What just happened? The House of Commons ‘vote’ on the European Arrest Warrant

Steve Peers

Last night, the UK House of Commons voted in favour of the UK opting back in to 35 EU policing and criminal law measures, including the European Arrest Warrant (EAW). Or rather, it didn’t: it voted in favour of the UK opting back to 11 such measures, notincluding the EAW. Amid scenes of parliamentary confusion and chaos, it wasn’t quite clear what was going on. This blog post explains exactly what the vote was about.

Background

I wrote a detailed analysis for Statewatch of the UK’s opt back in to EU policing and criminal law measures earlier this year, and I will write an update for this blog in the start of December once all of the final steps in the process are in place. But for now, here is a brief recap, to put last night’s vote in context.

The Treaty of Lisbon sets out a five-year transitional period for EU policing and criminal law measures adopted before that Treaty’s entry into force (1 December 2009). At the end of that period, those measures become subject to the full jurisdiction of the Court of Justice of the European Union, including both references from national courts and the Commission’s power to sue Member States for non-application, or incorrect application, of such measures. The majority of Member States (but not including the UK) had already opted in to the former jurisdiction, but the latter jurisdiction is entirely new.

From the same date, the UK can decide to opt out of all the pre-Lisbon policing and criminal law measures (except for those which have been amended since that Treaty entered into force, which the UK could decide to opt in to or out of individually as each of the amended versions was adopted).  If it exercises this block opt-out, the UK can then choose to opt back in to some of these pre-Lisbon measures individually. The decision on its application will be taken by the Commission or the Council, depending on the type of measure (the Council decides where the measure is linked to the ‘Schengen’ treaty on border controls; the Commission decides on all other matters, including the EAW).

The UK has indeed exercised the block opt-out, and has applied to opt back in to 35 measures, as described above. Last night’s vote was the crucial point at which the House of Commons got to vote on the government’s intentions (the House of Lords will vote shortly). The formal decisions on the opt-in will now be taken by the Commission and Council, probably on December 1.

While EU law sets out the overall procedure relating to the opt-out and opt-in, it doesn’t govern the details of parliamentary scrutiny of the government’s decisions within the UK. That’s a matter for  UK law only. So what exactly happened in the House of Commons last night?

The House of Commons vote

The UK government had long promised that Parliament would get to vote on the decision to opt back in to all of the 35 measures. In the event, the Home Secretary declared that last night’s vote, was in effect politically binding as regards all of these measures. But according to a ruling of the Speaker of the House of Commons, the vote was only legally binding as regards 11 of them.

What did the vote concern exactly? It was on a resolution to approve delegated legislation, ie an individual measure which the UK executive can adopt because a previous Act of Parliament gives it powers to adopt that measure, subject to parliamentary scrutiny. Last night’s vote was the key point in that parliamentary scrutiny, as far as the House of Commons was concerned.

The Act of Parliament which gave the government those powers was the European Communities Act, which is the main Act governing the status of EU law in the UK’s national legal order. In particular, section 2(2) of this Act gives the government power to adopt delegated legislation to implement EU obligations, subject to certain limits. That section is very frequently used in practice.

However, it’s never been used before to adopt delegated legislation to implement EU obligations regarding pre-Lisbon policing and criminal law. That’s because it couldn’t be, before December 1 2014. This is due to a limitation in the Act itself. Because policing and criminal law issues were ‘intergovernmental’ (ie essentially decided upon by governments, not the EU institutions) before the Treaty of Lisbon entered into force, they took a different form, and had a different legal status, than ordinary EU law. To take account of this, the European Communities Act never applied to them until now (when the transitional period ends).  

The exclusion of these measures from the Act is implicit in the definition of EU law in section 1(2) of the Act. In particular, that definition excludes Title VI of the original Treaty on European Union (the Maastricht Treaty) and Art. 1 of both the Treaty of Amsterdam and the Treaty of Nice from its scope. Incidentally, the Act still continues to exclude EU foreign policy measures from its scope.

So what does the delegated act which MPs were voting on do? It takes the form of (UK) Regulations, and is further explained in an explanatory memorandum. It makes changes to UK law which the government deemed were still necessary to ensure that 11 of the 35 Acts which the UK is opting back in to are fully and correctly applied in our domestic law.

Six of those measures concern the UK’s mutual recognition of criminal law decisions adopted by other Member States (and vice versa), as regards: confiscation of assets obtained by crime; freezing of such assets provisionally during an investigation and trial; financial penalties (fines) imposed by courts as a result of a criminal conviction; the transfer of foreign prisoners serving a custodial sentence; general rules on in absentia trials as regards mutual recognition; and the European Supervision order, which permits foreigners to be freed pending trial, provided that their home State agrees to supervise them until they face trial in the country concerned.

