02009F0315 — EN — 27.06.2019 — 001.001
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COUNCIL FRAMEWORK DECISION 2009/315/JHA of 26 February 2009 (OJ L 093 7.4.2009, p. 23) |
Amended by:
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Official Journal |
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No |
page |
date |
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DIRECTIVE (EU) 2019/884 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019 |
L 151 |
143 |
7.6.2019 |
COUNCIL FRAMEWORK DECISION 2009/315/JHA
of 26 February 2009
on the organisation and content of the exchange of information extracted from the criminal record between Member States
Article 1
Subject matter
This Framework Decision:
defines the conditions under which a convicting Member State shares information with other Member States on convictions;
defines obligations for the convicting Member State and for the Member State of the convicted person’s nationality (the ‘Member State of the person’s nationality’), and specifies the methods to be followed when replying to a request for information extracted from criminal records;
establishes a decentralised information technology system for the exchange of information on convictions based on the criminal records databases in each Member State, the European Criminal Records Information System (ECRIS).
Article 2
Definitions
For the purposes of this Framework Decision:
‘conviction’ means any final decision of a criminal court against a natural person in respect of a criminal offence, to the extent these decisions are entered in the criminal record of the convicting Member State;
‘criminal proceedings’ means the pre-trial stage, the trial stage itself and the execution of the conviction;
‘criminal record’ means the national register or registers recording convictions in accordance with national law;
‘convicting Member State’ means the Member State where a conviction is handed down;
‘third-country national’ means a person who is not a citizen of the Union within the meaning of Article 20(1) TFEU, or who is a stateless person or a person whose nationality is unknown;
‘fingerprint data’ means the data relating to plain and rolled impressions of the fingerprints of each of a person’s fingers;
‘facial image’ means a digital image of a person’s face;
‘ECRIS reference implementation’ means the software developed by the Commission and made available to the Member States for the exchange of criminal records information through ECRIS.
Article 3
Central authority
Article 4
Obligations of the convicting Member State
If it is known that the convicted person is a national of several Member States, the relevant information shall be transmitted to each of these Member States, even if the convicted person is a national of the Member State within whose territory he was convicted.
Article 5
Obligations of the Member State of the person’s nationality
Article 6
Request for information on convictions
Article 7
Reply to a request for information on convictions
When information extracted from the criminal record is requested under Article 6 from the central authority of the Member State of the person’s nationality for the purposes of criminal proceedings, that central authority shall transmit to the central authority of the requesting Member State information on:
convictions handed down in the Member State of the person’s nationality and entered in the criminal record;
any convictions handed down in other Member States which were transmitted to it after 27 April 2012, in application of Article 4, and stored in accordance with Article 5(1) and (2);
any convictions handed down in other Member States which were transmitted to it by 27 April 2012, and entered in the criminal record;
any convictions handed down in third countries and subsequently transmitted to it and entered in the criminal record.
In respect of information on convictions handed down in another Member State, which have been transmitted to the Member State of the person’s nationality, the central authority of the latter Member State shall in accordance with its national law transmit to the requesting Member State the information which has been stored in accordance with Article 5 (1) and (2) as well as the information which has been transmitted to that central authority by 27 April 2012, and has been entered in its criminal record.
When transmitting the information in accordance with Article 4, the central authority of the convicting Member State may inform the central authority of the Member State of the person’s nationality that the information on convictions handed down in the former Member State and transmitted to the latter central authority may not be retransmitted for any purposes other than that of criminal proceedings. In this case, the central authority of the Member State of the person’s nationality shall, in respect of such convictions, inform the requesting Member State which other Member State had transmitted such information so as to enable the requesting Member State to submit a request directly to the convicting Member State in order to receive information on these convictions.
If such information is requested for any purpose other than that of criminal proceedings, paragraph 2 of this Article shall apply accordingly.
Article 8
Deadlines for replies
When the requested Member State requires further information to identify the person involved in the request, it shall immediately consult the requesting Member State with a view to providing a reply within ten working days from the date the additional information is received.
Article 9
Conditions for the use of personal data
Article 10
Languages
When submitting a request referred to in Article 6(1), the requesting Member State shall transmit to the requested Member State the form set out in the Annex in the official language or one of the official languages of the latter Member State.
The requested Member State shall reply either in one of its official languages or in any other language accepted by both Member States.
Any Member State may, at the time of the adoption of this Framework Decision or at a later date, indicate, in a statement to the General Secretariat of the Council, which are the official languages of the institutions of the European Union that it accepts. The General Secretariat of the Council shall notify the Member States of this information.
Article 11
Format and other ways of organising and facilitating exchanges of information on convictions
When transmitting information in accordance with Article 4(2) and (3), the central authority of the convicting Member State shall transmit the following information:
information that shall always be transmitted, unless, in individual cases, such information is not known to the central authority (obligatory information):
information on the convicted person (full name, date of birth, place of birth (town and State), gender, nationality and – if applicable – previous name(s));
information on the nature of the conviction (date of conviction, name of the court, date on which the decision became final);
information on the offence giving rise to the conviction (date of the offence underlying the conviction and name or legal classification of the offence as well as reference to the applicable legal provisions); and
information on the contents of the conviction (notably the sentence as well as any supplementary penalties, security measures and subsequent decisions modifying the enforcement of the sentence);
information that shall be transmitted if entered in the criminal record (optional information):
the convicted person’s parents’ names;
the reference number of the conviction;
the place of the offence; and
disqualifications arising from the conviction;
information that shall be transmitted, if available to the central authority (additional information):
the convicted person’s identity number, or the type and number of the person’s identification document;
fingerprints, which have been taken from that person; and
if applicable, pseudonym and/or alias name(s); and
facial image.
