Tag Archives: Criminal proceedings

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

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

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

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Justice freedom and security > Judicial cooperation in criminal matters

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

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

Document or Iniciative

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

Summary

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

ALLOCATING CASES TO A SPECIFIC MEMBER STATE

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

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

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

Selecting the Member State best placed to prosecute

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

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

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

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

Judicial review

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

RELAUNCHING THE DEBATE ON THE NE BIS IN IDEM PRINCIPLE

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

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

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

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

Background

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

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

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

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

 

Agreement with Japan on mutual legal assistance

Agreement with Japan on mutual legal assistance

Outline of the Community (European Union) legislation about Agreement with Japan on mutual legal assistance

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External relations > Relations with third countries > Asia

Agreement with Japan on mutual legal assistance

Document or Iniciative

Council Decision 2010/616/EU of 7 October 2010 on the conclusion of the Agreement between the European Union and Japan on mutual legal assistance in criminal matters.

Summary

The European Union (EU) and Japan negotiated an agreement on mutual legal assistance in criminal matters with a view to establishing more effective cooperation in this field. The agreement, which entered into force on 2 January 2011, is the first “self-standing” mutual legal assistance agreement between the EU and a non-EU country. So far, no individual EU country has concluded such an agreement with Japan.

The agreement applies to the requesting and provision of mutual legal assistance in relation to investigations, prosecutions and other proceedings in criminal matters. It does not apply to extradition, transfer of proceedings in criminal matters and enforcement of sentences, apart from confiscation.

The legal assistance consists of:

  • taking testimonies, including by videoconference;
  • searching and seizing items;
  • obtaining information on bank accounts;
  • examining and locating or identifying persons, items or places;
  • providing items held by the authorities;
  • serving documents;
  • transferring persons in custody for the purpose of testimony;
  • freezing or seizing and confiscating proceeds.

Each EU country and Japan must designate a central authority with responsibility for sending, receiving and responding to requests for assistance. These authorities are also responsible for executing the requests or for transmitting the requests to the authorities with jurisdiction to execute them.

Requests for assistance

The country making a request for assistance must do so in writing. In urgent cases, the request may be made by other reliable means of communication. Requests for assistance must contain certain specific information as set out in the agreement. The requested country may ask for additional information if necessary for executing the request for assistance. The request, together with any other documents, must be accompanied by a translation in the official language of the requested country or in another language as agreed by that country.

Execution of requests

The requested country must execute the request for assistance as swiftly as possible and in accordance with its national law. It may postpone the execution of a request, or make execution subject to specific conditions, if it could interfere with an ongoing investigation, prosecution or other proceeding. The requested country must transmit the result of the execution, together with any testimonies or items obtained, to the requesting country. If it cannot execute a request in whole or in part, it must provide the requesting country with the reasons thereof. Under certain conditions, the requested country may refuse to provide assistance, for example if the request concerns an offence that is punishable by death under the law of the requesting country. When refusing assistance, the requested country must provide the reasons thereof.

Testimonies and statements

The requesting country may only use testimonies, statements, items or information in the investigations, prosecutions or other proceedings for which they were requested. The requested country may impose provisions of confidentiality or other conditions to the use of these data. It may also impose conditions to the transport, maintenance and return of items requested.

To take testimonies or statements, the requested country may use coercive measures if necessary and provided that this is justifiable under its national law. In cases where the person concerned is to be heard as a witness in proceedings of the requesting country, the requested country may allow its competent authorities to take the testimony or statement by videoconference.

Persons, items and places

If necessary and justifiable under its national law, the requested country may use coercive measures to obtain items and to examine persons, items or places.

The requested country must provide the requesting country with records, documents or reports related to the bank accounts of the person under investigation, to the extent that the bank in question possesses the information.

The requested country must provide the requesting country with any publicly available items that its legislative, administrative or judicial authorities possess. It should also provide any non-public items, such as criminal records, that these authorities possess, to the extent and under the same conditions as they are available to its investigative and prosecuting authorities.

The requested country must serve documents and summons to persons requested to appear before the competent authorities of the requesting country. If the presence of a person in custody is requested for testimony, the requested country may temporarily transfer that person to the requesting country. However, the person to be transferred must first give his/her consent and the transfer must be permitted under the law of the requested country.

