8 Mutual recognition of financial penalties
| (a)
(24350)
7231/03
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(b)
(24754)
11447/03
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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 — certificate.
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| Legal base | Articles 31(a) and 34(2)(b) EU; consultation; unanimity
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| Document originated | (b) 18 July 2003
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| Deposited in Parliament | (b) 22 July 2003
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| Department | Home Office |
| Basis of consideration | (b) EM of 5 September 2003
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| Previous Committee Report | (a) HC 63-xviii (2002-03), paragraph 5 (9 April 2003); and see footnote 11
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| To be discussed in Council | JHA Council 6 November 2003
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
8.1 We have considered earlier drafts of a proposal for the mutual
recognition and enforcement of financial penalties on numerous
occasions.[11] We were
concerned about the absence of safeguards where it is sought to
enforce fines and penalties which have been imposed on defendants
who were not present at the original proceedings, and who may
have been left unaware that they have been commenced. We recommended
the then current versions of the proposal for debate in European
Standing Committee B and they were so debated on 29 January 2003.
8.2 When we considered a revised version of the proposal
(document (a)) on 9 April 2003, we considered that it still gave
inadequate protection to persons who have had a penalty imposed
against them in their absence, and we thought this particularly
serious in an instrument which dealt with proceedings which would
be regarded as criminal for the purposes of the right to a fair
trial under Article 6 of the European Convention on Human Rights
(ECHR). In view of the outcome of the debate in European Standing
Committee B we did not seek to re-open the question of the principle
of the recognition and enforcement of financial penalties under
the proposal. However, we noted that the Minister had indicated
in the debate that the certificate (which was to give the court
in the enforcing State all the necessary information for enforcement
of the penalty), was not in its final form and remained to be
negotiated.
8.3 We considered that a certificate of the 'tick-box'
type as contained in document (a) was wholly inadequate to prevent
the risk of injustice to defendants who are convicted in their
absence. We noted that the certificate in its then form did not
provide the enforcing State even with the information necessary
for it to decide not to recognise a decision imposing a penalty
on the grounds specified in Article 4(2)(e) of the draft Framework
Decision relating to the absence of the defendant. We asked the
Minister for his response to the criticisms we made of the certificate
and if he would seek an amendment to the certificate so as to
require a judicial officer in the issuing State to certify the
grounds for his belief that the minimum rights of the defendant
under Article 6(3) ECHR[12]
had been respected.
The revised form of certificate
8.4 A revised form of certificate is set out in document
(b). It consists of a number of sections, (a) to (j), giving information
relating to the financial penalty and the circumstances of its
imposition in the issuing State. Sections (a) to (d) relate to
information about the authority issuing the decision. Section
(a) provides details of the authority which has issued the decision
imposing the financial penalty. Section (b) provides details of
the authority which is competent for the enforcement of the penalty
in the issuing State where this differs from the authority identified
in section (a), and section (c) specifies which of those authorities
is to act as the point of contact in the issuing State. Section
(d) gives details of any central authority which is made responsible
for the transmission and reception of decisions imposing financial
penalties.
8.5 Section (e) sets out information on the person
against whom a financial penalty has been imposed, including his
identity, the languages the person understands (if known), his
residence or last known address, the location of his property
and his source of income (if known). Analogous information is
to be given in the case of legal persons.
8.6 Section (f) gives details of the decision imposing
the financial penalty. In addition to specifying the amount of
the penalty, the section requires a 'description of the relevant
grounds for the decision and a summary of facts as known to the
authority issuing the decision and certificate'. The section also
requires the nature and legal classification of the offence to
be stated as well as the applicable provisions on the basis of
which the decision was made. With regard to the legal classification
of the offence, the section also requires the issuing authority
to tick one or more of a number of boxes indicating if the offence
is one of the list of offences referred to in Article 2(a). This
list is substantially the same as that contained in Article 2(2)
of the European Arrest Warrant and thus includes 'racism and xenophobia',
but also includes such offences as theft, road traffic offences,
infringements of intellectual property rights, criminal damage
and acts of violence during sporting events. The list also includes
offences created by Member States to give effect to instruments
adopted under the EC Treaty or Title VI of the EU Treaty. In all
these cases, dual criminality[13]
is not required as a condition for recognising and enforcing the
penalty. (In other cases, the enforcing State may refuse recognition
on the grounds that the penalty was imposed for conduct which
was not criminal in that State).
