Category Archives: Judicial cooperation in criminal matters

Combating crime involves strengthening dialogue and action between the criminal justice authorities of Member States. Consequently, the European Union (EU) has established specific bodies to facilitate mutual assistance. In particular, Eurojust and the European Judicial Network support cooperation between judicial authorities.
Judicial cooperation in criminal matters is based on the principle of mutual recognition of judgements and judicial decisions by Member States. It involves the approximation of related national laws and the application of common minimum rules. The minimum rules mainly relate to the admissibility of evidence and the rights of crime victims as well as of individuals in criminal procedures.
Introduced by the Maastricht Treaty in 1993, judicial cooperation in criminal matters comes under Title V of the Treaty on the Functioning of the European Union.

Grotius II – Criminal

Grotius II – Criminal

Outline of the Community (European Union) legislation about Grotius II – Criminal

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

Grotius II – Criminal

1) Objective

To encourage judicial cooperation in general and criminal matters between Member States; to finance programmes of exchanges, studies and research with a view to creating a European judicial area and fighting organised crime.

2) Document or Iniciative

Council Decision of 28 June 2001 establishing a second phase of the programme of incentives and exchanges, training and cooperation for legal practitioners (Grotius II – Criminal) [Official Journal L 186, 07.07.2001].

3) Summary

This Decision aims renew for the period from 1 January 2001 to 31 December 2001 the GROTIUS co-operation programme set up by Joint Action 96/636/JHA of 29 October 1996.

The programme is intended to stimulate mutual knowledge of legal and judicial systems and to facilitate general judicial and criminal co-operation. The specific objectives of the programme are:

  • preparation of projects in the field of criminal judicial co-operation;
  • help in implementing the instruments adopted;
  • support for better mutual understanding on general topics;
  • local ad hoc projects with the aim of improving co-operation on the ground;
  • setting up networks between certain organisations and professions.

The programme will part-finance projects submitted by institutions and public or private organisations (including professional organisations, research institutes and training institutes). For the purposes of the programme, “legal practitioners” means judges, lawyers, criminal investigation officers, experts, bailiffs and any other professionals associated with the judiciary. Projects must involve at least three Member States. In addition, the programme may finance specific projects of particular interest in terms of cooperation with the applicant countries.

The programme will comprise the following types of project which apply to all fields of judicial cooperation, with the exception of judicial cooperation in civil matters:

  • training;
  • exchanges and work-experience placements;
  • studies and research;
  • meetings and seminars;
  • dissemination of the results obtained within the framework of the programme.

The Commission will be responsible for the management and implementation of the programme, in cooperation with the Member States. It will prepare an annual work programme comprising specific objectives and a list of projects considered as priorities.

The Commission will be responsible for evaluating and selecting projects on the basis of a series of criteria such as: the European dimension, scope for participation by the applicant countries, complementarity with other cooperation projects, and the quality of the project in terms of its conception, presentation and expected results.

The Commission will be assisted by a committee entitled the “Grotius II – Criminal Committee”, consisting of representatives of the Member States. The Committee will be chaired by the Commission, which may invite representatives from the applicant countries to information meetings after the Committee’s meetings.

Each year the Commission will undertake an evaluation of the actions carried out and will report to Parliament and the Council on the implementation of the programme. The first report will be submitted by 31 July 2002.

This Decision will enter into force on the day of its publication in the Official Journal.

4) Implementing Measures

5) Follow-Up Work

 

Simplified extradition procedure between Member States

Simplified extradition procedure between Member States

Outline of the Community (European Union) legislation about Simplified extradition procedure between Member States

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

Simplified extradition procedure between Member States

Document or Iniciative

Council Act of 10 March 1995, adopted on the basis of Article K.3 of the Treaty on European Union, drawing up the Convention on simplified extradition procedure between the Member States of the European Union.

