Category Archives: Justice freedom and security

The area of freedom, security and justice was created to ensure the free movement of persons and to offer a high level of protection to citizens. It covers policy areas that range from the management of the European Union’s external borders to judicial cooperation in civil and criminal matters. It includes asylum and immigration policies, police cooperation, and the fight against crime (terrorism, organised crime, trafficking in human beings, drugs, etc.).
The creation of the area of freedom, security and justice is based on the Tampere (1999-04), Hague (2004-09) and Stockholm (2010-14) programmes. It derives from Title V of the Treaty on the Functioning of the European Union, which regulates the “Area of freedom, security and justice”.

Free movement of persons, asylum and immigration
The Schengen area and cooperation, Schengen Information System, Free movement of European citizens within the Union, Penetrating external borders, Visas, Asylum, Immigration, Rights of non-EU country nationals, Illegal immigration, Return, Relations with non-EU countries
Judicial cooperation in civil matters
Civil and commercial rights, European contract law, Law applicable to contractual obligations, Non-contractual obligations, Judicial network in criminal and civil matters, Jurisdiction, Recognition and enforcement of decisions, Maintenance obligations
Judicial cooperation in criminal matters
Eurojust, European network of points of contact, Mutual recognition, European arrest warrant, War crimes
Police and customs cooperation
Police cooperation, Europol, Maintaining public order and safety, Customs cooperation, Agreements with non-EU countries
Citizenship of the Union
Active citizenship of the Union, Municipal elections: the right to vote and to stand, European elections: the right to vote and to stand, Diplomatic and consular protection
Combating discrimination
Combating racism, xenophobia and antisemitism, Gender equality, Social measures for target groups
Fight against terrorism
Prevention, Finance, Protection, Pursuit, Response, Access to and exchange of information, Action plans
Fight against organised crime
Fight against organised crime, Prevention of criminality, Gun running, Cybercrime, Money laundering, Environmental protection, Economic and financial criminality
Fight against trafficking in human beings
Experts group on trafficking in human beings, Child protection, Protection of women
Combating drugs
Anti-drug strategy, Drug trafficking, Drug production
Justice, freedom and security: enlargement
Enlargement, Applicant countries and the Community acquis

Justice, Freedom and Security

Justice, freedom and security

Outline of the Community (European Union) legislation about Justice, freedom and security

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security

Justice, freedom and security

The area of freedom, security and justice was created to ensure the free movement of persons and to offer a high level of protection to citizens. It covers policy areas that range from the management of the European Union’s external borders to judicial cooperation in civil and criminal matters. It includes asylum and immigration policies, police cooperation, and the fight against crime (terrorism, organised crime, trafficking in human beings, drugs, etc.).

The creation of the area of freedom, security and justice is based on the Tampere (1999-04), Hague (2004-09) and Stockholm (2010-14) programmes. It derives from Title V of the Treaty on the Functioning of the European Union, which regulates the “Area of freedom, security and justice”.

Justice, freedom and security Contents

  • Free movement of persons, asylum and immigration: The Schengen area and cooperation, Schengen Information System, Free movement of European citizens within the Union, Penetrating external borders, Visas, Asylum, Immigration, Rights of non-EU country nationals, Illegal immigration, Return, Relations with non-EU countries
  • Judicial cooperation in civil matters: Civil and commercial rights, European contract law, Law applicable to contractual obligations, Non-contractual obligations, Judicial network in criminal and civil matters, Jurisdiction, Recognition and enforcement of decisions, Maintenance obligations
  • Judicial cooperation in criminal matters: Eurojust, European network of points of contact, Mutual recognition, European arrest warrant, War crimes
  • Police and customs cooperation: Police cooperation, Europol, Maintaining public order and safety, Customs cooperation, Agreements with non-EU countries
  • Citizenship of the Unión: Active citizenship of the Union, Municipal elections: the right to vote and to stand, European elections: the right to vote and to stand, Diplomatic and consular protection
  • Combating discrimination: Combating racism, xenophobia and antisemitism, Gender equality, Social measures for target groups
  • Fight against terrorism: Prevention, Finance, Protection, Pursuit, Response, Access to and exchange of information, Action plans
  • Fight against organised crime: Fight against organised crime, Prevention of criminality, Gun running, Cybercrime, Money laundering, Environmental protection, Economic and financial criminality
  • Fight against trafficking in human beings: Experts group on trafficking in human beings, Child protection, Protection of women
  • Combating drugs: Anti-drug strategy, Drug trafficking, Drug production
  • Justice, freedom and security: enlargement: Enlargement, Applicant countries and the Community acquis

