Tag Archives: Criminal law

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].

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Outline of the Community (European Union) legislation about Mutual recognition of custodial sentences and measures involving deprivation of liberty

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 custodial sentences and measures involving deprivation of liberty

Document or Iniciative

Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [See amending act(s)].

Summary

This framework decision sets out the rules whereby judgements that impose custodial sentences or measures involving the deprivation of liberty delivered in one Member State are to be recognised and enforced in another Member State. The aim is to thus facilitate the social rehabilitation and reintegration of sentenced persons.

Member States must designate the competent authorities for issuing and executing judgements. The competent authority of the issuing state is responsible for forwarding the judgement accompanied by the certificate annexed to the framework decision directly to the competent authority of one executing state at a time and in a manner that leaves a written record.

When the sentenced person is located in the issuing or executing state and, under certain circumstances, has given his/her permission for forwarding the judgement, it may be transmitted to:

  • the Member State of which the sentenced person is a national and where s/he lives;
  • the Member State of which the sentenced person is a national and to which s/he could be deported following the judgement, even if this is not his/her place of residence;
  • any other Member State, provided that its competent authority agrees to the forwarding.

A judgement may be forwarded only once the issuing state has ensured that the enforcement of the sentence in the executing state would serve the purpose of facilitating the sentenced person’s social rehabilitation and reintegration. The latter may provide the issuing state with a reasoned opinion indicating that enforcement by it would not serve this purpose. The executing state, as well as the sentenced person, may also request the initiation of the procedure for forwarding judgements.

Upon receiving the forwarded judgement and certificate, the executing state must decide within a maximum of 90 days whether it will recognise the judgement and enforce the sentence.

The competent authority of the executing state has to recognise the judgment and take all necessary measures to enforce the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided in the framework decision. The non-recognition of the judgement and non-enforcement of the sentence is possible when the:

  • certificate is incomplete or does not correspond to the judgement;
  • criteria for forwarding the judgement and the certificate have not been fulfilled;
  • enforcement would contravene the ne bis in idem principle;
  • offence is not recognised as such under the law of the executing state, with certain exceptions;
  • enforcement is statute-barred under the law of the executing state;
  • law of the executing state provides for immunity;
  • sentenced person cannot be held liable under the law of the executing state due to his/her age;
  • remaining sentence is less than six months when the executing state receives the judgement;
  • sentenced person had not appeared in person at the trial where the judgement was passed, with certain exceptions;
  • issuing state rejects the request of the executing state to prosecute, sentence or otherwise deprive the liberty of the sentenced person for another offense committed before the transfer;
  • sentence requires for psychiatric or health care or for another measure involving the deprivation of liberty that the executing state cannot provide;
  • offence was committed on the territory of the executing state.

In case the certificate is incomplete or does not correspond to the judgement, the executing state may postpone its recognition.

The framework decision provides a list of offences that must be recognised and enforced without a double criminality check, if they result in a custodial sentence or a measure involving deprivation of liberty of a maximum of at least three years in the issuing state. For all other offences, the executing state may require that they constitute an offence also under its national law in order for them to be recognised and enforced. Where the duration or nature of the sentence is not compatible with the national law of the executing state, it may adapt the sentence. However, the adapted sentence must correspond as closely as possible to and in no case be harsher than the original sentence.

In line with the law of the issuing state, the consent of the sentenced person is required for the forwarding of a judgment and certificate to the executing state for recognition and enforcement of the sentence. However, this consent is not required when the executing state is the Member State:

  • of which the sentenced person is a national and where s/he lives;
  • to which the sentenced person is deported upon release, by reason of the order included in the judgement;
  • to which the sentenced person has fled or returned, while criminal proceedings against him/her are pending or following a conviction in the issuing state.

In any event, if the sentenced person is in the issuing state, s/he must be given the opportunity to provide an oral or written opinion.

When the sentenced person is located on the territory of the issuing state, s/he must be transferred to the territory of the executing state within a period of 30 days from the date when the latter has recognised the judgement.

Both the issuing and executing state may grant amnesty or pardon. However, only the issuing state may decide on the review of the judgement.

References

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

Framework Decision 2008/909/JHA

5.12.2008

5.12.2011

OJ L 327 of 5.12.2008

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

Cooperation in criminal matters: protection of personal data

Cooperation in criminal matters: protection of personal data

Outline of the Community (European Union) legislation about Cooperation in criminal matters: protection of personal data

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 in criminal matters: protection of personal data

Document or Iniciative

Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters.

Summary

This framework decision aims to protect the fundamental rights and freedoms of natural persons when their personal data are processed for the purposes of preventing, investigating, detecting or prosecuting a criminal offence or of executing a criminal penalty. It concerns personal data that are processed in part or entirely by automatic means, as well as personal data forming part of a filing system that are processed by non-automatic means.

