JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS díospóireacht -
Tuesday, 22 Nov 2005

Council Framework Decision on European Evidence Warrant: Motion.

Acting Chairman (Deputy Hoctor)

I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to the meeting, the purpose of which is to consider the motion referred to the committee by both Houses. The motion states:

"That Dáil Éireann approves the exercise by the State of the option or discretion, provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:

a proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters,

a copy of which was laid before Dáil Éireann on 9th November, 2005, be referred to the Joint Committee on Justice, Equality, Defence and Women's Rights in accordance with paragraph 2 of the orders of reference of that committee, which, not later than 29th November, 2005, shall send a message to the Dáil in the manner prescribed and Standing Order 85 and Standing Order 84(2) shall accordingly apply.

The wording is analogous for the Seanad motion. Copies of the briefing note supplied by the Department have been distributed to members. The speaking note has now been circulated. I invite the Minister to make a brief presentation.

Minister for Justice, Equality and Law Reform (Deputy McDowell)

I thank the Acting Chairman. I also thank members for allowing me to bring before them this EU proposal for a Council framework decision on the European evidence warrant for obtaining objects, documents and data for use in proceedings in criminal matters. The proposal is before the committee on foot of motions to which the Acting Chairman has just referred.

As members will be aware, officials of my Department already appeared before the joint committee on 18 October when they provided an outline of the background and content of this measure to members. In that context and because the detail of the proposal has already been outlined, I do not propose to go into significant detail on all of its aspects today. I will, however, for the benefit of the committee outline in brief the main provisions of the instrument and go into some detail in regard to provisions that have altered since my officials appeared before the committee.

As my officials indicated last month, the original proposal, as published in November 2003, has been amended in light of ongoing negotiations which commenced on the detail of the proposal in July of 2004. The aim of the UK Presidency is to seek the approval of the Justice and Home Affairs Council of this text on 1 December. Discussions on a small number of issues of substance are ongoing and I do not expect that any further changes made to the text will be significant or that they will affect Ireland's position in regard to the instrument. The principal issues of substance that remain to be finalised related to a definition of search and seizure and of issuing authorities. Difficulties have arisen in these areas due to slight variations in systems and procedures in member states.

I now turn to the purpose of and background to the measure. As the committee has already been advised, this measure is governed by the provisions of Title VI of the Treaty of the European Union, which deals with, among other issues, judicial co-operation in regard to criminal matters. In October 1999, the European Council endorsed, in what became known as the Tampere conclusions, the principle of mutual recognition. It agreed that this principle should become the cornerstone of judicial co-operation in civil and criminal matters between member states.

In January 2001, the Justice and Home Affairs Council subsequently adopted a programme of measures to implement the principle of mutual recognition in criminal matters. The Hague programme for strengthening freedom, security and justice in the European Union, approved by the European Council in November 2004, provides that the instrument, which arises from the Tampere conclusions and from the programme of measures adopted by the Justice and Home Affairs Council, should be adopted by the Council by the end of 2005. Following the terrorist attacks in London in July, the Justice and Home Affairs Council also indicated that adoption of the framework decision should take place by 31 December 2005.

The aim of the proposal is to apply the principle of mutual recognition to a European evidence warrant, EEW, issued for the purpose of obtaining objects and documents for use in proceedings in criminal matters. It is envisaged that the framework decision, when implemented, will result in quicker, more effective judicial co-operation in criminal matters. Articles 1 and 2 define the EEW and place an obligation on member states to execute it in conformity with the principle of mutual recognition and define certain terms used in the framework decision. Article 2(a) provides for member states to inform the Council secretariat of the authorities in each state that will deal with the issuing and execution of EEWs and for the secretariat to communicate this information to member states.

Article 3 outlines the scope of the EEW. It may be issued to obtain evidence in the executing state for the purpose of the proceedings covered by Article 4, once the conditions for the issue of the warrant set out in Article 6 are met. Article 3.2 sets out the circumstances in which the warrant shall not be issued. In accordance with Article 3.4, an EEW may cover any other material discovered while an EEW is being executed that appears to be linked to the purpose of that EEW. Statements of persons present during the execution of an EEW may be taken.

Article 4 sets out the types of proceedings for which a EEW may be issued. It may be issued for any criminal offence under the law of the issuing state or for administrative proceedings which may give rise to criminal proceedings before a court. It may also be issued for any of the foregoing proceedings which relate to offences or infringements for which a legal person may be held liable in the issuing state.

