Select Committee on European Union Thirty-First Report


CHAPTER 4: Recognition and Execution

Decision to recognise/refuse an ESO

112.  The ESO, once made, is sent directly to the executing authority. Article 9 provides that "Except as otherwise provided for in this Framework Decision" the executing authority must recognise an ESO "transmitted in accordance with Article 8, without further authority being required". The exceptions are listed in Article 10 (Grounds for non-recognition and non-execution) and Article 11 (Guarantees to be given by the issuing State in a particular case). Within five days the authority in the executing State must take a decision whether to recognise and execute the order or to invoke grounds for non-recognition. That decision is then communicated to the issuing State (Article 12).

Grounds for non-recognition

113.  The executing State must refuse to recognise the order where there would be an infringement of the ne bis in idem principle. Recognition may be refused where suspect is not of an age of criminal responsibility in the executing State, where there is an immunity or privilege in the executing State, or where the offence to which the order relates is covered by an amnesty in the executing State.

Article 10—Grounds for non-recognition and non-execution

1. A court, a judge, an investigating magistrate or a public prosecutor, in the requested State shall refuse to recognise and execute a European supervision order if it is clear that criminal proceedings for the offence in respect of which that order has been issued would infringe the ne bis in idem principle.


2. A court, a judge, an investigating magistrate or a public prosecutor, in the requested State may refuse to recognise and execute a European supervision order on one or more of the following grounds:


(a) if, under the law of the requested State, the suspect may not, owing to his age, be held criminally responsible for the acts on which the European supervision order is based;

(b) if there is an immunity or privilege under the law of the requested State which would prevent the execution of the European supervision order;


(c) if the offence to which the European supervision order relates is covered by an amnesty in the requested State, where that State had jurisdiction to prosecute the offence under its own criminal law.


114.  Article 10 appears to provide limited grounds (one mandatory, three optional) for the executing State to decline to recognise an ESO. However, the CPS was not sure that this was necessarily the case. They saw parallels between the ESO and the EAW and noted that before a court in this country can return somebody pursuant to an EAW, it has to be satisfied that to do so would be compatible with his ECHR rights. Mr Gibbins, for the Crown Prosecution Service (CPS), said: "that opens the door to all sorts of arguments on fairness of trial, defendant's personal situation and so forth. We think, whether explicitly or implicitly, that our domestic legislation in having to comply with the ECHR would necessarily involve that kind of process in dealing with a European supervision order" (Q 89). We note that Recital 8 provides that the Framework Decision respects fundamental rights although, unlike the EAW Framework Decision[30] it does not refer to fundamental rights in the body of the text. This was an issue identified by JUSTICE: "Our major concern in relation to the system proposed is that, beyond the bare statement that it 'respects … fundamental rights' in the Preamble there is no mention of human rights" (p 98).

115.  Member States are bound by the ECHR and any implementing legislation would have to ensure compliance with the guarantees set out in that instrument. For the sake of clarity, it may be helpful to include an article in the body of the ESO proposal which provides that in implementing the Framework Decision Member States must ensure respect for fundamental rights.

Age of criminal responsibility

116.  Of the three discretionary grounds for non-recognition one is especially noteworthy. Article 10(2)(a) permits the executing State to decline to recognise an ESO on the grounds that the accused has not attained the age of criminal responsibility in its State. This is a remarkable provision because it appears to work to the detriment of the child concerned.

117.  Mr Csonka, for the Commission, explained that this ground of non-recognition "is a common ground for refusal in mutual recognition instruments and the Member States have insisted in the past on this particular ground of refusal to be included in the previous instruments" (Q 188). It exists, for example, in the European arrest warrant although there, as Senior District Judge Timothy Workman confirmed, it works to the advantage of the child (Q 366). The position is different under the ESO, as the CPS explained: a State which chooses not to recognise an ESO on this ground would be effectively condemning the underage person to pre-trial detention abroad, or at best, to pre-trial liberty under obligation to remain in the trial State (QQ 124-5).

