The next item on the agenda is EU scrutiny. The Joint Committee on European Scrutiny has referred to this committee the draft Council framework decision on the enforcement of judgments in absentia. It will modify the following four framework decisions: the framework decision on the European arrest warrant and the surrender procedures between states; the framework decision on the application of the principle of mutual recognition of financial penalties; the framework decision on the application of the principle of mutual recognition of confiscation orders; and the framework decision on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purposes of their enforcement in the European Union. I welcome Ms Geraldine Moore and Mr. Billy Keane from the Department of Justice, Equality and Law Reform, who will assist the committee’s scrutiny of this draft Council framework decision. I thank them for attending this meeting. I ask Ms Moore to address the committee.
Draft Council Framework Decision: Motion.
Ms Geraldine Moore
I thank the committee for inviting us to discuss the draft Council framework decision on judgments in absentia. The draft decision was tabled by the Slovenian Presidency in January of this year. 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 the practitioner and hampers judicial co-operation”.
The draft framework decision aims to improve co-operation and safeguard rights in cross-border cases by setting clear and common grounds for the non-recognition of decisions rendered following a trial at which the person concerned did not appear personally. The draft decision seeks to provide a consistent approach across the various framework decisions which it proposes to modify. While in absentia offences are possible in Ireland, they are extremely rare other than in cases involving minor offences. Trials in respect of summary offences may be commenced in the District Court in the absence of the accused. Trials on indictment by judge and jury may not be commenced in the absence of the accused although they may be continued in his or her absence if the accused absents himself or herself or if the court, at its discretion, orders his or her removal. It appears that the changes envisaged by this draft Council framework decision will afford the accused a greater level of protection when in absentia proceedings are practised.
The advice of the Office of the Attorney General on the implications of the decision for Irish law has been sought. The office's initial reaction has been mainly positive, although the guaranteed right to a retrial is considered to be a potential difficulty for Ireland as an issuing state. A number of changes have been introduced during negotiations. The text has been revised at Recital 9 and Articles 4(c) and (d) to make specific reference to a right to a retrial or to an appeal. Recital 4 has been strengthened as regards member states’ national procedures. The Office of the Attorney General, which is continuing to examine the text as it is being negotiated, is of the view that it will resolve Ireland’s difficulties given that the most usual form of retrial in Ireland is by means of appeal to a higher court. Legislative and procedural amendments may be required to give effect to the draft Council framework decision when it has been adopted and parliamentary and general scrutiny reservations have been entered.
The proposal is a work in progress at the moment. It was discussed at meetings of the COPEN working group in February and March and the Article 36 committee on Wednesday last. Negotiations are continuing at Justice and Home Affairs Council level. The matter will be discussed at tomorrow's meeting of COREPER. The committee has been given a copy of COPEN 60, which is the latest text to have been circulated by the Slovenian Presidency. The framework decision amends five mutual recognition instruments which contain provisions on trials in absentia - the European arrest warrant framework decision, the financial penalties framework decision, the confiscation orders framework decision, the custodial sentences framework decision and the probation framework decision.
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. In Ireland, the European Arrest Warrant Act 2003 gave effect to this decision. The framework decision on financial penalties provides that a fine imposed in one member state can be recognised and executed in another. A general scheme of a Bill to give effect to this Council framework decision is at an advanced stage of preparation in the Department. Work will be finalised when it becomes clear what amendments, if any, will have to be made to the general scheme resulting from agreement on a final text of the framework decision on judgments in absentia.
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 member state. The main provisions of the framework decision on confiscation orders are given effect to in Chapter 3 of the Criminal Justice (Mutual Assistance) Bill which has passed both Houses of the Oireachtas and is due to return to the Seanad at the end of April. It is considered that the provisions of the framework decision on judgments in absentia, as currently drafted, have been taken account of in that Bill.
The framework decision on custodial sentences arises from a proposal to revise the 1983 Council of Europe Convention on the Transfer of Sentenced Persons, which 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 is to build greater efficiency into the transfer process. Both Houses of the Oireachtas approved the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the framework decision on 19 February 2008. Ireland will have three years following its adoption in which to put in place the necessary legislative measures to facilitate implementation following its adoption.
The framework decision on probation provides for cross-border supervision of suspended sentences and alternative sanctions, with a view to facilitating the social reintegration of sentenced persons by facilitating the application of suitable probation measures and alternative sanctions in the case of offenders who do not live in the state of conviction. A final text of the framework decision was agreed during the Portuguese Presidency and the text is currently with the jurist linguists. As with the previous framework decision, Ireland will have three years following its adoption in which to put in place the necessary legislative measures to facilitate implementation.
I will now briefly explain the provisions as contained in the draft text, COPEN 60. The proposal is mainly being negotiated in the context of the framework decision on the European arrest warrant. The amendments made to that framework decision are then carried across to the other framework decisions, with the exception of 4a(d), which is specific to the European arrest warrant. For that reason, I will focus on the provisions relating to that particular instrument. Article 1 sets out the objective and scope of the framework decision, namely, 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 following proceedings held in absentia.