Confiscation of proceeds

The requested country should assist the requesting country in proceedings related to the freezing or seizure and confiscation of proceeds of crime, as far as it is permitted by its national law. The requesting country must provide the decision of a court or other judicial authority that imposes the confiscation together with its request. If the proceeds are in the custody of the requested country, it may transfer them in whole or in part to the requesting country.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2010/616/EU

7.10.2010

OJ L 271 of 15.10.2010

Agreement with the United States on mutual legal assistance

Agreement with the United States on mutual legal assistance

Outline of the Community (European Union) legislation about Agreement with the United States on mutual legal assistance

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Justice freedom and security > Judicial cooperation in criminal matters

Agreement with the United States on mutual legal assistance

Document or Iniciative

Council Decision 2009/820/CFSP of 23 October 2009 on the conclusion on behalf of the European Union of the Agreement on extradition between the European Union and the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America.

Summary

The European Union (EU) and the United States of America (U.S.) concluded an agreement on mutual legal assistance, with a view to improving cooperation between EU countries and the U.S. as well as to combating crime more effectively. The agreement entered into force on 1 February 2010.

EU countries and the U.S. apply the provisions of this agreement to their bilateral mutual legal assistance treaties. In the absence of such a treaty, the EU and the U.S. will ensure that the provisions of the agreement are nevertheless applied.

Mutual legal assistance

On request, the requested country must promptly identify and communicate to the requesting country information on:

  • banks where a natural or legal person, who is suspected of or charged with a criminal offence, has one or more bank accounts;
  • natural or legal persons that have been convicted of or involved in a criminal offence;
  • information that a non-bank financial institution possesses;
  • financial transactions that are not related to bank accounts.

EU countries’ requests for assistance are transmitted by central authorities responsible for mutual legal assistance or by national authorities responsible for investigating or prosecuting criminal offences. The U.S. transmits its requests for assistance via its national authorities responsible for investigating or prosecuting criminal offences.

The requesting country may use an expedited means of communication for the request for assistance and the related communications, followed by a formal confirmation if required by the requested country.

The requesting country may require the requested country to keep a request for assistance and its contents confidential. The central authority of the requested country must inform the requesting country if it cannot execute the request for assistance without breaching confidentiality. The requesting country must then decide whether the request for assistance should be executed or not.

The EU and the U.S. must enable the establishment and operation of joint investigative teams to facilitate criminal investigations or prosecutions between one or more EU countries and the U.S.

The EU and the U.S. must also enable video conferencing between EU countries and the U.S. to take witnesses’ or experts’ testimonies in proceedings.

Assistance to administrative authorities

Mutual legal assistance must also be provided to national and other administrative authorities, but only when the conduct under investigation will lead to a criminal prosecution or to a referral to criminal investigation or prosecution authorities. The authorities responsible for transmitting these requests for assistance are designated in accordance with the bilateral mutual legal assistance treaties between the countries concerned. Where such a treaty does not exist, the requests are transmitted between the U.S. Department of Justice and the EU country’s Ministry of Justice or other equivalent Ministry that is responsible for transmitting requests for mutual legal assistance.

Limitations to the provision of assistance

A country may limit its provision of assistance to offences that are:

  • punishable under the laws of both countries (requesting and requested);
  • punishable by deprivation of liberty or a detention order of a maximum period (minimum four years in the requesting and two years in the requested country);
  • designated as serious and punishable under the laws of both countries.

Where a country limits its provision of assistance to the last two kinds of offences, it must nevertheless provide for the identification of bank accounts related to terrorist activity and the laundering of proceeds from serious criminal activity that are punishable under the laws of both countries.

Limitations to the use of evidence or information

The requesting country may only use the evidence or information transmitted by the requested country for:

  • its criminal investigations and proceedings;
  • protecting its public security against an immediate and serious threat;
  • its non-criminal judicial or administrative proceedings that directly relate to its criminal investigations or proceedings;
  • other purposes, provided that the information or evidence has been made public or the requested country has given its prior consent.

The requested country may impose additional conditions limiting the use of the evidence or information in a particular case if, due to the absence of such conditions, it was not able to comply with the particular request for assistance. In such a case, the requested country may require the requesting country to provide information on the use it makes of the evidence or information.

