24.12.2008 EN Official Journal of the European Union L 348/130 COUNCIL DECISION 2008/976/JHA of 16 December 2008 on the European Judicial Network THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 31 and 34(2)(c) thereof, Having regard to the initiative of the Kingdom of Belgium, the Czech Republic, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic and the Kingdom of Sweden, Having regard to the opinion of the European Parliament (1), Whereas: (1) By Joint Action 98/428/JHA (2), the Council set up the European Judicial Network which has demonstrated its usefulness in the facilitation of judicial cooperation in criminal matters. (2) In accordance with Article 6 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (3), mutual legal assistance takes place through direct contacts between competent judicial authorities. This decentralisation of mutual legal assistance is now widely implemented. (3) The principle of mutual recognition of judicial decisions in criminal matters is being implemented gradually. It not only confirms the principle of direct contacts between competent judicial authorities, it also accelerates the procedures and makes them entirely judicial. (4) The impact of these changes on judicial cooperation was further increased by the enlargement of the European Union in 2004 and 2007. Because of this evolution, the European Judicial Network is even more necessary than at the time of its creation and should therefore be strengthened. (5) By Decision 2002/187/JHA (4), the Council set up Eurojust to improve coordination and cooperation between competent authorities of the Member States. Decision 2002/187/JHA provides that Eurojust is to maintain privileged relations with the European Judicial Network based on consultation and complementarity. (6) Five years of coexistence of Eurojust and the European Judicial Network have demonstrated both the need to maintain the two structures and the need to clarify their relationship. (7) Nothing in this Decision should be construed to affect the independence that contact points may have under national law. (8) It is necessary to strengthen judicial cooperation between the Member States and to allow contact points of the European Judicial Network and Eurojust for this purpose to communicate, whenever needed, directly and more efficiently through a secure telecommunications connection. (9) Joint Action 98/428/JHA should therefore be repealed and replaced by this Decision, HAS DECIDED AS FOLLOWS: Article 1 Creation The network of judicial contact points set up between the Member States under Joint Action 98/428/JHA, hereinafter referred to as the ‘European Judicial Network’, shall continue to operate in accordance with the provisions of this Decision. Article 2 Composition 1. The European Judicial Network shall be made up, taking into account the constitutional rules, legal traditions and internal structure of each Member State, of the central authorities responsible for international judicial cooperation and the judicial or other competent authorities with specific responsibilities within the context of international cooperation. 2. One or more contact points of each Member State shall be established in accordance with its internal rules and internal division of responsibilities, care being taken to ensure effective coverage of the whole of its territory. 3. Each Member State shall appoint, among the contact points, a national correspondent for the European Judicial Network. 4. Each Member State shall appoint a tool correspondent for the European Judicial Network. 5. Each Member State shall ensure that its contact points have functions in relation to judicial cooperation in criminal matters and adequate knowledge of a language of the European Union other than its own national language, bearing in mind the need to be able to communicate with the contact points in the other Member States. 6. Where the liaison magistrates referred to in Council Joint Action 96/277/JHA of 22 April 1996 concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union (5) have been appointed in a Member State and have duties analogous to those assigned by Article 4 of this Decision to the contact points, they shall be linked to the European Judicial Network and to the secure telecommunications connection pursuant to Article 9 of this Decision by the Member State appointing the liaison magistrate in each case, in accordance with the procedures to be laid down by that Member State. 7. The Commission shall designate a contact point for those areas falling within its sphere of competence. 8. The European Judicial Network shall have a Secretariat which shall be responsible for the administration of the Network. Article 3 Manner of operation of the Network The European Judicial Network shall operate in particular in the following three ways: (a) it shall facilitate the establishment of appropriate contacts between the contact points in the various Member States in order to carry out the functions laid down in Article 4; (b) it shall organise periodic meetings of the Member States representatives in accordance with the procedures laid down in Articles 5 and 6; (c) it shall constantly provide a certain amount of up-to-date background information, in particular by means of an appropriate telecommunications network, under the procedures laid down in Articles 7, 8 and 9. Article 4 Functions of contact points 1. The contact points shall be active intermediaries with the task of facilitating judicial cooperation between Member States, particularly in actions to combat forms of serious crime. They shall be available to enable local judicial authorities and other competent authorities in their own Member State, contact points in the other Member States and local judicial and other competent authorities in the other Member States to establish the most appropriate direct contacts. They may if necessary travel to meet other Member States contact points, on the basis of an agreement between the administrations concerned. 