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The framework decision on mutual recognition of custodial sentences Estella Baker email@example.com
Contents Background Framework decision on custodial sentences Contentious issues © Estella Baker
Background Mutual recognition programme, 2001 Punishment package FWD 2005/214/JHA on financial penalties FWD 2006/783/JHA on confiscation orders FWD 2008/909/JHA on custodial sentences FWD 2008/947/JHA on probation & alternative sanctions Council of Europe Convention on the Transfer of Sentenced Persons, 1983 & Additional Protocol of 1997 © Estella Baker
The Framework Decision Scheme © Estella Baker
Who does it cover? Natural persons only! Sentenced to custody/deprivation of liberty Determinate or indeterminate Through criminal proceedings © Estella Baker
The purpose… to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence. Article 3(1) See also Articles 4(2), 4(4) © Estella Baker
How does the scheme work? Sentence imposed in issuing state [IS] Judgment & certificate sent to executing state [ES] Decision regarding recognition & enforcement by ES Sentenced person transferred (if necessary) Sentence enforced according to law of ES © Estella Baker
Criteria for transfer Sentenced person in IS or ES S/he has consented, if required Identification of ES: Member State of nationality where sentenced person lives or to which will be deported post-sentence Or any other consenting MS ES satisfied enforcement would serve purpose of facilitating social rehabilitation © Estella Baker
When is consent not needed? Where proposed transfer is to Member State of nationality where sentenced person lives or to which s/he will be deported post-sentence Or to Member State to which s/he has fled or returned in view of criminal proceedings in IS But has opportunity to state opinion, which must be transmitted to ES, in all cases where present in IS © Estella Baker
When can the ES decline enforcement? Would not serve purpose of facilitating social rehabilitation & successful reintegration (Article 4(4)) The list in Article 9: note paras (d), (h), (j), (k) © Estella Baker
Accountability to the IS The specialty rule (Article 18) Amnesty, pardon, review of judgment (Article 19) Early & conditional release (Article 17) Impossibility, partial enforcement, adaptation, escape (Article 21) © Estella Baker
Implementation & its consequences Implementation deadline: Dec 5 2011 Consequences with respect to existing instruments Transitional arrangements (what happened on Dec 5?!) © Estella Baker
Domestic implementation Repatriation of Prisoners Act 1984 (as amended) CJEU access The Transitional Protocol © Estella Baker
Contentious issues Mutual recognition issues Consent Citizenship & integration Directive 2004/38, Article 28 Case C-145/09 Tsakouridis Case C-348/09 PI (AGs Opinion of 6 March, 2012) See also Case C-66/08 Kozlowski (EAW) Prison conditions & fundamental rights © Estella Baker
Thank you for listening! © Estella Baker
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