European area of justice: Commission calls
on Member States to reinforce rules on free circulation of previous
convictions and cross-border crime
According
to new European Commission reports released today, two sets of common
rules allowing for the free circulation of previous convictions, and
better coordination in fighting cross-border crime have not yet been
implemented by many Member States. The reports examine the
implementation of two Framework Decisions, agreed upon unanimously by
Member States in 2008 and 2009 respectively. The late or incomplete
implementation by several Member States is particularly regrettable
as the two Framework Decisions aim at increasing the protection of
victims and society in general by ensuring citizens are not convicted
twice for the same crime while at the same time making the fight
against cross-border crime more effective. The Commission therefore
urges all those Member States which have not yet done so to take
swift measures to implement these EU laws fully.
1. Allowing for the
free circulation of previous convictions
When
a judge decides on a sentence for an offender, he or she must know
whether the person has previously been convicted in other Member
States. This is essential in order to make informed and fair
decisions, respecting the fundamental rights of both the victims and
offenders – like for example decisions made on pre-trial detention
or bail, as well as at the sentencing stage.
The
Framework Decision (2008/675/JHA
on taking into account convictions in EU Member States during new
criminal proceedings) obliges EU countries to take foreign
convictions into account. The overarching principle is that of
"equivalence", meaning that Member States must take
foreign convictions into account to the same extent as national
convictions. This principle can help promote mutual trust in penal
laws and judicial decisions in the European area of justice, by
encouraging judicial culture. Furthermore, by implementing such legal
tools to assess an offender's criminal past, victims across the
European Union would in turn be better protected.
So
far, 22 Member States1
have implemented this Framework Decision, with substantial
differences in the implementation. For example, out of the 22 Member
States, 9 have not provided conclusive information on the
transposition of the legal effects attached to previous foreign
convictions in their national criminal justice system (BG, CZ, EE,
HU, FR, LU, PL, RO and SK). More than 3 years after the
implementation deadline, 6 Member States still need to implement
these rules: Belgium, Spain, Italy, Lithuania, Malta and
Portugal.
2. Fighting
cross-border crime effectively
Criminal
activity can easily take place across several Member States. For
example, the preparation of a crime may take place in one country, be
executed in another, the criminals arrested in a different country,
and the assets transferred to a fourth Member State. This could
potentially lead to multiple Member States being competent to conduct
criminal investigations.
This
is a problem both for the coordination and effectiveness of criminal
prosecutions, as well as for the respect of the EU Charter of
Fundamental Rights which states that a person may not be tried or
punished twice for the same offence (the so-called "ne bis in
idem” principle).
The
Framework Decision (2009/948/JHA
on the prevention and settlement of conflicts of jurisdiction in
criminal proceedings) ensures good coordination between Member
States, and that criminal proceedings are conducted in the best
placed Member State. By helping avoid multiple proceedings it allows
the competent authorities to save time and human and financial
resources. Member States are obliged to enter into direct
consultation to reach consensus on any effective solution. Where it
is not possible to reach consensus, the matter can be referred to
Eurojust.
So
far, only 15 Member States2
have implemented these common rules. While 13 Member States
still need to implement the Framework Decision which is an
important first step in avoiding double prosecutions and a lack of
judicial action. These are: Bulgaria, Denmark, Estonia, Greece,
Spain, France, Ireland, Italy, Lithuania, Luxembourg, Malta, Sweden
and the United Kingdom.
Next
steps: The Commission urges Member States to implement these
rules swiftly in order to ensure that citizens can benefit from
protection in Europe's area of justice.
The
European Commission does not currently have the powers to launch
infringement proceedings under Article 258 Treaty on the Functioning
of the European Union (TFEU) with regard to Framework Decisions
adopted prior to the entry into force of the Treaty of Lisbon (see
Article 10(1) of Protocol No 36 to the Treaties). As of 1 December
2014, the Commission will be able to launch infringement proceedings.
1
AT, BG, CY, CZ, DE, DK, EE, EL, FI, FR, HU, HR, IE, LU, LV, NL, PL,
RO, SE, SI, SK and UK.
2
AT, BE, CY, CZ, DE, FI, HU, HR, LV, NL, PL, PT, RO, SI and SK.
