Annexes to COM(2014)312 - Implementation of Framework Decision 2008/675/JHA on taking into account of convictions in the Member States of the EU in the course of new criminal proceedings

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dossier COM(2014)312 - Implementation of Framework Decision 2008/675/JHA on taking into account of convictions in the Member States of the EU in ...
document COM(2014)312 EN
date June  2, 2014
Annex.

Framework Decisions have to be implemented by Member States as is the case with any other element of the EU acquis. By their nature, Framework Decisions are binding upon the Member States as to the result to be achieved, but it is a matter for the national authorities to choose the form and method of implementation. Framework Decisions do not entail direct effect. However, the principle of conforming interpretation is binding in relation to Framework Decisions adopted in the context of Title VI of the former Treaty on European Union.

While the lack of implementation in one Member State does not have direct consequences for the other Member States, in the interests of justice it remains important that a court in one Member State is able to take account of final criminal judgments rendered by the courts in other Member States. This approach is underpinned by ECRIS, a decentralised information technology system which provides for an efficient circulation of information on convictions handed down against Member States' nationals by other Member States. The correct application of the principle of equivalence and the need to ensure that, as a matter of principle, the legal effects of foreign convictions are systematically equivalent to the legal effects of domestic convictions, are important in the European area of justice.

2. Evaluation of the implementation by the Member States of the Framework Decision

2.1. Preliminary evaluation of the transposition laws received

This report assesses the extent to which Member States have taken the necessary measures to comply with the Framework Decision. When assessing the level of transposition of this instrument in national criminal law, the Commission focuses in particular on the obligations under Article 3, namely that principle of equivalence was duly introduced and legal effects of previous convictions are attached to foreign previous convictions in the national criminal justice systems, in accordance with national law.

In general, the Member States have chosen a mostly similar approach for transposing the Framework Decision into their national legislation and criminal law. Most Member States merely had to amend their law governing this issue, whereas a few Member States adopted separate implementation acts as transposing instruments.

The implementation of the Framework Decision is  hampered by the fact that 6 Member States have not yet complied with their obligation under this Framework Decision.

2.2. Evaluation of selected key provisions of the Framework Decision

2.2.1. Definition of conviction

Not all Member States have formally transposed the definition of "conviction" as "any final decision of a criminal court establishing guilt of a criminal offence." Several Member States did not provide an explicit definition of what they consider to be a "conviction" for the purposes of this Framework Decision (AT, BG, DK, EL, FR, IE, LU, LV, RO, SE, SI, SK and UK). However these Member States apply the general principles and definitions of their criminal law. For example, LV and RO merely referred to 'recidivism' instead of defining previous convictions explicitly.

Inaccurate use of the definition of 'previous conviction' can lead to differences in the scope of application of this Framework Decision – namely final decisions – and consequently create lack of legal certainty for individuals. Moreover, the requirement of this Framework Decision to take only 'final' decisions into account, should also be seen in the light of procedural rights guarantees for suspects and accused persons in criminal proceedings throughout the Union. By limiting the scope to final decisions only, the Framework Decision fully respects and supports the principle of the presumption of innocence, which lies at the heart of fundamental, procedural rights protection in criminal proceedings.

FI and UK law explicitly include unconditional prison sentences, community service orders, fines or equivalent sanctions as a type of decision to be considered "conditions under which previous convictions are taken into account."

DK, FI, HR, LU, LV, SE and SI have not set any additional requirements for the taking into account of previous convictions. In those Member States, courts can simply give the same weight to convictions handed down in another Member State as they do to convictions handed down in their own state (principle of judicial discretion). This approach can be considered 'mutual recognition friendly', since it reflects a solid trust in final convictions and criminal records systems in other Member States.

2.2.2. Requirements for taking into account foreign convictions

In most Member States, competent authorities have to apply a dual criminality requirement (as required by their implementing laws and measures) when taking into account previous convictions in individual cases (AT, BG, CZ, CY, EL, FR, HU, NL, PL, RO, SK and UK). This means that the courts can only take a previous conviction into account, if this conviction was based on a crime that is also recognised and punishable under the law of that Member State.

