3 Detention and supervision of EU citizens
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6943/14
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COM(14) 57
| Commission Report on the implementation by Member States of the Framework Decisions 2008/909/JHA, 2008/947JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention
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| Legal base | —
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| Document originated | 5 February 2014
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| Deposited in Parliament | 12 March 2014
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| Department | Ministry of Justice
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| Basis of consideration | EM of 11 March 2014
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| Previous Committee Report | None: but see (27840) 13080/06: HC 41-ii (2006-07) chapter 4, (29 November 2006) and HC 34-xxxix (2005-6) chapter 6, (25 October 2006); see also (30096)—: HC 16-xxxv (2007-08) chapter 15, (12 November 2008)
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| Discussion in Council
Committee's assessment
| Not applicable
Legally and politically important
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| Committee's decision | Not cleared; for debate in European Committee B; draw to the attention of the Justice Committee; further information requested
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Background and previous scrutiny
3.1 In 2008 and 2009 the EU adopted the following three Framework
Directives to ensure, through mutual recognition of judicial decisions,
that non-resident EU citizens, subject to criminal proceedings,
are treated in the same way as residents of Member States in terms
of their detention and supervision:
· Framework
Decision 2008/909/JHA on the mutual recognition of judicial decisions
on custodial sentences or measures involving deprivation of liberty
(the Prisoner Transfer Framework Decision (Prisoner Transfer FD));
· Framework
Decision 2008/947/JHA on probation decisions and alternative sanctions
(the Probation FD); and
· Framework
Decision 2009/829/JHA on supervision measures as an alternative
to provisional detention (the European Supervision Order (ESO)).
3.2 We scrutinised these measures during their negotiation[12]
and have also re-examined them in the context of the our Report
on measures falling within Article 10 (4) of Protocol 36 to the
Treaty of the Functioning of the European Union (TFEU) —
commonly known as the '2014 JHA block opt-out decision' which
was published on 7 November 2013.[13]
Current document
3.3 The purpose of the Commission's report is to
assess the state of implementation by Member States of these measures
and to identify particular areas for improvement in their use.
The Commission's overall conclusion is that implementation has
been unsatisfactory and the anticipated benefits of full implementation
have not been realised: a decrease in prison overcrowding and
prison costs, through reductions in the sentences of non-residents.
OPERATIONAL LINKS BETWEEN THE FRAMEWORK DECISIONS
AND THE EAW
3.4 The Commission says that the three Framework
Decisions are linked as a package and with the European Arrest
Warrant (EAW) in the following operational ways:
· proper
implementation of the ESO will allow suspects who have been extradited
by way of an EAW to go back to their country of residence while
they are awaiting trial in another Member State;
· full
implementation of the Probation FD will encourage judges, who
can be confident that a person will be properly supervised in
another Member State, to impose an alternative sanction to be
executed abroad instead of a prison sentence; and
· the
operation of the ESO and the Probation FD are linked because if
the accused has been returned to their home Member State under
the ESO and has shown that they have complied with the conditions
imposed upon them in the pre-trial stage, the judge may be more
inclined to impose an alternative sanction (instead of imprisonment)
which can be executed abroad for the post-trial stage; and
· the
Prisoner Transfer FD and EAW are linked because a Member State
is able to refuse to surrender its own convicted nationals (or
residents/persons staying in the jurisdiction) under an EAW, if
that Member State enforces the prison sentence in accordance with
the Prisoner Transfer FD.
THE STATE OF IMPLEMENTATION OF THE FRAMEWORK DECISIONS
3.5 The report also addresses the state of implementation
of the Framework Decisions as follows:
· ten
Member States have not implemented the Prisoner Transfer FD (which
had to be implemented by 5 December 2011);
·
14 Member States have not implemented the Probation FD (which
had to be implemented by 6 December 2011); and
· 16
Member States have not implemented the ESO (which had to be implemented
by 1 December 2012).
