Standard training programme in judicial cooperation in criminal matters within the European Union

1. Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last updated: 31.11.2012 The European JudicialTraining Network With the support of the European Union

2. logo of the training organiser Training organised by (name of training organiser) on (date) at (place) Title (of the training) The European JudicialTraining Network With the support of the European Union

3. Module 10Post-sentencing cooperation Version: 3.0 Last updated: 31.10.2012

4. Contents 1.Enforcement of convictions • Financial penalties • Confiscation orders • Custodial sentences • Suspended sentences or alternative sanctions • Disqualifications 2.‘Positive’ taking into account of convictions between Member States of the European Union

5. The enforcement of judgments • Sources: • The Council of Europe Conventions • Conventions between MS • Conventions of 1987 and 1991 in the framework of European Political Cooperation (EPC) • CISA • Convention on Deprivation of the Right to Drive • Framework Decisions on the application of the principle of mutual recognition

6. Financial penalties • The low impact of the Council of Europe Conventions • Low rate of ratification • Multiple grounds for refusal • FD 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties • Main source for the Member States of the European Union

7. Financial penalties System under FD 2005/214/JHA of 24 February 2005 • Scope: final decisions requiring a financial penalty to be paid by a natural or legal person: no later than 5 years after entry into force • Decisions made by a court, or by another authority: conditions and reservations • Concept of financial penalty • Competent authorities and transmission • Direct transmission between designated authorities • Executing authority not necessarily judicial • Decision + certificate • Language requirements • Removal of jurisdiction and limitations

8. Financial penalties • Recognition and enforcement • Expanded list of categories of offences for which there is no longer verification of double criminality • Declarations • Amount to pay • Determination • Allocation • Debiting of amounts paid • Governing law = that of the executing EM • Special cases: amnesty, pardons, review • Limitations on alternative measures • Exchange of information

9. Financial penalties • Grounds for refusal: Articles 7 and 20 • All optional • Correspond to provisions of the FD on the EAW: • Ne bis in idem • Absence of double criminality • Statute of limitations • Territoriality clause • Immunity • Below the age of criminal responsibility

10. Financial penalties • Grounds for refusal • Specific: • Defectivecertificate • Decisions in absentia • Remember: condition in the FD on the EAW • FD 2009/299/JHA of 26 February 2009 • Fine less than €70 • Violation of fundamental rights • Declarations • Obligation of prior consultation in some cases

11. Confiscation orders Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime • Transmission via central authorities • Direct execution or autonomous decision • No removal of jurisdiction • No review of the facts • Procedure according to the law of the requested Party

12. Confiscation orders • ‘Conventional’ grounds for refusal • Contradiction with the fundamental principles • Prejudice to sovereignty, law and order, essential interests, • Absence of double criminality • Measure not provided for concerning this type of offence • Disproportionate

13. Confiscation orders Procedures under FD 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders. • Scope: a final penalty or measure imposed by a court following proceedings in relation to a criminal offence, resulting in the definitive deprivation of property • Natural or legal person • Proceeds or instrumentalities of an offence • Extended powers of confiscation: • Options under FD 2005/214/JHA of 24 February 2005 • Beyond it: Declarations • CARIN network (Decision 2007/845/JHA of 6 December 2007) >

14. Confiscation orders • Competent authorities and transmission • Direct transmission between designated authorities • Identification of the executing MS • Sum of money • Specified property • Habitual residence or registered office • Executing authority not necessarily judicial • Decision + certificate • Language requirements • Removal of jurisdiction and limitations

15. Confiscation orders • Recognition and enforcement • List of categories of offences for which there is no longer verification of double criminality • That of the FD on the EAW). • Governing law = that of the executing EM, but: • Conversion must be provided for by 2 laws • Alternative measures with consent of the issuing MS • Amnesty and pardon • Legal remedies • Disposal of confiscated property • Supplementary rule on the distribution of confiscated money • Cultural property • Restitution to rightful owners: not laid down.

16. Confiscation orders • Grounds for refusal: Articles 7 and 20 • All optional • Corresponding to provisions of the FD on financial penalties: • Absence of double criminality • Statute of limitations • Immunity • Decisions in absentia • Defective certificate

17. Confiscation orders • Grounds for refusal • Specific • Territoriality clause: only concerns the predicate offence in the case of confiscation following a conviction for money laundering • Ne bis in idem: conditions for enforcement disappeared • Rights of bona fide third parties render enforcement impossible • Decision delivered based on extended powers not provided for by FD 2005/212/JHA • ‘Conversion’ if decision delivered based on extended powers not provided for by FD 2005/212/JHA, but which are not available to the executing MS • Age of criminal responsibility: not a ground for refusal • Violation of fundamental rights: not expressly provided for • Consultation obligations

18. Custodial sentences Council of Europe Convention of 28 May 1970 Council of Europe Convention of 21 March 1983 on the Transfer of Sentenced Persons • At the initiative of either State, but optional • Transmission via central authorities • Conditions: • The judgment must be final • At least 6 months remaining to serve • Double criminality • Executing State is that of nationality • Broadening: agreement between the EU MS of 25 May 1987 • Broadening: Convention between the EU MS of 13 November 1991

19. Custodial sentences • Consent of the sentenced person • Derogation: additional protocol of 18 December 1997 • Derogation: Articles 67 to 69 of the Convention Implementing the Schengen Agreement • Governing law • Continuation of the enforcement: Executing State bound by the penalty, unless not compatible, in which case possibility to adapt • Or conversion: Executing State bound by the findings as to the facts • Penalty cannot be increased • Deduction of the period of deprivation of liberty already served