Article 5 deals with the content and form of the warrant. The procedures and safeguards to be followed by the issuing state are dealt with in Articles 6 to 10 of the framework decision. According to Article 6, an EEW may only be issued where the issuing authority considers it necessary and proportionate and where the evidence sought can be obtained under the law of the issuing state in similar circumstances, even though different procedural measures might be used. The issuing state is responsible for a decision on these matters.

Article 7 provides for transmission of the warrant to the competent authority in a member state for execution. Each member state may designate a central authority for handling EEWs. The former Article 8, which concerned the designation by each member state of a central criminal records authority, has been deleted in light of a Commission proposal that has been agreed regarding the exchange of information placed on the criminal record, referred to in this instrument in Article 3.2(a).

Article 9 provides that where evidence supplementary to that noted in an EEW is required for the same proceedings, a new EEW will be issued. The fact that the second EEW is linked to the first will be made clear. Article 10 sets out the use to which personal data obtained under the framework decision may be put. Articles 11 to 20, inclusive, deal with procedures and safeguards for the executing state. Article 11 provides for recognition and execution without further formality unless a specific ground for non-execution or non-recognition comes into play. The executing state will choose the measures it wishes to use to execute the EEW.

There cannot be any obligation on the executing state to use coercive measures. However, any measures available domestically must be made available in the execution of an EEW and coercive measures must be made available for EEWs dealing with the offences listed in Article 16.2. This article also provides for the judicial validation of an EEW issued by a police, customs or frontier authority and for coercive measures to be refused if such an EEW has not been judicially validated.

The provisions originally covered by Article 12 have now been addressed in other articles. Article 13 provides that any formalities or procedures indicated by the issuing state must be followed unless they are contrary to fundamental principles of law in the executing state. Article 14 has been deleted and is now Article 18. bis.

Article 15 provides grounds for the non-recognition and non-execution of an EEW. It may be refused: if its execution would infringe the ne bis in idem principle; if, apart from those offences in Article 16.2, it relates to an act not considered an offence in the executing state; if it relates to an offence under Article 16.3 where coercive measures are not available domestically for such an offence; if there is immunity or privilege under the law of the executing state; if it has not been judicially validated as laid out in Article 11.3; if it relates to offences that have been committed on the territory of the executing state; or if it relates to offences committed outside the territory of the issuing state and the executing state’s national law does not permit proceedings to be taken where the offence is committed ex-territorially. Recognition or execution may also be refused in the interests of national security and if the forms provided are incomplete or incorrect and are not completed or corrected within the set timeframe. Provision is made for a consultation with the issuing state before deciding not to recognise the executed warrant.

In accordance with Article 16, the recognition or execution of the warrant will not be subject to the verification of dual criminality if it is not necessary to carry out a search or seizure or if the offence is one of those encompassed by the terms of Article 16.2. The list of offences in Article 16.2 is the same as that agreed in respect of three other mutual recognition instruments already finalised. For offences not encompassed by Article 16.2, a warrant may be made subject to the condition of dual criminality if coercive measures are required.

Article 17 lays down deadlines for recognition, transfer and execution of an EEW and evidence. The text provides for the issuing authority to be informed if deadlines cannot be met. This article also provides for the return of evidence no longer required to the executing state. Article 18 provides for the postponement the recognition of an EEW. In addition to the grounds previously outlined to the committee, postponement may take place if judicial validation is required and has not been given in accordance with Articles 11.2 or 11.3.

Article 18. bis, the former Article 14, provides an obligation on the executing state to inform the issuing state if it appears that further investigations not initially foreseen may be appropriate, if it comes to light that execution may have been contrary to the law of the executing state or if formalities and procedures laid down by the issuing state cannot be complied with. The executing state must also inform the issuing state when it has transmitted the EEW to the authority competent for execution of whether it has decided to postpone or refuse execution or recognition or if it is impossible to execute the warrant.

Article 19 provides for arrangements to be put in place that provide that any interested parties have a legal remedy against a warrant. The substantive reasons for issuing a warrant may only be challenged in the issuing state. This article also provides for the issuing state to be informed if an action is taken and that the transfer of evidence may be suspended while a legal action is under way.

