ANNEX
(DRAFT)
Council Framework
Decision
of É.
on the application of the principle of
mutual recognition to judgments and probation decisions with a view to the
supervision of probation measures and alternative sanctions
THE COUNCIL OF THE EUROPEAN UNION,
Having regard
to the Treaty on European Union, and in particular Article 31(1)(a) and (c) and
Article
34(2)(b) thereof,
Having regard
to the initiative of the Federal Republic of Germany and of the French Republic
[2],
Having regard
to the Opinion of the European Parliament [3],
Whereas:
(1) The
European Union has set itself the objective of developing an area of freedom,
security and justice. This presupposes that there is an understanding of
freedom, security and justice on the part of the Member States which is
identical in its essential elements and based on the principles of freedom,
democracy, respect for human rights and fundamental freedoms, as well as the
rule of law.
(2) The
aim of police and judicial cooperation in the European Union is to provide a
high degree of security for all citizens. One of the cornerstones for this is
the principle of mutual recognition of judicial decisions, established in the
conclusions of the European Council held in Tampere on 15 and 16 October 1999
and reaffirmed in the Hague Programme of 4 and 5 November 2004 for
strengthening freedom, security and justice in the European Union [4]. In the programme
of measures of 29 November 2000 adopted for the purpose of implementing the principle of mutual
recognition of decisions in criminal matters, the Council pronounced
itself in favour of cooperation in the area of suspended sentences and parole.
(3) Council
Framework Decision 2007/É/JHA of xx.xx.xxxx* on the application of the principle
of mutual recognition to judgments in criminal matters imposing custodial
sentences or measures involving deprivation of liberty for the purpose of their
enforcement in the European Union [5] concerns the mutual recognition and enforcement
of custodial sentences or measures involving deprivation of liberty.
Further common rules are required, in particular where a non-custodial sentence
involving the supervision of probation measures or alternative sanctions
has been imposed in respect of a person who does not have his legal and
ordinary residence in the State of conviction.
(4) The
Council of Europe Convention of 30 November 1964 on
the Supervision of Conditionally Sentenced or Conditionally Released Offenders
has been ratified by only 12 Member States, with, in some cases, numerous
reservations. The present Framework Decision provides for a more effective
instrument because it is based on the principle of mutual recognition and all
Member States participate.
(5) This
Framework Decision respects fundamental rights and adheres to the principles
recognised in Article 6 of the Treaty on European Union, which are also
expressed in the Charter of Fundamental Rights of the European Union,
especially in Chapter VI thereof. No provision of this Framework Decision
should be interpreted as prohibiting refusal to recognise a judgment and/or
supervise a probation measure or alternative sanction if there are objective
indications that the probation measure or alternative sanction was imposed to
punish a person because of his or her sex, race, religion, ethnic origin,
nationality, language, political convictions or sexual orientation or that this
person might be disadvantaged for one of these reasons.
(6) This
Framework Decision should not prevent any Member State from applying its
constitutional rules relating to entitlement to due process, freedom of
association, freedom of the press, freedom of expression in other media and
freedom of religion.
(7) The
provisions of this Framework Decision should be applied in conformity with the
right of the Union's citizens to move and reside freely within the territory of
the Member States, pursuant to Article 18 of the Treaty establishing the
European Community.
(8) The aim of
mutual recognition and supervision of suspended sentences, conditional
sentences, alternative sanctions and decisions on conditional release is to
enhance the prospects of the sentenced person's being re-integrated into
society, by enabling him to preserve family, linguistic, cultural and other
ties, but also to improve monitoring of compliance with probation measures and
alternative sanctions, with a view to preventing recidivism, thus paying due
regard to the protection of victims and the general public.
(9) There are
several types of probation measures and alternative sanctions which are common
among the Member States and which all Member States are in principle willing to
supervise. The supervision of these types of measures and sanctions should be
obligatory, subject to certain exceptions provided for in this Framework
Decision. Member States may declare that, in addition, they are willing to
supervise other types of probation measures and/or other types of alternative
sanctions.
(10) The probation measures
and alternative sanctions that are in principle obligatory to supervise include
inter alia
orders relating to behaviour (such as an obligation to stop the consumption of
alcohol), residence (such as an obligation to change residence for reasons of
domestic violence), education and training (such as an obligation to follow a
"safe-driving course"), leisure activities (such as an obligation to cease
playing or attending a certain sport) and limitations on or modalities of
carrying out a professional activity (such as an obligation to seek a
professional activity in a different working environment; this obligation does
not include the supervision of compliance with any professional
disqualifications imposed on the person as part of the sanction).
(11) Where appropriate, electronic
monitoring could be used with a view to supervising probation measures or
alternative sanctions, in accordance with national law and procedures.
(12) The Member State where the
person concerned is sentenced may forward a judgment and, where applicable, a
probation decision to the Member State where the sentenced person is lawfully
and ordinarily resident with a view to
recognition thereof and with a view to the supervision of probation measures or
alternative sanctions contained in such a judgment and/or probation decision.