Article 2 replaces the existing Article 5 of the framework decision on the European with a new Article 4a. Under the existing Article 5, executing authorities may make surrender of a person tried in absentia, subject to an assurance of an “opportunity to apply for a retrial”, whereas under the new Article 4a, the criteria for refusing to execute a decision taken in absentia are much more clearly set out.
The new Article 4a provides that an European arrest warrant may be refused where a person did not appear in the trial unless the warrant specifically states that, in accordance with national procedures the person (a) was summoned or informed of the scheduled date and place of the hearing which resulted in the decision rendered in absentia, (b) was informed of the scheduled trial but had instructed legal counsel to defend him or her, (c) was served with the decision rendered in absentia and having been informed of the right to a retrial or of an appeal, expressly stated that he or she does not contest the case or does not request a retrial or appeal within the applicable timeframe, or (d) was not personally served with the decision but will be served with the decision following surrender and will be informed about the right to a retrial or to an appeal and the timeframe for such a request.
Members will see that, in Article 4, the section of the European arrest warrant form which relates to decisions taken in absentia has been amended to take account of the new provisions. The articles dealing with non-recognition and non-execution of in absentia decisions in the text of the other framework decisions have been similarly amended. The financial penalties framework decision has been amended by Article 3, the confiscation orders by Article 4, custodial sentences by Article 5 and the framework decision on probation by Article 6.
Each of the framework decisions I have mentioned contains the grounds for refusal relating to judgments in absentia and, at the moment, each of the five provisions is different. The purpose of this framework decision is to provide for one provision on judgments in absentia, which will be inserted in each of the five texts. A revised text of this framework decision is due to be published later this week. If the members of the committee wish to raise any matters I will attempt to deal with them.
I know a reshuffle is being contemplated but I still welcome Ms Moore to the committee proceedings. I was anticipating an elected Minister but that is obviously not possible today.
I put my question in the context of the point Ms Moore makes, in her written presentation, about the initial response of the Office of the Attorney General. She said there was broadly a positive response but that the guaranteed right to a retrial was considered a potential difficulty for Ireland. Will she expand on why that was the case? She says the office of the Attorney General is satisfied that subsequent revisions address Irish concerns. Can she tease the issue out further?
I will ask a question out of personal curiosity. How long did it take to get where we are today? How long have the amendments been going through the system and how long have the discussions been taking place in Brussels? When were they initiated? What is the experience of the Irish side in trying to bring forward amendments across the EU as it stands today? Is it a laborious process? If, as is the case, we had particular views in the context of our own jurisprudence, I imagine other countries were in the same position. Given the other matters on the political agenda, specifically the Lisbon treaty and how we do our business within the EU, how painstakingly difficult was the process and how long did it take to prosecute the issues through the system?
I apologise for being late but I did not see the matter on the agenda. The only concern I have on the statement presented to the committee by Ms Moore is on the challenge of introducing a consistent approach. Our criminal legal system is fundamentally different from that in most of our colleague EU states and I am a little concerned that the Department indicates further work needs to be undertaken. Perhaps we can flesh out what misgivings the Department has in this regard. I recall listening at some length to the former Minister for Justice, Equality and Law Reform, Mr. McDowell, expressing strong reservations on the subject. I wonder if those reservations have been addressed in the course of the negotiations since the time he was the relevant Minister. Is Ms Moore satisfied that the amendments fully accord with both the spirit and the letter of the European Convention on Human Rights? If further work is envisaged here, emanating from the criminal justice system, what influence can we bring to bear before the proposals can be considered a fait accompli?
We dealt with confiscation orders in the Criminal Justice (Mutual Assistance) Bill 2005. Ms Moore talked about custodial sentences but why is that necessary? Is the facility not already available, at least on a bilateral basis, to allow the transfer of persons serving sentences in one jurisdiction to their jurisdiction of origin? I notice a three-year facilitation period is allowed which, while not a derogation, can delay implementation in Ireland. I had thought that an Irish citizen, imprisoned in France for drug trafficking or some such offence, could serve his or her sentence in this jurisdiction. Is that not the case? What additional provisions does this framework decision bring to bear?
I will attempt to answer Deputy Rabbitte's question from the point of view of scrutiny of EU proposals. My understanding - it is no more than that - is that where draft framework decisions are referred by the Joint Committee on European Scrutiny or the Joint Committee on European Affairs to another committee, the consideration of those decisions is undertaken with the help of officials of the relevant Department. However, if the committee decides that it is not satisfied in one respect or another, the matter can be elevated to ministerial level and the Minister can be called in. If the Minister is about to attend a European meeting at which directives or decisions are to be discussed, he or she will come before the committee in advance. I will check that point and return to the Deputy on the subject.
I accept that. Of course, I meant no disrespect to Ms Moore and presume she understands the position.