Three more measures concern police cooperation. Two of them concern ECRIS, a system for the exchange of criminal records between Member States. The third concerns the so-called ‘Swedish initiative’, which governs requests for other forms of information in individual cases between  national police forces.

The final two measures concern joint investigation teams (groups of police officers from multiple Member States, as well as Europol, the EU police intelligence agency) examining cross-border crimes, and data protection rules applying to cross-border exchange of police information (this is distinct from the EU’s data protection Directive).

The political context

As noted above, the Commons vote applied to all 35 measures in a political sense only, not in a legal sense. Legally speaking, the government did not need parliamentary scrutiny of the opt in to the remaining measures, since there was no need to change UK law in order to apply them. However, the UK had promised such scrutiny nonetheless, leading to the confusion and disappointment of many MPs.

It was clearly right in principle to promise full parliamentary scrutiny of the opt in decision, given the public concern and interest in the issue. So it was wrong not to give full effect to that promise, which could have been implemented (for instance) by holding a vote also on a resolution explicitly concerning the opt in to all 35 measures.

The government may have decided not to do this because it wanted to avoid critics of the EAW trying to amend the resolution to force a vote on the EAW separately. But if there is enough concern in Parliament about the opt in to this particular measure (or any others on the list), then MPs should get the chance to vote on it individually.

One of the consistent problems with EU law in the UK (and to some extent in other Member States as well) is its perceived lack of democratic legitimacy. Often that’s the fault of the EU itself, due to a lack of transparency for instance. But in this case, since only UK law governs the process of parliamentary scrutiny relating to the opt in, it’s entirely the fault of the UK government. The likely result of the decision to limit the scope of parliamentary scrutiny will be to damage the legitimacy of the EU further – and to increase, not reduce, the number of Conservative MPs who are very critical of the EU.

Barnard & Peers: chapter 25

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The European Arrest Warrant: the case for the UK to stay in

Maria Fletcher, Senior Lecturer in Law, University of Glasgow, and Steve Peers, Professor of Law, University of Essex

The UK government is currently making its final decision on which EU laws on criminal law and policing adopted before December 2009 that it wishes to opt back in to, as from 1 December 2014. The most controversial decision it has to make is whether to opt back in to the European Arrest Warrant (EAW). In this blog post, we set out the case for opting back in to this law.

Background

As part of the Treaty of Lisbon, the Labour Government of the day secured a rather unique legal opt-out for the UK in relation to EU crime and policing matters, which takes effect on 1 December 2014 and which is known as the ‘Protocol 36 opt-out’. This was to be on top of the already secured position whereby the UK (and Ireland), by default, does not participate in the EU police and criminal justice (or asylum and immigration) agenda unless it chooses to opt in to individual measures on a case by case basis, either during the proposal stage or after their adoption.

The Protocol 36 opt-out, completely unprecedented in terms of scope and only available to the UK, entitles the UK to withdraw en masse from EU measures concerning police and criminal justice adopted prior to the Lisbon Treaty (1 December 2009 to be precise). In principle it is an all or nothing opt out in the sense that the UK must opt out of all of these pre-Lisbon measures, or none at all. But, in the event of its exercise, the UK also has the right, within limits, to opt back in to individual measures selectively.

The UK Government officially invoked the opt-out (of 130 measures) in July 2013 and simultaneously produced a list of 35 Pre-Lisbon measures it considered to be in the ‘national interest’ to rejoin. The Government then began negotiations with the European Commission and the Council to seek to rejoin that list of 35 measures – the terms of the Protocol requiring approval from one or other of those institutions depending on the precise nature of the measures. For measures linked to the EU’s ‘Schengen’ rules, such as the Schengen Information System database, the UK needs the consent of all Schengen States to opt back in. For other measures (the majority, including the EAW), the UK needs only the consent of the Commission.

According to the Protocol, the UK and the EU institutions must ‘seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.’ The UK is therefore likely to be able to insist on opting back in to its chosen measures unless it is opting back in to only part of a package of measures that are deemed to be inextricably linked  (the coherence requirement) or it would be impossible or very difficult in practice for technical reasons to opt back in to one measure but not another (the operability requirement).

At the domestic level, scrutiny procedures by Parliament have been thorough, if fraught, due to the Government’s lack of timely information. The relevant committees of both the House of Lords and the House of Commons have conducted inquiries and produced numerous reports on this matter and both Houses have been promised votes on the overall package of measures to rejoin following the conclusion of negotiations with the Commission and the Council and on the basis of Impact Assessments. But time is running out, especially if the Houses are to be given enough time to reflect upon this important matter.

Although the timetable relating to the Protocol 36 opt-out is entirely out of the hands of the current government, the plain reality is that the timing could not have been worse. With Ukip on the rise and ostensibly gaining ground amongst the traditional Tory vote and now just months away from a general election, the government and in particular, the Conservative party, is seemingly running scared on the topic of Europe.