(13) The decision on whether to
forward the judgment and, where applicable, the probation decision to another
Member State should be taken in an individual case by the competent authority
of the issuing Member State, taking into account, inter alia, the statements
made in accordance with Article 6(4) and the declarations made in accordance
with Articles 8(4) and 12(3).
(14) The
judgment and, where applicable, the probation decision may also be forwarded to
a Member State other than that where the sentenced person is residing, if the
competent authority of that executing State, taking account of any conditions
set out in a statement made by that State in accordance with Article 6(3),
consents to such forwarding. In particular, consent may be given, with a view
to social rehabilitation, where the sentenced person, without losing his/her
right of residence, intends to move to another Member State because he/she is
granted an employment contract, if he/she is a family member of a lawful and
ordinary resident person of that Member State, or if he/she intends to follow a
study or training in that Member
State, in accordance with Community law.
(15) Member
States should apply their own national law and procedures for the recognition
of a judgment and, where applicable, a probation decision. In the case of a
conditional sentence or alternative sanction where the judgment does not
contain a custodial sentence or measure involving deprivation of liberty to be
enforced in case of non-compliance with the obligation(s) or instruction(s)
concerned, this could imply that Member States having made a declaration under
Article 12(3), when deciding to recognise, agree to supervise the probation
measure(s) or alternative sanction(s) concerned and to assume no other responsibility than just for taking the
subsequent decisions consisting of the modification of obligations or
instructions contained in the probation measure or alternative sanction, or
modification of the duration of the probation period. Consequently, the
recognition has in such cases no further effect than enabling the executing
State to take those types of subsequent decisions.
(16) A
Member State may refuse to recognise a judgment and, where appropriate, a
probation decision, if the judgment concerned was issued against a person who
has not been found guilty, such as in the case of a mentally ill person, and
the judgment or, where applicable, the probation decision provides for
medical/therapeutic treatment which the executing State under its national law
cannot supervise in respect of such persons.
(17) The
ground for refusal relating to territoriality in Article 9(1)(k) should be
applied only in exceptional cases and with a view to co-operating to the
greatest extent possible under the provisions of this Framework Decision, while
taking into account of its objectives as set out in Article 1(1). Any decision
to apply this ground for refusal should be based on a case-by-case analysis and
consultations between the competent authorities of the issuing and executing
State.
(18) If
the probation measures or alternative sanctions include community service, then
the executing State should be entitled to refuse to recognize the judgment and,
where applicable, the probation decision in accordance with
Article 9(1)(j), if the community service would normally be completed in
less than six months.
(19) The
form of the certificate is drafted in such a way so that essential elements of
the judgment and, where appropriate, of the probation decision are comprised in
the certificate, which should be translated into the official language or one
of the official languages of the executing State. The certificate should assist
the competent authorities in the executing State in taking decisions under this
Framework Decision, including decisions on recognition and assumption of
responsibility for supervision of probation measures and alternative sanctions,
decisions on adaptation of probation measures and alternative sanctions, and
subsequent decisions in case notably of non-compliance with a probation measure
or alternative sanction.
(20) In
view of the principle of mutual recognition, on which this Framework Decision
is based, issuing and executing Member States should promote that their
competent authorities have direct contact when applying this Framework
Decision.
(21) All
Member States ensure that sentenced persons, in respect of whom decisions under
this Framework Decision are taken, are subject to a set of legal rights and
remedies in accordance with national law, regardless of whether the competent
authorities designated to take decisions under this Framework Decision are of a
judicial or a non-judicial nature.
(22) In
any case, all subsequent decisions relating to a suspended sentence, a
conditional sentence or an alternative sanction which result in the imposition
of a custodial sanction should be taken by a judicial authority.
(23) Since
all Member States have ratified the Council of Europe Convention of
28 January 1981 for the Protection of Individuals with regard to
Automatic Processing of Personal Data, personal data processed when
implementing this Framework Decision should be protected in accordance with the
principles laid down in that Convention.
(24) Since
the objective of this Framework Decision, namely laying down the rules
according to which one Member State is to supervise probation measures or
alternative sanctions contained in a judgment given in another Member State,
cannot be sufficiently achieved by the Member States themselves in view of the
cross-border nature of the situations involved and can therefore, by the scale
of the action, be better achieved at Union level, the Union may adopt measures,
in accordance with the principle of subsidiarity as defined in Article 5
of the Treaty establishing the European Community as applied by the second
paragraph of Article 2 of the Treaty on European Union. In accordance with
the principle of proportionality, as set out in Article 5 of the Treaty
establishing the European Community, this Framework Decision does not go beyond
what is necessary in order to achieve this objective,
HAS ADOPTED THIS FRAMEWORK DECISION:
Article 1
Objectives and scope
1. This
Framework Decision aims at facilitating the social re‑integration of
sentenced persons, improving the protection of victims and of the general
public, and to facilitate the application of suitable probation measures and
alternative sanctions in case of offenders, who do not live in the State of
conviction. With a view to achieving these objectives, this Framework Decision
lays down rules according to which a Member State, other than the Member State
in which the person concerned has been sentenced, recognises judgments and,
where appropriate, probations decisions and supervises probation measures imposed
on the basis of a judgment, or alternative sanctions contained in such a
judgment, and takes all other decisions relating
to that judgment, unless otherwise provided in this Framework Decision.
