Brussels, 2 June 2014
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.
Today's reports thus give a timely overview of where further work by Member States is required to align national legislation.
For more information
Two implementation reports:
Homepage of Vice-President Viviane Reding, EU Justice Commissioner:
Follow the Vice-President on Twitter:@VivianeRedingEU
Follow EU Justice on Twitter: @EU_Justice
AT, BG, CY, CZ, DE, DK, EE, EL, FI, FR, HU, HR, IE, LU, LV, NL, PL, RO, SE, SI, SK and UK.
AT, BE, CY, CZ, DE, FI, HU, HR, LV, NL, PL, PT, RO, SI and SK.