Judicial co-operation in criminal matters: mutual recognition of final decisions in criminal matters

There is no strictly European criminal law: the criminal law of the Member States has not been harmonised. The national courts apply their own national criminal law to the facts before them and base their judgments on that source of law. The application of a final judgment in a criminal matter in a Member State other than the one in which the judgment was given often encounters administrative barriers, slow procedures and even a lack of trust between Member States. The Commission is accordingly exploring the scope for applying the principle of mutual recognition to final decisions in criminal matters.

ACT

Commission communication to the Council and the European Parliament: Mutual recognition of final decisions in criminal matters [COM(2000) 495 final - not published in the Official Journal].

SUMMARY

there is no strictly European criminal law: the criminal law of the Member States has not been harmonised. The national courts apply their own national criminal law to the facts before them and base their judgments on that source of law. The application of a final judgment in a criminal matter in a Member State other than the one in which the judgment was given often encounters administrative barriers, slow procedures and even a lack of trust between Member States. The Commission is accordingly exploring the scope for applying the principle of mutual recognition to final decisions in criminal matters.

Traditional judicial cooperation in criminal matters is based on a variety of international legal instruments, which are overwhelmingly characterised by the "request" principle: one sovereign state makes a request to another sovereign state, which then decides whether or not to comply with it. This traditional system is both slow and complex, which is why the Tampere European Council in October 1999 decided that the principle of mutual recognition should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union. Enhanced mutual recognition in these fields would facilitate cooperation between authorities and at the same time improve the judicial protection of individual rights. The European Council asked the Council and the Commission to adopt a programme of measures by December 2000 aimed at implementing this principle.

Mutual recognition: equivalence and trust between Member States

By examining the prospects for applying the principle of mutual recognition to final decisions in criminal matters the Commission Communication provides a partial response to this request.

The Commission begins by asserting that the principle of mutual recognition is founded on notions of equivalence and trust. On this basis, a decision taken by an authority in one Member State may be accepted as it stands in another state. Mutual recognition often goes hand in hand with a certain degree of standardisation of states' procedures, but may equally render standardisation unnecessary.

The Commission then defines the type of decisions to which its Communication refers: they are decisions under criminal law (all rules laying down sanctions or measures to rehabilitate offenders) which are final (i.e. decisions by courts and certain administrative tribunals, the outcome of mediation procedures and agreements between suspects and prosecution services).

Several conventions adopted by the Council of Europe or the European Union, or under the Schengen Agreement, provide for application of the principle of mutual recognition to certain decisions in criminal matters, but these instruments have not yet entered into force in all of the Member States. Moreover, they are not a sufficient basis on which to establish a complete system of mutual recognition. There is thus a need for further, comprehensive analysis of the application of this principle.

Before examining the various aspects of the principle of mutual recognition and how it could theoretically be applied, the Commission considered the question of information.

In order to be able to recognise a decision taken in another Member State, one must first of all know that such a decision exists, and what its content is. At present there is no European register of judgments that could be used for this purpose. The Commission believes a two-stage approach could be used. In the first stage, standard multilingual forms would be introduced to enable practitioners in each Member State to obtain information from the authorities of other Member States about whether a person they are dealing with has a criminal record. In the second stage, a genuine European criminal register would be created. This would be accessible electronically and would enable the investigating authorities to check directly whether the person in question was already the subject of any other proceedings. Before such a register can be set up, however, several practical and legal questions have to be resolved (responsibility for entering and updating information, data protection, right of access, differences between national legislation on criminal records, extent to which data entered in the system by the different Member States should be harmonised, etc.).

The various aspects of mutual recognition

Recognising a decision means, first and foremost, enforcing it. A decision by another Member State may be applied directly (by making the decision fully and directly enforceable throughout the Union), or indirectly (which would require the foreign decision to be converted into a national decision). In the Commission's view, however, the Tampere conclusions indicate a preference for direct enforcement.

Recognising a decision also means taking it into account. A decision taken in another Member State could have different effects, connected with the principle of ne bis in idem or the concept of recidivism.

The principle of ne bis in idem means that once a person has been the subject of a decision on the facts and legal norms in a criminal case he or she should not be the subject of further decisions on the same matter. Ne bis in idem raises several questions of interpretation, given that it is not defined in the same way by the various international legal instruments which refer to it. The Commission suggests that the principle would become less important if there were a register of ongoing proceedings and final judgments in criminal matters and a system of EU-wide powers.

Recognition of a decision taken in a criminal case in another Member State could also affect the severity of the sentence. If it transpired that a person who committed a crime already had a conviction for the same type of offence in another Member State this might be regarded as an aggravating circumstance warranting a stiffer sentence. Taking into account a previous conviction should not, however, work only to the detriment of the offender. Criminal law in several Member States contains mechanisms to ensure that the penalties imposed on recidivists are not strictly cumulative.

The scope of mutual recognition as regards the offence and the offender

Given that the rules of criminal law on the treatment of minors and the mentally disabled differ considerably from one Member State to the next, decisions relating to such persons might be excluded from the scope of mutual recognition, at least for the time being. As to the definition of a minor, this could be left to the discretion of the Member State concerned. It might, however, be necessary to specify a minimum age.