2. This
Framework Decision shall apply only to
a) the recognition of judgments and,
where applicable, probation decisions;
b) the transfer of responsibility for the
supervision of probation measures and alternative sanctions;
c) all other decisions related to those
under a) and b),
as described and provided
for in this Framework Decision.
3. This
Framework Decision shall not apply to
- the execution of judgments
in criminal cases imposing custodial sentences or
measures involving deprivation of liberty which fall within the scope of
Council Framework Decision 2008/É/JHA É ;
- recognition and execution
of financial penalties and confiscation orders which fall within the scope of
Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition
to financial penalties
and Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition
to confiscation orders .
Article
2
Definitions
For the
purposes of this Framework Decision:
(a) "judgment"
shall mean a final decision or order of a court of the issuing State,
establishing that a natural person has committed a criminal offence and
imposing:
(i) a
custodial sentence or any measure involving deprivation of liberty, if a
conditional release has been granted on the basis of that judgment or by a
subsequent probation decision,
(ii) a
suspended sentence,
(iii) a conditional sentence,
(iv) an
alternative sanction.
(b) "suspended
sentence" shall mean a custodial sentence or any measure involving
deprivation of liberty, the execution of which is conditionally suspended,
wholly or in part, when the sentence is passed by imposing one or more
probation measures, which may be included in the judgment itself or determined
in a separate probation decision taken by a competent authority;
(c) "conditional
sentence" shall mean a judgment in which the imposition of a sentence has
been conditionally deferred by imposing one or more probation measures or in
which one or more probation measures are imposed instead of a custodial sentence
or measure involving deprivation of liberty; such probation measures may be
included in the judgment itself or determined in a separate probation decision
taken by a competent authority;
(d) "alternative
sanction" shall mean a sanction, other than a custodial sentence, a
measure involving deprivation of liberty or a financial penalty, imposing an
obligation or instruction;
(e) "probation
decision" shall mean a final judgment of a court or a final decision of a
competent authority of the issuing State taken on the basis of such a judgment
(i)
granting a conditional release, or
(ii)
imposing probation measures;
(f) "conditional
release" shall mean a final decision by a competent authority or stemming
from the national law on the early release of a sentenced person after part of
the custodial sentence or other measure involving deprivation of liberty has
been served by imposing one or more probation measures;
(g) "probation
measures" shall mean obligations and instructions imposed by a competent
authority on a natural person, in accordance with the national legislation of
the issuing State, in connection with a suspended sentence, a conditional
sentence or a conditional release;
(h) "issuing
State" shall mean the Member State in which a judgment, as defined in
point (a), has been issued;
(i) "executing
State" shall mean the Member State in which the probation measures and
alternative sanctions are supervised following a decision in accordance with
Article 7.
Article
3
Fundamental
rights
This
Framework Decision shall not have the effect of modifying the obligation to
respect fundamental rights and fundamental legal principles as enshrined in
Article 6 of the Treaty on European Union.
Article 4
Designation
of competent authorities
1. Each
Member State shall inform the General Secretariat of the Council which
authority or authorities, under its national legislation, are competent to act
according to this Framework Decision in the situation where that Member State
is the issuing State or the executing State.
2. Member
States may designate non-judicial authorities as the competent authorities for
taking decisions under this Framework Decision, provided that such authorities
have competence for taking decisions of a similar nature under their national
law and procedures.
3. If
a decision under Article 12(1)(b) or (c) is taken by another competent
authority than a court, the Member States shall ensure that, upon request of
the person concerned, such decision may be reviewed by a court or by another
independent court-like body.
4. The
General Secretariat of the Council shall make the information received
available to all Member States and to the Commission.
Article 5
Types of probation measures and alternative sanctions
1. This
Framework Decision shall apply to the following probation measures or
alternative sanctions:
(a) an
obligation for the sentenced person to inform a specific authority of any
change of residence or working place;
(b) an
obligation not to enter certain localities, places or defined areas in the
issuing or executing State;
(c) an obligation
containing limitations on leaving the territory of the executing State;
(d) instructions
relating to behaviour, residence, education and training, leisure activities,
or containing limitations on or modalities of carrying out a professional
activity;
(e) an
obligation to report at specified times to a specific authority;
(f) an
obligation to avoid contact with specific persons;
(g) an
obligation to avoid contact with specific objects, which have been used or are
likely to be used by the sentenced person with a view to committing a criminal
offence;
(h) an
obligation to compensate financially for the prejudice caused by the offence
and/or an obligation to provide proof of compliance with such an obligation;
(i) an
obligation to carry out community service;
(j) an
obligation to cooperate with a probation officer or with a representative of a
social servicehaving responsibilities
in respect of sentenced persons;
(k) an
obligation to undergo therapeutic treatment or treatment for addiction.