Data processing

The competent authorities of Member States may collect personal data only for specified, explicit and legitimate purposes. The processing of these data is permitted only for the purposes for which they were collected. Processing for other purposes is allowed only under certain circumstances or when certain appropriate safeguards are in place.

In principle, personal data that reveals a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership or concerns his/her health or sex life may not be processed. Their processing may be allowed only if it is absolutely necessary and if appropriate safeguards have been established.

Inaccurate personal data must be rectified and updated or completed if possible. Once the data are no longer needed for the purposes they were collected, they must be erased, made anonymous or, in certain cases, blocked. The need to store personal data must be reviewed regularly, with time limits set for their erasure.

The competent authorities of Member States must verify that the personal data to be transmitted or made available are accurate, up to date and complete. In order to be able to verify that the processing of data is lawful and to ensure the integrity and security of the data, their transmissions must be logged or documented.

Data transmission

Personal data received from another Member State are to be processed only for the purposes for which they were transmitted. In certain cases however, they may be processed for other purposes, for example for the prevention, investigation, detection or prosecution of other criminal offences, the execution of other criminal penalties or the prevention of threats to public security. The receiving Member State must respect any specific restrictions to the exchanges of data provided for in the law of the transmitting Member State.

Under certain circumstances, the receiving Member State may transfer personal data to third countries or to international bodies. To this end, the Member State that first made the data available must provide its consent. Only in urgent cases may data be transferred without a prior consent. Personal data may also be transferred to private parties in Member States for exclusive purposes, provided that the competent authority of the Member State from where the data was received has given its consent.

Rights of data subjects

The data subject is to be kept informed of any collection or processing of personal data relating to him/her. However, when data have been transmitted from one Member State to another, the first may demand that the second does not divulge any information to the subject.

The data subject may request to receive a confirmation on whether data concerning him/her have been transmitted, who the recipients are, what data are being processed, as well as a confirmation that the necessary verifications of that data have been made. In certain cases, Member States may restrict the subject’s access to information. Any decision restricting access must be given in writing to the data subject, together with the factual and legal reasons thereof. The data subject must also be given advice on his/her right to appeal such a decision.

The data subject may demand that personal data relating to him/her be rectified, erased or blocked. Any refusal to that end must be given in writing, along with information on the right to lodge a complaint or seek a judicial remedy.

Any person may demand compensation for the damages s/he has suffered due to an unlawful processing of personal data or any other act that is not compatible with this framework decision. In case a data subject’s rights are breeched, s/he has the right to a judicial remedy.

Safeguarding data processing

The competent authorities must take the necessary security measures to protect personal data against any unlawful form of processing. This includes accidental loss, alteration and unauthorised disclosure of, as well as access to, personal data. In particular, specific measures need to be taken with regard to the automated processing of data.

National supervisory authorities in Member States monitor and advise on the application of this framework decision. To that end, they are granted investigative powers, effective powers of intervention, as well as the power to pursue legal proceedings. For any infringements of the provisions of this framework decision, Member States must establish effective, proportionate and dissuasive penalties.

References

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

Framework Decision 2008/977/JHA

19.1.2009

27.11.2010

OJ L 350 of 30.12.2008

Criminal Justice specific programme

Criminal Justice specific programme

Outline of the Community (European Union) legislation about Criminal Justice specific programme

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 Justice specific programme (2007-13)

Document or Iniciative

Council Decision 2007/126/JHA of 12 February 2007 establishing for the period 2007 to 2013, as part of the General Programme on Fundamental Rights and Justice, the Specific Programme Criminal Justice.

Summary

This decision establishes the specific programme Criminal Justice. This programme is one of the five specific programmes that make up the Fundamental Rights and Justice general programme, developed with the aim of creating an area of freedom, security and justice within the European Union (EU).

This Criminal Justice programme covers the period from 1 January 2007 to 31 December 2013.

General objectives

The Criminal Justice programme is aimed at creating a European area of justice. It has four main objectives, including:

  • promoting judicial cooperation in criminal matters;
  • bringing the judicial systems of EU countries closer together and to that of the EU;
  • enhancing contacts and the exchange of information and best practices between legal, judicial and administrative authorities and the legal professions and promoting the training of the members of the judiciary;
  • further improving mutual trust between the judicial authorities.

Specific objectives

More precisely, the Criminal Justice programme seeks to foster judicial cooperation in criminal matters, with the aim of:

  • promoting mutual recognition of judicial decisions;
  • approximating the judicial systems of EU countries in criminal matters, in particular with regard to serious cross-border crime;
  • establishing minimum standards concerning aspects of procedural criminal law;
  • avoiding conflicts of jurisdiction;
  • improving the exchange of information, for example, through a computerised system for exchanging information on national criminal records;
  • promoting the protection of individuals involved in criminal proceedings and assistance to victims;
  • strengthening EU countries cooperation with Eurojust;
  • promoting measures aimed at re-socialising offenders.