As regards the offences covered by mutual recognition, the Commission believes that there are procedural problems associated with both applying and abandoning the principle of dual criminality (whereby only those decisions relating to behaviour criminalised in both Member States should be recognised). Such problems could also be resolved by establishing an EU-wide system of jurisdiction. The Commission takes the view that there is no reason to confine mutual recognition to only the most serious forms of crime.

The application of mutual recognition to sanctions

In this area the Commission stresses the need to accommodate two sets of interests: the interest of the Member state where the sentence was passed in having it enforced, and the interest of the person convicted, who should retain a reasonable chance of social rehabilitation. Mutual trust must work both ways: the Member State enforcing the sentence must have confidence in the decision of the Member State that issued it, and the issuing Member State must have confidence in the way the implementing Member State enforces the sentence.

The Commission then looks into the possibilities for applying the principle of mutual recognition to other types of penalties (fines, confiscation, alternative sanctions, disqualifications), each of which raises different questions.

The protection of individual rights

The legal protection of individual rights (treatment of suspects, rights of the defence, etc.) should not, according to the Commission, suffer as a result of the application of the principle of mutual recognition. On the contrary, the safeguards should be strengthened throughout the process.

Although the 1950 European Convention on Human Rights already provides guarantees in this field, certain specific aspects of procedural law might also be clarified further, such as the circumstances in which legal advice and interpretation are provided.

Aspects of procedural law requiring common minimum standards

In certain cases it may be necessary to set common minimum standards to facilitate the application of the principle of mutual recognition. This applies particularly to the protection of the accused with regard to the rights of the defence, and the protection of the victims of crime with regard to the possibility of being heard.

The validation procedure

Ideally, there should be no need for decisions taken in another Member State to be validated, but in practice direct and automatic application of the principle of mutual recognition will be impossible in most cases. A Member State wishing to enforce a decision taken in another Member State will at least have to translate the decision and check that it was issued by an authority competent to do so.

Preventing conflicts of jurisdiction between Member States

The Commission suggests two mechanisms which might help to settle conflicts of jurisdiction between Member States: coordination (a new body, or an existing organisation such as the Court of Justice or EUROJUST would decide which Member State had jurisdiction in each individual case, on the basis of predetermined priority criteria) and the establishment of rules of exclusive jurisdiction within the Union.

This solution would have the advantage of preventing not only positive conflicts of jurisdiction (where two or more Member States want to hear a particular case) but also negative conflicts (where no Member States wants to hear it). In some cases, however (crimes against national interests, breaches of national security legislation, etc.), Member States will be unwilling to surrender jurisdiction, regardless of where the offences in question were committed. Given the difficulty of establishing special jurisdiction for such questions, an exemption from the principle of mutual recognition might have to be considered.

RELATED ACTS

Programme of measures to implement the principle of mutual recognition of decisions in criminal matters - Official Journal C 12 of 15.01.2001. Implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States have trust in each others' criminal justice systems. This programme sets out to determine the priorities for establishing a genuine European law-enforcement area. Mutual recognition must be sought at all stages of criminal proceedings. To ensure maximum effectiveness, the programme defines a series of parameters which Member States must take into account in implementing the conclusions of the Tampere European Council. The parameters, identified during discussions in the Council and in particular by the United Kingdom delegation, are as follows:

• the fact that mutual recognition may be limited to serious crimes;
• whether fulfilment of the double criminality requirement as a condition for recognition is maintained or dropped;
• the establishment of mechanisms for safeguarding the rights of third parties and victims;
• the definition of common minimum standards to facilitate mutual recognition;
• whether enforcement of the decision is direct or indirect;
• determination of grounds for refusing recognition, where those grounds are the sovereignty or other essential interests of the Member State;
• whether States have liability arrangements in the event of acquittal.

The degree of ambition in implementing the principle of mutual recognition may be determined by whether or not individual parameters are taken into account. The programme does not claim to be definitive, but sets out to incorporate the guidelines laid down at the informal Council meeting of Justice and Home Affairs Ministers held in Marseille on 28 and 29 July 2000.

For the principle of mutual recognition to be implemented, certain questions must be taken on board, such as:

• application of the principle of ne bis in idem;
• individualised sanctions taking into account the offender's criminal record and whether he has reoffended;
• orders concerning the keeping of evidence and freezing of assets;
• application of interim measures with a view to confiscation or to restitution to victims;
• application of orders relating to persons (arrest warrants, non-custodial supervision measures);
• taking account of decisions to prosecute taken in other Member States;
• application of prison sentences, fines, confiscation of property or disqualification from driving;
• transfer of persons intent on fleeing justice after they have been finally sentenced;
• transfer of sentenced persons to their Member State of residence in the interests of social rehabilitation;
• all post-sentencing follow-up decisions (supervision measures, probation or parole).

Given the difficulty in setting precise deadlines for the work to be accomplished, the programme merely sets priorities. Nevertheless, the Council is invited to review progress before the end of 2002.

See also

For further information please consult the following:

• Reinforcing mutual trust between Member States in the mutual recognition of judgments in criminal matters
• European Commission, Directorate-General Justice, Freedom and Security - Criminal justice and mutual recognition of judgments - political and legal review (Community legislation, proposals, political documents etc.)

Last updated: 13.09.2005