2. Each
Member State shall notify the General Secretariat of the Council, when
transposing this Framework Decision, which probation measures and alternative
sanctions, apart from those referred to in paragraph 1, it is prepared to
supervise. The General Secretariat of the Council shall make the information
received available to all Member States and to the Commission.
Article
6
Criteria
relating to the Member State to which the judgment and, where
applicable,
the probation decision may be forwarded
1. The
competent authority of the issuing State may forward the judgment and, where
appropriate, the probation decision to the competent
authority of the Member State in which the sentenced
person is lawfully and ordinarily residing, in cases where the sentenced
person has returned or wants to return to that State.
2. A
competent authority in the issuing State may, upon request of the sentenced
person, forward the judgment and, if appropriate, the probation decision to a
competent authority in a Member State other than the
Member State in which the sentenced person is lawfully and ordinarily residing,
on condition that this latter authority has consented to such forwarding.
3. When
implementing this Framework Decision, Member States shall determine under which conditions their
competent authorities may consent to the forwarding of a judgment and, where
applicable, a probation decision in cases pursuant to paragraph 2 of this
Article.
4. Each Member State shall make a
statement to the General Secretariat of the Council of the determination made
under paragraph 3 of this Article. Member States may modify such a statement at
any time. The General Secretariat shall make the information received available
to all Member States and to the Commission.
Article
6a
Procedure for forwarding the judgment and, where
applicable,
the probation decision, together with the certificate
1. When,
in application of Article 6(1) or (2), the competent
authority of the issuing State forwards a judgment
and, where appropriate, a probation decision to another Member State, it shall
ensure that it is accompanied by a certificate, the standard form of which is
set out in Annex I.
2. The
judgment and, where appropriate, the probation decision,
together with the certificate, shall be forwarded by the competent authority in the issuing State directly to the competent authority in
the executing State by any means which leaves a written record under conditions
allowing the executing State to establish their authenticity. The original of
the judgment and the probation decision, or certified copies thereof, as well
as the original of the certificate, shall be sent to the executing State if it
so requires. All official communications shall also be made directly between
the said competent authorities.
3. The certificate shall be signed, and its content certified
as accurate, by the competent authority in the
issuing State.
4. Apart
from the measures and sanctions referred to in Article 5(1), the certificate
referred to in paragraph 1 shall include only such measures or sanctions as
notified by the executing State concerned in accordance with Article 5(2).
5. The
competent authority in the issuing State shall forward a certificate together with
the judgment and, where appropriate, the probation decision only to one
executing State at any one time.
6. If
the competent authority in the executing State is not known to the competent
authority in the issuing
State, the latter shall make all necessary inquiries, including via the contact
points of the European Judicial Network set up by Council
Joint Action 98/428/JHA of 29 June 1998 on the creation of a European
Judicial Network, in order to
obtain the information from the executing State.
7. When
an authority in the executing State which receives a judgement and, where
applicable, a probation decision, together with a certificate, has no
competence to recognise it and take the ensuing necessary measures for the
supervision of the probation measure or alternative sanction, it shall,
ex officio, forward it to the competent authority and shall without delay
inform the competent authority in the issuing State accordingly by any means
which leaves a written record.
Article
6b
Consequences
for the issuing State
1. Once the
competent authority in the executing State has recognised the judgment and,
where applicable, the probation decision forwarded to it and has informed the
competent authority in the issuing State of such recognition, the issuing State
shall no longer have competence in relation to the supervision of the probation
measures or alternatives sanctions imposed, nor to take subsequent measures
referred to in Article 12(1).
2. That competence
shall revert to the issuing State:
a) as soon as its
competent authority has notified withdrawal of the certificate, pursuant to
Article 7a(4), to the competent authority of the executing State;
b) in
cases referred to in Article 12(3) in combination with 12(5); and
c) in
cases referred to in Article 17.
Article 7
Decision of the executing State
1. The
competent authority in the executing State shall recognise the judgment and,
where applicable, the probation decision forwarded in accordance with Article 6
and following the procedure laid down in Article 6a and shall without delay
take all necessary measures for the supervision of the probation measure(s)
and/or alternative sanction(s), unless it decides to invoke one of the grounds
for refusing recognition and supervision referred to in Article 9.
2. The
competent authority may postpone the decision on recognition of the judgment
and, where applicable, the probation decision in the situation where the
certificate provided for in Article 6a is incomplete or obviously does not
correspond to the judgment or, where applicable, the probation decision, until
such reasonable deadline set for the certificate to be completed or corrected.
