Examination of Witnesses (Questions 200-219)
Mr Peter Jozsef Csonka and Mr Thomas Ljungquist
25 APRIL 2007
Q200 Chairman: As a matter of interest,
I understand this is the first opportunity for scrutiny by the
national parliaments, is that right?
Mr Csonka: Yes.
Mr Ljungquist: Yes.
Mr Csonka: But it is not very frequent that
we are actually called upon to discuss such proposals with national
parliaments.
Mr Ljungquist: The German Bundesrat has scrutinised
the document as well.
Q201 Chairman: But at this stage
in its final state, or at any earlier stage?
Mr Ljungquist: In this final stage.
Q202 Lord Mance: What did it say
about it?
Mr Ljungquist: I am not prepared on this question.
If you are interested, it is a public document, so I can send
you the link, and it is under scrutiny, under the Bundestag for
the moment, I think.
Q203 Lord Mance: This is a process
which you said may take months or years. Can you give us a more
definite indication of how long it is likely to take?
Mr Csonka: It really depends on the instrument.
For some Framework Decisions it has taken over five years, for
some others it has taken less than that. It really depends on
the priority that Member States, and particularly the presidency,
will want to give to an instrument. The European Arrest Warrant
has been adopted rather quickly, in less than two years. The recent
Framework Decision on racism and xenophobia, which I understand
you will be looking at as well, has been on the table of the Council
for over five years.
Q204 Lord Mance: This being a third
pillar measure, the parliament does not have an official role
in relation to it?
Mr Csonka: They can give opinions, but these
are not mandatory for the Council.
Q205 Lord Lester of Herne Hill: On
the German parliamentary scrutiny, did you give evidence to them
at all or did they write to you with questions to put to you?
Mr Csonka: The usual process is that it is the
national government which is invited to such hearings. It is rather
infrequent that we, the staff of the Commission, are invited to
national parliaments for such evidence.
Q206 Chairman: Could we just proceed
to the last few questions? Could I first ask, picking up a point
made some while ago, video-conferencing, is that a facility open
to most Member States nowadays? I had rather thought not. You
think it is?
Mr Csonka: Yes. It is a technology which was
introduced in the 1990s in some Member States and under the influence
of recent treaties such as the 2000 Mutual Legal Assistance Convention
of the EU it has been made quite widespread in mutual legal assistance
channels, so it is used quite frequently.
Q207 Chairman: Article 13 envisages
a suspect potentially being arrested on the territory of a Member
State which is not the executing State. Under what authority would
such a Member State, which has not been asked to recognise and
execute the ESO, be entitled to arrest the suspect? As we know,
it is always possible that a suspect may go, say, to a third Member
State and the question then arises of his being arrested there.
Under what authority would that be done, given that that Member
State is not yet officially involved in any ESO process?
Mr Csonka: We believe that when Member States
transpose and implement this Framework Decision, in particular
Article 17, paragraph 3, they will have to provide for the possibility
of arresting the person who is being sought. So it will be under
the authority of the national legislation transposing that Framework
Decision.
Q208 Chairman: I follow. Which prosecution
would take priority where a suspect returned to his home State
under an ESO is also being pursued in that State for another offence?
Does the Framework Decision deal with this situation?
Mr Csonka: The Framework Decision does not particularly
cover this situation. It would be a matter for the national practice
of the home state to determine what should be done in that scenario.
Q209 Lord Lester of Herne Hill: Could
I just ask, the principle of legal certainty is a European general
principle of law. Is it satisfactory to leave the answers to these
kinds of problems for national implementation without the Framework
Decision describing clearly the powers and their limits?
Mr Csonka: I think it is difficult enough to
suggest changes in criminal substantive law, let alone in procedural
law, and there is substantial criticism whenever the Commission
passes legislation regarding procedural law and the competence
of national jurisdictions, so it seems to us that it is difficult
to introduce any provision in that Framework Decision, or in any
other Framework Decision, which would govern how national jurisdictions
prioritise their casework.
