Explanatory Memorandum to COM(2006)468 - European supervision order in pre-trial procedures between Member States of the EU - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2006)468 - European supervision order in pre-trial procedures between Member States of the EU. |
|---|---|
| source | COM(2006)468  |
| date | 29-08-2006 |
One of the most important objectives of the European Union is to develop the Union as an area of freedom, security and justice in which the free movement of persons is assured.
According to both the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and general principles of law, pre-trial detention shall be regarded as an exceptional measure and the widest possible use should be made of non-custodial supervision measures.
At present, however, EU citizens, who are not residents in the territory of the Member State where they are suspected of having committed a criminal offence are sometimes – mainly owing to the lack of community ties and the risk of flight - kept in pre-trial detention or perhaps subject to a long-term non custodial supervision measure in a (for them) foreign environment. A suspect who is resident in the country where he or she is suspected of having committed an offence would in a similar situation often benefit from a less coercive supervision measure, such as reporting to the police or travel prohibition.
Typically a foreign suspect will be in a more vulnerable position than a person who normally is resident in the country. Apart from being more or less cut off from contacts with family and friends, there is a clear risk that a non-resident suspect in such a situation could lose his or her job as a coercive measure (e.g. travel prohibition) that the judicial authority of the trial State has imposed on the suspect would stop this person from going back to his or her country of normal residence. Generally speaking, there is a clear risk of unequal treatment between the two categories which can also be seen as an obstacle to the free movement of persons in the Union.
There are not only costs to the suspect involved. Keeping persons in pre-trial detention has also an important cost implication for the public authorities involved. Moreover, the excessive or unnecessary use and length of pre-trial detention contribute to the phenomenon of prison overcrowding, which continues to blight penitentiary systems across Europe and seriously undermines improvements in conditions of detention.
The problem is that the different alternatives to pre-trial detention and other pre-trial supervision measures (e.g. reporting to the police) cannot presently be transposed or transferred across borders as States do not recognise foreign judicial decisions in these matters. This means that the implementation of the right to liberty and the presumption of innocence in the European Union seen as a whole still must be considered as incomplete.
The mandate for presenting this proposal for a Framework Decision on the European supervision order in pre-trial procedures between Member States of the European Union is clearly indicated in the “Programme of measures to implement the principle of mutual recognition of decisions in criminal matters (the “mutual recognition programme”)” of November 2000 (measure 10). i The Tampere European Council (1999) had declared that enhanced mutual recognition of judicial decisions would facilitate co-operation between authorities and the judicial protection of individual rights. It therefore endorsed the principle of mutual recognition as the cornerstone of judicial cooperation in both civil and criminal matters, which should also apply to pre-trial orders. A proposal on mutual recognition of non-custodial pre-trial supervision measures is in the work programme of the Commission for 2005 (2005/JLS/035) and set as a priority in the Commission communication i on the Hague Programme (2004) as well as the Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union (2005). i
The mutual recognition programme mentioned that certain aspects of mutual recognition had not yet been addressed in an international context and in particular those concerning pre-trial orders. This is still true as regards mutual recognition of pre-trial supervision measures.
However, several studies point out serious problems with pre-trial detention in the European Union. In its Report on the situation of fundamental rights in the European Union and its Member States in 2002, the EU network of independent experts in fundamental rights referred to statistics of the Council of Europe that show high numbers of pre-trial detainees in several Member States. Moreover, the replies to a questionnaire on statistical data on the prison population, including pre-trial detention that the Commission drew up in 2003 at the request of the Italian Presidency, show that there are considerable differences between the EU Member States both as regards the rate of pre-trial detention per 100 000 inhabitants and the proportion of own nationals in relation to foreign detainees. There was an increasing general tendency regarding the use of pre-trial detention.
In this context, it should also be noted that the European Parliament in its Resolutions on the situation concerning basic rights in the European Union urged the Commission to take action regarding various issues in the area of pre-trial detention and alternatives to such detention. In 2001, the European Parliament required Member States to step up their efforts in this area by restricting detention as far as possible and completely avoiding taking children into custody save in absolutely exceptional cases. The European Parliament called on the Council to adopt a framework decision on common standards for procedural law, for instance on rules covering pre-trial orders, so as to guarantee a common level of fundamental rights protection throughout the EU. This demand was reiterated the following year. In its resolution of 2002, the European Parliament considered it essential that Member States examined detention procedures in order to ensure that human rights are not violated, that detention periods are not unnecessarily long and that grounds for detention are reviewed regularly.
