Green paper on mutual recognition of non-custodial pre-trial supervision measures {SEC(2004) 1046}
Date: 2004-08-17
Institutions: European Commission
Subjects: EU national, area of freedom, security and justice, citizens' Europe, criminal procedure, right to justice

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 17.8.2004 
COM(2004) 562 final 

GREEN PAPER 

on mutual recognition of non-custodial pre-trial supervision measures 

(presented by the Commission) 

{SEC(2004) 1046} 

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TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

1.3. 

2. 

3. 

3.1. 

3.2. 

3.3. 

Why is the Commission presenting a Green Paper...................................................... 3 

Identification of the problem........................................................................................ 3 

Need for action............................................................................................................. 3 

Possible solution .......................................................................................................... 3 

The consultation process .............................................................................................. 4 

Objectives of this Green Paper..................................................................................... 4 

To extend the debate to a wider audience .................................................................... 4 

To focus on mutual recognition of non-custodial pre-trial supervision measures ....... 5 

To explore the possibilities of taking action ................................................................ 5 

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on mutual recognition of non-custodial pre-trial supervision measures 

GREEN PAPER 

The purpose of this Green Paper is to serve as a basis for discussions about the preparation of 
a  Commission  proposal  for  a  new  legislative  instrument  on  mutual  recognition  of  judicial 
decisions  relating  to  non-custodial  pre-trial  supervision  measures.  A  Commission  Staff 
Working  Paper  associated  with  the  Green  Paper  (SEC(2004)  1046)  contains  a  detailed 
analysis of the relevant legal framework in this area and the Commission’s thinking on how 
such an instrument could be drawn up. 

1. 

WHY IS THE COMMISSION PRESENTING A GREEN PAPER. 

1.1. 

Identification of the problem 

The  excessive  use  (and  length)  of  pre-trial  detention  is  one  of  the  main  causes  of  prison 
overpopulation.  Owing  to  the  risk  of  flight,  non-resident  suspects  are  often  remanded  in 
custody, while residents benefit from alternative measures. 

According  to  general  principles  of  law,  custody  pending  trial  shall  be  regarded  as  an 
exceptional measure and the widest possible use should be made of non-custodial supervision 
measures. However, the different alternatives to pre-trial detention that exist in national law 
(e.g. reporting to the police authorities or travel prohibition) cannot presently be transposed or 
transferred  across  borders  as  States  do  not  recognise  foreign  judicial  decisions  on  these 
matters. 

The  introduction  of  a  legal  instrument,  which  would  enable  the  EU  Member  States  to 
mutually  recognise  non-custodial  pre-trial  supervision  measures,  would  help  reduce  the 
number  of  non-resident  pre-trial  detainees  in  the  European  Union.  At  the  same  time,  the 
introduction of such an instrument would reinforce the right to liberty and the presumption of 
innocence  in  the  European  Union  seen  as  a  whole  (i.e.  in  the  common  area  of  freedom, 
security  and  justice)  and  would  decrease  the  risk  of  unequal  treatment  of  non-resident 
suspected persons. 

1.2. 

Need for action 

There  is  a  clear  mandate  to  take  action  on  this  issue  under  the  measures  9  and  10  of  the 
Programme  of  measures  to  implement  the  principle  of  mutual  recognition  of  decisions  in 
criminal  matters  of  November  20001  (hereinafter  the  “mutual  recognition  programme”), 
which  was  adopted  at  the  request  of  the  Tampere  European  Council.  The  details  of  this 
mandate are set out in chapter 2.2.1.3. of the Commission Staff Working Paper. 

The need for action at European level has been stressed by the European Parliament in several 
resolutions, as well as identified by other regional cooperation bodies such as the Council of 
Europe and the Commissioner of the Baltic Sea States. It has also been highlighted by various 
Non Governmental Organisations (NGOs) operating in the field. 

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OJ C 12, 15.1.2001, p. 10. 

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1.3. 

Possible solution 

The  main  idea  of  a  new  instrument  on  mutual  recognition  of  non-custodial  pre-trial 
supervision  measures  is  to  substitute  pre-trial  detention  with  a  non-custodial  supervision 
measure  and  to  transfer  this  measure  to  the  Member  State  where  the  suspected  person 
normally has his or her residence. This would allow the suspected person to be subject to a 
supervision measure in his or her normal environment until the trial takes place in the foreign 
Member  State.  Different  models  on  how  to  implement  this  idea  are  discussed  in  the 
Commission Staff Working Paper. 

In  order  to  ensure  the  compliance  with  a  non-custodial  supervision  measure,  the  new 
instrument  must  contain,  as  a  last  resort,  a  coercive  mechanism  to  return  an  uncooperative 
suspected person to the trial State, if necessary by force. It is rather the mere existence of such 
a possibility than its actual use that ensures the smooth functioning of the new instrument. It 
should  be  underlined  that  in  the  absence  of  possible  recourse  to  coercive  measures,  there 
would be a risk (in the short and in the long run) that the relevant category of persons will not 
benefit from alternative measures at all. The different aspects of such a coercive mechanism 
are also considered in the Commission Staff Working Paper. 

