Supplementary memorandum by Stephen Jakobi
OBE and Debbie Sayers
Can you see any difficulties in the mechanisms
and deadlines for the ESO proposed by the Commission?
TIME LIMITS
AFTER THE
ISSUE OF
THE ESO BUT
BEFORE RELEASE
(ARTICLES 5-12)
The deadlines before release are vague and may
allow the accused to stay in pre-trial detention unnecessarily
and after it has been agreed in principle that an ESO should be
issued. For example:
1. Article 6 FD-ESO allows the issuing authority
to grant an ESO subject to mandatory and discretionary conditions.
It may impose conditions such as residence at a bail hostel or
medical treatment but it will need the agreement of the executing
authority to do so. These arrangements may take some time to achieve
and it is unclear how long the overall process may take. No deadline
is set and, for the accused's protection, it is important that
proceedings should not be allowed to drift.
2. The ESO is then transmitted but the only
enumerated deadline is set in Article 12 which gives the executing
state five days to decide in recognition and acceptance (although
they can provide reasons why they cannot comply within that time).
There is no provision setting out the overall time limit before
release or remand in custody occurs. Further, there is no provision
dealing with the transfer of the accused back to his/her country
of residence and providing a deadline for it.[22]
Presumably there will be some assistance provided to the accused
on transfer to prevent problems with compliance with the ESO eg
reaching a bail hostel in another country before a certain time
etc. If so, relevant state responsibilities should be clearly
articulated.
THE COERCIVE
MECHANISM ARTICLES
16-18
There are problems with the coercive mechanism
which generally arise from the issuing state's control of the
process. This is significant because ineffective mechanisms may
hinder the development of mutual trust and undermine the purpose
of the proposal. Problems include:
1. The breach process set out in Articles
16-18 leaves national police enforcing orders from other jurisdictions
which may contain conditions that would not be imposed in their
own country.[23]
There may be a lack of clarity, will or commitment to such arrangements.
2. There is a cumbersome coercive mechanism.
An Article 16 breach will be reported without delay to the issuing
state but the decision to arrest appears to remain with the issuing
state. Certainty in criminal law is a human rights requirement
so it might be unsafe to imply a coercive power to arrest and
detain from other parts of the proposal or from other words. The
result could be a two-tier system for suspects with residents
on an ESO potentially being dealt with in a different way to domestic
suspects. Further, although the issuing state has to consider
all the circumstances of the situation, including the suspect's
representations, before deciding on arrest and transfer, what
prevents the state making such a decision in the accused's absence?
Indeed, how else is his/her arrest secured? If there is no opportunity
to challenge the decision before transfer, this may present problems
in terms of compliance with Article 5(4) of the ECHR.[24]
Overall, the process is unnecessarily complicated and a breach
of bail is more easily dealt with by the executing state in accordance
with its own domestic law.
3. If the suspect is present for a breach
hearing, there is a need for legal advisers and interpreters to
be present as Article 6 ECHR rights would apply to any decision
involving detention.[25]
If this hearing takes place by video link, who will represent
the defendant—a lawyer from the issuing state or the executing
state or both? This could result in confusion about the law and
practice applied.
4. The principle of proportionality requires
that coercive measures such as pre-trial detention should only
be used when this is absolutely necessary.[26]
Under the FD-ESO, the issuing state retains authority for the
decision to arrest and transfer and this could clearly lead to
the accused's pre-trial detention. The decision to transfer might
be the issuing state's but it still invokes the legal obligations
of the executing state. We have noted the very limited grounds
for refusing the issuing state's request to transfer under Article
18. In view of this, it might be wise to add a provision on compatibility
with Convention rights under Article 18 (perhaps replicating Section
21 of the Extradition Act 2003).[27]
5. Another practical problem arises if the
grounds for the breach relate to the commission of another offence.
What happens if the accused is arrested for committing a more
serious offence in the executing state? The issuing state still
retains the power to order the transfer and the grounds for refusal
are very limited.[28]
How does any order transfer order fit with Article 5(1) (c ) ECHR
if the suspect is already in detention in the executing state?
Whose prosecution takes priority?
6. Article 18 sets out the grounds for the
refusal to transfer a suspect. It includes the ground that if
the transfer decision concerns new facts which are not covered
by ESO then it can be refused. Does this refer to a new offence?
This should be made clearer.
OTHER POTENTIAL
PROBLEMS
1. The mechanisms for transfer and responsibility
for costs need to be clearly set out.
2. The need for a coercive power creates
two parallel systems of surrender operating in criminal proceedings
in the EU—the FD-ESO and the FD-EAW. This could be avoided
if the resident's court deals with bail in accordance with its
domestic law.
3. A link between the ESO and EAW has not
been articulated. For example, there is no provision for applying
for an ESO in response to an EAW.
