Examination of Witnesses (Questions 140-159)
Mr Peter Jozsef Csonka and Mr Thomas Ljungquist
25 APRIL 2007
Q140 Lord Lester of Herne Hill: Unfortunately,
I have to leave at five o'clock for another meeting and therefore
I would be grateful if I could express my difficulties about the
view taken by the Commission in one go, since I will not be able
to be here later on, if I am allowed to do that. The starting
point is, as you have said, the right to liberty, which is guaranteed
throughout all the EU states and for that matter all the Council
of Europe states in Article 5. That tells us that the right to
liberty can only be interfered with where necessary and where
the steps taken are proportionate to the legitimate aims of the
state concerned. That is right, is it not?
Mr Csonka: Yes.
Q141 Lord Lester of Herne Hill: And
all the Member States of the EU are subject to that basic obligation,
which is inherent in the right to liberty. The classic case was
the Dutch case of Winterwerp[2],
was it not, originally, which laid that down? Suppose that I am
in Budapest and I am charged with a serious offence and I would
like to be on bail in England, which is my natural environment
and place of residence. Suppose that I then decide voluntarily
that the Hungarian authorities should allow me to go to England
and there to have a British judge assess the risks of freeing
me on bail and decide on what conditions (if any) would be applied.
I wish to go to the United Kingdom to have a British judge make
that decision, given that this would be the executing state and
the police and other public authorities would have to carry out
the execution to make sure that I did not abscond and was available
for trial. Is it not more sensible that that is the way it should
work, that what you call the "issuing state", which
is not going to be the state which has to assess the risk and
then supervise the execution of bail if it is granted, acts as
the sender of the suspected person to this country, in my example,
where the judge and the other public authorities, who will be
responsible for making sure that I comply with bail, are able
to take those steps in this country? That, as I understand it,
is the essence of the Eurobail idea. What I do not understand
is why that idea, which seems to me entirely sensible and totally
compatible with my understanding of the European Human Rights
Convention, has been rejected in favour of your idea, which seems
to me to have many very difficult problems about it. So I wonder
whether you could explain to me, first of all, what is wrong with
the procedure and approach which I have suggested and why your
approach is preferable? Thank you very much.
Mr Csonka: The authorities that prosecute the
crime, in that particular case the Hungarian authorities, have
all the evidence that was gathered in the investigation. They
have the suspect at their disposal. They have the information
about the possibility of the suspect suppressing the evidence
or interfering with witnesses, who are all in the Member State
where the crime has been committed. I find it logical that this
Member State be the one which takes the decision about whether
pre-trial detention is necessary, and if not, whether the person
should be granted bail. For me it is the court or the prosecutor
who has the file and who has actually the details of the case
who is best suited to decide on these matters, including whether
bail should be granted or not.
Q142 Lord Lester of Herne Hill: But
the prosecutor is not a judge. The prosecutor is a prosecutor
and the decision as to the right to liberty must be taken by a
judicial authority, must it not?
Mr Csonka: My understanding is that the notion
of judicial authority is a large one and prosecutors are considered
as a judicial authority under the international treaties in those
Member States where they have the right to decide on the pre-trial
detention question. I used to be a prosecutor myself and that
question, whether or not pre-trial detention was necessary in
a particular case given the seriousness of the offence, given
the other risks that we have mentioned, the risk of absconding
in particular, they have to be considered by the prosecutor first.
It is true that in many cases this decision was taken away from
prosecutors over the years and given to a criminal investigating
judge. For example, that was the case in Italy in the 1990s. The
powers of the public prosecutor to decide on questions related
to the liberty, the freedom of the accused were transferred to
an investigating magistrate and it is a tendency that we see in
other countries as well.
Q143 Lord Lester of Herne Hill: I
am sorry to interrupt you, but it is not a question of tendency.
The Strasbourg case law establishes, does it not, that there has
to be an independent court with full jurisdiction of facts and
law and full judicial control with the ultimate responsibility
for deciding on the right to liberty or no liberty, and that cannot
be left solely to the prosecutor?
Mr Csonka: And that is what happens, absolutely
right.
Q144 Lord Lester of Herne Hill: So
although you are right in saying that the initial decision may
be taken by the prosecutor, what I am asking you is why the just
and sensible course would not be for the prosecutor to send all
the dossier material with the suspect to the court and the place
where bail is either to be granted or not granted, and then it
can be decided there and then? The police in that country will
of course be responsible for monitoring, and if the suspect does
not turn up then they can apply for an arrest warrant and the
person can then be brought before that court. I do not understand
the objection to that.
