Examination of Witnesses (Questions 180-199)
Mr Peter Jozsef Csonka and Mr Thomas Ljungquist
25 APRIL 2007
Q180 Lord Jay of Ewelme: It is the
same point really and maybe it has been resolved now. I entirely
understand the risk is always there, it seems to me, and it will
arise under any system, whether we are talking about the ESO or
about Eurobail. I can entirely understand the responsibility of
the executing state for the suspect when he is in the executing
state, or I guess when he is in a third country. The gap seems
to me to be when he is in the issuing state and after he has been
let go, as it were, in Rome and before he gets back to London.
It is who is responsible for him then that I am having some difficulty
with. If he just goes to ground in Italy, say, does the executing
authority have responsibility for him in Italy or does the issuing
state have responsibility for him there?
Mr Csonka: Absolutely, as long as he—[4]
Q181 Lord Jay of Ewelme: There is
not a judicial gap, as it were?
Mr Csonka: No.
Mr Ljungquist: No, the issuing state is responsible
because, for example, Article 6, paragraph 1(b), "The person
may not enter specified places in the issuing states without authorisation."
The ultimate goal is, of course, that the person travels to that
executing state. For example, what I read before, Article 6(2)(a),
"to travel at a particular time and on a particular date
to a specified address in the executing State," so I see
no gap there.
Q182 Lord Jay of Ewelme: Article
6(1)(b) seems to me the key one here. So the court could say,
"You must go from here straight to the airport and get on
a plane and go home"?
Mr Ljungquist: Exactly.
Q183 Lord Jay of Ewelme: And if he
did not do that, it would be the issuing state which would have
the authority to pick him up from wherever else he is?
Mr Ljungquist: Yes, but I do not know whether
we should put this under Article 6(1) or whether it should be
under 6(2), subject to agreement, if you say that you should put
the person on a plane.
Lord Jay of Ewelme: Yes.
Q184 Lord Mance: You could presumably
introduce some provision whereby bail on conditions was suspended
and he was in fact escorted under police escort back to the executing
country?
Mr Ljungquist: Yes.
Q185 Lord Mance: That would require
some amendment, but I think you could introduce that. Can I just
go back to the later stage, and it may be jumping ahead to the
next session of the questioning and I will be stopped if that
is inappropriate. You said a moment ago that under Article 16
onwards effectively the executing authority could, if it felt
there was some cause, arrest, but may I suggest that the present
drafting is to the opposite. The present drafting indicates to
me, as you said earlier, that all such decisions are basically
for the issuing authority and that we have elaborate provisions
about what the issuing authority may do in the event of a breach
under Article 17. It may revoke, it may amend, it may arrest,
and there is a lot of points on the detailed drafting, but looking
further at Article 17(3), "If the issuing authority decides
that the suspect must be arrested" then the executing authority
shall arrest, and Article 18(1), "If the issuing authority
decides that the suspect must be arrested . . . the suspect shall
be heard by a judicial authority of the Member States on whose
territory he is arrested." So really the present scheme does
not seem consistent. There are some other points I will come to
later, but perhaps you would just deal with that.
Mr Ljungquist: The last word is, of course,
for the issuing authority. That is responsible for the investigation
of the criminal offence. This is also consistent with our idea
that we should not have two authorities involved in taking the
most important decisions. One can say that today in Europe we
have 27, 28, maybe, with Scotland and Northern Ireland 29 jurisdictions
and a person cannot go to his home state because there are no
instruments that allow this and there are no instruments which
are applicable between Member States. Let us take an example of
my own home country, Sweden, which is a very big country. There
we have, let us say, a person who is at a hearing after having
been arrested in the utmost south of the country but let us say
he is from the utmost north. There, also, conditions are very
different from the south, maybe they do not even speak the same
language, but it is always the court where the person is suspected
of having committed the offence which decides on the question
of pre-trial detention or not. Then the person will be sent back,
maybe, to somewhere and report to the police.
Lord Mance: I see that, but the reality is we
are talking about separate jurisdictions here and there is no
basis for keeping someone in prison in England without him or
her having a right to apply for bail here.
The Committee suspended from 5.46 to 5.48
for a Division in the House
Q186 Chairman: We will resume because
we are quorate but we will resume, if we may, with one or two
of the narrower, more specific questions. Should Member States
be permitted to refuse recognition on grounds of dual criminality?
