Select Committee on European Union Thirty-First Report

CHAPTER 6: Summary of Conclusions and Recommendations

The ESO—a welcome measure

183.  To date EU action in criminal law has focussed primarily on enforcement measures at the expense of human rights and civil liberties—a fact which is entirely understandable given the pressing need for States to cooperate in attacking terrorism and organised crime. Progress on measures, such as the Framework Decision on procedural rights, addressed at safeguarding and strengthening the rights of the individual, has in contrast been slow and disappointing (para 18).

184.  It concerns us acutely that people are not being given bail in the trial State at the moment on the basis that, as non-residents, they are likely to abscond and go back to their State of residence, or for more technical reasons, such as a lack of fixed address in the trial State. The numbers are not huge but they are substantial (para 7).

185.  The ESO, whose aim is to enhance the right to liberty and the presumption of innocence, is a welcome measure. The Commission's proposal addresses a serious issue affecting the liberty of the individual. It has the potential to reduce hardship for some thousands of EU citizens and is a proposal which, we believe, deserves prompt attention by Member States. However, there are a number of places where the ESO needs to be improved if it is to be workable (para 19).

ESO or Eurobail

186.  The ESO is the way forward though the mutual recognition principle upon which the ESO is based might be usefully supplemented by allowing a greater role for the executing State than is currently envisaged in the ESO proposal (paras 48, 51).


187.  We do not consider that the proposal will lead to a significant increase in the number of interpreters required. Existing resources should suffice (para 61).

188.  We are pleased to see that the Government intend to carry out a full impact assessment including an examination of the likely costs of the ESO (para 63).

The ESO—grant and recognition

189.  It would be helpful for Article 5 of the Framework Decision to provide that the suspect has a right to be heard before an ESO is made and in particular on what obligations, if any, should be attached to the order. While the precise details of the manner and means by which the suspect is to be heard should be left to Member States the basic right should be expressly set out in the Framework Decision (para 70).

190.  There is a need for flexibility in relation to the granting of bail. The court is best placed to determine what conditions are required to meet its concerns about releasing an individual. There is no need for more mandatory conditions (para 76).

191.  The ESO is a complicated scheme, whose effectiveness in a particular case will be dependent upon setting conditions which will satisfy the issuing court and can be operated by the executing authority. It seems implicit in the fact that any Article 6(2) conditions are "subject to agreement" that there should be some machinery for discussion between the two States in advance of a decision to grant an ESO. There needs to be a close liaison between the issuing and executing States on the conditions to be imposed. Both authorities should be involved early in the decision-making process, and an ESO should not be issued without such consultation (paras 84, 95).

192.  The consultation should focus on the conditions in the ESO but should also cover other matters. The executing State should be under an obligation to provide the issuing State with such information as it needs to decide whether to make an ESO and if so on what terms (para 98).

193.  There might be practical benefits if the ESO proposal included provision for recourse to a central authority, in particular to deal with incoming ESOs. Experience in relation to the EAW would suggest that informal consultations can usefully take place between administrative authorities in the respective Member States, thus reducing the need for judge to judge contact. We urge the Government to examine this suggestion which has across-the-board support from practitioners. The extent of involvement of a judicial body in the final agreement of any Article 6(2) conditions will need careful consideration in implementing legislation (paras 56, 97).

194.  We note the reliance placed by the Framework Decision on video links but are sceptical as to whether they will work in practice. We therefore recommend that ways should be sought, wherever possible, to facilitate consultations between Member States' authorities and reduce the range of the discussions to ensure that they can be conducted quickly and effectively. A list of common ESO conditions is one way in which this might be done (para 96).

195.  The Framework Decision should be more specific about the practical aspects of the grant and issue of an ESO (para 105).

196.  The suspect should be released as soon as the issuing State has been notified that the ESO has been recognised by the executing State (para 105).

197.  Further consideration should be given to the inclusion of more time limits in the Framework Decision (para 111).

Recognition and execution

198.  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 (para 115).

199.  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 the executing State refuses, under Article 10(2)(a), to recognise an ESO because the suspect is under the age of criminal responsibility in that State (para 122).

200.  The absence of dual criminality should not be a ground for refusing to recognise an ESO (para 125).

201.  The ESO could usefully clarify whether the issuing State of its own motion can review the obligations in an ESO (para 129).

202.  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 (para 131).

203.  The drafting of Article 13 is defective. 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 (para 133).

204.  The Framework Decision should distinguish clearly between the issuing State's power to amend and the executing State's power to modify. 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 (para 136).

205.  The "without prejudice" formula in Article 5 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 (para 144).

206.  We agree that there needs to be flexibility for the national judge in assessing whether the domestic proceedings should take precedence over an ESO. We 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 (para 147).

Enforcement and return

207.  The Commission's text does not grapple with the question of how to decide, in a contested case, whether or not there has been a breach of an ESO condition. It is clear that this is a matter which requires some consideration. Cases in which the existence of a breach is disputed are likely to be quite common. The Framework Decision needs to address expressly whether establishment of the existence of a breach is the responsibility of the executing State or whether it is a matter to be decided by the issuing State (para 151).

208.  While we have doubts about the practicability of tripartite hearings (not least because of the difficulties with video links and interpretation) further consideration should be given to the suggestion that the executing State should, having heard the suspect, establish whether there has been a breach in the particular circumstances (para 158).

209.  It is a matter of some considerable concern that the Framework Decision appears not to allow the executing State any power to arrest or take other action preparatory to gaining the instruction of the issuing State. Articles 16 and 17 should ensure that there are the necessary powers to take action in the event of a breach of conditions (para 167).

210.  The Framework Decision must also make clear that the authorities in the executing State must be able to deal with apprehended or anticipatory breaches without the need for prior report to and authorisation from the issuing State. This is a serious omission from the present text (para 168).

211.  There is a need for clarity and certainty in the provisions of the Framework Decision relating to breach of an ESO. It is unsatisfactory to leave matters such as the power of the executing State to arrest following a breach or in anticipation of a breach to Member States' implementing legislation (para 166).

212.  We believe that the judge in the executing State should also be trusted to deal with minor or technical breaches, subject to a requirement to report the decision to the issuing State (para 170).

213.  There may also be a case for enabling the authorities in the executing State to go further and deal, if only provisionally, with breaches of an ESO where immediate action is necessary in order to ensure public safety or the protection of individuals or evidence. Subject always to the issuing State remaining in overall control and decisions having to be reported back, the judge in the executing State should be able to vary the ESO temporarily given that there may be a delay before the issuing court can be fully seised of the matter. The suspect would be heard before any such variation is made (para 172).

214.  Article 20(2) of the ESO proposal enables transfer of a suspect to be temporarily postponed for "serious humanitarian reasons". A similar provision exists in the EAW Framework Decision (Article 23(4)). In its implementation of the EAW in the UK the judge must order a person's discharge or adjourn the extradition hearing where the physical or mental condition of the subject of the warrant is "such that it would be unjust or oppressive to extradite him". We recommend that consideration be given to the inclusion of a provision to similar effect when implementing the ESO (para 176).

215.  There is a question whether the arrest and transfer hearings envisaged under the ESO proposal would be ECHR-compliant. We do not consider that it is satisfactory to leave the question of the hearings for Member States' implementing legislation (para 179).

216.  There is a need for certainty and clarity in the Framework Decision concerning the power to arrest a suspect in a third State as well as for consistency on the part of Member States in giving effect to its provisions. Articles 17 and 18 therefore need to be specific as to the responsibility and obligations of Member States other than the executing State where the arrest and transfer of the suspect has been ordered by the issuing State (para 182).

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