2. The contact points shall provide the local judicial authorities in their own Member State, the contact points in the other Member States and the local judicial authorities in the other Member States with the legal and practical information necessary to enable them to prepare an effective request for judicial cooperation or to improve judicial cooperation in general. 3. At their respective level the contact points shall be involved in and promote the organisation of training sessions on judicial cooperation for the benefit of the competent authorities of their Member State, where appropriate in cooperation with the European Judicial Training Network. 4. The national correspondent, in addition to his tasks as a contact point referred to in paragraphs 1 to 3, shall in particular: (a) be responsible, in his Member State, for issues related to the internal functioning of the Network, including the coordination of requests for information and replies issued by the competent national authorities; (b) be the main person responsible for the contacts with the Secretariat of the European Judicial Network including the participation in the meetings referred to in Article 6; (c) where requested, give an opinion concerning the appointment of new contact points. 5. The European Judicial Network tool correspondent, who may also be a contact point referred to in paragraphs 1 to 4, shall ensure that the information related to his Member State and referred to in Article 7 is provided and updated in accordance with Article 8. Article 5 Purposes and venues of the plenary meetings of contact points 1. The purposes of the plenary meetings of the European Judicial Network, to which at least three contact points per Member State shall be invited, shall be as follows: (a) to allow the contact points to get to know each other and exchange experience, particularly concerning the operation of the Network; (b) to provide a forum for discussion of practical and legal problems encountered by the Member States in the context of judicial cooperation, in particular with regard to the implementation of measures adopted by the European Union. 2. The relevant experience acquired within the European Judicial Network shall be passed on to the Council and the Commission to serve as a basis for discussion of possible legislative changes and practical improvements in the area of international judicial cooperation. 3. Meetings referred to in paragraph 1 shall be organised regularly and at least three times a year. Once a year, the meeting may be held on the premises of the Council in Brussels or on the premises of Eurojust in The Hague. Two contact points per Member States shall be invited to meetings organised on the premises of the Council and at Eurojust. Other meetings may be held in the Member States, to enable the contact points of all the Member States to meet authorities of the host Member State other than its contact points and visit specific bodies in that Member State with responsibilities in the context of international judicial cooperation or of combating certain forms of serious crime. The contact points participate in these meetings at their own expense. Article 6 Meetings of the correspondents 1. The European Judicial Network national correspondents shall meet on an ad hoc basis, at least once a year and as its members deem appropriate, at the invitation of the national correspondent of the Member State which holds the Presidency of the Council, which shall also take account of the Member States wishes for the correspondents to meet. During these meetings, administrative matters related to the Network shall in particular be discussed. 2. The European Judicial Network tool correspondents shall meet on an ad hoc basis, at least once a year and as its members deem appropriate, at the invitation of the tool correspondent of the Member State which holds the Presidency of the Council. The meetings shall deal with the issues referred to in Article 4(5). Article 7 Content of the information disseminated within the European Judicial Network The Secretariat of the European Judicial Network shall make the following information available to contact points and competent judicial authorities: (a) full details of the contact points in each Member State with, where necessary, an explanation of their responsibilities at national level; (b) an information technology tool allowing the requesting or issuing authority of a Member State to identify the competent authority in another Member State to receive and execute its request for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition; (c) concise legal and practical information concerning the judicial and procedural systems in the Member States; (d) the texts of the relevant legal instruments and, for conventions currently in force, the texts of declarations and reservations. Article 8 Updating of information 1. The information distributed within the European Judicial Network shall be constantly updated. 2. It shall be each Member State’s individual responsibility to check the accuracy of the data contained in the system and to inform the Secretariat of the European Judicial Network as soon as data on one of the four points referred to in Article 7 need to be amended. Article 9 Telecommunication tools 1. The Secretariat of the European Judicial Network shall ensure that the information provided under Article 7 is made available on a website which is constantly updated. 