In its publication “The CPT standards” (2003), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT Committee) of the Council of Europe underlined that prison overcrowding is often particularly acute in pre-trial detention establishments. In such circumstances, the CPT Committee noted that throwing increasing amounts of money at the prison estate does not offer a solution. Instead, current law and practice in relation to custody pending trial needed to be reviewed. The problem was sufficiently serious as to call for cooperation at European level.
As already mentioned, there are presently no international instruments that specifically allow the transfer of pre-trial supervision measures from one Member State to another.
However, the introduction of a mutual recognition scheme for pre-trial supervision measures at European Union level must evidently be considered in the light of the legal framework that governs pre-trial detention in general. This follows also from the requirements of Article 6 of the Treaty on European Union (TEU).
All the EU Member States have ratified both the ECHR and the International Covenant on Civil and Political Rights (ICCPR). As such, they must respect the right to liberty, the presumption of innocence, the legal grounds for detention for which those instruments make provision, the types of authorities entitled to take decisions on detention, the right to challenge the legality of detention before a court and the approximate time limits applying to the various stages of pre-trial proceedings.
These international instruments also provide that a person may be deprived of his or her liberty on a reasonable suspicion of having committed a criminal offence and that there must be one or several special grounds for detention relating to the dangers of re-offending, suppression of evidence and flight. In addition, release from pre-trial detention may be conditioned by guarantees to appear for trial.
However, it should be noted that the international instruments do not contain any provisions on the threshold for pre-trial detention linked to the punishment available for the offence in question. This threshold follows the national law of the Member States, which means that it varies from Member State to Member State. In some Member States the penalty for the offence in question is not a factor that is taken into account when making remand decisions. Some Member States allow pre-trial detention irrespective of the penalty for the offence when the suspect has no fixed abode in the territory and there is a risk that this person will abscond, even though the general threshold for pre-trial detention might be much higher.
In some Member States, the threshold for non-custodial pre-trial supervision measures is lower than for pre-trial detention. However, the same general principles apply to non-custodial measures as to pre-trial detention. The principle of proportionality implies, e.g., that coercive measures only should be used when this is absolutely necessary and only for as long as required.
It can finally be noted that the ECHR does not contain many provisions that even indirectly concern extradition and other cross-border issues. An example is Article 5 i f ECHR, which provides that a person may be arrested with a view to deportation or extradition. An explanation for this is that the ECHR was not drafted in order to create a common judicial area for the Member States of the Council of Europe, but rather to set minimum standards applicable to each of the national legal systems.
The general aim of this proposal for a Council Framework Decision is to reinforce the right to liberty and the presumption of innocence in the European Union seen as a whole and promote equal treatment of all citizens in the common area of freedom, security and justice.
This aim is consistent with The Hague Programme on strengthening freedom, security and justice in the European Union, approved by the European Council on 5 November 2004. The Hague Programme mentions, i.a., that freedom and justice should henceforth be considered indivisible within the Union as a whole.
It should be underlined that the present proposal for a Framework Decision is a part of the mutual recognition programme in criminal matters, which according to the Hague Programme, should be completed. The mutual recognition programme lists a number of specific recognition measures. The measures of this programme cannot be separated from one another, but are designed to interact with one another. In particular, the present proposal should be seen in connection with the Commission proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union (2004) i, which, i.a., contains provisions on the right to legal advice and interpretation.
Consultation of interested parties
The first step in the consultation process was to draw up a questionnaire in order to identify possible obstacles to cooperation between Member States in the area of pre-trial detention and alternatives to such detention. The questions concerned the legitimate grounds for pre-trial detention - i.a., the threshold for remanding a suspect in custody (linked to the penalty for the offence); whether there were any maximum time limits for pre-trial detention; the grounds for pre-trial detention (degree of suspicion and the “special grounds”); whether there was a presumption in favour of remanding suspects into custody for serious offences; the different “alternative” measures to pre-trial detention; whether a breach of an obligation under a pre-trial supervision measure constituted a criminal offence; the competent legal authorities in this area; and special categories and treatment of detainees. All the then 15 EU Member States submitted replies to the questionnaire. The replies were compiled in a document that was distributed to the Member States.
On the basis of the replies to the questionnaire the Commission wrote a Discussion Paper. This Paper, which was sent to a number of experts in this area in the EU Member States (and the then acceding countries), proposes, i.a., the introduction of a so-called “European order to report to an authority” as a non-custodial pre-trial supervision measure at European Union level. The Discussion Paper further considers the limits and possibilities for taking action in the field of pre-trial detention in general.