See also

Fundamental rights within the European Union
Fight against fraud

Police and customs cooperation

Police and customs cooperation

Outline of the Community (European Union) legislation about Police and customs cooperation

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Police and customs cooperation

The protection of citizens requires better mutual assistance and exchanges of information between the law enforcement agencies of Member States. In particular, it is imperative that cooperation between national police as well as customs authorities be stepped-up to effectively fight crime at both local and European levels.
Mutual assistance between police services is based on bodies such as Europol and the European Police College (Cepol). Customs cooperation is based on the Naples II Convention.
In addition, various instruments have been put in place to achieve police and customs cooperation targets. These include the specific programme “Prevention of and fight against crime”, the Customs 2013 programme and the modernised customs code.

POLICE COOPERATION

  • Standing Committee on operational cooperation on internal security
  • Cooperation between special intervention units
  • Stepping up cross-border cooperation (Prüm Decision)
  • Cooperation in criminal matters: protection of personal data
  • Simplifying the exchange of information between law enforcement authorities
  • Joint investigation teams
  • Sharing of information on terrorist kidnappings
  • A global approach to PNR data transfers
  • Information management in the area of freedom, security and justice
  • The external dimension of the area of freedom, security and justice
  • Exchange of information between the law enforcement authorities of the Member States
  • Enhancing police and customs cooperation in the European Union
  • Improved effectiveness, enhanced interoperability and synergies between European databases

Action programmes

  • Specific programme: Preventing and combating crime (2007-2013)
  • Framework programme concerning police and judicial cooperation in criminal matters (AGIS)
  • Robert Schuman project (1998-2000)

Europol

  • European Police Office – Europol (from 1.1.2010)
  • Access to the Visa Information System (VIS) by the national authorities and Europol
  • Protecting the euro against counterfeiting: the role of Europol
  • The European Police College (CEPOL)
  • Secretariat for the joint supervisory data-protection bodies
  • Democratic control over Europol
  • Transmission of personal data by Europol
  • Europol: European Police Office (until 31.12.2009)

Maintaining public order and safety

  • European network for the protection of public figures
  • Security in connection with football matches with an international dimension
  • Exchange of information on movements of groups
  • Prevention and control of hooliganism

CUSTOMS COOPERATION

  • Customs 2013 (2008-2013)
  • Action programme: Customs 2007 (2003-2007)
  • Money laundering: prevention through customs cooperation
  • International convention on the simplification and harmonisation of customs procedures
  • Convention on mutual assistance and cooperation between customs administrations (Naples II)
  • Strategy for the evolution of the Customs Union
  • The role of customs in the integrated management of external borders
  • Strategy for the Customs Union

Agreements with non-EU countries

  • Customs Agreement with Japan
  • Agreement with China
  • Agreement with India
  • Agreement with Hong Kong
  • Agreement with Canada
  • Agreement with the Republic of Korea

Cooperation between special intervention units

Cooperation between special intervention units

Outline of the Community (European Union) legislation about Cooperation between special intervention units

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Cooperation between special intervention units

Document or Iniciative

Council Decision 2008/617/JHA of 23 June 2008 on the improvement of cooperation between the special intervention units of the Member States of the European Union in crisis situations.

Summary

This Decision sets out the general rules and conditions for the cooperation of Member States’ special intervention units* in situations of crisis*. Cooperation is based on the provision of assistance and/or on the carrying out of operations on the territory of the requesting Member State. The details for implementing the practical aspects of the cooperation are settled between the requesting and the requested Member States directly.

The competent authority* of a Member State processes the request for assistance from another Member State’s special intervention unit. The request must specify the nature of and the operational necessity for the assistance. The requested Member State’s competent authority may either accept or refuse the request, or propose assistance in another form.

The assistance provided may consist of:

  • equipment;
  • expertise;
  • carrying out operations on the requesting Member State’s territory.

When carrying out operations, the requested Member State’s special intervention unit has a supporting role. It is to provide the assistance under the responsibility, authority and direction of the requesting Member State. While the operations fall under the jurisdiction of the requesting Member State, the requested Member State’s officers may act only within the limits of their powers as defined by their national law.

The Member States taking part in this form of cooperation must ensure that experience, expertise and information on managing crisis situations are exchanged. To this end, the special intervention units are to hold meetings and joint trainings and exercises. These may be funded from certain Community financial programmes. Hence, the responsibility for the organisation of these events lies with the Member State holding the Presidency of the Council of the European Union. All operational costs however, including those of the requested Member State’s special intervention unit, are to be borne by the requesting Member State, unless the cooperating Member States decide otherwise.

