I thank the joint committee for its invitation to discuss the proposal for a framework decision of the Council of the European Union. The proposal is a joint initiative of Austria, Finland and Sweden and is proposed with a view to adopting a Council framework decision on a European enforcement order dealing with the transfer of sentenced persons between member states of the European Union.
Committee members will understand I am precluded from expressing an opinion on the merits of the policy of the Minister, the Government or the Attorney General. However, my colleagues and I will attempt to deal as comprehensively as possible with any issues the committee may wish to raise. The stated aim of the proposal is to establish the rules under which a member state shall recognise and enforce on its territory a custodial sentence imposed by a court of another member state for a criminal offence regardless of whether the enforcement of the sentence has already begun. The legal basis for the proposal is stated to be Articles 31 and 34 of the Treaty on European Union.
The initiating states propose that there should be a basic duty on each member state to take charge of its nationals and those persons legally resident in its territory. They note that all member states have ratified the Council of Europe Convention on the Transfer of Sentenced Persons. As committee members will be aware, under that convention, sentenced persons may be transferred to serve the remainder of their sentence in their state of nationality, but only with their consent and that of the states involved. The additional protocol to the convention of December 1997 allows transfer without the person's consent, subject to certain conditions and has not been ratified by all member states. The committee will be aware that Ireland intends to ratify Article 2 of the additional protocol following the enactment of the Transfer of Execution of Sentences Bill.
In bringing forward the proposal, Austria, Finland and Sweden have stressed that relations between member states are characterised by special mutual confidence in other member states' legal systems and that, therefore, the arrangements for transfers of sentenced persons should go further than the existing Council of Europe instruments. They argue that it should be established that there is a basic duty on a state to take charge of those of its nationals and those persons described as permanently legally resident in its territory, who have been given a final custodial sentence or a detention order in another member state, irrespective of their consent, unless there are specific reasons for refusal. The initiating states have also stated that their proposal is based on the principle of rehabilitation of the offender.
In terms of progress to date, the proposal was discussed at meetings of a working party of the Justice and Home Affairs Committee on co-operation in criminal matters on 13 May, 27 June and 10 and 11 October this year. The next meeting of the working party is due to take place on 12 December to complete the Second Reading of the instrument. Ireland has taken part in the negotiations on the proposals to date and we have entered a number of reservations, including legal competence and parliamentary scrutiny reservations.
In the discussions to date, the Department has indicated that Ireland has concerns regarding the proposal on a number of grounds. In the first instance, there is concern about the legal basis cited for the draft framework decision. Further legal advice is awaited on this matter. Second, we do not believe that the rehabilitation process can be assisted where repatriation is enforced. Third, there is concern that such a proposal could be seen to undermine the rights of a citizen of Europe to legally challenge a deportation or expulsion order.
I will briefly explain the provisions as contained in the framework decision, designated COPEN 54. As I go through them, I will synopsise my speaking notes for ease of reference and time. Article 1 provides for the definition of the key terms used in the framework decision. Article 2 deals with the provisions for making contact with the relevant authority. Article 3 makes it clear that the framework decision deals with the enforcement, in the executing state, of sanctions imposed on natural persons by a court in the issuing state, regardless of whether enforcement has already started or whether the person concerned is still in the issuing state or already in the executing state.
Article 4 contains criteria for the forwarding of a European enforcement order to an executing state. The natural person on whom the sanction has been imposed must be a national of the member state concerned, or must have his or her permanent legal residence there, or must have other close links with that state. In the case of other close links with the executing state, the forwarding of a European enforcement order by way of derogation from the general rule, Article 5, is envisaged only with the consent of the sentenced person.
In accordance with Article 5, the consent of the sentenced person is not required for a European enforcement order to be forwarded, except for cases where the order is based on the sentenced person's other close links with the executing state. However, the person should be notified of the consequences of transfer to the executing state and, if he or she is still in the issuing state, he or she should, if possible, be given an opportunity to state an opinion. That opinion is to be taken into consideration when making a decision.