Article 7a
Adaptation of the probation measures or alternative
sanctions
1. If
the nature or duration of the relevant probation measure or alternative
sanction, or the duration of the probation period, are incompatible with the
law of the executing State, the competent authority in that State may adapt
them in line with the nature and duration of the probation measures and
alternative sanctions, or duration of the probation period, which apply, under
the law of the executing State, to equivalent offences. The adapted probation
measure, alternative sanction or duration of the probation period shall
correspond as far as possible to that imposed in the issuing State.
2. Where
the probation measure, the alternative sanction or the probation period has
been adapted because its duration exceeds the maximum duration provided for
under the law of the executing State, the duration of the adapted probation
measure, the adapted alternative sanction or the adapted probation period shall
not be below the maximum duration provided for equivalent offences under the
law of the executing State.
3. The
adapted probation measure, alternative sanction or probation period shall not
be more severe or longer than the probation measure, alternative sanction or
probation period which was originally imposed.
4. Following
receipt of an information referred to in Articles 14(2) or 15a(e), the competent
authority in the issuing State may decide to withdraw the certificate as long
as the supervision in the executing State has not yet begun. In any case, such
a decision shall be taken and communicated as soon as possible and within ten
days of the relevant notification at the latest.
Article 8
Dual criminality
1. The
following offences, if they are punishable in the issuing State by a custodial
sentence or a measure involving deprivation of liberty for a maximum period of
at least three years, and as they are defined by the law of the issuing
State, shall, under the terms of this Framework Decision and without
verification of the dual criminality of the act, give rise to recognition of
the judgment and to supervision of probation measures and alternative
sanctions:
–
participation in a criminal
organisation,
–
terrorism,
–
trafficking in human beings,
–
sexual exploitation of children and
child pornography,
–
illicit trafficking in narcotic drugs
and psychotropic substances,
–
illicit trafficking in weapons, munitions
and explosives,
–
corruption,
–
fraud, including that affecting the
financial interests of the European Communities within the meaning of the
Convention of 26 July 1995 on the protection of the European
Communities' financial interests,
–
laundering of the proceeds of crime,
–
counterfeiting currency, including of
the euro,
–
computer-related crime,
–
environmental crime, including illicit
trafficking in endangered animal species and in endangered plant species and
varieties,
–
facilitation of unauthorised entry and
residence,
–
murder, grievous bodily injury,
–
illicit trade in human organs and
tissue,
–
kidnapping, illegal restraint and
hostage-taking,
–
racism and xenophobia,
–
organised or armed robbery,
–
illicit trafficking in cultural goods,
including antiques and works of art,
–
swindling,
–
racketeering and extortion,
–
counterfeiting and piracy of products,
–
forgery of administrative documents
and trafficking therein,
–
forgery of means of payment,
–
illicit trafficking in hormonal
substances and other growth promoters,
–
illicit trafficking in nuclear or
radioactive materials,
–
trafficking in stolen vehicles,
–
rape,
–
arson,
–
crimes within the jurisdiction of the
International Criminal Court,
–
unlawful seizure of aircraft/ships,
–
sabotage.
2. The
Council may decide to add other categories of offences to the list in paragraph
1 at any time, acting unanimously after consultation of the European Parliament
under the conditions laid down in Article 39(1) of the Treaty on European
Union. The Council shall examine, in the light of the report submitted to it
pursuant to Article 22(1) of this Framework Decision, whether the list
should be extended or amended.
3. For
offences other than those covered by paragraph 1, the executing State may make
the recognition of the judgment and supervision of probation measures and of
alternative sanctions subject to the condition that the judgment relates to
acts which also constitute an offence under the law of the executing State,
whatever the constituent elements or however it is described.
4. Each
Member State may, at the time of the adoption of the Framework Decision or
later, by a declaration to the Secretary General of the Council notify that it
will not apply paragraph 1. Any such declaration may be withdrawn at any time.
Such declarations or withdrawals of declarations shall be published in the
Official Journal of the European Union.