118.  The Commission acknowledged that the rule in Article 10(2)(a) could act to the child's disadvantage but Mr Csonka considered these consequences to be "logical": "the law of the prosecuting State … determines the age of responsibility for the prosecution … If the child is considered a minor who is not responsible under the laws of the executing State, then the consequences have to be drawn from this and therefore the executing State should, in our opinion, refuse to recognise that supervision order". The Commission believed that given the differences in the ages of criminal responsibility across the Union (ranging from seven in Ireland to sixteen in Portugal) the only way to eliminate this ground for refusal would be to harmonise the age limit for criminal responsibility (Q 188).

119.  The Law Society of England and Wales took the view that the age of criminal responsibility should not be a ground for non-recognition, but, Mr Anand Doobay, for the Law Society, said, "we understand … that this is a matter of great political sensitivity in some EU Member States and it is at their insistence that they do not wish to be seen to be supervising a measure to allow the under-age person to be released, because they are assisting in the prosecution process of the person who is under the age of criminal responsibility in that State" (Q 257).

120.  The Government consider that the question whether to recognise an ESO for a child under the age of criminal responsibility in that State should be a matter for the executing State. Baroness Scotland of Asthal QC, then Minister of State, Home Office, said: "The reason for that is, you will know, there is a very broad spectrum in the European States as to the age of criminal responsibility … That is why we think it should be at the discretion of the executing State because we are not going to necessarily persuade any given State in a short space of time that the age of criminal responsibility is necessarily to be changed" (Q 450).

121.  We fully recognise that such a ground for non-recognition has a place in the EAW, where it operates to the advantage of the child and, as Stephen Jakobi (consultant, Cross-Border Justice) said, "you cannot see Parliament allowing under-age children to be shipped back to a foreign country. We would never allow such a law to pass" (Q 56). But different considerations apply to the ESO. While ultimately an ESO may operate to require an underage person to be returned to stand trial in another EU State, liberty in the State of residence and return to the trial State for trial must be preferable to detention (or even liberty) in the trial State pending trial in the trial State.

122.  We question why removal of this ground for non-recognition would require the harmonisation of the age of criminal responsibility across the Union. The Framework Decision might provide: "It shall not be a ground for refusing to accept a European supervision order that the suspect is below the age of criminal responsibility in the requested State". Member States would thus be required to give to their young people the same advantages of pre-trial release as if they were older. But such an amendment would, we acknowledge, be hugely controversial and we would not wish to jeopardise the adoption of the ESO (which requires unanimous agreement by Member States). It is to be hoped that when national parliaments come to consider their implementation of the Framework Decision they will have full regard to the welfare of the child whose liberty would be restricted if Article 10(2)(a) is invoked.

Dual criminality

123.  Dual criminality (that the conduct is regarded as criminal under the laws of the two States concerned) is a common condition in the context of mutual legal assistance and extradition agreements. The issue was, it will be recalled, a matter of central importance in relation the European arrest warrant. We therefore enquired whether the executing State should be able to refuse to recognise an ESO if the prosecution were for an offence not recognised by that State. Mr Csonka explained the Commission's position: "the core principle of most mutual recognition instruments is actually to abolish or to restrict dual criminality as much as possible" (Q 187).

124.  The Government have not made dual criminality a precondition in the present context. Having noted the precedent of the EAW, Baroness Scotland said: "Our position has always been we look at the merits of the proposal on the table; if those merits can be delivered without dual criminality, we have not let that stand in the way of agreement; and if they cannot be delivered without dual criminality, then we have" (Q 449). The Law Society was clearly opposed to the absence of dual criminality constituting a ground for non-recognition. Mr Doobay said: "it would operate … against the defendant's interest. Whereas in the European arrest warrant it is a safeguard, here it would actually hinder the defendant being released prior to their trial." (Q 259).

