Examination of Witnesses (Questions 160-179)
Mr Peter Jozsef Csonka and Mr Thomas Ljungquist
25 APRIL 2007
Q160 Chairman: I think if you could
change it to say "to review the European supervision order
from time to time" and on each occasion "no later than"
because what you are contemplating is that the Member States make
provision for review and that they allow you your review within
a period, in other words they cannot stop you doing it more often
than every 60 days. I understand from what you have answered to
us that that is what you are trying to achieve, but they should
not be able to say, "You've got to wait 90 days"?
Mr Ljungquist: No. Exactly.
Q161 Chairman: That is what you are
trying to say, but I think Lord Mance is right in saying that
under this present drafting it looks as if once 60 days are up
you do not have any right to review thereafter. So I think it
is just a question of getting your drafting to reflect your intention
on that one. Here is the five day provision under Article 12,
but who knows how long it might take for the issuing state and
the executing state to sort out any differences there may be.
The accused might linger for months in custody while, without
any constraints of time, there is discussion between the two state
authorities as to what precise conditions shall apply and whether
or not there will or will not be non-recognition once the order
is issued?
Mr Ljungquist: You mean why we have not provided
for a time limit for discussions between the issuing and the executing
states?
Q162 Chairman: Yes. If you are going
to be so strict in Article 12, it is a little odd to leave it
completely unspecified as to time for the actual issue of the
order in the first place.
Mr Ljungquist: Of course this decision must
be very quick regarding the requirement of the Convention. It
could also be possible to release the person and provide for non-custodial
coercive measures, for example reporting to the police, but within
the time period -
Q163 Chairman: For him to surrender
his passport?
Mr Ljungquist:—so that he at least will
not be in pre-trial detention.
Q164 Chairman: That is not expressly
provided for.
Mr Ljungquist: But it will always be possible
under national law.
Q165 Chairman: I see, so you contemplate
an initial grant of bail within the issuing state with a view
to making a European supervision order? You contemplate an initial
order within the issuing state keeping him there at liberty, on
conditions, with a view thereafter to making an ESO to enable
his transfer to the home state?
Mr Ljungquist: Just not to make him be in pre-trial
detention.
Chairman: Yes. Lord Mance, I think, has a follow
up on that.
Q166 Lord Mance: It is perhaps a
slightly different point. Could I just ask what role the executing
state has in relation to modification of obligations, because
you have provided in Article 6(4) that it can modify the obligations
as is strictly necessary for the purpose of executing the order.
Elsewhere, under Articles 13(6) and 14(1) you have given the issuing
state the power to revoke and the power to amend. Does "modify"
mean amend, or is it more restricted?
Mr Ljungquist: No, the importance is that the
power remains within the trial state authority. So in Article
6(4) we have used the words "strictly necessary". An
example is that the person is under an obligation to report to
the police authorities, or something like that, every Monday and
in the executing state one discovers that on a particular Monday
it is a public holiday, so they can change it to Tuesday, so a
minor change.
Q167 Chairman: While we are on Article
6, in Article 6(3) is the reference to paragraph 3 superfluous,
"any obligations imposed by the issuing authority in accordance
with paragraphs 1, 2 and 3," but we are reading 3 and nobody
is going to be imposing obligations in accordance with 3? I think
that must be right?
Mr Ljungquist: Yes.
Q168 Chairman: Just following through
how it works, assume there have been discussions in a case where
this has been necessary, between the issuing authority and the
executing authority and the final conditions have been settled.
At that stage the suspect has to be informed of those, under 5(1),
is this correct?
Mr Ljungquist: Yes.
Q169 Chairman: And at that stage
the order is issued in the form A annexed to the Framework Decision,
is that right?
Mr Ljungquist: Yes.
Q170 Chairman: What happens? At that
point the accused leaves court and takes himself back to England,
or whatever, does he? How does it work, because at that stage
of course it has not actually been accepted, has it? What actually
does happen? I am trying to work out what happens at that stage.
He has to wait, does he, for the executing state then formally
to recognise?
Mr Ljungquist: Yes.
Q171 Chairman: That is Article 12.
It has got five days to deal with these things, is this it, and
if it takes longer, et cetera, that is dealt with?
Mr Ljungquist: Yes.
Q172 Chairman: Then assume that the
moment comes when the executing state says, "Fine. All right,
we'll accept it." Then what happens? It rings up the French
court and says, "We accept. Let him go," does it? How
does it work?
Mr Csonka: The suspect is released from pre-trial
detention, if he was in pre-trial detention, or if he was not,
if he was subject to other supervision measures in the trial state,
then he is no longer under those supervision measures. He can
leave and go back to the home state, the state of residence, and
report to the police. I suspect that it will be one of the conditions
for the supervision measures imposed by the trial state that he
has to report to the police on a regular basis so as to guarantee
that he actually does return to the state of residence. If he
does not, that is he goes somewhere else, then he or she will
have to be found when the trial comes up and then an arrest warrant
will have to be issued.
Q173 Lord Jay of Ewelme: There would
not be any supervision after he was free to go, before he gets
back to the resident state? If he goes to a third country, for
example, if he goes to ground?