8.7 Section (g) requires details to be given of the
status of the decision imposing the penalty. It requires the issuing
authority to confirm that the decision is a final decision and
is not barred by a statutory time limitation. It also requires
the issuing authority to confirm that the sentenced person 'has
been duly notified' of the proceedings against him and of any
procedures and deadlines for appeal. However, the certificate
does not mention whether or not the defendant was informed personally
of his right to contest the case or whether or not he has indicated
that he does not wish to contest it. The certificate does not,
therefore, provide the information which the enforcing State would
require if it is to refuse to recognise the decision on the grounds
under Article 4(2)(e) of the Framework Decision relating to the
rights of the defendant to be personally informed.
8.8 Sections (h) and (i) provide for information
to be given about the availability of alternative sanctions and
other relevant circumstances. Section (j) requires the text of
the decision to be attached to the certificate and a signature
by a representative of the issuing authority certifying the content
of the certificate to be accurate.
The Government's view
8.9 In her Explanatory Memorandum of 5 September
2003 the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explains that the new draft of the certificate
makes a number of changes to the previous version and that 'overall
the Government regards it as an improvement'. The Minister points
out that section (d) of the certificate, which provides for the
case where a central authority is appointed, has been included
specifically for the UK. The Minister adds that sections (a) to
(d) 'contain comprehensive details of all authorities and contact
points concerned, and as such are considered to be satisfactory
by the Government'.
8.10 With regard to section (e), the Minister states
that the Government finds this acceptable, but that it intends
'to seek some small amendments to clarify the drafting'. The Minister
also considers that section (f) 'contains comprehensive details
of the decision to issue a penalty and is therefore satisfactory'.
8.11 In relation to section (g), the Minister states
that the Government believes that there is a need for further
information in this section in order to ensure that the certificate
accurately reflects the text of the Framework Decision. The Minister
adds that the Government will, in particular, 'seek to include
confirmation that the individual concerned has indicated in writing
that they do not contest the case against them'.
8.12 The Minister also explains that the Government
considers that sections (h), (i) and (j) are satisfactory.
Conclusion
8.13 We have already drawn attention to the importance
of the certificate. Since there is no requirement for the decision
to be translated into the language of the enforcing State, the
certificate will, in effect, have to speak for itself as the basis
on which the issuing State's decision is recognised and enforced.
In this regard we recall the statement made by the Minister's
predecessor that the certificate 'will contain all the information
necessary for the penalty to be executed'.
8.14 We agree with the Minister that section (g)
of the certificate, in particular, needs to be revised to require
the issuing State to certify whether or not the defendant has
indicated in writing that he does not wish to contest the case.
We also point out that, in order to provide the information necessary
for the application of Article 4(2)(e) of the Framework Decision,
the certificate must also certify that the defendant has been
personally informed, or that his representative has been informed,
of his right to contest the case.
8.15 We also repeat our earlier view that the
certificate should contain a statement by a person holding judicial
office in the issuing State setting out the grounds for his belief
that the minimum rights of the defendant under Article 6(3) ECHR
have been respected. This will give substance to the provisions
on fundamental rights in Article 1b of the Framework Decision
and, as we have pointed out before, will serve to minimise the
risk of the courts in the United Kingdom or in other Member States
acting in breach of the ECHR by enforcing an order which has been
made in violation of the defendant's rights under Article 6.
8.16 We shall hold the documents under scrutiny
pending the Minister's reply and deposit of a revised form of
certificate.
11 See also (22622) 10710/01; HC 152- viii (2001-02),
paragraph 2 (28 November 2001), HC 152- xii (2001-02), paragraph
5 (16 January 2002); (23164) 5299/02; HC 152- xx (2001-02), paragraph
7 (6 March 2002), HC 152- xxvii (2001-02), paragraph 4 (1 May
2002); (23392) HC 152-xxxvii (2001-02),paragraph 6 (17 July 2002);
(23677) 11079/02; HC 63- i (2002-03), paragraph 3 (20 November
2002), and (24028) 14664/02; HC 63-iv (2002-03), paragraph 3 (11
December 2002). Back
12
This provides, so far as is relevant here,that everyone charged
with a criminal offence has the right to be informed 'promptly,
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
13
i.e. that the conduct in respect of which the penalty is imposed
is criminal in both the issuing and enforcing State. Back
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