Examination of Witnesses (Questions 128-139)
Mr Peter Jozsef Csonka and Mr Thomas Ljungquist
25 APRIL 2007
Q128 Chairman: Welcome to you both,
Mr Csonka and Mr Ljungquist, who have come from Brussels to assist
us in our inquiry. I gather neither of you have given evidence
before to one of the scrutiny committees. I will just tell you,
very briefly, we are recorded, we are on air, and you will get
a copy of the transcript and have an opportunity to make minor
corrections or supplement your evidence. In the meantime, it will
go on the Web uncorrected. I think you have already seen both
the oral and the written evidence we have taken in connection
with this inquiry. This is our third evidence session. Mr Csonka,
I gather you are going to make a short opening address to us,
which I am sure we shall find very helpful. Please carry on.
Mr Csonka: Thank you, my Lord Chairman. Yes,
indeed, I would like to make a short statement to introduce the
subject matter, which I am sure you all know very well by now,
but before that perhaps I can introduce myself and my colleague,
Thomas Ljungquist, very briefly. As you said, I am Peter Csonka.
I am Head of the Unit in the European Commission, Justice, Freedom
and Security. My unit deals with criminal justice questions, including
in particular mutual recognition instruments, such as the European
supervision order. I am a Hungarian lawyer and I used to work
in international organisations for a number of years before I
joined the Commission. The gentleman sitting next to me is Mr
Thomas Ljungquist, who will perhaps want to say a word about himself.
Mr Ljungquist: Yes. I am a lawyer by training
but I also have experience in working as a public prosecutor for
six years. I have also been a Lawyer-linguist at the Court of
Justice in Luxembourg before I joined the Commission in 1999 and
I have been in the same unit, judicial cooperation in criminal
matters, for all that time.
Q129 Chairman: Therefore, you bring
very relevant expertise to bear on this particular issue. Are
you yourself in fact the draftsman of this framework decision?
Mr Ljungquist: To a large extent I am.[1]
Q130 Chairman: Good. You will be
able to address then the great number of questions which we have
on the issue. Starting with the overall need, I do not think anybody
doubts that there are far too many, one might say, foreigners
locked up in all the Member States' countries simply because they
are foreigners and if they were natives of that particular state
they would almost certainly be out on bail. Therefore, there are
too many pre-custody remands because of the want of a scheme such
as, if it is going to work, this proposed European supervision
order scheme. An absolutely basic question: why this scheme rather
than its obvious main rival candidate, Eurobail? We had better
just begin by understanding what Eurobail consists of. We want
to ask you what the Commission envisages would be involved in
the concept of "bailable", but as you will know from
reading the evidence we have already had, what we now understand
by "bailable" is, simply as a matter of strict law within
the relevant trying, issuing state, `is this an offence for which
it is at least theoretically possible to get bail?'. Is that right?
Mr Csonka: My Lord Chairman, do you want to
proceed with the question directly or shall I still make a short
introductory statement?
Q131 Chairman: I would just like
to clarify that we are talking about the same thing when we are
talking about Eurobail, a scheme whereby if the offence, whether
it be rape, murder or shoplifting, whatever it is, is one for
which you can get bail, that is to say release pre-trial in the
issuing state, that is described as a bailable offence. Is that
right?
Mr Csonka: That is our understanding, yes.
Q132 Chairman: Therefore, in fact
almost every offence is a bailable offence except in very special
circumstances?
Mr Csonka: It depends on the law of every Member
State whether an offence is bailable or not.
Q133 Chairman: I know, but in relation
to every state subscribing to the Human Rights Convention, under
the Human Rights Convention you can only decline bail for good
reason and it is very difficult to have a law which makes it simply
impossible to have bail for any particular offences?
Mr Csonka: Yes, that is exactly the point. In
principle offences are bailable but certain conditions may be
imposed for not granting bail and certain thresholds may be also
set in every Member State's legislation for those offences which
are included in the bailable offences categories.
Q134 Chairman: It is very difficult
to set a threshold. There has to be, generally speaking, some
discretion and if there is any discretion to grant bail, as I
understand it, that is a bailable offence. Is that right?
Mr Csonka: Yes.
Q135 Chairman: I think we are told
that there are 10,000, in round figures, foreign nationals a year
who are accused in Member States. One can take it that the great
majority of those 10,000 are accused of bailable offences, is
that right?
Mr Csonka: We understand that those 10,000 people
who are suspected of having committed an offence in the state
where they are, which is not their normal state of residence,
they could be granted bail if the other conditions are met.
Q136 Chairman: Right. All I really
want to do is to clear the ground. If the Eurobail scheme was
operated then all of those who are accused of bailable offences
would be sent back to their home state and it would be for the
home state either to grant them bail in the home state, or indeed
to refuse them bail in the home state but they would then serve
pre-trial custody in the home state. That is, as I understand
it, how the Eurobail scheme, as opposed of course to the scheme
we are principally considering here (the supervision scheme),
would operate. Is that right?
Mr Csonka: I do not think the difference is
in the numbers, I think the difference is in the procedure. Eurobail
is a concept which was obviously not the option taken by the Commission
when considering the pre-trial supervision question. It has a
division of labour built in it between the issuing state and the
executing state. The issuing state would consider whether an offence
is bailable or not and then the decision would be eventually taken
by the executing state. Our scheme is a mutual recognition scheme,
and for the last six or seven years in the particular area we
have been working on the basis of that concept of mutual recognition,
which is based on the idea that one Member State issues a judicial
decision and the other Member States execute it.
Chairman: I appreciate that, but bear with me.
The Committee suspended from 4.28 pm to 4.33
pm for a Division in the House
Q137 Chairman: We are quorate, so
we shall continue.