In order to explore the scope of a future instrument, a first experts’ meeting was held in Brussels on 12 May 2003. Several experts, including representatives of NGOs, had been invited on an individual basis, while other experts represented their Member States. Eurojust was also represented. At this meeting, different aspects of pre-trial detention and alternatives to such detention were discussed, in particular the Commission’s thinking on the European order to report. The outcome of the meeting and the discussions which followed was that work should focus on mutual recognition of non-custodial pre-trial supervision measures and leave out questions related to procedural safeguards – covered by a separate Green Paper – and detention conditions.
On 17 August 2004, the Commission adopted the Green Paper on mutual recognition of non-custodial pre-trial supervision measures i and the associated Commission Staff Working Paper i, which take fully account of the outcome of the first (preparatory) experts’ meeting as well as the information provided in the replies to the first questionnaire (mentioned above). A summary of the replies concerning, i.a., supervision measures (alternatives to pre-trial detention) and applicable penalties in the event of non-compliance (as required under measure 9 of the mutual recognition programme) is in annex 2 to the Commission Staff Working Paper associated with the Green Paper. Annex 3 of the Commission Staff Working Paper also contains a summary of the replies of the Member States and the then 10 candidate countries to a questionnaire on statistical data on the prison population, including pre-trial detention, which the Commission drew up in 2003 at the request of the Italian Presidency (mentioned above).
When drafting the Green Paper, the Commission also had access to documents of the Committee of Experts on remand in custody and its implications for the management of penal institutions (PC-DP) of the Council of Europe (where the Commission participated as an observer), in particular a questionnaire on the law and practice of Member States regarding remand in custody, including an analysis of the replies to this questionnaire.
The questions posed in the Green Paper were discussed in a second experts’ meeting on 4 – 5 November 2004. After having considered the written responses i to the Green Paper, the Commission organised a third experts’ meeting on 8 April 2005. In order to take matters forward, the Commission services had prepared a working document, which the participants of the meeting (representatives of the Member States, NGOs, international organisations, judicial practitioners) discussed. Most Member States welcomed the idea of applying the mutual recognition principle to non-custodial pre-trial supervision measures. Different opinions were expressed as regards the scope of the instrument (whether it should extend to less serious offences not covered by the Framework Decision on the European arrest warrant etc.), the grounds for refusal, whether the issuing or the executing Member State should have the main influence on the supervision of the person and on the pre-trial transfer procedure of the person back to the trial State (whether the European arrest warrant should be used or a specific mechanism for the envisaged instrument should be introduced).
However, a small number of Member States questioned the added value of a new instrument on this issue at European level. They were of the opinion that such an instrument only would apply to a very restricted number of persons.
It was therefore decided to consult an external contractor in order to provide the Commission with further statistical data for its assessment of the question whether a Framework Decision in this area would constitute an added value. These data are available in the Impact Assessment, annexed to this proposal
(europa.eu.int/comm/dgs/justice_home/evaluation).
In addition, the following five policy options (identified by the Commission services) were assessed by the external contractor in line with the Commission’s guidelines and the handbook on impact assessment:
1. Do nothing (Status quo): Since, at present, Member States do not recognise foreign judicial decisions in respect of supervision measures, reliance on the status quo would only regulate (and even then to a limited extent only) the return of an accused person to the trial State via a European arrest warrant. No supervision of the person would take place. The scope and the grounds for refusal of the Framework Decision on the European arrest warrant would apply.
2. New legislative instrument for mutual recognition of pre-trial supervision measures: Member States would mutually recognise pre-trial supervision measures and the suspect would be subject to such a measure in his or her habitual Member State of residence in stead of being in pre-trial detention or subject to a less severe coercive measure in the trial State. The scope of the instrument could be extended to cover also less serious offences (below the threshold of one year in the European arrest warrant). The grounds for refusal could be more limited than in the European arrest warrant. In addition this instrument would contain a specific return mechanism to bring an uncooperative person to the trial State (in case an in absentia judgment is not possible). Time limits for return would be very short.
3. New legislative instrument for mutual recognition of pre-trial supervision measures and extension of the European arrest warrant to cover all offences: This option would contain the same elements as option 2. The only difference would be that it would not contain a specific return mechanism. An uncooperative person would have to be transferred back to the trial State in accordance with the provisions of the European arrest warrant. In order to cover less serious offences (below the above-mentioned threshold of the European arrest warrant), a new category of “enforceable offence” would have to be created (“fugitive from Justice”, e.g. breach of an obligation under a supervision measure or refusal not to come to the trial if this is required).
4. Co-operation programme: A limited number of Member States would run a pilot cooperation programme in the area of pre-trial procedures.
5. Eurobail: This model is based on a division of functions between the trial court and the court of the suspect’s country of residence. The trial court makes a preliminary assessment whether the offence is “bailable”. If the answer is yes, the suspect is sent back to his or her country of residence, where the court makes the final decision on the provisional release. The State of residence is responsible for sending the person back to the trial State (if required).
