1
THE DRAFT FRAMEWORK DECISION ON THE EUROPEAN ENFORCEMENT ORDER
Judge Rob Blekxtoon[1]
The Council of The European Union, in the wake of the FWD on the EAW, has launched a proposal for a Framework Decision, regulating the transfer of the enforcement of sentences and of sentenced persons between Member States of the European Union.[2].
According to the Explanatory Note[3] (re Art. 20), this Draft Framework Decisionis intended to replace present instruments dealing with this matter. The most important of those is the Convention on the Transfer of Sentenced Persons 1983 (CTSP). For reasons of brevity, I will compare the system of the Draft FWD (and its consequences) only with that of the CTSP.
Description of the differences between the FWD and the CTSP.
Although the Preamble (§ 4) only focuses on tworestrictions of the CTSP that are apparently felt as troublesome (‘nationality’ and ‘consent’), the text of the Draft FWD and its Explanatory Note make clear that its aims are far wider than merely overcoming those two restrictions. In fact the Draft expresses an entirely new concept.
Nationality.
Art. 3–4 CTSP states that the adhering States ‘may at any time, by a declaration addressed to the Secretariat General of the Council,define, as far as it is concerned, the term ‘national’ within the meaning of this Convention’. Consequently, under the CTSP, ‘national’ is an ‘open’ concept, the content of which is to be determined by the State in question. (E.g. the Netherlands, by its declaration going with Art. 3 CTSP, has made it applicable to nationals, to Moluccans, and to aliens or stateless persons whose only place of ordinary residence is within the Kingdom and who do not, under the terms of the CTSP, lose their right of residence as a result of a punishment or measures.)
The Draft’s Preamble (§5) refers to ‘nationals and those persons permanently legally resident in its territory’. Art. 4–1 of the Draft adds a third category, consisting of persons who have ‘other close links’ with the State in question. (This third category, which also appears, in a negative sense, in Art. 9 -1-g) of the Draft, reminds of the category offoreigners ‘rooted’ in the Netherlands, who underclassic Dutch extradition-law are equally treated as nationals.)
Consent of the requested person
Under the rules of CTSP, both States concerned as well as the sentenced person must consent to the transfer.This is related to the fact that CTSP, as far as custodial sentences are concerned, serves to improve the rehabilitation of the prisoner by transferring him to his ‘home’-country. There may be special reasons for the sentenced person to think his rehabilitation will better succeed elsewhere (one example from practice is the case of the Dutchman who preferred to serve his long sentence in Venezuela, where he had fiercely fallen in love with a Venezuelan lady who visited him in prison and reciprocated his feelings). Another reason may have to do with the overwhelming differences in the state of the prisons– even within the EU – and suchlike matters.
Althoughthe Preamble (§ 6) to the Draft FWD alsorefers to rehabilitation, Art. 4 of the Draft only requires the consent of the sentenced person in relation to the category of foreigners having ‘other close links’ with the State concerned. In Art. 9-1-f), the consent requirement pops up in relation to decisions in absentia as a (possible) ground for refusal.
Consent of the State concerned
Under Art. 8 of the Draft, in accordance with § 5 of its Preamble, the ‘home State’of the sentenced person will not have to consent for the enforcement order to be valid, apart from cases where one or more of the grounds for non-recognition and non-enforcement, enumerated in Art. 9, apply.
Transfer of prisoners as well as transfer of sentences.
As different from the CTSP, the Draft FWD not only covers the transfer of sentenced persons but also the transfer of the enforcement of sentences if the sentenced person is, still or already, in his ‘home’-country (Art. 3-2).
Abolition (in part) of the double incrimination requirement
The CTSP requires double incrimination (with the additional requirement that the remaining part of the sentence to be served at the time of receipt of the request must be at least six months):Art.. 3–1-cCTSP.The reason for this requirement of double incrimination is that inmost States ordre publicdoes not allow the execution of sentences with regard to acts not criminal under domestic law.
Under Art. 7-1 of the Draft, however, the requirement of double incrimination isabolished with regard to the ‘listed facts’, just as it is under Art. 2-2 of the FWD on the European arrest warrant. (The lists are the same.) Furthermore, theminimum duration of the balance to be served is diminished to four months in theDraft FWD (Art.9–1-f).
Handing over of judgment is no longer prescribed.
Art 6–2–a CTSP prescribes the sentencing State to provide the executing State with a ‘certified copy of the judgment and the law on which it is based’. Sensibly so, because the judgment (except for Common Law States) always contains a description of the proven facts it is based upon and, moreover, indispensable information about the personal circumstances of the person involved, his possible (partial) lack of criminal responsibility and so on and so forth. According to art 4–3–cCTSP, also a ‘statement of the facts on which the sentence was based’ must be added (which of course is a necessity with regard to Common Law States, because their judgments do not mention the description of the proven facts). This system is rigorously discontinued in the Draft FWD. The only information about the facts will be contained in the Annex-form, referred to in Art. 6–1. In case of listed facts, this form sub g)–1 requires a ‘summaryof facts and a description of the circumstances.. etc’ (stress added). Only regarding non-listed facts, ‘a full description of the offences’will be required in the form sub g)–3 . So no full judgment will have to be handed over any more.