References

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

Decision 2009/820/CFSP

23.10.2009

OJ L 291, 7.11.2009

Agreement with the United States on extradition

Agreement with the United States on extradition

Outline of the Community (European Union) legislation about Agreement with the United States on extradition

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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

Agreement with the United States on extradition

Document or Iniciative

Council Decision 2009/820/CFSP of 23 October 2009 on the conclusion on behalf of the European Union of the Agreement on extradition between the European Union and the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America.

Summary

The European Union (EU) and the United States of America (U.S) signed an agreement on extradition, which entered into force on 1 February 2010. The agreement supplements the bilateral extradition treaties between EU countries and the U.S. and enhances cooperation in the context of applicable extradition relations.

Extraditable offences

Extraditable offences consist of:

  • offences that are punishable by deprivation of liberty for a maximum period (more than one year) or by a more severe penalty under the laws of both the requesting and requested country;
  • an attempt to commit or participation in the commission of such an offence.

If the requested country grants extradition for an extraditable offence, it must also grant extradition for any other offence included in the request, provided that the other offence is punishable by deprivation of liberty for up to one year and that all the other requirements for extradition are fulfilled.

Extradition requests

The requesting country transmits its requests for extradition and any supporting documents via the diplomatic channel. These documents need not be authenticated further if they bear the certificate or seal of the requesting country’s Ministry of Justice or Ministry or Department responsible for foreign affairs.

The requesting country may transmit requests for provisional arrest via the Ministries of Justice, instead of using the diplomatic channel. These requests may also be transmitted via the International Criminal Police Organisation (Interpol). When the requesting country is seeking for the extradition of a person who already is under provisional arrest in the requested country, it may submit its request directly to the requested country’s embassy located on its territory.

In case the requested country deems the information provided in the request for extradition insufficient for carrying it out, it may require the requesting country to submit additional information. Requests for and transmissions of additional information may be done directly between the Ministries of Justice.

Extradition procedures

The requested country may temporarily surrender a person who is being proceeded against or who is serving a sentence to the requesting country for prosecution.

When several countries request the extradition of the same person for the same or different offences, the requested country’s executive authority decides to which country that person will be surrendered. Similarly, if the U.S. submits an extradition request for a person whose surrender has also been requested pursuant to the European arrest warrant for the same or different offences, the requested EU country’s competent authority decides to which country the person will be surrendered.

The requested country may use simplified extradition procedures, that is surrender a person without delay and further proceedings, when the person concerned consents to being surrendered.

EU countries and the U.S. may allow for the transit through their territories of a person surrendered to or by one or the other and a third country. Requests for transit may be made via the diplomatic channel, directly between the U.S. Department of Justice and the EU country’s Ministry of Justice or via Interpol. No authorisation is needed for air transportation, provided that no landing is scheduled onto the territory of the transit country. In the case of an unscheduled landing, the country in question may require a request for transit.

The requested country may grant extradition for an offence that is punishable by death under the laws of the requesting country but not under its own laws on condition that:

  • the death penalty will not be imposed;
  • if the death penalty is imposed, it will not be carried out.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2009/820/CFSP

23.10.2009

OJ L 291 of 7.11.2009

Related Acts

Council Decision 2009/933/CFSP of 30 November 2009 on the extension, on behalf of the European Union, of the territorial scope of the Agreement on extradition between the European Union and the United States of America [Official Journal L 325 of 11.12.2009].
This decision extends the territorial scope of the agreement on extradition between the EU and the U.S. to the Netherlands Antilles and Aruba.

Green Paper on criminal proceedings

Green Paper on criminal proceedings

Outline of the Community (European Union) legislation about Green Paper on criminal proceedings

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Human rights > Fundamental rights within the European Union

Green Paper on criminal proceedings

To facilitate the application of the principle of mutual recognition, the European Commission is presenting this Green Paper on common minimum standards for procedural safeguards for persons suspected or accused of, and prosecuted or sentenced for, criminal offences. There are five fundamental rights: the right to legal assistance and representation; the right to an interpreter or translator; the right of vulnerable groups to proper protection; the right of nationals of other Member States and of third countries to consular assistance; and the right to a “Letter of Rights”.

