This document is an excerpt from the EUR-Lex website
Document 02008F0909-20090328
Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union
Consolidated text: Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union
Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union
ELI: http://data.europa.eu/eli/dec_framw/2008/909/2009-03-28
02008F0909 — EN — 28.03.2009 — 001.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
COUNCIL FRAMEWORK DECISION 2008/909/JHA of 27 November 2008 (OJ L 327 5.12.2008, p. 27) |
Amended by:
|
|
Official Journal |
||
No |
page |
date |
||
L 81 |
24 |
27.3.2009 |
COUNCIL FRAMEWORK DECISION 2008/909/JHA
of 27 November 2008
on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union
CHAPTER I
GENERAL PROVISIONS
Article 1
Definitions
For the purposes of this Framework Decision:
‘judgment’ shall mean a final decision or order of a court of the issuing State imposing a sentence on a natural person;
‘sentence’ shall mean any custodial sentence or any measure involving deprivation of liberty imposed for a limited or unlimited period of time on account of a criminal offence on the basis of criminal proceedings;
‘issuing State’ shall mean the Member State in which a judgment is delivered;
‘executing State’ shall mean the Member State to which a judgment is forwarded for the purpose of its recognition and enforcement.
Article 2
Determination of the competent authorities
Article 3
Purpose and scope
CHAPTER II
RECOGNITION OF JUDGMENTS AND ENFORCEMENT OF SENTENCES
Article 4
Criteria for forwarding a judgment and a certificate to another Member State
Provided that the sentenced person is in the issuing State or in the executing State, and provided that this person has given his or her consent where required under Article 6, a judgment, together with the certificate for which the standard form is given in Annex I, may be forwarded to one of the following Member States:
the Member State of nationality of the sentenced person in which he or she lives; or
the Member State of nationality, to which, while not being the Member State where he or she lives, the sentenced person will be deported, once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure taken consequential to the judgment; or
any Member State other than a Member State referred to in (a) or (b), the competent authority of which consents to the forwarding of the judgment and the certificate to that Member State.
Where there has been no consultation, such an opinion may be presented without delay after the transmission of the judgment and the certificate. The competent authority of the issuing State shall consider such opinion and decide whether to withdraw the certificate or not.
Each Member State may, either on adoption of this Framework Decision or later, notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, its prior consent under paragraph 1(c) is not required for the forwarding of the judgment and the certificate:
if the sentenced person lives in and has been legally residing continuously for at least five years in the executing State and will retain a permanent right of residence in that State, and/or
if the sentenced person is a national of the executing State in cases other than those provided for in paragraph 1(a) and (b).
In cases referred to in point (a), permanent right of residence shall mean that the person concerned:
Article 5
Forwarding of the judgment and the certificate
Article 6
Opinion and notification of the sentenced person
The consent of the sentenced person shall not be required where the judgment together with the certificate is forwarded:
to the Member State of nationality in which the sentenced person lives;
to the Member State to which the sentenced person will be deported once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure consequential to the judgment;
to the Member State to which the sentenced person has fled or otherwise returned in view of the criminal proceedings pending against him or her in the issuing State or following the conviction in that issuing State.
The opinion of the sentenced person shall be taken into account when deciding the issue of forwarding the judgement together with the certificate. Where the person has availed him or her self of the opportunity provided in this paragraph, the opinion of the sentenced person shall be forwarded to the executing State, in particular with a view to Article 4(4). If the sentenced person stated his or her opinion orally, the issuing State shall ensure that the written record of such statement is available to executing State.