2. The secure telecommunications connection shall be set up for the operational work of the contact points of the European Judicial Network. The setting up of the secure telecommunications connection shall be at the charge of the general budget of the European Union. The setting up of the secure telecommunications connection shall make possible the flow of data and of requests for judicial cooperation between Member States. 3. The secure telecommunications connection referred to in paragraph 2 may also be used for their operational work by the national correspondents for Eurojust, national correspondents for Eurojust for terrorist matters, the national members of Eurojust and liaison magistrates appointed by Eurojust. It may be linked to the Case Management System of Eurojust referred to in Article 16 of Decision 2002/187/JHA. 4. Nothing in this Article shall be construed to affect direct contacts between competent judicial authorities as provided for in instruments on judicial cooperation, such as Article 6 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. Article 10 Relationship between the European Judicial Network and Eurojust The European Judicial Network and Eurojust shall maintain privileged relations with each other, based on consultation and complementarity, especially between the contact points of a Member State, the Eurojust national member of the same Member State and the national correspondents for the European Judicial Network and Eurojust. In order to ensure efficient cooperation, the following measures shall be taken: (a) the European Judicial Network shall make available to Eurojust the centralised information indicated in Article 7 and the secure telecommunications connection set up under Article 9; (b) the contact points of the European Judicial Network shall, on a case-by-case basis, inform their own national member of all cases which they deem Eurojust to be in a better position to deal with; (c) the national members of Eurojust may attend meetings of the European Judicial Network at the invitation of the latter. Article 11 Budget In order for the European Judicial Network to be able to carry out its tasks, the budget of Eurojust shall contain a part related to the activities of the Secretariat of the European Judicial Network. Article 12 Territorial application The United Kingdom shall notify in writing the President of the Council when it wishes to apply this Decision to the Channel Islands and the Isle of Man. A decision on that request shall be taken by the Council. Article 13 Assessment of the operation of the European Judicial Network 1. Every second year from 24 December 2008, the European Judicial Network shall report to the European Parliament, the Council and the Commission on its activities and management. 2. The European Judicial Network may, in the report referred to in paragraph 1, also indicate any criminal policy problems within the European Union highlighted as a result of the European Judicial Network’s activities and it may also make proposals for the improvement of judicial cooperation in criminal matters. 3. The European Judicial Network may also submit any report or any other information on its operation which may be requested by the Council. 4. The Council shall, every four years from 24 December 2008, carry out an assessment of the operation of the European Judicial Network on the basis of a report drawn up by the Commission in cooperation with the European Judicial Network. Article 14 Repeal of Joint Action 98/428/JHA Joint Action 98/428/JHA is hereby repealed. Article 15 Taking of effect This Decision shall take effect on the day of its publication in the Official Journal of the European Union. Done at Brussels, 16 December 2008. For the Council The President R. BACHELOT-NARQUIN (1) Opinion delivered on 2 September 2008 (not yet published in the Official Journal). (2) OJ L 191, 7.7.1998, p. 4. (3) OJ C 197, 12.7.2000, p. 3. (4) OJ L 63, 6.3.2002, p. 1. (5) OJ L 105, 27.4.1996, p. 1.

Summary: European Judicial Network - cooperation to combat crime European Judicial Network - cooperation to combat crime This decision provides provisions for the continuation of the European Judicial Network (EJN), while repealing Joint Action 98/428/JHA that established it. ACT Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network. SUMMARY This decision provides provisions for the continuation of the European Judicial Network (EJN), while repealing Joint Action 98/428/JHA that established it. WHAT DOES THE DECISION DO? This decision extends the functions of the EJN, sets up a telecommunications tool (secure communication channel), and clarifies the relationship between the network and Eurojust (*). KEY POINTS Composition of the EJN The EJN shall be made up of one or more contact points of each European Union (EU) country. From among each country’s delegation a national correspondent and a tool correspondent, who deals with the new telecommunications channel, are designated. Contact points work in judicial cooperation in criminal matters and must have language skills to be better able to communicate with their counterparts. Any national liaison magistrates already appointed must be linked to the EJN. The European Commission (EC) is also represented, and the EJN is administered by a secretariat. Functions The EJN operates to facilitate communication between the contact points, organising meetings and issuing background information. The contact points facilitate judicial cooperation between EU countries, particularly in actions to combat serious crime, and enable appropriate communication and information sharing with contact points and judicial authorities in other EU countries. In addition, contact points promote and participate in the organisation of training sessions, working with the European Judicial Training Network