Convictions in other countries count in new criminal proceedings
An EU country should attach equivalent weight to convictions handed down in other EU countries as to those handed down by its own courts.
Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings.
WHAT DOES THE FRAMEWORK DECISION DO?
This framework decision establishes the criteria whereby previous convictions handed down in one EU country are taken into account during criminal proceedings in another EU country against the same person, but for different facts.
KEY POINTS
In the context of new criminal proceedings, EU countries must ensure that previous convictions handed down in another EU country are taken into consideration under the same conditions as domestic previous convictions.
These previous convictions are to be taken into account at the pre-trial and trial stage, as well as when the sentence is executed. They should be given due consideration especially in relation to the applicable rules of procedure concerning:
provisional detention;
definition of the offence;
type and level of the sentence;
rules governing the execution of the decision.
Where previous convictions are taken into consideration by the EU country conducting the new proceedings, this must not have the effect of interfering with, revoking or reviewing the previous convictions.
The effect of the framework directive may also be limited if the offence, for which the new proceedings are being conducted, was committed before the previous conviction had been handed down or fully executed. EU countries do not have to apply their national rules on imposing sentences where the application of those rules to foreign convictions would limit the judge in imposing a sentence in the new proceedings. Nevertheless, courts must ensure that they take such previous convictions into consideration for other purposes.
A 2014 report on the implementation of the framework decision noted its added value in promoting trust in criminal law and judicial decisions in the European area of justice. However, amongst the EU countries that had implemented the decision, it found considerable differences in compliance. Thirteen of 22 EU countries were considered to have satisfactory implementing provisions.
On 1 December 2014, the United Kingdom (1) notified the Commission that it wished to participate in the framework decision. This was confirmed by Commission Decision 2014/858/EU.
BACKGROUND
A computerised system, the European Criminal Records Information System (ECRIS) was established in 2012 by Council Decision 2009/316/JHA. It allows EU countries to quickly and easily exchange information on criminal convictions. The ECRIS ensures the practical operability of this framework decision.
For more information, see European Criminal Records Information System (ECRIS) on the European Commission’s website.
REFERENCES
Council Framework Decision 2008/675/JHA
Report from the Commission to the European Parliament and the Council on the implementation by the Member States of Framework Decision 2008/675/JHA of 24 July 2008 on taking into account of convictions in the Member States of the European Union in the course of new criminal proceedings (COM(2014) 312 final of 2.6.2014).
Commission Decision 2014/858/EU of 1 December 2014 on the notification by the United Kingdom of Great Britain and Northern Ireland of its wish to participate in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon and which are not part of the Schengen acquis (Official Journal L 345 of 1.12.2014, pp. 6-9).
Mutual recognition of financial penalties, such as certain speeding fines
Facilitating the enforcement of financial penalties in cross-border cases, wherever in the EU they may have been imposed, helps to ensure equal treatment of EU citizens.
Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties.
The framework decision introduces specific measures, under the principle of mutual recognition, allowing a judicial or administrative authority to transmit a financial penalty directly to an authority in another EU country and to have that fine recognised and executed without any further formality.
KEY POINTS
The framework decision applies to all offences in relation to which financial penalties can be imposed and dual criminality (i.e. when an offence exists under the law of both issuing and enforcing country) checks are abolished in relation to 39 listed offences, such as:
participation in a criminal organisation;
terrorism;
trafficking in human beings, in arms and in stolen vehicles;
swindling (obtaining money or possessions fraudulently);
rape;
road traffic offences.
The penalties must be imposed by the judicial or administrative authority of an EU country and result from a final decision, i.e. there is no longer any possibility to appeal the decision.
When transmitting the decision imposing the financial penalty, the EU country imposing the penalty must transmit a certificate in the language of the EU country executing the decision.
The decision is transmitted to the competent authorities of the EU country where the natural or legal person (a company) has property or income, is normally resident or, in the case of a legal person, has its registered seat.
The EU country to which the decision is transmitted may refuse to execute it if the certificate is not produced, is incomplete or clearly does not correspond to the decision. They may also refuse to execute in a limited number of cases, including if:
the decision has been delivered in respect of the same acts in the executing state or in any state other than the issuing or executing state and, in the latter case, has been executed;
the decision relates to an act that is neither listed as an offence in the framework decision nor constitutes an offence under the national law of the executing state;
the execution of the decision is statute barred (i.e. the time limit for its execution has passed) according to the law of the executing state and relates to acts that fall within the jurisdiction of that state under its own law;
the decision has been imposed on a person who could not have been held criminally liable under the law of the executing state due to his/her age;
the decision provides that the financial penalty will be below €70 or the equivalent.
