1. Approximation, mutual
recognition and enforcement of criminal sanctions
| (25658)
9317/04
COM (04)334
| Green Paper on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union
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| Legal base | —
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| Document originated | 30 April 2004
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| Deposited in Parliament | 13 May 2004
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| Department | Home Office
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| Basis of consideration | EM of 10 June 2004
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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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
1.1 Under Article 29 EU the European Union has set an objective
of providing citizens with a "high level of safety within
an area of freedom, security and justice" by developing common
action among the Member States in the fields of police and judicial
cooperation in criminal matters, as well as by preventing and
combating racism and xenophobia. The objective is to be achieved
through closer cooperation between police forces, customs authorities
and judicial and other competent authorities, and approximation,
where necessary, of rules on criminal matters in accordance with
Article 31(e) EU. Article 31(e) EU provides that common action
on judicial cooperation in criminal matters shall include "progressively
adopting measures establishing minimum rules relating to the constituent
elements of criminal acts and to penalties in the fields of organised
crime, terrorism and illicit drug trafficking".
1.2 Against this background the European Council
at Tampere in 1999 considered that, with regard to national criminal
law, "efforts to agree on common definitions . . . should
be focussed in the first instance on a limited number of sectors
of particular relevance", such as financial crime, counterfeiting
the euro, trafficking in drugs and human beings, exploitation
of women and children, "high tech crime" and environmental
crime. A number of Framework Decisions have since been adopted
in these areas.
The Green Paper
1.3 The Commission's Green Paper is not confined
to those subject areas specifically mentioned in Articles 29 and
31(e) EU, but covers penalties for crimes generally. The Green
Paper does not mention the position in the new Member States,
since, according to the Commission, "the studies used did
not extend to the legislation of all of them". (Nevertheless,
the Commission indicates that "the acceding countries will
of course have every opportunity to make their views known".)
1.4 In the explanations for its study, the Commission
recalls that the formula used in those Framework Decisions which
have been adopted on the question of penalties "has not been
so much as to determine effective, proportionate and dissuasive
penalties as to set minimum levels for maximum penalties".
The Commission takes the view that this approach, "which
is confined to custodial sentences, produces a minimum approximation
which may not be adequate to meet the declared objectives".
The Commission does not explain the reasons for this view, but
concludes that "the Commission is meeting a need to identify
the areas in which Union action is justified".
1.5 The Commission also states that "action
undertaken by the Community on the basis of the Union Treaty is
without prejudice to its powers to work for the objectives set
out in Article 2 of the EC Treaty, to require the Member States
to legislate for national penalties, criminal penalties if need
be, where a Community objective is to be secured". The Commission
adds that "this would include, for example, protection of
the environment, including the prohibition on the illegal discharge
from vessels at sea,[1]
and the common fisheries policy".
1.6 The Commission argues in its Green Paper that
the approximation of criminal penalties can serve several mutually
complementary objectives. The first of these is that by defining
common offences and penalties the Union "would be putting
out a symbolic message" and would give the general public
"a shared sense of justice" which it describes as one
of the conditions for establishing the "area of freedom,
security and justice". Secondly, the Green Paper argues that
"a corollary of the European area of justice would be that
the same criminal conduct incurs similar penalties wherever the
offence is committed in the Union". From this, the Green
Paper further argues that the approximation of legislation is
"an autonomous objective in areas regarded as deserving priority
and identified as such", and suggests that a degree of approximation
of substantive criminal law is needed, "since certain forms
of crime have a transnational dimension and the Member States
cannot combat them effectively on their own". It is also
suggested that Union minimum standards would help to prevent offenders
"from taking advantage of divergences between penalties in
the Member States and moving from one to another to evade prosecution
or the enforcement of penalties".