The two modes of transfer undertheCTSP.
TheCTSP has two modes of transfer, the so-called continued enforcement (Art.10 CTSP) and the so-called conversion of sentence (Art. 11 CTSP). Under Art. 9-1 CTSP, the competent authorities of the administering State may either continue the enforcement of the sentence, or convert the sentence by substituting for the sanction imposed in thesentencing State a sanction prescribed by the law of the administering State. Under both modes, the administeringState may not aggravate the penal position of the sentencee. Continued enforcement in short means that the sentence may not be modified as regards nature and duration, except in a case where the sentence is by its nature or duration incompatible with the law of the administeringState (e.g. if the sentence exceeds the maximum prescribed by the law of that State), in which case that State may adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. In the case of Conversion of sentence, on the other hand,the law ofthe administeringState in principle applies, although its competent authority shall not be bound by any minimum which the lawof that State may provide for the offence or offences committed (Art. 11-1–d CTSP).Accordingly, the sentence may be adapted to an appropriate level, taking the criminal law climates of both states into account.
Under the Draft FWD, the conversion mode will be abolished. Art. 8–1 Draft FWD states that the competent authority (which is not defined in any way in the text, any sort of authority may be indicated) shall recognise a European enforcement order ‘without any further formality being required’ (emphasis added). The Explanatory Note is even more explicit by stating that ‘allowing the executing State to convert a sentence does not appear compatible with the principle of mutual recognition laid down in the Tampere conclusions and the Hague programme’.
Problematic aspects of the Draft
I. Re-transfer of nationals after surrender
(art 5 (3) FWD on the EAW).
a) General. TheDraft FWD in part also covers the situation ofa national being surrendered to stand trial in another MemberStatewith a guarantee to be retransferred if sentenced (Art. 3–2). Art. 3 – 3- a) makes Art.7 not applicable in such a case. I hopefully understand that this means that the abolishment of the double incrimination requirement does not apply in such cases. Art. 3 – 3- a) is not entirely clear, however, because Art. 7 Draft FWD not only abolishes the double criminality requirement for ‘list offences’, but also in subparagraph 3statesthat in relation to other offences double incrimination may still be made a condition.
If my hope is founded, this at least solves the ordre public problem: In most Member States, sentences cannot be enforced with regard to facts not locally punishable.(E.g. Dutch case law for this reason forbids the surrender of nationals for facts that are not punishable under Dutch law, even if a return-guarantee is offered).
b) The Dutch approach.
The Netherlands have been practicing the extraditionof ‘nationals’ to stand trial abroad for a great many years, and in a way conducive to good and economic international criminal cooperation, the ‘sporting’ way as it were. If it e.g. turns out that the core of the evidence lies in a fat German file, the co-defendants are all Germans and the witnesses are in Germany too, there is good reason to concentrate proceedings in Germany rather than translating the whole of the evidence, splitting off the case of this Dutch defendant and having the cohesion of the case broken down. Very often in such international cases, in accordance with their special merits, Dutch authorities have decided in favour of extradition/surrender, rather than tryingthecase in a Dutch court. Even if theDutch defendant has exclusively acted on Dutch territory,priority may be given (and frequently has been given) to extradition/surrender,but always under a guarantee for retransfer under vigour of the CSTP and its conversion mode. Dutch statute law does not explicitly prescribe that mode for such cases, but the Dutch Supreme Court (‘cour de cassation’) has ruled so.The reason is clear: defendantsmust never, if surrendered only for reasons of sensible criminal cooperation and economy of process, end up being punished according to possibly higher standards of the ‘guest-state’. Anexample from practice is the case of the soft-drugs dealer who sells in Amsterdam to Germans who in their turn export the drugs to Germany whereas he knows (or reasonably has taken into account the real risk) they will do just that. In such casesGermany has jurisdiction and consequently can request his extradition (now:surrender). The advantage for justice is the concentration of proceedings. The disadvantage for the ‘Dutch’ defendant is that he has to stand trial abroad although he may never have been in Germany in his life. Unpleasant, but from a perspective of intensifiedjudicial cooperationnot unreasonable. The German sentences for soft drugs being much higher, however, it would be rather unfair if the defendant would have to pay the price for process-economy by having to serve a much longer sentence that can not be converted.
It is to be expected that Dutch judicial authorities will refuse to cooperate in this manner if the Draft FWD will come in force in its present form. The conversion mode should by any means be retained with regard to the application of the return-guarantee. The present proposal may well be to the detriment of sensible international cooperation in criminal matters and as such counter-productive.