The use of the double criminality check is justified under the Framework Decision as it merely requires States to "take into account" convictions handed down in another Member State to the same extent as previous national convictions and that "equivalent legal effects are attached to them". Hence, if certain acts, on which a previous conviction is based, are not punishable in a certain Member State, it will be impossible for the courts to "attach equivalent legal effects" as there would have been no legal effects at all if it concerned a purely domestic case.[3]

The wording of HU law slightly differs in this respect: sentences imposed or measures stemming from a decision of a foreign court "cannot be contrary to HU law". NL law uses the term "similar offences". The NL law stipulates that a similar offence can be an offence under foreign law "which may have been formulated differently, but which is aimed at protecting the same legal interests and thus belongs to the same category of offences as the NL offence to which the reoffending provision relates". In contrast to this approach, some Member States opted for an approach based on legal qualification, as it is the case for FR. When assessing the double criminality aspect of previous convictions, the qualification of the fact is determined in relation to offences defined under FR law and the sentences will be measured according to equivalent FR sentences that are prescribed by FR law. SK law requires double criminality or that decisions of courts of other Member States in criminal matters may be enforced or have equivalent legal effects in SK only when this is provided for by an international treaty or an act.

Some Member States have set more conditions which have to be fulfilled in addition to the dual criminality requirement. An example is the obligation that, in addition to dual criminality, sufficient information must be available about the previous conviction (CY, PL).[4] PL national law stipulates that a previous conviction cannot be taken into account if the matter is subject to a remission measure having the force of amnesty or pardon (PL).

SK adds that the taking into account of previous convictions is also possible when the State has such an obligation under an international treaty to which it is party. In IE a defendant must have the opportunity to admit or deny each previous conviction when confronted with (non-) domestic convictions. Where previous convictions are relied on for "any purpose" in a trial, they must either be proved by lawful evidence, or expressly admitted by the accused person.

HU submits foreign convictions to an extensive recognition procedure before they can be taken into account. The incorporation of additional requirements for taking into account of foreign convictions should be proportionate to the objectives of this Framework Decision.

2.2.3. Equivalent legal effects

The legal context of this aspect of this Framework Decision is addressed in section 1.3 Main elements of the Framework Decision. The compliance with the rule that the legal effects that attach to foreign previous convictions are equivalent to the legal effects that attach to national previous convictions, in accordance with national law, is, at best, inconclusive.  9 Member States provide no conclusive information on compliance with this rule. It appears from the notifications received that 9 Member States focused on the application of a principle of equivalence only (Art. 3 paragraph 1), but did not provide further details in respect of the types of legal effects they attach to previous foreign convictions and at what stage of proceedings (pre-trial, trial stage, execution) these effects apply in their national criminal justice system (Art. 3 paragraph 2): BG, CZ, EE, HU, FR, LU, PL, RO and SK.

Information on the national legal systems and the consequences that are attached to previous convictions should be available to all Member States and particularly defendants in order to enhance the principle of legal certainty and mutual trust.

Following this preliminary assessment, the implementation notification of this Framework Decision by the following 13 Member States addressed all important elements of this Framework Decision (e.g. principle of equivalence and legal effects): AT, CY, DE, DK, FI, EL, HR, IE, LV, NL, SE, SI and UK.

2.2.3.1. Pre-trial stage

In some Member States, previous convictions may already be taken into account during the pre-trial stage in criminal proceedings. In HR data in criminal records and other data on convictions for criminal offences can be considered as the most recent evidence before investigating a defendant following the completion of the evidence-gathering procedure. SE law stipulates that previous criminality is significant in decisions on pre-sentence investigation.

EL specified that a court decision is taken into account at all stages of criminal proceedings, irrespectively of whether it is an EL court decision or a foreign court decision, e.g. also for determination of recidivism.

In some Member States, a previous conviction can influence the decision on pre-trial detention: it can be considered a factor in the court's jurisdiction to refuse bail where the applicant is charged with a serious offence (IE), or pre-trial detention may be ordered if the suspect has been convicted in recent years (AT, EL, NL, SE). Another possibility is to take previous convictions into account in criminal proceedings as part of the principle of opportunity.[5] (SE, SI)

The Commission considers that when Member States take previous convictions into account as a factor in the decision on pre-trial detention, the link between the criteria in the Framework Decision and the criteria in national law which are applied in this decision on pre-trial detention should be strictly assessed in the light of relevant Council of Europe recommendations[6] and the European Court of Human Rights case law. The reasons behind a decision on pre-trial detention should be clearly spelled out having regard to the case in question and cannot be based solely on the fact that a person has been previously convicted.

