Tag Archives: Criminal procedure

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

Mutual recognition of custodial sentences and measures involving deprivation of liberty

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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

Jurisdiction in criminal proceedings: prevention and settlement of conflicts

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Jurisdiction in criminal proceedings: prevention and settlement of conflicts

Outline of the Community (European Union) legislation about Jurisdiction in criminal proceedings: prevention and settlement of conflicts

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

Jurisdiction in criminal proceedings: prevention and settlement of conflicts

Document or Iniciative

Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings.

Summary

This framework decision aims to enhance judicial cooperation between European Union (EU) countries, in order to prevent unnecessary parallel criminal proceedings concerning the same facts and the same person.

The framework decision lays out the procedure whereby competent national authorities shall contact each other when they have reasonable grounds to believe that parallel proceedings are being conducted in another EU country. It also establishes the framework for these authorities to enter into direct consultations when parallel proceedings exist, in order to find a solution aimed at avoiding the negative consequences arising from these proceedings.

Exchange of information

If the competent authority of an EU country has reasonable grounds to believe that parallel proceedings are being conducted in another EU country, it must seek confirmation on the existence of such parallel proceedings from the competent authority of that country. The contacted authority must reply without undue delay or within the deadline set by the contacting authority.

With its request, the contacting authority must submit at least the following information:

contact details of the competent authority;
a description of the facts and circumstances concerning the criminal proceedings;
all relevant details about the suspected or accused person and possible victims;
the stage of the criminal proceedings;
where applicable, information concerning provisional detention or custody of the suspected or accused person.

In its response, the contacted authority must indicate whether criminal proceedings are or have been conducted in its country concerning some or all of the same facts and the same persons as those in the criminal proceedings in the country of the contacting authority. If this is the case, the contacted authority must also provide its contact details as well as the stage of the proceedings or the nature of the final decision.

Direct consultations

If parallel proceedings exist, the relevant authorities shall enter into direct consultations in order to find a solution aimed at avoiding the negative consequences arising from these proceedings. This may lead to the concentration of the proceedings in one EU country.

When the relevant authorities enter into direct consultations they must take into consideration all the facts and merits of the case and all other relevant factors. If no solution is found, the case shall be referred to Eurojust if appropriate and provided that it falls under its competence.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2009/948/JHA	15.12.2009	15.6.2012	OJ L 328 of 15.12.2009

Standing of victims in criminal proceedings

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Standing of victims in criminal proceedings

Outline of the Community (European Union) legislation about Standing of victims in criminal proceedings

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

Standing of victims in criminal proceedings

Document or Iniciative

Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings.

Summary

The framework decision provides for the assistance of crime victims before, during and after criminal proceedings. Member States must guarantee that the dignity of victims is respected and that their rights are recognised throughout the proceedings. Especially vulnerable victims must be treated in a manner that is most appropriate to their circumstances.

Crime victims are to have the possibility of being heard during proceedings as well as of supplying evidence. However, authorities should be able to question victims only to the extent that is necessary for the criminal proceedings.

At the outset of their contact with law enforcement agencies, victims must be given access to any information relevant to the protection of their interests. This information must comprise at least the following:

types of support and services or organisations available for victims;
places and formalities for reporting an offence as well as the ensuing procedures;
conditions for obtaining protection;
conditions for access to legal or other advice and aid;
requirements for receiving compensation;
arrangements available for non-residents.

At the request of the victim, a Member State must provide information on the outcome of the complaint, the ongoing proceedings (excluding exceptional cases) and the sentence. The victim should also be notified of the release of the prosecuted or sentenced person if s/he presents a danger to the victim.

Member States should take steps similar to those taken for defendants to ensure that communication difficulties regarding understanding of and involvement in criminal proceedings are minimal for victims that have the status of witnesses or parties to the proceedings. Member States should also reimburse their expenses resulting from the participation in the proceedings.

If a serious risk of reprisal exists or if there is concrete evidence of a serious intent to intrude on the privacy of a victim or his/her family, the Member State concerned must provide for an adequate level of protection. This includes ensuring that;

measures may be adopted as part of the court proceedings to protect the privacy and photographic image of the victim and his/her family;
the victim is protected against contact with the offender on the premises of the court, provided that contact is not necessary for the proceedings;
a court decision may permit the victim needing protection to testify outside of open court.