Article 20 provides for the issuing state to reimburse the executing state for any damages paid to any interested party or bona fide party who has been injured in the course of the execution of an EEW unless the injury is due to the conduct of the executing state. Article 21 provides that a state should be able to execute a warrant dealing with computer data that is accessible to the executing state or that relates to a service provided on the territory of the executing state. It is possible that this article will be deleted before finalisation of the instrument because a significant number of member states believe that this matter should be addressed in a separate instrument.

Article 22 provides for a review of the operation of the framework decision and for its effectiveness to be monitored. Article 23 provides for the warrant to function alongside existing bilateral mutual legal assistance instruments for a transitional period but that the warrant will take precedence where possible. Article 24 provides that requests received before a certain date shall continue to be governed by existing instruments. Articles 25 and 26 deal with the formal procedures for implementation and entry into force.

I thank the committee for its attention and will be happy to address any questions members may have.

Deputy J. O’Keeffe

I thank the Minister for his detailed outline. His officials have provided excellent background material and were able to deal with very detailed queries at the time.

I support the idea of a European evidence warrant and hope the outstanding difficulties at the Council can be resolved. I have two questions for the Minister. I refer to Article 16 which contains a reference to immunity or privilege under the law of the executing state. What is covered in this provision? Does it mean some Members of Parliament have immunity? What ground is covered by this proviso?

There is a reference that recognition or execution may be refused in the interests of national security. What is the definition of "national security"? Who decides what is in the interests of national security? Is there a danger a reluctant executing state may shelter behind the curtain of national security if it does not suit it to be involved in executing a warrant? Those are my queries but in the main I fully support the efforts of the Minister to have debate on this proposal brought to a conclusion at European level as soon as possible.

Deputy Costello

I thank the Minister for his presentation. Will he outline the current position?

I refer to the delay in reissuing a domestic warrant and the obtaining of evidence such as objects, documents and data for criminal prosecutions. What is the difference between the logistics of mutual assistance and what will happen in the future when there will be mutual recognition? The Minister indicates that muchis not likely to change between now and1 December. Will he indicate any areas that have given rise to problems?

With reference to the manner in which Council framework decisions are incorporated into domestic legislation, will Ireland be required to incorporate this measure into domestic legislation? Will each country be required to transpose it in the manner it considers appropriate? If that is the case, I suggest that at the next Council of Ministers' meeting on 1 December, the Minister has a word with his colleagues and that they get their act together and provide some basic guidelines for the transposition of Council framework documents into national domestic legislation that will not result in difficulties in its implementation, as happened in the case of the European arrest warrant which is causing all sorts of problems. I presume the European evidence warrant could also give rise to the presentation of a European arrest warrant. The Minister has referred to obtaining objects, documents and data. I presume a member state may go ahead and make an arrest in circumstances where serious matters are brought to its attention by another state.

On safeguards, the Minister states the European evidence warrant cannot be used for the purpose of requiring the presentation of other material such as DNA samples and conducting interviews. If there is information available in one country that will be recognised in another in its criminal code, is the Minister stating no investigation will follow as a result of information that might be supplied in obtaining data or objects that might be used in a criminal prosecution in the host country, or is it the case that the executing country will state it has been looking for the said person for a long time for crimes committed in that country and that the information it is looking for would greatly assist it in its investigation because so many criminals now operate on a trans-border basis? I am not clear on how the system will operate in terms of the presentation of evidence, if that is all that will be sought and if the executing country will be proactive in using the information supplied, where possible. The provision of safeguards may well prevent an investigation from reaching a certain point where data would be added to if a European evident warrant was issued by the host country.

Last week we discussed the repatriation of sentenced persons legislation. Has it been decided formally that Ireland will not co-operate in that protocol?

Deputy McDowell

The matter of immunities was raised by Deputy Jim O'Keeffe. The immunities will vary from country to country. Some civil law countries have elaborate parliamentary and presidential immunities and the like. Others have less complex arrangements. There are sovereign immunities such as third party sovereign immunities. Under the general bracket of immunity, issues as mundane as lawyer-client privilege, for instance, would be pleadable by Ireland as part of our system of immunity. There are a number of descriptions of what would come under the general term of immunity. A common lawyer thinks of immunity in such a way that proceedings cannot be taken against people, but there is a broader interpretation in European law covering privilege as well as immunity.