2. 

THE CONSULTATION PROCESS 

The  present  Green  Paper  is  the third  step  in  the  consultation  process  on  alternatives  to  pre-
trial detention. 

The  first  step  was  to  draw  up  and  send  out  a  questionnaire  on  pre-trial  detention  and 
alternatives  to  such  detention  in  order  to  identify  possible  obstacles  to  cooperation  between 
Member  States  in  this  area.  The  then  15  EU  Member  States  submitted  replies  to  the 
questionnaire. A summary of the replies concerning, i.a., non-custodial supervision measures 
(alternatives to pre-trial detention) and applicable penalties in the event of non-compliance (as 
required under measure 9 of the mutual recognition programme) is in the Commission Staff 
Working Paper (annex 2). 

The  second  step  was  to  write  a  Discussion  Paper  on  the  basis  of  the  replies  to  the 
questionnaire and to organise an experts’ meeting. The Discussion Paper (of 24 April 2003), 
which was sent to a number of experts on pre-trial detention and alternatives to such detention 
in the EU Member States (and the then acceding countries), proposes, i.a., the introduction of 
a  so-called  European  order  to  report  to  an  authority  as  a  non-custodial  pre-trial  supervision 
measures  at  European  Union  level.  The  Discussion  Paper  further  considers  the  limits  and 
possibilities  for  taking  action  in  the  field  of  pre-trial  detention  in  general.  The  experts’ 
meeting was held in Brussels on 12 May 2003. Several experts, including representatives of 
NGOs, had been invited on an individual basis, while other experts represented their Member 
States. Eurojust was also represented. At this meeting, different aspects of pre-trial detention 
and alternatives to such detention were discussed, in particular the Commission’s thinking on 
the  European  order  to  report.  The  Green  Paper  takes  fully  into  account  the  outcome  of  that 
meeting (for further details, see the Commission Staff Working Paper). 

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3. 

OBJECTIVES OF THIS GREEN PAPER 

3.1. 

To extend the debate to a wider audience 

The  main  objective  of  this  Green  Paper  is  to  extend  this  consultation  process  to  a  wider 
audience,  including,  i.a.,  practitioners,  such  as  judges,  prosecutors  and  defence  lawyers, 
people working in the social and probation services, pre-detention establishments and prisons, 
professional organisations, academic circles, relevant NGOs and public authorities. 

3.2. 

To focus on mutual recognition of non-custodial pre-trial supervision measures 

The present Green Paper focuses on mutual recognition of non-custodial pre-trial supervision 
measures.  Some  relevant  items  (legal  assistance,  interpreter  and  translator,  vulnerable 
categories,  e.g.  children  and  juveniles,  consular  assistance/right  to  communication  and  the 
“letter  of  rights”)  have  already  been  dealt  with  by  the  Green  Paper2  and  the  Proposal  for  a 
Council  Framework  Decision  on  certain  procedural  rights.3  Although  linked  to  the  legal 
framework  of  pre-trial  detention  and  alternatives  to  such  detention,  the  Commission  Staff 
Working Paper does not enter into details on those questions, unless this is deemed necessary. 

3.3 

To explore the possibilities of taking action 

The  introduction  of  a  mutual  recognition  scheme  for  non-custodial  pre-trial  supervision 
measures at European Union level must, however, not be separated from the legal framework 
that governs pre-trial detention in general. It should be remembered that supervision measures 
in  principle  are  alternatives  to  pre-trial  detention.  Certain  fundamental  principles  that  are 
applicable  to  pre-trial  detention  in  general  are  mutatis  mutandis  also  applicable  to  non-
custodial  supervision  measures.  Consequently  these  principles  must  be  considered  when 
drawing  up  an  instrument  on  mutual  recognition  and  enforcement  of  non-custodial  pre-trial 
supervision measures. 

The Commission Staff Working Paper explores the possibilities of taking action in this area in 
the light of existing conventions, case law and national legislation.  

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COM(2003) 75 final. 
COM(2004) 328 final. 

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The  Commission  invites  you  to  comment  on  this  Green  Paper  (including  the  Commission 
Staff Working Paper) and in particular on the questions listed below. The Commission would 
also  welcome  your  comments  on  new  developments  in  the  field  of  alternatives  to  pre-trial 
detention in the Member States (including applicable penalties in the event of non-compliance 
with an obligation under a non-custodial supervision measure). 

To facilitate exchange of views, a website is opened, hosting this Green Paper and a series of 
relevant links. 

http://europa.eu.int/xxx/livre vert 

Until x x 2004, answers may be given, preferably to the following address: 

xxx-livre-vert@cec.eu.int 

or by post to: 

European Commission 

Directorate-General Justice and Home Affairs 

Unit D3 – Criminal justice 

B-1049 Brussels 

Belgium 

Marked for the attention of Mr. Thomas Ljungquist 

The Commission intends to organise a public hearing in 2004. 

