32001Y0115(02)

Programme of measures to implement the principle of mutual recognition of decisions in criminal matters

(2001/C 12/02)

INTRODUCTION

The issue of mutual recognition in criminal matters was raised at the Cardiff European Council on 15 and 16 June 1998.

Point 45(f) of the action plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam establishing an area of freedom, security and justice, adopted on 3 December 1998, provides that within two years of entry into force of the Treaty a process should be initiated with a view to facilitating mutual recognition of decisions and enforcement of judgments in criminal matters.

The idea was discussed again at the Tampere European Council in October 1999, which concluded that mutual recognition should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union (paragraphs 33 to 37). At Tampere the European Council also explicitly stated that the principle should apply both to judgments and to other decisions of judicial authorities. It asked the Council and the Commission to adopt, by December 2000, a programme of measures to implement the principle of mutual recognition (see point 37 of the conclusions of the Tampere European Council).

Achievement of this programme of measures has been included in the European Commission's scoreboard for reviewing progress towards the creation of an area of freedom, security and justice in the European Union.

Mutual recognition is designed to strengthen cooperation between Member States but also to enhance the protection of individual rights. It can ease the process of rehabilitating offenders. Moreover, by ensuring that a ruling delivered in one Member State is not open to challenge in another, the mutual recognition of decisions contributes to legal certainty in the European Union.

Implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States have trust in each others' criminal justice systems. That trust is grounded, in particular, on their shared commitment to the principles of freedom, democracy and respect for human rights, fundamental freedoms and the rule of law.

Some forms of mutual recognition are already embodied in the instruments of judicial cooperation adopted, before the Maastricht Treaty, in various forums, and subsequently in the European Union framework.

As far as the recognition of final decisions is concerned, several instruments have been drawn up. They are: the European Convention on the International Validity of Criminal Judgments of 28 May 1970; the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991, adopted in the framework of political cooperation, and the Convention of the European Union on Driving Disqualifications of 17 June 1998.

In addition, the main purpose of transferring sentenced persons as provided for in the Council of Europe Convention of 21 March 1983 is to help towards their rehabilitation and stems from humanitarian considerations. It necessarily implies recognition by the administering State of the decision taken by the sentencing State's court.

Recognition of a decision also means that other States must take that decision into account, i.e. that a person will not be prosecuted again for the same acts and that a final court decision will not be challenged. This principle is covered by the Convention between the Member States of the European Communities on Double Jeopardy signed in the framework of European political cooperation in Brussels on 25 May 1987. The Convention of the Council of Europe on the Transfer of Proceedings in Criminal Matters of 15 May 1972 also contains ne bis in idem rules. The Convention implementing the Schengen Agreement of 14 June 1985 signed on 19 June 1990 also contains rules on the application of the ne bis in idem principle.

In the framework of the European Union, the Convention on the Protection of the European Communities' Financial Interests of 26 July 1995 and the Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union of 26 May 1997 should be mentioned, as should the Convention on Driving Disqualifications adopted on 17 June 1988.

At present, none of these instruments has come into force between all Member States; the instruments adopted or to be adopted in the European Union framework should be ratified by the Member States as soon as possible. At the same time, for the others including the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991 adopted in the framework of political cooperation, more modern mechanisms should be sought, in the form of the most binding of the instruments specified in Article 34 of the Treaty on European Union, and allowing as full as possible a mutual recognition system to be envisaged.

A number of existing instruments offer the States Parties the possibility of choosing either continued enforcement of the decision or its conversion.

The principle of conversion of the decision should be examined to see to what extent it is compatible with the mutual recognition principle enshrined in the Tampere conclusions.

Certain aspects of mutual recognition have not been addressed in an international context, and in particular those concerning pre-trial orders or the taking into account, in producing a court decision, of any foreign criminal judgments, especially in order to assess a person's criminal record and whether he is a persistent offender.

Thus mutual recognition comes in various shapes and must be sought at all stages of criminal proceedings, before, during or after conviction, but it is applied differently depending on the nature of the decision or the penalty imposed.

In each of these areas the extent of the mutual recognition exercise is very much dependent on a number of parameters which determine its effectiveness. These parameters and their content have been identified during discussions in the Council, in particular by the United Kingdom delegation.