On national security, obviously it is for the receiving or executing state to interpret what is or is not its national security interests and the extent to which it might or might not be compromised. Subject to it being done in good faith, that is a matter for the judgment of the receiving state. I agree with the Deputy that somebody could, in bad faith, raise a national security argument in cases where this might be doubtful, but the clause states it may be refused in a specific case — therefore, it must be specific to the facts of the case — to the extent that its execution would harm essential national security interests, jeopardise the source of the information or involve the use of classified information on specific intelligence activities. The provision is fairly circumscribed and it would not be easy for somebody to avoid completely its effect by merely invoking it in a general way.

Reference was made to Council guidelines for the implementation of framework decisions. One must remember that framework decisions under particular provisions of the Treaty on European Union are exactly that — framework decisions. It is for each member state to implement them in full but through its own legal means and system. Framework decisions are not like regulations of the Council but more like directives, although looser in that each member state has very wide latitude in terms of how it arrives at the required result.

Deputy Costello has noted that difficulties arose in regard to the European arrest warrant, which was the case. However, all member states have learned lessons from the implementation process. The text of the arrest warrant was brought forward suddenly. If there had been more time to consider it, perhaps it might have been done differently. Nonetheless, the recitals which relate to giving each member state the right to protect people's fundamental rights have been taken very seriously in the Irish case and internalised and mainstreamed in our implementing legislation.

The Deputy recently referred in public to the example of the Kozeny case and the question of whether other Czech nationals would or would not be the subject of an extradition arrangement request back to the Czech Republic. A difficulty arises in this regard. Ireland was true to its obligations under the framework decision in respect of the European arrest warrant and provided that from the operative date all EU arrest warrant requests or quasi-extradition requests — however one wants to put it — would be dealt with through the arrest warrant procedure. However, as I understand it, the Czech Republic chose instead to state the procedure only applied to offences committed after it entered into its obligations under the arrest warrant framework decision. There is a non-convergence of ideas in this regard, but the strong advice to me from my Department — I am happy that it is correct — is that the problem lies not on our side of that fence but on the Czech side. They interpreted——

Deputy Costello

I agree that we were right in the manner in which we transposed it. However, that does not mean there is not a problem.

Deputy McDowell

I agree, but it is for the Czechs to remedy the problem. If a state wants to bring somebody before its courts, it is up to that state to——

Deputy Costello

We are the recipients of the problem. If fugitives from justice come to this country, we have to deal with the problem.

Deputy McDowell

Certain things must be said in that regard. If fugitives from justice who could be excluded on ordre public grounds were a threat to national security or internal cohesion here, they could be dealt with simply by their exclusion. The right to travel under European law does not override the right of member states to exclude persons on that core element of ordre public.

Deputy Costello

The Minister is working on it.

Deputy McDowell

No, I am not working on it at present. It is for the Czech Republic to look to this issue and I will then consider it.

The Deputy referred to repatriation. The situation has not changed since he was briefed last week. We are not convinced that a case has been made for the mandatory repatriation of offenders along the lines of the proposed framework decision. A number of issues arise. First, we are not convinced that the framework decision arises as a necessary outcrop of judicial co-operation and mutual recognition. We are not satisfied either that the current Council of Europe arrangements for the repatriation of prisoners need to be improved or tightened or that a compulsory element needs to be introduced to enable people to be sent home, regardless of their wishes. That is our political position.

As both Deputies acknowledge, when the framework decision is put into operation, as I am fairly confident it will, we will then be in a position to comply within the stipulated timeframe for domestic legislation. It is not a question of it becoming law or binding immediately. We will have every opportunity in the context of implementing domestic legislation to consider the content of the framework decision, as well as all of the necessary protections. The Deputies may find this slightly depressing, but the usual time period is 24 months or so. It is not as if there will not be sufficient time to think about these matters. If the 24 month period is fully availed of, the issue will probably arise in the first few months of the next Dáil.

Chairman

Is it agreed that no further debate is necessary on the matter by Dáil Éireann and Seanad Éireann? Agreed. Is the draft report agreed, subject to the insertion of details regarding attendance and contributors to the discussion? Agreed.

I thank the Minister and his officials for attending. We look forward to meeting them at 9.30 a.m. tomorrow at the Select Committee on Justice, Equality, Defence and Women's Rights to discuss the International Criminal Court Bill 2003.