I am sure you know what dual criminality means. Should it be reflected
in the Framework Decision?
Mr Csonka: No.
Q187 Chairman: That is a very clear
and crisp answer. Is there any particular consideration in mind
in saying that?
Mr Csonka: Dual criminality is typically a condition
which is raised in the context of traditional mutual legal assistance
and extradition. In the context of mutual recognition, the Commission
and the Member States have for the last few years considered that
it was not necessary to raise with regard to a number of offences,
except in some specific circumstances, but the core principle
of most mutual recognition instruments is actually to abolish
or to restrict dual criminality as much as possible. Therefore,
the number of grounds for refusal in these instruments is limited
as well to some very important points, which we believe should
be there, such as the age limit question for minors.
Q188 Chairman: The question clearly
links with my next one, which is: by allowing Member States to
refuse to recognise and execute an ESO on the grounds that the
accused has not attained the age of criminal responsibility in
the executing State might children be refused bail where adults
make a successful bail application? If an executing state says,
"We're not going to recognise this order because this child
is too young in this country to bear criminal responsibility,"
actually that is doing a terrible disservice to that under-age
child because it will mean, will it not, that that child will
therefore remain in custody in the trial state, the issuing state,
the foreign state, rather than have the advantage of having pre-trial
release under conditions under a European supervision order in
his or her own state? So it does not actually do the under-age
child any good, on the contrary.
Mr Csonka: My Lord Chairman, this is a common
ground for refusal in mutual recognition instruments and the Member
States have insisted in the past on this particular ground of
refusal to be included in the previous instruments as well. It
is obviously the law of the prosecuting State which determines
the age of responsibility for the prosecution. That is what is
really important. If the child is considered a minor who is not
responsible under the laws of the executing State, then the consequences
have to be drawn from this and therefore the executing State should,
in our opinion, refuse to recognise that supervision order with
the consequence, as you stated, that the offender or the suspect
in the issuing state will remain in custody, or at least will
remain there under supervision. These are consequences which are
logical and which relate to the two different legal systems. We
hardly see how the age limit, that is the limit of criminal responsibility,
in Europe could be harmonised. There are important differences
and to eliminate this ground for refusal we would have to harmonise
first the age limit for criminal responsibility.
Q189 Chairman: I am not clear why
you would have to harmonise the ages. Why could you not simply
say under this decision, "It is not a ground for refusing
to accept a European Supervision Order that this particular person
happens to be below your particular age of criminal responsibility.
You have got to comply and thereby enable your young people to
have the same advantages of pre-trial release as if they were
older"?
Mr Csonka: As I said in the previous response,
it is the Member States which had insisted on this ground for
refusal to be included in previous instruments and we believe
that they will maintain in this particular instrument as well.
But they may be convinced otherwise and they may decide to eliminate
it.
Q190 Chairman: In some instruments,
of course, it would be to the child's advantage, but here it will
be by definition to the child's disadvantage?
Mr Csonka: Yes.
Q191 Chairman: I am just asking whether
the Member States and those responsible for this present draft
have thought through that consideration?
Mr Ljungquist: Yes, but if you refuse on that
ground the young person will be in pre-trial detention, maybe.
Q192 Chairman: Exactly. That is my
point. So why do you allow the executing state to refuse to accept
the European supervision order on that ground? Perhaps you will
consider that further as the process develops. Presumably there
are likely to be developments and amendments to the draft Framework
Decision, is that not right?
Mr Csonka: That is how it should happen. The
draft has not been actually discussed in detail by the Council.
It has been presented and there was a first round table discussion
about it.
Q193 Chairman: Is this the first
time it has been looked at by some exterior body?
Mr Csonka: That is right. Proposed Framework
Decisions usually take a number of meetings in Council and other
deliberations in COREPER before they are formally adopted, so
we will have many, many occasions to come back to these provisions.
Q194 Chairman: So perhaps we are
playing, we would like to think, a constructive part in the process
of its evolution.
Mr Csonka: You are actually.
Mr Ljungquist: Yes.
Chairman: Good. Lord Bowness, I think you had
a question outstanding.