Document or Iniciative

Commission Green Paper Procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union.

Summary

With a view to facilitating application of the principle of mutual recognition, this Commission Green Paper examines whether it is appropriate and necessary to introduce in the Member States of the EU common minimum standards for procedural safeguards for persons suspected or accused of, and prosecuted or sentenced for, criminal offences. It defines these minimum standards and the areas in which they will be applicable.

The Green Paper, which is divided into nine chapters, contains 35 specific questions submitted for consultation to all the sectors concerned (government departments, professional bodies and institutions, non-governmental organisations (NGOs), legal practitioners and private individuals).

The first three chapters, which make up a third of the Green Paper, explain why the Commission is taking action at the European level to safeguard the rights of persons suspected or accused of, and prosecuted or sentenced for, criminal offences, with particular attention being paid to suspects and defendants in criminal proceedings in Member States of which they are not nationals. These three chapters are devoted to (a) the reasons for action by the Union in this area; (b) identifying fundamental rights (called “basic rights” in this document); and (c) obligations under international conventions and existing provisions.

Fundamental rights stemming from the right to a fair trial

The Commission draws up a list of basic provisions compliance with which calls for EU action: Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which lays down the “right to a fair trial”; Article 47 of the Charter of Fundamental Rights, which refers to the “right to an effective remedy and to a fair trial”; and various other international treaty provisions.

Regarding the identification of fundamental rights, which dovetail with the concept of “right to a fair trial”, the Commission comes to the conclusion that, although they are all important, priority should be given at this stage to those rights which are considered essential, namely:

  • the right to legal advice and assistance (representation) provided by a lawyer;
  • the right to an interpreter and to translation of essential documents;
  • the right for persons accused of an offence to obtain written information about their fundamental rights in a language they understand, which may take the form of a “Letter of Rights”;
  • the right of vulnerable persons to proper protection;
  • the right to consular assistance.

Each of these rights is the subject of a chapter in the Green Paper.

Right to legal assistance and representation

The Commission is considering the possibility of going beyond the right to assistance by a lawyer by requiring Member States to establish a national scheme of legal representation by a lawyer. More than that, it is even considering the possibility of requiring Member States to verify the level of competence of lawyers assigned by courts and to guarantee them an adequate remuneration.

Right to an interpreter and/or translator

The Green Paper envisages the possibility of creating a formal mechanism whereby those responsible for the judicial investigation must ascertain whether the suspect/defendant understands the language of the proceedings sufficiently to defend himself. A further possibility put up for consideration is the setting up of national registers of legal translators and interpreters and of national schemes for training such professionals, coupled with an obligation on Member States to verify that they are adequately remunerated.

Protection of vulnerable groups

The Commission analyses a list of groups of potentially vulnerable suspects to whom Member States should provide a proper degree of protection which matches their level of vulnerability. The groups singled out by the Commission for special mention include foreign nationals, children, the physically or mentally ill, those with dependants, persons who cannot read or write, refugees, alcoholics and drug addicts.

The Green Paper also raises the possibility of requiring police officers, lawyers and prison officers to make an assessment of a suspect/defendant’s potential vulnerability at certain stages in criminal proceedings, and proposes steps that might be taken to follow up the assessment.

Consular assistance

The provisions governing this matter are those set out in Article 36 of the 1963 Vienna Convention on Consular Relations. With a view to improving on them, the Commission suggests that Member States might be required to ensure that there is an official with responsibility for looking after the rights of suspects and defendants in criminal proceedings in the host State, including acting as a liaison person with their families and lawyers.

Letter of rights

After setting out the rights that a defendant must be granted, the Green Paper refers to the need to draw up a “Letter of Rights”, common to all Member States, putting down in writing the basic rights of any suspect or defendant, who would be given it at the latest at the time of his or her arrest.

Compliance with and monitoring of the common standards

Lastly, the Green Paper points to the need to set up a system making it possible to evaluate the level of compliance by all Member States with these minimum standards, to create tools for evaluation, and to provide for sanctions in the event of failure by a Member State to comply with the standards.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Commission Green Paper COM(2003) 75 final

Related Acts

Proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union [COM(2004) 328 final – Not published in the Official Journal].

