Letter dated April from Lord Grenfell to Rt Hon Baroness Scotland of Asthal QC Attorney General Office for Criminal Justice Reform - 5213/08, 7279/08 and 8372/08: In absentia judgments by Parliament


									From: THE LORD GRENFELL Chairman of the Select Committee on the European Union

Tel: 020 7219 6083 Fax: 020 7219 6715

3 April 2008

Doc 5213/08 & 7279/08: Draft Framework Decision on the enforcement of judgments in absentia This proposal was considered by Sub-Committee E (Law and Institutions) at its meeting of 2 April 2008. We welcome the general intention of creating a more coherent overall framework. But we remain concerned about the provisions regarding certification as to whether the defendant either appeared at trial or, if not, was summoned in time to appear, and the absence from the draft of any express provision addressing whether or not the defendant’s absence was voluntary. You suggest in your letter that any assessment of such matters could in practice only reasonably be made by the issuing authority, but then refer to the ECHR and Article 1(2). We observe that the primary thrust of the recitals (especially the new recital 4) and text of the draft is to emphasise the conclusiveness of the issuing state’s certificate. Any role of the courts of the executing state is left to inference from Article 1(2) (with its indirect reference to the ECHR), and the draft gives little guidance as to when and in what circumstances the ECHR might enable or require the executing State’s relevant authorities to look behind the certificate. We do not think that these concerns are answered by the possibility that a person against whom a European Arrest Warrant, financial penalty or confiscation order or custodial or other sentence was executed in one State could later seek to have it set aside in the issuing State. Real hardship could in the meantime arise from the execution of the relevant decision. Your letter agreed with us that it would be useful to have the Council of Europe’s views and you envisaged that these would be favourable. However, we note that the Council of Europe has raised similar observations to our own in its note 6706/08 dated 26 March 2008. Although the present draft Framework Decision improves on existing provisions, in bringing consistency and clarity to the grounds for non-recognition and non-execution currently set out in various EU mutual recognition measures, and to this extent we support the proposal, we believe that the Framework Decision should, at the least, make expressly clear that the conclusiveness of any certificate issued by an issuing State as well as the execution of any decision rendered in absentia are both subject to

compliance with the ECHR, and that a person contending that execution of any such decision would involve breach of the ECHR could raise this objection in the executing State. We look forward to seeing the results of the consultation and to hearing whether the Government intend to undertake a full impact assessment. How frequently are decisions in absentia reached in each of the areas covered by the Framework Decisions and what problems have arisen to date? We have decided to retain the document 7279/08 under scrutiny, although we clear document 5213/08 as superseded. We note from your letter that the Presidency is likely to seek a general approach on this dossier at the April JHA Council. However, in light of our concerns, reinforced by the Council of Europe’s observations, we would not feel able to support a general approach which did not make explicit the role of the ECHR in the context of this Framework Decision. If the text were amended to cover these concerns, we would not consider agreement of a general approach to constitute a scrutiny override. The proposal is retained under scrutiny. I am copying this letter to Michael Connarty MP, Chairman of the Commons European Scrutiny Committee; and to Alistair Doherty, Clerk to the Commons Committee; Michael Carpenter, Legal Adviser to the Commons Committee; Les Saunders (Cabinet Office); and Tessa Wearing and Sue Garrod, Departmental Scrutiny Coordinators.


The Rt Hon Baroness Scotland of Asthal, QC Attorney General Office for Criminal Justice Reform Ministry of Justice Selborne House 54–60 Victoria Street London SW1E 6QW

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