The preferred policy option is nr 2): “new legislative instrument for mutual recognition of pre-trial supervision measures” (incorporating a specific return mechanism). This option would ensure that EU non-residents are not discriminated against in the pre-trial process in the trial State. It would extend the right to liberty and the presumption of innocence to the Union seen as a whole, be compatible with the general principles in the area, in particular the principle of proportionality, and would reduce costs for detention.
For further details, see the report of the external contractor and the Impact Assessment:
europa.eu.int/comm/dgs/justice_home/evaluation
Contents
- Legal elements of the proposal
- Budgetary implication
- Grounds for and objectives of the proposal
- General context
- Existing provisions in the area of the proposal
- Consistency with other policies and objectives of the Union
- 2. Consultation of interested parties and impact assessment
- Impact assessment
- Summary of the proposed action
- Legal basis
- Choice of instrument
The European supervision order is a decision issued by a judicial authority (i.e. a court, a judge, an investigating magistrate or a public prosecutor) in one Member State that must be recognised by a competent authority in another Member State. The aim is to let the suspect benefit from a pre-trial supervision measure in his or her natural environment (residence). As regards the threshold, the European supervision order is an option whenever there is a possibility under the national law of the issuing Member State to order that a suspect be remanded in custody, irrespective of the fact that the thresholds vary between Member States. However, 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 (e.g. travel prohibition) than pre-trial detention are allowed, i.e. where the threshold may be lower than for remand in custody.
The proposal for a Framework Decision does not oblige the judicial authority to issue a European supervision order. It “may” do so. This wording indicates that it is for the issuing authority to decide whether it wants to make use of this possibility. Although the suspect may request that a European supervision order be issued, he or she has strictly speaking no “right” to it. However, the issuing authority must always, as a general principle, assess the elements of the case in the light of the right to liberty, the presumption of innocence and the principle of proportionality. Benefiting from a pre-trial supervision in one’s State of normal residence is probably often seen as less cumbersome than being subject to a supervision measure in the State where the alleged offence was committed, not to speak of being in pre-trial detention in that State.
The European supervision order would impose one or more obligations on the suspect aimed at reducing the three “classical” dangers that allow pre-trial detention under national law, i.e. the dangers of suppression of evidence and re-offending and, in particular, the danger of flight. The obligations correspond to a certain extent to the recommendations of the Council of Europe concerning custody pending trial. The obligations that may be imposed by the issuing authority are all 'optional', except (i) the obligation on the suspect to make himself or herself available for the purpose of receiving summons for his or her trial (however, where a judgment in absentia under the law of the issuing State is possible, the suspect may not be required to attend the trial) and (ii) the obligation not to obstruct the course of justice or engage in criminal activity. The other ("optional") obligations correspond too the recommendations of the Council of Europe and national law (e.g. travel prohibition, reporting to the police, curfew and house arrest).
The Member State of normal residence of the suspect is responsible for the supervision of the suspect and is obliged to report any breaches to the issuing judicial authority, which can decide on the arrest and transfer of the suspect to the issuing State if this is considered necessary. Strict time limits apply. Before such a decision is taken, the suspect has the right to be heard by the issuing authority. This requirement may be satisfied through the use of video links i between the issuing and the executing States. The transfer procedure is proportionate to the aim of the proposal, i.e. to reduce pre-trial detention as far as possible and is therefore compatible with the requirements of Article 5 i ECHR (in particular paragraph b).
The proposal is in principle based on an obligation for the State of normal residence of the suspect to execute a European supervision order issued by the trial State. There are, however, some, although limited grounds for refusal that may be invoked by the executing State.
The proposal is further based on direct contacts between the issuing and executing authorities.
Article 31(1)(a) and (c) and Article 34(2)(b) TEU
Subsidiarity and proportionality principles
Member States do not, at present, recognise foreign judicial decisions in respect of non-custodial pre-trial supervision measures. Therefore, in the absence of any common action and in order for there to be any progress made in terms of mutual recognition, Member States would have to act unilaterally to make provision in their national law to recognise such measures. It is considered that this approach would be unlikely to succeed since it would require uniformity of national provisions across 25 Member States acting separately. Such uniformity (in terms of both substance and temporal application) would be more readily achievable by common action in the form of a Council Framework Decision. This Framework Decision does not go beyond what is necessary to achieve that objective. It is also without prejudice to Article 33 TEU.
A Framework Decision based on Article 34(2)(b) TEU.
The implementation of the proposed Framework Decision would entail no additional operational expenditure to be charged to the budgets of the Member States or to the budget of the European Union.