1.7 Finally, it is suggested that the approximation
of rules of criminal law concerning penalties "also helps
to secure acceptance of the mutual recognition of judgments, since
it enhances mutual trust". In the Commission's view "approximation
is not a sine qua non for mutual recognition" , but
it would improve cooperation between the Member States in the
enforcement of decisions, as provided for in Article 31(1)(a)
EU, and would "facilitate" the compatibility between
the rules applicable in the Member States, as required by Article
31(1)(c) EU.[2] The Green
Paper adds that "compatible conditions for enforcement of
penalties between the Member States would promote the rehabilitation
of persons by allowing them to serve their sentence in a Member
State other than the one where they were convicted".[3]
1.8 The Green Paper acknowledges that any action
seeking to approximate criminal penalties must respect the principles
of subsidiarity and proportionality, but it goes on to argue that:
"To attain the objective set by the Union Treaty
of establishing an area of freedom, security and justice in the
European Union, any effort at approximation of the application
and enforcement of penalties is therefore justified since the
objectives of the proposed action cannot be sufficiently achieved
by Member States' action in the framework of their national constitutional
system and can therefore be better achieved by action on the part
of the Union. To attain these objectives, the proposed approximation
measures could refer to the various aspects of penalties that
correspond somehow to four themes:
- what penalties can be imposed
under the criminal law?
- how are offences prosecuted?
- how are penalties imposed?
- how are the penalties that have been imposed
enforced?."
1.9 The Green Paper also states that it is "not
enough" for similar penalties to be set in the Member States
if the penalties are applied more flexibly or more strictly in
one country than in another. It argues that a consistent policy
on sentencing in the Union must consider four issues ("without
there being any prior judgment as to the value or feasibility
of Union action on each of them"), namely the level and range
of penalties available, the rules governing prosecution, the general
rules of criminal law relating to such matters as participation,
attempts, aiding and abetting, instigation, aggravating and mitigating
circumstances, and repeat offending.
1.10 After this introductory and explanatory material,
the next part of the Green Paper sets out a review of measures
which have been adopted by the European Union, or which are currently
under discussion. In relation to criminal penalties, the Green
Paper reaches the conclusion that the approximation of substantive
criminal law "has not yet gone far", that not all areas
of crime are covered, that "offences are often defined in
minimalist terms or with possibilities for derogations" and
that certain forms of criminal conduct such as attempts, participation
and instigation have not been defined in EU instruments and are
perceived differently in the Member States. The Green Paper also
argues that, even if the same penalty is defined for the same
offence, the major divergences in the general rules of criminal
law in the Member States mean that the penalty imposed and the
penalty served may not be the same. The areas of divergence referred
to include the "active detection of offences", whether
prosecutions are mandatory or discretionary and differences between
the level of sentence imposed and the sentence which is served.
1.11 In relation to the principle of mutual recognition
and enforcement of criminal penalties, the Green Paper again reviews
the measures already agreed by the European Union as well as those
which are under discussion. The Green Paper accordingly refers
to the European Arrest Warrant, the Framework Decisions on the
recognition of financial penalties and of confiscation orders
and the draft Decision on disqualifications. The Green Paper concludes
that "the range of mutual recognition instruments in the
European Union is still somewhat incomplete". It also states
that "in particular, there are virtually no rules on the
mutual recognition of custodial penalties and their enforcement
in another Member State."[4]
1.12 A third part of the Green Paper reviews differences
in national laws on such matters as whether prosecutions are mandatory
or discretionary, the range of factors to be taken into account
in sentencing, the treatment of aiding and abetting and attempted
crime, and aggravating and mitigating circumstances. This part
of the Green Paper also discusses the different varieties of penalty
imposed in the Member States, such as custodial sentences, fines,
disqualification, confiscation and non-custodial alternative sanctions
such as community service and mediation.
1.13 A fourth part of the Green Paper refers to outstanding
problems and the need for action by the European Union. Under
this heading, the Green Paper acknowledges that there are historical,
cultural and legal reasons for differences in the matter of penalties,
these reasons being "deeply-rooted" in the legal systems
of Member States, and that the national legal system "is
ultimately an area which lies at the very heart of the Member
States' sovereignty".
1.14 The Green Paper seeks nevertheless to justify
action at EU level as being consistent with the principles of
subsidiarity and proportionality. It refers to the Protocol on
the principles of subsidiarity and proportionality as justifying
action at Community level "where the issue under consideration
has transnational aspects, where actions by Member States alone
or lack of Community action would conflict with the requirements
of the Treaty or where action at Community level would produce
clear benefits by reason of its scale or effects compared with
action at the level of the Member States". (This part of
the Green Paper does not, however, mention the requirement in
that Protocol that Community action is not justified unless the
objective cannot be sufficiently achieved by Member States; nor
does it mention Article 5 EC which, taken with Article 2 EU, provides
that the Union shall take action "only and in so far as the
objectives of the proposed action cannot be sufficiently achieved
by the Member States".)