They are:

- whether the envisaged measure is of general application or limited to specific offences. A number of measures implementing mutual assistance may be limited to serious crimes,

- whether fulfilment of the double criminality requirement as a condition for recognition is maintained or dropped,

- mechanisms for safeguarding the rights of third parties, victims and suspects,

- the definition of minimum common standards necessary to facilitate application of the principle of mutual recognition, for instance with regard to the competence of the courts,

- whether enforcement of the decision is direct or indirect, and the definition and scope of a validation procedure, if any,

- determination and extent of grounds for refusing recognition, where those grounds are the sovereignty or other essential interests of the requested State or relate to legality,

- whether States have liability arrangements in the event of acquittal.

Depending on the type of decision concerned, how individual parameters are taken into account can vary according to how ambitiously the goal of implementing the principle of mutual recognition of criminal decisions is to be interpreted, unless an autonomous measure has to be taken to arrange for a particular parameter to apply generally.

The programme of measures, which is designed as a package, maps out the different areas in which Member States should focus their efforts in the years ahead in order gradually to achieve mutual recognition of criminal decisions in the European Union.

It should not, however, be seen as a definitive programme, introducing once and for all the mechanisms for mutual recognition of criminal decisions, but rather as a far-reaching, gradual and realistic process. Its aim is to open the way and demonstrate the approach to be used in the areas concerned without setting hard and fast rules concerning the details of future proceedings. By the same token, Member States should not consider that this programme dispenses them from ratifying a number of relevant instruments adopted in other forums. The work under this programme should be based as far as possible, and where appropriate, on the solutions embodied in existing instruments, so as to avoid wasteful duplication of effort.

Lastly, in implementing the programme, measures should be grouped together in a single instrument where it makes sense to do so.

Implementation of this programme, progress with which will need to undergo peer evaluation, is an essential stage of the process.

On 26 July 2000, the Commission submitted a communication to the Council and the European Parliament on mutual recognition of final decisions in criminal matters.

The programme of measures includes the contribution of the Commission and the guidelines evolved at the informal Council of the Ministers for Justice and Home Affairs held in Marseilles on 28 and 29 July 2000.

PROGRAMME OF MEASURES

1. TAKING ACCOUNT OF FINAL CRIMINAL JUDGMENTS ALREADY DELIVERED BY THE COURTS IN ANOTHER MEMBER STATE

1.1. Ne bis in idem

Aim: To strengthen legal certainty in the Union by ensuring that a final conviction handed down by a criminal court in one Member State is not challenged in another Member State. The fact that such a decision has been handed down in one Member State must preclude a further prosecution in another Member State for the acts that have already been judged. This aim has been partially realised in Articles 54 to 57 of the Convention implementing the Schengen Agreement.

In this context, the scope for making reservations allowed under Article 55 of that Convention should be reconsidered, particularly the one whereby a State may declare that it will not be bound by the ne bis in idem principle if "the facts which were the subject of the judgment rendered abroad took place ... in part on its own territory".

Attention should be given to how other types of decision, such as acquittal, can be covered by the ne bis in idem principle, possibly subject to certain reservations.

Finally, the question of decisions taken in a State following penal mediation could also be approached.

Measure 1: Reconsideration of Articles 54 to 57 of the Convention implementing the Schengen Agreement, taken from the Convention between the Member States of the European Communities on Double Jeopardy signed in Brussels on 25 May 1987 with a view to full application of the principle of mutual recognition.

Priority rating: 6.

1.2. Individualised sanctions

Aim: To have a court in one Member State take into account a sentence imposed in another Member State in order to assess the offender's criminal record and use that knowledge when sentencing the offender.

Measure 2: Adoption of one or more instruments establishing the principle that a court in one Member State must be able to take account of final criminal judgments rendered by the courts in other Member States for the purposes of assessing the offender's criminal record and establishing whether he has reoffended, and in order to determine the type of sentence applicable and the arrangements for enforcing it.

Priority rating: 4.

Since, to be effective, this principle implies a knowledge of the foreign sentence, the following should be done:

Measure 3: In order to facilitate the exchange of information, a standard form like that drawn up for the Schengen bodies, translated into all the official Union languages, should be introduced for criminal records applications (see point 49(d) of the action plan of 3 December 1998 on how best to implement the provisions of the Treaty of Amsterdam establishing an area of freedom, security and justice).

Priority rating: 2.

Measure 4: A feasibility study should be carried out to determine how best to ensure, while taking full account of requirements relating to personal freedoms and data protection, that the competent authorities in the European Union are informed of an individual's criminal convictions. Such a study should cover, in particular, the types of conviction that should be concerned and consider which of the following would be the best method: (a) to facilitate bilateral information exchanges; (b) to network national criminal records offices; or (c) to establish a genuine European central criminal records office.