An up-to-date list of the Member States’ competent authorities is maintained by the General Secretariat of the Council.

Background

The Council Declaration on Solidarity against Terrorism of 25 March 2004 established the basis for cooperation between Member States in the event of terrorist attacks.

Council Decision 2008/617/JHA complements Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, whose article 18 lays down the obligation for Member States to provide one another assistance in connection with mass gatherings, disasters and serious accidents.

Key terms used in the act

  • Special intervention unit: any law enforcement unit of a Member State that is specialised in the control of a crisis situation.
  • Crisis situation: any situation in which the competent authorities of a Member State have reasonable grounds to believe that there is a criminal offence presenting a serious direct physical threat to persons, property, infrastructure or institutions of that Member State.
  • Competent authority: the national authority that may make requests and give authorisations regarding the deployment of the special intervention units.

References

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Decision 2008/617/JHA

23.12.2008

OJ L 210 of 6.8.2008

Stepping up cross-border cooperation

Stepping up cross-border cooperation

Outline of the Community (European Union) legislation about Stepping up cross-border cooperation

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Stepping up cross-border cooperation (Prüm Decision)

Document or Iniciative

Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime.

Summary

The purpose of this decision is to step up cross-border police and judicial cooperation between European Union (EU) countries in criminal matters. In particular, it aims to improve the exchanges of information between the authorities responsible for the prevention and investigation of criminal offences. The decision sets out provisions with regard to:

  • the automated access to DNA profiles *, dactyloscopic data * and certain national vehicle registration data;
  • supply of data in relation to major events;
  • supply of information in order to prevent terrorist offences;
  • other measures for stepping up cross-border police cooperation.

Establishment of national databases and automated access to data

EU countries are to establish national DNA analysis files for the purpose of investigating criminal offences. Reference data, consisting of the non-coding part of the DNA * and of a reference number that does not enable an individual to be identified, must be made available to other EU countries to carry out automated searches *. These searches are performed via national contact points by comparing DNA profiles, but only on the basis of individual cases and in a hit/no-hit * manner. If the search provides a match, the national contact point carrying out the search receives the reference data in an automated manner. If no profile is found for a particular individual who is under investigation or against whom criminal proceedings have been brought, the requested EU country may be obliged to establish a DNA profile for that individual.

EU countries must also make available reference data from the national automated fingerprint identification systems (AFIS). For this purpose, the reference data will consist only of dactyloscopic data and a reference number. The searches are carried out by comparing dactyloscopic data and, similarly to DNA searches, only in individual cases on a hit/no-hit basis. Confirmation of the match is conducted by the national contact point of the requesting EU country. Supply of further available personal data for matching DNA or dactyloscopic data and other information relating to the reference data is governed by national law, including the mutual legal assistance (MLA) in the requested EU country.

The national contact points shall also be given access to certain national vehicle registration data via automated online searches. These searches may only be conducted with a full chassis or registration number.

Supply of data in relation to major events

In relation to any major events that have a cross-border dimension, EU countries must provide each other non-personal data via their national contact points, as required for the purpose of preventing criminal offences and maintaining public order and security. Personal data may be supplied only if the data subjects are considered a threat to public order and security or if it is believed that they will commit criminal offences at the events. However, this data may only be used in relation to the event it was provided for and must be deleted once it has served its purpose, but no later than a year after it was supplied.

Supply of information to fight terrorism

For the purpose of preventing terrorist offences, but only in individual cases and to the extent required by the conditions leading to the supposition that criminal offences will be committed, EU countries may provide the following data to each other via the national contact points:

  • surname and first names;
  • date and place of birth;
  • description of the conditions leading to the supposition that criminal offences will be committed.

The country providing this data may impose certain binding conditions on the receiving country for the data usage.

Other measures for enhancing cross-border police cooperation

EU countries may effectuate joint patrols and other joint operations to prevent criminal offences and to maintain public order and security on a given EU country’s territory. In such cases, designated officers and officials from the seconding country participate in the hosting country’s operations. The seconding officers may be conferred executive powers, or they may be allowed to exercise their executive powers, but only under the guidance and in the presence of the host officers. The competent authority of the host country is responsible for the command and actions of the seconding officers.

With regard to mass gatherings and other comparable major events, disasters and serious accidents, EU countries are to provide mutual assistance to each other. This assistance should consist of information exchanges, coordination of police measures and contribution of material and physical resources.

An EU country must provide assistance and protection to the other country’s officers on duty, which is equivalent to that provided for its own officers.