1.15 The Green Paper raises the question of whether
diversity in criminal penalties creates a barrier to the attainment
of the area of freedom, security and justice, or whether the desired
objective of a high level of security can be attained if certain
conduct is not classed as an offence or not actually prosecuted.
It also speculates whether there is a risk that "certain
criminals might relocate to a Member State where their nefarious
activity is not classified as an offence or attracts lighter penalties".
The Green Paper states that "it would be interesting to
consider whether this is a purely academic hypothesis" or
"corresponds to reality" in relation to financial, business
or computer crime.
1.16 In its consideration of the case for approximation
of general rules of criminal law, the Green Paper first considers
the question of whether prosecution should be on a discretionary
or mandatory basis. It recalls that in its Green Paper on the
European Prosecutor, the Commission expressed a preference for
a mandatory prosecution system which would be modified by exceptions.
In the words of the present Green Paper, "this basically
implies uniformity in prosecutions throughout the European area
of justice, with no discretion for the European Public Prosecutor".
The Green Paper suggests that, as a rule, it is for each Member
State to strike a balance and secure efficiency in the administration
of justice but that "there is no doubt something to be said
for there being no major divergence between Member States as regards
the decision to prosecute at least such offences as are harmonised
in Europe".
1.17 On the question of sentencing (or "the
room for manoeuvre of the criminal courts"), the Green Paper
acknowledges that, by reason of the doctrine of the separation
of powers, "it would not be right to lay down mandatory rules
on this". Nevertheless, the Green Paper refers to "soft
law" instruments recommending the adoption of penalties ("sentencing
guidelines") lying in a range between a maximum and minimum,
or the conducting of regular comparison exercises in the form
of meetings and case studies. The Green Paper also suggests that
"it might be possible to consider the possibility of taking
as a European model a system like the High Court Sentencing Information
System developed in Scotland, to which all Scottish courts have
access, containing all the High Courts' sentencing decisions by
way of practical guidance for the courts".
1.18 On sentencing for aiding and abetting, the Green
Paper does not consider that it is possible to embark on the approximation
of penalties based on the level of participation without approximating
the penalties for the principal offender. In relation to aggravating
and mitigating circumstances, the Green Paper takes the view that
Union action "would probably be rather limited" and
that the justification for it is "doubtful".
1.19 The Green Paper suggests that it would be "worth
considering" a common penalty for the offence of participating
in a criminal organisation, since the Joint Action of 21 December
1998 does not fix a minimum penalty. On the question of maximum
penalties, the Green Paper suggests that "there are grounds
for considering whether life imprisonment should be abolished
or modified in the Union" and that life sentences could be
replaced by fixed-term sentences. The Green Paper argues that
"a degree of approximation could avert difficulties for the
enforcement of custodial penalties imposed in the sentencing State
in a State where they are unknown".
1.20 On the question of whether penalties are invariably
enforced, the Green Paper explains that suspended sentences, day-release
and remission are known in only a minority of Member States. The
Commission indicates that it "feels the time is not ripe
for a debate on possible harmonisation of these instruments"
and reaches the same conclusion for amnesty and pardon. However,
the Green Paper argues that approximation of the legislation of
Member States on early release would be conducive to the transfer
of prisoners. It raises the possibility of fixing common minimum
standards at EU level for such matters as the minimum term to
be served before early release, the criteria for early release,
supervision conditions and penalties for failure to comply with
those conditions and the interests of victims.
1.21 The Green Paper then sets out a lengthy discussion
of the existing arrangements for the enforcement in one Member
State of penalties imposed in another, including the European
Arrest Warrant and the Council of Europe Conventions on the transfer
of prisoners. It suggests the consideration of an EU instrument
to extend the scope of the 1983 Council of Europe Convention to
cover residents as well as nationals of a contracting State. It
also suggests that in relation to the transfer of prisoners the
EU might set a minimum period during which the sentenced person
would continue to serve his sentence in the Member State of conviction
so as to avoid the situation in which he might be immediately
released on transfer, or serve a much lighter sentence than in
the Member State of conviction.