3.6 The Commission's report also makes clear that
neither the Probation FD nor the ESO have ever been used. The
Commission notes that mutual recognition measures requires reciprocal
transposition.
PROBLEMS WITH NATIONAL IMPLEMENTING LEGISLATION
3.7 The Commission outlines a number of issues with
the implementing legislation in those Member States that have
implemented the Framework Decisions. However, it stresses that
only a preliminary evaluation has been carried out so far on the
basis of limited practical application of the Decision by only
three Member States (Belgium, Finland and the Netherlands), whose
implementation efforts should be recognised. More importantly,
the Commission notes that although the Prisoner Transfer FD has
been used, no transfers have yet taken place under the Probation
FD or the ESO. The issues are as follows:
· Role
of the person concerned in the transfer process: Article
6 of the Prisoner Transfer FD, Article 5 of the Probation FD and
Article 9 of the ESO relate to the role of the person involved
in the transfer process. The Commission believes that in relation
to the Prisoner Transfer FD, the implementing legislation does
not always explicitly state that the person should be notified
and that they should be given an opportunity to state their opinion,
which needs to be taken into account. The consent of the person
involved is usually required under the ESO and Probation FD (it
is doubtful whether, in the case of the Probation FD, explicit
consent would be required if the offender had physically returned
to their country of residence);
· No
adaptation of sentences — mutual trust: Article
8 of the Prisoner Transfer FD, Article 9 of the Probation FD and
Article 13 of the ESO relate to the principle of mutual trust.
The report states that in principle there should be no adaptation
of sentences where transferred. The Commission is concerned that
some Member States have added further conditions which may make
adaptation more likely. In relation to the Probation FD and the
ESO, the Commission notes that some Member States have not implemented
all the mandatory measures within them. The Commission states
in relation to the Probation FD that these mandatory measures
will encourage the development of the availability of community
measures in some Member States.
· Differences
in the execution of the sentence: Article
17 of the Prisoner Transfer FD, Article 14 of the Probation FD
and Article 18 of the ESO relate to the differences in relation
to taking subsequent decisions. The Commission notes that Member
States have different provisions on early and conditional release;
the Commission states that in relation to the Prisoner Transfer
FD, it is important that the executing Member State inform the
issuing Member State of any information that may lead them to
withdraw the certificate;
· Obligation
to accept transfer: Article
9 of the Prisoner Transfer FD, Article 11 of the Probation FD
and Article 15 of the ESO relate to the obligation to accept a
transfer unless there are grounds for a refusal. The Commission
is concerned that there are differences in the transposition of
the grounds for refusal between Member States. The report states
that implementing additional grounds for refusal and making refusal
on the specified grounds by the competent authority mandatory
may be (in the Commission's view) both contrary to the letter
and spirit of the Framework Decisions;
· Time
limits for transfer: Article
12 of the Prisoner Transfer FD, Article 12 of the Probation FD
and Article 12 of the ESO relate to the fixed time limits for
a transfer to take place under the Framework Decisions. The Commission
is concerned that some Member States have not made provision when
implementing for a maximum time limit for a court's decision in
appeal procedures on transfers;
· Link
between FDs and EAW: Article
25 of the Prisoner Transfer FD allows a Member State to refuse
an EAW, if the Member State undertakes to enforce the prison sentence
in accordance with the Prisoner Transfer FD where the requested
person is either a national, a resident, or is staying in that
Member State. However, the Commission is concerned that the implementation
by some Member States does not indicate that the Prisoner Transfer
FD should apply in those circumstances. Article 21 of the ESO
enables an EAW to be used to bring someone back to face trial
or if they have not fulfilled the conditions of their ESO. The
Commission states that not all Member States have implemented
Article 21; and
· Transitional
arrangements: Article
28 of the Prisoner Transfer FD allows Member States to continue
to apply the existing legal instruments on the transfer of sentenced
persons with respect to final judgments issued before a specified
date, if it was done before the adoption of the Prisoner Transfer
FD. However, the Commission is of the view that the declarations
made by some Member States were done after the date of adoption
and are therefore not valid.
