now considered earlier drafts of a proposal for the mutual
recognition and enforcement of financial penalties on six occasions,[3]
and the present draft on one previous occasion[4].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.
3.2
We therefore welcomed the provision in the revised version of
Article 4(2)(e) which would have 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.[5]
When we considered a further revised version of the proposal
on 17 July we 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on the rights of defendants tried in their absence had been replaced
by a provision requiring the court in the executing State to rely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
a person holding judicial office. We asked the Minister to explain
how this had come about.
3.3
The Minister replied that the change had come about because a
number of Member States, including the UK, considered that the
previous text was too broadly drafted and would have encouraged
executing states to re-examine the issuing state's decision where
the penalty had been imposed in the defendant's absence. The
Minister added that he preferred the new text. He stated that
the text required the issuing state properly to notify the defendant
of the proceedings, and allowed execution to be refused where
it could not give this assurance. At the same time, it did not
encourage the re-opening of cases in the executing state, and
the Minister expected that enforcement would proceed 'in the vast
majority of cases' on the basis of the certificate.
3.4
The Minister added that his proposed human rights amendment[6]
would in any event provide the defendant with some relief in an
in absentia case where 'there was evidence that the certificate
was incorrect'. The Minister stated that in such a case, where
it appears that there has been a flagrant breach of the defendant's
rights under the European Convention on Human Rights (in this
case Article 6 ECHR[7]),
it would be possible for the executing state to go behind the
certificate and consider whether the breach had in fact taken
place.
3.5
We noted the Minister's reference to Article 6 ECHR and asked
him to confirm that nothing in the Framework Decision, or in its
implementation in this country, would require a court in the United
Kingdom to give effect to a foreign order which, in the opinion
of the UK court, had been made in violation of the defendant's
rights under the ECHR.
3.6
We also noted the Minister's support for the new provision in
Article 8 of the proposal, which would allow the executing State
to grant an amnesty or pardon in respect of a penalty imposed
by the issuing State, and asked the Minister if this provision
was really consistent with the principle of mutual recognition.
The Minister's reply
3.7
In his letter of 8 November, the Parliamentary Under-Secretary
of State at the Home Office (Mr Bob Ainsworth) notes our continuing
concern about penalties imposed in the absence of the defendant,
but states that he is concerned that allowing the executing state's
courts to look behind the certificate would encourage the executing
state to re-examine the issuing state's decision. The Minister
adds:
"Given that a significant number of decisions enforced under
this instrument (especially for road traffic offences) are likely
to have been imposed in absentia, this would make the instrument
ineffective, and so we do not favour it. Under mutual recognition,
it is for the issuing state to ensure that a fair procedure is
followed, and we are satisfied that our EU partners will do this."
3.8
The Minister goes on to state that this is his settled view on
the question of in absentia judgments, that the current
text achieves a balance between treating defendants fairly and
ensuring that the instrument is effective and that he is not prepared
to seek to change the current text.
3.9
In relation to Article 6 ECHR, the Minister does not give the
confirmation in the terms we sought, but states:
"We consider that it is for the issuing state to ensure defendants
receive a fair trial[8],
and we would expect any ECHR challenge on these grounds to have
been made in the issuing state before a fine is transmitted to
the executing state[9].
However, I can confirm that it is our view that our proposed wording
on human rights would enable a UK court to refuse to enforce a
fine where there was clear evidence of a flagrant [10]breach
of the defendant's human rights."
3.10
It is worth recalling at this point that Article 4(2)(e) of the
proposal 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'. The
certificate (which forms Annex 2 to the Framework Decision) does
not require any statement to be made as to whether the defendant
appeared or not, or as to whether he was represented in the proceedings.
It requires only that two boxes be ticked, the first to state
that the person has been 'duly notified' of the proceedings against
him, the second to state that he has again been 'duly notified'
of any procedures and deadlines for appeal. The certificate does
not require the issuing state to certify that, in accordance with
the requirements of Article 6 ECHR, the defendant has had a fair
trial, or the opportunity of a fair trial[11].
3.11
On the question of pardons and amnesties, the Minister agrees
that Article 8 (which allows an executing state to grant an amnesty
or pardon) 'does not sit easily with the principle of mutual recognition'.
The Minister explains that the provision is designed to cater
for the sort of general amnesties which can be granted in other
Member States, and that the provision is acceptable, provided
that any amnesty does not bind the issuing state[12].
