House of Commons - European Scrutiny

Select Committee on European Scrutiny Fifth Report

5 Mutual recognition of financial penalties

(a)

(24350)

7231/03

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(b)

(24754)

11447/03

—

(c)

(25080)

11447/03

REV 1

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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

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

Document originated (c) 25 November 2003

Deposited in Parliament (c) 26 November 2003

Department Home Office

Basis of consideration (c) EM of 3 December 2003

Previous Committee Report (a) HC 63-xviii (2002-03), para 5 (9 April 2003)
(b) HC 63-xxxiv (2002-03), para 8 (22 October); and see footnote 12

To be discussed in Council No date set

Committee's assessment Legally and politically important

Committee's decision (b) Cleared
(a) and (c) Not cleared; further information requested

Background

5.1 We have considered earlier drafts of a proposal for the mutual recognition and enforcement of financial penalties on numerous occasions.[12] We were concerned about the absence of safeguards in relation to the enforcement of fines and penalties imposed on defendants in their absence and who may have been left unaware that proceedings have been commenced against them. For this reason we recommended the then current versions of the proposal for a debate which took place in European Standing Committee B on 29 January 2003.

5.2 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 according to the then Minister 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.

5.3 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 had been convicted in their absence. 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.

5.4 We considered the revised form of certificate (document (b)) on 22 October. It consisted 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) related to information about the authority issuing the decision. Section (e) set out information on the person against whom a financial penalty had been imposed.

5.5 Section (f) gave details of the decision imposing the financial penalty, including a statement as to the nature and legal classification of the offence. In this regard, the issuing authority was required to tick one or more of a number of boxes indicating if the offence was one of the list of offences referred to in Article 2(a). This list was substantially the same as that contained in Article 2(2) of the European Arrest Warrant and thus included "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] could not be required in the enforcing State as a condition for recognising and enforcing the penalty.

5.6 Section (g) required 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. The certificate contained no mention of whether the defendant had been informed personally of his right to contest the case or of whether he had indicated that he did not wish to contest it. The certificate did not, therefore, provide the information which the enforcing State would require if it was 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

5.7 We noted that the Minister was content with sections (a) to (d) of the certificate and also with (f), but that in her view section (g) required the inclusion of further information to ensure that the certificate accurately reflected the text of the Framework Decision. The Minister added that the Government would seek to include confirmation that the individual concerned had indicated in writing that he did not contest the case against him.

5.8 We agreed with the Minister's view on section (g). Since there was no requirement for the decision to be translated into the language of the enforcing State, the certificate would have to speak for itself as the basis on which the issuing State's decision was to be recognised and enforced. We repeated our earlier view that the certificate should also 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 had been respected, so as to give substance to the provisions on fundamental rights in Article 1b of the Framework Decision and 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. We held documents (a) and (b) under scrutiny pending the Minister's reply and deposit of a revised form of certificate.

The revised form of certificate

5.9 Document (c) contains a revised form of certificate incorporating comments made by the Member States on document (b). Sections (a) to (e) and (h) to (j) are in substantially the same terms as those of the previous draft certificate.

5.10 Section (f) (which describes the decision imposing the financial penalty) contains a new provision requiring the issuing State to tick a box to confirm that, in the case of penalties imposed for a criminal offence by an authority other than a court, the person concerned "has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters". Section (f) also requires the like confirmation to be given in relation to penalties imposed by an authority other than a court in respect of "infringements of the rules of law". Section (f) also now requires the issuing State to indicate where the offence was committed.

5.11 Section (g), which describes the status of the decision imposing the financial penalty, has been substantially revised. As before, the section of the certificate is of the "tick-box" variety, but it contains a new requirement to address the risk of a defendant being exposed to double jeopardy by reason of the enforcement of a financial penalty. The section accordingly requires the issuing authority to certify that, to its knowledge, "a decision against the same person in respect of the same acts has not been delivered in the executing State and that no such decision delivered in any State other than the issuing State or the executing State has been executed".

5.12 The section also requires statements to be made as to the notice the person has received of the proceedings imposing the penalty. The issuing authority must state if the case was subject to a "written procedure". If so, the authority must also confirm that the person concerned "was, in accordance with the law of the issuing State, informed personally or via a representative competent according to national law of his right to contest the case". The issuing authority must also state if the person concerned "appeared personally" in the proceedings. If so, the issuing authority must also confirm "that the person was informed personally, or via a representative competent according to national law, of the proceedings in accordance with the law of the issuing State", alternatively "that the person has indicated that he or she does not contest the case".

The Government's view

5.13 In her Explanatory Memorandum of 3 December 2003 the Parliamentary Under-Secretary of State at the Home Office (Caroline Flint) explains that as a result of the changes to the draft certificate the Government is content with the substance both of the Framework Decision and the certificate.

5.14 The Minister describes section (f) of the certificate as "greatly improved", that it provides "full and comprehensive details" of a decision imposing a financial penalty and is satisfactory.

5.15 In relation to section (g), the Minister explains that this section has been amended at the request of the UK "and now accurately reflects the text of the Framework Decision". The Minister adds that "in particular, this section now includes confirmation that the individual concerned has indicated in writing that they do not wish to contest the case".

Conclusion

5.16 We agree with the Minister that the revised form of certificate more accurately reflects the text of Article 4(2)(e) of the Framework Decision, and to that extent is an improvement. However, section (g) of the draft certificate does not appear to us to require that the defendant should have indicated in writing his wishes to contest the case, and we ask the Minister further to explain her comment that the certificate will require confirmation that the individual has indicated in writing his wishes in this regard.

5.17 We also ask the Minister to explain what is meant by "informed personally" in section (g) of the certificate. In particular, we ask the Minister if this requires the defendant to be informed in person, or if it would allow such various forms of substituted service as are available under the relevant national law to be relied on to show that the defendant is deemed to have been aware of the proceedings.

5.18 We repeat our concern that the form of certificate does not require any kind of statement by a person holding judicial office in the issuing State that a person's minimum rights under Article 6(3) ECHR have been respected. We ask the Minister for her views on whether such a provision would be desirable to minimise the risk of the courts in the United Kingdom acting in breach of the ECHR by enforcing orders which have been made in violation of the guarantees of procedural fairness in Article 6.

5.19 We clear document (b) on the grounds that it has been superseded, but we shall hold documents (a) and (c) under scrutiny pending the Minister's reply.

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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