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Mutual recognition of pre-trial supervision measures
The Commission has put forward a series of initiatives to enhance the protection of fundamental rights in the European law-enforcement area. This Proposal for a Framework Decision aims to give non-resident European suspects having their abode in another Member State the right to return home under the supervision of their home State to be tried, instead of being held unnecessarily in custody or subject to long-term non-custodial supervision measures in the Member State where the alleged offence took place. This new legal instrument, applied by means of a European supervision order, aims to enable Member States mutually to recognise each other's pre-trial supervision measures.
Proposal for a Council Framework Decision of 29 August 2006 on the European supervision order in pre-trial procedures between Member States of the European Union [COM(2006) 468 final - Not published in the Official Journal].
On the basis of the principle of free movement of persons within an area of freedom, security and justice, the Commission proposes to establish a European supervision order.
This is a judicial order issued by a competent authority within a Member State returning a non-resident suspect to their Member State of residence, providing they comply with the supervision measures. The aim is to ensure the due course of justice and, in particular, to ensure that the person will be available to stand trial in the Member State issuing the European supervision order.
This Proposal for a Framework Decision is a part of the programme for mutual recognition in criminal matters. Certain aspects of such mutual recognition, such as pre-trial supervision measures, had yet to be addressed in the programme. The Commission estimates that this measure should concern some 8 000 people.
There are three players involved in this Proposal:
- an "issuing authority", i.e. a court, a judge, an investigating judge or a public prosecutor, having jurisdiction under national law to issue a European supervision order;
- an "executing authority", i.e. a court, a judge, an investigating judge or a public prosecutor, having jurisdiction under national law to execute a European supervision order;
- a suspect who is not a resident of the Member State in which the order is issued.
Risk of discrimination
Pre-trial supervision measures are not harmonised at Community level. There is currently a risk of different treatment between suspects who are resident in the trial State and those who are not. Such unequal treatment between the two categories - residents and foreigners - is seen by the Council as an obstacle to the free movement of persons within the European Union (EU).
Suspects are generally placed in pre-trial custody due to a lack of social links in the country in which they are arrested. Courts issuing these orders consider that the risk of flight, re-offending and suppression of evidence is greater for these persons.
Apart from the issues surrounding the persons detained, it should be remembered that keeping persons in pre-trial custody also has a significant cost implication for the public authorities involved. It also contributes greatly to prison overcrowding.
This Proposal for a Framework Decision aims to implement a European supervision order. Its objective is to enable suspects to benefit from pre-trial supervision measures in their place of residence; this entails mutual recognition of supervision measures.
Although the suspect may request that a European supervision order be issued, this is not a right in itself. The Commission does not intend to oblige legal authorities to issue European supervision orders, but merely gives them that possibility.
The European supervision order is not merely an alternative to pre-trial custody. It may also be issued in relation to an offence for which only less severe coercive measures (e.g. travel prohibition) than pre-trial detention are allowed, i.e. where the threshold may be lower than for remand in custody.
The Proposal also provides a last resort option of forced repatriation to the trial State of any suspect refusing to cooperate. Before such a decision is taken, the suspect has the right to be heard by the issuing authority, by means of a video link between the two Member States concerned.
Consultation and impact assessment
Following the consultation procedure preceding the adoption of a legal instrument for judicial cooperation in criminal matters, the Commission drafted a Green Paper on mutual recognition of non-custodial pre-trial supervision measures.
An impact analysis on the added value of such an initiative shows that this procedure would extend the right to liberty and the presumption of innocence throughout the EU and would reduce the costs relating to custody.
Based on this consultation procedure and notably the impact analysis, the Commission adopted the proposal for a decision of the Council on 13 December 2006.