Provisions on data protection

EU countries must guarantee that personal data processed according to this decision is protected by their national laws. Only the relevant competent authorities may process personal data. They must ensure the accuracy and current relevance of the data. Steps must be taken to rectify or delete incorrect data or data that was supplied when it should not have been. Personal data must be deleted if no longer needed for the purpose it was made available or if the storage time, as provided by national law, has expired.

The relevant authorities must take technical and organisational measures to protect personal data against destruction, loss, unauthorised access, alteration or disclosure. For the purpose of verifying the permissibility of the non-automated processing of personal data, this processing must be logged. Similarly, the automated processing of personal data must be recorded. The independent data protection authorities in EU countries are responsible for the legal examinations of the processing of personal data.

Any individual has the right to information on the data that has been processed in relation to his/her person, including information on the origin of the data, the recipients of the data and the purpose and legal basis for the processing of the data. The individual may request corrections to or the deletion of inaccurate or unlawfully processed data. If the individual’s rights with regard to data protection have been violated, he/she may lodge a complaint with an independent court or a tribunal and claim for damages or other legal compensation.

Background

The conclusions of the Tampere European Council of October 1999 asserted the need to enhance the exchange of law enforcement information between EU countries, which was further confirmed by the Hague Programme of November 2004.

The Prüm Treaty of 27 May 2005 on the stepping up of cross-border cooperation, particularly on combating terrorism, cross-border crime and illegal migration, signed between Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria, lays down procedures for more efficient exchanges of information in the framework of criminal investigations. This decision aims to incorporate the provisions of that Treaty into the EU legal framework.

Key terms used in the act
  • Dactyloscopic data: fingerprint images, images of fingerprint latents, palm prints, palm print latents and templates of such images that are stored and dealt with in an automated database.
  • Non-coding part of DNA: chromosome regions that are not expressed genetically.
  • DNA profile: a letter or number code that represents a set of identification characteristics of the non-coding part of an analysed human DNA sample.
  • Automated searching: an online access procedure for consulting the databases of one, several, or all of the EU countries.
  • Hit/no-hit procedure: in this procedure the parties grant each other limited access to the reference data in their national DNA and fingerprint databases and the right to use these data to conduct automated checks of fingerprints and DNA profiles. The personal information related to the reference data is not available to the requesting party.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2008/615/JHA

26.8.2008

26.8.2009
(26.8.2011 for Chapter 2 provisions)

OJ L 210 of 6.8.2008

Related Acts

Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime [Official Journal L 210 of 6.8.2008].

This decision provides the administrative and technical provisions that are indispensable for implementing Decision 2008/615/JHA. The focus is especially on the automated exchanges of DNA, dactyloscopic and vehicle registration data, as well as on other forms of cooperation. The technical provisions are set out in the annex to the decision.

Council Decision 2010/482/EU of 26 July 2010 on the conclusion of the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/516/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto [Official Journal L 238 of 9.9.2010].

Secretariat for the joint supervisory data-protection bodies

Secretariat for the joint supervisory data-protection bodies

Outline of the Community (European Union) legislation about Secretariat for the joint supervisory data-protection bodies

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Secretariat for the joint supervisory data-protection bodies

Document or Iniciative

Council Decision 2000/641/JHA of 17 October 2000 establishing a secretariat for the joint supervisory data-protection bodies set up by the Convention on the Establishment of a European Police Office (Europol Convention), the Convention on the Use of Information Technology for Customs Purposes and the Convention implementing the Schengen Agreement on the gradual abolition of checks at the common borders (Schengen Convention).

Summary

The aim of this decision is to establish a single, independent joint secretariat for the existing supervisory bodies. In the performance of its tasks, the new secretariat will be bound only by instructions from the data-protection bodies set up by the Europol Convention, the Schengen Convention and the Convention on the use of Information Technology for Customs Purposes. This marks the first step towards the creation of a single supervisory body with legal personality and its own budget.

The data-protection secretariat will be headed by a secretary appointed by the Deputy Secretary-General of the Council, acting on a proposal by the joint supervisory bodies, for a renewable term of three years. It will be entirely independent in the performance of its duties, subject only to instructions from the joint supervisory bodies and their chairmen.

The secretary will have to meet certain requirements: he must be a national of an EU Member State, offer every guarantee of independence, have full civil and political rights, and have the experience and expertise required for the performance of his duties. He may not engage in any other occupation, gainful or not.

He may be removed from office by the Deputy Secretary-General of the Council for serious misconduct or if he no longer fulfils the conditions required for the performance of his duties.

During and after his period of office, the data-protection secretary will be bound by professional secrecy. He will be assisted by the necessary staff, who will not be allowed to receive instructions from any authority or organisation apart from the joint supervisory bodies, the chairmen of these bodies and the secretary himself.