Summary

By an Act of 10 March 1995, the Council adopted the Convention relating to the simplified extradition procedure between Member States of the European Union (EU). This Convention aims to facilitate the application between the Member States of the European Convention on Extradition of 13 December 1957, by supplementing its provisions. The European Convention on Extradition was devised under the aegis of the Council of Europe, which is not a Community institution but an independent international organisation.

Simplifying the extradition procedure

The Convention obliges Member States to surrender persons sought for the purpose of extradition under simplified procedures provided for by the Convention on two conditions namely that the person in question consents to be extradited and that the requested State gives its agreement. In particular it no longer requires the surrender of the person who is the subject of a request for arrest to be subject to submission of a request for extradition and the other documents required by Article 12 of the European Convention on Extradition.

The following information from the requesting State is regarded as adequate:

  • the identity of the person sought;
  • the authority requesting the arrest;
  • the existence of an arrest warrant or other document having the same legal effect or of an enforceable judgment;
  • the nature and legal description of the offence;
  • a description of the circumstances in which the offence was committed;
  • the consequences of the offence in so far as this is possible.

Notwithstanding this, the requested State retains the right to request further information if the information provided proves insufficient.

Persons arrested in the territory of a Member State

When a person wanted for the purpose of extradition is arrested on the territory of another Member State, the competent authority must inform him of this in accordance with its national law. His consent, and, where appropriate, renunciation of the right to be covered by the speciality rule, are irrevocable. However, the Member States may indicate, in a declaration, that consent and, where appropriate, renunciation may be revoked, in accordance with the rules applicable under national law. Furthermore, each Member State may declare that, where the person in question consents to extradition, the speciality rule laid down in Article 14 of the European Convention on Extradition does not apply.

Article 15 of the European Convention on Extradition relating to re-extradition to a third country, does not apply to the re-extradition to another Member State of the person to whom the speciality rule has not been applied, in accordance with the declaration of the Member State, unless this declaration provides otherwise.

Each Member State must indicate in a statement which authorities are competent to apply the simplified extradition procedure.

The Convention enters into force 90 days after the date of the deposit of the instrument of ratification, acceptance or approval by the last Member State to carry out this formality. Any declaration concerning renunciation of the speciality rule takes effect 30 days after deposit thereof. The Convention is open for the accession of any State that becomes a Member of the European Union. In the case of accession, the Convention enters into force 90 days after the deposit of the State’s instrument of accession or the date of entry into force of the Convention if it has not already entered into force at the time of the expiry of the said period of 90 days.

On 18 August 2005, the Convention was ratified by 18 Member States. It was applied early by 12 of them in their mutual relations.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Council Act of 10 March 1995 Official Journal C 78 of 30.03.1995

Related Acts

Council Decision 2003/169/JHA of 27 February 2003 determining which provisions of the 1995 Convention on simplified extradition procedures between the Member States of the European Union and of the 1996 Convention relating to extradition between the Member States of the European Union constitute developments of the Schengen acquis in accordance with the Agreement concerning the Republic of Iceland’s and the Kingdom of Norway’s association with the implementation, application and development of the Schengen acquis [Official Journal L 67 of 12.03.2003]. 
The purpose of this Decision is to ensure a clear legal situation concerning the relationship between the above Conventions and the Convention implementing the Schengen Agreement of 19 June 1990, which was incorporated into the framework of the European Union on 1 May 1999. The Decision also seeks to associate the Republic of Iceland and the Kingdom of Norway with the application of the provisions of the Simplified Extradition Convention and the Extradition Convention between the Member States, which constitute a development of the Schengen acquis. In 1999 the Council of the European Union concluded an Agreement with the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis [Official Journal L 176 of 10.07.1999].

Convention on simplified extradition procedure between Member States of the European Union – Explanatory report [Official Journal No C 375 of 12.12.1996]
This report clarifies the provisions of the Convention on the simplified extradition procedure.

 

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.