And one criminal justice measure in particular seems to be fuelling particular panic.

The European Arrest Warrant

The EAW has operated in the UK for a decade, and has made it onto the list of 35 that the Government wishes to rejoin as of 1 December 2014. It is without doubt the most high-profile and controversial of the EU’s criminal justice measures. In essence it provides a simple and speedy procedure designed to surrender people between EU states for the purpose of conducting a criminal prosecution or executing a custodial sentence or spell in detention.  It works on the basis of mutual recognition, such that the authorities in the Member State in receipt of a warrant execute it (arrest and surrender the wanted individual) more or less automatically.

This way of cooperating amongst states – which is based on trusting the integrity of another state’s criminal justice system – was chosen, and indeed advocated, by the UK government of the time, precisely because it entailed the least intrusion by EU law into domestic systems. Rather, decisions or rulings by a criminal court in the UK must be accepted and enforced in any another Member State and vice versa.

It is widely recognised that the EAW has created a more efficient, simpler, quicker, cheaper, more reliable and less political system of extradition in Europe compared to its predecessor 1957 European Convention on Extradition (see the House of Lords committee analysis). Since 1 January 2004, when the EAW scheme came into force, the average time taken to extradite a suspect in cases with consent is just 17 days and in non-consensual cases it is has fallen from around a year to 48 days. The number of wanted persons surrendered to the UK in 2013 was 127, compared to 19 in 2004; and surrendered from the UK upon the request of all other EU Member States was 1126 in 2013 compared to 24 in 2004. Speaking on 9 July 2013 the Home Secretary said ‘[s]ince 2009 alone, the arrest warrant has been used to extradite from the UK 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspects for child sex offences, 27 for rape and 44 for murder were extradited back to Britain to face charges. A number of these suspects would probably have not been extradited back to Britain without the arrest warrant.

The success of the EAW might be illustrated by the extradition from Italy, in less than eight weeks, of Hussain Osman, who was wanted in connection with the attempted July 2005 London bombings; he was subsequently sentenced to a minimum term of imprisonment of 40 years. More recently, Jeremy Forrest, the teacher who was sentenced in June 2013 for absconding to France with one of his pupils, was extradited back to the UK less than three weeks after his arrest.

 

Notwithstanding these positives, the EAW is not beyond criticism and the most serious two concerns are considered here. It is worth noting however that other criticisms of the EAW appearing in the public debate are, frankly, contrived to fuel anti-EU sentiment and fear. For instance, outrage that the EAW can be used by foreign courts to extradite Britons and in unacceptably large numbers is misplaced on two counts. First, the EAW does indeed require all Member States to surrender nationals, but unlike some other Member States, the UK had never treated nationality as a bar to extradition anyway. The UK had also removed the obligation of the requested State to show a prima facie case in respect of extradition requests coming from Europe, far in advance of the EAW abolishing the same.

And second, the UK may be being required to surrender increasing numbers of individuals to face prosecution under the EAW, but the overwhelming majority (96%) of those are not British nationals – and presumably, on that basis alone, there would not be much appetite to keep them here!

 

Turning then to the two particularly serious criticisms of the EAW.  First, it has resulted in a number of British suspects being surrendered to countries where they then face excessive periods in prison before trial – bail being notoriously difficult to attain as a foreign suspect. Any such instance is unhappy and unacceptable and it certainly fuels the critics who push for the UK’s withdrawal. But alternative options to improve the situation do exist and we would submit that they are preferable to opting-out. For one, the EAW legal instrument could be amended to permit the requested state to postpone the execution of the warrant until the issuing state is ready to proceed with trial, and the UK could push for this. Along these lines, recent amendments to UK law (see further below) mean that a suspect will not be handed over on the basis of an EAW unless he or she has been charged by another Member State.

Another route is to implement an EU measure which specifically tackles this problem - the so called ‘European Supervision Order’. Adopted in 2009, the ESO enables a suspect or defendant who has been granted a pre-trial non custodial supervision order (bail) in another Member State to be supervised in their home MS until such time as their trial takes place. This instrument would allow foreign suspects to be transferred home while awaiting trial and equally, UK nationals to return home while they are on bail. For sensible reasons therefore, this measure is among the 35 instruments which the current government is seeking to opt-back in to.

Finally, a longer term way of addressing the EAW problem is to address its root causes – namely to force those Member States whose criminal justice systems are deficient in these respects to improve the way they treat suspects and defendants. The UK government appears willing to participate partly in this agenda to ensure minimum standards of procedural safeguards to those who find themselves caught up in the criminal justice system (including victims) across the whole EU. To be sure, agreement on these issues across Europe is not easy, but it is a measure of the level of commitment to ensuring fairness and justice that efforts are made to secure appropriate safeguards and standards of protection in addition to securing speedy and effective prosecutions.

