Select Committee on European Scrutiny Thirty-Seventh Report



6. MUTUAL RECOGNITION OF FINANCIAL PENALTIES

 

(23392)

7654/02

Draft Framework Decision on the application of the principle of mutual recognition to financial penalties.

Legal base:

Articles 31(a) and 34(2)(b) EU; consultation; unanimity

   

Department:

Home Office

Basis of consideration:

EM of 2 May 2002; Minister's letter of 2 July 2002

Previous Committee Report:

HC 152-xxxii (2001-02), paragraph 7 (12 June 2002)

To be discussed in Council

No date fixed

Committee's assessment:

Legally and politically important

Committee's decision:

Not cleared; further information requested

 

Background

    1. We have considered earlier drafts of a proposal for the mutual recognition and enforcement of financial penalties on four sessions.[12] We were concerned that in the first version of the proposal there was no express reference to procedural unfairness as a ground for refusal of recognition, particularly in relation to the case where a penalty is imposed in a person's absence.
    2. When we considered a revised version on 12 June we therefore welcomed the provision in Article 4(2)(e) which provided that recognition may be refused where the criminal judgment was given in absentia and the defendant was not served with a document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so.[13] By contrast, the Minister took the view that this provision might be so general as to impair the effectiveness of the instrument.
    3. The Minister considered that mutual recognition is based on an assumption that it is for the issuing State to guarantee the rights of the defence, and to certify that it has done so, before sending a judgment to another State for execution. In these circumstances, the Minister argued, a certificate could be relied on without it becoming necessary for the courts of the other State to go behind that certificate.
    4. We did not find the Minister's arguments convincing. We noted that there was no requirement in the proposal that the certificate be signed by a person holding judicial office, so that the certificate was likely, in practice, to be reduced to a mere formality to be completed by administrative staff in the Member State concerned. We repeated our view that the provisions of Article 4(2)(e) were an essential minimum guarantee, which provided the basis for the principle of mutual recognition.
    5. On 12 June we also welcomed the attempts by the Minister to seek amendments to Article 4(2)(b) of the proposal, so that recognition could be refused in all cases where the foreign judgment is based on extra-territorial jurisdiction and the act is not an offence in the State in which recognition and enforcement is sought.
    6. The Minister's letter

    7. In his letter of 2 July, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) reports on further developments on the proposal and responds to the points we made on 12 June. The Minister reports that the UK has proposed the change to Article 4(2)(b) at Council working group level, but that the UK has not fully persuaded other Member States of the need to change the text.
    8. The Minister returns to the points we made on Article 4(2)(e) and the recognition and enforcement of penalties ordered in the absence of the defendant. He reaffirms the Government's view that in absentia penalties (and, indeed, any other penalty) should only be imposed following a fair procedure. The Minister expresses the Government's belief that it is for the issuing State to follow a fair procedure and to certify that it has done so before submitting the penalty to be executed in another Member State. He states that it should not be a matter for the executing State to re-examine the circumstances of the judgment reached in the issuing State, as the Minister believes it would be obliged to do under the provisions of Article 4(2)(e)[14]. The Minister explains that:
    9.       "This reflects the premise, underlying all mutual recognition initiatives, that although Member States' judicial systems differ, at their core they are all based on the same ECHR principles and respect the rule of law, and therefore Member States should respect one another's systems."

    10. The Minister then reports that there has been a further revision of the text, and that the revised language of Article 4(2)(e) supports the Government's view. It allows execution to be refused:
    11.       "If, according to the certificate provided for in Article 2, the person concerned did not appear personally or was not represented at the proceedings, and the certificate does not state that the person has been duly notified in accordance with the law of the executing state."

    12. The Minister explains that this revised provision meets the Government's concerns about the previous text as it affirms that the issuing State must properly notify the defendant of the proceedings and allows execution to be refused where the State does not give such an assurance.
    13. Nevertheless, the Minister also states that the Government believes that the relationship between the proposal and the duty in Article 6 EU to respect fundamental rights, as guaranteed by the European Convention on Human Rights, needs to be clarified. He explains that the Government has proposed an amendment to the Framework Decision, making it clear that nothing in it should have the effect of amending the obligation to these fundamental rights. He comments that:
    14.       "If agreed, this would ensure that, in a rare case where it was clear that the judgement in the issuing state was based on a flagrant violation of the defendant's ECHR rights, the executing state could refuse execution. We would expect such cases to be extremely rare, but the amendment we propose will provide a 'long stop' safeguard for the defendant."

    15. When we considered the revised version on 12 June, we considered it important that the court where enforcement is sought should be entitled to require a translation to be made of the judgment in any case where a defendant has been judged in his absence and claims that he did not have an adequate opportunity to defend himself. In reply, the Minister states that Article 13 of the revised text no longer allows the executing State to insist that the issuing State translate the judgment. The Minister considers that the certificate will "contain all the necessary information for the penalty to be executed" [15] and that, as this will be translated, the judgment itself will not often need to be translated. The Minister does not think that any special provision is needed for cases where a penalty is imposed in a person's absence, but he points out that the executing State will be free in any event to have the judgment translated.
    16. Conclusion

    17. We are dismayed to see that Article 4(2)(e) which, in its former version, would have allowed the court to refuse to enforce an in absentia judgement in cases where it considered that the defendant did not have an adequate opportunity to defend himself, has been replaced by reliance on a certificate which is not even required to be completed or verified by a holder of judicial office. We ask for an explanation from the Minister as to how this has come about.
    18. We believe the Minister is right to be concerned about the relationship between this proposal and the protection of the rights of the defendant under the European Convention on Human Rights. We look forward to more details of the proposed amendment, which we trust will not be modelled on the unsatisfactory pattern of the European Arrest Warrant, but will make clear that the proposal takes effect subject to the ECHR.
    19. We shall hold the document under scrutiny pending the Minister's reply and the deposit, with an Explanatory Memorandum, of a revised text.

 


12  (22622) 10710/01; HC 152-viii (2001-02), paragraph 2 (28 November 2001), HC 152-xii (2001-02), paragraph 5 (16 January 2002); (23164); HC 152-xx (2001-02), paragraph 7 (6 March 2002), HC 152-xxvii (2001-02), paragraph 4 (1 May 2002). Back

13  This follows closely the wording of Article 34(2) of Council Regulation (EC) No. 44/2001 on the recognition of civil judgments given in default of appearance. Back

14  In the then current version, this provided that recognition could be refused where the court considers "that the person concerned has not had an adequate opportunity to defend himself". Back

15  This may be so, but the certificate is of the 'tick-box' variety and will not show if there has in fact been any failing in bringing the proceedings to the notice of the defendant or if there is some other reason why the public policy of the forum State will prevent enforcement. Back

 
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