The programme also aims to achieve the following specific objectives:

  • to improve mutual knowledge of EU countries’ legal and judicial systems and to strengthen networking, cooperation and the exchange of information and best practices;
  • to ensure the sound implementation and evaluation of EU action in the area of judicial cooperation in criminal matters;
  • to better inform the public about legal systems in EU countries and about access to justice;
  • to promote training in European law for those involved in the work of the judiciary;
  • to improve mutual understanding between EU countries to pave the way for mutual trust;
  • to implement a computerised system for the exchange of information on criminal records and to examine the possibility of establishing other types of exchanges of information.

Eligible actions

The Criminal Justice programme supports various initiatives, including:

  • actions taken by the Commission, such as research, the implementation of specific projects, the formulation of indicators and methodologies, the development of networks of national experts and the dissemination of information;
  • transnational projects presented by several EU countries working together (at least two EU countries or at least one EU country and one other country that may either be an acceding or a candidate country);
  • the activities of non-governmental organisations (NGOs) or other entities pursuing aims of general European interest;
  • expenditure of the European Judicial Training Network, which may obtain an operating grant as part of this programme;
  • EU countries’ national projects, individually, may be supported under this programme, subject to certain conditions.

Target groups

The programme is targeted in particular at those involved in the work of the judiciary, national authorities and the citizens of the Union in general.

The programme is open to both public and private organisations, including professional organisations, universities, research and training institutes, legal practitioners and NGOs. It is also open to organisations that are profit oriented, but subject to certain conditions.

Non-EU countries and international organisations may participate in transnational projects only as partners.

Types of EU funding

There are two types of EU funding provided under the programme, including:

  • grants, which are normally awarded following calls for proposals, through operating grants and grants to actions. The annual work programme must specify the minimum rate of annual expenditure to be awarded to grants, which shall be at least 65 %. It must also specify the maximum rate of co-financing of projects;
  • public procurement contracts are foreseen for accompanying measures, such as the purchase of goods and services, particularly expenditure on information and communications, the implementation and monitoring of projects, policies, programmes and legislation.

Implementing measures

The Commission implements the financial support in accordance with the Financial Regulation applicable to the general budget of the EU. It also adopts an annual work programme specifying the specific objectives, thematic priorities and the accompanying measures that are funded through public procurement contracts.

The evaluation and award procedures take several criteria into account, including:

  • conformity with the annual work programme, the four general objectives, the specific objectives and the eligible actions;
  • quality of the action;
  • amount of EU financing requested;
  • relationship between the expected results and the general objectives, specific objectives and eligible actions.

The award of operating grants to actions taken by NGOs or by the European Judicial Training Network is also subject to certain criteria.

Coordination with other programmes

Synergies should be created with other programmes, including the:

  • Civil Justice specific programme, which, like the Criminal Justice programme, is also part of the general programme on Fundamental Rights and Justice;
  • general programme on Security and Safeguarding Liberties;
  • general programme on Solidarity and the Management of Migration Flows;
  • EU statistical programme.

Monitoring and evaluation

To allow the Commission to monitor any action financed by the programme, the beneficiary of the funding must:

  • submit technical and financial reports on the progress of the work and a final report within three months of completion of the action funded;
  • keep available for the Commission all the supporting documents regarding expenditure for a period of five years following the last payment in respect of the action taken.

For its part, the Commission will:

  • carry out supervision and financial control of actions resulting from this programme, in particular by on-the-spot checks. The Court of Auditors may also carry out audits in order to ensure the proper implementation of expenditure;
  • ensure that, if necessary, the scale or conditions of allocation of the financial assistance and timetable for payments are adjusted;
  • ensure that every other necessary step be taken to verify that the actions are properly carried out.

The Commission must apply measures to prevent fraud, corruption and any other illegal activities. It will carry out checks, recover amounts unduly paid and apply penalties in the event of irregularities.

The Commission will ensure the regular, independent and external monitoring and evaluation of the programme. It will annually publish a list of actions financed under the programme.

References

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

Decision 2007/126/JHA

24.2.2007

OJ L 58, 24.2.2007

Judicial cooperation in criminal matters

Judicial cooperation in criminal matters

Outline of the Community (European Union) legislation about Judicial cooperation in criminal matters

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

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.