That is understood.
Ms Geraldine Moore
The first question was related to the Attorney General and his difficulty with the right to a retrial. The problem was that Ireland, as an issuing state, was not able to give a guarantee on a right to a retrial. A retrial in this country normally takes the form of an appeal. The amendment of the text to include a guarantee on the right to an appeal has, in the opinion of the Attorney General, solved the problem, not only for Ireland but also for other member states which have a similar system to ours. It is included not only in the recitals but also in the body of the text. We considered the reference important for Ireland and pushed for it to be included in the body of the text.
A person in this country would be granted an appeal hearing rather than a retrial.
Ms Geraldine Moore
Yes, that is the position in this country. As for how long the negotiations have taken, the decision has only been on the table since January. The Slovenian Presidency is proceeding quickly because it would like to conclude the negotiations during its term. Many other member states have difficulties with it. That is why it is being negotiated at every working group and every JHA Council. I am not sure whether they will make the deadline, but it is moving apace and a new text arrives every second week.
As to concern regarding further work to be undertaken, the Attorney General is of the view that it is a limited framework decision. It concerns the provision on the enforcement of judgments in absentia. Once we have the right to appeal included in the text the Attorney General is of the view that it will be acceptable to us, but his office is keeping a watching brief on it.
As to the reservations the former Minister for Justice, Equality and Law Reform, Mr. McDowell, might have had about the procedural safeguards, it is my understanding Ireland opposed the previous framework decision because it would have impacted on domestic matters. However, this framework decision is acceptable to us because it is at the lowest level and deals with cross-border issues.
On the framework decision on custodial sentences, it is not one with which I deal. It arises from a proposal to revise the 1983 Council of Europe Convention on the Transfer of Sentenced Persons. The principal changes from the 1983 convention involve the removal of the requirement for the consent of the prisoner and a modification of the requirement for the consent of the receiving state in certain circumstances in order for the transfer to proceed. Where the person in question is a national of the receiving state and normally domiciled there, the consent of the prisoner and the receiving state will be taken as given and formally obtaining it will no longer be required. In place of this formality there will be a facility where, if necessary, the sentencing state will consult the other two parties in order to satisfy itself that the transfer might assist in the rehabilitation of the prisoner concerned. The primary purpose of the framework decision is to build greater efficiency into the transfer process.
Does that not mean it becomes mandatory? Does it mean that after this decision has been transposed into European law, we will have a lot of people sent back here whether we want them? If the assent of the person, if he or she is a national of this jurisdiction, and the State is not necessary, does that not mean he or she is sent here anyway?
Ms Geraldine Moore
It is based on the best rehabilitative interests of the prisoner.
If the prison authorities in Slovenia consider that a young person who finds him or herself in prison for a misdemeanour while there on holiday would be best rehabilitated by being sent to serve his or her time in Ireland, is it the case that we are likely to have him or her back here in a package?
Ms Geraldine Moore
Is the Deputy referring to an Irish citiizen?
Yes.
Ms Geraldine Moore
Ireland is a signatory to the 1983 convention which provides a mechanism whereby individuals convicted of offences may serve their sentences in their home state. In making provision for this facility prisoners are afforded the opportunity to maintain cultural, domestic and linguistic ties with their country of origin with a view to enhancing the possibility of their rehabilitation. The convention provides that a transfer can only take place subject to the consent of the sentencing state, the prisoner and the state to which it is proposed to transfer him or her.
I thought we had to inititate the transfer and the other state had to assent. The point I raise is that when this framework decision becomes law, will it mean that the prisoner is likely to be repatriated to his or her country of origin?
Ms Geraldine Moore
My understanding is that this is what happens in practice and that it is the prisoner's wish. From that point of view it is not necessary to obtain his or her consent. There will be discussion between the two states involved and the prisoner. I presume that if the transfer of the prisoner was opposed, it would not happen
I remember discussing this matter recently. I am not sure whether Ms Moore was present. Subject to correction by the experts opposite, it is my understanding that under the 1983 convention which we ratified in our domestic legislation some time in the early 1990s, the prisoner was the applicant. It was deemed to be in accordance with the human rights of the individual that a repatriation would be for the benefit of the prisoner. The prisoner was central to the process on the basis that the initial application was at the specific and express request of the prisoner. Now, as Deputy Rabbitte rightly pointed out, it can be done against the will of the prisoner if necessary. That is a fundamental difference. Am I right?
Ms Geraldine Moore
My understanding is that the prisoner will be consulted and if he or she had strong objections--
He or she will be consulted by being told he or she is going.
Ms Geraldine Moore
There were strong objections to it. It is not my brief. If the committee would like, I will reply to that later rather than lead it astray.
In fairness, it is not specifically covered by this framework decision. A note would be appreciated. Are there any other questions? If not, I thank Ms Moore and Mr. Keane for their attendance and for assisting us in our consideration of these measures.