Following publication of the Green Paper, the Commission received 78 written replies supporting the idea of setting common minimum standards for procedural safeguards. A hearing was held in June 2003. On 28 April 2004, the Commission presented a proposal for a framework decision. This proposal is concerned with access by suspects and defendants to legal advice; access by foreign defendants to the services of an interpreter or translator; the protection of persons incapable of understanding or following the proceedings; the right of detainees to communicate, inter alia with consular authorities in the case of foreign suspects; the “Letter of Rights”; and evaluation and monitoring.
Consultation procedure (CNS 2004/0113)

Proposal for a Council framework decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters [COM(2003) 688 final – Not published in the Official Journal].
Consultation procedure(CNS 2003/0270)

Terrorist offences

Terrorist offences

Outline of the Community (European Union) legislation about Terrorist offences

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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 terrorism

Terrorist offences

Document or Iniciative

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [See amending act(s)].

Summary

The framework decision harmonises the definition of terrorist offences in all EU countries by introducing a specific and common definition. Its concept of terrorism is a combination of two elements:

  • an objective element, as it refers to a list of instances of serious criminal conduct (murder, bodily injuries, hostage taking, extortion, fabrication of weapons, committing attacks, threatening to commit any of the above, etc.);
  • a subjective element, as these acts are deemed to be terrorist offences when committed with the aim of seriously intimidating a population, unduly compelling a government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

The framework decision defines a terrorist group as a structured organisation consisting of more than two persons, established over a period of time and acting in concert, and refers to directing a terrorist group and participating in its activities as offences relating to a terrorist group.

Furthermore, EU countries must ensure that certain intentional acts are punishable as offences linked to terrorist activities even if no terrorist offence is committed. These include:

  • public provocation to commit a terrorist offence;
  • recruitment and training for terrorism;
  • aggravated theft, extortion and falsification of administrative documents with the aim of committing a terrorist offence.

To punish terrorist offences, EU countries must make provision in their national legislation for effective, proportionate and dissuasive criminal penalties, which may entail extradition. In addition, EU countries must ensure that penalties are imposed on legal persons where it is shown that the natural person has the power to represent the legal person or authority to exercise control within the legal person that has committed a terrorist offence.

EU countries must take the necessary action to:

  • establish their jurisdiction with regard to terrorist offences;
  • establish their jurisdiction where they refuse to hand over or extradite a person suspected or convicted of such an offence to another EU country or to a non-EU country;
  • coordinate their activities and determine which of them is to prosecute the offenders with the aim of centralising proceedings in a single EU country, when several EU countries are involved.

They will also ensure appropriate assistance for victims and their families (in addition to the measures already provided for in Framework Decision 2001/220/JHA).

Background

The terrorist attacks of September 2001 have led the EU to step up action in this field. This framework decision is thus designed to make the fight against terrorism at EU level more effective. This problem was already discussed at the European Council meetings in Tampere in October 1999 and in Santa Maria da Feira in June 2000.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2002/475/JHA

22.6.2002

31.12.2002

OJ L 164 of 22.6.2006

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2008/919/JHA

9.12.2008

9.12.2010

OJ L 330 of 9.12.2008

Related Acts

Report from the Commission of 6 November 2007 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2007) 681 final – Official Journal C 9 of 15.1.2008].
This second report notes that most EU countries evaluated for the first time have satisfactorily achieved implementation of the main provisions contained in the framework decision. Nevertheless, some major issues stand out. Concerning the EU countries evaluated for the second time, the additional information they have sent has allowed the Commission to generally conclude that there is a higher level of compliance. However, most of the main deficiencies identified in the first evaluation report remain unchanged.
The main concerns of the Commission are the deficient implementation, by some EU countries, of the provisions that establish a common definition of terrorism and the harmonisation of penalties for offences related to a terrorist group and of criminal liability of legal persons for terrorist offences.

Report from the Commission of 8 June 2004 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2004) 409 final – Official Journal C 321 of 28.12.2004].
This report reviews the measures taken by EU countries to comply with the framework decision on combating terrorism. According to it, most EU countries have taken the necessary measures to comply with the main provisions of this legal instrument. However, certain deficiencies were pointed out.