Lord Bowness: Thank you, my Lord Chairman. I
do not want to labour the point, but I would just actually like
to have some confirmation about this question of the enforcement
of the terms by the executing authority. I think, as Mr Ljungquist
rightly suggested in the evidence, when we saw Mr Jakobi I suggested
that it would in effect turn into an order of the domestic court
and therefore they would be forced. It is fair to say that Mr
Jakobi's colleague said I was completely wrong and that the evidence
showed that the point is it may not be as workable as you would
want it to be: "Firstly, as I indicated before, the power
to grant a power of arrest rests with the issuing state. In the
UK, in England and Wales, if somebody breaches their bail conditions,
then the police officer could automatically arrest them for failing
to report or not being at their home address as they should be
or for not attending an appointment or for any of the conditions
that were on their bail conditions. That would not happen under
this order. What would happen is that under Article 16 the executing
state has to refer back immediately to the issuing state"
and the issuing state will make a decision as to whether or not
they should order the arrest (Q 42). Without wishing to labour
the point, I think our witnesses are saying that that is not correct,
that in fact by the time the Framework Decision had been translated
into domestic law our courts, as the courts of the executing state,
would actually be able to do something about breach of condition
before going for the sort of nuclear deterrent of arrest and transfer
back to the issuing state. Am I correct in interpreting what has
been said this afternoon?
Q195 Chairman: I think so, yes.
Mr Ljungquist: Yes, I referred to Article 1
and Article 3 in particular.
Lord Mance: Can I suggest that if that is the
intention it really needs to be made clear, because Articles 16,
17 and 18, to my mind, read to the exact opposite effect very
clearly, and your philosophy that the issuing state decides seems
to me to confirm that Articles 16 to 18 do mean the exact opposite
of what I think you are now suggesting?
Q196 Chairman: Perhaps you will take
that on board and make it explicit so that this debate will not
have to take place in your future discussions, because I should
perhaps just say for the benefit of those of our Members who have
just been able to return to the Committee that Mr Csonka and Mr
Ljungquist have made it plain this is actually the first occasion
when they have, so to speak, discussed this draft with any other
body and it is therefore a developing, evolving process and they
have been generous enough to say they find it is a constructive
exercise. Therefore, it may help for future drafting sessions
to see the sorts of problems we have on the existing draft.
Mr Csonka: My Lord Chairman, with all due respect,
this is a misunderstanding. This is a final proposal. This is
actually a proposal adopted formally by the college of the Commission
and then, when this becomes a Commission document, the Commission
submits it to the Council. It is in the hands of the Council to
amend this text from now on. We have had one occasion so far to
discuss this text with the Council, that is with the Member States,
at which, under the German presidency, we were invited to present
the document and there was a first round table discussion on this
document with the Member States. That was a one day discussion.
The German presidency has not so far tabled any other discussion
on the document. We expect that there will be discussions, but
the document is in the hands of the Member States now, so if there
are any amendments, drafting changes in the text, this will be
done by the Member States.
Q197 Chairman: Presumably they will
appoint a working party or something?
Mr Csonka: Yes, absolutely.
Mr Ljungquist: Yes.
Q198 Chairman: So it will not be
for your direct benefit, but perhaps hopefully for the benefit
of a working party under the aegis of the Council as they take
it forward?
Mr Csonka: Yes, that is right.
Q199 Lord Lester of Herne Hill: Presumably
you, as the authors, the Commission, having listened to constructive
criticisms, could indicate where your Framework Decision might,
from your own point of view, be amended? You do not have to be
so formal as to wait for the initiative entirely to come from
outside, do you? You can, as any national government can, reconsider
and may decide that parts of this could be improved?
Mr Csonka: I am afraid this is not how it happens.
This is a formal Commission document, therefore we are bound by
this document. This has gone through a long inter-service consultation
process. It has been seen by various services within the Commission
and has been approved by the college of Commissioners, so we have
an obligation to defend the ideas and provisions which are in
this text. Obviously the text will be amended over the next few
months or years, during which this will be discussed. In most
cases the original proposition of the Commission and the final
document which is formally adopted by the Council are two very
different documents and it is not always to the benefit of the
final document that it has been changed.
4 On checking the transcript the witness added:
"is not back to the state of residence, the issuing state
is in charge". Back
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