where appropriate. Full EJN meetings, to which at least three contact points from each country are invited, are held at least three times a year, and provide a forum for discussion of judicial cooperation issues, particularly in relation to EU legislation. Discussions serve as a basis for possible legislation and improvements in international cooperation. National and tool correspondents meet at least yearly on an ad hoc basis. Secretariat The secretariat provides contact points with up-to-date information on national judicial and procedural systems and relevant legal texts through a website. In addition, it establishes a secure telecommunications channel for data and judicial cooperation requests. The secretariat is funded by the budget of Eurojust, a complementary organisation enjoying a privileged relationship with the EJN based on consultation and information-sharing. Accountability Every 2 years the EJN reports to the European Parliament, the Council and the EC on its activities, and every 4 years the Council carries out an operational assessment of the EJN based on a joint report produced by the EJN and the EC. BACKGROUND The principle of mutual recognition of judicial decisions in criminal matters is being implemented gradually, with increasing direct contact between judicial authorities. Because of these changes and the enlargement of the EU in 2004 and 2007, the EJN has become increasingly important. For further information see the European Judicial Network website WHEN DOES THE DECISION APPLY? From 24 December 2008. KEY TERMS * Eurojust: the EU’s judicial cooperation unit. REFERENCES Act Entry into force Deadline for transposition in the Member States Official Journal Decision 2008/976/JHA 24.12.2008 - OJ L 348 of 24.12.2008, pp. 130-134 RELATED ACTS Resolution of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the establishment of a Network for legislative cooperation between the Ministries of Justice of the European Union (Official Journal C 326 of 20.12.2008, pp. 1-2). Last updated: 12.06.2015


16.12.2008 EN Official Journal of the European Union L 337/102 COUNCIL FRAMEWORK DECISION 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Article 31(1)(a) and (c) and Article 34(2)(b) thereof, Having regard to the initiative of the Federal Republic of Germany and of the French Republic (1), Having regard to the Opinion of the European Parliament (2), Whereas: (1) The European Union has set itself the objective of developing an area of freedom, security and justice. This presupposes that there is an understanding of freedom, security and justice on the part of the Member States which is identical in its essential elements and based on the principles of freedom, democracy, respect for human rights and fundamental freedoms, as well as the rule of law. (2) The aim of police and judicial cooperation in the European Union is to provide a high degree of security for all citizens. One of the cornerstones for this is the principle of mutual recognition of judicial decisions, established in the conclusions of the European Council meeting in Tampere on 15 and 16 October 1999 and reaffirmed in the Hague Programme of 4 and 5 November 2004 for strengthening freedom, security and justice in the European Union (3). In the programme of measures of 29 November 2000 adopted for the purpose of implementing the principle of mutual recognition of decisions in criminal matters, the Council pronounced itself in favour of cooperation in the area of suspended sentences and parole. (3) Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (4) concerns the mutual recognition and enforcement of custodial sentences or measures involving deprivation of liberty. Further common rules are required, in particular where a non-custodial sentence involving the supervision of probation measures or alternative sanctions has been imposed in respect of a person who does not have his lawful and ordinary residence in the State of conviction. (4) The Council of Europe Convention of 30 November 1964 on the Supervision of Conditionally Sentenced or Conditionally Released Offenders has been ratified by only 12 Member States, with, in some cases, numerous reservations. The present Framework Decision provides for a more effective instrument because it is based on the principle of mutual recognition and all Member States participate. (5) This Framework Decision respects fundamental rights and adheres to the principles recognised in Article 6 of the Treaty on European Union, which are also expressed in the Charter of Fundamental Rights of the European Union, especially in Chapter VI thereof. No provision of this Framework Decision should be interpreted as prohibiting refusal to recognise a judgment and/or supervise a probation measure or alternative sanction if there are objective reasons to believe that the probation measure or alternative sanction was imposed to punish a person because of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation or that this person might be disadvantaged for one of these reasons. (6) This Framework Decision should not prevent any Member State from applying its constitutional rules relating to entitlement to due process, freedom of association, freedom of the press, freedom of expression in other media and freedom of religion. (7) The provisions of this Framework Decision should be applied in conformity with the right of the Union’s citizens to move and reside freely within the territory of the Member States, pursuant to Article 18 of the Treaty establishing the European Community. (8) The aim of mutual recognition and supervision of suspended sentences, conditional sentences, alternative sanctions and decisions on conditional release is to enhance the prospects of the sentenced person’s being