The General Secretariat of the Council will provide the data-protection secretariat with the infrastructure (offices, equipment, etc.) and human resources (interpreters) it needs.

The overheads of the data-protection secretariat will be charged to the section of the general budget of the European Union relating to the Council. The costs relating to meetings will be borne by the Council and by Europol (in the case of meetings relating to matters of implementation of the Europol Convention).

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Council Decision 2000/641/JHA 18.10.2000
applicable from 01.09.2001
OJ L 271 of 24.10.2000

 

Simplifying the exchange of information between law enforcement authorities

Simplifying the exchange of information between law enforcement authorities

Outline of the Community (European Union) legislation about Simplifying the exchange of information between law enforcement authorities

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Simplifying the exchange of information between law enforcement authorities

Document or Iniciative

Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union.

Summary

Law enforcement authorities * may exchange information * in the framework of:

  • the performance of their duties;
  • a criminal investigation * or a criminal intelligence operation *.

Legal rules for the exchange of information

Information may be exchanged via any existing international channel of cooperation, and also with Europol and Eurojust if it falls within the scope of their respective mandates.

The requesting law enforcement authority sets out the factual reasons leading it to request the information from the other agency, and the exchange then takes place according to the data protection rules:

  • of the international channel of cooperation;
  • of the Member State receiving the request, if the exchange is made directly.

Requests for information regarding offences referred to in Article 2(2) of the framework decision instituting the European arrest warrant (offences to which the rule of dual criminality does not apply) must be responded to within one week (within 8 hours, if the matter is urgent) when the requested information is held in a database that is directly accessible to the law enforcement authority addressed. Otherwise, the maximum period for response is 14 days.

The exchange of information between the law enforcement authorities of different Member States should not be subject to stricter conditions than those that apply between law enforcement authorities within a State.

Information can also be provided spontaneously. In this case, the law enforcement authority should provide only the information it considers relevant and necessary for the successful prevention of an offence.

Limits to the provision of information

The framework decision does not impose any obligation on law enforcement authorities to gather information in response to a request from an authority in another Member State or to obtain information by means of coercive measures. Likewise, there is no obligation to communicate information that is likely to be used as evidence before a judicial authority, although the agency supplying the information may expressly consent to this (Article 1(4) in fine).

Information that has been obtained from a third Member State or a third country can only be exchanged between the law enforcement authorities of two Member States with the consent of that third state.

If the exchange of information between law enforcement authorities within a State requires the agreement of a judicial authority, then the exchange of information between the law enforcement authorities of two different Member States also requires judicial authorisation.

A law enforcement authority may refuse to comply with a request for information if:

  • providing the information would be likely to harm essential national security interests or to jeopardise a criminal investigation, or if the information is clearly disproportionate or irrelevant with regard to the purpose for which its has been requested;
  • the request pertains to an offence punishable by a term of imprisonment of one year or less;
  • the judicial authority is opposed to it.

The Member States may conclude new bilateral agreements or continue to apply existing ones only if these help make information-exchanging procedures under the framework decision more flexible.

Background

This framework decision responds to a request made by the European Council at a meeting convened on 25 March 2004, following the terrorist attacks in Madrid. Its object is to modernise the exchange of information between the law enforcement authorities of the Member States by replacing the provisions of the convention implementing the Schengen Agreement on the transmission of information (Article 39) and the spontaneous provision of information (Article 46).

Key definitions
  • Law enforcement authority: national police, customs or other authority that is authorised to detect, prevent and investigate offences and to exercise authority and take coercive measures in that context.
  • Criminal investigation: a procedural stage within which measures are taken with a view to establishing and identifying facts, suspects and circumstances regarding one or several identified concrete criminal acts.
  • Criminal intelligence operation: a procedural stage, not yet having reached the stage of a criminal investigation, within which a law enforcement authority collects, processes and analyses information about crime or criminal activities.
  • Information or intelligence: any type of information held by law enforcement authorities, and any type of information held by public authorities or private entities and which is available to law enforcement authorities without taking coercive measures.

References

Act Date of entry into force Final date for implementation in the Member States Official Journal
Decision 2006/960/JHA 30.12.2006 19.12.2006 OJ L 386 of 29.12.2006

Mutual recognition of pre-trial supervision measures

Mutual recognition of pre-trial supervision measures

Outline of the Community (European Union) legislation about Mutual recognition of pre-trial supervision measures

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

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

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].

Summary

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.

Scope

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.

