Tag Archives: European arrest warrant

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

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

Right of access to a lawyer

Outline of the Community (European Union) legislation about Right of access to a lawyer

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

Right of access to a lawyer (Proposal)

Proposal

Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest [COM(2011) 326 final – Not published in the Official Journal].

Summary

The rights of the defence and the right to a fair trial, which include the right of access to a lawyer, are enshrined in the Charter of Fundamental Rights of the European Union (EU) and the European Convention on Human Rights.

With a view to safeguarding this right for all suspected or accused persons in criminal cases within the territory of the EU, the Commission presents a Proposal providing for minimum standards common to all Member States.

Principle

In criminal proceedings, the right of access to a lawyer should be guaranteed to the following persons:

suspects;
accused persons;
persons subject to a European Arrest Warrant.

If they are arrested during the proceedings, these persons should also have the right to communicate with at least one person of their choice, such as a relative or an employer. Foreign nationals should be able to contact their embassy or consulate.

The rights shall apply as soon as a person is made aware that he is suspected or accused of having committed a criminal offence, until the end of the proceedings. Persons subject to a European Arrest Warrant should be granted these rights from the moment of their arrest.

Implementation

All suspected and accused persons in criminal proceedings should have access to a lawyer as soon as possible and in any event in the following situations:

upon questioning;
when there is a procedural or evidence-gathering act requiring or permitting the presence of the person;
upon arrest.

A person subject to a European Arrest Warrant should be assisted by a lawyer in the Member State in which he was arrested but also in the Member State issuing the warrant. The lawyer in the issuing Member State will not address the merit of the case but will work with the other lawyer to enable the requested person to exercise his rights.

A suspected or accused person shall have the right to meet with his lawyer. The duration and frequency of these meetings should be sufficient to allow the effective exercise of the rights of the defence.

The lawyer should be entitled to attend any questioning or hearing, and any investigative or evidence-gathering act for which the national law requires or permits the presence of a suspect or accused person. He should also have access to the place of detention to check the conditions of imprisonment.

All communications, in whatever form they take, between a lawyer and his client shall be confidential.

In the event of breaches of the right of access to a lawyer, the suspected or accused person should have a remedy with the effect of placing him in the same position in which he would have found himself had the breach not occurred. Statements or evidence obtained in breach of the right of access to a lawyer may not be used against him.

Exceptions

In exceptional circumstances, and by authorisation of a judicial authority, the right of access to a lawyer and to communicate with a third person or with the embassy or consulate may be suspended. The derogation should be justified by the need to avert serious adverse consequences for the life or physical integrity of a person. In any event, the derogation should not be based exclusively on the type or seriousness of the offence of which the person is accused. It should be proportional to the situation, limited in time as much as possible and not prejudice the fairness of the proceedings.

A suspected or accused person may also waive the assistance of a lawyer. This waiver should be voluntary and unequivocal. The person should have been made aware of the consequences of this decision and be able to understand them.

Context

Strengthening the procedural rights of suspected or accused persons in criminal proceedings is an objective of the Stockholm Programme. This Proposal is part of a set of measures comprising a Directive on the right to interpretation and translation and another, currently under negotiation, on the right to information.

The Proposal will enter into force only after review and adoption by the European Parliament and the Council. Consequently, the final text of the Directive might differ from that of the Commission Proposal.

References

Proposal	Official Journal	Procedure
COM(2011) 326	–	2011/154/COD

RELATED ACTS

Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [OJ C 295 of 4.12.2009].