reintegrated into society, by enabling that person to preserve family, linguistic, cultural and other ties, but also to improve monitoring of compliance with probation measures and alternative sanctions, with a view to preventing recidivism, thus paying due regard to the protection of victims and the general public. (9) There are several types of probation measures and alternative sanctions which are common among the Member States and which all Member States are in principle willing to supervise. The supervision of these types of measures and sanctions should be obligatory, subject to certain exceptions provided for in this Framework Decision. Member States may declare that, in addition, they are willing to supervise other types of probation measures and/or other types of alternative sanctions. (10) The probation measures and alternative sanctions that are, in principle, obligatory to supervise include, inter alia, orders relating to behaviour (such as an obligation to stop the consumption of alcohol), residence (such as an obligation to change residence for reasons of domestic violence), education and training (such as an obligation to follow a ‘safe-driving course’), leisure activities (such as an obligation to cease playing or attending a certain sport) and limitations on or modalities of carrying out a professional activity (such as an obligation to seek a professional activity in a different working environment; this obligation does not include the supervision of compliance with any professional disqualifications imposed on the person as part of the sanction). (11) Where appropriate, electronic monitoring could be used with a view to supervising probation measures or alternative sanctions, in accordance with national law and procedures. (12) The Member State where the person concerned is sentenced may forward a judgment and, where applicable, a probation decision to the Member State where the sentenced person is lawfully and ordinarily resident with a view to the recognition thereof and to the supervision of probation measures or alternative sanctions contained therein. (13) The decision on whether to forward the judgment and, where applicable, the probation decision to another Member State should be taken in each individual case by the competent authority of the issuing Member State, taking into account, inter alia, the declarations made in accordance with Articles 5(4), 10(4) and 14(3). (14) The judgment and, where applicable, the probation decision may also be forwarded to a Member State other than that where the sentenced person is residing, if the competent authority of that executing State, taking account of any conditions set out in the relevant declaration made by that State in accordance with this Framework Decision, consents to such forwarding. In particular, consent may be given, with a view to social rehabilitation, where the sentenced person, without losing his/her right of residence, intends to move to another Member State because he/she is granted an employment contract, if he/she is a family member of a lawful and ordinary resident person of that Member State, or if he/she intends to follow a study or training in that Member State, in accordance with Community law. (15) Member States should apply their own national law and procedures for the recognition of a judgment and, where applicable, a probation decision. In the case of a conditional sentence or alternative sanction where the judgment does not contain a custodial sentence or measure involving deprivation of liberty to be enforced in case of non-compliance with the obligations or instructions concerned, this could imply that having made the relevant declaration in accordance with this Framework Decision, Member States, when deciding to recognise, agree to supervise the probation measures or alternative sanctions concerned and to assume no other responsibility than just for taking the subsequent decisions consisting of the modification of obligations or instructions contained in the probation measure or alternative sanction, or modification of the duration of the probation period. Consequently, the recognition has, in such cases, no further effect than to enable the executing State to take those types of subsequent decisions. (16) A Member State may refuse to recognise a judgment and, where applicable, a probation decision, if the judgment concerned was issued against a person who has not been found guilty, such as in the case of a mentally ill person, and the judgment or, where applicable, the probation decision provides for medical/therapeutic treatment which the executing State cannot supervise in respect of such persons under its national law. (17) The ground for refusal relating to territoriality should be applied only in exceptional cases and with a view to cooperating to the greatest extent possible under the provisions of this Framework Decision, while taking into account of the objectives thereof. Any decision to apply this ground for refusal should be based on a case-by-case analysis and on consultations between the competent authorities of the issuing and executing States. (18) If the probation measures or alternative sanctions include community service, then the executing State should be entitled to refuse to recognise the judgment and, where applicable, the probation decision if the community service would normally be completed in less than six months. (19) The form of the certificate is drafted in such a way so that essential elements of the judgment and, where applicable, of the probation decision are comprised in the certificate, which should be translated into the official language or one of the official languages of the executing State. The certificate should assist the competent authorities in the