Priority rating: 2.

2. ENFORCEMENT OF PRE-TRIAL ORDERS

2.1. Orders concerning the keeping of evidence and freezing of assets

2.1.1. Orders for the purpose of obtaining evidence

Aim: To ensure that evidence is admissible, to prevent its disappearance and to facilitate the enforcement of search and seizure orders, so that evidence can be quickly secured in a criminal case (point 36 of the conclusions of the Tampere European Council). Article 26 of the European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972 and Article 8 of the Rome Convention of 6 November 1990 on the Transfer of Proceedings in Criminal Matters should be borne in mind.

Measure 5: Seek feasible ways of:

- ensuring that the reservations and declarations provided for in Article 5 of the European Convention on Mutual Assistance of 1959, supplemented by Articles 51 and 52 of the Convention implementing the Schengen Agreements with regard to coercive measures, are not invoked between Member States, in particular in the field of combating organised crime, laundering of proceeds from crime, and financial crime,

- ensuring that the grounds for refusal of mutual aid provided for in Article 2 of the 1959 Convention, supplemented by Article 50 of the Convention implementing the Schengen Agreement, are not invoked between Member States.

Priority rating: 1.

Measure 6: Drawing up of an instrument concerning the recognition of decisions on the freezing of evidence, in order to prevent the loss of evidence located in the territory of another Member State.

Priority rating: 1.

2.1.2. Interim measures with a view to confiscation or to restitution to victims

Aim: To enable the recognition and immediate enforcement of orders freezing assets with a view to confiscation or to restitution to victims of criminal offences.

Measure 7: Drawing up of an instrument on the mutual recognition of orders to freeze assets. This instrument should make it possible, in an emergency, to bypass mutual assistance procedures and to have assets temporarily frozen through enforcement of an order issued by a court in another Member State.

A single instrument could be considered for measures 6 and 7.

Priority rating: 1.

2.2. Orders relating to persons

2.2.1. Arrest warrants

Aim: To facilitate the enforcement of arrest warrants in connection with criminal proceedings. In this connection it is necessary to bear in mind recommendation No 28 of the European Union's strategy for the beginning of the new millennium that consideration should be given to the long-term possibility of the creation of a single European legal area for extradition.

Measure 8: Seek means of establishing, at least for the most serious offences in Article 29 of the Treaty on European Union, handing-over arrangements based on recognition and immediate enforcement of the arrest warrant issued by the requesting judicial authority. Those arrangements should, inter alia, spell out the conditions under which an arrest warrant would be a sufficient basis for the individual to be handed over by the competent requested authorities, with a view to creating a single judicial area for extradition.

Priority rating: 2.

2.2.2. Non-custodial supervision measures

Aim: To ensure cooperation when a person is subject to obligations or supervision as part of judicial supervision pending a court decision.

Measure 9: Catalogue the measures potentially concerned, the methods of supervision ensuring compliance by the individuals to whom they apply, and the penalties applicable in the event of non-compliance.

Priority rating: 3.

Measure 10: On the basis of the above catalogue, consider the adoption of an instrument enabling control, supervision or preventive measures ordered by a judicial authority pending the trial court's decision to be recognised and immediately enforced. This instrument should apply to any person against whom criminal proceedings have been brought in one Member State and who may have gone to another Member State and should specify how such measures would be supervised and the penalties applicable in the event of non-compliance with them.

Priority rating: 5.

2.3. Taking account of decisions to prosecute taken in other Member States

Aim: The growth of international crime has considerably increased the number of cases in which more than one Member State has jurisdiction, under its domestic rules of procedure, to prosecute and judge the same or related offences. It is therefore necessary to facilitate the settlement of conflicting claims to jurisdiction between Member States and, wherever possible, to avoid multiple prosecutions. To that end, a feasibility study should be carried out on the setting up of a central casebook, which would make it possible to avoid bringing charges that would be rejected under the ne bis in idem principle and which would also provide useful information on investigations concerning offences involving the same person.

Measure 11: Drafting of an instrument enabling criminal proceedings to be transferred to other Member States, and encouraging appropriate coordination between the Member States. While taking into account its sphere of competence in this area, one of the tasks of Eurojust is precisely that of "facilitating the proper coordination of national prosecuting authorities" (point 46 of the conclusions of the Tampere European Council). To facilitate coordination, criteria to help determine jurisdiction could be established by reference, inter alia, to the instances of transferred proceedings listed in Article 8 of the European Convention on the Transfer of Proceedings in Criminal Matters, signed in Strasbourg on 15 May 1972.