125.  We agree that the absence of dual criminality should not be a ground for refusing to recognise an ESO. It should be understood and accepted that the result of this will be that the UK will be required under this Framework Decision to supervise ESO conditions imposed on a UK resident pending trial for, for example, Holocaust denial. The UK will also be obliged to return the individual for trial should he refuse to return voluntarily when requested by the trial State to do so. As in the case of underage persons, we are of the view that the benefits of liberty in the State of residence pending trial outweigh the political motivations which might otherwise justify refusal to recognise the ESO in these circumstances.

Execution

Article 12—Decision on enforcement

1. A court, a judge, an investigating magistrate or a public prosecutor, in the requested State shall, as soon as possible and in any case within 5 days of receipt of the European supervision order, decide whether to recognise and execute it or to invoke grounds for non-recognition and non-execution. The competent authority in the requested State shall inform the issuing authority of that decision by any means capable of producing a written record.


2. Where in exceptional cases it is not possible to take a decision on the recognition and execution of the European supervision order within the period laid down in paragraph 1, the competent authority in the requested State shall without delay, inform the issuing authority thereof, of the reasons therefore and of the number of days required to take the decision.


3. Where the European supervision order is incomplete, the court, the judge, the investigating magistrate or the public prosecutor in the requested State may postpone its decision on the recognition and execution of the order until it has been completed by the issuing authority.


4. If, in accordance with paragraph 3, the recognition and execution of the European supervision order is postponed, the court, the judge, the investigating magistrate or the public prosecutor in the requested State shall forthwith communicate a report detailing the grounds for postponement directly to the issuing authority by any means capable of producing a written record.


5. As soon as the grounds for postponement have ceased to exist, the competent authority shall forthwith take the necessary measures for the execution of the European supervision order.


126.  Clearly some sort of decision "executing" an ESO is contemplated by Article 12(1), and as discussed in Chapter 3 it is the decision to execute that triggers the release of the suspect in the issuing State. Baroness Scotland said that in the UK the executing authority would be the court: "that is the body which is going to be able to make a judicious assessment as to whether the rights of the individual are being catered for properly, that it is proportionate, that the bail conditions, if bail is granted, are not too onerous" (Q 436). Given that it is at this stage that the Article 10 grounds for non-execution are formally considered (although informal discussions may have already taken place between the issuing and executing States in the context of agreeing the ESO conditions) it would appear that a decision by "judicial" authorities would be appropriate here, and that a hearing at which the suspect may make representations would normally be required.

127.  The decision to execute would provide the necessary assurances to the issuing State that the executing State will supervise the agreed conditions, will take action in the event of a breach of the conditions, and will ultimately return the suspect to the issuing State if required to do so. For this reason too it seems to us that a decision by judicial authorities would be more appropriate than a decision by an administrative or operational body, such as the police. Furthermore, questions relating to enforcement of the ESO and the executing State's powers of arrest may be more easily resolved where there is a domestic judicial order which executes the ESO.

Amendment/review of an ESO

128.  An ESO may need to be varied from time to time as circumstances change. Article 13 makes provision for review of the ESO.

Article 13—Requests for review

1. The suspect shall, in accordance with the law of the issuing State, be afforded the same rights with respect to review of the European supervision order as if the obligations contained therein were imposed on him as pre-trial supervision measures to be executed in the issuing State. However, the suspect shall have the right to request the issuing authority to review the European supervision order no later than 60 days after it has been issued or last reviewed.


2. The executing authority may request the issuing authority to review the European supervision order 60 days after it has been issued or last reviewed.


3. Upon a request for review in accordance with paragraphs 1 or 2, the issuing authority shall, as soon as possible and in any case within 15 days of receipt of the request, review the European supervision order in accordance with the law of the issuing State.


4. The suspect shall have the right to be heard by the issuing authority, in accordance with the law of the issuing State. This requirement may be satisfied through the use of appropriate video or telephone links with the issuing authority (hearing by video or telephone conference). The issuing authority shall also consult the executing authority on the review of the European supervision order.


5. The executing State may assign a person designated in accordance with the law of that Member State to take part in the hearing of the suspect.