Criminal proceedings: conflicts of jurisdiction and the ne bis in idem principle

Criminal proceedings: conflicts of jurisdiction and the ne bis in idem principle

Outline of the Community (European Union) legislation about Criminal proceedings: conflicts of jurisdiction and the ne bis in idem principle

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

Criminal proceedings: conflicts of jurisdiction and the ne bis in idem principle (Green Paper)

Through this Green Paper the European Commission is launching a wide-ranging consultation of interested parties on issues of conflicts of jurisdiction between the courts of the Member States in criminal matters. The Green Paper also looks at the ne bis in idem principle.

Document or Iniciative

Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings [COM(2005) 696 – Not published in the Official Journal].

Summary

The Green Paper launches a process of reflection on conflicts of jurisdiction between the courts of the Member States in criminal matters in the light of the ne bis in idem principle. To solve conflicts of jurisdiction between national courts, the Commission outlines the possibilities for the creation of a mechanism for allocating cases to an appropriate jurisdiction. If prosecutions were concentrated in a single jurisdiction, those concerned would not run the risk of being tried several times for the same offence in different States. The Commission considers that such a mechanism would complement the principle of mutual recognition.

ALLOCATING CASES TO A SPECIFIC MEMBER STATE

To allocate cases to the right Member States, the new mechanism would consist of the following stages:

  • Identifying and informing “interested parties”. A Member State which has initiated or is about to initiate a criminal prosecution (“initiating State”) in a case which demonstrates significant links to another Member State must inform the competent authorities of that other Member State. It could be envisaged that this information should be provided within a fixed period of time. If no Member State expresses an interest in prosecuting the case in question, the initiating State could continue with the prosecution of the case without further consultation, unless new facts change the picture.
  • Consultation/discussion. If two or more Member States are interested in prosecuting the same case, their respective competent authorities should be able to examine together the question of the “best place” to prosecute the case. An option would be to create a duty to enter into discussions. Direct contacts between them would seem to be the most efficient means of discussion. If need be, the Member States could ask for the assistance of Eurojust and/or other Union assistance mechanisms.
  • Dispute settlement. Where an agreement cannot be easily found, Eurojust or a newly-established mechanism for dispute resolution could help the Member States concerned to reach a voluntary agreement in consideration of the interests involved using the criteria outlined in the Green Paper. The Commission also looks at the possibility of a body at EU level being empowered to take a binding decision as to the most appropriate jurisdiction.

Establishing a mechanism for allocating cases will raise the need for effective information exchanges between the relevant authorities in the Member States. Once they become aware that proceedings are ongoing in another Member State, the prosecuting authorities of a Member State should have the ability to halt an existing prosecution. The Commission acknowledges that that could raise problems for the legal order of Member States which adhere to the mandatory prosecution principle, in other words where the authorities have a constitutional duty to prosecute every crime which falls within their competence *. It proposes that an exception to the application of this principle could be provided for, since it can validly be argued that in a common area of freedom, security and justice this principle is satisfied when another Member State prosecutes such a case.

Selecting the Member State best placed to prosecute

During the pre-trial stage, the suggested mechanism focuses on consultation among the competent prosecuting authorities. Discussing jurisdiction issues with the individuals concerned might often reveal facts which could jeopardise a prosecution or affect the rights and interests of victims and witnesses. Whether such a risk is present in a specific case could be left to the national courts to be decided.

Unlike in the pre-trial phase, at the trial phase a national court which receives an accusation of an indictment usually examines whether it has jurisdiction to try the case. The Commission is proposing that the Member State should be required to examine whether it is best placed to prosecute. Judicial review would then amount solely to adjudication on whether the principles of reasonableness and due process have been respected.

A choice of jurisdiction could thus be set aside by the competent tribunal if it found that the choice made was arbitrary on the basis of doctrines known to the national legal order of the Member States, such as abuse of process. Questions of interpretation of Union-wide rules, including legislation on the proposed procedural mechanism and the criteria for the choice of jurisdiction, could be presented to the European Court of Justice (ECJ) for preliminary rulings CJEC).

