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Slide 1/31 © copyright Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last updated: 31.11.2012 The European Judicial Training Network With the support of the European Union
Slide 2/31 © copyright logo of the training organiser Training organised by (name of training organiser) on (date) at (place) Title (of the training) The European Judicial Training Network With the support of the European Union
Slide 3/31 © copyright Module 10 Post-sentencing cooperation Version: 3.0 Last updated: 31.10.2012
Slide 4/31 © copyright Contents 1.Enforcement of convictions Financial penalties Confiscation orders Custodial sentences Suspended sentences or alternative sanctions Disqualifications 2.‘Positive’ taking into account of convictions between Member States of the European Union
Slide 5/31 © copyright The enforcement of judgments Sources: The Council of Europe Conventions Conventions between MS Conventions of 1987 and 1991 in the framework of European Political Cooperation (EPC) CISA Convention on Deprivation of the Right to Drive Framework Decisions on the application of the principle of mutual recognition
Slide 6/31 © copyright Financial penalties The low impact of the Council of Europe Conventions Low rate of ratification Multiple grounds for refusal FD 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties Main source for the Member States of the European Union
Slide 7/31 © copyright Financial penalties System under FD 2005/214/JHA of 24 February 2005 Scope: final decisions requiring a financial penalty to be paid by a natural or legal person: no later than 5 years after entry into force Decisions made by a court, or by another authority: conditions and reservations Concept of financial penalty Competent authorities and transmission Direct transmission between designated authorities Executing authority not necessarily judicial Decision + certificate Language requirements Removal of jurisdiction and limitations
Slide 8/31 © copyright Financial penalties Recognition and enforcement Expanded list of categories of offences for which there is no longer verification of double criminality Declarations Amount to pay Determination Allocation Debiting of amounts paid Governing law = that of the executing EM Special cases: amnesty, pardons, review Limitations on alternative measures Exchange of information
Slide 9/31 © copyright Financial penalties Grounds for refusal: Articles 7 and 20 All optional Correspond to provisions of the FD on the EAW: Ne bis in idem Absence of double criminality Statute of limitations Territoriality clause Immunity Below the age of criminal responsibility
Slide 10/31 © copyright Financial penalties Grounds for refusal Specific: Defective certificate Decisions in absentia Remember: condition in the FD on the EAW FD 2009/299/JHA of 26 February 2009 Fine less than €70 Violation of fundamental rights Declarations Obligation of prior consultation in some cases
Slide 11/31 © copyright Confiscation orders Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime Transmission via central authorities Direct execution or autonomous decision No removal of jurisdiction No review of the facts Procedure according to the law of the requested Party
Slide 12/31 © copyright Confiscation orders ‘Conventional’ grounds for refusal Contradiction with the fundamental principles Prejudice to sovereignty, law and order, essential interests, Absence of double criminality Measure not provided for concerning this type of offence Disproportionate
Slide 13/31 © copyright Procedures under FD 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders. Scope: a final penalty or measure imposed by a court following proceedings in relation to a criminal offence, resulting in the definitive deprivation of property Natural or legal person Proceeds or instrumentalities of an offence Extended powers of confiscation: Options under FD 2005/214/JHA of 24 February 2005 Beyond it: Declarations CARIN network (Decision 2007/845/JHA of 6 December 2007) > Confiscation orders
Slide 14/31 © copyright Confiscation orders Competent authorities and transmission Direct transmission between designated authorities Identification of the executing MS Sum of money Specified property Habitual residence or registered office Executing authority not necessarily judicial Decision + certificate Language requirements Removal of jurisdiction and limitations
Slide 15/31 © copyright Confiscation orders Recognition and enforcement List of categories of offences for which there is no longer verification of double criminality That of the FD on the EAW). Governing law = that of the executing EM, but: Conversion must be provided for by 2 laws Alternative measures with consent of the issuing MS Amnesty and pardon Legal remedies Disposal of confiscated property Supplementary rule on the distribution of confiscated money Cultural property Restitution to rightful owners: not laid down.