executing State in taking decisions under this Framework Decision, including decisions on recognition and assumption of responsibility for supervision of probation measures and alternative sanctions, decisions on adaptation of probation measures and alternative sanctions, and subsequent decisions in case, notably, of non-compliance with a probation measure or alternative sanction. (20) In view of the principle of mutual recognition, on which this Framework Decision is based, issuing and executing Member States should promote direct contact between their competent authorities in the application of this Framework Decision. (21) All Member States should ensure that sentenced persons, in respect of whom decisions under this Framework Decision are taken, are subject to a set of legal rights and remedies in accordance with their national law, regardless of whether the competent authorities designated to take decisions under this Framework Decision are of a judicial or a non-judicial nature. (22) All subsequent decisions relating to a suspended sentence, a conditional sentence or an alternative sanction which result in the imposition of a custodial sentence or measure involving deprivation of liberty should be taken by a judicial authority. (23) Since all Member States have ratified the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, personal data processed when implementing this Framework Decision should be protected in accordance with the principles laid down in that Convention. (24) Since the objectives of this Framework Decision, namely facilitating the social rehabilitation of sentenced persons, improving the protection of victims and of the general public, and facilitating the application of suitable probation measures and alternative sanctions in case of offenders who do not live in the State of conviction, cannot be sufficiently achieved by the Member States themselves in view of the cross-border nature of the situations involved and can therefore, by reason of the scale of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community as applied by the second paragraph of Article 2 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in Article 5 of the Treaty establishing the European Community, this Framework Decision does not go beyond what is necessary in order to achieve those objectives, HAS ADOPTED THIS FRAMEWORK DECISION: Article 1 Objectives and scope 1. This Framework Decision aims at facilitating the social rehabilitation of sentenced persons, improving the protection of victims and of the general public, and facilitating the application of suitable probation measures and alternative sanctions, in case of offenders who do not live in the State of conviction. With a view to achieving these objectives, this Framework Decision lays down rules according to which a Member State, other than the Member State in which the person concerned has been sentenced, recognises judgments and, where applicable, probation decisions and supervises probation measures imposed on the basis of a judgment, or alternative sanctions contained in such a judgment, and takes all other decisions relating to that judgment, unless otherwise provided for in this Framework Decision. 2. This Framework Decision shall apply only to: (a) the recognition of judgments and, where applicable, probation decisions; (b) the transfer of responsibility for the supervision of probation measures and alternative sanctions; (c) all other decisions related to those under (a) and (b); as described and provided for in this Framework Decision. 3. This Framework Decision shall not apply to: (a) the execution of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty which fall within the scope of Framework Decision 2008/909/JHA; (b) recognition and execution of financial penalties and confiscation orders which fall within the scope of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (5) and Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (6). 4. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. Article 2 Definitions For the purposes of this Framework Decision: 1. ‘judgment’ shall mean a final decision or order of a court of the issuing State, establishing that a natural person has committed a criminal offence and imposing: (a) a custodial sentence or measure involving deprivation of liberty, if a conditional release has been granted on the basis of that judgment or by a subsequent probation decision; (b) a suspended sentence; (c) a conditional sentence; (d) an alternative sanction; 2. ‘suspended sentence’ shall mean a custodial sentence or measure involving deprivation of liberty, the execution of which is conditionally suspended, wholly or in part, when the sentence is passed by imposing one or more probation measures. Such probation measures may be included in the judgment itself or determined in a separate probation decision taken by a competent authority; 3. ‘conditional sentence’ shall mean a judgment in which the imposition of a sentence has been conditionally deferred by imposing one or more probation measures or in which one or more probation measures are imposed instead of a custodial sentence or measure involving deprivation of liberty. Such probation measures may be included in the judgment itself or determined in a separate probation decision taken by a competent authority; 4. ‘alternative sanction’ shall mean a sanction, other than a custodial sentence, a measure involving deprivation of liberty or a financial penalty, imposing an obligation or instruction; 5. ‘probation decision’ shall mean a judgment or a final decision of a competent authority of the issuing State taken on the basis of such judgment: (a) granting a conditional release; or (b) imposing probation measures; 6. ‘conditional release’ shall