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Standard training programme in judicial cooperation in criminal matters

within the European UnionVersion: 3.0

Last updated: 31.11.2012

The European JudicialTraining Network

With the support of the European

Union

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logo of the training organiser

Training organised by(name of training organiser)

on (date) at (place)

Title (of the training)

The European JudicialTraining Network

With the support of the European

Union

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Module 10Post-sentencing cooperation

Version: 3.0 Last updated: 31.10.2012

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Contents

1.Enforcement of convictions Financial penalties Confiscation orders Custodial sentences Suspended sentences or alternative sanctions Disqualifications 2.‘Positive’ taking into account of convictions between

Member States of the European Union

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The enforcement of judgments

Sources:The Council of Europe ConventionsConventions between MS

Conventions of 1987 and 1991 in the framework of European Political Cooperation (EPC)

CISA Convention on Deprivation of the Right to Drive

Framework Decisions on the application of the principle of mutual recognition

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Financial penalties

The low impact of the Council of Europe ConventionsLow rate of ratificationMultiple grounds for refusal

FD 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penaltiesMain source for the Member States of the European Union

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Financial penalties

System under FD 2005/214/JHA of 24 February 2005 Scope: final decisions requiring a financial penalty to be paid

by a natural or legal person: no later than 5 years after entry into force

Decisions made by a court, or by another authority: conditions and reservations

Concept of financial penalty Competent authorities and transmission

Direct transmission between designated authorities Executing authority not necessarily judicial Decision + certificate Language requirements Removal of jurisdiction and limitations

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Financial penalties

Recognition and enforcementExpanded list of categories of offences for which there is no

longer verification of double criminality Declarations

Amount to pay Determination Allocation Debiting of amounts paid

Governing law = that of the executing EM Special cases: amnesty, pardons, review Limitations on alternative measures

Exchange of information

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Financial penalties

Grounds for refusal: Articles 7 and 20All optionalCorrespond to provisions of the FD on the EAW:

Ne bis in idem Absence of double criminality Statute of limitations Territoriality clause Immunity Below the age of criminal responsibility

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Financial penalties

Grounds for refusalSpecific:

Defective certificate Decisions in absentia

Remember: condition in the FD on the EAW FD 2009/299/JHA of 26 February 2009

Fine less than €70 Violation of fundamental rights

DeclarationsObligation of prior consultation in some cases

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Confiscation orders

Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds of CrimeTransmission via central authoritiesDirect execution or autonomous decisionNo removal of jurisdictionNo review of the factsProcedure according to the law of the requested Party

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Confiscation orders

‘Conventional’ grounds for refusal Contradiction with the fundamental principles Prejudice to sovereignty, law and order, essential interests, Absence of double criminality Measure not provided for concerning this type of offence Disproportionate

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Procedures under FD 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders.Scope: a final penalty or measure imposed by a court

following proceedings in relation to a criminal offence, resulting in the definitive deprivation of property

Natural or legal person Proceeds or instrumentalities of an offence Extended powers of confiscation:

• Options under FD 2005/214/JHA of 24 February 2005• Beyond it: Declarations

CARIN network (Decision 2007/845/JHA of 6 December 2007)

>

Confiscation orders

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Confiscation orders

Competent authorities and transmission Direct transmission between designated authorities Identification of the executing MS

Sum of money Specified property Habitual residence or registered office

Executing authority not necessarily judicial Decision + certificate Language requirements Removal of jurisdiction and limitations

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Confiscation orders

Recognition and enforcement List of categories of offences for which there is no longer verification

of double criminality That of the FD on the EAW).

Governing law = that of the executing EM, but: Conversion must be provided for by 2 laws Alternative measures with consent of the issuing MS Amnesty and pardon

Legal remedies Disposal of confiscated property

Supplementary rule on the distribution of confiscated money Cultural property Restitution to rightful owners: not laid down.

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Confiscation orders

Grounds for refusal: Articles 7 and 20All optionalCorresponding to provisions of the FD on financial

penalties: Absence of double criminality Statute of limitations Immunity Decisions in absentia Defective certificate

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Confiscation orders Grounds for refusal

Specific Territoriality clause: only concerns the predicate offence in the

case of confiscation following a conviction for money laundering

Ne bis in idem: conditions for enforcement disappeared Rights of bona fide third parties render enforcement impossible Decision delivered based on extended powers not provided for

by FD 2005/212/JHA ‘Conversion’ if decision delivered based on extended powers

not provided for by FD 2005/212/JHA, but which are not available to the executing MS

Age of criminal responsibility: not a ground for refusal Violation of fundamental rights: not expressly provided for

Consultation obligations

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Custodial sentences

Council of Europe Convention of 28 May 1970Council of Europe Convention of 21 March 1983 on the Transfer

of Sentenced PersonsAt the initiative of either State, but optionalTransmission via central authoritiesConditions:

The judgment must be final At least 6 months remaining to serve Double criminality Executing State is that of nationality

Broadening: agreement between the EU MS of 25 May 1987 Broadening: Convention between the EU MS of 13 November 1991

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Custodial sentences

Consent of the sentenced person Derogation: additional protocol of 18 December 1997 Derogation: Articles 67 to 69 of the Convention Implementing

the Schengen AgreementGoverning law

Continuation of the enforcement: Executing State bound by the penalty, unless not compatible, in which case possibility to adapt

Or conversion: Executing State bound by the findings as to the facts

Penalty cannot be increased Deduction of the period of deprivation of liberty already served

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Custodial sentences

FD 2008/909/JHA of 27 November 2008 Scope

A final decision of a court imposing a custodial sentence in respect of a criminal offence following a criminal conviction, for a limited or unlimited period.