Question 1: 

Considering  the  negative  consequences  of  the  present  legal  framework  as  regards  the 
treatment of non-resident suspects in the area of alternatives to pre-trial detention: 

(a) 

(b) 

(c) 

Do  you  agree  with  the  approach  of  the  Commission  with  respect  to  mutual 
recognition  of  non-custodial  pre-trial  supervision  measure  as  described  in  chapter 
4.3.  of  the  Commission  Staff  Working  Paper  (i.e.  the  possibility  of  monitoring  the 
suspected  person  in  his  or  her  country  of  normal  residence  and  the  necessity  to 
introduce  a  mechanism  that  ensures  the  presence  of  the  accused  person  at  the  trial 
unless this person can be judged in his or her absence) in order to ensure the full EU-
wide implementation of the right to liberty and the presumption of innocence? 

If not, are there alternative solutions? 

Please describe them. 

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(d) 

Should  a  mechanism  for  mutual  recognition  of  non-custodial  supervision  measures 
also cover less serious offences (i.e. below the threshold of Article 2(1) of the FD-
EAW)? 

Question 2: 

Should a mechanism for mutual recognition of non-custodial supervision measures cover 

– 

– 

– 

the situation when a suspected person, who already is subject to such measures and 
who,  permanently  or  temporarily,  wants  to  go  to  another  Member  State,  makes  a 
request for transfer of these measures to that Member State (as described in chapter 
4.2.2.3. of the Commission Staff Working Paper)? 

if yes, under which conditions? 

the  situation  when  the  suspect  has  already  gone  to  another  Member  State  (as 
described  in  chapters  4.2.3.1.,  “suspect  in  breach  of  an  obligation  under  non-
custodial  pre-trial  supervision  measure”  and  4.2.3.2.,  “late  application  for  non-
custodial supervision measures”, of the Commission Staff Working Paper)? 

– 

if yes, under which conditions? 

Question 3: 

(a) 

(b) 

(c) 

Should  the  new  instrument  contain  a  provision  on  a  specific  non-custodial  pre-trial 
supervision measure, such as the European order to report, possibly in combination 
with a travel prohibition order, as described above? 

Would it be appropriate to let the issuing authority decide the non-custodial pre-trial 
supervision measures to be applied during the monitoring phase (in accordance to its 
national  law)  or  in  what  way  the  suspected  person  should  comply  with  a  European 
order to report (i.e. how oft he or she should report, to what authority etc.)? 

Would  it  be  more  suitable  to  let  the  executing  authority  choose  the  appropriate 
coercive  measures  in  accordance  with  its  national  law,  leaving  to  the  issuing 
authority only to specify the objective to be monitored? 

(d) 

Would the Eurobail model be suitable? 

Question 4: 

(a) 

(b) 

(c) 

Should the new instrument contain any mandatory grounds of refusal in the event of 
amnesty,  final  judgment  and  other  final  decisions or relating to the age of  criminal 
responsibility? 

Are the other grounds for refusal, contained in Article 4 of the FD-EAW, relevant in 
the context of an order for transfer of alternative measures? 

In particular, should the executing authority have the right to refuse the execution on 
the ground of lack of double criminality? 

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Question 5: 

Could  there  be  conditions  for  enforcing  an  order  for  transfer  of  alternative  measures  other 
than: 

– 

– 

return to the State of residence for serving the sentence? 

possibility of revision in case of life imprisonment? 

Question 6: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

(i) 

Should  the  issuing  authority  specify  the  obligation  (relating  to  the  three  “classical 
dangers”, i.e. the dangers of re-offending, flight and suppression of evidence) to be 
complied with by the suspected person under the non-custodial pre-trial supervision 
measure  in  a  form  (in  line  with  what  has  been  said  above)  letting  the  executing 
authority  decide  coercive  measures  other  than  detention  in  the  event  of  non-
compliance? 

Should the executing authority be obliged to report a (severe) breach of an obligation 
relating to the “three classical dangers”? 

Should the executing authority be allowed to remand the suspected person in custody 
in the event of non-compliance with an obligation under a supervision measure and 
detain him or her until the trial takes place or should this authority return the suspect 
immediately to the issuing authority? 

Could  the  participation  of  the  suspected  person  through  a  video  link  from  the 
executing  Member  State  replace  the  physical  presence  of  this  person  in  the 
proceedings before the issuing authority as regards (only) the question whether he or 
she should be remanded in custody in the issuing Member State? 

How should the situation be resolved where the issuing and the executing authorities 
have different views on whether a person who is in breach of an obligation should be 
remanded  in  custody  or  whether  the  danger  can  be  eliminated  by  imposing  a  new 
obligation? 

Should a mechanism to return the suspected person from the executing Member State 
to  the  issuing  Member  State  apply  to  both  the  monitoring  phase  and  to  the  trial 
phase? 

Should the issuing authority specify the obligation to come to the trial or/and that the 
person in question could be judged in absentia in the event that he or she does not 
attend the trial and would this person have to consent to this obligation before he or 
she can benefit from an alternative measure in the executing Member State? 

Should the executing authority, during the monitoring phase and the trial phase, be 
allowed to postpone the return of the suspected person? 

In  particular,  should  the  executing  authority  have  the  possibility  to  postpone  the 
return  of  a  person  who  is  suspected  of  having  committed  a  new  offence  within  its 
territory? 

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