6. The issuing authority may, in accordance with the law of the issuing State, decide:

(a) to uphold the European supervision order in the form in which it was first issued;


(b) to uphold the European supervision order but, subject to Articles 5 and 6, amend one or more of the obligations contained therein;


(c) to uphold the European supervision order but revoke one or more of the obligations contained therein; or

(d) to revoke the European supervision order in its entirety.


7. The issuing authority shall forthwith communicate its decision to the suspect and the executing authority.


8. When the European supervision order is reviewed pursuant to this article, the suspect shall have the right to interpretation and legal advice.


129.  As Ms Louise Hodges, for the Law Society, pointed out, Article 13 is the only identifiable provision dealing with change (pace "modification"—see below) in the conditions attached to an ESO. A review can be requested either by the suspect or the executing State, but it is not clear whether the issuing State of its own motion can review the obligations. This, Ms Hodges said, "seems slightly perverse to me" (Q 247). This point could usefully be clarified.

130.  Unlike Articles 5 and 6, Article 13 expressly provides that the suspect has the right to be heard by the issuing authority, though this is qualified by the words "in accordance with the law of the issuing State". It is clear that the suspect need not return to the issuing State: the requirement to be heard may be satisfied through the use of appropriate video or telephone links. The issuing authority is required to consult the executing authority on the review of the ESO (Article 13(4)). JUSTICE sees some cause for concern here: "if obligations/requirements under an ESO are being enforced in an executing Member State, a person must have a remedy in the courts of that State in relation to those obligations/requirements. Article 13 of the FD, however, requires that any request for review of the conditions must be directed to the courts of the issuing Member State. This, we believe, would contravene Article 13 ECHR, which provides that anyone whose Convention rights have been violated shall have 'an effective remedy before a national authority'" (pp 98-99).

131.  JUSTICE has raised an important issue regarding the compatibility of the Framework Decision with Article 13 ECHR. We urge the Government to arrange for the Council of Europe to be consulted on whether Article 13 of the Framework Decision as currently drafted complies with the provisions of the ECHR. We note that an opinion from the Council of Europe was obtained in relation to the Framework Decision on procedural rights; there may be a case for a general opinion on the ESO to be requested.

The 60 days rule

132.  Article 13(1) provides that the suspect shall have the right to request the issuing authority to review the ESO "no later than 60 days after it has been issued or last reviewed". We queried why the suspect should be prevented from seeking a review after 60 days had passed. The need for a review is the more likely to arise, the longer the period since any ESO was made. For example, bail conditions regarding residence, work, movement, activities or medical treatment may all become inappropriate and require variation with time. We note that Article 13(2) allows the executing authority to request the issuing authority to review the ESO "60 days after it has been issued or last reviewed" (which means, presumably, "not less than 60 days after"), but it is not clear why any request for review subsequent to the 60-day period would have to be channelled through the executing authority.

133.  It became clear when we heard the officials for the Commission that the drafting of Article 13 is defective. What is intended is that where a Member State imposes a time limit for the intervals within which a review can be sought that should not be longer than 60 days (QQ 158-61). The Framework Decision should make clear that an ESO can be reviewed from time to time and Member States should not be able to delay it (by imposing a waiting period) for more than 60 days.

Modification contrasted

Article 6—Imposition of pre-trial supervision measures
and obligations of the suspect

4. In addition to the obligations provided for in the European supervision order, the executing authority may, in accordance with the law of the executing State, modify the obligations contained in the European supervision order as is strictly necessary for the purpose of executing the European supervision order.


134.  It is unclear how far the executing authority can "modify" conditions attached to an ESO without need to seek a review under Article 13. Under Articles 13(6) and 14(1) it is the issuing State which has the power to revoke and the power to amend. While it seems that, given the need for a modification to be "strictly necessary" in order to execute the ESO, the power to modify is more restrictive than the power to amend, it is less clear how far "modification" allows the executing authority to substitute different conditions or to add fresh conditions. Nor is it clear whether the power under Article 6(4) is a one-off power, or a continuing power which would allow modification at any time during the currency of the ESO.