In any event, anyone who objects to the EAW on the grounds that it sometimes results in miscarriages of justice should hardly be among those calling for repeal of the Human Rights Act and the UK’s withdrawal from the ECHR, given that one of the main aims of both these measures is precisely to avoid miscarriages of justice. But in fact, the critics of the EAW are often also critics of the ECHR.

The second serious criticism of the EAW is its excessive scope, which enables it to be used in some cases that are trivial, or stale, or both. This causes a headache for UK law enforcement authorities, who must expend significant resource following up all warrants, including those for minor offences. This instrument was designed with serious crimes and organized criminality in mind and the absence of a proportionality requirement undermines this – although in practice a permissible ‘human rights’ requirement, which has been enshrined in UK legislation implementing the EAW, does mitigate the disproportionate impact.  It also worries those who speak for the interests of suspects and defendants.

This problem could be solved at EU level by amending the EAW legislation to include a proportionality requirement (which could be similar to the rules in the recently-adopted European Investigation Order). The European Parliament has also suggested that the EAW rules should incorporate such a rule (along with many other reforms). This issue could also be addressed by creating a workable system specifically for dealing with minor or so-called ‘disorganised’ criminality committed across borders.

Acknowledging that reform is needed, the Home Secretary has already acted upon her promise to pursue changes at the national level by amending the UK legislation implementing the EAW, the Extradition Act 2003, in order (among other things) to introduce rules on proportionality, to provide that a person will not be surrendered if he or she has not been charged, and to refuse to surrender persons if there are charges pending against them in the UK.

So, why then has the UK Government chosen to opt-back in to this measure? To put it simply, as a tool for law enforcement, the relevant UK authorities are convinced that it is, on balance, a good thing. The Association of Police Chief Officers has said that the EAW ‘gives us a stronger, more effective means of arresting dangerous criminals across borders and thus keeping our communities safe at home – it is not an instrument we can afford to lose.’ In fact the evidence amassed during the Protocol 36 parliamentary enquiries overwhelmingly supports retaining the EAW.

It is unlikely that the UK could continue to extradite suspects and criminals in the same way even if it opts-out of the EAW. Certainly it cannot be taken for granted that other Member States would be able to continue to send EAWs to the UK, or execute EAWs coming from the UK, as a matter of law – indeed their implementing legislation would preclude this if it refers only to the EU ‘mother’ legislation, and this would arguably be illegal as a matter of EU law. And any political will to change their arrangements might be stretched by the UK’s unilateral rejection of a previously unanimously agreed instrument, which, after all is supposed to be based on mutual trust.

In this event, extradition between the UK and other EU Member States would essentially fall back on traditional procedures agreed in 1957 under the auspices of the Council of Europe (a non-EU international organization that is most well known for the European Convention on Human Rights). Such procedures are discretion-based, follow a ‘request model’ and are subject to the ultimate control of the executive (making it a political rather than a legal matter). As compared to the EAW (as summarized above), these features combine to make it slow, costly and uncertain, potentially undermining public safety – an almost unthinkable backward step in the cross border pursuit of criminal justice.

It has sometimes been suggested that the UK could replace the EAW with an extradition deal with the entire EU, or with bilateral deals with individual Member States (see the suggestions on the Conservative Home website). While the EU has negotiated an extradition treaty with Norway and Iceland, this took years to negotiate and has not yet entered into force eight years after its signature. Furthermore, this treaty is nearly identical to the European Arrest Warrant. So this process is not efficient and would not free the UK from compliance with most of the EAW’s rules (which the critics of the EAW system dislike so much).

In any event, there is no time before the absolute deadline of 1 December for the UK to opt back in to the EAW to develop an alternative system. There is now little time even to draw up transitional rules which would govern the situation if the UK failed to opt back in on that date. In the absence of such transitional rules, there will be a doubtful legal basis for continuing to arrest, detain or surrender people who are sought by the UK in other Member States or vice versa as of that date.

More generally, having less stringent extradition laws in the UK than the rest of the EU would risk turning the UK into a sort of ‘Costa del Crime’, since criminals might be attracted to come here in light of the relative ease of not being extradited. Conversely, the rest of the EU would become a more attractive bolt-hole for anyone committing crimes in the UK, in particular those who flee to the state of their nationality and argue that they should no longer be extradited from that State (this was the common practice of continental Member States before the EAW was adopted).