References And Procedure

Proposal Official Journal Procedure
COM(2006) 468 Consultation CNS/2006/0158

 

Mutual recognition of financial penalties

Mutual recognition of financial penalties

Outline of the Community (European Union) legislation about Mutual recognition of financial penalties

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Mutual recognition of financial penalties

Document or Iniciative

Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [See amending act(s)].

Summary

This framework decision is the result of an initiative of the United Kingdom, the French Republic and the Kingdom of Sweden. It extends the principle of mutual recognition to financial penalties imposed by the judicial and administrative authorities of another Member State.

Recognition and enforcement of decisions

The principle of mutual recognition of decisions applies to financial penalties *. The competent authorities must recognise decisions relating to financial penalties transmitted by another Member State without any further formality.

These penalties are imposed in the case of infringements that cover actions such as participation in a criminal organisation, terrorism, trafficking in human beings, trafficking in arms, swindling, trafficking in stolen vehicles, rape, etc. The framework decision also covers financial penalties for road traffic offences.

In the case of infringements not listed in the framework decision, the state executing the decision of another state can make its recognition and execution subject to the decision being related to conduct that would constitute an offence under its national law.

The decision imposing a financial penalty can relate to both a natural person (human being) and a legal person (company).

The penalties must be imposed by the judicial or administrative authorities of the Member States. Each Member State will inform the General Secretariat of the Council which authority is competent under its national law. The decision imposing a financial penalty must be final, i.e. there is no longer any possibility to appeal the decision. On account of the organisation of their internal systems, Member States may designate one or more central authorities responsible for the management of the transmission of decisions.

Transmission of decisions

The decision imposing a financial penalty is transmitted from the “issuing state”, i.e. the Member State that delivered the decision, to the “executing state”, i.e. the Member State that executes the decision in its territory. To this effect, the framework decision provides a certificate in its annex that must accompany the decision. This certificate must be made out in the official language of the executing state. The issuing state will only transmit a decision to one executing state at any one time. The decision is transmitted to the competent authorities of the Member State where the natural or legal person has property or income, is normally resident or, in the case of a legal person, has its registered seat. Member States will not call for reimbursement of the costs resulting from the application of this framework decision.

Provision is made for a special system for Ireland and the United Kingdom; these states may declare that the decision together with the certificate must be sent via their designated central authority. These Member States can limit the scope of the declaration at any time for the purpose of giving greater effect to the management of the transmission of decisions. They will do so when the provisions on mutual assistance of the Schengen Implementation Convention are put into effect for them.

Grounds for non-recognition and non-execution

The state to which the decision was transmitted can refuse to execute the decision if the certificate provided for by this framework decision is not produced, is incomplete or manifestly does not correspond to the decision.

Execution can also be refused if it is established that:

  • 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 infringement in the framework decision nor constitutes an offence under the national law of the executing state;
  • the execution of the decision is statute-barred 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 relates to acts that are regarded by the law of the executing state as having been committed in its territory or to acts committed outside the territory of the executing state when its national law does not allow for the prosecution of such acts;
  • there is immunity under the law of the executing state, which makes it impossible to execute the decision;
  • 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;
  • according to the certificate that accompanies the decision, the person concerned was not informed of the right to contest the case and of the time limits of such a legal remedy;
  • the decision provides that the financial penalty will be below EUR 70 or the equivalent;
  • according to the certificate that accompanies the decision, the person concerned did not personally appear at the trial, except where the certificate states that the person was informed of the date and place of the trial and that a decision may be handed down there regardless of his/her presence, or where the person was represented by a legal counsellor, or where information on the right to a retrial or appeal was provided, yet the person did not contest the decision nor request a retrial or an appeal within the set time limit;
  • according to the certificate that accompanies the decision, the person concerned did not personally appear at the trial, except where the certificate states that the person had waived his/her right to an oral hearing as well as indicated that s/he did not contest the case.

Fundamental rights and other legal aspects

This framework decision respects fundamental rights.

The framework decision provides that the execution of the decision is governed by the law of the executing state. The latter 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. A financial penalty imposed on a company will be enforced even if the executing state does not recognise the principle of criminal liability of legal persons. It can 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. Monies obtained from the enforcement of decisions will accrue to the executing state, unless otherwise agreed by the respective Member States.

This framework decision also applies to Gibraltar.

Member States will take the necessary measures to comply with the framework decision by 22 March 2007. The framework decision provides for a transitional period of 5 years from the date of entry into force.