Priority rating: 4.

Measure 12: Carry out a feasibility study to determine how best to ensure, while taking full account of requirements relating to personal freedoms and data protection, that the competent authorities in the European Union are informed of investigations or prosecutions outstanding in respect of a given individual. Such a study should cover, in particular, the categories of offence potentially concerned and the stage of proceedings at which the information process should start. It should also consider which of the following would be the best method: (a) to facilitate bilateral information exchanges; (b) to network national criminal records offices; or (c) to establish a genuine European central criminal records office.

Priority rating: 2.

3. SENTENCING

3.1. Prison sentences

3.1.1. Recognition and immediate enforcement of a final sentence delivered in a Member State in respect of a national of another Member State if extradition is refused by a State which has declared that it will not extradite its own nationals pursuant to Article 7(2) of the Convention relating to Extradition between the Member States of the European Union of 27 September 1996, on the sole ground that the convicted person is one of its nationals.

Aim: If it is not possible for a Member State to relinquish the principle that it does not extradite its own nationals, to ensure that the sentence for which extradition has been requested is enforced by that Member State in its territory.

Measure 13: Adoption of an additional instrument to the EU Convention relating to Extradition of 27 September 1996 and the European Convention on Extradition of 13 December 1957. Only situations where the transfer of enforcement is requested are covered by Article 3(b) of the Convention between the Member States of the European Communities on the enforcement of foreign criminal sentences signed in Brussels on 13 November 1991. The future instrument could apply a new principle to such situations: "either extradite or enforce the sentence". The instrument should include the practical modalities for enforcing the sentence, for example, continued enforcement or conversion of the sentence.

Priority rating: 3.

Aim: It is necessary to assess international instruments on final sentences involving deprivation of liberty and to see whether such instruments allow full arrangements for mutual recognition.

Measure 14: Assess the extent to which more modern mechanisms make it possible to envisage full arrangements for mutual recognition of final sentences involving deprivation of liberty.

Priority rating: 3.

3.1.2. Transfer of persons intent on fleeing justice after they have been finally sentenced

Aim: To simplify the procedures applying where a person who has been finally sentenced tries to flee justice (point 35 of the conclusions of the Tampere European Council).

Measure 15: Adoption of an instrument abolishing the formal extradition procedure and allowing a person attempting to flee justice after final sentencing to be transferred to the sentencing State in accordance with Article 6 of the Treaty on European Union. Cases in which the transfer procedure could be replaced by continued enforcement of the sentence should be considered. This instrument, introducing the principle "hand over the fugitive or continue the enforcement of the sentence", would be especially aimed at convicted persons who have escaped.

Priority rating: 3.

3.1.4. Transfer of sentenced persons in the interests of social rehabilitation

Aim: To enable a Member State's residents to serve their sentences in their State of residence. In this connection, Article 2 of the Agreement on the application between the Member States of the European Communities of the Council of Europe Convention on the Transfer of Sentenced Persons of 25 May 1987 should be borne in mind.

Measure 16: Adoption of an additional instrument to the European Convention on the Transfer of Sentenced Persons of 21 March 1983 extending that Convention, which applies to the nationals of the States concerned, in order to cover their residents.

Priority rating: 4.

3.2. Fines

Aim: To enable fines imposed on natural and legal persons in one Member State to be levied in another Member State. The provisions adopted in this connection in the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991 should be borne in mind.

Measure 17: Union-wide application of the specific Agreement, drawn up in the Schengen framework, on cooperation in proceedings for road traffic offences and the enforcement of financial penalties imposed in respect thereof, approved by Schengen Executive Committee Decision of 28 April 1999. The substance of that Agreement, which forms part of the Schengen acquis, should be incorporated into a Council act, based on Article 34(2) of the Treaty on European Union, as a new legal instrument.

Priority rating: 1.

Measure 18: Preparation of an instrument enabling the State of residence to levy fines imposed by final decision on a natural or legal person by another Member State. The instrument could provide for fines imposed for criminal offences to be levied automatically or possibly for a simplified validation procedure. It should as far as possible stipulate the procedure applying in the event of non-payment. The proceedings will take into account the differences between EU Member States on the issue of the liability of legal persons.

Priority rating: 2.