Article 7
Double criminality
The following offences, if they are punishable in the issuing State by a custodial sentence or a measure involving deprivation of liberty for a maximum period of at least three years, and as they are defined by the law of the issuing State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to recognition of the judgment and enforcement of the sentence imposed:
Article 8
Recognition of the judgment and enforcement of the sentence
Article 9
Grounds for non-recognition and non-enforcement
The competent authority of the executing State may refuse to recognise the judgment and enforce the sentence, if:
the certificate referred to in Article 4 is incomplete or manifestly does not correspond to the judgment and has not been completed or corrected within a reasonable deadline set by the competent authority of the executing State;
the criteria set forth in Article 4(1) are not met;
enforcement of the sentence would be contrary to the principle of ne bis in idem;
in a case referred to in Article 7(3) and, where the executing State has made a declaration under Article 7(4), in a case referred to in Article 7(1), the judgment relates to acts which would not constitute an offence under the law of the executing State. However, in relation to taxes or duties, customs and exchange, execution of a judgment may not be refused on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing State;
the enforcement of the sentence is statute-barred according to the law of the executing State;
there is immunity under the law of the executing State, which makes it impossible to enforce the sentence;
the sentence has been imposed on a person who, under the law of the executing State, owing to his or her age, could not have been held criminally liable for the acts in respect of which the judgment was issued;
at the time the judgment was received by the competent authority of the executing State, less than six months of the sentence remain to be served;
according to the certificate provided for in Article 4, the person did not appear in person at the trial resulting in the decision, unless the certificate states that the person, in accordance with further procedural requirements defined in the national law of the issuing State:
in due time:
or
being aware of the scheduled trial had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;
or
after being served with the decision and being expressly informed of the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed:
the executing State, before a decision is taken in accordance with Article 12(1), makes a request, in accordance with Article 18(3), and the issuing State does not consent, in accordance with Article 18(2)(g), to the person concerned being prosecuted, sentenced or otherwise deprived of his or her liberty in the executing State for an offence committed prior to the transfer other than that for which the person was transferred;
the sentence imposed includes a measure of psychiatric or health care or another measure involving deprivation of liberty, which, notwithstanding Article 8(3), cannot be executed by the executing State in accordance with its legal or health care system;
the judgment relates to criminal offences which under the law of the executing State are regarded as having been committed wholly or for a major or essential part within its territory, or in a place equivalent to its territory.
Article 10
Partial recognition and enforcement
Article 11
Postponement of recognition of the judgment
The recognition of the judgment may be postponed in the executing State where the certificate referred to in Article 4 is incomplete or manifestly does not correspond to the judgment, until such reasonable deadline set by the executing State for the certificate to be completed or corrected.
Article 12
Decision on the enforcement of the sentence and time limits
Article 13
Withdrawal of the certificate
As long as the enforcement of the sentence in the executing State has not begun, the issuing State may withdraw the certificate from that State, giving reasons for doing so. Upon withdrawal of the certificate, the executing State shall no longer enforce the sentence.
Article 14
Provisional arrest
Where the sentenced person is in the executing State, the executing State may, at the request of the issuing State, before the arrival of the judgment and the certificate, or before the decision to recognise the judgment and enforce the sentence, arrest the sentenced person, or take any other measure to ensure that the sentenced person remains in its territory, pending a decision to recognise the judgment and enforce the sentence. The duration of the sentence shall not be aggravated as a result of any period spent in custody by reason of this provision.
Article 15
Transfer of sentenced persons
Article 16
Transit
Article 17
Law governing enforcement
Article 18
Specialty
Paragraph 1 shall not apply in the following cases:
when the person having had an opportunity to leave the territory of the executing State has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
when the offence is not punishable by a custodial sentence or detention order;
when the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
when the sentenced person could be liable to a penalty or a measure not involving deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure in lieu may give rise to a restriction of his or her personal liberty;
when the sentenced person consented to the transfer;
when the sentenced person, after his or her transfer, has expressly renounced entitlement to the specialty rule with regard to specific offences preceding his or her transfer. Renunciation shall be given before the competent judicial authorities of the executing State and shall be recorded in accordance with that State’s national law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;
for cases other than those mentioned under points (a) to (f), where the issuing State gives its consent in accordance with paragraph 3.