Q210 Chairman: We are conscious of
having taken quite a lot of your time and we are anxious that
we do not make you miss any train. There is very little else,
certainly for my part, that I want to seek your help on. The Law
Society is concerned that the relationship between the European
supervision order and obligations under various other instruments,
the European Arrest Warrant, extradition arrangements or the ICC,
is not very clear. Do you foresee any difficulties arising here?
Mr Csonka: If you look at Article 15 and recital
6, they both state that the Framework Decision should be without
prejudice to other transfer or surrender mechanisms such as the
EAW or extradition or surrender to the ICC. We do believe, if
this case was to happen, that is a European Arrest Warrant which
is concurrently issued with regard to the same person, the supervision
measure would give way to the EAW. So the person would have to
be arrested and surrendered to the state which has issued the
EAW first.
Q211 Chairman: Assume that somebody
accused of rape in France has been released under one of these
orders to the UK, but assume then that a European Arrest Warrant
comes in for shoplifting. It would be slightly odd, would it not,
if you have to give effect to the European Arrest Warrant, to
send the person back to Germany, whatever, to face shoplifting
when on the face of it there is a much more serious outstanding
charge of rape in France?
Mr Csonka: Yes, but in the European Arrest Warrant
it could be one of the conditions raised by the state where the
person is physically, if you surrender that person to Germany
for that charge, to impose a condition of return for the continuation
of the supervision measure pending trial. So the person is transferred
back to a third State on the condition that he or she will be
returned and the supervision can be suspended during that time.
Q212 Lord Mance: What, though, if
Germany sentences the person for shoplifting to two years' imprisonment,
or whatever? You have then held up the important rape trial by
two years, have you not? That seems to get it the wrong way round,
especially if the rape was a first charge?
Mr Csonka: Those cases actually do happen and
Member States need to talk to each other. Eurojust is there to
sort out those cases, so we believe that Eurojust could help set
the priorities in such situations. They could determine with the
two or three Member States involved which one should take which
procedure first.
Q213 Lord Mance: It ought to be regulated
by law, should it not, rather than informal discussion?
Mr Csonka: I doubt that this law should be done
at European level at this stage.
Q214 Chairman: Finally then the question
of safeguards. As you know, there has been an awful lot of trouble
in progressing the procedural rights proposal. Do you think anything
further perhaps should be done to protect EU citizens affected
by this proposed order, anything in the way of representation,
interpretation, any facilities, any safeguards?
Mr Csonka: My Lord Chairman, we have made numerous
references to the ECHR, in particular Articles 5 and 6, which
provide the basic guarantees for anybody in Europe, that is the
Member States of the Council of Europe, and obviously Members
of the European Union as well under Article 6 of the TEU. Those
guarantees are applicable to suspects as well that would be covered
by this Framework Decision. But we do believe that there is a
need for enhancing those protections and guarantees. That is why
the Commission has suggested, over three years ago now, a Framework
Decision on procedural guarantees, which I understand you have
had numerous opportunities to discuss as well in this framework.
That Framework Decision is not yet adopted. It has been quite
a difficult process, and it remains a difficult process. We do
hope that it will see the light of day one day, hopefully soon,
even though it might be reduced in its scope quite significantly
compared with the original Commission document. Therefore, this
document still, I think, would bring some added value to the ECHR
and to the rights provided in the ECHR, in particular with regard
to the right to interpretation and to translation, which are not
specifically spelt out, at least in the Convention, but they are
in the case law of the Court of Human Rights in Strasbourg. We
have actually made some references to those rights, that is to
have legal assistance and interpretation in the particular proposal
as well, so in this regard we do believe that there is a need
to go further than what is in the ECHR.
Q215 Chairman: My final question
really is in relation to Eurobail, coming back to where we began,
in political terms is that really history, a dead letter? Do you
think there is any chance that this proposal will be torn up and
there will be substituted for it some scheme like the original
Eurobail whereby the decisions are taken and if bail is refused
custody is in the executing state, the home state, rather than
decisions being taken and if bail is refused then pre-trial custody
takes place in the trial state?