3.3. Confiscation

Aim: To improve enforcement in one Member State of a confiscation order, inter alia for the purpose of restititution to a victim of a criminal offence, issued in another Member State, taking into account the existence of the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990.

Measure 19: Examine:

- in particular whether the grounds for refusal of enforcement of a confiscation measure in Article 18 of the 1990 Convention are all compatible with the principle of mutual recognition,

- without prejudice to the Community's powers, how to improve the recognition and immediate enforcement in one Member State of another Member State's decision to protect a victim's interests, where such a decision forms part of a decision imposing a criminal conviction.

Priority rating: 2.

3.4. Disqualifications and similar sanctions

Aim: Gradually to extend the effects of disqualifications throughout the European Union: the effectiveness of certain sanctions in the European context depends on their being recognised and enforced throughout the Union. Account should also be taken of recommendation No 7 of the 1997 action plan on organised crime, which calls on Member States to exclude applicants who have committed offences connected with organised crime from participation in public tender procedures conducted by Member States and by the Community and to reject their applications for subsidies or governmental licences, and of recommendation No 2 of the European Union's strategy for the beginning of the new millennium, which reiterates the suggestion.

Measure 20: Compile a list of the decisions regarding disqualification, prohibition and incapacity common to all Member States, handed down when sentencing a natural or legal person or further thereto.

Priority rating: 2.

Measure 21: Carry out a feasibility study to determine how best to ensure, while taking full account of requirements relating to personal freedoms and data protection, that the competent authorities in the European Union are informed of any disqualification, prohibition or incapacity handed down by the courts in a Member State. The study should also consider which of the following would be the best method: (a) to facilitate bilateral information exchanges; (b) to network national criminal records offices; or (c) to establish a genuine European central criminal records office.

Priority rating: 2.

Measure 22: Draw up one or more instruments enabling the listed disqualifications to be enforced in the sentenced person's Member State of residence and certain disqualifications to be extended to the Union as a whole, at least as regards certain types of offence and disqualification. The question whether a decision to ban a person from entering the territory issued in one Member State should be extended to the entire Union also needs to be dealt with in this context.

Priority rating: 5.

4. POST-SENTENCING FOLLOW-UP DECISIONS

Aim: To ensure that authorities cooperate in dealing with a person who is subject to obligations or undergoing supervision and assistance, in particular persons on probation or parole.

Measure 23: Endeavour to optimise application of the European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders of 30 November 1964. It would be especially useful to determine the extent to which certain reservations and grounds for refusing enforcement could cease to be enforceable as between Member States, if necessary by means of a specific instrument.

Priority rating: 6.

5. PEER EVALUATION

Aim: To establish a mechanism for peer evaluation of the recognition of criminal decisions in order to measure Member States' progress in implementing the proposed measures.

Measure 24: Adopt an instrument enacting the principle of peer evaluation, modelled on the Joint Action of 5 December 1997 establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organised crime. In this connection recommendation No 8 of "Prevention and control of organised crime - A European Union strategy for the beginning of the new millennium" calls on the Council to consider the possibility of supplementing the existing evaluation mechanism with a further mechanism that could be used for the evaluation of specific areas of implementation.

Priority rating: see recommendation No 8.

EXECUTION OF THE PROGRAMME OF MEASURES

It is a delicate matter to set cut-off dates for work to be completed in the European Union: excessively tight deadlines are unrealistic, while overlong completion dates tend to demotivate the Member States.

Therefore, it has been decided to set priorities which at all events will need to be checked against the Institutions' and Member States' resources as well as other ongoing activities.

The priorities have been fixed taking the following parameters into account:

- some measures have, at the time of development of this plan, already been proposed in certain initiatives. They are thus assigned top priority,

- some have already been described as priority measures, either by the Tampere conclusions or at subsequent meetings of the Council of Ministers,

- some measures are feasibility studies. In this case, it may be thought possible to delegate their execution, which will thus not overburden the Council's resources. On the whole, those measures are assigned high priority. For them, full use will have to be made of programmes funded from the Communities' budget,

- finally, account has been taken of the foreseeable positive impact on achieving the objectives assigned by the Treaties.

In view of the importance of the Tampere European Council's conclusions on mutual recognition, it is desirable that substantial progress be made in implementing level 1 and 2 measures before the end of 2002. It is proposed that the Council review progress then.

A: TABLE BY ORDER OF PRIORITY

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B: TABLE BY ORDER OF PRESENTATION OF THE MEASURES

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