It is certainly true that alarmist press coverage has fuelled a widely held belief that ‘Brussels’ is planning to impose on Europe a single, common uniform system of criminal justice. This quite simply is not the case in and furthermore, it cannot be the case under the existing legal framework – there is simply not the political appetite for this amongst the other 27 member state governments, who collectively and for the most part constitute ‘Brussels.’  Even the most potentially ‘intrusive’ EU criminal law measure – the creation of a European Public Prosecutor  - which is still at proposal stage, would only be able to investigate, prosecute and bring to justice those involved in offences against the Union’s own financial interests. The UK has opted out of this proposal, and any extension of its scope would be limited to ‘serious crime having a cross-border dimension’ and require the unanimous approval of all participating Member States and the European Parliament. 

Concluding remarks

The ‘in/out’ option that has emerged in domestic politics is crude and dangerous. The promise of a referendum along those lines by 2017 has seemingly set in train a period of frenzied, mis-leading and alarmist commentary. This intervention seeks to explain some of the basic legal facts and fiction around the UK’s position in relation to EU criminal law.

The Article 36 opt-out does not and cannot rid the UK of the entire EU criminal law agenda, even in the event that the UK Government chose not to exercise its right to seek to rejoin certain measures.  It cannot simply ‘walk away’ from EU criminal law. Any pre-Lisbon measures amended since 1 December 2009 and any new measures adopted since that date are not subject to the Protocol 36 opt-out. And the UK has already committed itself to many of these. This legal reality appears to have been misunderstood or ignored in much of the debate amongst those pushing for the exercise of the opt-out. The fact is that the Protocol 36 opt-out is less about repatriating powers from Brussels than about degrees of future participation in a system already in place. The UK is in a very privileged position in this sense and its ongoing willingness to engage in this agenda is to be welcomed in the interests of safety, security and justice for UK nationals, if nothing else.

The EAW is by no means perfect and reflection, review and reform should never be off the agenda. On balance we believe it to be a positive force and as such it is preferable to be ‘in’ it – with a chance to shape it – than ‘out’ of it. Much the same goes for the European Union itself.

Europe's leaders have recently reiterated their general commitment to accommodating different national positions on integration in the EU: ‘Our diversity is an asset, our unity brings strength. In our Union, different degrees of cooperation and integration exist.’ It would seem that there is a real future for even a typically skeptical United Kingdom in this very modern club of nations whose aims are to promote peace, the well-being of its peoples and its values of respect for human dignity, freedom, democracy, equality, respect for human rights and the rule of law.

Barnard & Peers: chapter 2, chapter 25

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Double Jeopardy and EU Law: Court clarifications and Commission reports

Steve Peers

It’s just like buses. You wait almost four years for a CJEU judgment on the Schengen double jeopardy rules, and then two judgments come along almost at once. What’s more, the Commission has also just released two reports on the application of related EU legislation. The judgments have provided a number of useful clarifications of the rules, which the reports paint the familiar disappointing story of tardy implementation of Member States’ legal obligations.

Background

Double jeopardy (or ne bis in idem) in criminal cases, ie trying the same person for the same crime more than once, is banned by many national constitutions and by the Seventh Protocol to the European Convention on Human Rights (although a few Member States have not ratified this Protocol).  However, these rules generally only apply the rule to trials within the same State.

EU law goes further than this, by establishing a cross-border rule. Article 54 of the Schengen Convention, which applies in all Member States except Ireland, as well as the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein), states that ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Article 55 of the Convention allows for a limited number of exceptions to this rule, and Article 56 provides that if there is a second prosecution, any period of deprivation of liberty arising from the same acts in the first Member State must be deducted from any sentence imposed in the second Member State. Article 57 sets up a process of consultation between Member States to implement the rules, while Article 58 allows Member States to apply more generous rules between themselves.

Despite the current limits on the CJEU’s jurisdiction over EU criminal law measures adopted before the Treaty of Lisbon, there have been a considerable number of judgments on these rules over the years, since about two-thirds of Member States have opted into the Court’s jurisdiction. We might expect more cases being sent to the CJEU on these issues after December 1 this year, when those limits will be removed. Cases could even be sent from the UK courts, since the UK intends to opt back in to (among other things) these provisions of the Schengen Convention when it opts out of a lot of pre-Lisbon EU criminal law measures on that date.

EU law does not generally regulate the application of the double jeopardy principle within the same Member State, although it might be relevant where the proceedings concern a substantive criminal law issue linked to EU law (see, for instance, the Fransson judgment).

While national, international and EU law on substantive criminal law often provides for extraterritorial jurisdiction, an investigation into the same person for the same acts in multiple Member States is in prlnciple a waste of time and money, since the person concerned cannot usually be tried twice in both Member States. So back in 2009, the EU adopted a Framework Decision on conflicts of jurisdiction, setting up a process of information and consultation between national authorities if there was an indication that there multiple proceedings concerning the same acts committed by the same person.