The execution of the decision is governed by the law of the executing state. The executing state can also:
decide to reduce the amount of the financial penalty in accordance with the amount provided for by national law, on condition that the acts had not been committed in the territory of the issuing state;
impose imprisonment or other penalties provided for by national law in the event of non-recovery of the financial penalty.
Amnesty, pardon and review of sentence can be granted by both the issuing state and the executing state.
REFERENCES
Framework Decision 2005/214/JHA
Framework Decision 2009/299/JHA
EU mutual recognition system – prison sentences and prisoner transfers
Decision 2008/909/JHA – application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union
This framework decision seeks to extend the application of the principle of mutual recognition, whereby EU countries agree to recognise one another’s laws or decisions, to judgments in criminal matters imposing prison sentences.
It describes how EU countries recognise and enforce each other’s judgments in regard to criminal matters. The aim is to help convicted persons to better reintegrate in society.
It allows an EU country to enforce a prison sentence imposed by another EU country against a person who resides in its territory.
It sets up a system for the transfer of convicted prisoners back to the EU country of which they are nationals (or normally live) or to another EU country with which they have close ties so that they serve their prison sentence there.
KEY POINTS
The procedure is based on the following principles:
A judgment with a certificate is transmitted directly by the competent authority of the issuing country to the country enforcing it.
The transfer is subject to the consent of the convicted person, but can be made without this consent in specified circumstances. In all cases, the convicted person should have the chance to give his/her opinion if s/he is still in the country of its issue.
The country of enforcement must, without delay, take measures to enforce the sentence. If a sentence is adapted, it must correspond as closely as possible to, and never be harsher than, the original sentence.
The execution of a sentence is governed by the law of the country of enforcement, as are the grounds for early or conditional release (when the person must respect conditions, such as not going to a certain district).
The decision sets out a list of serious offences that are punishable in the issuing country by at least 3 years in prison, for which judgments are recognised and enforced and for which there is no need to check for dual criminality (i.e. when a crime exists under the law of both issuing and enforcing countries).
The country of enforcement must, in most cases, decide within 90 days of receiving the judgment and the certificate whether to recognise the judgment and whether to impose the sentence. The decision includes a limited list of grounds on the basis of which a country may refuse to recognise a judgment and enforce a sentence.
The European Commission’s 2014 report on the implementation of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA notes that, despite the efforts made to date by some EU countries, the implementation of these three acts is unsatisfactory. It calls on EU countries that have not already implemented the decisions to do so promptly.
ACT
Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ L 327, 5.12.2008, pp. 27–46)
It entered into force on 5 December 2008. EU countries had to incorporate it in national by 5 December 2011.
Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ L 337, 16.12.2008, pp. 102–122)
Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (OJ L 294, 11.11.2009, pp. 20–40)
Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention (COM(2014) 57 final of 5.2.2014)
Commission Staff Working Document — Tables ‘State of play’ and ‘Declarations’ accompanying the document: report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention (SWD(2014) 34 final of 5.2.2014)
Commission Decision 2014/858/EU of 1 December 2014 on the notification by the United Kingdom of Great Britain and Northern Ireland of its wish to participate in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon and which are not part of the Schengen acquis (OJ L 345, 1.12.2014, pp. 6–9)
Recognition and execution of confiscation orders
Council Framework Decision 2006/783/JHA — applying the principle of mutual recognition to confiscation orders
It allows a judicial authority in one European Union (EU) country to send an order to freeze or confiscate property directly to the judicial authority in another EU country where it will be recognised and carried out without any further formality.
What is a confiscation order?
It is a permanent measure to take illegally obtained property away from criminals or their accomplices.
Offences
For a number of serious offences,years it is not necessary for the offence to be a crime in both the EU country issuing the order (issuing countryyears) and the one carrying it out (executing countryyears). However, the offence must be punishable in the issuing country by a jail sentence of a maximum period of at least 3years. The offences include:
participation in a criminal organisation;
terrorism;
corruption and fraud;
trafficking in human beings;
racism and xenophobia;
rape.
Transmission
A confiscation order for money or property may be sent to the EU country where it has reasonable grounds to believe the person or company concerned has property or income. If there are no reasonable grounds, the order may be sent to the EU country in which the person is resident or the company has its registered seat.
A confiscation order concerning property may be sent to more than one EU country at the same time where:
there are reasonable grounds to believe that different items covered by the order are held in several EU countries;
confiscation of a specific item involves action in more than one EU country; or
the item concerned may be located in one of two or more EU countries.