135.  The Commission contemplated the executing State's power to modify as only extending to minor amendments to give practical effect (locally) to the issuing State's order. Mr Ljungquist, for the Commission, emphasised the importance of control remaining within the trial State authority: "So in Article 6(4) we have used the words 'strictly necessary'". The Commission considered that only minor changes could be made; for example, to allow the suspect to report on a Tuesday where his normal reporting day was a Monday and the premises were closed because of a public holiday (Q 166). We would suggest that a change of address, provided it was notified and not otherwise significant, would also qualify as a modification. The example chosen by the Commission suggests that they envisage that the power to modify can be exercised at any time following the grant of an ESO, on more than one occasion.

136.  The Framework Decision should distinguish clearly between the issuing State's power to amend and the executing State's power to modify. In our view modification should be limited to changes of the minor nature suggested by the Commission and we emphasise the need for the issuing State to remain in control of the ESO and the conditions of bail. The power to modify should be a continuing one, to allow the executing State to deal with administrative and technical issues throughout the life of the ESO.

Competing obligations to surrender or extradite

137.  Article 15 provides that the existence of an ESO shall be "without prejudice" to the executing Member State's obligations under a European arrest warrant, request for extradition presented from a third country, or in relation to proceedings before the International Criminal Court. The Article also confirms that the existence of an ESO does not prevent the executing authority from taking its own criminal proceedings. It does not, however, provide any guidance on how to deal with competing ESOs.

Article 15—Competing obligations to surrender or
extradite on the part of the executing State

The existence of a European supervision order shall be without prejudice to the executing Member State's obligations under:


(a) a European arrest warrant under Council Framework Decision 2002/584/JHA;


(b) a request for extradition presented by a third country;


(c) the Statute of the International Criminal Court.

It shall not prevent the executing Member State from initiating or pursuing criminal proceedings of its own.


138.  Article 15 was criticised by a number of witnesses for its lack of clarity. Comparison was made with the position under the EAW.

Competing surrender instruments

139.  The CPS construed Article 15 as giving the ESO no precedence over European arrest warrants, extradition requests and ICC (International Criminal Court) surrender requests. Mr Gibbins believed that because an ESO might be trumped by any one of the above four types of proceedings that would "clearly be something that I think the court would want to take into account, particularly if it looked at a defendant's antecedents and saw that he had a significant criminal record so that it would not be beyond the bounds of possibility that some other country might have a European arrest warrant waiting in the wings for him" (Q 79). This might affect the courts' willingness to issue an ESO.

140.  Mr Csonka, for the Commission, took the view that an ESO would have to give way to an EAW, though the EAW could have regard to the ESO and include a provision imposing a condition of return for the continuation of the supervision measure pending trial. "So the person is transferred back to a third State on the condition that he or she will be returned and the supervision can be suspended during that time" (QQ 210-1).

141.  Mr Csonka suggested that Eurojust[31] could assist Member States in deciding, at a practical level, which proceedings to prioritise where there is more than one request and the order which takes precedence relates to a less serious offence: "Those cases actually do happen and Member States need to talk to each other. Eurojust is there to sort out those cases, so we believe that Eurojust could help set the priorities in such situations. They could determine with the two or three Member States involved which one should take which procedure first" (Q 212). Mr Csonka believed that the matter should be resolved by informal discussion rather than by regulation at European level (Q 213).

142.  Other witnesses did not find that approach attractive. Jakobi and Debbie Sayers, solicitor, contrasted the position under the EAW[32] and argued that the EAW scheme should be followed in the ESO for consistency and legal certainty (p 24). The Law Society noted that the UK, in implementing the EAW, had set out a list of criteria to be considered by, in this case, the Secretary of State, if there are competing EAWs. Mr Doobay said: "I am not sure necessarily we would say it was a matter to be dealt with in the [ESO] Framework Decision but we do feel that there should be some criteria and/or certainty as to which process is to be dealt with first" (Q 299). The Law Society was opposed to "an informal model where it is simply left up to an executing Member State to take soundings, or not, if they desire" (Q 302).