II. The abolition of the conversion mode in general..
The abolition of the conversion mode may not lead to ethical problems in case a person has wilfully decided to commit a crime in a certain MemberState. For instance a Dutch national, calculatingly importing soft drugs from North Africa through Spain (their value greatly increasing by every frontier he crosses) cannot reasonably complain if he gets 12 years + 1 day of imprisonment in Spain (the Dutch maximum being 4 years and sentencing practice often (much) lower.) The Dutch government runs a warning-campaign to that effect. In most cases it is in his interest to serve his sentence at home. There is no real ethical problem if such a person is to serve his sentence in the Netherlands without any reduction.. Not all people committing crimes abroad however do so in such a calculating manner (what about a French couple having a holiday in one of the Baltic States, having a terrible row in which one partner loses his or her life?). In some cases, therefore, the abolition of the conversion mode may cause an ordre pubic problem in the administering State.
III.Omission of the local ’relative’ maximum as prescribed in the CTSP.
Also in other ways the abolishment of the conversion mode may have fairly unreasonableeffects. As mentioned earlier, under vigour of Art.10 -2 CTSP even in a case of continued enforcement the sentence taken over in the executing State must never exceed the local maximum for the facts proven. A similarprovision has been omitted in the Draft FWD. Another example from practice: A defendanthaving theDutch nationalityis extradited to the BRD for an act, committed in the BRD, which constitutes ‘Mord’ (murder) under BRD-law, but ‘doodslag’ (voluntary manslaughter) according to Dutch law. ‘Mord’ entails a mandatory life sentence in the BRD (with as a rule a reconsideration after 16/18 years, which often results in making the balance of the sentence conditional with a five-year term of probation). The Dutch authorities extradite (although they have jurisdiction themselves), the fact being punishable as ‘doodslag’, and the BRD court, after extradition, is free to try and sentence the requested person for ‘Mord’.If this person is retransferred to the Netherlands under the conversion mode, the Dutch court may adapt the sentence to Dutch standards, of course taking into consideration the German feelings in this matter. The proven facts will be ‘re-defined’ according to Dutch law as ‘doodslag’. The maximum sentence for ‘doodslag’ being 15 years the converted sentence may not be over that limit, and may even be below it, as the case may be. Under the continued enforcementmode, however, – the sole mode under the Draft FWD – the converted sentence must be adapted to the Dutch maximum but maynot become lower than that. As said before even adaptation to the local maximum is abolished in the draft FWD (see also the last paragraph of IV).
IV. Life sentences.
There is yet another problem. The Netherlandshas no reconsideration procedure with regard to life sentences. The BRD and the UK do have such a system (and perhaps other Member States have itas well). In the Netherlands only the way of ‘pardon’ is open to a life sentencee. It is there for the asking but has for many, many years been consequently refused . There is no review of such decisions. The EHRCt has ruled that a life sentence without any way of regulated reconsideration is not per se an infringement on human rights.[4] If the Netherlands takes over a German (or UK, for that matter) life sentence, there is no equivalent way of reconsidering. Dutch authorities can only try to approximate the BRD or UK reconsideration system, which has its own safeguards, by granting pardon, which has no built in safeguards at all.
Art. 10–2 CTSP first sentence reads: ‘If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may (…) adapt the sanction to the punishment or measure prescribed by its own law for a similar offence.’. Art. 8-2 Draft FWD has a different approach. With regard to the duration, the sentencemay be adapted in accordance with ‘fundamental principles of the law’.‘Fundamental principles’ supposedly refers to the ordre public, not a very easy principle to apply if only because it very often is ‘unwritten’ law. The Explanatory Note on Art. 8 supplies the sole exampleof a life sentence, presumably thinking of Portugal where life sentences are non-existent. The Netherlands has life sentences for a limited range of very heavy crimes, including ‘moord’ (premeditated killing). Art. 8 Draft FWD willprobably not make it possible for administering States to adapt any life sentence.
By the way, the wording of Art. 8–2 is vague in saying that adaptation is possible to the maximum level provided for a criminal act….’. In a literal sense this means any act, not just the act the person is sentenced for. In order to make it clear that the maximum level provided for by local law is the maximum applicable to the facts proven the text should read: ‘the maximum level provided by local law for the facts proven’.
V. Handing over of judgment no longer prescribed.
This novelty will not only result in a serious information gap, it will also be a lot of work to digest a judgment to a summary of the facts or even to a full description. Who will be in charge of making those digests, and what safeguards will be installed to prevent mistakes in summarising being made? It is far better to keep to the old established system and just send the judgment: it is already available and, presumably, even in electronic format. Of course it may have to be translated, but the costs involved serve an excellent purpose: the authorities of the ExecutingState have a right to know in full just what judgment and person they will have to take over.