A confiscation order concerning money may be sent to more than one EU country at the same time where:
the property concerned has not been frozen under Council Framework Decision 2003/577/JHA; or
the value of the property to be confiscated in the issuing state and in any one executing state is not likely to be enough to cover the full amount of the confiscation order.
Recognition and execution
The judicial authority of the issuing country must send a certificate, based on the standard form annexed to this decision, to the judicial authority of the executing country to request execution of the order.
The executing country must recognise the order without further formality and take the necessary steps to execute it immediately.
Non-recognition and non-execution
Execution of an order may be refused if the certificate is not produced, is incomplete or clearly does not correspond to the order. It may also be refused in a number of other situations including where:
execution would be against rules protecting citizens from being prosecuted twice for the same offence;
the order is not an offence in the executing country;
there is immunity or privilege under the law of the executing country which prevents the execution of a confiscation order on the property;
under the law of the executing country, the offence is considered to have taken place wholly or partly within its territory;
the offence was not committed in the territory of the issuing state and, under the law of the executing state, this is not considered grounds for legal proceedings.
Postponing execution
Execution may be postponed in several cases including where:
it might damage an ongoing criminal investigation;
the property is already the subject of confiscation proceeding in the executing country;
the order or part of the order needs to be translated.
Interested parties
EU countries must ensure that any interested party, including legitimate third parties, have legal remedies against the recognition and execution of a confiscation order, in order to preserve their rights.
It has applied since 24 November 2006 EU countries had to incorporate it into national law by 24 November 2008.
DOCUMENTS
Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328, 24.11.2006, pp. 59–78)
Subsequent amendments to Framework Decision 2006/783/JHA have been incorporated into the basic text. This consolidated version is of documentary value only.
Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2.8.2003, pp. 45–55)
Report from the Commission to the European Parliament and the Council based on Article 22 of the Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (COM(2010) 428 final, 23.8.2010)
Mutual recognition of probation measures and alternative sanctions
The framework decision seeks to extend the principle of mutual recognition of judicial decisions to the implementation of non-custodial sentences.
Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.
The framework decision sets down the rules to be followed by each EU country to recognise judgments and supervise probation measures (enabling early release) and alternative sanctions (imposing alternatives to detention) issued by other EU countries. It seeks to:
increase the chances of the social reintegration of those who are sentenced by ensuring the follow-up in the EU country in which they are established of the measures imposed;
improve the protection of victims;
facilitate the application of probation measures and alternative sanctions if the offender does not live in the country of conviction.
Probation measures and alternative sanctions
The framework decision lists a number of measures that each EU country must be able to supervise (such as the need to report to the executing authority, to repair damage caused, to not visit certain places, to avoid contact with people or objects, to perform community service, etc.).
Procedures, deadlines and grounds for refusal
The judgment (or the probation decision), accompanied by a certificate, is transmitted directly by the competent authority of the country of issue to that of the country of execution.
The execution country must decide, 60 days after receipt of the judgment or the probation measures and certificate, whether it recognises the judgment or the probation measures and whether it takes responsibility for monitoring its execution; the framework decision lists some reasons why a country may refuse to recognise a judgment.
The law of the executing country applies to the supervision and application of probation measures and alternative sanctions.
The competent authority of the country of execution:
may adapt the measures when, because of their nature or their duration, they are incompatible with its national legislation. It must inform the issuing authority of any proposed adaptation and ensure that measures are as consistent as possible with those imposed by the issuing country;
is responsible for taking any subsequent decision in connection with the supervision and enforcement of the sentence: the modification of obligations, any extension of the probationary period and the revocation of the suspension.
In a report published in 2014, the Commission called on EU countries that have not already done so to rapidly take the necessary measures to implement this framework decision.
WHEN DOES THE FRAMEWORK DECISION APPLY?
The framework decision was to be implemented no later than 6 December 2011.
BACKGROUND
Each year, tens of thousands of EU citizens are prosecuted for alleged criminal offences or convicted in another EU country. Mutual recognition of judgments is the cornerstone of judicial cooperation in criminal matters within the EU.
REFERENCES
Act
Entry into force
Deadline for transposition in the Member States
Official Journal
Framework Decision 2008/947/JHA
16.12.2008
6.12.2011
OJ L 337, 16.12.2008, pp. 102-122
Amending act(s)
Entry into force
Deadline for transposition in the Member States
Official Journal
Framework Decision 2009/299/JHA
28.3.2009
28.3.2011
OJ L 81, 27.3.2009, pp. 24-36
RELATED ACTS
Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention (COM(2014) 57 final of 5 February 2014 – not published in the Official Journal).
last update 03.03.2015
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