Article 9
Grounds for refusing recognition, as well as for refusing supervision
1. The
competent authority in the executing State may refuse to recognise the judgment
or, where applicable, the probation decision and to assume responsibility for
supervising probation measures and alternative sanctions if:
(a) the
certificate referred to in Article 6 is incomplete or obviously does not
correspond to the judgment or to the probation decision and is not completed or
corrected within a reasonable period set by the competent authority in the
executing State;
(b) the
criteria laid down in Article 6(1), 6(2) or 6a(4) are not met;
(c) recognition
of the judgment and assumption of responsibility for supervising probation
measures or alternative sanctions would contravene the ne bis in idem principle;
(d) the
judgment relates, in the cases referred to in Article 8(3) and, where the
executing State has made a declaration under Article 8(4), in a case referred
to in Article 8(1), to an act which would not constitute an offence under the
law of the executing State; in tax, customs and currency matters, however,
execution of the judgment may not be refused on the grounds that the law of the
executing State does not prescribe any taxes of the same kind or does not
contain any tax, customs or currency provisions of the same kind as the law of
the issuing State;
(e) the
enforcement of the sentence is statute-barred under the law of the executing
State and relates to an act which falls within the competence of the executing
State under its national law;
(f) there
is immunity under the law of the executing State, which makes it impossible to
supervise probation measures or alternative sanctions;
(g) under
the law of the executing State, the sentenced person cannot, because of his
age, be held criminally responsible for the act on which the judgment is based;
(h) the
judgment was rendered in absentia, unless the certificate states that the
person was summoned personally or informed via a representative competent
according to the national law of the issuing State, of the time and place of
the proceedings which resulted in the judgment being rendered in absentia, or
that the person has indicated to a competent authority that he or she does not
contest the case; or
(i) the
judgment or, where applicable, the probation decision provides for
medical/therapeutic treatment which, notwithstanding the provisions of
Article 7a, the executing State is unable to supervise in view
of its legal or healthcare system;
(j) the
probation measure or alternative sanction is of less than 6 months' duration;
(k) the
judgment relates to criminal offences which under the law of the executing
State are regarded as having been committed wholly or for major or essential
part within its territory, or in a place equivalent to its territory.
(1a) Any
decision under paragraph 1(k) of this Article in relation to offences committed
partly within the territory of the executing State, or in a place equivalent to
its territory, shall be taken by the competent authority in the executing State
only in exceptional circumstances and on a case-by case basis, having regard to
the specific circumstances of the case, and in particular to whether a major or
essential part of the conduct in question has taken place in the issuing State.
2. In
cases referred to in paragraph 1 (a), (b), (c), (h), (i), (j) and (k) before
deciding not to recognise the judgment or, where applicable, the probation decision
and to assume responsibility for supervising probation measures and alternative
sanctions, the competent authority in the executing State shall communicate, by
appropriate means, with the competent authority in the issuing State and, as
necessary, request the latter to supply without delay all additional
information required.
3. Where
the competent authority in the executing State has decided to invoke a
ground for refusal referred to in paragraph (1), in particular the ground
referred to under (1)(d) or (1)(k), it may nevertheless, in agreement with the
competent authority in the issuing State, decide to supervise the probation
measure(s) or alternative sanction(s) that are imposed in the judgment and,
where applicable, the probation decision forwarded to it, without assuming the
responsibility for taking any of the decisions referred to in Article 12(1)(a),
(b) and (c).
Article 10
Time-limits
1. The
competent authority in the executing State shall decide as soon as possible,
and within 60 days at the latest of receipt of the judgment and the certificate
and, where applicable, the probation decision, whether or not to recognise the
judgment and, where applicable, the probation decision and assume
responsibility for supervising the probation measure(s) and/or alternative
sanction(s). It shall immediately inform the competent authority in the issuing
State, by any means which leaves a written record, of
its decision.
2. If
it is not possible, in exceptional circumstances, for the competent authority
in the executing State to comply with the time-limits laid down in paragraph 1,
it shall immediately inform the competent authority in the issuing State, by
any means of its choosing, giving reasons for the delay and indicating how long
it expects to take to issue a final decision.
Article 11
Governing law
1. The
supervision and application of probation measures and alternative sanctions
shall be governed by the law of the executing State.
2. The
competent authority in the executing State may supervise an obligation referred
to in Article 5(1)(h) by requiring the sentenced person to provide proof
of compliance with an obligation to compensate for the prejudice caused by the
offence.
Article 12
Competence to take all subsequent decisions
and governing law
1. The
competent authority in the executing State shall have jurisdiction to take all
subsequent decisions relating to a suspended sentence, conditional release,
conditional sentence and alternative sanction, in particular in case of
non-compliance with a probation measure or alternative sanction or if the
sentenced person commits a new criminal offence.
Such
subsequent decisions include notably
a) the
modification of obligations or instructions contained in the probation measure
or alternative sanction, or modification of the duration of the probation
period;
b) the
revocation of the suspension of the execution of the judgment or of the
decision on conditional release; and
c) the
imposition of a custodial sentence or measure involving the deprivation of
liberty in case of an alternative sanction or conditional sentence.
2. The
law of the executing State shall apply to decisions taken pursuant to paragraph
1 and to all subsequent consequences of the judgment including, where
applicable, the enforcement and, if necessary, the adaptation of the custodial
sentence or measure involving deprivation of liberty.
3. Each
Member State may, at the time of adoption of this Framework Decision or at a
later stage, declare that as an executing State it will refuse to assume the
responsibility provided for in paragraph 1(b)
and (c) in cases or categories of cases to be specified by that Member State,
in particular
- in
cases relating to an alternative sanction, where the judgement does not contain
a custodial sentence or measure involving deprivation of liberty to be enforced
in case of non-compliance with the obligation(s) or instruction(s) concerned;
- in
cases relating to a conditional sentence;
- in
cases where the judgment relates to acts which do not constitute an offence
under the law of the executing State, whatever the constituent elements or
however it is described.