GENERAL FRAMEWORK

  • The Stockholm Programme
  • Action plan on the Stockholm Programme
  • The Hague Programme: 10 priorities for the next five years
  • Standing Committee on operational cooperation on internal security
  • Rights of victims of crime (Proposal)
  • Right of access to a lawyer (Proposal)
  • Compensation to crime victims
  • Exchange of information from criminal records
  • Cooperation in criminal matters: protection of personal data
  • Standing of victims in criminal proceedings
  • Mutual assistance in criminal matters between Member States
  • Convention on extradition between Member States
  • Simplified extradition procedure between Member States
  • Cooperation of individuals to combat organised crime
  • European e-Justice Strategy
  • European Case Law Identifier
  • Justice Forum
  • The rights of crime victims
  • Plan d’action statistique 2011-2015 pour l’évaluation de la criminalité
    (FR)
  • Developing a comprehensive EU strategy to measure crime and criminal justice
  • The external dimension of the area of freedom, security and justice
  • Jurisdiction in criminal matters: first and third pillar
  • Green Paper on criminal proceedings
  • Agreement with the United States on extradition
  • Agreement with the United States on mutual legal assistance
  • Agreement with Japan on mutual legal assistance

Eurojust

  • Decision establishing Eurojust
  • Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

European network of points of contact

  • European Judicial Network
  • A new dimension for European judicial training
  • Judicial training in the European Union
  • Framework for the exchange of liaison magistrates

Action programmes

  • Criminal Justice specific programme (2007-13)
  • Specific programme: Preventing and combating crime (2007-2013)
  • Framework programme concerning police and judicial cooperation in criminal matters (AGIS)
  • Grotius II – Criminal
  • Grotius

MUTUAL RECOGNITION

  • European protection order
  • The right to interpretation and translation in criminal proceedings
  • Jurisdiction in criminal proceedings: prevention and settlement of conflicts
  • Mutual recognition of supervision measures
  • Mutual recognition of pre-trial supervision measures
  • European evidence warrant (EEW)
  • Green Paper on mutual recognition of non-custodial pre-trial supervision measures
  • Supervision of sentenced persons or persons on conditional release
  • Mutual recognition of custodial sentences and measures involving deprivation of liberty
  • Taking account of convictions in Member States in the course of new criminal proceedings
  • Recognition and execution of confiscation orders
  • Mutual recognition of financial penalties
  • Execution of orders freezing property or evidence
  • European arrest warrant
  • Agreement on the surrender procedure between the EU Member States, Iceland and Norway
  • Convention on Driving Disqualifications
  • Criminal convictions: disqualifications
  • Recognition of decisions in criminal matters: strengthening mutual trust
  • Green Paper on the presumption of innocence
  • Criminal proceedings: conflicts of jurisdiction and the ne bis in idem principle (Green Paper)

WAR CRIMES

  • Genocide, crimes against humanity and war crimes: criminal investigation and prosecution
  • Network of contact points in respect of persons responsible for genocide and crimes against humanity
  • European and international courts

Agreement on the surrender procedure between the EU Member States, Iceland and Norway

Agreement on the surrender procedure between the EU Member States, Iceland and Norway

Outline of the Community (European Union) legislation about Agreement on the surrender procedure between the EU Member States, Iceland and Norway

Topics

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

External relations > Industrialised countries

Agreement on the surrender procedure between the EU Member States, Iceland and Norway

Document or Iniciative

Council Decision 2006/697/EC of 27 June 2006 on the signing of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway.

Summary

The object of this Agreement is to improve judicial cooperation in criminal matters between the Member States of the European Union (EU), Iceland and Norway. More specifically, it aims to institute a surrender system to speed up the transfer of suspects and persons in custody and to ensure sufficient controls on the execution of arrest warrants.

The Parties to this Agreement undertake to respect fundamental rights, to protect personal data and to refuse to surrender any person suspected on the basis of discriminatory reasons. They also express their mutual confidence in their legal systems and their ability to guarantee a fair trial.

Scope

The arrest warrant may be issued either for acts punishable by a custodial sentence or detention order of at least 12 months or, where a sentence has been passed or a detention order made, for a sentence of at least 4 months.

For offences punishable by a custodial sentence of at least three years, the Parties can make a declaration to the effect that they do not require the condition of double criminality. These include: participation in a criminal organisation, terrorism, trafficking in human beings, child pornography, illicit trafficking in human organs, narcotics, arms, explosives or nuclear material, corruption, computer-related crime, racism, crimes against the environment, rape, abduction, counterfeiting, etc. The list of offences is the same as that used by the Member States in the European Arrest Warrant.

Grounds for non-execution of the arrest warrant

The judicial authorities will refuse to execute an arrest warrant if the offence on which it is based is covered by an amnesty, if the person has already been tried for the same acts and the sentence has been or is being served, or if the person cannot be held criminally responsible owing to his age.

On the other hand, the States are free to refuse to execute an arrest warrant if:

  • the acts on which the warrant is based do not constitute an offence in the executing State (except in relation to taxes, duties, customs and exchange);
  • the person is being prosecuted in the executing State for the same act;
  • the State has passed a final judgement in respect of the same acts, which prevents further proceedings;
  • the authorities in the executing State have decided not to prosecute the person or have halted proceedings
  • the criminal prosecution or punishment of the requested person is statute-barred in the executing State;
  • the requested person is a national or resident of the executing State and that State undertakes to execute the sentence;
  • the offences were committed outside the territory of the issuing State or the law of the executing State does not permit prosecution for those offences.