Alongside the allocation mechanism, the Commission is proposing an EU provision that would oblige Member States to concentrate proceedings on the same case in one “leading” jurisdiction. The criteria for determining the leading State would include territoriality, victims’ interests, criteria related to efficiency of the proceedings, etc. The prioritisation rule could be that, when a prosecution is brought in a national court, the other Member States must halt or suspend ongoing proceedings.

Judicial review

The individuals concerned must be able to apply for a judicial review of decisions allocating cases to Member States, particularly those allocated to a specific jurisdiction through a binding agreement, because such agreements would fetter the ability of the relevant Member States to denounce the jurisdiction allocation at a later stage. The question of judicial review in situations where there are no binding agreements could be left to the discretion of the Member States and their national laws. Judicial review would be indispensable if the power to take decisions were conferred on an EU body

RELAUNCHING THE DEBATE ON THE NE BIS IN IDEM PRINCIPLE

Articles 54 to 58 of the Convention implementing the Schengen Agreement (CISA) [Official Journal L 239 of 22. 9.2000] are devoted to the ne bis in idem principle. The principle is thus currently binding throughout the Schengen area, in the ten EU Member States which acceded in 2004, in Iceland and Norway, in the United Kingdom, and shortly also in Ireland.

If a mechanism for allocating jurisdiction can be established, discussions on ne bis in idem could be re-launched. In this Green Paper the Commission addresses the following questions:

  • Need to clarify certain elements and definitions. Consideration should be given, for instance, to the types of decision which can have a ne bis in idem effect, and/or what is to be understood under idem or “same facts”.
  • Application of the principle. The principle currently applies only where the imposed penalty “has been enforced, is actually in the process of being enforced or can no longer be enforced”. This condition was justified in a traditional system of mutual assistance, but it is questionable whether it is still needed in an area of freedom, security and justice, where cross-border enforcement now takes place through EU mutual recognition instruments.
  • Current possibilities for derogations from the principle. The Commission sees no further need for exception. Currently, Article 55 CISA enables Member States to provide for exceptions from the ne bis in idem principle where for example the acts to which the foreign judgment relates constitute an offence against national security.

The measures proposed in the Green Paper would also enable the Union to reduce the number of grounds for non-enforcement of judicial decisions by other Member States which are currently provided for by EU instruments. Some of these grounds for non-enforcement could be maintained, such as the fact that an act took place on the territory of the Member State of enforcement.

Background

The Hellenic Republic presented an initiative with a view to adopting a Council Framework Decision concerning the application of the ne bis in idem principle [Official Journal C100 of 26.4.2003]. It provided for definitions of the “same facts” (idem), the principle that penalties are not cumulative, exchanges between competent authorities, etc. The Council has failed to reach agreement on the Greek initiative.

Application of the principle raises a number of questions of interpretation on account of the divergent rules applying nationally and internationally. In the legal systems of some Member States the principle is recognised only in the national context, i.e. vertically in the country’s own criminal procedure. Articles 54 to 57 of the CISA provide for the ne bis in idem principle to apply in the international context, i.e. horizontally.

The ne bis in idem principle is enshrined in Article 50 of the Charter of Fundamental Rights of the EU, which extends the principle throughout Union territory. This represents considerable progress over Protocol 7 to the European Human Rights Convention (ECHR). The Court of Justice of the European Communities considered the scope of the principle in two important judgments based on Schengen (C-385/01 Gözütok and Brügge; C-469/03 Miraglia). The principle is recognised by all legal systems that are concerned to secure protection for fundamental rights.

Key terms used in the act
  • The ne bis in idem (or non bis in idem) principle is also known as the double jeopardy rule. The principle is that no-one may be prosecuted or convicted twice for the same facts or the same punishable conduct.
  • The mandatory prosecution principle is the rule that the prosecution service must always prosecute every offence that comes to its knowledge.