REPORT CONCLUSIONS
3.8 The report notes the overall unsatisfactory state
of implementation of the Framework Decisions. It says that an
area of freedom, security and justice for all EU citizens set
out in Article 3 TEU cannot be achieved unless all Member States
properly implement the measures that they agreed to unanimously
under the former "third pillar" and are obliged to implement.
The Commission notes that as of 1 December 2014 the Court of Justice
will gain full jurisdiction over the area of police and judicial
cooperation (PCJ) in criminal matters and underlines that the
Commission will be able to launch infraction proceedings for improper
or incomplete implementation of the Framework Decisions (as for
other pre-Lisbon PCJ measures). It therefore urges Member States
that have not implemented yet to do so as soon as possible.
The Government's view
3.9 In an Explanatory Memorandum of 11 March, the
Secretary of State for Justice (Chris Grayling) first addresses
how the UK's 2014 JHA block opt-out decision (in relation to pre-Lisbon
police and criminal justice cooperation measures) relates to the
Framework Decisions. He says, as indicated in Command Paper 8671
of July 2013, that although the UK seeks to rejoin the Prisoner
Transfer FD and the ESO (together with the EAW) as part of a wider
package of 35 measures, this is not the case for the Probation
FD.
3.10 He then addresses the state of implementation
of the Framework Decisions in the UK.
THE ESO AND THE PROBATION FD
3.11 The Minister says that the report is correct
that the UK has not implemented the ESO. Participation in the
ESO depends on the outcome of that process. He adds that, in advance
of that outcome, the Government, Scottish Government and the Northern
Ireland Executive are actively considering implementation options
in order to implement the ESO as soon as practicable and that
the Commission's report will inform that implementation.
3.12 The Minister confirms that the report is also
correct that the UK has not implemented the Probation FD, a measure
which it does not seek to rejoin as part of the 2014 process.
He notes that:
"The Commission's report makes clear that
neither the Probation FD nor the ESO have ever been used despite
14 Member States having implemented the former and 12 Member States
having implemented the latter as well as the implementation date
having been passed for both over two years ago. With little evidence
to work with, it is difficult to ascertain precisely why this
is the case, but it is clear that the ambitions attached to these
proposals in the report could not be evidenced from practical
experience."
3.13 Commenting further on the Probation FD, the
Minister says that "it is not clear that the instrument will
be able to operate in a consistent manner across the EU".
Referring to the Commission's report, he says that it states
that half of the 14 Member States that have implemented the Probation
FD have declared, in line with Article 14 (3) of the measure,
that they will wish to return jurisdiction to the issuing Member
State in the event of a breach of the conditions of a transferred
sentence (when a penalty for such a breach is not outlined at
the time of transfer). The Minister then comments on how this
might apply to the UK:
"In the UK such penalties would not be set
out in advance, as in the event of a breach of a community sentence
the individual would need to be returned to court. The Government
therefore has concerns that the need to return cases to this jurisdiction
may give rise to operability issues and may not be optimal for
rehabilitation. The Government notes that this point has not been
addressed in the Commission's report."
3.14 The Minister then takes issue with the Commission's
assertion of the link between the ESO and the Probation FD as
being "overstated":
"The Commission asserts that an offender
having been previously conditionally released under ESO may make
the sentencing court more likely to impose a community sentence
under the Probation FD. We are not aware of any evidence to support
this assertion, particularly given the instrument has never been
used — seriousness and nature of offending is likely to
be the primary factor in a sentencing decision."
THE PRISONER TRANSFER FD
3.15 The Minister confirms that the report is correct
in saying that UK has implemented this measure through the Repatriation
of Prisoners Act 1984 (as amended). He explains that the UK is
actively encouraging other Member States to implement this measure
because it "believes that allowing an individual to serve
their prison sentence in their home country helps them to reintegrate
into society upon their eventual release".