The General Secretariat of the Council must be notified of the grounds for non-execution that are mandatory in a Member State, and will forward this information to the Commission and the Member States.

Arrest warrant

The arrest warrant contains details of the identity of the requested person, the issuing authority, the sentence and the nature of the offence. It is transmitted as soon as the requested person is found, and communicated to the Schengen Information System (SIS) or, if this is not possible, to Interpol.

If the person consents to his surrender, the final decision on the execution of the arrest warrant should be taken within ten days; otherwise it should be taken within sixty days of the arrest. If this is not possible, the issuing authorities must be informed of the reason for the delay and the time limit may be extended by thirty days.

Surrender procedure

When the person is arrested, he must be informed of the arrest warrant and its contents, the possibility of consenting to surrender to the issuing authority, and his right to be assisted by legal counsel and an interpreter. He may remain in detention or be released provisionally (provided that measures are taken to prevent him absconding).

The hearing is conducted according to the law of the executing State and in conditions fixed by common agreement. The person can choose whether or not to consent to his surrender, if this choice is expressed voluntarily and in full awareness of the consequences.

The person should be surrendered within ten days of the decision to execute the warrant or, if that is impossible, within ten days of the surrender date agreed between the authorities. If he is still in custody at the end of that time, he must be released.

The executing authority will seize and hand over property that may serve as evidence or that has been acquired by the person as a result of the offence.

Surrender of the requested person

The Contracting Parties will permit the transit through their territory of a person being surrendered, provided that they have been given information on the identity of the person, the existence of the arrest warrant, the nature of the offence and a description of the circumstances.

A person who has been surrendered to the issuing State may be surrendered to a State other than the executing State for an offence committed prior to the surrender if that person has not, although he could have done so, left the territory of the State to which he was surrendered within 45 days of his release, or has returned to the territory having left it, or if he consents to be surrendered to a State other than the executing State, or if he is not subject to the specialty rule.

Particular cases

Execution may not be refused on the grounds that the offence is a political one. This general rule may, however, be limited to the crimes covered by the Framework Decision on combating terrorism and by Articles 1 and 2 of the European Convention on the Suppression of Terrorism.

The execution of the arrest warrant may be subject to certain conditions, where the sentence was rendered in absentia and a new trial has been ordered or the sentence is for life imprisonment (subject to the guarantee of a review or measures of clemency being applied) or where the person is a national or resident of the executing State.

The Parties may consent to the prosecution, sentencing or detention of a person, before his surrender, for an offence other than that for which the arrest warrant was issued. If the person has already been surrendered, however, he cannot be prosecuted for a prior offence except in certain specific cases.

General and final provisions

All expenses are borne by the issuing State, except those incurred in the territory of the executing State in connection with the execution of an arrest warrant.

Any disputes with regard to the interpretation and application of this Agreement should be referred to a meeting of representatives of the governments of the Contracting Parties and should be settled within six months.

The Secretary-General of the Council of the European Union will make public any notification or declaration made concerning this Agreement, of which he is the depository.

The Parties will keep under review the development of the case law of the Court of Justice of the European Communities and of the case law of the competent courts of Iceland and Norway, and will carry out a review of the Agreement no later than five years after it comes into force.

This Agreement will come into force three months after the Secretary-General of the Council has established that all the requirements concerning the expression of the consent of the Contracting Parties to be bound by this Agreement have been fulfilled. Entry into force depends on completion of the relevant constitutional procedures in the individual Member States, in accordance with Article 24(5) of the Treaty establishing the European Union (FR).

References

Act Entry into force – Date of expiry Deadline for transposition in the Member States Official Journal
Council Decision 2006/697/EC 27.6.2006 OJ L 292 of 21.10.2006

Penal framework for preventing the facilitation of illegal immigration

Penal framework for preventing the facilitation of illegal immigration

Outline of the Community (European Union) legislation about Penal framework for preventing the facilitation of illegal immigration

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 > Free movement of persons asylum and immigration

Penal framework for preventing the facilitation of illegal immigration

Document or Iniciative

Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence.

Summary

Common action between European Union (EU) countries in the fields of police and judicial cooperation in criminal matters is necessary for the creation of an area of freedom, security and justice. In this context, EU countries should also take measures to prevent the aiding of illegal immigration. To this end, this framework decision establishes minimum rules for penalties, liability of legal persons and jurisdiction.

Penalties

The directive defining the facilitation of illegal immigration sets out the infringements for which EU countries must adopt effective, proportionate and dissuasive criminal penalties that may include extradition. These penalties may be supplemented by other measures, such as:

  • confiscation of the means of transport;
  • prohibition to practice the occupational activity in which the offence was committed;
  • deportation.