2.2.3.2. Trial stage

In many Member States, previous convictions are taken into account in the decision on the type, level and extent of a sentence/sanction (AT, CY, DE, DK, HR, HU, IE, LV, NL, SE, SI and UK), for example as a decisive factor in the decision on the degree of guilt (HR), the purpose of punishment (HR) or whether there are aggravating circumstances (DK, LV, UK).

In SE, previous legal proceedings exclude the imposition of a conditional sentence. DK and SE law also take into account that, for a previous conviction to be considered as an aggravating circumstance, the offence in respect of which the conviction was handed down should be relevant for the offence currently under consideration. SI national law states that for the assessment of the severity of the sentence, the court shall in particular consider whether the earlier offence is of the same type as the new one, whether both offences were committed with the same motive, and how much time has elapsed since the previous conviction was served, remitted or statute-barred.

Sometimes, Member States take into account how much time has elapsed since the previous conviction was handed down, served, remitted or statute-barred (DK, NL, SE, SI). It is also possible that previous convictions are taken into account when courts issue an order that aims to ensure the presence of the accused or to eliminate the risk of re-offending, particularly in decisions to order detention or alternative measures to ensure the presence of the accused (SI).

Another possibility is that a previous conviction affects the legal classification of the offence under the Criminal Code (HU, NL, UK), for instance when assessing the seriousness of the offence (UK).

2.2.3.3. Execution of conviction stage

In some Member States, previous convictions are taken into account during the execution of a sentence (DE, HR, NL and SE). It is for instance possible that previous convictions are taken into account during the decision on probation (DE,  SE), or conditional early release (DE), or when the suspension of a sentence or custodial measure is revoked (AT, DE). In some countries, courts also have to consider previous convictions when deciding whether a person convicted is to be placed in a high security unit (SE) or a facility for notorious recidivists (NL). It is often stated that courts shall revoke the suspension of a sentence or custodial measure if a person commits an offence during the operational period (DE, SE). SE also takes previous convictions into account in the decision to commute a life sentence into a fixed term imprisonment.

2.2.4. Obtaining sufficient data on previous convictions

Some Member States also informed the Commission about domestic acts or internal rules on the organisation of their national criminal records registers (EE, HU and LV).

Only 2 Member States (EE, IE) have made a reference to the exchange of information extracted from the criminal record (ECRIS). This may be due to the fact that the ECRIS-system was not yet in place at the time this Framework Decision was adopted. Member States started to use ECRIS in April 2012 and to date 25 Member States' Central Authorities are using ECRIS to exchange criminal record information. ECRIS supports the good implementation of this Framework Decision. To date not all central authorities are interconnected with each other.

3. Conclusion

· This Framework Decision sets out the leading principle of equivalence of foreign and domestic convictions in the course of new criminal proceedings.  It affirms the principle that Member States should attach to a conviction handed down in other Member States effects equivalent to those attached to a conviction handed down by their own courts in accordance with national law, whether those effects be regarded by national law as matters of facts or of procedural or substantive law. Recital 5 of the Framework Decision states that "this Framework Decision does not seek to harmonise the consequences attached by the different national legislations to the existence of previous convictions, and the obligation to take into account previous convictions handed down in other Member States exists only to the extent that previous national convictions are taken into account under national law."

The Framework Decision has considerable added value in promoting mutual trust in penal laws and judicial decisions in the European area of justice as it encourages a judicial culture where previous convictions handed down in another Member State are in principle taken into account.

· While recognising the efforts made by the 22 Member States that have transposed this Framework Decision to date, the level of compliance with the letter and spirit of the Framework Decision varies significantly. It appears that the national implementing provisions received from 13 Member States are generally satisfactory: AT, CY, DE, DK, EL, FI, HR, IE, LV, NL, SE, SI and UK.