Member States must ensure that decisions on the compensation of crime victims in criminal proceedings are taken within reasonable deadlines, and that measures are provided for encouraging offenders to compensate. Any recoverable property seized must be returned to the victims without undue delay, provided that they are not needed for the proceedings.

Member States should encourage the use of mediation between victims and offenders in cases where mediation is appropriate, and ensure that agreements concluded as a result are taken into consideration in criminal proceedings.

Difficulties arising from cases where a person is the victim of an offence in a Member State other than that where s/he is a resident must be minimised. To that end, Member States must ensure that the competent authorities may take the necessary measures, such as decide on the place for the victim to make a statement as well as make use of video conferencing and telephone conference calls to hear victims residing abroad (as provided by the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union). The victim should also be allowed to make a complaint in his/her Member State of residence instead of where the offence was committed.

In order to improve the protection of the interests of victims in criminal proceedings, cooperation between Member States should be developed further. In addition, Member States should foster the involvement of victim support systems and their provision of support and assistance for victims both during and after the proceedings. They should also foster the training of personnel who are involved in criminal proceedings or who are otherwise in contact with victims, namely of police officers and legal practitioners. Furthermore, Member States should take steps to prevent the secondary victimisation and pressuring of victims in criminal proceedings, with particular attention given to the facilities in venues where the proceedings may be initiated.

Background

On 14 July 1999, the Commission adopted a communication on the rights of crime victims. Subsequently, the conclusions of the European Council meeting in Tampere on 15 and 16 October 1999 requested that minimum standards be established to protect crime victims, especially concerning access to justice and compensation of damages.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2001/220/JHA	22.3.2001	22.3.2002 (22.3.2004 for Articles 5 and 6; 22.3.2006 for Article 10)	OJ L 82 of 22.3.2001

Related Acts

Report from the Commission of 20 April 2009 pursuant to Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings [COM(2009) 166 final – Not published in the Official Journal].
This report presents the implementation of the framework decision by 24 (out of 27) Member States as of 15 February 2008. The Commission notes that this implementation is unsatisfactory. None transposed the framework decision in a single piece of national legislation; instead, they referred back to existing or newly adopted national provisions. Furthermore, Member States implemented certain provisions through non-binding guidelines, charters and recommendations without any legal basis. Only a few Member States adopted new legislation to cover one or more of the articles.
Consequently, the Commission encourages Member States to provide further information concerning implementation, as well as to enact and submit the relevant national legislations under preparation.

Report from the Commission of 3 March 2004 on the basis of Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings [COM(2004) 54 final – Not published in the Official Journal].

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.

The right to interpretation and translation in criminal proceedings

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The right to interpretation and translation in criminal proceedings

Outline of the Community (European Union) legislation about The right to interpretation and translation in criminal proceedings

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

The right to interpretation and translation in criminal proceedings

Document or Iniciative

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings.

Summary

The directive establishes common minimum rules for European Union (EU) countries on the right to interpretation and translation in criminal proceedings as well as in proceedings for the execution of the European arrest warrant. It contributes to the proper functioning of judicial cooperation within the EU by facilitating the mutual recognition of judicial decisions in criminal matters. The directive also aims to improve the protection of individual rights by developing the minimum standards for the right to a fair trial and the right of defence guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the EU.

Right to interpretation and translation

The right to interpretation and translation must be provided to persons who do not speak or understand the language of the procedure. This right must be provided from the time these persons are made aware of being suspected or accused of a criminal offence until the end of the criminal proceedings, including sentencing and ruling on appeal. In the case of minor offences, if sanctions are imposed by an authority other than a court having jurisdiction in criminal matters (e.g. the police following a traffic control), the right to interpretation and translation will only apply to the proceedings following an appeal before such a court.

EU countries must also make interpretation available for the persons concerned to communicate with their legal counsel on matters relating directly to any questioning or hearing during the proceedings or to the lodging of an appeal. They must have in place a mechanism for determining whether interpretation is necessary or not.