 

Criminal convictions: disqualifications

Criminal convictions: disqualifications

Outline of the Community (European Union) legislation about Criminal convictions: disqualifications

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

Criminal convictions: disqualifications

Document or Iniciative

Communication from the Commission of 21 February 2006 to the Council and the European Parliament: Disqualifications arising from criminal convictions in the European Union [COM(2006) 73 final – Not published in the Official Journal].

Summary

The Communication clarifies the concept of disqualification, presents a round-up of the relevant legislation at European level and outlines the measures that could be taken to make disqualifications more effective. It concerns only disqualifications resulting from a criminal conviction and not, for example, measures imposed during a trial or measures imposed for preventive purposes on persons who cannot be held criminally liable.

Definition of disqualifications arising from a criminal conviction

A person may be deprived of certain rights following a criminal conviction. This may include, for example, a driving ban, prohibition from residing in a particular area or deprivation of civil rights. The disqualification is a penalty ordered by the court, either as an addition to the principal penalty or as an alternative penalty if ordered in place of one or more principal penalties. Where appropriate, it can be automatically imposed as a consequence of the principal penalty and thus need not be ordered by the court (additional penalty). A disqualification may be ordered in administrative or disciplinary proceedings arising as a result of a criminal conviction.

Disqualifications can apply to natural persons or legal persons such as firms or associations. However, not all Member States recognise the criminal liability of legal persons. The Commission addresses this question in its Green Paper on sanctions [PDF ], which illustrates the differences in Member States’ legislation on sanctions and disqualifications.

Approximating legislation in the Member States

Community instruments adopted in this connection aim to approximate national legislation. One of these is Framework Decision 2004/68/JHA on combating sexual exploitation of children and child pornography. Under this Decision, Member States are required to take the necessary measures to ensure that a person convicted of such an offence is prevented from exercising professional activities related to the supervision of children. The Communication also refers to Framework Decision 2003/568/JHA on combating corruption in the private sector, the legislation concerning the procedures for the award of public contracts and aimed at combating corruption and organised crime, and other EC directives applying to the financial sector.

The instruments concerning the effect that a disqualification measure or a conviction ordered in one Member State is likely to have in the other Member States can be divided into three categories: instruments allowing partial mutual recognition, instruments which are not in force or which have been ratified by only a limited number of Member States, and non-mandatory resolutions.

The instruments allowing partial mutual recognition include a number of directives that deal directly with the recognition of a disqualification ordered in another Member State, such as the Directives on the exercise of the right to vote and stand for election at municipal and European elections or the Directive on the mutual recognition of expulsion decisions.

Instruments which are not in force or which have been ratified by only a limited number of Member States include:

  • the Danish initiative with a view to adopting a Council Decision on increasing cooperation between European Union Member States with regard to disqualifications [Procedure CNS/2002/0820];
  • the EU Convention of 1998 concerning driving disqualifications, ratified by very few Member States.

An example of a non-mandatory resolution is the 1997 resolution aimed at combating football-related violence.

The Commission notes that there are few instruments that require the Member States to include professional disqualifications among the penalties available on conviction or to attach disqualification effects to certain convictions. It regrets the lack of any genuine information-exchange systems among the Member States.

Making disqualifications more effective in the European Union

In order to make disqualifications more effective, the Commission envisages that conviction for specific offences should lead to automatic disqualification from exercising certain activities. The adoption of legislation is likely to require that the activities and professions concerned be defined, minimum harmonisation of the offences themselves and harmonisation of the duration of the disqualification itself, in order to avoid potential discrimination. The Commission feels that this regulatory approach might prove inappropriate for activities that are not necessarily EU-wide.

