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Mutual recognition of custodial sentences and measures involving deprivation of liberty
This framework decision extends the principle of mutual recognition between Member States to judgements in criminal matters that impose a custodial sentence or a measure involving the deprivation of liberty. It establishes the procedure for recognising and enforcing these judgements, with the intention of facilitating the social rehabilitation of sentenced persons.
Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [See amending act(s)].
This framework decision sets out the rules whereby judgements that impose custodial sentences or measures involving the deprivation of liberty delivered in one Member State are to be recognised and enforced in another Member State. The aim is to thus facilitate the social rehabilitation and reintegration of sentenced persons.
Member States must designate the competent authorities for issuing and executing judgements. The competent authority of the issuing state is responsible for forwarding the judgement accompanied by the certificate annexed to the framework decision directly to the competent authority of one executing state at a time and in a manner that leaves a written record.
When the sentenced person is located in the issuing or executing state and, under certain circumstances, has given his/her permission for forwarding the judgement, it may be transmitted to:
- the Member State of which the sentenced person is a national and where s/he lives;
- the Member State of which the sentenced person is a national and to which s/he could be deported following the judgement, even if this is not his/her place of residence;
- any other Member State, provided that its competent authority agrees to the forwarding.
A judgement may be forwarded only once the issuing state has ensured that the enforcement of the sentence in the executing state would serve the purpose of facilitating the sentenced person’s social rehabilitation and reintegration. The latter may provide the issuing state with a reasoned opinion indicating that enforcement by it would not serve this purpose. The executing state, as well as the sentenced person, may also request the initiation of the procedure for forwarding judgements.
Upon receiving the forwarded judgement and certificate, the executing state must decide within a maximum of 90 days whether it will recognise the judgement and enforce the sentence.
The competent authority of the executing state has to recognise the judgment and take all necessary measures to enforce the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided in the framework decision. The non-recognition of the judgement and non-enforcement of the sentence is possible when the:
- certificate is incomplete or does not correspond to the judgement;
- criteria for forwarding the judgement and the certificate have not been fulfilled;
- enforcement would contravene the ne bis in idem principle;
- offence is not recognised as such under the law of the executing state, with certain exceptions;
- enforcement is statute-barred under the law of the executing state;
- law of the executing state provides for immunity;
- sentenced person cannot be held liable under the law of the executing state due to his/her age;
- remaining sentence is less than six months when the executing state receives the judgement;
- sentenced person had not appeared in person at the trial where the judgement was passed, with certain exceptions;
- issuing state rejects the request of the executing state to prosecute, sentence or otherwise deprive the liberty of the sentenced person for another offense committed before the transfer;
- sentence requires for psychiatric or health care or for another measure involving the deprivation of liberty that the executing state cannot provide;
- offence was committed on the territory of the executing state.
In case the certificate is incomplete or does not correspond to the judgement, the executing state may postpone its recognition.
The framework decision provides a list of offences that must be recognised and enforced without a double criminality check, if they result in a custodial sentence or a measure involving deprivation of liberty of a maximum of at least three years in the issuing state. For all other offences, the executing state may require that they constitute an offence also under its national law in order for them to be recognised and enforced. Where the duration or nature of the sentence is not compatible with the national law of the executing state, it may adapt the sentence. However, the adapted sentence must correspond as closely as possible to and in no case be harsher than the original sentence.
In line with the law of the issuing state, the consent of the sentenced person is required for the forwarding of a judgment and certificate to the executing state for recognition and enforcement of the sentence. However, this consent is not required when the executing state is the Member State:
- of which the sentenced person is a national and where s/he lives;
- to which the sentenced person is deported upon release, by reason of the order included in the judgement;
- to which the sentenced person has fled or returned, while criminal proceedings against him/her are pending or following a conviction in the issuing state.
In any event, if the sentenced person is in the issuing state, s/he must be given the opportunity to provide an oral or written opinion.
When the sentenced person is located on the territory of the issuing state, s/he must be transferred to the territory of the executing state within a period of 30 days from the date when the latter has recognised the judgement.
Both the issuing and executing state may grant amnesty or pardon. However, only the issuing state may decide on the review of the judgement.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
Framework Decision 2008/909/JHA
OJ L 327 of 5.12.2008
|Amending act(s)||Entry into force||Deadline for transposition in the Member States||Official Journal|
Framework Decision 2009/299/JHA
OJ L 81 of 27.3.2009