Certain infringements committed for financial gain must be punishable by custodial sentences with a maximum sentence of not less than eight years, if they were committed as part of activity of a criminal organisation or if the lives of the subjects of the offences were endangered.

Liability of legal persons

Legal persons must be held liable for infringements relating to the aiding of illegal immigration committed for their benefit by any person that has power of representation of or authority to take decisions on behalf or to exercise control within the legal person. If such a person neglects to exercise supervision or control over a person under the authority of the legal person who commits an infringement, the legal person must also be held liable.

EU countries must adopt sanctions for legal persons that are effective, proportionate and dissuasive. These must include criminal or non-criminal fines and may include other sanctions, such as:

  • exclusion from public benefits;
  • temporary or definitive ban on commercial activities;
  • a judicial supervision or dissolution measure.

Jurisdiction

EU countries must ensure that their jurisdiction applies to infringements committed in their territory. They may decide whether they apply their jurisdiction in cases where the offence is committed by one of their nationals or for the benefit of a legal person established in their territory. However, if an EU country does not extradite its own nationals, it must ensure that its jurisdiction applies to infringements committed by its nationals outside of its territory.

When an EU country becomes aware of infringements breaching another EU country’s law on the entry and residence of aliens, it must communicate this information to the country concerned. If an EU country requests another EU country to prosecute such infringements, it must provide the latter with an official report or certificate describing the provisions of its law that were breached.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2002/946/JHA

5.12.2002

5.12.2004

OJ L 328 of 5.12.2002

Related Acts

Report from the Commission of 6 December 2006 based on Article 9 of the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [COM(2006) 770 final – Not published in the Official Journal].

Preventing and combating trafficking in human beings

Preventing and combating trafficking in human beings

Outline of the Community (European Union) legislation about Preventing and combating trafficking in human beings

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 > Fight against trafficking in human beings

Preventing and combating trafficking in human beings

Document or Iniciative

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [OJ L 101 of 15.4.2011].

Summary

Trafficking in human beings is globally considered to be one of the most serious of criminal offences. It constitutes a violation against human rights and is a modern form of slavery. The new Directive adopted by the European Union (EU) defines the minimum common rules for identifying and sanctioning offences of trafficking in human beings.

Definitions

The following are considered as punishable acts: the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, for the purpose of exploitation.

Exploitation shall include, as a minimum:

  • exploitation for prostitution or other forms of sexual exploitation;
  • forced labour or services (including begging, slavery or practices similar to slavery, servitude, exploitation for criminal activities, or the removal of organs).

Exploitation exists when a constraint has been exerted on a person (by means of threat or use of force, abduction, fraud, deception, etc.), whether or not the victim has given his/her consent.

When the victim is a child (a person below 18 years of age), these acts of exploitation are automatically deemed to be an offence of trafficking in human beings, even if none of the means of constraint set forth in the paragraph above has been used.

Penalties

Incitement to undertake trafficking in human beings, as well as the aiding and abetting, and attempt to do so shall be punishable.

The Directive sets the maximum penalty for these offences to at least five years of imprisonment and to at least ten years when the following aggravating circumstances can be identified:

  • the offence was committed against a victim who was particularly vulnerable (children always come under this category);
  • the offence was committed within the framework of a criminal organisation;
  • the offence deliberately or by gross negligence endangered the life of the victim;
  • the offence was committed by use of serious violence or has caused particularly serious harm to the victim.

Legal persons can also be held liable if the offences are committed for their benefit by a person who has a leading position. The same applies if a lack of supervision or control on the part of this person enabled another person placed under his/her authority to commit these offences.

Penalties against legal persons include criminal and non-criminal fines, and other sanctions such as placing them under judicial supervision, or judicial winding-up.

Member States may decide not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit.

With regard to the prosecution of offenders, the Directive provides for the possibility for Member States to prosecute their nationals for offences committed in another EU country and to use the same means of investigation as usually used for combating organised crime, such as phone tapping.

Assistance, support and protection for victims

Member States must ensure that assistance and support are provided to victims before, during and after criminal proceedings in order to enable them to exercise the rights conferred upon them by the standing of victims in criminal proceedings. In particular, this support may consist of the provision of accommodation, medical treatment including psychological assistance, as well as information, and interpretation and translation services, if necessary. As particularly vulnerable victims, children must receive additional measures such as physical and psycho-social assistance, access to education, and, where appropriate, the option to appoint a guardian or a representative.

During the investigation and criminal proceedings, victims must receive appropriate protection including access to legal counselling and representation, free of charge if necessary, and access to a witness protection programme, where appropriate. Any further trauma to the victim should be avoided, for example by sparing him/her any contact with the accused. Children must benefit from specific measures, particularly concerning the conditions of their hearings. Specifically, they will be interviewed without delay, in adapted premises, and by professionals trained for that purpose.

Victims of trafficking in human beings must have access to compensation for victims of violent crimes of intent.