On the other hand, if the same person has committed differentcrimes, national criminal law systems usually impose some form of added penalty, in the form (for instance) of harsher bail conditions or a longer sentence in the event of a conviction. It follows from the cross-border nature of EU Justice and Home Affairs cooperation that this principle should apply even if a prior conviction was handed down by another Member State. So another Framework Decision, adopted in 2008, sets out the details of how this rule applies.

The judgments

The first recent judgment, in Spasic, raised two points. First of all, is the rule limiting the double jeopardy rule to cases where the penalty (if there is one) has been enforced, can no longer be enforced or is being enforced (the ‘execution condition’), valid in light of the EU Charter of Rights? Secondly, how does that condition apply where a criminal conviction has resulted in both a custodial penalty and a fine, where the fine has been paid but the custodial penalty has not been served?

These questions were relevant in this case because Mr. Spasic had paid a fine of 800 euros imposed as a sentence by an Italian court for passing counterfeit currency, but had not served the one-year sentence which was imposed for the same acts. So could he still be prosecuted in Germany for them, given that the double jeopardy right in Article 50 of the Charter does not mention any execution condition?

In the Court’s view, the execution condition was valid in light of Article 52(1) of the Charter, which sets out the rules for limiting Charter rights. Limitations must be provided for by law, respect the essence of the rights and freedoms and be necessary and proportionate in pursuit of an objective of general interest.

Here, the limitation was clearly provided for by (EU) law. It respected the essence of the right, since it only limited the double jeopardy rule where the person concerned had escaped punishment. It aimed at securing objectives of general interest, since the Treaty rules on JHA objectives implicitly aimed to avoid situations of impunity. 

As for proportionality, while there were other relevant EU measures, the Framework Decision on conflicts of jurisdiction did not ensure that the person would be punished, and the Framework Decision on transfer of prisoners was subject to the conditions of consent of the person concerned and of the sentencing State. However, the CJEU accepted that it would not be proportionate to bring a second set of proceedings in Germany, if Italy wanted to enforce its sentence (Mr. Spasic had not served that sentence simply because he was imprisoned in Austria for different offences at the time).

On the second point, the Court ruled that custodial and non-custodial penalties were severable for the purpose of applying the execution condition. So paying an 800-euro fine did not equate to partial satisfaction of a one-year jail term, and so did not exempt the person concerned from being prosecuted in a second Member State.

The second case, M, concerned allegations of child abuse against an Italian man living in Belgium. The Belgian authorities investigated these, but a pre-trial chamber gave a ‘non-lieu’ ruling, meaning that the case could not proceed to trial due to insufficient evidence. This ruling was eventually upheld on appeal. In the meantime, the Italian courts had begun their own investigation, and wanted to know if the Belgian ruling was a ‘final judgment’ which prevented them from proceeding to trial.

In the Court’s view, it was. A final judgment could include a pre-trial measure (like the plea bargain accepted by prosecutors in the earlier Gozutok and Brugge case), as long as it finally determined the case on the merits according to national law (applying the test in Turansky). That was the case here, once the appeal was decided. Referring to the Zolukhtunin judgment of the European Court of Human Rights, the CJEU ruled that a possibility of an extraordinary remedy did not preclude a trial from being final. Nor did the possibility, referred to in the ECHR Protocol and Belgian law, of bringing a fresh prosecution, as a derogation from the double jeopardy rule, in the event of new or newly discovered evidence. The Court confirmed that in that case, only the first Member State, not the second, could bring a fresh prosecution.

The reports

For the Framework Decision on conflicts of jurisdiction, the Commission report notes first of all that only about half of the Member States have implemented it (the deadline was June 2012). This makes sense for the UK, since it does not seek to opt back in to this measure. It should be noted that infringement proceedings against Member States will also be possible when the 1 December deadline soon expires.

Overall, while the Commission refers to this measure as a ‘first step’, it states that it cannot draw ‘general conclusions’ about the quality of implementation, because few Member States have practical experience in its implementation. But it does note that some Member States have not applied the key rules on the information to be transferred between authorities. Most Member States permit parallel investigations to take place, even after the consultation process, although they are a waste of time and money. Only Croatia has an express rule (corresponding to the M judgment) that a final judgment in one Member State must terminate a pending prosecution in another.

As for the report on the Framework Decision on the consequences of convictions, six Member States have still not applied it (the deadline was back in 2010). This time, the UK, which seeks to opt back in to this measure, has applied it.

The Commission is rightly concerned that Member States limit the mutual recognition obligation to cases of a final conviction, for otherwise they would be infringing the presumption of innocence. Overall, the Commission expresses dissatisfaction mainly with a group of nine Member States which have claimed to implement the Framework Decision without giving further detail. Obviously it would be wise for those Member States to provide that further detail over the next six months, before infringement actions can be launched. The Commission does not assess the practical application of the European Criminal Records Information system (ECRIS), established by separate EU legislation, which is the main way of ensuring that the relevant information is transferred between Member States in the first place.