Conclusion
3.12
We remain concerned that this measure does not adequately protect
the rights of persons who have had a penalty imposed against them
in their absence. The Minister himself concedes that a significant
number of decisions enforced under this instrument are likely
to have been made in absentia. This appears to us to make
adequate protection all the more necessary.
3.13
We do not share the Minister's confidence in the proposed system
of certificates, for the following reasons. First, the proposal
contains no minimum standards to ensure that a person is notified
of proceedings in sufficient time to arrange for his defence.
Secondly, the certificate does not have to be signed by a person
holding judicial office. Thirdly, the certificate does not have
to state whether the person appeared personally or was represented,
even though these facts constitute part of the grounds on which
recognition and enforcement of the foreign order can be refused.
Fourthly, the certificate does not have to state that the defendant
was given a fair trial, or had the opportunity of a fair trial,
which satisfies the conditions of Article 6 ECHR.
3.14
Furthermore, there is no requirement that the judgment should
be translated into the language of the executing state, so that
the certificate — with all its defects and shortcomings
— is left to speak for itself.
3.15
In these circumstances, we do not consider that there is any
proper basis for relying exclusively on the certificate in cases
where the penalty has been imposed in the defendant's absence,
or for depriving the court in the executing state of the right
to satisfy itself that the penalty was fairly imposed.
3.16
We regret that the Minister has not been persuaded of the force
of these points. Since the proposal applies to a whole range of
penalties, including those imposed by an administrative authority,
large numbers of people in this country are likely to be affected.
We also note that defendants are less well protected in relation
to penalties than they are in relation to the enforcement of civil
debts under the provisions of Council Regulation (EC) 44/2001.
We therefore consider that these matters should be debated in
standing committee. We ask the Minister to make available the
text of his proposed human rights amendment, to which he has referred
in his letter of 8 November, in sufficient time before the debate.
3.17
In our view, the debate could usefully examine whether the
proposal sets out a proper basis for mutual recognition and enforcement,
and, in particular, whether the rights of absent defendants are
adequately protected.
3 (22622) 10710/01: see HC 152-viii (2001-02), paragraph
2 (28 November 2001) and HC 152-xii (2001-02), paragraph 5 (16
January 2002); (22622) 10710/01and (23164) 5299/02: see HC 152-xx
(2001-02), paragraph 7 (6 March 2002); (23164) 5299/02: see HC
152-xxvii (2001-02), paragraph 4 (1 May 2002); (23164) 5299/02
and (23392) 7654/02: see HC 152-xxxii (2001-02), paragraph 7 (12
June 2002); (23392) 7654/02: see HC 152-xxxvii (2001-02), paragraph
6 (17 July 2002). Back
4 See
headnote. Back
5 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. The subsequent removal of this provision
from the present proposal means that the rights of absent defendants
are less well protected in criminal matters, than they are in
relation to civil debts. Back
6 The
Minister tells us that this would follow the wording used in the
European Arrest Warrant (Article 1(3)), namely that the proposal
does not amend the obligation in Article 6 EU to respect fundamental
rights and fundamental legal principles. 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
7 Article
6 ECHR guarantees the right to a fair trial. In relation to criminal
proceedings, it guarantees the right of the defendant to be informed
promptly, and in a language which he understands and in detail,
of the nature and cause of the accusation against him, and to
have adequate time and facilities for the preparation of his defence. Back
8 Under
the present law, the court in England and Wales, and in Scotland
is entitled to refuse registration of a foreign criminal order
if it is not satisfied that the person received notice of the
proceedings in sufficient time to enable him to defend himself
-cf. s. 97(1)(b) Criminal Justice Act 1988, s.107(1)(b) Criminal
Justice (Scotland) Act 1995. Back
9 This
does not seem a realistic expectation where the defendant's case
is that he was not notified of the proceedings. Back
10 It
is not clear why the breach has to be 'flagrant'. Back
11 The
Minister nevertheless informed us on 2 July, when resisting our
suggestion that the foreign judgment should be translated in in
absentia cases, that the certificate 'will contain all the
necessary information for the penalty to be executed'. Back
12 This
produces the paradoxical result that an executing state may grant
an amnesty or pardon in respect of a penalty imposed in proceedings
in the issuing state which were fair in every respect, but that
the executing state must enforce an in absentia judgment,
even where it is not clear that the defendant was given a proper
opportunity to defend himself. Back
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