143.  The Government want to have some flexibility in this matter. Baroness Scotland said: "We really believe that Article 15 ought to mean that the ESO will not impede other proceedings which may arise after release. We are inclined towards allowing judicial flexibility in the consideration of which obligation should be given priority, depending on the circumstances of the relative case. We believe that the precedence of the European arrest warrant, Extradition Orders or domestic proceedings should be determined by the circumstances and criteria set out in each of those processes" (Q 451).

144.  As Article 15 is framed it appears that an ESO would not stop the implementation of an EAW or an extradition request, or attempted prosecution by the International Criminal Court. An ESO could have the lowest priority of all. The "without prejudice" formula is potentially confusing and might discourage use of the ESO. This would be regrettable. While we would not advocate that an ESO should necessarily take precedence over the international instruments to which Article 15 refers there is a need for guidance as to how Member States' obligations under the relevant competing legal instruments might be prioritised. Consideration should be given to providing criteria in the Framework Decision to be taken into account by a national judge deciding whether to return a suspect under an ESO, an EAW or other international extradition order or arrest warrant. We also welcome a role for Eurojust in facilitating coordination between Member States to decide how best to prioritise proceedings.

Priority of domestic prosecutions

145.  Article 15 also confirms that the existence of an ESO does not prevent the executing authority from initiating or pursuing its own criminal proceedings. We asked which prosecution would take priority on return if the subject of the ESO is being prosecuted in the executing State for another offence. Mr Csonka, for the Commission, responded: "The Framework Decision does not particularly cover this situation. It would be a matter for the national practice of the home State to determine what should be done in that scenario" (Q 208).

146.  Jakobi and Sayers suggested that the ESO should again follow the precedent in the EAW and provide that the return of the suspect must be postponed if there are proceedings in the executing Member State with regard to a "new" offence (p 24). There is currently no flexibility under the EAW scheme (as implemented by section 22 of the Extradition Act 2003) and this could have unsatisfactory consequences if an urgent prosecution elsewhere were to be delayed, or even frustrated, because of some comparatively minor offence here (QQ 397-399 and 402). For this reason, Judge Workman would prefer the court in the executing State to have a discretion whether to return the suspect to the issuing State. Baroness Scotland noted experience of the EAW (where domestic prosecutions take precedence over EAW proceedings) and agreed that there should be flexibility in relation to the ESO (Q 453).

147.  The Framework Decision does not prevent Member States from deciding, when implementing the Framework Decision, to allow the national judge some flexibility in assessing whether the domestic proceedings should take precedence over an ESO. We agree that there needs to be flexibility here and welcome the Government's support for a more flexible approach in the UK. In our view the issuing State will clearly be cautious about making an ESO if that order can be overridden by a prosecution, for a relatively minor offence, in the executing State. Here again, consideration should be given to providing criteria in the Framework Decision to be taken into account by the national judge in deciding which proceedings should take precedence. Here again, there may be a useful coordinating role for Eurojust.


30   Article 1(3). Back

31   Eurojust is an EU body established in 2002 to enhance the effectiveness of Member States' authorities in dealing with the investigation and prosecution of serious cross-border and organised crime. Back

32   Article 16 of the Framework Decision on the European arrest warrant expressly provides that, in the event of multiple requests, a decision on execution is made by the executing State's judicial authorities taking into account circumstances such as the seriousness of the offence, date of offence etc. They can seek the advice of Eurojust. Similarly if there is a conflict between an EAW and extradition, the same procedure is followed. The EAW functions only "without prejudice" to a warrant from the ICC. In the UK, the International Criminal Court Act 2001 provides the Home Secretary with the power to decide on extradition requests which compete with ICC warrants in Schedule 2 Part 2. Back


 
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