It will be helpful to explain briefly the background to this proposal. The association agreement of 17 May 1999 between the EU and Norway and Iceland concerned the latter's association with the implementation, application and development of the Schengen acquis and it provides the basis for the present proposal.
In accordance with the association agreement it is considered necessary to associate Iceland and Norway with the application of the simplified extradition convention, ie the 1995 EU extradition convention and the 1996 EU extradition convention, which constitutes a development of the Schengen acquis and which falls within the scope of the association agreement with Norway and Iceland.
As mentioned, the draft Council decision proposes to apply as between the EU and Iceland and Norway those parts of the two EU extradition conventions which are deemed to be building on the Schengen acquis. This determination is a question of fact and law undertaken by the Council on the basis of advice from the Council’s legal services. The relevant Schengen provisions relating to extradition are contained in chapter 4, Articles 59-66, of the Schengen Convention. These were incorporated into the framework of the European Union when the Treaty of Amsterdam entered into force on 1 May 1999.
I will now give a brief summary of Ireland's position in relation to Schengen. There was an EU decision in February 2002 to accept Ireland's application to participate in certain parts of the Schengen acquis, including the extradition elements. The Schengen application was the subject of motions under Article 29.4.6 of the Constitution which were passed by both Houses of the Oireachtas in February 2002.
Before I turn to the main provisions of the draft Council decision I draw the committee's attention to the fact that Ireland has already passed legislation, the Extradition (European Union Conventions) Act 2001, which provides for the operation of the two conventions between Ireland and the other EU member states. The purpose of the present draft Council decision and the motions before this committee are to clear the way for the widening of the scope of the application of the relevant parts of these two conventions, to include Iceland and Norway. The main provisions of the draft Council decision are contained in Article 1, dealing with the 1995 convention, and Article 2, dealing with the 1996 convention.
All of the 1995 convention is deemed to be a Schengen building measure. The 1995 convention on simplified extradition procedures between the member states of the European Union provides for a simplified procedure where the person sought consents to his or her surrender - in our implementing legislation, the Extradition (European Union Conventions) Act 2001 - such consent to be given before the High Court which must be satisfied that the consent is given voluntarily and in full awareness of the consequences. Once consent is given and, where the person claimed is a citizen of Ireland, the Minister for Justice, Equality and Law Reform agrees, the person will be extradited. A person who has consented to his or her surrender may also renounce his or her right to the Specialty Rule, the rule whereby a person extradited for one offence may not be tried for other offences committed before his or her extradition. Such renunciation would also have to be recorded before the High Court. The consent of the Minister for Justice, Equality and Law Reform is also required. The 1996 convention contains 20 articles. Articles 2, 6, 8, 9, 13 are deemed to be Schengen building measures, as well as Article 1 of the 1996 convention to the extent that it refers to these other articles.
The purpose of the 1996 convention relating to extradition between member states of the European Union is to improve judicial co-operation between the EU states in the extradition area by extending the range of extraditable offences and improving and simplifying procedures in a number of respects. The convention lowers the threshold in relation to extraditable offences, makes fiscal offences extraditable between member states, makes changes to the speciality rule and provides for the extradition of member states' own nationals. There are also a number of procedural changes designating a central authority for dealing with extradition requests and the transmission of documents by fax as well as providing for simpler certification procedures for documents.
I can explain in fuller detail those articles of the 1996 convention that are deemed to be Schengen building if the committee requires. I do not propose to do so now.
The draft framework decision on combating corruption in the private sector was an initiative of the Danish Presidency, published in June 2002. By decision of 9 October 2002 (S28956), the Government authorised me to (i) give political agreement to the draft framework decision on combating corruption in the private sector, such agreement to be subject to parliamentary scrutiny and (ii) to place a unilateral statement in the Council minutes to the effect that the definition of "breach of duties" as used in the draft framework decision does not include "whistle-blowing activities". Ireland maintains a parliamentary scrutiny reservation on the draft framework decision pending the completion of these procedures.
The draft framework decision is primarily based on the joint action of 22 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on corruption in the private sector, which it will repeal. The draft framework decision seeks to oblige member states, more strongly than the joint action did, to meet the obligations already agreed in 1998 in their national law as well as providing for several additional obligations. The obligations which arise under the draft framework decision relate both to the scope of offences and to the penalties arising in relation to those offences and encompasses both legal persons as well as individuals. It requires member states to criminalise active and passive corruption, whether occurring within the profit or non-profit areas of the private sector. Accordingly, member states must criminalise conduct such as promising, offering or giving an undue advantage to a person who directs or works for a private sector entity, whether directly to the person or through an intermediary, for the purpose of either that person or a third party performing or refraining from performing any act, in breach of his or her duties. This is designed to make sure that trade within the European Union is conducted on fair rules in which bribery and corruption does not really play a part. I can elaborate on the individual provisions to a greater extent but I think the members will have the drift of what I am saying.
Article 3 of the draft framework decision requires member states to criminalise the instigation, aiding and abetting of the offences set out in Article 2. As regards penalties and other sanctions, Article 4, in addition to the usual formula requiring member states to provide effective, proportionate and dissuasive penalties, proceeds to set out a range of penalty levels in relation to the maximum level which member states' legislation must provide, or obviously, may exceed. The range in this instance is of a maximum of between at least one and three years' imprisonment. Under Irish law that is something which would be well exceeded in any event.