4. When a Member State makes use of any
of the possibilities referred to in paragraph 3, the competent authority in the
executing State shall transfer jurisdiction back to the competent authority in the
issuing Member State in case of non-compliance with a probation measure or
alternative sanction if the competent authority of the executing State is of
the view that a subsequent decision as referred to in paragraph 1(b) or (c), needs to be taken.
5. In
the cases referred to in paragraph 3, the obligation to recognise the judgement
and, where applicable, the probation decision, as well as the obligation to
take without delay all necessary measures for the supervision of the probation
measure(s) and/or alternative sanction(s), as referred to in Article 7(1),
shall not be affected.
6. Declarations
as mentioned in paragraph 3 of this Article shall be made by notification to
the Secretary General of the Council. Any such declaration may be withdrawn at
any time. The declarations and withdrawals mentioned in this Article shall be
published in the Official Journal of the European Union.
Article 13
Consultations between competent authorities
Where and whenever it is
felt appropriate, competent authorities of the issuing State and of the
executing State may consult each other with a view to facilitating the smooth
and efficient application of this Framework Decision.
Article 14
Obligations of the authorities involved where
the executing State has jurisdiction for subsequent decisions
1. The
competent authority in the executing State shall without delay inform the
competent authority in the issuing State, by any means which leaves a written
record, of all decisions on the:
(a) modification
of the probation measure or alternative sanction;
(b) revocation
of the suspension of the execution of the judgment or revocation of the
decision on early release;
(c) enforcement
of a custodial sentence or measure involving deprivation of liberty, because of
non-compliance with a probation measure or alternative sanction;
(d)
lapsing of the probation measures or
alternative sanction.
2. If
so requested by the competent authority in the issuing State, the competent
authority in the executing State shall inform it of the maximum duration of
deprivation of liberty that is foreseen in the national law of the executing State
for the offence, which gave rise to the judgment, and that could be imposed on
the sentenced person in case of breach of the probation measures or alternative
sanctions. This information shall be provided immediately after reception of
the judgment and the certificate and, where applicable, the probation decision.
3. The
competent authority in the issuing State shall immediately inform the competent
authority in the executing State, by any means which leaves a written record,
of any circumstances or findings which, in its opinion, could entail one or
more of the decisions referred to in paragraph 1 under (a), (b) or (c) being
taken.
Article 15
Obligations of the authorities involved where
the issuing State has jurisdiction for subsequent decisions
1. If
the competent authority in the issuing State has jurisdiction for the
subsequent decisions mentioned in Article 12(1) pursuant to the application of
Article 12(3), the competent authority in the executing State shall immediately
notify it:
(i) of
any finding which is likely to result in revocation of the suspension of the
execution of the judgment or decision on conditional release;
(ii) of any finding which is
likely to result in the imposition of a custodial sentence or measure involving
deprivation of liberty;
(iii) of all further facts and circumstances which the competent authority
of the issuing State requests to be provided and which are essential in order
to allow it to take subsequent decisions in accordance with its national law.
1a. When
a Member State has made use of the possibility referred to in Article 9(3), the
competent authority in that State shall inform the competent authority in the
issuing Member State in case of non-compliance by the sentenced person with a
probation measure or alternative sanction.
2. Notice
of the findings mentioned in paragraph 1(i) and (ii) and in paragraph 1a shall
be given using the standard form set out in Annex II. Notice of the facts and
circumstances mentioned in paragraph 1(iii) shall be given by any means which
leaves a written record, including, where possible, through the form set out in
Annex II.
3. If,
under the national law of the issuing State, the sentenced person must be given
a judicial hearing before a decision is taken on the imposition of a sentence,
this requirement may be met by following mutatis mutandis the procedure contained in instruments of international or European
Union law that provide the possibility of using video links for hearing
persons.
4. The
competent authority in the issuing State shall without delay inform the
competent authority in the executing State of all decisions on the:
(a) revocation
of the suspension of the execution of the judgment or decision on conditional
release;
(b) enforcement
of the custodial sentence or measure involving deprivation of liberty, where
such measure is contained in the judgement;
(c) imposition
of a custodial sentence or measure involving deprivation of liberty, where such
measure is not contained in the judgment;
(d) lapsing of the
probation measure or alternative sanction.