Mr Csonka: It is difficult to say. Member States
are free to tear this document into pieces and replace it with
something better, but they may be happy with it as well. This
is a mutual recognition instrument which follows the path of the
previous mutual recognition instruments and we do believe that
there is to a very large extent commitment in the Council to continue
producing such mutual recognition instruments for areas which
are not covered. Supervision measures are not yet covered by any
instrument and I honestly do not see that Member States will change
the philosophy behind the cooperation mechanism, that is that
one Member State decides on one particular issue, which is whether
the offence is bailable or not, and then the other Member States
will take a decision on the rest. The philosophy is that there
is one decision taken and then it applies in the rest of the European
Union, that is in all the other Member States. It is a European
decision which has to be executed by all Member States. That is
basically the underlying concept of the common area of justice,
freedom and security.
Q216 Lord Lester of Herne Hill: In
the real world in Europe we have a situation where the European
Court of Human Rights is moving towards a backlog of probably
200,000 cases and it is choking on its case load. We have a situation
where among the 46 Member States of the Council of Europe they
include countries like the Russian Federation, which do not have
independent courts and which do not respect the rule of law or
the judgments of the European Court. Within the EU itself there
are some new members where one would have liked more effective
monitoring of safeguards and compliance with the Convention than
your Commission has the capacity to do at the moment. So when
you talk about the philosophy and when my Lord Chairman asks you
whether there are additional protections which can be built in,
unless those protections are built into the Framework Decision,
or something like it, we keep going back to the European Convention
as though this provides a really effective practical safeguard.
I suggest it is not sufficient and it is very important, I suggest,
that the Framework Decision, or whatever new instrument there
is, really does provide safeguards because the ones you have just
mentioned are not really additional safeguards to what is in the
Convention already, things like translation, and so on. They are
not really, they are implicit in Articles 5 and 6 in the case
law already. So in relation to that last question which was put
to you, which I do not think you have answered really, about sufficient
safeguards, is not the answer, "No, there are not sufficient
safeguards built into the Framework Decision and there are not
sufficient safeguards within the Convention system in the real
world"?
Mr Csonka: My Lord Chairman, I used to work
for the Council of Europe and I think the ECHR is a unique instrument
which created a unique mechanism of protection for citizens throughout
Europe. I think it has become, obviously, a victim of its own
success because they have so many applications and they take years,
very often, to decide on cases. That is one of the main reasons
why we have suggested that a Framework Decision for procedural
guarantees should be adopted from the beginning of the current
Hague Programme, that is to accompany mutual recognition instruments
with flanking measures, with measures which would reinforce that
mutual trust, the trust that any judge must have when issuing
a decision that this decision will be executed. But also, on the
other side, the executing judge must trust the issuing judge that
all the guarantees and the procedural safeguards which need to
surround a fair trial have been respected in this specific case.
Unfortunately, the Member States (at least some Member States)
did not consider this necessary and still there is a group of
Member States -
Q217 Chairman: Including the UK?
Mr Csonka: I have not said this, my Lord Chairman!
Q218 Chairman: We have examined it
ourselves.
Mr Csonka: They still believe that the ECHR
is sufficient and there is no need for a new instrument. If there
is one, it should only cover a very narrow scenario, which is
cross-border cases, that is cases in which a European Arrest Warrant
is issued or other mutual recognition instruments are being used.
We in the Commission have put forward our case quite consistently,
I believe, from the beginning, that is that these guarantees should
apply in domestic as well as in cross-border cases. We have not
been heard by all Member States. There is very large support for
our case in the Council, there are 21 Member States which support
our position and there are six Member States which do not. In
the third pillar decisions are taken by unanimity, so far.
Q219 Lord Mance: Just one question,
which really follows on Lord Lester's question about where one
finds the guarantees and the recognition of fundamental procedures.
Just going back to Articles 16 and 17, if there is an issue about
whether there is a breach, in other words if the suspect wants
to say, "I wasn't in breach," or, "I had some good
excuse," does he get a hearing to decide that issue in the
executing state or under 16(1), or in the issuing state under
17(1)? It is not stated and there is no reference to a hearing
at all.
Mr Csonka: Under 17, paragraph 4, the hearing
should take place in accordance with the law of the issuing state
and it should be a hearing by the issuing authority, which does
not mean that it would take place in the issuing state physically,
it would take place through a video-conference at the premises
of a court in the executing state as well.
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