Criminal acts and the applicable penalties

Criminal acts and the applicable penalties

Outline of the Community (European Union) legislation about Criminal acts and the applicable penalties

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

Justice freedom and security > Combating drugs

Criminal acts and the applicable penalties

Document or Iniciative

Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.

Summary

This framework decision lays down minimum provisions on criminal acts and the penalties applicable to drug trafficking.

Offences

The framework decision requires each European Union (EU) country to take the necessary measures to sanction all intentional behaviour relating to the trafficking in drugs and precursors.

“Drugs” are defined as any substances covered by the 1961 United Nations (UN) Convention on Narcotic Drugs or the 1971 UN Convention on Psychotropic Substances or as any substances subject to controls under Joint Action 97/396/JHA. Precursors are substances used to produce legal products such as medicines, but that can also be used to produce illicit drugs. They are classified in EU law on the basis of Article 12 of the 1988 UN Convention.

Acts linked to drug trafficking include production, manufacture, extraction, sale, transport, importation and exportation. Possession and purchase with a view to engaging in activities linked with drug trafficking are also taken into account, as are the manufacture, transport and distribution of precursors. Incitement to drug trafficking, aiding and abetting such activity, and attempting to traffic in drugs are regarded as offences.

However, this framework decision does not cover activities relating to the trafficking in drugs for personal consumption.

Liability of legal persons

The framework decision requires EU countries to take measures to ensure that legal persons can be held to account for offences linked with trafficking in drugs and precursors, as well as for aiding and abetting, inciting or attempting such activity. The concept of legal persons as used here does not include states and public bodies in the exercise of their powers or public international organisations.

An organisation is liable if the offence is committed by an individual who has a leading position within that organisation. It is also held responsible for shortcomings in supervision or control. However, the liability of legal persons does not exclude criminal proceedings against natural persons.

Sanctions

The framework decision requires EU countries to take the necessary measures to ensure that offences are subject to effective, proportionate and dissuasive penalties.

If an offence is committed in whole or in part within an EU country’s territory, that country must take measures, provided that the offender is one of its nationals or that the offence was committed for the benefit of a legal person established within its territory.

The maximum penalties for minor offences must be at least between one and three years’ imprisonment. EU countries must also take the necessary measures to confiscate substances used to commit offences.

Maximum penalties must be at least between five and ten years of deprivation of liberty in cases where the offence:

  • involves large quantities of drugs;
  • involves those drugs that are most harmful to health;
  • is committed within the framework of a criminal organisation.

However, penalties may be reduced if the offender renounces his illegal activities and provides information to the administrative or legal authorities that will help identify other offenders.

Sanctions for legal persons must include fines for criminal or non-criminal offences. Other sanctions may also be imposed, including placing the establishment under judicial supervision or closing it temporarily or permanently.

Background

This framework decision follows up the conclusions of the 1999 Tampere European Council, which called on EU countries to adopt additional legal provisions to combat trafficking in narcotic drugs and psychotropic substances. The EU action plan to combat drugs (2000-04) also called for measures to introduce minimum provisions on the constituent elements of criminal acts and penalties on drug trafficking.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2004/757/JHA

12.11.2004

12.5.2006

OJ L 335 of 11.11.2004

Related Acts

Report from the Commission of 10 December 2009 on the implementation of Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking [COM(2009) 669 final – Not published in the Official Journal].
In line with the requirements of Framework Decision 2004/757/JHA, this report evaluates its application by EU countries. However, six EU countries had failed to report on their transposition measures by the deadline.
Compliance with the provisions of the framework decision is problematic, in particular as regards:

  • crimes linked to trafficking in drugs;
  • passive liability of and sanctions for legal persons;
  • jurisdiction in cases where the offence is committed outside an EU country for the benefit of a legal person established in the territory of that country.

While national legislations can be considered to be in line with the requirements of the framework decision regarding penalties, these differ greatly from one EU country to another and are, in general, much higher than those established by the framework decision.
On the whole, the framework decision has resulted in little changes to the national legislations of EU countries. Consequently, the Commission is calling on those EU countries that provided no information or incomplete information to report back on their transposition measures.