3.16 The Minister then addresses the implementation
issues in respect of this measure highlighted in the Commission's
report, referring to the Repatriation of Prisoners Act 1984 (as
amended).
3.17 The role of the person involved in the transfer
process: The Act provides the framework under which the Secretary
of State can implement the transfer of prisoners into and out
of the UK, including for the purposes of the Prisoner Transfer
FD. In accordance with Article 6 of the Prisoner Transfer FD,
prisoners are able to state their opinion in writing. Prisoners
are advised, in their own language, of their liability to be transferred
under the Prisoner Transfer FD, they are provided with a copy
of the FD and invited to submit representations. A form is provided
for this purpose. Prisoners receive a written response to any
representations submitted. It is open to a prisoner to consult
their legal adviser should they wish to do so.
3.18 No adaptation of sentences — mutual
trust: The Government considers the sentencing court is best
placed to determine the appropriate length of a sentence for an
offence committed within its jurisdiction. Due to the differences
between legal systems it may not always be possible to enforce
in full a sentence imposed in another jurisdiction, however, any
adaptation of a sentence should be limited and the revised or
adapted sentence should correspond as closely as possible with
the sentence imposed in the issuing State. The UK will adapt a
sentence only where the sentence imposed in another Member State
exceeds the statutory maximum sentence available to a UK court
for the same offence. Where adaptation is necessary, a sentence
is adapted to the statutory maximum sentence but no lower.
3.19 Differences in the execution of the sentence:
Release arrangements vary between Member States. Once a prisoner
is transferred the release arrangements applicable in the issuing
State cease to apply and the sentence is then administered in
accordance with the arrangements applicable in the executing State.
This may result in a prisoner serving more or less time in custody
following transfer. It is therefore important that information
on applicable release arrangements is provided by the executing
State. Where the UK is the executing State, the issuing State
is provided with written information on how the sentence would
be administered in the UK.
3.20 Obligation to accept transfer: The UK
accepts that the Prisoner Transfer FD provides an obligation on
the executing State to accept a prisoner on transfer unless one
or more ground for refusal set out in Article 9 of the FD is met.
When acting as the executing State, the UK strictly applies Article
9 and accepts that a Certificate cannot be refused on a ground
not set out in Article 9. The Government notes that the grounds
for refusal set out in Article 9 are optional and as such will
consider an individual for transfer where one or more ground for
refusal is met. The Government considers that in these circumstances
it may still be in the best interest of the prisoner's social
rehabilitation to proceed with transfer. Each Certificate received
is considered on its individual merits.
3.21 Time Limits: The Government supports
the use of time limits in the Prisoner Transfer FD and the UK
has always adhered to these time limits to date and will continue
to do so wherever possible.
3.22 Link with the EAW: When an EAW is issued
to the UK for the surrender of an individual who could instead
have their sentence enforced in the UK in accordance with the
Prisoner Transfer FD, the UK will actively seek the withdrawal
of that EAW wherever possible.
3.23 Transitional provisions: The UK did not
make a declaration in relation to Article 28 of the Prisoner Transfer
FD. As such, and subject to any declaration made by other Member
States, the Prisoner Transfer FD applies to all sentenced prisoners
irrespective of their date of sentence. The Government agrees
with the views expressed by the Commission that a declaration
made under Article 28 after 27 November 2008 is invalid and that
any declarations made after this date should be withdrawn.
IMPACT OF THE JURISDICTION OF THE COURT OF JUSTICE
FROM 1 DECEMBER 2014
3.24 The Minister provides further explanation of
the UK's position once the Court of Justice gains jurisdiction
over the area of Police and Judicial Cooperation from 1 December
2014 and the 130 or so measures adopted prior to the Lisbon Treaty.