In addition, the central authority may transmit any other information concerning convictions entered in the criminal record.
Central authorities of Member States shall transmit the following information electronically using ECRIS and a standardised format in accordance with the standards to be laid down in implementing acts:
information referred to in Article 4;
requests referred to in Article 6;
replies referred to in Article 7; and
other relevant information.
If the mode of transmission referred to in paragraph 3 is not available for an extended period of time, the Member State concerned shall inform the other Member States and the Commission.
Article 11a
European Criminal Records Information System (ECRIS)
In order to exchange information extracted from criminal records in accordance with this Framework Decision electronically, a decentralised information technology system based on the criminal records databases in each Member State, the European Criminal Records Information System (ECRIS), is established. It is composed of the following elements:
ECRIS reference implementation;
a common communication infrastructure between central authorities that provides an encrypted network.
To ensure the confidentiality and integrity of criminal records information transmitted to other Member States, appropriate technical and organisational measures shall be used, taking into account the state of the art, the cost of implementation and the risks posed by the processing of information.
The Commission shall bear the costs arising from the implementation, administration, use, maintenance and future development of the common communication infrastructure.
Article 11b
Implementing Acts
The Commission shall lay down the following in implementing acts:
the standardised format referred to in Article 11(3), including as regards information on the offence giving rise to the conviction and information on the content of the conviction;
the rules concerning the technical implementation of ECRIS and the exchange of fingerprint data;
any other technical means of organising and facilitating exchanges of information on convictions between central authorities of Member States, including:
the means of facilitating the understanding and automatic translation of transmitted information;
the means by which information may be exchanged electronically, particularly as regards the technical specifications to be used and, if need be, any applicable exchange procedures.
Article 12
Relationship to other legal instruments
Article 12a
Committee procedure
Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.
Article 13
Implementation
Article 13a
Reporting by the Commission and review
Article 14
Entry into force
This Framework Decision shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
ANNEX
Form referred to in Articles 6, 7, 8, 9 and 10 of the Council Framework Decision 2009/315/JHA on the organisation and content of the exchange of information extracted from the criminal record between Member States
Request for information extracted from the criminal record
Members States are to consult the Manual of Procedures for assistance in filling in this form correctly
(a) Information on the requesting Member State:
Member State:
Central authority(ies):
Contact person:
Telephone (with STD code):
Fax (with STD code):
E-mail address:
Correspondence address:
File reference, if known:
(b) Information on the identity of the person concerned by the request ( *1 ):
Full name (forenames and all surnames)
Previous names:
Pseudonym and/or alias, if any:
Gender: M □F□
Nationality:
Date of birth (in figures: dd/mm/yyyy):
Place of birth (town and State):
Father’s name:
Mother’s name:
Residence or known address:
Person’s identity number or type and number of the person’s identification document:
Fingerprints:
Other available identification information:
(c) Purpose of the request:
Please tick the appropriate box
□ |
criminal proceedings (please identify the authority before which the proceedings are pending and, if available, the case reference number) … … |
□ |
request outside the context of criminal proceedings (please identify the authority before which the proceedings are pending and, if available, the case reference number, while ticking the relevant box):
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Purpose for which the information is requested:
Requesting authority:
□ |
the person concerned does not consent for this information to be divulged (if the person concerned was asked for its consent in accordance with the law of the requesting Member State). |
Contact person for any further information needed:
Name:
Telephone:
E-mail address:
Other information (e.g. urgency of the request):
Reply to the request
Information relating to the person concerned
Please tick the appropriate box
The undersigned authority confirms that:
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there is no information on convictions in the criminal record of the person concerned |
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there is information on convictions entered in the criminal record of the person concerned; a list of convictions is attached |
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there is other information entered in the criminal record of the person concerned; such information is attached (optional) |
□ |
there is information on convictions entered in the criminal record of the person concerned but the convicting Member State intimated that the information about these convictions may not be retransmitted for any purposes other than that of criminal proceedings. The request for more information may be sent directly to … (please indicate the convicting Member State) |
□ |
in accordance with the national law of the requested Member State, requests made for any purposes other than that of criminal proceedings may not be dealt with. |
Contact person for any further information needed:
Name:
Telephone:
E-mail address:
Other information (limitations of use of the data concerning requests outside the context of criminal proceedings):
Please indicate the number of pages attached to the reply form:
Done at
on
Signature and official stamp (if appropriate):
Name and position/organisation:
If appropriate, please attach a list of convictions and send the complete package to the requesting Member State. It is not necessary to translate the form or the list into the language of the requesting Member State.
( 1 ) Regulation (EU) 2018/1726 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), and amending Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) No 1077/2011 (OJ L 295, 21.11.2018, p. 99).
( 2 ) Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April 2019 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and amending Regulation (EU) 2018/1726 (OJ L 135, 22.5.2019, p. 1).
( 3 ) OJ C 326, 21.11.2001, p. 1.
( *1 ) To facilitate the identification of the person as much information as possible is to be provided.