Legal base:	Articles 31(a) and 34(2)(b) EU; consultation; unanimity
Department:	Home Office
Basis of consideration:	EM of 27 March 2003
Previous Committee Report:	None; but see footnote 12
To be discussed in Council	JHA Council 8 May 2003
Committee's assessment:	Legally and politically important
Committee's decision:	Not cleared; further information requested

Background

  5.1  We have considered earlier drafts of a proposal for the mutual recognition and enforcement of financial penalties on numerous occasions.[12] We were concerned throughout about the absence of safeguards where fines and other penalties are imposed in the absence of the defendant and where it is sought to enforce those penalties in this country. We also questioned whether the proposal set out a proper basis for mutual recognition and enforcement, and, in particular, whether the rights of absent defendants were adequately protected. On 20 November we recommended the then current version for debate. A further version was considered by us on 11 December and we recommended that version too for debate in European Standing Committee B.

The debate in European Standing Committee B

  5.2  The debate took place on 29 January 2003. We had been concerned that the courts in the executing State were entitled to look only to the certificate accompanying the order imposing the penalty, and were effectively prevented from re-opening the question of whether a fair procedure had been followed in the issuing state. The certificate was a key document in the procedure, but it appeared to us to be inadequate in a number of respects. In the course of the debate, the Minister explained that:

"The exact contents of the certificate will still require to be negotiated once the main text of the instrument has been agreed. The version of the certificate before the Committee does not, therefore, represent its final form. ...

" It is important that the certificate contains all the information necessary for a proper judgment to be made on executing a fine. That final version will have to be negotiated in light of the changes that are still being made."

The revised proposal

  5.3  The revised proposal makes a number of amendments affecting its scope, but no change has been made to the certificate. A new Article 2(a) has been inserted. This contains a positive list of offences in respect of which a decision imposing a financial penalty is to be recognised and enforced in an executing State without requiring dual criminality. In other words, in respect of those listed offences, the executing State cannot refuse to enforce the penalty on the grounds that it has been imposed for an act which is not criminal in the executing State.

  5.4  The list of offences is the same as that in Article 2(2) of the European Arrest Warrant, but there are significant additions, namely road traffic offences and offences of 'smuggling', 'copyright infringements', 'acts of violence during sports events', 'criminal damage', 'theft' and offences established by Member States in order to give effect to instruments adopted under the EC Treaty or under Title VI of the EU Treaty and 'adopted at the time of the present Framework Decision'.[13] For offences which are not in the list, Member States may make enforcement subject to the condition that the decision imposing the penalty is related to conduct which would constitute an offence under the law of the executing State. A new provision in Article 4(2)(aa) permits a Member State to refuse to execute a financial penalty in those circumstances.

  5.5  Article 16 has been amended to remove the reference to dual criminality (since this is now dealt with in Articles 2(2) and 4(2)(aa)). The Article also provides that, for a period of five years, Member States may limit the application of the Framework Decision to decisions which have been made by a court. Article 16 also provides, in relation to penalties imposed on legal persons, that Member States may similarly limit the application of the Framework Decision for up to five years to penalties imposed for conduct in respect of which a European instrument provides for the liability of legal persons.

  5.6  As before, Article 4(2)(e) is concerned with the case where a penalty is imposed in the absence of the defendant. Under this provision, recognition and enforcement may be refused in two cases. The first, which is to apply to 'a written procedure', is the case where, according to the certificate, 'the person was not, in accordance with the law of the issuing State, informed personally or via a representative competent according to national law of his right to contest the case and of time limits of such a legal remedy'. The second is where, according to the certificate, the defendant did not appear personally, unless the certificate states that he 'was informed personally, or via a representative competent according to national law, of the proceedings in accordance with the law of the issuing State' or that he has indicated that he does not contest the case.

  5.7  The certificate referred to in Article 2 has remained unchanged. It contains a section concerned with the notification of the proceedings to the defendant, but it requires only that two boxes be ticked. The first is to confirm that the sentenced person 'has been duly notified' of the proceedings against him, and the second that he has been 'duly notified' on 'any procedures and deadlines for appeal'.

The Government's view

  5.8  In his Explanatory Memorandum of 27 March 2003 the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) describes the new document as making a number of changes and says that 'overall the Government regards it as an improvement'. In relation to the positive list of offences in Article 2(a), the Minister indicates that 'this has the advantage of legal certainty and transparency' and that the Government supports the inclusion of this Article. The Minister indicates that the Government also supports the inclusion of Article 4(2)(aa) allowing a Member State to refuse to enforce a penalty if the decision relates to conduct which is not criminal under its own law, and the offence is not included in the list in the new Article 2(a).