To facilitate the social rehabilitation of the sentenced person falls to issuing MS to judge this

Situations covered by the FD on the EAW Enforcement of the conviction instead of surrender (Art. 4(6)) Condition of return after conviction (Art. 5(3))

Transitional arrangements: judgments pre-dating 5-12-2011

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Custodial sentences

Competent authorities and transmissionDirect transmission between designated authoritiesJudgment + certificateLanguage requirementsPerson must be in the issuing or executing MS Identification of the executing MS

Either that of the nationality of the sentenced person, where they live

Or that of the one to which they will be deported Or any other consenting MS

declarationsRemoval of jurisdiction

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Custodial sentences

Consent of the person, unless the executing MS is: that of their nationality, and they live there

Transitional arrangements for Poland that of the nationality to which they will be deportedor that of the nationality they fled to following the criminal

proceedings or conviction

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Custodial sentences

Recognition and enforcementList of categories of offences for which there is no longer

verification of double criminality That of the FD on the EAW Declarations

Governing law = that of the executing EM Incompatible duration: reduction to the maximum provided for

by the law of the executing MS Incompatible nature: sentence as close as possible Amnesty and pardon Possibility of providing for early release, taking into account

the provisions of the law of the issuing MSSpeciality rule

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Custodial sentences

Grounds for refusal: Article 9All optionalCorresponding to the provisions of the FD on confiscations

Absence of double criminality Ne bis in idem Immunity Decisions in absentia Defective certificate

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Custodial sentences

Grounds for refusalSpecific

Statute of limitations: even if the executing MS does not have competence

Territoriality clause: only the 1st scenario, and on an exceptional basis if the majority of facts occurred in the territory of the executing MS

Below the age of criminal responsibility Duration of the sentence to be served is less than six months Issuing MS’s refusal to waive the speciality rule Measure of psychiatric or health care that cannot be executed Violation of fundamental rights: not expressly provided for

Consultation obligations

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Suspended sentences/alternative sanctions

Council of Europe Convention of 30 November 1964 on the Supervision of Conditionally Sentenced or Conditionally Released Offenders

Low impact: only ratified by 12 MS Three options:

SupervisionSupervision and enforcementEnforcement of the conviction

‘Conventional’ grounds for refusal

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Suspended sentences/alternative sanctions

FD 2008/947/JHA of 27 November 2008 Scope

Final decisions rendered by a court establishing that a natural person has committed a criminal offence, and imposing:

A sentence with conditional release due to the adoption of probation measures

A suspended sentence A judgment deciding on the deferred imposition of the sentence,

due to the adoption of probation measures An alternative sanction.

Objectives: Facilitating social rehabilitation Improving the protection of victims Facilitating the application of probation measures and alternative

sanctions

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Suspended sentences/alternative sanctions

Probation measures Eleven measures identified Possibility for Member States to specify other measures they are

prepared to supervise. Competent authorities and transmission

Direct transmission between designated authorities Judgment + certificate Language requirements Identification of the executing MS

That of ordinary lawful residence if the person is there or wishes to return there

At the request of the sentenced person, any other consenting MS Removal of jurisdiction and limitations

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Suspended sentences/alternative sanctions

Recognition and enforcementList of categories of offences for which there is no longer

verification of double criminality That of the FD on the EAW. Declarations

Governing law = that of the executing EM Incompatible duration or nature: measure as close as possible Possibility in case of non-compliance to modify the obligation,

revoke the suspension or impose a prison sentence declarations

Informing the issuing authority, which may withdraw the certificate

Amnesty and pardon

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Suspended sentences/alternative sanctions

Grounds for refusal: Article 11 All optional Corresponding to the provisions of the FD on custodial sentences

Absence of double criminality Ne bis in idem Immunity Decisions in absentia Defective certificate Statute of limitations if the facts fall within the jurisdiction of the

executing MS Territoriality clause: only the 1st scenario, and on an exceptional basis

if the majority of facts occurred in the territory of the executing MS Below the age of criminal responsibility Duration of the measure or sentence less than 6 months Measure of psychiatric or health care that cannot be supervised Violation of fundamental rights: not expressly provided for No refusal based on non-removal of the speciality rule

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Disqualifications

Low impact of the conventional instrumentsConvention of 3 June 1976 on the International Effects of

Deprivation of the Right to Drive a Motor VehicleCouncil Act of 17 June 1998 drawing up the Convention on

Driving Disqualifications Outlook:

Communication from the Commission (COM (2006) 73 of 21 February 2006)

Stockholm Programme

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Taking account

European Convention of 1970 May 1970 on the International Validity of Criminal Judgments: low impact

Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the EU in the course of new criminal proceedingsPrinciple of equivalenceTaken into account in all stages of the criminal proceedingsExchange of information extracted from criminal records

FD 2009/315/JHA of 26 February 2009 Council Decision 2009/316/JHA (ECRIS)

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