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).