Prevention

In order to prevent trafficking in human beings, the Directive requests that Member States:

  • discourage demand through education and training;
  • lead information and awareness-raising campaigns;
  • train the officials likely to come into contact with victims of trafficking;
  • take the necessary measures to establish as a criminal offence the use of services, sexual or other, of a person who is a victim of trafficking.

The position of a European anti-trafficking Coordinator is established in order to ensure a consistent approach to combating this phenomenon in the EU.

Denmark is not taking part in the adoption of this Directive.

Context

Trafficking in human beings is explicitly prohibited by the Charter of Fundamental Rights of the European Union and the EU has made combating this phenomenon one of the priorities of the Stockholm Programme.

This new Directive replaces Framework Decision 2002/629/JHA on combating trafficking in human beings. It adopts a wider definition of this phenomenon by including other forms of exploitation.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2011/36/EU 15.4.2011 6.4.2013 OJ L 101 of 15.4.2011

Related Acts

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The EU strategy towards the Eradication of Trafficking in Human Beings 2012-2016 [COM(2012) 286 final – Not published in the Official Journal].
The Communication presents a strategy designed to focus on concrete measures that will support the transposition and implementation of Directive 2011/36/EU, bring added value and complement the work done by governments, international organisations and civil society both in EU and non-EU countries. The strategy identifies the following five priorities for the EU to focus on:

  • identifying, protecting and assisting victims of trafficking;
  • stepping up the prevention of trafficking in human beings;
  • increased prosecution of traffickers;
  • enhanced coordination and cooperation among key actors and policy coherence;
  • increased knowledge of and effective response to emerging concerns related to all forms of trafficking in human beings.

Within the above priorities, the Communication outlines a number of actions which the European Commission proposes to implement over the next five years, alongside EU countries, European External Action Service, EU institutions, EU agencies, international organisations, non-EU countries civil society and the private sector.

Commission Decision 2007/675/EC of 17 October 2007 setting up the Group of Experts on Trafficking in Human Beings [OJ L 277 of 20.10.2007].

EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings [Official Journal C 311 of 9.12.2005].

Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

Outline of the Community (European Union) legislation about Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

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 > Fight against organised crime

Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

Document or Iniciative

Communication from the Commission to the Council and the European Parliament of 23 October 2007 on the role of Eurojust and the European Judicial Network in the fight against organised crime and terrorism in the European Union [COM(2007) 644 final – Not published in the Official Journal].

Summary

Eurojust has strengthened law enforcement cooperation between Member States and achieved significant operational success. The transposition of Decision 2002/187/JHA is on balance a qualified success. To develop Eurojust more effectively, the powers of its members (known as national members) and those of the College, formed by the assembly of national members, need to be clarified and reinforced.

The Commission calls for an amendment to the Decision establishing Eurojust in order to enable the agency to develop its potential for cooperation and to establish itself as a vital player in the fight against organised crime and terrorism in Europe.

Granting wider powers to the national members

The statute and competences of each national member are defined by the Member State which appoints them. This situation leads to a lack of consistency between the powers of the different national members and makes it difficult at present to achieve fully effective cooperation. Furthermore, Member States do not confer real authority on them. Therefore, only a few national members may negotiate setting up joint investigation teams and use their law enforcement powers in their home country.

For greater stability and effectiveness, the Member States should take measures to spell out the powers of the national members and the college and define a shared base of minimum powers.

To increase Eurojust’s operational capacity, Member States are called upon to send their information to Eurojust more quickly, and also to reinforce their national offices. They will also make use of the services of national experts.

Possible amendments to increase the powers of the national members

The Commission suggests the Decision by proposing that the national members can:

  • accept and forward requests from national authorities and ensure that they are properly followed up;
  • receive judgments from national authorities in cases of money laundering, organised crime, terrorism and human trafficking;
  • forward this information to the national member of a Member State which is not informed but which is involved;
  • be informed of the setting up of a Joint Investigation Team and suggest investigative measures;
  • request further follow-up measures and additional investigations from the authority concerned;
  • be informed about the organisation of a controlled delivery, an infiltration or an undercover investigation and have responsibility for monitoring it;
  • be appointed for a term of at least three years;
  • have deputies to ensure regular representation.

In the longer term, the Commission will examine how to reinforce the powers of the national members in the initiation of criminal cases prejudicial to the financial interests of the European Union (EU).

Granting wider powers to the college

The College has the same powers as the national members. Although the College rules on conflicts of jurisdiction and on competing arrest warrants, its decisions are not binding on the Member States. Its powers should be widened and its role as mediator in resolving conflicts between Member States strengthened. The latter in fact refer to the College only to obtain information on the steps to be taken where disagreements arise.

The Commission undertakes to consider the conditions on which the College will be able to:

  • settle conflicts between Member States;
  • launch inquiries in a Member State and propose prosecution;
  • play a role in specific investigation measures;
  • initiate criminal inquiries at European level.