Comments

The Court’s ruling that the ‘execution condition’ in the Schengen rules was valid is convincing in light of the great public interest in preventing impunity for those convicted of criminal offences. For the same reasons the Court was right to reject the argument that payment of an 800-euro fine was equivalent to serving a year in jail. That would have amounted to de facto impunity.

Crucially, the Court rightly applied the principle of proportionality to rule that on the facts of the case, a second prosecution could nonetheless not take place if it was still possible in practice to serve the initial sentence instead. This rule ensures that the person concerned does not end up serving two separate sentences for the same crime (recalling that any time served in one Member State would have to be deducted from the time served in another one), and could prevent the cost and waste of time of a second prosecution if it proves to be unnecessary after all.

It should be noted that the Court did not rule here on whether the national derogations permitted by Article 55 of the Schengen Convention are valid. Unlike the execution condition, these rules do not aim to avoid impunity, but rather allow a second prosecution to be brought where: the act took place on a Member State’s territory; the act concerned national security or ‘equally essential’ interests; or the person concerned was an official of the State concerned. In all these cases, justice would best be served by giving the Member State concerned the first opportunity to bring a prosecution, and the Framework Decision on conflicts of jurisdiction should facilitate that. But it may be questioned whether those interests are strong enough to justify the power to bring a second prosecution (although again it must be recognised that any time served in the first Member State must be deducted from any sentence in the second).  

As for the M case, it answers a number of important issues. It is now clear that the double jeopardy rule is triggered only on disposition of a final appeal in the first Member State, and (implicitly) that the rule not only prevents the startof proceedings in a second Member State, but also terminates proceedings that are already underway. Again, the relevance of the Framework Decision on conflicts of jurisdiction becomes clear: whichever of the Member States concerned lost the ‘race’ to a final judgment (stereotypically, this was Italy) would end up having wasted its time and money.

The clarification of what happens in the event of new evidence is also important. It should be noted that, as the Advocate-General pointed out, if new evidence surfaces in Italy (or any other Member State), EU rules can facilitate its transfer to Belgium for the authorities to consider it. Also, the Court makes a general statement that only a ruling on the ‘merits’ counts as a final judgment. This sits oddly with its judgment in Gasparini, where it ruled that a proceeding which was time-barred in one Member State counted as a final judgment, so that case must be seen now as an anomaly.

More broadly, the two new judgments go a long way to reconcile the Schengen double jeopardy rules with human rights law. Oddly, the Court had never before mentioned Article 50 of the Charter in the context of the Schengen rules, until the Spasic case forced it to. Afterward, in the M case, the Court now refers to interpreting the Schengen rules in light of the Charter. As for the ECHR, the CJEU positively dismissed its relevance back in the Van Esbroeck judgment, but since the Strasbourg Court aligned itself with the CJEU's interpretation of the principle in Zolukhtunin, the CJEU is now happy to rely upon the other Court's rulings as a source of interpretation.   

What about the EU legislation? The Court itself, in theSpasic case, said in effect that the Framework Decision on conflicts of jurisdiction was too weak to affect its interpretation of the double jeopardy rules, since it did not ensure that the person concerned would be punished (although actually, that isn’t its main purpose). The M case shows, as noted above, how an early decision on conflicts of jurisdiction is necessary to avoid wasting time and money, and to reduce complications for suspects, particularly given that (in the view of the Belgian courts) there was insufficient evidence to prosecute in that case.

Overall, there seems to be plenty of reason to fear that, as I predicted some time ago, the Framework Decision on conflicts of jurisdiction has done nothing much to avoid multiple prosecutions, in particular because it lacks an obligation in principle to centralise prosecutions, never mind a list of criteria to apply to determine where the prosecution should take place. It has obviously had no effect in the half of Member States which have not bothered to transpose it at all. Since the Commission regards this measure as a ‘first step’, it should have considered measures to amend it to this end at the earliest opportunity.

As for the Framework Decision on the consequences of prior convictions, the Commission assesses its implementation on paper, but not its implementation on the ground. The real question is how it works in conjunction with the ECRIS system, and in particular whether there are any problems as regards the classification of convictions rendered in other Member States.

These reports are released as justice ministries begin their last lazy summer before the prospect of infringement proceedings to make them to live up to their legal obligations (as we have seen previously on this blog, these failures extend also to legislation on prisoners and probation, and to hate crime lawtoo). Time will soon tell whether the Commission will step up to the plate and assume its role as the guardian of EU law in this field.

Barnard & Peers: chapter 9, chapter 25

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Counterfeiting the euro: The EU legislature applies the principle of ineffectiveness

Steve Peers

In some of its key judgments concerning EU criminal law, most notably Pupino and its judgments on the legal base for environmental crime legislation, the Court of Justice of the European Union (CJEU) has attempted to strengthen the principle of effectiveness in this area. However, the EU legislature has recently agreed on a new Directive on counterfeiting the euro, which could only be described as an application of the principle of ineffectiveness.