1.22 The Green Paper notes that the Council of Europe
Conventions of 30 November 1964 and 21 March 1983 and the Convention
between the Member States of the European Communities of 13 November
1991 give the State to which a prisoner is transferred a choice
between adapting the penalty into one provided for under its own
law, or of substituting a penalty , or converting it into one
provided by its own law. These provisions permit the State in
which the sentence is served to adapt the penalty into one provided
by its own law for a comparable offence. The Green Paper argues
that this arrangement does not seem to be consistent with the
principle of mutual recognition. It raises the question of whether
the possibility of such adaptation should be continued in the
EU, or whether provision should be made in the EU for the possibility
of adapting, converting or substituting sentences. Other questions
raised are whether the sentenced person should be given more rights
to make the transfer subject to his request or consent and whether
the EU should make provision for informing the victims about a
transfer or even of requiring their consent to such transfer.
1.23 The Green Paper criticises the application of
the Council of Europe Convention of 21 March 1983 as " bureaucratic,
slow and rigid". It raises the question of whether the EU
should make provision for time-limits on the processing of applications,
but it also notes that the Parliamentary Assembly of the Council
of Europe has recommended to the Committee of Ministers the setting
of time limits for responding to requests for information under
the Convention, the rationalising and harmonising of such requests
and the holding of seminars on transfer procedures and improvement
of practice.
The Government's view
1.24 In her Explanatory Memorandum of 10 June 2004
the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explains that the Green Paper assesses the extent
to which national differences in criminal penalties are an obstacle
to the objective of creating an area of freedom, security and
justice, seeks to identify the barriers to implementation of the
principle of mutual recognition, and discusses the issue of whether
penalties ordered in one Member State can be enforced in another.
The Minister adds that the Green Paper poses 39 questions in respect
of which the Commission is seeking a response from Member States
by the end of July.
1.25 On the policy implications of the Green Paper,
the Minister comments that the scope of the Green Paper is broad
and that it could have potentially far-reaching implications.
The Minister adds that the Government will consider the points
made by the Commission on the approximation of substantive criminal
law, but that its initial view is that, in order for the UK to
support such measures, there will need to be "robust"
justification for such approximation, "usually stemming from
a need to redress specific cross-border activity".
1.26 The Minister makes the following further comments
on the Green Paper:
"The Green Paper also addresses the issue of
financial penalties, noting the attempts at harmonisation in the
draft Framework Decision to strengthen the criminal law framework
against ship-source pollution, which the Government has supported.
As with many of the matters dealt with in the Green Paper, we
will need to consider the degree to which a horizontal measure
solution is the most appropriate means of addressing the problems
identified although we can indicate that the Government's provisional
view is that we may be able to offer a positive approach to such
an initiative.
"The Green Paper examines the issue of mutual
recognition and concludes that the Framework Decision on the European
Arrest Warrant is an achievement, but even if the draft instruments
on confiscation, financial penalties and disqualifications are
adopted in future, the range of EU instruments remains incomplete.
In particular there are virtually no rules on the mutual recognition
of custodial penalties and their enforcement in another Member
State. Work is, however, ongoing on the European Evidence Warrant
and the UK remains fully supportive of the mutual recognition
principle as the cornerstone of judicial co-operation in the EU.
"As to prosecution powers the paper notes that
in some Member States authorities have discretionary powers to
act, whereas in others there is an obligation to prosecute. The
Government notes that the Commission expresses a preference for
a mandatory prosecution model in the context of the European Public
Prosecutor proposals. We have serious concerns about this and
our preference would be for a discretionary prosecution model.
We will, of course, consider this section in more detail in our
responses.
"The Paper also deals with disqualification,
concluding that there is no obvious need to propose general approximation
provisions but that disqualification for specific offences might
be beneficial. Precedent for this could be the disqualification
measures adopted in respect of sexual offences against children
and corruption in the private sector. The Commission confirms
that it will present a Communication on this subject, as announced
in its work programme for the second half of 2004. The Government
sees merit in taking forward measures to facilitate the cross-border
recognition of disqualifications. In particular we should consider
complementing any first pillar regulation of specific professions
(in the context of free movement of workers).
