This is a motion re Council framework decision on the European evidence warrant, EEW. I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Conor Lenihan. Before we commence I advise everyone that we will receive a presentation from the Minister of State, which will be followed by a question and answer session.
Council Framework Decision on Judgments in Absentia: Motion.
The draft Council framework decision on judgments in absentia was tabled by the Slovenian Presidency of the European Council in January. It notes that the various framework decisions implementing the principle of mutual recognition of final judgments do not deal consistently with the issue of judgments rendered in absentia. It states that this diversity complicates the work of practitioners and hampers judicial co-operation.
In this regard, the framework decision aims to improve co-operation and safeguard rights in cross-border cases by setting clear and common grounds for non-recognition of decisions rendered in absentia and by providing for a consistent approach across the various framework decisions which it proposes to modify.
The framework decision amends the following five mutual recognition instruments which contain provisions on judgments in absentia. First, the framework decision on the European arrest warrant provides for the recognition and execution of a European arrest warrant issued by a court in another member state. It was given effect by the European Arrest Warrant Act 2003. Second, the framework decision on financial penalties provides that a fine imposed in one member state can be recognised and executed in another. It will be given effect in Irish law by the Fines Bill 2007, which will shortly be circulated to other Departments with a view to publication in early 2009. Third, the framework decision on confiscation orders establishes the rules under which a member state may recognise and execute a confiscation order issued by a court in another jurisdiction or member state. It has not yet been given effect in Irish law. Fourth, the framework decision on custodial sentences arises from a proposal to revise the 1983 Council of Europe convention on the transfer of sentenced persons. The convention provides a mechanism by which individuals convicted of offences in foreign states may serve their sentences in their home states. The primary purpose of this new framework decision, adopted at the European Council in November, is to build greater efficiency into the transfer process. It has not yet been given effect in Irish law. Fifth, the framework decision on probation decisions provides for cross-border supervision of probation measures and alternative sanctions with a view to facilitating the social reintegration of offenders who do not live in the state of conviction. It was also adopted by the European Council in November and has not yet been given effect in Irish law.
The Council framework decision on judgments in absentia has been negotiated in the context of the framework decision on the European arrest warrant. The amendments made to that framework decision were then transferred to the other framework decisions, subject to minor technical adjustments to reflect the subject matter of the particular framework decision. For that reason, I will explain the provisions of the framework decision on the European arrest warrant.
Article 1 sets out the objective and scope of the framework decision. It serves to enhance the procedural rights of persons subject to criminal proceedings and to improve mutual recognition of judicial decisions between member states by establishing common rules for the recognition of judicial decisions taken following proceedings held in absentia.
Article 2 replaces the existing article 5 of the framework decision on the European arrest warrant with a new article 4a. Under the existing Article 5, an executing authority may make surrender of a person tried in absentia conditional on its receiving an assurance, which it considers adequate, that the person will have an opportunity to apply for a retrial. The new Article 4a sets out the criteria, including the right to a retrial or an appeal, which, if not satisfied, will constitute grounds for refusing to execute a decision taken in absentia.
The new Article 4a provides that a European arrest warrant may be refused where a person did not appear in the trial unless that European arrest warrant specifically states that, in accordance with national procedures, the person was summoned or informed of the scheduled date and place of the hearing which resulted in the decision rendered in absentia in such a way as to unequivocally establish that he was aware of the trial, was informed of the scheduled trial but had instructed legal counsel to represent him or her and was so represented. The new article further provides that a European arrest warrant may be refused where a person was served with the decision rendered in absentia and having been informed of the right to a retrial or of an appeal, either expressly states that he does not contest the case or does not request a retrial or appeal within the applicable timeframe. Finally, it may be refused where a person was not personally served with the decision but will be served with the decision following surrender and will be informed of the right to a retrial or appeal and the timeframe for making such a request.
The section of the European arrest warrant form relating to decisions taken in absentia has also been amended to take account of the new provisions. The articles dealing with non-recognition and non-execution of in absentia decisions have been similarly amended in the texts of the other five framework decisions. In absentia proceedings are possible in Ireland but, other than for minor offences, are extremely rare. Trials in respect of summary offences may be commenced in the District Court in the absence of the accused, but trials on indictment by a judge and jury may not be commenced in the absence of the accused. They may be continued in his or her absence where the accused absents himself or herself or the court, at its discretion, orders his or her removal.
Where in absentia proceedings are practised, the changes envisaged by the Council framework decision will afford the accused a greater level of protection. I commend the motion to the committee and will be pleased to answer any questions.