In certain cases, the effect of a national disqualification should be extended to the whole EU territory. Mutual recognition is the cornerstone of an area of freedom, security and justice; however, extending the territorial effect of disqualifications could be seen as aggravating the sanction and raises the issue of the rights of the individual concerned. Furthermore, national criminal law and its penalties vary within the European Union. Extending the effect of a disqualification measure ordered in one Member State throughout the Union could be opposed by a Member State which does not impose this type of sanction for the offence in question.

The Commission favours the mutual recognition of disqualifications in areas where a common basis already exists among the Member States and where there is therefore a sufficient degree of homogeneity as regards sanctions. This is the case where the disqualification already exists in all the Member States for a specific category of offence and where a legal instrument specifically requires this type of penalty to be provided for in all Member States for certain types of offence. However, if disqualification is only one out of a possible range of penalties for the conduct that the legal instrument requires to be treated as a criminal offence, there is no guarantee that a common basis will exist.

Improving the flow of information

The Commission believes that improving the flow of information among the Member States is a prerequisite for making disqualifications more effective at European level. Several measures have already been adopted, such as the White Paper analysing the main difficulties in exchanging information on convictions [PDF ]. Nevertheless, the disparities in the Member States as regards disqualifications and the widely differing rules on the keeping of national registers make the exchange of information difficult.

The Commission envisages a comprehensive exchange of information on the disqualifications ordered in a Member State:

  • by a court following criminal conviction;
  • flowing automatically from a conviction in that same Member State;
  • following a criminal conviction, regardless of the authority ordering them, where the procedure gives the same guarantees as a criminal procedure;
  • on legal persons for offences or infringements which would have been criminal offences if they had been committed by a natural person and for which a legal person can be held liable (criminally or administratively) in all the Member States.

The Commission concludes that the existence of a criminal conviction triggering a disqualification is the common denominator among the Member States. It wishes to improve the flow of information on convictions and will pursue the work already begun. Concerning the mutual recognition of disqualifications, the Commission favours a “sectoral” approach, in sectors where a common basis exists between the Member States, e.g. driving disqualifications and disqualification from working with children.

 

Grotius

Grotius

Outline of the Community (European Union) legislation about Grotius

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

Grotius

1) Objective

To support initiatives by public institutions or private bodies which pursue the objective of raising awareness among legal practitioners of the legal and judicial systems of the different Member States, within a framework of continuing education.

2) Document or Iniciative

Joint action 96/636/JHA of 28 October 1996, adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on a programme of incentives and exchanges for legal practitioners [Official Journal L 287 of 08.11.1996].

3) Summary

The programme, entitled “Grotius”, aims to foster mutual knowledge of legal and judicial systems and to facilitate judicial co-operation between Member States by implementing measures involving training, information, studies and exchanges for legal practitioners.

The following are considered to be legal practitioners: judges, including liaison and contact judges, advocates, bailiffs, solicitors, researchers, investigation services, ministry officials, court interpreters and other officers of justice.

The programme is established for a period of five years (1996-2000).

The categories of project which may considered under the programmes are:

  • training, in particular language training (legal terminology)
  • exchange and work-experience programmes with institutions and practitioners from another Member State;
  • organization of meetings, conferences and seminars on topical legal issues or legal subjects of general interest;
  • studies and research in connection with the other activities of the programmes;
  • distribution of information, both on the activities of the programme and their results and on developments of all kinds relating to judicial cooperation which could be of interest to practitioners.

Projects are selected on the basis of the general criteria set out in Article 8 of the joint action.

The Commission’s role includes drawing up a coherent and complete annual programme and undertaking each year an assessment of the implementation of the programme for the previous year (and submitting an annual report to Parliament and the Council).

To carry out its tasks, the Commission is assisted by an advisory committee consisting of one representative from each Member State and chaired by the Commission.

For information on the second phase of the programme as regards judicial cooperation in criminal matters, see GROTIUS II.

