Memorandum by JUSTICE
1. JUSTICE is an independent all-party organisation
whose purpose is to advance justice, human rights and the rule
of law through law reform and policy work, publications and training.
It is the British section of the International Commission of Jurists.
2. JUSTICE has been extensively involved
in monitoring EU judicial co-operation, the development of the
mutual recognition programme in relation to criminal matters and
the elaboration of EU-wide procedural safeguards. We are very
concerned that while greater judicial co-operation is taking place
between EU member states, sufficient provision for common standards
for suspects and defendants' rights has not been made. We note
that the UK government stated that at the Justice and Home Affairs
Council on 18-19 April 2007 it would not support a binding instrument
on procedural safeguards in criminal proceedings that applies
to domestic cases.[1]
This, we believe, is regrettable.
3. In principle, we are in favour of the
introduction of measures allowing pre-trial supervision of non-resident
defendants in their country of residence in the EU. However, we
have the following concerns about the proposed Framework Decision:
— It faces major practical difficulties,
especially if it is to avoid discriminatory application;
— It does not incorporate human rights
protections and wrongly envisages that member states can "out-source"
their human rights obligations to one another.
We therefore recommend substantial amendment
to the proposed Framework Decision if it is to be adopted by the
Justice and Home Affairs Council.
THE NEED
FOR EU ACTION
ON PRE-TRIAL
SUPERVISION MEASURES
4. EU action on pre-trial supervision measures
is, we believe, in principle a positive development since if successfully
implemented it may reduce the unnecessary use of pre-trial detention
for residents of other EU member states. For example, in England
and Wales a defendant may be refused bail if the court is satisfied
that there are substantial grounds for believing that if released
on bail he would fail to surrender to custody; in considering
this the court may have regard to, inter alia, the "community
ties of the defendant".[2]
THE MAJOR
LEGAL AND
PRACTICAL IMPLICATIONS
OF THE
COMMISSION'S
PROPOSAL
5. We emphasise, however, that the success
of this measure will be dependent on the existence of a high level
of trust, not only between courts of different EU member states
but also in relation to other member states' supervisory arrangements
for defendants on bail. This proposal differs in an important
respect from the European Arrest Warrant in that the latter requires
only sufficient trust in another system to surrender a person
to allow them to face trial, etc, in that system. This instrument
requires a court to trust another member state to carry out functions
in relation to its own prosecution of a person.
6. We are concerned that such high levels
of trust may not exist between at least some member states of
the Union. We fear that if this proposal becomes law then there
is a risk that some states will be trusted more than others, because
of actual or perceived characteristics such as: their wealth;
the fact that they have high levels of bail supervision in relation
to domestic cases; the quality of their police forces; the quality
of their judicial system; the prevalence of the rule of law, etc.
This could result in defendants from certain member states being
granted bail to return to those states while those from others
remain in detention in analogous cases. This would clearly be
discriminatory; however, because each case has so many variables,
reliance on general legal prohibitions on discrimination may not
be effective. In order to achieve genuine parity between residents
of the issuing member state and residents of other EU member states,
specific prohibitions against discrimination in this situation
could be needed: for example, the FD could state that a European
Supervision Order (ESO) must be made in any case where a defendant
would be granted bail if resident in the issuing member state.
7. However, we are concerned that this FD
will face the problem that other mutual recognition measures have
faced—that they envisage mutual trust in a situation where
standards are not equivalent across the EU. In England and Wales,
for example, a very high degree of supervision of bailed suspects
is available, including curfews, electronic monitoring, reporting
to police stations, etc. This degree of supervision may not be
common in some other member states due, for example, to resource
constraints.
8. If strict non-discrimination criteria
were put in place so that an ESO were granted whenever bail would
be granted in a domestic case, problems could remain. One problem
is that the rates of granting bail in a member state may be based
in part on the confidence of courts and others in that state in
the quality of the supervisory arrangements there. The following
hypothetical example illustrates the potential problems:
In member state A the courts are relatively
keen on granting bail before trial because the police are of high
quality, electronic tagging is available and a large proportion
of bail breaches are noticed and acted upon. The defendant being
tried in state A comes from member state B, where bail supervision
is relatively poor and it is relatively easy to abscond—in
state B the number of defendants being granted bail is relatively
low, because of this. The court in state A, however, is forbidden
to discriminate and grants the defendant a ESO at the same threshold
at which it would grant a domestic defendant bail. The defendant
returns to state B, and then absconds. Meanwhile, a court in state
B refuses bail to a defendant from state A according to its own
domestic criteria, even though the authorities in state A would
have been perfectly capable of dealing with the low degree of
risk posed by him.