Article 19
Amnesty, pardon, review of judgment
Article 20
Information from the issuing State
Article 21
Information to be given by the executing State
The competent authority of the executing State shall without delay inform the competent authority of the issuing State by any means which leaves a written record:
of the forwarding of the judgment and the certificate to the competent authority responsible for its execution in accordance with Article 5(5);
of the fact that it is in practice impossible to enforce the sentence because after transmission of the judgment and the certificate to the executing State, the sentenced person cannot be found in the territory of the executing State, in which case there shall be no obligation on the executing State to enforce the sentence;
of the final decision to recognise the judgment and enforce the sentence together with the date of the decision;
of any decision not to recognise the judgment and enforce the sentence in accordance with Article 9, together with the reasons for the decision;
of any decision to adapt the sentence in accordance with Article 8(2) or (3), together with the reasons for the decision;
of any decision not to enforce the sentence for the reasons referred to in Article 19(1) together with the reasons for the decision;
of the beginning and the end of the period of conditional release, where so indicated in the certificate by the issuing State;
of the sentenced person’s escape from custody;
of the enforcement of the sentence as soon as it has been completed.
Article 22
Consequences of the transfer of the sentenced person
Article 23
Languages
The decision on recognition of the judgment and enforcement of the sentence may be postponed until the translation has been transmitted by the issuing State to the executing State or, where the executing State decides to translate the judgment at its own expenses, until the translation has been obtained.
Article 24
Costs
Costs resulting from the application of this Framework Decision shall be borne by the executing State, except for the costs of the transfer of the sentenced person to the executing State and those arising exclusively in the sovereign territory of the issuing State.
Article 25
Enforcement of sentences following a European arrest warrant
Without prejudice to Framework Decision 2002/584/JHA, provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible with provisions under that Framework Decision, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence in cases pursuant to Article 4(6) of that Framework Decision, or where, acting under Article 5(3) of that Framework Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State concerned, so as to avoid impunity of the person concerned.
CHAPTER III
FINAL PROVISIONS
Article 26
Relationship with other agreements and arrangements
Without prejudice to their application between Member States and third States and their transitional application according to Article 28, this Framework Decision shall, from 5 December 2011, replace the corresponding provisions of the following conventions applicable in relations between the Member States:
Article 27
Territorial application
This Framework Decision shall apply to Gibraltar.
Article 28
Transitional provision
Article 29
Implementation
Article 30
Entry into force
This Framework Decision shall enter into force on the day of its publication in the Official Journal of the European Union.
ANNEX II
NOTIFICATION OF THE SENTENCED PERSON
You are hereby notified of the decision of … (competent authority of the issuing State) to forward the judgment of … (competent court of the issuing State) dated … (date of judgment) … (reference number; if available) to … (executing State) for the purpose of its recognition and enforcement of the sentence imposed therein in accordance with the national law implementing Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.
The enforcement of the sentence will be governed by the law of … (executing State). The authorities of that State will be competent to decide on the procedures for enforcement and to determine all the measures relating thereto, including the grounds for early or conditional release.
The competent authority of … (executing State) has to deduct the full period of deprivation of liberty already served in connection with the sentence from the total duration of deprivation of liberty to be served. An adaptation of the sentence by the competent authority of … (executing State) may take place only if it is incompatible with the law of that State in terms of its duration or nature. The adapted sentence must not aggravate the sentence passed in … (issuing State) by its nature or duration.
( 1 ) OJ C 12, 15.1.2001, p. 10.
( 2 ) OJ C 53, 3.3.2005, p. 1.
( 3 ) OJ L 190, 18.7.2002, p. 1.
( 4 ) OJ L 251, 3.10.2003, p. 12.
( 5 ) OJ L 16, 23.1.2004, p. 44.
( 6 ) OJ L 158, 30.4.2004, p. 77.
( 7 ) OJ L 76, 22.3.2005, p. 16.
( 8 ) OJ L 328, 24.11.2006, p. 59.
( 9 ) OJ L 191, 7.7.1998, p. 4.
( 10 ) OJ C 316, 27.11.1995, p. 49.