4) Implementing Measures

Annual programme for 1999 Official Journal C 12 of 16.01.1999
Annual programme and call for applications for 2000
Official Journal C 12 of 15.01.2000 
It lays out the annual priorities regarding the implementation of the programme on the one hand and supplies general and practical information to applicants seeking finance to initiate projects on the other.

 

European evidence warrant

European evidence warrant

Outline of the Community (European Union) legislation about European evidence warrant

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

European evidence warrant (EEW)

Document or Iniciative

Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

Summary

The European evidence warrant (EEW) is a judicial decision, whereby objects, documents and data may be obtained from other Member States. The EEW is issued by competent authorities designated by the Member States. An issuing authority may be a judge, court, investigating magistrate, public prosecutor or other judicial authority. Member States must also designate the competent authorities for recognising and executing the EEW.

The EEW may be issued to request objects, documents and data from other Member States for the following types of proceedings:

  • criminal proceedings brought by or to be brought before a judicial authority for criminal offences under the national law of the issuing state;
  • proceedings brought by administrative authorities for acts that are punishable under the law of the issuing state where the decision may give rise to court proceedings;
  • proceedings brought by judicial authorities for acts that are punishable under the law of the issuing state where the decision may give rise to further court proceedings;
  • all of the above, for offences for which the issuing state may punish or hold liable a legal person.

The issuing state must ensure that the evidence requested is necessary and proportionate for these proceedings. In addition, the acquisition of such evidence under similar circumstances in the issuing state must be provided for in its national law. Only once these conditions are met may the EEW be issued.

When the competent authority of an issuing state has reasonable grounds to believe that relevant evidence is located on the territory of another Member State, it may transmit the EEW to the competent authority of that state. The EEW must be transmitted directly from the issuing to the executing authority and in a manner that leaves a written record. To this end, Member States may designate one or more central authorities that will assist the competent authorities. Member States may also take advantage of the secure telecommunications system of the European Judicial Network for the transmission of EEWs.

The EEW is to be recognised by the executing authority without any further formality. The executing authority shall take the necessary measures to execute the EEW, unless it decides to invoke a ground for non-recognition, non-execution or postponement. When the EEW has not been issued or validated by a judge, court, investigating magistrate or public prosecutor, the executing authority may decide not to carry out a search or seizure to execute the warrant. However, it must consult the competent authority of the issuing state before taking such a decision. Member States may declare that they require such validation when the executing measures in a similar domestic case must be ordered or supervised by a judge, court, investigating magistrate or public prosecutor under its law.

If not stipulated otherwise in the framework decision, the executing authority shall comply with the formalities indicated by the issuing authority. However, these formalities may not contradict the fundamental principles of law of the executing state.

The executing state may refuse to recognise or execute the EEW within 30 days of receiving it if:

  • the execution breaches the ne bis in idem principle;
  • in certain cases specified in the framework decision, the act is not an offence under its national law;
  • execution is not possible with the measures available to the executing authority in the specific case;
  • there is an immunity or privilege under the law of the executing state that makes its execution impossible;
  • it has not been validated by a judge, court, investigative magistrate or public prosecutor in the issuing state when so required;
  • the offence was committed on the territory of the executing state or outside the issuing state where the law of the executing state does not allow for legal proceedings;
  • it would harm national security interests;
  • the form is incomplete or incorrectly completed.

The recognition or execution of an EEW may only be subject to verification of double criminality if a search or seizure is required for its execution and if it is not related to the list of offences set out in the framework decision.

The executing state is to take possession of the evidence within 60 days from receiving the EEW, unless there are grounds for postponement.

Member States must ensure that all interested parties have access to legal remedies against the recognition and execution of an EEW. These remedies may be limited to cases where coercive measures are used. The actions are to be brought before a court in the executing state; however, the substantive reasons for issuing the EEW may only be brought before a court in the issuing state.

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Framework Decision 2008/978/JHA

19.1.2009

19.1.2011

OJ L 350 of 30.12.2008