Article 5 extends the provisions of the instrument to legal persons, that is persons who are incorporated by statute under company law which would become liable for offences committed on their behalf by a person holding a leading position within the company.
Article 6 echoes Article 4 in requiring proportionate and dissuasive penalties. Focusing on a legal person convicted where an offence has been committed on its behalf by a person holding a leading position in it, Article 6 (1) provides that the penalty imposed on the legal person need not be criminal in nature. That is mainly for civil law countries, so that they can oppose administrative crimes. The remaining Articles 7 to 11 deal with the usual concluding provisions - jurisdiction, repeal, implementation, territorial application and entry into force.
I will move on to the third framework decision which relates to orders freezing property or evidence. This instrument is intended to apply to pre-trial orders to enable competent authorities to quickly secure evidence or property which is easily movable. The original proposal also included provisions for freezing orders with a view to restitution of property to its rightful owner but it has since been decided that this element of the proposal will be considered later under a separate instrument. In accordance with the mechanism of mutual recognition, which broadly speaking is an alternative strategy to harmonisation and making the law uniform throughout Europe, the pre-trial order to be executed in the executing state will be the foreign order. The judicial authority in the executing member state, that is Ireland in the case of a foreign request, will recognise and execute the foreign order in the same way as for a domestic freezing order. The foreign order will be accompanied by a certificate which certifies that the freezing order comes within the scope of the instrument. Article 1 of the draft framework decision sets out the objective and Article 2 the definitions applicable for the purposes of the framework decision. Article 3 sets out a list of offences with a maximum of at least a three year custodial sentence to which the framework decision will apply without invoking dual criminality. That is the rule which says that it must be criminal both in the requesting state and in the executing state. The provisions of the framework decision can also be applied for any other offence where dual criminality can be invoked. The list of offences are the same as those agreed for the framework decision on the European arrest warrant.
Article 4 provides for the direct transmission of the freezing order from the issuing judicial authority to the executing judicial authority, accompanied by a certificate, provided for in Article 9. Provision is included for Ireland and the United Kingdom, who do not have inquiring magistrates or judiciary who are involved in the investigation of offences, by way of declaration to declare that the freezing order and accompanying certificate must be sent via a central authority or authorities rather than directly between judicial authorities.
Article 5 provides that the executing state shall recognise the freezing order without further formality and take the necessary measures for its immediate execution in the same way as it would for a domestic freezing order, unless one of the grounds for non-execution or non-recognition set out in Article 7 or one of the grounds for postponement in Article 8 is applicable. The grounds for non-execution or non-recognition set out in Article 7 are that the certificate is not produced, is incomplete or manifestly does not correspond to the freezing order; that there is immunity or privilege under the law of the executing state which makes execution of the order impossible; it is clear that the ne bis in idem principle is being infringed, that is, that a person cannot be tried and convicted twice for the same offence; or where the act on which the freezing order is based, in the case of certain offences, does not constitute an offence under the law of the executing state. The grounds for postponement of execution in Article 8 are where execution of the order might damage an ongoing criminal investigation, where a freezing order is already in existence or where the property is already the subject of an order made in the course of other proceedings in the executing state.
Article 9 provides that the certificate, details of which are contained in the annex to the framework decision, must be signed and its contents certified as accurate and translated into the official language of the executing state or one of its official languages. In accordance with Article 6, the property will in general remain frozen until a response to a request under Article 10 to either transmit the evidence to the requesting state or enforce a confiscation order on behalf of the requesting state, as the case may be, has been finally made. However, limitations on the duration of the freezing order may be imposed in accordance with the national law and practices of the executing state. In the case of a request to freeze evidence, transmission of the freezing order must be accompanied by a request under Article 10(1)(a) for the evidence to be transferred to the issuing state. In the case of a request for the freezing of assets, transmission of the freezing order must be accompanied by a request under Article 10(1)(b) for confiscation based on a foreign confiscation order or a request for confiscation in the executing state and subsequent enforcement of that order. A further option set out in Article 10(1)(c) is for the certificate to contain an instruction for the evidence or assets to remain in the executing state pending the request under Article 10(1)(a) or (b). Requests under Article 10(1)(a) or (b) shall be processed by the executing state in accordance with rules applicable to mutual assistance in criminal matters and rules applicable in international co-operation relating to confiscation. Legal remedies are provided for in Article 11, particularly for affected third parties. Member states must put in place necessary arrangements for any party with a legitimate interest to have legal remedies against the freezing order. The substantial reasons for issuing the freezing order may only be challenged in the issuing state. In Article 12, provision is made for reimbursement for sums paid in damages in particular circumstances. The remaining provisions are standard provisions for framework decisions. It is likely that member states will be obliged to take the necessary measures to comply with the provisions of the framework decision within two years of its adoption. That means that when the Justice and Home Affairs Council gets the green light from the Council of Ministers who attend and the framework decision is formally adopted, Ireland will be given two years to bring in legislation to implement in our own way and subject to our own mechanisms our compliance with the framework decision. Changes to Irish law will be necessitated by this framework decision. Subject to today’s proceedings and adoption of the instrument, legislative proposals to provide for these changes will be brought to Government in due course.