Article
15a
Information from the executing State in all
cases
The competent authority in
the executing State shall without delay inform the competent authority in the
issuing State, by any means which leaves a written record:
(a)
of the transmission of the judgment
and, where applicable, the probation decision as well as the certificate to the
competent authority responsible for its recognition and for taking the ensuing
measures for the supervision of the probation measures or alternative sanctions
in accordance with Article 6a(7);
(b)
of the fact that it is in practice
impossible to supervise the probation measures or the alternative sanctions for
the reason that, after transmission of the certificate and the judgment and,
where applicable, the probation decision to the executing State, the sentenced
person cannot be found in the territory of the executing State, in which case
there shall be no obligation of the executing State to supervise the probation
measures or the alternative sanctions;
(c)
of the final decision to recognise the
judgment and, where applicable, the probation decision and take all necessary
measures for the supervision of the probation measures or alternative
sanctions;
(d)
of any decision not to recognize the
judgment and, where applicable, the probation decision and to assume
responsibility for supervising the probation measures and the alternative
sanctions in accordance with Article 9, together with the reasons for the
decision;
(e)
of any decision to adapt the probation
measures or alternative sanctions in accordance with Article 7a, together with
the reasons for the decision;
(f)
of any decision on amnesty or pardon
which leads to not supervising the probation measures or the alternative
sanctions for the reasons referred to in Article 16(1), together, where
applicable, with the reasons for the decision.
Article 16
Amnesty, pardon, review of judgment
1. An
amnesty or pardon may be granted both by the issuing State and by the executing
State.
2. Only
the issuing State may decide on applications for review of the judgment which
forms the basis for the probation measures or alternative sanctions to be
supervised under this Framework Decision.
Article 17
End of jurisdiction of the executing State
1. If
the sentenced person absconds or no longer possesses a lawful and ordinary
residence in the executing State, the competent authority of the executing
State may transfer the jurisdiction in respect of the supervision of the
probation measures and alternative sanctions and in respect of all further
decisions relating to the judgment back to the competent authority of the
issuing State.
2. If
new criminal proceedings against the person concerned are taking place in the
issuing State, the competent authority of the issuing State may request the
competent authority of the executing State to transfer the jurisdiction in
respect of the supervision of the probation measures and alternative sanctions
and in respect of all further decisions relating to the judgment back to the
competent authority of the issuing State. In such a case, the competent
authority of the executing State may transfer such jurisdiction to the
authority of the issuing State.
3. When,
in application of this Article, jurisdiction is transferred back to the issuing
State, the competent authority of that State shall resume such jurisdiction. For
the further supervision of the probation measures or alternative sanctions, the
competent authority of the issuing State shall take account of the duration and
degree of compliance with the probation measures or alternative sanctions in
the executing State, as well as of any decisions taken by the executing State
in accordance with Article 14(1).
Article 18
Languages
Certificates
shall be translated into the official language or one of the official languages
of the executing State. Any Member State may, either when this Framework
Decision is adopted or at a later date, state in a declaration deposited with
the General Secretariat of the Council that it will accept a translation in one
or more other official languages of the Institutions of the European Union.
Article 19
Costs
Costs
resulting from the application of this Framework Decision shall be borne by the
executing State, except for costs arising exclusively within the territory of
the issuing State.
Article 20
Relationship with other agreements and arrangements
1. This
Framework Decision shall, in relations between the Member States, from É replace the corresponding provisions of
the Council of Europe Convention on the Supervision
of Conditionally Sentenced or Conditionally Released Offenders.
2. Member
States may continue to apply bilateral or multilateral agreements or
arrangements in force when this Framework Decision was adopted, insofar as they
allow the objectives of this Framework Decision to be extended or enlarged and
help to simplify or facilitate further the procedures for the supervision of
probation measures and alternative sanctions.
3. Member
States may conclude bilateral or multilateral agreements or arrangements after
this Framework Decision has come into force in so far as such agreements or
arrangements allow the prescriptions of this Framework Decision to be extended
or enlarged and help to simplify or facilitate further the procedures for the
supervision of probation measures and alternative sanctions.
4. Member
States shall, within three months from the entry into force of this Framework
Decision, notify the Council and the Commission of the existing agreements and
arrangements referred to in paragraph 1 which they wish to continue applying.
Member States shall also notify the Council and the Commission of any new
agreement or arrangement as referred to in paragraph 2, within three months of
signing it.
Article 21
Implementation
1. Member
States shall take
the necessary measures to comply with this Framework Decision by [three
years after entry into force of this Framework
Decision].
2. Member States shall transmit to the General
Secretariat of the Council and to the Commission the text of the provisions
transposing into their national law the obligations imposed on them under this Framework Decision.
Article 22
Review
1.
By [three years after the date
referred to in Article 21(1)], the Commission shall draw up a report on the basis of the information received from Member
States under Article 21(2).
2. On the basis of
this report, the Council shall assess
- the
extent to which the Member States have taken the necessary measures in order to
comply with
this Framework Decision; and
- the
application of this Framework Decision.
3.
The report shall
be accompanied, if necessary, by legislative proposals.
Article 23
Entry into force
This Framework Decision shall enter into force on the day of its
publication in the Official Journal of the European Union.
Done
at [Brussels],
For the Council
The
President
