European Supervision Order
Please click here to access this document which has been sent to the European Commission, to the Members of the European Parliament, to the national ministries of justice, to the representatives of Member States in Brussels, to the EU Council of Member States, the Council of Europe, the European Court of Human Rights, to CCBE and national bars and law societies, to several NGO’s and other linked organizations and to our membership, defence practitioners in over 35 Council of Europe Member States (February 2013).
A European Directive aimed at reducing the need for pre-trial detention
The European Supervision Order (ESO), establishes an important new tool to reduce the need for non-resident defendants in the EU to be held in pre-trial custody. The deadline for implementation of the ESO Framework Decision in to national law is 1 December 2012, however defence lawyers should be making themselves aware of this important new instrument now and ensuring the implementing legislation is used in their respective jurisdictions. Below is a brief overview of the ESO1. Fair Trials International have also published a Guide to the European Supervision Order which is available by clicking here.
What is the problem?
Non-resident defendants often find themselves in a position where either the courts order their detention because they presume them to be a flight risk or they will release them but require them to stay in the trial state because they do not have confidence that they can be adequately supervised at home. Both situations can have disastrous consequences for the individual (who, of course, at this stage has not been found guilty of any offence): they may lose their job, contact with family and friends may be restricted, if released they may find themselves having to fund living in an unfamiliar country with no family ties or ability to fund themselves, there may be a detrimental impact on their mental welfare. If detained, the trial state has to bear the financial cost of detaining the person. In some countries an individual can be held in pre-trial detention for months or even years.
How will the ESO help?
The ESO establishes a system whereby the decision of a judicial authority in one Member State (the ‘issuing state’), imposing supervision measures on a non-resident defendant as an alternative to pre-trial detention, can be forwarded to the defendant’s state of residence (the ‘executing state’), which then has to recognise the decision and supervise the defendant itself.
What supervision measures are available?
The standard supervision measures covered by the ESO2 include obligations: to inform the authorities of a change of residence; not to enter certain places; to remain at a specified place (with possible curfew requirements); not leaving the territory of the executing Member State; to report at specific times to a specific authority; to avoid contact with specific persons. In addition there are other supervision measures3 which Member States can either accept, or decline, to supervise4 and include: restrictions on professional activity; obligation not to drive a vehicle; financial security; addiction treatment; and avoiding contact with specific objects, which perhaps refers to computers in high-tech crime cases.
Where can the defendant be returned to?
An ESO can be forwarded to the Member State in which the person is ‘lawfully and ordinarily residing’ where the person consents or, at the defendant’s request, can be forwarded to a Member State other than that in which s/he ordinarily resides, in which case, the consent of that authority is required.
What are the grounds of refusal?
Article 15 defines eight circumstances in which the executing Member State can refuse to recognise the ESO, which include: errors in the request; that the state considers that it is not the state of ‘lawful and ordinary residence’ or does not consent to the ESO; where the ESO includes supervision measures which it has not accepted to supervise; where recognition would contravene the ne bis in idem rule (double jeopardy); and where the supervision decision relates to acts which would not constitute a criminal offence in the executing Member State (except for 32 categories of offence, which match those listed in the European Arrest Warrant (EAW) Framework Decision, where dual criminality is not required).
What happens if the supervision measures are breached?
The ESO sets out the procedure if a defendant breaches the supervision measures. The issuing authority decides on the consequences of any such breach.
What happens if the defendant does not attend trial?
The assumption is that the defendant will voluntarily attend court dates in the issuing Member State. However, if a breach of supervision measures leads to the issuing of an arrest warrant, the defendant is to be surrendered in accordance with the EAW Framework Decision . The usual restriction that an EAW can only be issued for the surrender of someone wanted to stand trial if the maximum penalty is at least two years’ imprisonment does not to apply to ESO cases in principle, although Member States can decide that they will apply a minimum sentence threshold.
What should I do now?
Clearly the ESO’s effectiveness depends on practitioners ensuring that it is considered and used by the courts. The European Criminal Bar Association (ECBA) and Fair Trials International (FTI) are collating information about how this instrument works in practice so please send your feedback, good or bad, by email to firstname.lastname@example.org or to email@example.com (CC’d to firstname.lastname@example.org and email@example.com) with the subject heading ‘ESO implementation feedback’.
1. The full framework decision can be located at http://euromed-justice.eu/document/eu-2009-council-framework-decision-2009829jha-23-october-2009-application-between-member
2. article 8(1) of the Framework Decision
3. Article 8(2) of the Framework Decision
4. This has to be in principle and not on a case by case basis