Mr Ljungquist: My Lord Chairman, I would like
to answer your question about the Eurobail system, and what we
understood by "bailable". In fact we had difficulties
in understanding the concept "bailable". Article 5,
paragraph 1(c) of the European Convention on Human Rights does
not provide any threshold linked to the punishment for the offence
in question, for example one year, so the threshold varies from
Member State to Member State and some Member States do not link
pre-trial detention to a threshold at all. To our understanding,
provisional freedom or bail is a possibility as regards all offences
where remand in custody can follow. However, the possibility of
remand in custody or provisional freedom, or bail, cannot be seen
in the abstract, as we understand it. Remand in custody can only
be ordered if there is at least one special ground for detention,
such as the danger of re-offending, the danger of suppression
of evidence or danger of flight, absconding. If there are no special
grounds, the person must be released immediately—we see
no possibility of keeping a suspect in custody if there are no
special grounds for detention—and sent back to his or her
home state, where the court then, according to the Eurobail system,
makes an assessment of the same facts as the trial state but under
its own national law. Moreover, it does not seem to be compatible
with the equal treatment of persons if the outcome as regards
the same offence is different depending upon whether the person
is sent back, if it is a national of Member State B, to Member
State B and the outcome will be another one in relation to Member
State C. So there is a built-in inequality in the whole concept
of Eurobail to our understanding. I would like to underline also
that we cannot see how this concept can be seen in the abstract.
Q138 Chairman: I asked a number of
questions before giving you an opportunity to make an opening
statement and I think you had wanted to say just a word or two
before we began, so just before we resume our questioning, Mr
Csonka, please feel free to make an opening statement, which I
deprived you of earlier, quite wrongly.
Mr Csonka: No, you have not, my Lord Chairman.
I am not sure whether this statement is necessary, but perhaps
it is useful, for the sake of recalling the major policy objectives
behind the instrument, to say a few words about what we are looking
at in this instrument. As you know, this proposal for a Council
Framework Decision was adopted in August last year and the aim
of the proposal was to enforce the right to liberty and the presumption
of innocence throughout the European Union, seen as a whole, as
a common area of justice, security and freedom, and to promote
equal treatment of all citizens in this common area. The most
important element of this proposal is the introduction of a possibility
of transferring a non-custodial supervision measure, whether this
is a substitute for pre-trial detention or not, from the Member
State where the non-resident person is suspected of having committed
an offence to the Member State where this person normally has
his or her residence. This would allow the suspected person to
be subject to a supervision measure in his or her usual environment
until the trial takes place in the foreign Member State, and in
order to ensure that he or she complies with the supervision measure
the instrument contains, as a last resort, a mechanism of return
to the trial state, if necessary by coercion. The main issue which
is addressed by the proposal is the fact that non-custodial pre-trial
supervision measures are not currently recognised between Member
States of the European Union, whether under the old regime of
Mutual Legal Assistance where there is a 1959 Convention of the
Council of Europe, or under any other instrument which has come
into force in the meantime, so there was a real legal gap in the
recognition of such measures among the EU Member States. The main
consequence of this gap, of the current situation, is the risk
of unequal treatment and of discrimination between residents and
non-residents because at present EU citizens who are not residents
in the territory of the Member States where they are suspected
of committing an offence are sometimes—actually often—kept
in pre-trial detention, mainly owing to the lack of community
ties and the risk of absconding, and the statistics we have provided
and gathered in the risk assessment clearly show this. What specifically
the European supervision order would do is that a decision which
is issued by a judicial authority (a court, a judge, an investigating
magistrate or a public prosecutor) in one Member State would be
recognised per se by the competent authority of another Member
State. The aim of this order would be to let the suspect benefit
from a pre-trial supervision measure in his or her usual environment,
that is the state of residence. Regarding the threshold, as we
have already discussed, the European supervision order may be
applied whenever there is a possibility under the national law
of the issuing Member State. Irrespective of whether the thresholds
are different in the two Member States, the issuing and the executing
Member States, it is the threshold in the issuing Member State
which would be applied. The European supervision order is not
only an alternative to pre-trial detention, it may also be issued
in relation to an offence for which only less severe coercive
measures would be applied, such as a travel prohibition or regular
reporting to the police station, where the threshold may be lower
than for a remand in custody. The European supervision order would
not be mandatory, it is an option. The judicial authority in the
issuing state may issue such an order. This indicates that the
issuing authority may or may not want to use this possibility,
depending on the circumstances of the case. The suspect may request
that a supervision order be issued, but strictly speaking he or
she would not have the right to benefit from such a supervision
measure. The issuing authority must always assess all the elements
of the case in light of the right to liberty, presumption of innocence
and the principle of proportionality. The European supervision
order would impose one or more obligations on the suspect and
those measures would be aimed at reducing the practical dangers
which justify pre-trial detention usually, that is the danger
of suppression of evidence, the danger of re-offending and in
particular the danger of absconding. The obligations which may
be imposed on the suspect by the issuing authority are all optional
except the obligation of the suspect to make himself available
for the purpose of receiving a summons for the trial and the obligation
not to obstruct the course of justice or engage in criminal activity.
Q139 Chairman: I am sorry to interrupt,
but in a way you are reciting the contents, which I think we have
well in mind. You have just told us all about Article 6. Article
6(1) says what is mandatory, 6(2) says what is discretionary.
I do not want to interrupt if you are going to say -
Mr Csonka: I was at the end, my Lord Chairman,
of the short introductory speech, so I am done with the presentation.
Thank you.
Chairman: Thank you very much.
1 On checking the transcript the witness added:
"but it is the Commission as such that is responsible for
the final content". Back
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