INTERACTION OF
THE ESO WITH
OTHER EU CRIMINAL
JUSTICE MEASURES
The Law Society is concerned that the relationship
between the ESO and Member States' obligations under the European
Arrest Warrant, extradition arrangements with third countries
and the Statute of the International Criminal Court is not sufficiently
clear. Do you agree that there are problems here? How might they
be resolved?
1. The FD-ESO states in Article 15 that its
operation shall be without prejudice to the EAW, another request
for extradition or a warrant from the ICC. It also confirms that
it shall not prevent the executing authority form taking its own
proceedings.
2. There is a lack of clarity here. Article
16 of the Framework Decision on the European Arrest Warrant confirms
that:
(i) In the event of multiple
requests, a decision on execution is made by executing state's
judicial authorities taking in to account circumstances such as
the seriousness of the offence, date of offence etc and can seek
advice of Eurojust.
(ii) Similarly if there is
a conflict between an EAW and extradition, the same procedure
is followed.
(iii) The EAW functions only
"without prejudice" to a warrant from the ICC. It is
left to domestic implementation and the UK International Criminal
Court Act 2001 provides the Home Secretary with the power to decide
on extradition requests which compete with ICC's in Schedule 2
Part 2. This scheme should be followed for consistency and legal
certainty.
3. The FD-ESO could also provide that the
return of the person could be postponed because of proceedings
in the executing Member State with regard to a "new"
offence. This would be in line with Article 24 of the FD-EAW which
allows postponed or conditional surrender, eg where a defendant
is to be prosecuted or has complete a prison sentence in executing
state.
The Crown Prosecution Service has suggested that
the ESO proposal should be closely linked with the proposal on
exchange of information in criminal proceedings. Do you agree?
If so, what sorts of links are required?
In principle we would certainly agree as this
might enable the issuing court to input the circumstances of the
offence to the executing court and assist a fully informed decision
on bail. A European wide system for checking bail conditions may
be required subject to appropriate provisions on use and scope
of data protection and retention. We are not really competent
to devise or comment on the administrative process that might
be adopted.
In the absence of agreement on the way forward
for the proposed Framework Decision on Procedural Rights, do you
consider that there are sufficient safeguards in place to protect
EU citizens affected by EU criminal justice measures such as the
ESO?
I stand by the evidence given to your Lordships'
House, with regard to the proposed framework decision on procedural
rights. The framework decision on procedural rights is the keystone
of various measures to ensure that citizens are treated equally
throughout the EU in accordance with the spirit of the European
legal space of which this is just one.
If one were to consider a "stand-alone"
ESO, one must consider the stated aim of the FD-ESO which is to
reduce unnecessary pre-trial detention by enhancing the right
to liberty and the presumption of innocence.
Thus, to be effective, the operative part of
the proposal should include the following:
1. Confirmation of the accused's right to
apply for (but not necessarily obtain) an ESO
2. An obligation on the issuing state to
provide effective information in relation to the ESO. One cannot
exercise a right without knowledge of it
3. A provision underlining the importance
of the right to liberty and the presumption of innocence to all
decisions on bail[29]
4. A provision re-iterating existing Article
6 ECHR obligations (particularly in relation to legal representation
and interpretation)[30]
The fourth proposal, to be effective, requires
a re-enactment of the framework decision on procedural rights!
April 2007
22 In contrast, a deadline for transfer after breach
is set out in Article 20. Back
23
For example, Article 138 French Code of Criminal Procedure allows
the imposition of a bail condition which prohibits the suspect
from engaging in his/her professional activities. Back
24
This provides that when a person is deprived of liberty by arrest
or detention, he is entitled to take proceedings by which the
lawfulness of his detention shall be challenged by a court. Although
Article 18 FD-ESO provides an opportunity for the accused "to
be heard", it contains very limited grounds for refusal by
the executing state. Back
25
Benham v UK (1996) 22 EHRR 293. Back
26
Clooth v Belgium (1991) 14 EHRR 717. Back
27
Under this section, the judge is required to decide whether the
person's extradition would be compatible with the convention rights
within the meaning of the Human Rights Act 1998. Back
28
In brief, the exceptions are ne bis in idem, the offence is statute
barred and falls within the jurisdiction of the executing Member
State, the suspect is being prosecuted in the executing Member
State on the same facts and the transfer decision concerns new
facts which are not covered by ESO. Back
29
For example, a provision emphasising the principles arising from
the jurisprudence of the ECtHR such as the need to avoid stereotypical
reasoning, the use of the least restrictive regime and the right
to a fair trial-eg see Caballero v UK (2000) 30 EHRR 643. Back
30
Article 11 "Rights of a requested person" in the FD-EAW
sets out the suspect's rights to legal advice and to an interpreter. Back
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