Key terms used in the act

Financial penalty: the obligation to pay:

  • a sum of money on conviction of an offence (which must be listed in the framework decision);
  • compensation for victims;
  • costs of court or administrative proceedings;
  • sums of money to a public fund or a victim support organisation.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2005/214/JHA

22.3.2005

22.3.2007

OJ L 76 of 22.3.2005

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 of 27.3.2009

Related Acts

Report from the Commission of 22 December 2008 based on Article 20 of the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [COM(2008) 888 final – Not published in the Official Journal].
This report evaluates the measures Member States have taken to transpose the provisions of Framework Decision 2005/214/JHA into national law. However, by October 2008, only 11 Member States had notified the Commission of the transposition, which is not sufficient for making a full assessment of the implementation of the framework decision at this point in time.
The implementing provisions of these 11 Member States are generally in line with the framework decision, especially among the most important issues such as the recognition and execution of decisions without any further formality and without verification of dual criminality. In addition, most Member States have applied the provisions concerning alternative sanctions, amnesty, pardon and review of sentences, as well as those concerning the accrual of monies obtained from the enforcement of decisions.
With regard to the law governing the enforcement of decisions, some of the Member States have only partially implemented the provisions.
Furthermore, the optional provisions on the grounds that may constitute a basis for refusing the recognition or execution of a decision were transposed in most Member States as obligatory. Several Member States have also laid down additional grounds for refusal, which is not in line with the framework decision.
The Commission encourages Member States to take into consideration this report, proceed with the necessary legislative actions and transmit the relevant information in accordance with the provisions of Article 20 of the framework decision to the Commission and the General Secretariat of the Council of the European Union.

Genocide, crimes against humanity and war crimes: criminal investigation and prosecution

Genocide, crimes against humanity and war crimes: criminal investigation and prosecution

Outline of the Community (European Union) legislation about Genocide, crimes against humanity and war crimes: criminal investigation and prosecution

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Genocide, crimes against humanity and war crimes: criminal investigation and prosecution

Document or Iniciative

Council Decision 2003/335/JHA of 8 May 2003 on the investigation and prosecution of genocide, crimes against humanity and war crimes.

Summary

The European Union is stepping up cooperation between the Member States’ law-enforcement and prosecution services to work effectively with the criminal investigation and prosecution of the actual or suspected perpetrators of genocide, crimes against humanity and war crimes and those who have been involved in them. The definition of these crimes is taken over from the Statute of the International Criminal Court

  • Genocide: acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such, including killing members of the group, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group;
  • Crimes against humanity: acts when committed as part of a widespread or systematic attack directed against any civilian population, such as murder, extermination, deportation, torture and rape;
  • War crimes: grave breaches of the Geneva Convention of 12 August 1949 such as wilful killing, torture or inhuman treatment, including biological experiments, destruction of property and taking of hostages.

The Member States are to take the necessary measures in order for the law enforcement authorities to be informed when facts are established which give rise to a suspicion that an applicant for a residence permit has committed such crimes. The authorities may then commence criminal proceedings in a Member State or in international criminal courts. Member States are to assist one another in investigating and prosecuting the crimes. They may set up or designate specialist units within the competent law enforcement authorities to that end.

Member States are to coordinate ongoing efforts to investigate and prosecute persons suspected of having committed or participated in the commission of the relevant crimes. The contact points designated under Decision 2002/494/JHA are to meet at regular intervals with a view to exchanging information about experiences, practices and methods. These meetings may take place in conjunction with meetings within the European Judicial Network.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2003/335/JHA 14.5.2003 OJ L 118 of 14.5.2003

Execution of orders freezing property or evidence

Execution of orders freezing property or evidence

Outline of the Community (European Union) legislation about Execution of orders freezing property or evidence

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Execution of orders freezing property or evidence

Document or Iniciative

Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.

Summary

The Council adopted this framework decision in 2003 on an initiative by Belgium, France and Sweden. The purpose of the framework decision is to establish the rules under which a Member State is to recognise and execute in its territory a freezing order issued by a judicial authority of another Member State in the framework of criminal proceedings.

Mutual recognition of pre-trial orders

The Council extends the mutual recognition principle to pre-trial orders freezing property or evidence. “Freezing order” means any measure taken by a judicial authority in a Member State to prevent the destruction, transformation, displacement, etc. of property. The evidence to which the framework decision applies means objects, documents or data that could be produced as evidence in criminal proceedings.

The state that has made, validated or in any way confirmed a freezing order in the framework of criminal proceedings is called the “issuing state”. The “executing state” is the Member State in whose territory the property or evidence is located.