Mr Csonka: My Lord Chairman, if I may return
the question, why is it more sensible that you transfer a case
to a Member State where the local judge has no knowledge of the
details in the case, and why that decision would be taken by the
home state, by the state of residence?
Lord Lester of Herne Hill: Because that is the
country in which the monitoring of bail, or whatever you call
it, has to be carried out, and therefore it would be sensible
for that country both to assess the risk and to supervise the
execution rather than to have this curious blip in your scheme.
That is really my answer to that. I apologise for asking so many
questions.
Q145 Chairman: No, it is a helpful
line of questioning.
Mr Csonka: There are arguments in favour of
both schemes. The Eurobail scheme places the responsibility and
the burden of the decision with the state where the supervision
would take place. The particular scheme which the Commission has
put forward places that burden on the state where the prosecution
takes place and most mutual recognition instruments start from
that principle, that it is the prosecuting state which takes the
decision about arresting somebody, about granting somebody bail,
about fining somebody for an offence, and then that decision would
be executed by any other Member State as if it were taken in the
domestic context. So I think there is perhaps a difference in
the philosophy of the two concepts. Mutual recognition is the
concept that was taken as the cornerstone of judicial cooperation
in Europe years ago by our Member States at the highest level,
that is by heads of state and government. Therefore, that scheme
is the most natural we have to follow in all these instruments.
That instrument is a mutual recognition instrument. So one decision
is taken in one Member State and the other Member State executes
the decision. The Eurobail concept splits this procedure into
two and I think would create significant difficulties between
the prosecuting state and the supervision state, if I may use
this expression. So I am not sure that the difficulties are actually
more important in our concept than in the Eurobail concept.
Q146 Chairman: Eurobail has this
other major consequence, that not only is the decision taken by
the home state, what you call the executing state, rather than
the trial state (the issuing state), but if the decision is to
refuse bail then pre-trial custody is spent in the home state
rather than the foreign state. That is one important distinction
between the two and I would have thought myself that on the whole
it would be better that it is spent in the home state than the
trial state, would it not, in terms of being able to be visited,
being able to prepare properly for a defence, et cetera? That
is one aspect of it. The other is—and you will have seen
what Mr Jakobi says about xenophobia and prejudice—if the
decision is taken by the issuing state he says the experience
is that they say—and this is a foreigner by definition—"Well,
he has committed this offence, ex hypothesi a serious offence,
in our country and we simply are going to be more reluctant to
release him back to his own country than we would to release a
national of our own country, who would be within our borders and
more readily controllable." Therefore, there will be fewer
releases. The order will not be used as much as Eurobail would
produce pre-trial release. Do you accept those are considerations
in play?
Mr Ljungquist: My Lord Chairman, we think that
the trial court is best placed to assess whether the person needs
to be in pre-trial detention or whether a less serious measure
is sufficient because they are responsible for the preliminary
investigation of a criminal offence. We do not see that there
is an inherent xenophobia as regards magistrates. They are simply
concerned under the present legal framework that the person would
escape to his home country, and as there are no legal instruments
in place to ensure that the person comes back, therefore they
are reluctant to put this person on provisional freedom. So we
think that we could solve this problem by an effective return
mechanism. Also it is a question of whether the trial court has
sufficient information to make a risk assessment. We envisage
introducing a system of criminal records which can be assessed
from different countries in Europe.
Q147 Lord Mance: I am just going
to go back to what you originally said, Mr Ljungquist, in justifying
the choice of the European supervision order as compared with
Eurobail, and to some extent I think it has been overtaken and
I take the point which Mr Csonka has made about information. You
gave two reasons. You said that if there was no special ground,
then the person must be released immediately, so we see no possibility
to keep someone in custody and send them back to the home state.
You also, secondly, drew attention to what you thought was a risk
of inequality if you sent people back to their home states. As
to the first ground, surely you have answered that yourself a
moment ago? The whole point is that people are not being given
bail in the arresting state at the moment because of a special
ground which is only applicable there, namely that they will abscond
and go back to their state of residence. That is the main point
and surely that is the reason why you might not be able to give
bail to someone in the arresting state, but if he was allowed
to go home (which is the country to which he might otherwise abscond)
he could be given bail because conditions would apply there? I
suggest that answers your first point. As to the second point,
inequality in the result if you send back people to state A, B
or C, I do not find that a very European point, if I may say so.