  5.9  The Minister explains that the Government can also accept the provisions of Article 16. The Minister comments that, 'although this is not ideal, these time limited exceptions are acceptable as part of the overall compromise which will, in the medium term, fulfil the UK's principal objective of limiting dual criminality requirements as much as possible'.

Our assessment of the proposal

  5.10  We still consider that the proposal gives inadequate protection for persons who have had a penalty imposed against them in their absence, and that this is particularly serious in an instrument which deals with proceedings which would be regarded as criminal for the purposes of the right to a fair trial under Article 6 of the European Convention on Human Rights.

  5.11  In this regard, we draw attention to the seriousness of the offences listed in the new Article 2(a). It follows from the terms of that Article (and Article 3 which provides for the recognition and execution of decisions) that a conviction for the offences of, for example, corruption or fraud would fall to be recognised in the executing State even though it may be far from clear that the defendant has been made properly aware of the charges made against him in the issuing State.

  5.12  In view of the outcome of the debate in European Standing Committee B, we do not seek to re-open the question of principle of the recognition and enforcement of decisions on the basis provided by the Framework Decision. However, it was made clear by the Minister in the debate that the terms of the certificate were not in their final form and remained to be negotiated. We therefore draw attention to the inadequacy of the draft certificate as now attached to the proposal.

  5.13  The certificate appears to us to be of central importance to the proposed arrangements for mutual recognition and enforcement. It is the only document which is required to be produced in the language of the court before which enforcement is sought. (We note that the Minister did not accept our suggestion that, in cases where a judgment is given in the absence of the defendant, the court in the enforcing State should be entitled to require the issuing State to provide a translation of the judgment. We recall that, in his letter to us of 2 July 2002, the Minister stated that the certificate 'will contain all the necessary information for the penalty to be executed'). Not only is the certificate the only document which the enforcing court will be entitled to see in its own language, it is likely that it will be the only evidence to show whether or not the defendant has been properly notified of the proceedings and has been able to arrange for his defence.

  5.14  In these circumstances, we consider that a certificate of a 'tick-box' type is wholly inadequate to prevent the risk of injustice to defendants who are convicted in their absence. As the certificate now stands, it requires no more than a tick in two boxes to show that the defendant has been 'duly notified' of 'the proceedings against him' and of 'any procedures and deadlines for appeal'. In its present form, it does not certify that the defendant was 'informed personally' or that he 'has indicated' that he 'does not contest the case'. It does not therefore provide the court in the enforcing State even with the information needed for that court to decide not to recognise the decision in accordance with Article 4(2)(e).

  5.15  In any event, we recall that Article 6(3) of the European Convention on Human Rights requires that everyone charged with a criminal offence has the right to be informed 'promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him'. Article 6(3) gives a defendant the right to have 'adequate time and facilities for the preparation of his defence'. As matters now stand, the certificate is silent on the question of whether a person has been informed in his own language, or one he can understand, and is silent on whether he has had adequate time and facilities to prepare his defence.

  5.16  To meet this deficiency, we consider that the certificate should require a judicial officer in the issuing State, not merely to tick a box, but to make a positive statement setting out the grounds for his belief that the minimum rights of the defendant under Article 6(3) ECHR have been respected. This would not be conclusive of the question before the issuing court, but it would reduce the risk of a court in the executing State (e.g. the United Kingdom) acting in breach of the ECHR by enforcing an order which has been made in violation of the defendant's rights under Article 6.

Conclusion

  5.17  We remain deeply concerned about the inadequate protection for the rights of defendants in this measure, which, as we have pointed out before, provides for the near-automatic enforcement of penalties which may not even have been imposed by a court.

  5.18  Given the fact that the principle of this measure has been debated in European Standing Committee B, we have concentrated our attention on the certificate which will accompany the order imposing the financial penalty. We ask the Minister to confirm that he will seek the amendment of the certificate to make it correspond to the revised version of Article 4(2)(e) of the proposal. We also ask him for his response to the criticisms of the existing certificate we make in this Report. We also ask if he will seek an amendment along the lines we suggest to ensure that there is no risk of a decision being enforced in this country against a defendant whose rights under Article 6 ECHR have not been respected in the issuing State.

  5.19  In the meantime, we shall hold the document under scrutiny.

13  Presumably, what is intended here is that the instruments should have been adopted by the time of the present Framework Decision. Back