· The remaining 9 Member States that notified the Commission have provided no conclusive information as regards the transposition of the legal effects attached to previous foreign convictions in their national criminal justice system. The level of compliance on this issue of these Member States cannot be assessed.

· The non-transposition or the partial and incomplete transposition of this Framework Decision hampers the effective functioning of the European area of justice. It can moreover undermine the legitimate expectations of EU citizens as they cannot benefit from this instrument aiming at reducing the reoffending of perpetrators of crime.

· Late implementation is to be regretted as this Framework Decision has the potential to increase the efficient administration of criminal justice by putting in place legal tools to assess the offender’s criminal past and consequently protect victims.

· The Commission will continue to closely monitor the Member States' compliance with all requirements of the Framework Decision. Notably the Commission will examine if the Member States duly apply the principle of equivalence and that, as a matter of principle, legal effects of foreign convictions are equivalent to legal effects of domestic convictions, in the Member State’s criminal justice system.

· It is of utmost importance for all Member States to consider this report and to provide all further relevant information to the Commission, in order to fulfil their obligations under the Treaty. In addition, the Commission encourages those Member States that have signalled that they are preparing relevant legislation to enact and give notification of these national measures as soon as possible. The Commission urges all those Member States that have not yet done so to take swift measures to implement this Framework Decision to the fullest extent. Furthermore, it invites those that have transposed it incorrectly to review and align their national implementation legislation with the provisions of this Framework Decision.

[1]               http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?CL=ENG&CM=1&NT=070. This convention was ratified by 11 EU Member States: AT, BE, BG, CY, DK, EE, LT, LV, NL, RO and ES.

[2]               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: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:093:0023:0032:EN:PDF. Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:093:0033:0048:EN:PDF.

[3]               See also Recital 6 of the Framework Decision.

[4]               CY law specifies what is regarded as "sufficient information", for example the full name, date and place of birth of the individual in respect of whom the conviction has been handed down; the date of the conviction, name of the court and the date on which the decision became final; information on the offence leading to the conviction and, specifically, the date the offence was committed, the name or legal definition of the offence, and the references of the legal provisions applied; information on the content of the conviction and, chiefly, on the offence, any additional sanctions, security measures and subsequent decisions amending the execution of the conviction.

[5]               This principle entails the discretionary power of a public prosecutor to pursue investigations into a case or halt procedures.

[6]               See also Council of Europe Resolution (65) 11 (Adopted by the Ministers' Deputies on 9th April 1965): https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=582145&SecMode=1&DocId=626216&Usage=2.

Overview of National transposition measures

|| Notification received || Transposition date/entry into force || Type of implementation

AT || YES || 1. 1. 1975 1. 1. 1989; 1. 8. 2013 1. 1. 2008 || Section 73 Penal Code Section 39, 53 Penal Code Section 173 Code of Penal Procedure.

BG || YES || 27. 5. 2011 || New para 2 in Article 8 of the Criminal Code; amending Act was adopted on 13 April 2011.

CY || YES || 29. 7. 2011 || Law 111(I)/2011 amends Criminal Procedure Law Cap 155 by adding a new Article 80A.

CZ || YES || 1. 1. 2012 || Part Eight of Act No 357/2011 amending Act No 269/1994 on the Criminal Register, as amended, and certain other acts.

DE || YES || 22. 10. 2009 || Amendment of s. 56g(2) of the Criminal Code by way of Act of 2.10.2009 implementing FD 2006/783/JHA and FD 2008/675/JHA.

DK || YES || n/a || Section 84(2) of the Criminal Justice Act, in the consolidated version published by Order No 1034 of 29 October 2009.

EE || YES || n/a || Sections of the Code of Criminal Procedure, the Penal Code and the Punishment Register Act.

EL || YES || n/a || Art 574 and Art 577 Code for Criminal Procedure. Art. 10, 11 (2), 13, 88, 103 of the Criminal Code, 282 of the Criminal Procedural Code.

FI || YES || 15. 8. 2010 || s. 9, Ch. 7 Criminal Code (39/1889); Act on Nordic Cooperation in Criminal Matters (326/1963); Act on International Co-operation in the Enforcement of Certain Penal Sanctions (21/1987).