Background

The issue of counterfeiting the euro is currently addressed by a number of measures, most notably a pre-Lisbon measure, a Framework Decision forming part of the previous 'third pillar', which dates from 2000. This Framework Decision sets out substantive criminal law rules regarding counterfeiting currencies, including the euro. It requires Member States to define as a criminal offence the fraudulent making or altering of currency, as well as a number of similar offences.

The various offences must be 'punishable by effective, proportionate and dissuasive criminal penalties, including penalties involving deprivation of liberty which can give rise to extradition'. More precisely, the offence of fraudulent making or altering of currency must be punishable by a possible maximum penalty of at least eight years. This was the first time the EU had included a rule on sentencing in its substantive criminal law legislation, and most such EU measures adopted since have included further sentencing rules.

The new Directive

In its proposal for a Directive to replace the Framework Decision, the Commission again hoped to break new ground: it suggested that for the first time, EU legislation should establish a minimum sentence for certain crimes. In this case, there would be a minimum penalty of at least six months' imprisonment for certain offences of counterfeiting currency, if at least €10,000 was involved.

The Commission's rationale for this proposal was that many Member States had provided for no minimum sanctions, or only for fines as a penalty as regards counterfeiting currency, therefore increasing the incentive for counterfeiters to 'forum-shop' for a jurisdiction which would treat them quite leniently if they were caught. At p 13 of its impact assessment, the Commission offers convincing evidence that this is taking place. In four Member States with no minimum sanctions, or fines as minimum sanctions, there were 343 cases of illegal printeries dismantled from 2002-2011 (86 cases/Member State). In eleven Member States which provide for at least six months' imprisonment for counterfeiting currency, there were only 179 such cases during the same period (16 cases/Member State). This discrepancy isn't due to the size of Member States, since there was only one large Member State in the first category, and three large Member States in the second. As the Commission suggests, 'these figures seem to suggest that Member States with low levels of sanctions tend to attract counterfeiters'.

However, the European Parliament (EP) and the Council were not willing to accept the Commission's proposal on this point. The final agreed Directive only provides for the current eight year possible maximum sentence for fraudulent making or altering of currency, adding a five year possible maximum sentence for related crimes. But there is no provision on minimum criminal sanctions.

On the other hand, two other innovations proposed by the Commission were accepted. First of all, Member States will have to provide for 'effective investigative tools', such as interception and undercover agents, as regards counterfeiting currency. This will prevent investigations being dropped due to the lack of such techniques being available (for an example of this happening in practice, see p. 16 of the impact assessment). Secondly, Member States will have to allow identification of counterfeits while criminal proceedings are underway. This will speed up the process of ensuring that the bogus currency created from the illegal printing press is rejected (for an example of bogus €500 notes being accepted because there was no early access to the counterfeits, see p. 18 of the impact assessment). The European Parliament also insisted upon a new clause requiring the Commission to collect information on the numbers of prosecutions.

The adoption of the Directive will continue the process of replacing pre-Lisbon third pillar acts with ordinary EU legislation (four other Framework Decisions have been replaced by Directives to date). However, since the end of the transitional period relating to pre-Lisbon third pillar acts is nigh (the usual rules on infringement actions and references from national courts will apply from 1 December 2014), this does not matter very much in practice.

The Directive will not apply to the UK and Denmark, matching precisely the opt-out rules relating to the single currency (all other non-eurozone Member States must adopt the euro in principle).  While the Framework Decision will still apply to those countries for now, the UK has decided to opt out of it (without applying to opt back in) as from 1 December this year. In the hypothetical event that the UK then decriminalises the counterfeiting of the euro on its territory, that would arguably be a breach of the principle of 'sincere cooperation' in EU law.

Comments

One wonders why the EU legislature puts such store by the Commission producing comprehensive impact assessments, and then ignores the evidence set out in them. It is true that a minimum criminal sentence might be at odds with some Member States' criminal law systems, which the Treaty rightly requires the EU to respect. However, the best way to address this legitimate concern is to provide for an exception for those Member States in the relevant legislation .

While there are generally good reasons, on grounds of subsidiarity and such respects for national systems, for the EU not to interfere with the basic principles of national sentencing systems, the case of counterfeiting the euro is special. (So is the issue of protection of the EU's financial interests, where the Commission has proposed to interfere with national rules on prescription for the first time.) Any counterfeiting of the EU's single currency necessarily impacts on all the Member States using it, as well as (less directly) the Member States which are required to use it in future. The EU legislature's choice to apply the principle of ineffectiveness in this new legislation is therefore regrettable.


Barnard & Peers: chapter 25

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