Article 6 makes it clear that a European enforcement order must contain certain information which must be translated into the official language, or one of the official languages, of the executing state. Article 7 refers to those offences which, if they are punishable in the issuing state by a maximum period of at least three years, lead to recognition and enforcement of a European enforcement order, without verification of the existence of double criminality.
Under Article 8, the competent authority in the executing state is obliged to recognise the European enforcement order without further formality being required and to enforce it, subject to the grounds for refusal in Article 9. This means that, in principle, it is not possible to carry out an adaptation procedure in the executing state. Such a procedure would not be in accordance with the principle of mutual recognition. The competent authority in the executing state can consider adapting the sanction only in the following cases. First, if the duration of the sanction is not compatible with fundamental principles of the law of the executing state. This may be the case if, for example, a life sentence was imposed in the issuing state, when such a sentence is incompatible with fundamental principles of the law of the executing state. In this event, the competent authority in the executing state may adapt the sanction to the maximum level provided for a criminal act under the national law of that state. Second, if the nature of the sanction is not compatible with the law of the executing state.
Article 9 states the grounds enabling the executing state to decide not to recognise and enforce the decision. Articles 10 and 11 specify time limits for a decision on a transfer and for its completion. Article 12 deals with the transit of a sentenced person through the territory of a member state. Article 13 states that enforcement is governed by the law of the executing state. Article 14 contains a specialty provision. Article 15 clarifies that an amnesty or pardon may be granted by both the issuing state and the executing state. However, only the issuing state may decide on applications for review of the decision imposing the sanction to which the European enforcement order relates.
According to Article 16, the executing state must terminate enforcement of the sanction if it is informed by the issuing state that it is no longer enforceable because of, for example, an amnesty or pardon. Article 17 refers to the fact that the competent authority of the executing state must communicate to the competent authority of the issuing state. Article 19 deals with costs, while Articles 21 and 22 contain standard provisions concerning the implementation and entry into force of the framework decision.
To return to the question of the legal basis, I have already mentioned that Ireland has serious concerns in this respect which other member states share. As members will be aware, EU competence to deal with criminal matters is governed by the provisions of Title VI of the Treaty on European Union, particularly Articles 29 to 42. That title deals with police and judicial co-operation in criminal matters. These provisions create an objective of providing citizens with a high level of safety within an area of freedom, security and justice. The objective is to be achieved by preventing and combating crime, particularly serious crimes such as terrorism, trafficking in people, offences against children, illicit drugtrafficking, corruption and fraud.
If the framework decision was adopted, which would require unanimity, Ireland would never be able to reverse it, unless there was unanimous agreement to such a change. Article 31(1)(a) of the Treaty on European Union is cited as the legal basis for the current proposal. This article provides for competence to provide for the facilitation and acceleration of co-operation between competent ministries and judicial or equivalent authorities of the member states in respect of proceedings and the enforcement of decisions. Ireland has concerns as to whether this sub-article provides adequate vires for transferring a person following the conclusion of criminal proceedings. The framework decision proposals go much further than facilitating and accelerating co-operation and clearly seek to introduce obligations which would apply internally in each member state. The discussions of the working party so far indicate reluctance on the part of a large number of countries to accept the proposals. A number of countries, including Ireland, have expressed reservations about parliamentary scrutiny.
In summary, Ireland is of the opinion that there is already a common standard for transfers of this kind — the very adequate Council of Europe Convention on the Transfer of Sentenced Persons — and the objective of the instrument can be achieved through compliance by all member states with it. This proposal is still under negotiation and, as such, I do not wish to forecast the outcome of the negotiations. I hope I have conveyed Ireland's position on very important issues, including the fundamental question of whether this framework decision is contemplated by the EU treaties. My colleague, Tony Flynn, and I will be pleased to answer questions and provide clarification.