mean a final decision of a competent authority or stemming from the national law on the early release of a sentenced person after part of the custodial sentence or measure involving deprivation of liberty has been served by imposing one or more probation measures; 7. ‘probation measures’ shall mean obligations and instructions imposed by a competent authority on a natural person, in accordance with the national law of the issuing State, in connection with a suspended sentence, a conditional sentence or a conditional release; 8. ‘issuing State’ shall mean the Member State in which a judgment is delivered; 9. ‘executing State’ shall mean the Member State in which the probation measures and alternative sanctions are supervised following a decision in accordance with Article 8. Article 3 Designation of competent authorities 1. Each Member State shall inform the General Secretariat of the Council which authority or authorities, under its national law, are competent to act according to this Framework Decision in the situation where that Member State is the issuing State or the executing State. 2. Member States may designate non-judicial authorities as the competent authorities for taking decisions under this Framework Decision, provided that such authorities have competence for taking decisions of a similar nature under their national law and procedures. 3. If a decision under Article 14(1)(b) or (c) is taken by a competent authority other than a court, the Member States shall ensure that, upon request of the person concerned, such decision may be reviewed by a court or by another independent court-like body. 4. The General Secretariat of the Council shall make the information received available to all Member States and to the Commission. Article 4 Types of probation measures and alternative sanctions 1. This Framework Decision shall apply to the following probation measures or alternative sanctions: (a) an obligation for the sentenced person to inform a specific authority of any change of residence or working place; (b) an obligation not to enter certain localities, places or defined areas in the issuing or executing State; (c) an obligation containing limitations on leaving the territory of the executing State; (d) instructions relating to behaviour, residence, education and training, leisure activities, or containing limitations on or modalities of carrying out a professional activity; (e) an obligation to report at specified times to a specific authority; (f) an obligation to avoid contact with specific persons; (g) an obligation to avoid contact with specific objects, which have been used or are likely to be used by the sentenced person with a view to committing a criminal offence; (h) an obligation to compensate financially for the prejudice caused by the offence and/or an obligation to provide proof of compliance with such an obligation; (i) an obligation to carry out community service; (j) an obligation to cooperate with a probation officer or with a representative of a social service having responsibilities in respect of sentenced persons; (k) an obligation to undergo therapeutic treatment or treatment for addiction. 2. Each Member State shall notify the General Secretariat of the Council, when implementing this Framework Decision, which probation measures and alternative sanctions, apart from those referred to in paragraph 1, it is prepared to supervise. The General Secretariat of the Council shall make the information received available to all Member States and to the Commission. Article 5 Criteria for forwarding a judgment and, where applicable, a probation decision 1. The competent authority of the issuing State may forward a judgment and, where applicable, a probation decision to the competent authority of the Member State in which the sentenced person is lawfully and ordinarily residing, in cases where the sentenced person has returned or wants to return to that State. 2. The competent authority of the issuing State may, upon request of the sentenced person, forward the judgment and, where applicable, the probation decision to a competent authority of a Member State other than the Member State in which the sentenced person is lawfully and ordinarily residing, on condition that this latter authority has consented to such forwarding. 3. When implementing this Framework Decision, Member States shall determine under which conditions their competent authorities may consent to the forwarding of a judgment and, where applicable, a probation decision under paragraph 2. 4. Each Member State shall make a declaration to the General Secretariat of the Council of the determination made under paragraph 3. Member States may modify such a declaration at any time. The General Secretariat shall make the information received available to all Member States and to the Commission. Article 6 Procedure for forwarding a judgment and, where applicable, a probation decision 1. When, in application of Article 5(1) or (2), the competent authority of the issuing State forwards a judgment and, where applicable, a probation decision to another Member State, it shall ensure that it is accompanied by a certificate, the standard form for which is set out in Annex I. 2. The judgment and, where applicable, the probation decision, together with the certificate referred to in paragraph 1, shall be forwarded by the competent authority of the issuing State directly to the competent authority of the executing State by any means which leaves a written record under conditions allowing the executing State to establish their authenticity. The original of the judgment and, where applicable, the probation decision, or certified copies thereof, as well as the original of the certificate, shall be sent to the competent authority of the executing State if it so requires. All official communications shall also be made directly between the said competent authorities. 