slide 1/31 © copyright standard training programme in judicial cooperation in criminal matters...
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Standard training programme in judicial cooperation in criminal matters
within the European UnionVersion: 3.0
Last updated: 31.11.2012
The European JudicialTraining Network
With the support of the European
Union
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logo of the training organiser
Training organised by(name of training organiser)
on (date) at (place)
Title (of the training)
The European JudicialTraining Network
With the support of the European
Union
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Module 10Post-sentencing cooperation
Version: 3.0 Last updated: 31.10.2012
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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
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The enforcement of judgments
Sources:The Council of Europe ConventionsConventions 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
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Financial penalties
The low impact of the Council of Europe ConventionsLow rate of ratificationMultiple grounds for refusal
FD 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penaltiesMain source for the Member States of the European Union
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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
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Financial penalties
Recognition and enforcementExpanded 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
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Financial penalties
Grounds for refusal: Articles 7 and 20All optionalCorrespond 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
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Financial penalties
Grounds for refusalSpecific:
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
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Confiscation orders
Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds of CrimeTransmission via central authoritiesDirect execution or autonomous decisionNo removal of jurisdictionNo review of the factsProcedure according to the law of the requested Party
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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
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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
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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
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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.
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Confiscation orders
Grounds for refusal: Articles 7 and 20All optionalCorresponding to provisions of the FD on financial
penalties: Absence of double criminality Statute of limitations Immunity Decisions in absentia Defective certificate
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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
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Custodial sentences
Council of Europe Convention of 28 May 1970Council of Europe Convention of 21 March 1983 on the Transfer
of Sentenced PersonsAt the initiative of either State, but optionalTransmission via central authoritiesConditions:
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
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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
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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
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Custodial sentences
Competent authorities and transmissionDirect transmission between designated authoritiesJudgment + certificateLanguage requirementsPerson 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
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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 deportedor that of the nationality they fled to following the criminal
proceedings or conviction
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Custodial sentences
Recognition and enforcementList 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
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Custodial sentences
Grounds for refusal: Article 9All optionalCorresponding to the provisions of the FD on confiscations
Absence of double criminality Ne bis in idem Immunity Decisions in absentia Defective certificate
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Custodial sentences
Grounds for refusalSpecific
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
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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:
SupervisionSupervision and enforcementEnforcement of the conviction
‘Conventional’ grounds for refusal
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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
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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
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Suspended sentences/alternative sanctions
Recognition and enforcementList 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
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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
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Disqualifications
Low impact of the conventional instrumentsConvention of 3 June 1976 on the International Effects of
Deprivation of the Right to Drive a Motor VehicleCouncil 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
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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 proceedingsPrinciple of equivalenceTaken into account in all stages of the criminal proceedingsExchange of information extracted from criminal records
FD 2009/315/JHA of 26 February 2009 Council Decision 2009/316/JHA (ECRIS)
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