He says that since the UK chose to exercise its JHA block opt-out
pursuant to Protocol 36 of the TFEU in July 2013, the Court of
Justice will only be able to exert jurisdiction over the UK in
so far as it rejoins any of those measures.
3.25 The Minister adds that as the three measures
relevant to the Commission's report which the UK seeks to rejoin
— the Prisoner Transfer FD, the ESO and EAW — are
not related to the Schengen acquis, the process for seeking to
rejoin them is set out in Article 331(1) of the TFEU, as applied
by Article 4 of Protocol 21 and then explains that process.
Conclusion
3.26 Our overall assessment of the Commission's
report is that it presents a bleak picture of the level and consistency
of implementation, let alone usage, of the three Framework Decisions.
However, we accept that the situation could change as the
1 December 2014 deadline of the mandatory jurisdiction of the
Court of Justice over these and other pre-Lisbon Treaty police
and criminal justice measures approaches.
3.27 The Minister does not seem to accept the
Commission's interconnection of the three Framework Decisions
in its report, in particular saying that the Commission's assertion
of the link between the ESO and the Probation FD is "overstated".
3.28 Both we and the Justice Committee have previously
questioned the consistency of the Government's approach in seeking
to rejoin the ESO and the Prisoner Transfer FD but not the Probation
FD in our respective reports on the 2014 JHA block opt-out decision.[14]
The Minister explained when he gave evidence to us in connection
with our Report that the imprecise drafting of the Probation FD
deterred the Government from joining it, whilst the Government's
decision to rejoin the ESO developed over time and was a "no-brainer"
in respect of the Prisoner FD.[15]
The Minister when giving evidence to the Justice Committee partly
conceded that similar arguments made against the Probation FD
— the vagueness of drafting and the fear that the sanction
might not be properly administered — could equally apply
to the ESO. He qualified this by saying that after giving the
matter hard thought he had been swayed in relation to the ESO
by individual cases involving British citizens stranded abroad
for long periods awaiting trial.[16]
3.29 We now renew our questioning of the Government's
approach prompted by the Commission identifying in this report:
i) the evident operational links between the
three measures and the EAW; and
ii) underlying implementation problems which
extend not just to the Probation FD but also to the measures the
Government seeks to rejoin, the Prisoner Transfer FD and ESO.
3.30 We therefore ask the Government why it considers
implementation problems common to all three measures are regarded
as insurmountable in respect of the Probation FD, but manageable
in respect of the ESO and Prisoner Transfer FD. We also question
the Government's intention to rejoin the Prisoner Transfer FD
when it has been so little used by the UK, as has been also noted
in the national press. We ask the Minister to confirm the actual
number of prisoner transfers from and to the UK which have taken
place within the scheme of the FD.
3.31 We asked the Government in November 2013,
in our Report on the 2014 JHA Block opt-out decision, why the
UK had not yet begun to implement the ESO. Even if the UK has
implemented by 1 December, we are concerned at the overall poor
state of implementation throughout the EU as evidenced by the
Commission. We think that this will narrow the scope for cooperation
with other Member States based on mutual recognition. We are not
reassured by the Minister saying that the UK Government and the
devolved administrations are "actively considering implementation
options in order to implement the ESO as soon as practicable and
that the Commission's report will inform that implementation".
We would have thought that options should have been clearly identified
and advanced by now and the task of drafting any implementing
legislation underway. Why is this not the case?
3.32 In view of our concerns, we draw this report
to the attention of the Justice Committee and recommend the Commission's
report for debate in European Committee B. Before the debate takes
place, we request that the Government responds to our questions
in paragraphs 3.30 and 3.31.
12 See headnote. Back
13
The UK's block opt-out of pre-Lisbon criminal law and policing
measures: HC 683 (2013-14),
7 November 2013: http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/683/68302.htm. Back
14
HC 683 (2013-14) 30 October 2013 and HC 605 (2013-14) 29 October
2013. Back
15
See footnote 3, para 178. Back
16
See footnote 3, paras 35-37. Back
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