Decisions executed without verification of double criminality

Article 3 of the framework decision lists a series of serious offences. They are not subject to verification of the double criminality of the act if they are punishable in the issuing state by a custodial sentence of a maximum period of at least three years. The offences include:

  • participation in a criminal organisation;
  • terrorism;
  • corruption and fraud;
  • trafficking in human beings;
  • racism;
  • rape.

The list is not exhaustive; the Council may decide at any time to add further categories. The Commission is to draft a report on the basis of which the Council is to decide whether the list should be extended. The Council is to act unanimously after consultation of the European Parliament.

Conditions for recognition and enforcement of a decision

For offences not included in the list, the executing state may subject the recognition and enforcement of a freezing order to certain conditions:

  • obtaining evidence: the acts for which the order was issued constitute an offence under the laws of that state, whatever the constituent elements or however described under the law of the issuing state;
  • confiscation of property: the acts for which the order was issued must constitute an offence which, under the laws of the executing state, allows for such freezing, whatever the constituent elements or however described under the law of the issuing state.

The execution procedure

The framework decision provides for a certificate for the request for execution. The certificate is transmitted by the judicial authority that issued it directly to the competent judicial authority for execution in the other Member State. The United Kingdom and Ireland may state in a declaration before 2 August 2005 that the freezing order together with the certificate must be sent via a central authority or authorities specified by them in their declarations. They may at any time limit the scope of such a declaration by a further declaration.

The competent judicial authorities of the executing state must recognise a freezing order without any further formality being required and forthwith take the necessary measures for its immediate execution. The executing state must also observe the formalities and procedures expressly indicated by the competent judicial authority of the issuing state in the execution of the freezing order. If such formalities and procedures are contrary to the fundamental principles of law in the executing state, it is not required to observe them.

The property must remain frozen in the executing state until that state has responded definitively to any request.

Grounds for non-recognition or non-execution

The competent judicial authorities of the executing state may refuse to recognise or execute the freezing order if:

  • the certificate is not produced, is incomplete or manifestly does not correspond to the freezing order;
  • there is an immunity or privilege under the law of the executing state that makes it impossible to execute the freezing order;
  • it is instantly clear from the information provided in the certificate that rendering judicial assistance would infringe the ne bis in idem principle – new proceedings cannot be brought if a final judgment has already been given for the same facts;
  • the act on which the freezing order is based does not constitute an offence under the law of the executing state. Two conditions apply here:

– the act must not be on the list of offences in Article 3 for which execution is automatic;

– in relation to taxes or duties, customs and exchange, execution of the freezing order may not be refused on the ground that the law of the executing state does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing state.

The competent judicial authority of the executing state may postpone the execution of a freezing order transmitted where:

  • execution might damage an ongoing criminal investigation;
  • the property or evidence concerned have already been subjected to a freezing order in criminal proceedings;
  • the property is already subject to an order made in the course of other proceedings in the executing state. However, such an order must have priority over subsequent national freezing orders in criminal proceedings under national law.

Member States must ensure that any interested party, including bona fide third parties, have legal remedies without suspensive effect against a freezing order.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2003/577/JHA

2.8.2003 2.8.2005 OJ L 196 of 2.8.2005

RELATED ACTS

Report from the Commission of 22 December 2008 based on Article 14 of the Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence [COM(2008) 885 final – Not published in the Official Journal].
This report evaluates the transposition measures that Member States have taken to implement Framework Decision 2003/577/JHA. However, by October 2008, only 19 Member States had notified the Commission of the transposition of the provisions into national law. Furthermore, several omissions and misinterpretations were found in the national laws, and some laws did not make any reference to the framework decision. Consequently, implementation of the framework decision cannot be deemed satisfactory.
The objective of the framework decision as well as the definitions have generally been well implemented by Member States. Similarly, a high number of Member States have implemented the list of offences that are not subject to a dual criminality check.
In terms of the procedure, more improvement is needed regarding the direct transmission of freezing orders between judicial authorities. Currently, many Member States require transmission through a central authority. Nevertheless, almost all Member States have implemented provisions on the immediate execution of decisions and on the duration of the freezing.
More improvements are needed on the implementation of the provisions concerning the grounds for non-recognition and non-execution. Member States have implemented most of these grounds, but they were transposed mostly as obligatory grounds. In addition, 14 Member States have applied additional grounds for refusal, which is not in line with the framework decision.
Concerning grounds for postponement of execution, most Member States have implemented the provisions at least in part. Furthermore, legal remedies are in place in all Member States and usually the measures provided do not require suspensive effect.
The Commission recommends that Member States take this report into consideration, proceed with the necessary legislative actions and transmit all relevant information in accordance with Article 14 of the framework decision to the Commission and the General Secretariat of the Council of the European Union.