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Mutual recognition of supervision measures

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Mutual recognition of supervision measures

This framework decision establishes rules for the mutual recognition of supervision measures during criminal proceedings. It aims to facilitate the supervision in the pre-trial stage of the proceedings of suspects who reside in a country other than that where the trial will take place.

ACT

Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention.

SUMMARY

The framework decision on the European Supervision Order (ESO) lays down rules for the mutual recognition of supervision measures during criminal proceedings by European Union (EU) countries.

The ESO concerns provisional release in the pre-trial stage. It enables a supervision measure to be transferred from the country where a person is suspected of having committed an offence to the country where he is normally resident. This will allow a suspected person to be subject to a supervision measure in his home country until the trial takes place in the foreign country, and thus provides a way to reduce pre-trial detention of non-resident EU citizens.

The ESO regulates the:

  • recognition of a decision on supervision measures;
  • monitoring of supervision measures;
  • surrendering of a person breaching supervision measures imposed on him/her.

Thus, the ESO aims at:

  • making sure that the person concerned will be available to attend his/her trial;
  • promoting the use of non-custodial measures in criminal proceedings that take place in an EU country other than that where the person concerned is resident;
  • improving the protection of victims and the general public.

Types of supervision measures

EU countries must recognise and monitor supervision measures that impose an obligation on the person concerned to:

  • inform the authority monitoring the supervision measures of any change of residence;
  • not enter certain locations;
  • stay at a specified location;
  • comply with certain restrictions for leaving the territory of the monitoring country;
  • report at specified times to the designated authority;
  • refrain from contacting specific persons connected to the alleged crime.

The ESO lists a number of additional supervision measures that each EU country may choose to monitor.

Forwarding supervision measures

An EU country may forward a decision on supervision measures to the competent authority of the EU country of residence of the person against whom the measures are imposed. However, the latter must have been informed of these measures and agreed to return to his/her country of residence. Following a request from the person concerned, a decision on supervision measures may also be forwarded to the competent authority of another EU country. In such cases, the authority in question must have agreed to receive the decision.

The competent authority of the EU country that issued the decision on supervision measures forwards this decision (or a certified copy of it) together with a certificate annexed to the framework decision directly to the competent authority of the EU country that will carry out the monitoring tasks. The competent authority of the issuing country must indicate the validity period of the decision on supervision measures and whether this decision may be renewed. In addition, it must specify the expected length of time needed for monitoring the supervision measures.

Recognising decisions on supervision measures

The country to which a decision on supervision measures is forwarded must recognise this decision and take the necessary measures for monitoring the supervision measures within 20 days from receipt. The framework decision lists certain offences for which decisions on supervision measures must in all cases be recognised, without verifying the double criminality of the acts. However, these offences must be punishable by a custodial sentence or a measure involving deprivation of liberty for a minimum of three years in the country that issued the decision on supervision measures.

For any other offences, the country that is to monitor the supervision measures may require the decision to relate to acts that are also an offence under its law in order to recognise the decision. Under certain circumstances, this country may refuse to recognise the decision on supervision measures altogether.

In case the supervision measures are not compatible with the law of the monitoring country, its competent authority may adapt these measures. However, the adapted measures must correspond as closely as possible to, and may in no case be more severe than, the original measures imposed.

Once the monitoring country has recognised the decision on supervision measures, it becomes competent for the monitoring of the supervision measures and its national law will govern the supervision.

Taking any subsequent decisions

The country having issued the decision on supervision measures has competence for any subsequent decisions concerning: the renewal, review and withdrawal of the original decision, the modification of the supervision measures and the issuing of an arrest warrant. Any decision on these will be governed by the law of the issuing country.

In case the competent authority of the issuing country modifies the supervision measures, the competent authority of the monitoring country may either:

  • adapt these measures, if they are not compatible with its national law, or
  • refuse to monitor these measures, if they fall outside the scope of this framework decision.

In case the competent authority of the issuing country issues an arrest warrant, the person concerned must be surrendered conforming to the procedures laid down in the framework decision on the European arrest warrant.

Background

The conclusions of the Tampere European Council of 15-16 October 1999 stressed the importance of applying the principle of mutual recognition to pre-trial orders. Consequently, the mutual recognition of supervision measures was taken up in the 2001 programme of measures to implement the principle of mutual recognition in criminal matters.

REFERENCES

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Framework Decision 2009/829/JHA

1.12.2009

1.12.2012

OJ L 294 of 11.11.2009

RELATED ACTS

Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention. (COM(2014) 57 final of 5.2.2014).

The report concludes that the level of implementation is unsatisfactory. The partial and incomplete transposition of the Framework Decisions hampers the application of the principle of mutual recognition in the area of criminal justice. It also breaches the legitimate expectations of EU citizens as they lose a useful means of reducing the negative impact on their lives if they are suspected or accused in another Member State, in particular those citizens who are subject to a European arrest warrant in the pre-trial stage.

Last updated: 17.06.2014

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