Relations between Eurojust, the European Judicial Network and the liaison magistrates

The European Judicial Network (EJN) facilitates judicial cooperation between Member States, in particular through its Internet site on the systems of justice in Europe. However, cooperation between the network and Eurojust must be improved. The Commission hopes that each Eurojust member will become attached to a national correspondent who will be one of the European Judicial Network contact points. This correspondent would be part of the Eurojust member’s team. S/he would be a relay for Eurojust’s communication policy in their Member State and would forward the cases to be examined promptly to the national member.

In the future, Eurojust could themselves designate the liaison magistrates in countries outside the EU so as to facilitate judicial cooperation between the Member States and the countries concerned.

Stepping up cooperation with Europol

The links between Eurojust and Europol have constantly improved. The secure communications network has facilitated the exchange of information between them and access to Europol’s analytical work files. Finally, the expert meetings on Joint Investigation Team have achieved high quality work.

However, cooperation between Eurojust and the Europol national liaison offices is still uneven. The links should be strengthened and exchanges of data with these offices should be improved.

Cooperation with the European Anti-Fraud Office (OLAF), Frontex and non-EU countries

The fields of responsibility of Eurojust and OLAF are complementary. The Commission therefore proposes to establish a regular exchange of information between the two agencies in order to strengthen cooperation. It also emphasises the need to continue to appoint contact points and establish regular meetings between Eurojust and OLAF.

The protection of the EU’s external borders is important in connection with illegal immigration and organised crime. The Commission encourages the signing of a cooperation agreement between Frontex and Eurojust.

Eurojust has signed agreements with third countries aimed at developing an exchange of personal data and information between judicial authorities. These agreements have led to sending of liaison officers to Eurojust. The agency now wishes to develop a veritable network of contact points.

European Judicial Network

European Judicial Network

Outline of the Community (European Union) legislation about European Judicial Network

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 Judicial Network

Document or Iniciative

Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network.

Summary

This decision provides provisions for the continuation of the European Judicial Network, while repealing Joint Action 98/428/JHA that established it.

The network is composed of Member States’ central and other competent authorities for international judicial cooperation. Each Member State establishes one or more judicial contact points, amongst which one is assigned as a national correspondent for the network. Member States are also to assign a tool correspondent. The national liaison magistrates that have similar duties to those of the contact points are also linked to the network. The Commission appoints a contact point for issues that are under its responsibility.

Functions

The principal task of the network is to facilitate judicial cooperation in criminal matters between Member States by improving communication between the contact points, by organising regular meetings for the representatives of Member States and by providing the necessary background information.

The contact points are intermediaries between Member States, aiming to improve judicial cooperation in combating all forms of serious crime. They are to enable direct contacts among local judicial and other competent authorities as well as other contact points throughout the European Union (EU). To this end, contact points must provide each other and the competent authorities with the necessary legal and practical information. In addition, contact points promote and participate in the organisation of training sessions, collaborating with the European Judicial Training Network where appropriate.

The national correspondent has additional responsibilities, namely those relating to the internal functioning of the network, acting as the point of contact for the secretariat of the network and providing an opinion when new contact points are appointed. The tool correspondent is responsible for ensuring that the relevant information regarding its Member State is up to date and available for dissemination in the network.

Network meetings

Plenary meetings of the network are organised on a regular basis and at least three times a year. A minimum of three contact points from each Member State are invited to these meetings to exchange experiences on the operation of the network and to discuss practical and legal problems regarding the implementation of Community measures on judicial cooperation. The results of these meetings will be used as a basis for discussing any possible legislative changes and improvements at Community level. Both the national and tool correspondents are to hold at least one meeting a year on an ad hoc basis.

Dissemination of information

The secretariat of the network must provide the contact points and the competent judicial authorities with up to date information on:

  • the details of the national contact points;
  • an information technology tool through which the competent authority for requesting judicial cooperation may be identified;
  • national judicial and procedural systems;
  • texts of relevant legal instruments, declarations and reservations.

The secretariat must disseminate this information through a website. In addition, it must establish a secure telecommunications connection for data flow and the requests for judicial cooperation.

The network and Eurojust complement each other through a privileged relationship that is based on consultation. The activities of the secretariat of the network are covered by the budget of Eurojust.

Background

The implementation of the principles of mutual legal assistance and mutual recognition of judicial decisions in criminal matters, as well as the 2004 and 2007 enlargements of the Union have had an impact on the nature of judicial cooperation in the EU. Therefore, the role of the European Judicial Network has become more significant and the need to strengthen it more imperative.

References

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

Decision 2008/976/JHA

24.12.2008

OJ L 348 of 24.12.2008

Related Acts

Resolution of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the establishment of a Network for legislative cooperation between the Ministries of Justice of the European Union [Official Journal C 326 of 20.12.2008].