Mr Csonka: If he goes to another country, that
is a country other than his own, then obviously there will be
no supervision, but if he goes back to the home state and if the
issuing state imposes a certain number of supervision measures,
such as reporting to the police, being present at the workplace
at a certain time, et cetera, those supervision measures have
to be supervised by the home state. The local police officer would
have to open a file for the gentleman who has returned from France
and check whether he actually reports to the police once a week,
ask him to surrender his passport, ask him not to go to any local
bars at a certain time. So there would be a scheme of supervision
which is taken over by the state of residence.
Q174 Lord Bowness: Following on this
line, if the suspect is released and he does not go to the state
you expected him to go to and to whom you have addressed the supervision
order, I think you said that in due course he would have to be
found and you would issue a European Arrest Warrant. Do you really
mean that? Would you issue a European Arrest Warrant, and indeed
can it be issued, or was it actually a breach of the order of
the issuing court country, because he has presumably been released
on condition that he complies with the terms of the order which
is going to be made by the executing state? Or are you going to
leave it until the trial comes up? Because he could be anywhere
by then, absolutely anywhere. I think really we are not talking
about people turning up to answer charges for traffic tickets
and not paying on the toll in Italy, they are not the people we
are worried about. The kind of people we are really worried about,
as I say, could be anywhere.
Mr Ljungquist: There is, of course, always a
risk that the person escapes. One can never be 100% sure. On the
other hand, the other extreme would be to have people in pre-trial
detention. So we have to make a proper risk assessment and then
we will see.
Lord Bowness: Forgive me, I understand that
point, but it just seems to me to be somewhat impractical to make
the supervision order and then just let the suspect go. There
is no provision for taking the suspect back to the country of
residence, as I understand it. I am not suggesting that everybody
is put in pre-trial custody automatically, but it does seem to
me that if somebody does not comply with the order when it is
made—and you will know that in a fairly reasonably short
space of time because he will not turn up in the executing authority—then
really somebody ought to be thinking of a mechanism whereby the
arrest warrant can be issued and he can be arrested immediately
and brought back because the longer people are out there the further
they go and the less chance you have of finding them.
Q175 Chairman: Please answer that,
if you have anything to add.
Mr Ljungquist: The issue is that, where the
person escapes, to some extent, I think, because the person, for
example, can be obliged under 6(2) to travel at a particular time
and on a particular date to a specified address in the executing
state. This is a Framework Decision, which means that the Member
States must implement it in their national law. They can do this
in different ways. When the executing state has implemented the
Framework Decision into its law it will have to ensure that the
person in question complies with the supervision measures. So,
for example, Article 3, the Member State shall execute any European
supervision order, and so forth, and under Article 9, recognition
and execution, "The executing authority shall recognise .
. . and shall forthwith take the necessary measures for the execution"
and also what may be the most important, Article 1, at the end,
"The European supervision order is a judicial decision issued
by a competent authority of a Member State . . . that that person
through his Member State is arrested under the condition that
he complies with the supervision measures in order to ensure the
due course of justice, and in particular to ensure that the person
will be available to stand trial in the issuing state." So
I think, as Lord Bowness pointed out in the hearing with Mr Jakobi,
the obligations become also obligations of the executing state
and Article 5(1)(b) of the Convention explicitly allows the arrest
or detention of a person for non-compliance with the lawful order
of the court or in order to secure the fulfilment of an obligation
prescribed by law, so this starts to become applicable as soon
as the executing state has recognised the order.
Q176 Chairman: I just want to clarify
that. If in fact somebody is subject over here to an ESO and the
police discover that he may be thinking of leaving this jurisdiction
without permission, they have power to arrest him?
Mr Ljungquist: Under their national law because
it is a part of the judicial system of the executing state.
Q177 Chairman: Although it is not
provided for anywhere in this Framework Decision?
Mr Ljungquist: No, the Framework Decision does
not provide this, but it follows from the principle that the Member
State has to implement the Framework Decision.
Q178 Chairman: If you want to supplement
that answer, Mr Csonka, please do.
Mr Csonka: Thank you, my Lord Chairman. Just
to come back to the question raised earlier about the risk of
flight, I think that risk is always there in any judicial decision
granting bail to a suspect and there has to be a proper assessment,
whether the suspect is actually fit for such a decision, and the
likelihood has to be assessed whether that supervision order will
be respected or not. If the risk assessment, obviously, is that
he or she will abscond then bail will not be granted. I think
it is the same for any national order or for any European supervision
order. So the judge is the ultimate decision-maker about that
risk and if there is a clear indication in the executing state
that the person who is subject to the supervision order may leave
illegally the territory of that state, there has to be quick contact,
a quick report by the executing state to the issuing state, "There
is a danger and therefore you must act on this." The issuing
state could decide to revoke the supervision order, it could decide
to arrest the person and that would prevent that absconding by
the suspect. So I think there has to be communication at this
stage as well between the two states at very short notice.
Q179 Chairman: Mr Ljungquist says
you can arrest the person without referring back to the issuing
state. Are you agreeing or disagreeing?
Mr Csonka: I suppose it will depend on every
Member State how they transpose the Framework Decision into domestic
law, but I could well imagine that some Member States, as they
did in other cases as well, will require that the courts issue
their own supervision order on the basis of the European one,
or that they initiate their own investigation on the basis of
the foreign investigation. So they could take any measure which
is necessary to arrest the person if the risk is there that the
person will abscond.
Chairman: Lord Jay, I am sorry, I interrupted
you.
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