I thank the Minister of State. Do members have any questions or comments?
What is the practical net effect of this change for Irish legal practitioners or Irish citizens?
Practical?
Yes, the practical impact.
It will bring uniformity. Is Deputy Mulcahy asking about practitioners?
This is a recognition of common guidelines for the recognition of judgments obtained in absentia. What is the nub of this? What is the most significant change that will take place?
It affords greater protection than exists currently. Where someone is sought in an in absentia case, requirements to allow for a retrial or appeal must be met.
Is it only for criminal matters and not civil matters?
Criminal matters, yes.
Where someone is tried in absentia.
Yes, that is correct.
How can anyone ever be tried in absentia?
In other jurisdictions people can be tried in absentia. A typical case would be Mafia trials in Italy.
Does this mean Irish people can now be tried in absentia under this rule?
No it does not. In my statement I outlined that our courts do not allow in absentia trials other than in certain defined circumstances where it is required.
Is the Minister of State assuring us there are minimal changes to Irish law from this?
Very minimal. There are almost no changes to Irish law. The protections afforded protect an imbalance that might have occurred. Until this measure it might have been possible to meet a request for an in absentia judgment without applying the test of an appeal or retrial being an absolute requirement.
If another jurisdiction cannot comply with the request that the person concerned is guaranteed a retrial or appeal in their case. On the advice of the Attorney General we inserted the phrase "appeal" because not all jurisdictions allow for appeals. An appeal or retrial must be a requirement for the state issuing the request to us. More protection is being afforded.
I have three questions. If I am an Irish citizen and I happen to be in Europe, and I am in the wrong place at the wrong time and CCTV shows I was there at the particular time, I could be an innocent victim and be tried in absentia or included in an in absentia decision. If I am a professional operating throughout the European Union, do I have the right to move around pending my trial?
Can I appeal this decision to the relevant domestic court of my member state? Have I the right to go to the European Court of Human Rights?
It is a domestic matter until a European arrest warrant is issued
If I am in Europe in the wrong place at the wrong time, and CCTV footage shows I am there and it could be suggested I had a hand, act or part in a terrible thing, can I be tried in absentia?
One could not be tried in absentia until an application for a European arrest warrant was made. That is another procedure.
If the arrest warrant comes up, I am obliged to produce myself. If I do not produce myself, can I appeal the decision to the relevant domestic court in the member state?
The key point here relates to Deputy Treacy's earlier question. One would have to be requested by the authority seeking a trial in absentia. There would have to be a request for the person to be moved to the country.
I would leave that decision to my own relevant court.
We would not comply unless we were clear that a person on trial in absentia had a right of appeal or retrial of the issues involved. I suspect a miscarriage of justice is the substance of Deputy Treacy’s query. He is asking if a person could be a victim of a miscarriage of justice by dint of being put on trial in absentia in another member state for an offence in which he or she had no part.
I had no part in it but I was in the wrong place.
It would be very difficult because a request would first be made for a European arrest warrant. All the tests to allow us to send a person to the country making the request would have to be met by us. Does that make sense?
It does.
There are similar issues between Britain and Ireland compared to American legislation which the British authorities accepted for terrorism offences. A person could be taken from the UK if he or she travelled into the UK. It is an occupational hazard for people who may have committed terrorist offences and are resident in Ireland. If one travels through Heathrow airport or across the Border to Newry to do some shopping one could be arrested under the UK arrangements on terrorism, on which they co-operate with the US. One could then be transported to the US for trial.
We are not signatories to the US arrangements on terrorism, but the UK is and that is where substantial risk arises. Within the European Union no substantial risk of the kind Deputy Treacy speaks of arises because of the legal tests.
If the warrant is executed, all the documentation is in order, the relevant decisions are taken, I am transferred to stand trial and I am found guilty, can I appeal to the European Court of Human Rights?
Ultimately, yes. One would have to exhaust——
If my human rights were infringed?
Does the Deputy mean a case where one was transferred to another jurisdiction to face trial or a case where one was tried in absentia?
If I am tried in absentia or transferred do I have the right to go to the European Court of Human Rights?
We only agreed to it on the basis that there is a domestic appeal or retrial option. One ultimately has the option of a European appeal, but this measure ensures one cannot simply be tried in absentia and incarcerated. If the offence one is charged with does not, in the requesting state, allow for an appeal, we do not agree to the request because it does not meet our test, and vice versa.
Excellent. I thank the Minister of State.
I thank the Minister of State and members.