9. The practicability of a ESO in some cases
where bail would be appropriate for a domestic defendant is also
open to question. The preamble to the FD acknowledges the difficulties
posed eg by preliminary hearings by envisaging that video links
could be used instead of asking the defendant to travel back and
forth to the issuing state. This is sensible but is however dependent
upon video link technology being available in all member states.
In itself this is not very difficult, but what of cases where
the court handling the case in the issuing state is, for example,
a provincial magistrates' court and, more significantly, the defendant's
residence in the executing state is in an outlying region? This
difficulty is not insuperable but arrangements will have to be
put in place to ensure it is overcome.
10. While video link in England and Wales
is now accepted in relation to preliminary hearings, trials by
video link are not, although the Police and Justice Act 2006 provides
for the accused to give evidence by live link in certain circumstances.[3]
Not only does a defendant have a right to be present at his or
her trial by virtue of Article 6 ECHR; it is also important that
the court (in particular in jury trials, the jury) sees the defendant
and can assess his or her reaction to evidence, etc. Since the
FD lays down no criteria for when a ESO should be granted, some
states may be happy to grant a ESO on the basis that trial will
take place by video link, whereas others may not be.
11. Article 6(1) of the FD also appears
to contradict the preamble by stating that the issuing authority
shall order the defendant to "attend the trial when summoned
to do so" and may order him "to attend preliminary hearings"
and "to reimburse the costs for transferring him to a preliminary
hearing or trial". "Attend" may refer to video
link but this is by no means clear. Secondly, the discretion to
order reimbursement could result in impecunious defendants being
denied an ESO because they would clearly be unable to pay the
costs of their return. This would contradict Article 14 ECHR,
which states that the Convention rights (including the right to
liberty under Article 5) shall be secured without discrimination
on the grounds of, inter alia, property or other status.
12. There is a further danger of discrimination
in Art 6(2): the requirement that both states must agree to the
supervisory arrangements imposed leads to a danger that states
will be more reluctant to grant an ESO to a suspect whose state
will not agree to certain obligations such as those listed in
Art 6(2). Further, the possibility envisaged in Art 11 that the
executing state may insist that a defendant serve their sentence
there could also create the danger that where a state insists
upon this an issuing state may therefore refuse to issue a ESO.
THE ADEQUACY
OF THE
SYSTEM PROPOSED,
AND IN
PARTICULAR WHETHER
ONE OF
THE OTHER
OPTIONS CONSIDERED
BY THE
COMMISSION WOULD
BE PREFERABLE
13. 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, and that the proposed FD offers no real protection
for fundamental rights including the right to a fair trial; to
liberty; and not to be made subject to torture or inhuman and
degrading treatment or punishment.
14. We are also concerned that the system
that has been proposed by the Commission could operate in parallel
to the European Arrest Warrant (EAW) but evade some of the protections
in the EAW system. In the EAW FD there is partial double criminality
(in relation to offences other than those in Art 2(2) of the FD),
and the EAW only applies to offences over the different sentence
thresholds set out in Art 2. Provision is also made for life-sentence
cases in Art 5(2) of the EAW FD: execution of the warrant may
be subject to certain conditions in these circumstances. No such
provision is made in the ESO FD, despite the fact that some defendants
facing trial for offences carrying a life sentence do get bail.
Further, there are no speciality provisions in the ESO FD. Further,
while Art 1 of the EAW FD states that the FD "shall not have
the effect of modifying the obligation to respect fundamental
rights and fundamental legal principles as enshrined in Article
6 of the Treaty on European Union", this is by no means clear
in the ESO FD.
15. The ESO FD does not give human rights
protections in relation to the return of a defendant to the issuing
state to face trial. It does not allow a state to refuse to return—even
its own national—to another member state on the grounds
that they would risk inhuman or degrading treatment there; that
they would receive an unfair trial; or that other of their rights
would be violated; nor does it allow an executing state to refuse
to execute an ESO on the grounds that the prosecution is, for
example, politically motivated. Moreover, since there is no requirement
that the defendant apply for, or consent to, a ESO, it would arguably
be open to the issuing state under the FD to send a defendant
back to his state of residence if he was at risk of persecution
there.
16. The European Convention on Human Rights
requires that a state refuse to remove a person to another member
state where there is a real risk that he would suffer treatment
contrary to Article 3 ECHR.[4]
Further, other Convention articles can also be engaged by removal:[5]
for example removal is unlawful if there is a clear risk of a
"flagrant denial" of the right to a fair trial. Before
a defendant is removed to either an executing state or an issuing
state, therefore, under this proposed FD, it is necessary that
a hearing be held where the making of the ESO or the arrest and
transfer of the defendant can be challenged.