Slide 16/31 © copyright Confiscation orders Grounds for refusal: Articles 7 and 20 All optional Corresponding to provisions of the FD on financial penalties: Absence of double criminality Statute of limitations Immunity Decisions in absentia Defective certificate
Slide 17/31 © copyright Confiscation orders Grounds for refusal Specific Territoriality clause: only concerns the predicate offence in the case of confiscation following a conviction for money laundering Ne bis in idem: conditions for enforcement disappeared Rights of bona fide third parties render enforcement impossible Decision delivered based on extended powers not provided for by FD 2005/212/JHA ‘Conversion’ if decision delivered based on extended powers not provided for by FD 2005/212/JHA, but which are not available to the executing MS Age of criminal responsibility: not a ground for refusal Violation of fundamental rights: not expressly provided for Consultation obligations
Slide 18/31 © copyright Custodial sentences Council of Europe Convention of 28 May 1970 Council of Europe Convention of 21 March 1983 on the Transfer of Sentenced Persons At the initiative of either State, but optional Transmission via central authorities Conditions: The judgment must be final At least 6 months remaining to serve Double criminality Executing State is that of nationality Broadening: agreement between the EU MS of 25 May 1987 Broadening: Convention between the EU MS of 13 November 1991
Slide 19/31 © copyright Custodial sentences Consent of the sentenced person Derogation: additional protocol of 18 December 1997 Derogation: Articles 67 to 69 of the Convention Implementing the Schengen Agreement Governing law Continuation of the enforcement: Executing State bound by the penalty, unless not compatible, in which case possibility to adapt Or conversion: Executing State bound by the findings as to the facts Penalty cannot be increased Deduction of the period of deprivation of liberty already served
Slide 20/31 © copyright Custodial sentences FD 2008/909/JHA of 27 November 2008 Scope A final decision of a court imposing a custodial sentence in respect of a criminal offence following a criminal conviction, for a limited or unlimited period. To facilitate the social rehabilitation of the sentenced person falls to issuing MS to judge this Situations covered by the FD on the EAW Enforcement of the conviction instead of surrender (Art. 4(6)) Condition of return after conviction (Art. 5(3)) Transitional arrangements: judgments pre-dating 5-12-2011
Slide 21/31 © copyright Custodial sentences Competent authorities and transmission Direct transmission between designated authorities Judgment + certificate Language requirements Person must be in the issuing or executing MS Identification of the executing MS Either that of the nationality of the sentenced person, where they live Or that of the one to which they will be deported Or any other consenting MS declarations Removal of jurisdiction
Slide 22/31 © copyright Custodial sentences Consent of the person, unless the executing MS is: that of their nationality, and they live there Transitional arrangements for Poland that of the nationality to which they will be deported or that of the nationality they fled to following the criminal proceedings or conviction
Slide 23/31 © copyright Custodial sentences Recognition and enforcement List of categories of offences for which there is no longer verification of double criminality That of the FD on the EAW Declarations Governing law = that of the executing EM Incompatible duration: reduction to the maximum provided for by the law of the executing MS Incompatible nature: sentence as close as possible Amnesty and pardon Possibility of providing for early release, taking into account the provisions of the law of the issuing MS Speciality rule
Slide 24/31 © copyright Custodial sentences Grounds for refusal: Article 9 All optional Corresponding to the provisions of the FD on confiscations Absence of double criminality Ne bis in idem Immunity Decisions in absentia Defective certificate
Slide 25/31 © copyright Custodial sentences Grounds for refusal Specific Statute of limitations: even if the executing MS does not have competence Territoriality clause: only the 1st scenario, and on an exceptional basis if the majority of facts occurred in the territory of the executing MS Below the age of criminal responsibility Duration of the sentence to be served is less than six months Issuing MS’s refusal to waive the speciality rule Measure of psychiatric or health care that cannot be executed Violation of fundamental rights: not expressly provided for Consultation obligations
Slide 26/31 © copyright Suspended sentences/alternative sanctions Council of Europe Convention of 30 November 1964 on the Supervision of Conditionally Sentenced or Conditionally Released Offenders Low impact: only ratified by 12 MS Three options: Supervision Supervision and enforcement Enforcement of the conviction ‘Conventional’ grounds for refusal
Slide 27/31 © copyright Suspended sentences/alternative sanctions FD 2008/947/JHA of 27 November 2008 Scope Final decisions rendered by a court establishing that a natural person has committed a criminal offence, and imposing: A sentence with conditional release due to the adoption of probation measures A suspended sentence A judgment deciding on the deferred imposition of the sentence, due to the adoption of probation measures An alternative sanction. Objectives: Facilitating social rehabilitation Improving the protection of victims Facilitating the application of probation measures and alternative sanctions
Slide 28/31 © copyright Suspended sentences/alternative sanctions Probation measures Eleven measures identified Possibility for Member States to specify other measures they are prepared to supervise. Competent authorities and transmission Direct transmission between designated authorities Judgment + certificate Language requirements Identification of the executing MS That of ordinary lawful residence if the person is there or wishes to return there At the request of the sentenced person, any other consenting MS Removal of jurisdiction and limitations
Slide 29/31 © copyright Suspended sentences/alternative sanctions Recognition and enforcement List of categories of offences for which there is no longer verification of double criminality That of the FD on the EAW. Declarations Governing law = that of the executing EM Incompatible duration or nature: measure as close as possible Possibility in case of non-compliance to modify the obligation, revoke the suspension or impose a prison sentence declarations Informing the issuing authority, which may withdraw the certificate Amnesty and pardon
Slide 30/31 © copyright Suspended sentences/alternative sanctions Grounds for refusal: Article 11 All optional Corresponding to the provisions of the FD on custodial sentences Absence of double criminality Ne bis in idem Immunity Decisions in absentia Defective certificate Statute of limitations if the facts fall within the jurisdiction of the executing MS Territoriality clause: only the 1st scenario, and on an exceptional basis if the majority of facts occurred in the territory of the executing MS Below the age of criminal responsibility Duration of the measure or sentence less than 6 months Measure of psychiatric or health care that cannot be supervised Violation of fundamental rights: not expressly provided for No refusal based on non-removal of the speciality rule
Slide 31/31 © copyright Disqualifications Low impact of the conventional instruments Convention of 3 June 1976 on the International Effects of Deprivation of the Right to Drive a Motor Vehicle Council Act of 17 June 1998 drawing up the Convention on Driving Disqualifications Outlook: Communication from the Commission (COM (2006) 73 of 21 February 2006) Stockholm Programme
Slide 32/31 © copyright Taking account European Convention of 1970 May 1970 on the International Validity of Criminal Judgments: low impact Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the EU in the course of new criminal proceedings Principle of equivalence Taken into account in all stages of the criminal proceedings Exchange of information extracted from criminal records FD 2009/315/JHA of 26 February 2009 Council Decision 2009/316/JHA (ECRIS) The contents and opinions expressed herein are solely that of the EJTN, and the European Commission cannot be held responsible for any use that may be made of these contents and opinions.
Slide 1/15 © copyright Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last updated:
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Slide 1/32 © copyright Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last updated:
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