EU countries must also provide, within a reasonable time period, the suspected or accused persons with a written translation of essential documents, namely of any:

decision depriving them of liberty;
charge or indictment;
judgement.

On a case by case basis, the competent authorities may decide to translate any other documents. The suspected or accused persons or their legal counsel may also request the translation of other essential documents. In exceptional cases, an oral translation or an oral summary of the essential documents may be provided instead of a written translation, if this does not compromise the fairness of the proceedings.

Similarly, in proceedings for the execution of a European arrest warrant, the competent authorities must provide the persons concerned with interpretation and with a written translation of the warrant, if necessary.

The suspected or accused persons must have the right to challenge a decision whereby interpretation or translation is refused. They must also have the right to complain about the quality of the provided interpretation or translation, if it is not sufficient to guarantee the fairness of the proceedings.

Quality of interpretation and translation

EU countries must ensure that the quality of translation and interpretation is sufficient to allow the persons concerned to understand the case against them and to exercise the right of defence. To this end, EU countries should take concrete measures and, in particular, set up a register or registers of independent and appropriately qualified interpreters and translators.

Costs and recording

Regardless of the outcome of the criminal proceedings, EU countries must bear the costs of the interpretation and translation provided to the suspected or accused persons.

EU countries must use the recording procedure in accordance with their national law to note when the person concerned has:

been questioned or heard with an interpreter;
been provided with an oral translation or oral summary of essential documents;
waived the right to translation of documents.

Background

On 30 November 2009, the Council adopted a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, which called for the adoption of measures also on the right to translation and interpretation. This roadmap was included into the Stockholm programme adopted on 10 December 2009. At the same time, the Commission was invited to assess further aspects of minimum procedural rights for suspected or accused persons to improve cooperation between EU countries in this field.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 2010/64/EU	15.11.2010	27.10.2013	OJ L 280 of 26.10.2010

Taking account of convictions in Member States in the course of new criminal proceedings

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Taking account of convictions in Member States in the course of new criminal proceedings

Outline of the Community (European Union) legislation about Taking account of convictions in Member States in the course of new criminal proceedings

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

Taking account of convictions in Member States in the course of new criminal proceedings

Document or Iniciative

Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings.

Summary

This Framework Decision establishes the criteria whereby previous convictions * delivered by any Member State are taken into account during criminal proceedings in another Member State against the same person, but for different facts.

The information regarding previous convictions can be obtained under applicable instruments on mutual assistance in criminal matters between Member States or on the exchange of information extracted from the criminal record. In the context of new criminal proceedings, Member States must ensure that previous convictions handed down in another Member State are duly taken into consideration under the same conditions as the previous national convictions.

The previous convictions are to be taken into account at the pre-trial and trial stage, as well as when the conviction is executed. They should be given due consideration especially in relation to the applicable rules of procedure concerning:

provisional detention;
definition of the offence;
type and level of the sentence;
execution of the decision.

When previous convictions are taken into consideration by the Member State conducting the new proceedings, this shall not have the effect of interfering with, revoking or reviewing the previous convictions.

In instances where the previous conviction was not handed down or fully executed by another Member State prior to the commission of the offence for which the new proceedings are conducted, it is not required to comply with national rules on imposing sentences, if the application of the national rules to previous foreign convictions limits the judge in imposing a sentence. Nevertheless, the previous convictions must be taken into consideration by other means.

This Framework Decision replaces Article 56 of the European Convention of 28 May 1970 on the International Validity of Criminal Judgements as between the Member States. The Article provides for the possibility to take into consideration criminal judgements handed down in other states that are parties to the Convention.

Background

The programme of measures to implement the principle of mutual recognition of decisions in criminal matters was adopted by the Council on 29 November 2000. This programme also provides for the establishment of the principle by which a Member State must take into account previous criminal judgements rendered by the courts in other Member States, in order to assess the offender’s criminal record, establish whether s/he has reoffended and decide on the type of sentence and its execution.

Key terms used in the act
Conviction: any final decision of a criminal court establishing guilt of a criminal offence.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Council Framework Decision 2008/675/JHA	24.7.2008	15.8.2010	OJ L 220 of 15.8.2008