We are asked in Europe to trust all legal systems equally and
it seems to me rather surprising to hear officials in the European
Commission maintaining that all justice systems do not apply the
European Convention on Human Rights in a similar and equal way.
Mr Ljungquist: My Lord Chairman, I do not think
that I mentioned it in those exact words. Maybe I was not clear
enough, but what I wanted to express was that there could be differences
as regards the threshold for different offences.[3]
Q148 Chairman: Could we just move
on to the issues arising in civil law systems where there is a
good deal of pre-trial questioning. Does that complicate the situation?
Would the accused have to be available at all times, and can that
be slotted into the proposed European supervision order scheme?
Mr Csonka: My Lord Chairman, no, the physical
availability of the person, in our opinion, is not necessary throughout
the investigation process. There are means other than bringing
the person to the court to ensure that he or she can be heard.
That is why the proposal itself makes reference to video-conferencing,
modern technology which ensures that the person can be heard when
necessary.
Q149 Chairman: So it is either pre-trial
release or not, and if it is pre-trial release then any intermediate
questioning process would be achieved on some video basis, that
sort of communication, otherwise than by physical presence?
Mr Csonka: For routine questioning, I would
suggest video-conferencing would be sufficient. For other types
of investigative matters, such as a reconstruction, for example,
where you need the suspect as a participant in a reconstruction,
you may need to bring him or her back to the crime scene and that
would justify the return of the person for that particular investigative
measure. Still, he or she would benefit from bail in the home
state as long as no such practical need arises.
Q150 Chairman: How do you envisage
the scheme, assuming it is brought into being, operating initially?
What happens? There is an Englishman, say, accused in France of
rape. He wants bail. Initially the prosecution oppose bail. The
matter goes before the French court. How does this scheme work?
What does the French court do? It says to itself, "Well,
now we have got this brand new European supervision order possibility.
We could grant one of these orders." What does it do?
Mr Csonka: They take annex A to the Framework
Decision, which would have to be brought into domestic law, and
they would fill in that form. That form would identify the offence
for which the person is being prosecuted. It would contain the
details and the kinds of supervision measures which are imposed
on that person.
Q151 Chairman: But it has to decide
whether to make one of these orders. It is entirely within the
discretion of the trial state court, subject always to Article
5 and the Strasbourg jurisprudence, and it has to make a decision
whether to grant one of these orders, and if so what conditions
to impose. Is the suspect before the court? Is he able to make
representations about this?
Mr Csonka: The suspect has to be informed about
this order.
Q152 Chairman: That is once it is
made. Is he entitled to be present when the court is considering
whether to make an order, and if so what conditions to attach
to it?
Mr Csonka: Under the ECHR (the European Convention
on Human Rights), Article 5, the person has to be seen by a court
when a decision is taken about pre-trial detention, so in any
case there would be a hearing.
Q153 Chairman: He would have an opportunity
to say, "I should have one of these orders and you shouldn't
impose this, that or the other condition"?
Mr Csonka: That is right.
Q154 Chairman: What contact (if any)
will the French court make with some English authority in order
to discover more about the antecedents, the prospects, the residence
possibilities, whether there are medical needs, whatever else
there is, about the English suspect?
Mr Csonka: I think it depends to a large extent
on the case. If it is a very straightforward case, a traffic offence,
for example, I do not think it would be necessary to have extensive
consultations with the resident. If it is a person whose personal
situation is complex, family-wise or otherwise, or there are indications
that he or she is a repeat offender, I think there would be consultations
between the two States, particularly as to the suitability of
some of these additional supervision measures, such as reporting
to the police, appearing at the workplace at certain times, withdrawing
the passport and perhaps other identification documents. So yes,
I would suggest that there are consultations which are necessary
between the two states, but not when it comes to the mandatory
conditions.
Q155 Chairman: The 6(1) conditions
you do not need to trouble with?
Mr Csonka: That is right.
Q156 Chairman: But if there is any
question of imposing any further conditions besides those you
have to consult with the executing states, or not?
Mr Ljungquist: My Lord Chairman, it is not possible
to impose the obligations under 6(2) if there is not an agreement
between the issuing authority and the executing authority, so
it follows that those two authorities must be in contact. How
these contacts are going to take place is not specifically provided
for in the Framework Decision and I think maybe it could also
be dangerous to regulate that in detail. For example, (2)(h),
to undergo specified medical treatment. Of course the issuing
authority must investigate if the executing state has the means
to provide for such treatment. Of course it is also possible to
discuss the grounds for non-recognition and non-execution at this
stage. This is not provided for explicitly in the Framework Decision,
but of course we have to have an Article which tells us on what
grounds such an ESO can be non-recognised. So it is foreseen that
there are contacts between the two authorities.