"The Commission also has proposed possible approximation
on the wider use of alternative sanctions, viewing these as better
at promoting rehabilitation than custodial sanctions. We would,
however, have concerns about the proportionality of this. Given
that approximation of the substantive criminal law is intended
to deal with serious cross-border criminality, which would in
many cases carry a custodial sentence, we would query the appropriateness
and proportionality of approximating on alternatives to custody.
We will, of course, consider the issues surrounding alternative
sanctions in more detail in our response to the Green Paper.
"The Green Paper explores the issue of enforcement
of sentence and transfer of prisoners. The Commission notes that
it is increasingly common for an offender to be sentenced in a
Member State other than the state of residence. The Paper makes
reference to the two existing Council of Europe instruments in
this field, noting that there has been variation in their application,
leading to patchy coverage. The Commission promotes the idea of
returning individuals to their states of origin as a means of
facilitating rehabilitation. This again is an area that is potentially
very significant for domestic policy. In general we are in favour
of individuals being repatriated, and we already significantly
participate in repatriation schemes. We do, however, see some
practical difficulties from any changes to the procedures in this
area, due to the significant variance in repatriation procedures
and impact in different Member States. Any change to the procedures
currently used may have Human Rights implications for the UK.
We would, therefore, need to scrutinise fully any proposals made
in this area."
Conclusion
1.27 We agree with the Minister that the Green
Paper has potentially far-reaching implications. It appears to
be based on the concept that the "area of freedom, security
and justice" referred to in Title VI of the EU Treaty is,
or should be, analogous to a unitary State in which a single system
of law is to apply. It could no doubt be argued that such a system
best secures the rights attaching to citizenship of the Union,
as referred to in Article 17 EC. Against that are the considerations
that the Union must respect the national identities of its Member
States (Article 6(3)EU) and that, as the Commission itself acknowledges
in the Green Paper, the national legal system "is ultimately
an area which lies at the heart of the Member States' sovereignty".
1.28 Some of the matters discussed in the Green
Paper, such as the suggestion that life imprisonment be replaced
across the EU by fixed-term sentences or that prosecutions should
be on a mandatory rather than discretionary basis, are, in our
view, essentially ones for determination at national rather than
EU level, and raise serious issues of subsidiarity and democratic
accountability.
1.29 We do not find the treatment of the issue
of subsidiarity in the Green Paper to be persuasive. In particular,
the Green Paper does not demonstrate that the objectives of the
proposed action cannot be sufficiently achieved by the Member
States. In connection specifically with the transfer of prisoners,
the Green Paper does not show how the objectives may be achieved
only by the European Union, and not by the Council of Europe,
which has much longer experience of the matter involving a far
greater number of countries.
1.30 We also question the utility of not including
any reference to the law of the ten new Member States in the Green
Paper. It would, in our view, have been preferable to have delayed
publication so that the law of the new Member States could be
taken into account. As it is, the Green Paper was published the
day before the accession of the new Member States on 1 May 2004.
1.31 Although the document is only a Green Paper,
it raises profound issues which should be debated in order to
inform the Government's response to the Commission. We consider
that the debate should relate particularly to the extent to which
harmonisation of the criminal law, especially that relating to
penalties, is really necessary as a condition for mutual recognition.
1.32 We therefore recommend the document for debate
in European Standing Committee B.
1 The Commission does not mention that a substantial
number of Member States have insisted that the fixing of criminal
penalties for illegal discharges from ships at sea may only be
adopted under the EU Treaty, not the EC Treaty. The Commission
has acceded to these views by bringing forward a draft Framework
Decision on the question - see (24535) 7312/03: HC 42-xxii (2003-04),
para 8 (9 June). Back
2
This appears to be a circular argument, since Article 31(1)(c)
EU is not concerned with the compatibility of rules in general,
but only in so far as may be necessary to improve the cooperation
under Article 31(1)(a) EU. Back
3
The Green Paper later refers to the 1983 Council of Europe Convention
on the Transfer of Sentenced Persons, which already provides for
sentenced persons to be given the opportunity to serve their sentence
in their country of origin. The 1983 Convention has been ratified
by 52 states, including all the then 15 EU Member States. Back
4
The statement is somewhat misleading, given the detailed treatment
given later in the Green Paper to the Council of Europe Conventions
on the subject. Back
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