20. Custodial sentences FD 2008/909/JHA of 27 November 2008 • Scope • A final decision of a court imposing a custodial sentence in respect of a criminal offence following a criminal conviction, for a limited or unlimited period. • To facilitate the social rehabilitation of the sentenced person • falls to issuing MS to judge this • Situations covered by the FD on the EAW • Enforcement of the conviction instead of surrender (Art. 4(6)) • Condition of return after conviction (Art. 5(3)) • Transitional arrangements: judgments pre-dating 5-12-2011

21. Custodial sentences • Competent authorities and transmission • Direct transmission between designated authorities • Judgment + certificate • Language requirements • Person must be in the issuing or executing MS • Identification of the executing MS • Either that of the nationality of the sentenced person, where they live • Or that of the one to which they will be deported • Or any other consenting MS • declarations • Removal of jurisdiction

22. Custodial sentences • Consent of the person, unless the executing MS is: • that of their nationality, and they live there • Transitional arrangements for Poland • that of the nationality to which they will be deported • or that of the nationality they fled to following the criminal proceedings or conviction

23. Custodial sentences • Recognition and enforcement • List of categories of offences for which there is no longer verification of double criminality • That of the FD on the EAW • Declarations • Governing law = that of the executing EM • Incompatible duration: reduction to the maximum provided for by the law of the executing MS • Incompatible nature: sentence as close as possible • Amnesty and pardon • Possibility of providing for early release, taking into account the provisions of the law of the issuing MS • Speciality rule

24. Custodial sentences • Grounds for refusal: Article 9 • All optional • Corresponding to the provisions of the FD on confiscations • Absence of double criminality • Ne bis in idem • Immunity • Decisions in absentia • Defective certificate

25. Custodial sentences • Grounds for refusal • Specific • Statute of limitations: even if the executing MS does not have competence • Territorialityclause: only the 1st scenario, and on an exceptional basis if the majority of facts occurred in the territory of the executing MS • Below the age of criminal responsibility • Duration of the sentence to be served is less than six months • Issuing MS’s refusal to waive the speciality rule • Measure of psychiatric or health care that cannot be executed • Violation of fundamental rights: not expressly provided for • Consultation obligations

26. Suspended sentences/alternative sanctions Council of Europe Convention of 30 November 1964 on the Supervision of Conditionally Sentenced or Conditionally Released Offenders • Low impact: only ratified by 12 MS • Three options: • Supervision • Supervision and enforcement • Enforcement of the conviction • ‘Conventional’ grounds for refusal

27. Suspended sentences/alternative sanctions FD 2008/947/JHA of 27 November 2008 • Scope • Final decisions rendered by a court establishing that a natural person has committed a criminal offence, and imposing: • Asentence with conditional release due to the adoption of probation measures • Asuspended sentence • Ajudgment deciding on the deferred imposition of the sentence, due to the adoption of probation measures • An alternative sanction. • Objectives: • Facilitating social rehabilitation • Improving the protection of victims • Facilitating the application of probation measures and alternative sanctions

28. Suspended sentences/alternative sanctions • Probation measures • Eleven measures identified • Possibility for Member States to specify other measures they are prepared to supervise. • Competent authorities and transmission • Direct transmission between designated authorities • Judgment + certificate • Language requirements • Identification of the executing MS • That of ordinary lawful residence if the person is there or wishes to return there • At the request of the sentenced person, any other consenting MS • Removal of jurisdiction and limitations

29. Suspended sentences/alternative sanctions • Recognition and enforcement • List of categories of offences for which there is no longer verification of double criminality • That of the FD on the EAW. • Declarations • Governing law = that of the executing EM • Incompatible duration or nature: measure as close as possible • Possibility in case of non-compliance to modify the obligation, revoke the suspension or impose a prison sentence • declarations • Informing the issuing authority, which may withdraw the certificate • Amnesty and pardon

30. Suspended sentences/alternative sanctions • Grounds for refusal: Article 11 • All optional • Corresponding to the provisions of the FD on custodial sentences • Absence of double criminality • Ne bis in idem • Immunity • Decisions in absentia • Defective certificate • Statute of limitations if the facts fall within the jurisdiction of the executing MS • Territorialityclause: only the 1st scenario, and on an exceptional basis if the majority of facts occurred in the territory of the executing MS • Below the age of criminal responsibility • Duration of the measure or sentence less than 6 months • Measure of psychiatric or health care that cannot be supervised • Violation of fundamental rights: not expressly provided for • No refusal based on non-removal of the speciality rule

31. Disqualifications • Low impact of the conventional instruments • Convention of 3 June 1976 on the International Effects of Deprivation of the Right to Drive a Motor Vehicle • Council Act of 17 June 1998 drawing up the Convention on Driving Disqualifications • Outlook: • Communication from the Commission (COM (2006) 73 of 21 February 2006) • Stockholm Programme

32. Taking account • European Convention of 1970 May 1970 on the International Validity of Criminal Judgments: • low impact • Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the EU in the course of new criminal proceedings • Principle of equivalence • Taken into account in all stages of the criminal proceedings • Exchange of information extracted from criminal records • FD 2009/315/JHA of 26 February 2009 • Council Decision 2009/316/JHA (ECRIS) The contents and opinions expressed herein are solely that of the EJTN, and the European Commission cannot be held responsible for any use that may be made of these contents and opinions.