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Taking account of convictions in Member States in the course of new criminal proceedings

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Taking account of convictions in Member States in the course of new criminal proceedings

This Framework Decision sets out the minimum obligations for taking into account previous convictions handed down in any Member State in the course of a new criminal proceeding against the same person for different facts in another Member State.

ACT

Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings.

SUMMARY

This Framework Decision establishes the criteria whereby previous convictions delivered by any Member State are taken into account during criminal proceedings in another Member State against the same person, but for different facts.

The information regarding previous convictions can be obtained under applicable instruments on mutual assistance in criminal matters between Member States or on the exchange of information extracted from the criminal record. In the context of new criminal proceedings, Member States must ensure that previous convictions handed down in another Member State are duly taken into consideration under the same conditions as the previous national convictions.

The previous convictions are to be taken into account at the pre-trial and trial stage, as well as when the conviction is executed. They should be given due consideration especially in relation to the applicable rules of procedure concerning:

  • provisional detention;
  • definition of the offence;
  • type and level of the sentence;
  • execution of the decision.

When previous convictions are taken into consideration by the Member State conducting the new proceedings, this shall not have the effect of interfering with, revoking or reviewing the previous convictions.

In instances where the previous conviction was not handed down or fully executed by another Member State prior to the commission of the offence for which the new proceedings are conducted, it is not required to comply with national rules on imposing sentences, if the application of the national rules to previous foreign convictions limits the judge in imposing a sentence. Nevertheless, the previous convictions must be taken into consideration by other means.

This Framework Decision replaces Article 56 of the European Convention of 28 May 1970 on the International Validity of Criminal Judgements as between the Member States. The Article provides for the possibility to take into consideration criminal judgements handed down in other states that are parties to the Convention.

Background

The programme of measures to implement the principle of mutual recognition of decisions in criminal matters was adopted by the Council on 29 November 2000. This programme also provides for the establishment of the principle by which a Member State must take into account previous criminal judgements rendered by the courts in other Member States, in order to assess the offender’s criminal record, establish whether s/he has reoffended and decide on the type of sentence and its execution.

REFERENCES

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Council Framework Decision 2008/675/JHA

15.8.2008

15.8.2010

OJ L 220 of 15.8.2008

RELATED ACTS

Report from the Commission to the European Parliament and the Council on the implementation by the Member States of Framework Decision 2008/675/JHA of 24 July 2008 on taking into account of convictions in the Member States of the European Union in the course of new criminal proceedings [ COM(2014) 312 final of 2.6.2014 - not published in the Official Journal].

The main conclusions of the report are as follows:

  • 1The Framework Decision has considerable added value in promoting mutual trust in penal laws and judicial decisions in the European area of justice as it encourages a judicial culture where previous convictions handed down in another Member State are in principle taken into account.
  • 2Of those EU countries that have transposed it, the level of compliance with the letter and spirit of the Framework Decision varies significantly.
  • 3The non-transposition or the partial and incomplete transposition of the Framework Decision hampers the effective functioning of the European area of justice. It can moreover undermine the legitimate expectations of EU citizens as they cannot benefit from this instrument aiming at reducing the reoffending of perpetrators of crime.
  • 4The Commission will examine if the Member States duly apply the principle of equivalence and that, as a matter of principle, legal effects of foreign convictions are equivalent to legal effects of domestic convictions, in the Member State’s criminal justice system.
  • 5Member States are invited to consider this report and to provide all further relevant information to the Commission, in order to fulfil their obligations under the Treaty.

Last updated: 11.08.2014

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