17. Further, the requirements and obligations
imposed under the ESO may also engage Convention rights; while
the executing state's agreement is required for obligations to
be imposed under Art 6(2) of the FD, there is no requirement that
such obligations are imposed proportionately. Indeed, the FD envisages
ESOs that could contain "limitations of... [a defendant's]...
freedoms of a degree comparable to deprivation of liberty".
Not only is this ambiguous (does "comparable" mean equivalent
or near-equivalent?) but it also confuses bail with detention.
Once the threshold of deprivation of liberty is passed, then the
reality is that the court would be ordering detention in the executing
state, rather than merely supervision, and the protections of
Article 5 ECHR must be afforded to the defendant, in particular
the procedural obligations under that Article. Further, since
other conditions may engage "civil rights and obligations"
the procedural guarantees of Art 6 ECHR should also apply to the
making of a ESO.
18. The ESO raises novel jurisdictional
issues: the important point of principle is that, in relation
to human rights obligations, each state bears responsibility for
violations that occur on its territory and it cannot simply abnegate
responsibility to another EU member state. Article 1 ECHR states
that High Contracting Parties shall "secure to everyone within
their jurisdiction the rights and freedoms" in Section I
ECHR. The proposed FD risks allowing EU member states to become
complicit in human rights abuses by other member states—for
example, by enforcing restrictions on liberty attendant upon a
politically motivated prosecution in another member state, or
returning a defendant to face an unfair trial in that member state.
19. In particular, if obligations/requirements
under a 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".
20. One of the most worrying aspects of
the ESO FD is the proposed procedure in relation to breach of
an ESO's requirements. The FD envisages in Articles 16 and 17
that the executing member state would report the breach to the
issuing member state (it is said nowhere how the facts of the
breach are to be established) and then the issuing member state
could take action on the basis of that report, including arresting
and transferring the suspect. Further, the FD envisages that the
hearing deciding what action to take as a result of the breach
would be held by the courts of the issuing state (in Article 17).
21. Since breach of the ESO can result in
deprivation of the suspect's liberty or in the amendment of the
ESO's obligations in a way such as to engage Convention rights
or civil rights, it is necessary that a fair hearing be held to
establish that the ESO has been breached and determine the consequences.
The executing state cannot devolve this responsibility to the
court of the issuing state and then simply carry out the judgment
of that court. In relation to arrest and transfer, the FD to an
extent acknowledges this, saying that in Article 18 that if the
decision is made to arrest and transfer then there must be a hearing
before the court of the state in which the suspect is located.
However, the obligation to have a fair hearing does not only apply
to cases where the decision is made to arrest and transfer. At
the least the defendant must have the opportunity to challenge
the legality of any action taken on the basis of the hearing in
the courts of the executing state. This, however, raises difficult
conflict of law questions.
WHAT AMENDMENTS
MIGHT BE
MADE TO
THE PROPOSAL
TO IMPROVE
THE PROCEDURE
22. We therefore recommend that the following
changes are made to the proposal:
— A member state must refuse to issue
or to execute a supervision order if to do so would be incompatible
with the ECHR; the defendant has the right to a fair hearing before
such a decision is made;
— In Art 6(1)(c), any reimbursement
requirement should be made subject to the defendant's means; inability
to reimburse, or reimburse in full, these costs should not be
a ground for refusing to grant a ESO;
— In Art 6(1) and (2), it should be
stated that a member state must not issue, or agree to execute,
any obligation or measure that would be incompatible with the
ECHR; the defendant should have a right to a fair hearing before
such a decision is made;
— In Art 13, the defendant must have
the ability to challenge the obligations and measures in the jurisdiction
in which he is at the time ie in the executing member state;
— In Art 17, the breach of the ESO
should be established, and decision on further action to be taken
should be made, in a hearing conforming with Arts 5 and 6 ECHR;
if this hearing is held in the issuing state then the defendant
must have an effective remedy in the executing state to challenge
the legality of any action taken on the basis of the hearing that
engages his civil or Convention rights;
— Further, in Article 18 a state must
refuse to arrest or transfer a defendant if to do so would be
incompatible with his ECHR rights. The defendant must have the
right to challenge his arrest and/or transfer in the courts of
the member state in which he is arrested;
— The Art 14 ECHR principle of non-discrimination
should be emphasised in the FD.
April 2007
1 See Commons Hansard Ministerial Statements 18
April 2007-Justice and Home Affairs Council, cols 7WS-10WS. Back
2
Bail Act 1976, Sch 1 paras 2 and 9. Back
3
Police and Justice Act 2006 ss47-49; see also S v Waltham
Forest Youth Court [2004] EWHC 715 (Admin). Back
4
See Chahal v UK App no. 22414/93, judgment of 15 November
1996. Back
5
See R (Ullah) v Special Adjudicator [2004] UKHL 26; Back
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