Lord Mance: Can I just take that aspect a little
further? Just looking at the proposal which you have put forward,
you accept that the suspect will have to be present at a hearing
and yet all that Article 5 says is, as Mr Csonka said, that a
supervision order may be issued after having informed the suspect
of any obligations. There is no reference to a hearing. That strikes
me as odd. Secondly, if you look at Article 13, there is a very
detailed scheme entitling a suspect to apply not later than 60
days after an order has been issued or reviewed and under 13(4)
giving him a right to be heard, and under 13(8) giving him a right
to interpretation and legal advice. All that suggests that this
is drafted on the basis that there will not be a hearing before
the order is made and that the suspect's rights to a hearing and
to interpretation and legal advice only arise after a hearing,
and then for some curious reason are limited to 60 days. Why should
his rights be limited to 60 days? In reality the need for a variation
is just as likely, if not more likely, to arise after 60 days.
He may move house, he may get a different job in a different part
of this country and want to amend some of the conditions and yet
it seems under this scheme the only way of doing that after 60
days is under Article 13(2) to ask the executing authority (in
other words the state of residence) to request the arresting authority
to review the supervision order. That seems a very cumbersome
mechanism and it is quite unclear to me why it is introduced.
Finally, you have accepted that there will be contact between
the issuing authority and the executing authority about conditions,
but if you are going to have contacts about conditions what is
this whole scheme of Articles 9 to 12, which postulate that having
had contact then the order may be sent to the executing authority
and they then have five days to say whether they accept it or
not? There is obviously not going to be a hearing there, so if
they are going to raise objections, why have objections not been
sorted out at the time when they are agreeing conditions? It does
not seem realistic.
Chairman: Mr Ljungquist said a moment ago that
he would propose that they should try and sort out those matters
at the same time as the conditions, but even so it is a slightly
curiously framed scheme because it does not, on the face of it,
look as if that is intended to take place.
Q157 Lord Mance: So what about the
other points then?
Mr Ljungquist: You have already maybe answered
the question about Article 10. I think that we must have the grounds
for refusal in the Framework Decision itself. Of course, most
cases will be sorted out already during the preliminary discussions.
Then you asked us why there is no special provision for a hearing
under Article 5, only that the person is informed of his or her
obligations, and so forth. As Mr Csonka already explained, the
person must be heard after arrest and he has the right to be heard
as to whether he should stay in custody or not, so we think that
all the Member States already have such a provision, but I can
say that maybe for the sake of clarity it would have been better
to remind the Member States of this in Article 5.
Q158 Lord Mance: Yes, but especially
in the light of Article 13. Why do you have the elaborate procedures
in Article 13, which suggest that this is the time when he has
a right to be heard if he applies within 60 days and why is Article
13 limited to 60 days?
Mr Ljungquist: This is not provided for in the
Convention, that the person should have the right to request a
review of the European supervision order. The last sentence of
Article 13, paragraph 1, "However, the suspect shall have
the right to request the issuing authority to review the European
supervision order no later than 60 days . . . "
Q159 Chairman: They might have intended
to say "no sooner"?
Mr Ljungquist: What I intended to say was that
there might be provisions which give the person a right to ask
for a review at, let us say, 30 days in some Member States but
there must be -
Lord Mance: I do not understand it then, because
you are saying that it is no later than 60 days. He has had a
full hearing and it has been decided. Firstly, it seems quite
unrealistic to suppose that he will then apply 30 days later,
but there is this elaborate scheme for doing that. Secondly, it
is just as likely, probably much more likely that some reason
for an application will apply later. Thirdly, you say that no
provision for an application is provided in the Convention, but
it is absolutely standard that you must have a right to apply
to vary such an order if terms have changed. It would be completely
contrary to the European Convention on Human Rights not to have
a right to apply to vary if your conditions have changed?
2 Application no 6301/73, Winterwerp v The Netherlands,
judgment of 24 October 1979. Back
3
On checking the transcript, the witness added: "(ie
the legal possibilities to remand someone into custody) which
leads to the result that suspects may be remanded in custody in
some Member States, but not in others". Back
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