FR || YES || 1. 7. 2010[1] || Transposition through Article 17 of the Law n° 2010-242 of 10 March 2010.

HR || YES || n/a || Act on the Legal Consequences of Condemnations, Criminal Records and Rehabilitation No 143/12), the Criminal Procedure Act (NN 152/08, 76/09, 80/11, 121/11, 91/12, 143/12 and 56/13), the Criminal Code (NN 125/11 and 144/12) and the Act on the Execution of Prison Sentences (NN 128/99, 55/00, 59/00, 129/00, 59/01, 67/01, 11/02, 190/03, 76/07, 27/08, 83/09, 18/11, 48/11, 125/11 and 56/13).

HU || YES || n/a || Act No 161/2010 amending the various Acts on criminal matters; Act No 19/1998 on criminal procedure; Act No 38/1996 on international legal assistance in criminal matters; Act No 47/2009 on the criminal records system, the registry of judgments against Hungarian citizens passed by courts of Member States, and the recording of criminal and police biometric data; Act No 12/1998 on foreign travel; Act No 4/1978 on the Criminal Code.

IE || YES || n/a || Principle of common law.

LU || YES || 24. 2. 2012 || Law of 24 February 2012 amending Article 37 of the Criminal Code and Article 34 of the Law of 6 October 2009.

LV || YES || n/a || Articles 1, 6, 23, 24, 25, 26, 27, 46, 48, 51, 52, 62 and 63 of the Law on criminal offences, Article 1, 2, 5, 25 and 800 of the Law on criminal procedure, and Articles 1, 2, 3, 4, 5, 14.1, 15 and 19 of the Law on the penal register.

NL || YES || 1. 7. 2010 || Law of 20 May 2010 on the implementation of Framework Decision 2008/675/JHA.

PL || YES || n/a || Act of 20 January 2011 on change of the Penal Code, the Code of Penal Procedure and the fiscal Penal Code.

RO || YES || 24. 7. 2009 || Act No 286/2009 on the Criminal Code.

SE || YES || n/a || Existing legislation: Chapter 26, Section 3 of the Penal Code; Chapter 29, Section 4 of the Penal Code; Chapter 30, Sections 4, 5, 7 and 9–11 of the Penal Code; Chapter 31, Section 3 of the Penal Code; Chapter 32, Sections 1–3 of the Penal Code; Chapter 20, Section 7 of the Code of Judicial Procedure; Chapter 23, Section 4 a of the Code of Judicial Procedure; Chapter 24, Section 1 of the Code of Judicial Procedure; Sections 16 and 17 of the Young Offenders (Special Provisions) Act (1964:167); Section 3 of the Road Traffic Offences Act (1951:649); Section 1 of the Restraining Order Act (1988:688); Section 2 of the Act concerning the issue of banning orders for sports events (2005:321); Section 1 of the Act on pre-sentence investigation in criminal cases, etc. (1991:2041); Chapter 8, Section 8 of the Aliens Act (2005:716); Chapter 2, Section 4 of the Prisons Act (2010:610); Chapter 6, Section 7 of the Prisons Act (2010:610); Chapter 10, Sections 1 and 2 of the Prisons Act (2010:610); Chapter 11, Section 3 of the Prisons Act (2010:610); Section 4 of the Commutation of Life Sentences Act (2006:45).

SI || YES || n/a || KZ-1 – Criminal Code (KZ-1, Uradni list RS (UL RS; Official Gazette of the Republic of Slovenia) Nos 55/2008 and 66/2008; ZKP – Criminal Procedure Act – official consolidated text (ZKP-UPB4, UL RS No 32/2007 of 10 April 2007).

SK || YES || 1. 1. 2013 || Act No 334/2012 Coll. amending Act No 330/2007 on criminal records and amending certain acts, as amended, and amending certain acts.

UK || YES || En/Wa: 15. 8. 2010 Sc: 13. 12. 2010 NI: 18. 4. 2011 || Sc: s. 71 of Criminal Justice and Licensing (Scotland) Act 2010 Eng/Wa/NI: s 144 and Schedule 17 of the Coroners and Justice Act 2009.

[1] 1. 4. 2012 for foreign decisions on rehabilitations.