THE STANDING OF VICTIMS IN CRIMINAL PROCEEDINGS
Amended draft Framework Decision on the standing of victims in criminal proceedings.
||Articles 31 and 34(2) EU; consultation; unanimity
|Basis of consideration:
||Minister's letter of 27 February 2001 and EM of 30 November 2000
|Previous Committee Report:
||HC 28-i (2000-01), paragraph 2 (13 December 2000)
|To be discussed in Council:
||15 and 16 March 2001
||Legally and politically important
13.1 The Tampere European Council agreed
that minimum standards should be established for the protection
of victims of crime and national programmes set up for their assistance.
We considered an earlier version of the proposal on 26 July 2000.
13.2 We considered the amended text of the
draft Framework Decision on 13 December 2000. We noted that the
Government supported the measure, as the amended text appeared
to meet the Government's earlier concerns. However, we had serious
questions about the proposed legal base. We noted that none of
the areas listed in Article 31 EU covered the provisions in the
Framework Decision, and we remained to be convinced that the list
was not exhaustive. We also noted that the European Parliament's
Legal Affairs Committee had raised a similar objection, and had
suggested that the measure would be more appropriately presented
as a Recommendation.
The Minister's letter of 27 February 2001
13.3 The Minister of State at the Home Office
(Mrs Barbara Roche) has replied to our concerns in the form of
a letter addressed to the Chairman of the House of Lords Select
Committee on the European Union, but copied to us.
13.4 The Minister comments on the question
of the legal base as follows:
"As a matter of policy,
we will consistently argue that the legal base for Third Pillar
instruments must be found in Articles 30, 31, or 32 TEU.
"Although we accept your point concerning the
risks of a too-extensive interpretation of Title VI TEU, our view
is that a legal base of Article 31 TEU is in fact defensible in
the case of the present measure.
"It is true that Article 29 alone, in so far
as it merely sets out the objective of Title VI, cannot in itself
be regarded as a sufficient legal base, and that Article 29 in
any event makes it clear that the objective stated in its first
paragraph is to be achieved by the means set out in the second
paragraph. In particular, the objective may be achieved by preventing
and combatting crime through 'closer cooperation between judicial
and other competent authorities of the Member States in accordance
with provisions of Articles 31(a) to (d)', and 'approximation,
where necessary, of rules on criminal matters in the Member States,
in accordance with the provisions of Article 31(e)'.
"At first sight, that appears to suggest that,
where Article 31 is relied upon, the competence of the Union is
limited to the particular matters listed in points (a) to (e)
of Article 31; and we accept that those matters do indeed provide
the core examples of the kinds of action to be taken. However,
Article 31 begins by stating that common action on judicial cooperation
'shall include' the matters mentioned in (a) to (e). If the English
version of the Treaty is taken in isolation, the term 'include'
might be considered to be ambiguous, it being unclear whether
(a) to (e) comprises an exhaustive or illustrative list. However,
that ambiguity is resolved by the French version of Article 31,
which makes it clear that the list is indeed illustrative: 'L'action
en commun dans le domaine de la coopération judiciaire
en matière pénale vise entre autres à....'.
Furthermore, it can be seen from Article 29 (third tiret)
and Article 31(e) that the concept of 'judicial cooperation' under
Article 31 extends to the approximation of 'rules on criminal
matters', and not merely to procedural cooperation between authorities.
"In our view, having regard to the Tampere conclusions,
the Council is entitled to take the view that the combat of crime
through the type of measures expressly listed in Article 31 should
be supplemented, in this case, by measures which focus on the
position of the victim of the crime. The measures proposed include
both approximation of rules on criminal matters and elements of
cooperation between authorities.
"As I have said, the Government will continue
to ensure that the correct legal base is cited for Third Pillar
instruments. We will remain vigilant to ensure that the Treaty
is not used for purposes for which it is not intended. We do not
consider that this case undermines that approach in any way."
13.5 It would have been courteous of
the Minister to have replied to us direct.
13.6 Nevertheless, we found her letter
to be a helpful exposition of the arguments in favour of the use
of Article 31 of the Treaty on the European Union as the legal
base for this measure. We recognise the force of the argument
that the French text of Article 31 shows the list of activities
to be illustrative rather than exhaustive, and does not contain
the apparent ambiguity of the English text.
13.7 However, we remain doubtful as to
whether Article 31 should be interpreted in this extensive way.
As the Minister herself points out, the objective set out in the
first paragraph of Article 29 is to be achieved by the means set
out in the second paragraph, and this refers to the activities
listed in Article 31(a) to (e). By necessary implication, this
appears to rule out activities which are not so listed in Article
31(a) to (e). The Minister's argument would have been more convincing
if Article 29 had simply referred to Article 31 at large, but
it does not.
13.8 We acknowledge the scope for argument
on this issue either way. The measure is supported by the Government
and other Member States and is evidently beneficial to the victims
of crime, so that little purpose would be served by withholding
clearance at this late stage. Therefore we clear the document.
However, we trust that the Minister will take note of the doubts
we have expressed, and will ensure that this case is not used
as a precedent for an extensive interpretation of Article 31 in
33 HC 23-xxvi (1999-2000), paragraph 7. Back