3. The certificate referred to in paragraph 1 shall be signed and its content certified as accurate by the competent authority of the issuing State. 4. Apart from the measures and sanctions referred to in Article 4(1), the certificate referred to in paragraph 1 of this Article shall include only such measures or sanctions as notified by the executing State in accordance with Article 4(2). 5. The competent authority of the issuing State shall forward the judgment and, where applicable, the probation decision, together with the certificate referred to in paragraph 1 only to one executing State at any one time. 6. If the competent authority of the executing State is not known to the competent authority of the issuing State, the latter shall make all necessary inquiries, including via the contact points of the European Judicial Network created by Council Joint Action 98/428/JHA (7), in order to obtain the information from the executing State. 7. When an authority of the executing State which receives a judgment and, where applicable, a probation decision, together with the certificate referred to in paragraph 1, has no competence to recognise it and take the ensuing necessary measures for the supervision of the probation measure or alternative sanction, it shall, ex officio, forward it to the competent authority and shall without delay inform the competent authority of the issuing State accordingly by any means which leaves a written record. Article 7 Consequences for the issuing State 1. Once the competent authority of the executing State has recognised the judgment and, where applicable, the probation decision forwarded to it and has informed the competent authority of the issuing State of such recognition, the issuing State shall no longer have competence in relation to the supervision of the probation measures or alternative sanctions imposed, nor to take subsequent measures referred to in Article 14(1). 2. The competence referred to in paragraph 1 shall revert to the issuing State: (a) as soon as its competent authority has notified withdrawal of the certificate referred to in Article 6(1), pursuant to Article 9(4), to the competent authority of the executing State; (b) in cases referred to in Article 14(3) in combination with 14(5); and (c) in cases referred to in Article 20. Article 8 Decision of the executing State 1. The competent authority of the executing State shall recognise the judgment and, where applicable, the probation decision forwarded in accordance with Article 5 and following the procedure laid down in Article 6 and shall without delay take all necessary measures for the supervision of the probation measures or alternative sanctions, unless it decides to invoke one of the grounds for refusing recognition and supervision referred to in Article 11. 2. The competent authority of the executing State may postpone the decision on recognition of the judgment and, where applicable, the probation decision in the situation where the certificate referred to in Article 6(1) is incomplete or obviously does not correspond to the judgment or, where applicable, the probation decision, until such reasonable deadline set for the certificate to be completed or corrected. Article 9 Adaptation of the probation measures or alternative sanctions 1. If the nature or duration of the relevant probation measure or alternative sanction, or the duration of the probation period, are incompatible with the law of the executing State, the competent authority of that State may adapt them in line with the nature and duration of the probation measures and alternative sanctions, or duration of the probation period, which apply, under the law of the executing State, to equivalent offences. The adapted probation measure, alternative sanction or duration of the probation period shall correspond as far as possible to that imposed in the issuing State. 2. Where the probation measure, the alternative sanction or the probation period has been adapted because its duration exceeds the maximum duration provided for under the law of the executing State, the duration of the adapted probation measure, alternative sanction or probation period shall not be below the maximum duration provided for equivalent offences under the law of the executing State. 3. The adapted probation measure, alternative sanction or probation period shall not be more severe or longer than the probation measure, alternative sanction or probation period which was originally imposed. 4. Following receipt of the information referred to in Articles 16(2) or 18(5), the competent authority of the issuing State may decide to withdraw the certificate referred to in Article 6(1) provided that supervision in the executing State has not yet begun. In such cases, the decision shall be taken and communicated as soon as possible and within ten days of the receipt of the information. Article 10 Double criminality 1. The following offences, if they are punishable in the issuing State by a custodial sentence or a measure involving deprivation of liberty for a maximum period of at least three years, and as they are defined by the law of the issuing State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to recognition of the judgment and, where applicable, the probation decision and to supervision of probation measures and alternative sanctions: — participation in a criminal organisation, — terrorism, — trafficking in human beings, — sexual exploitation of children and child pornography, — illicit trafficking in narcotic drugs and psychotropic substances, — illicit trafficking in weapons, munitions and explosives, — corruption, — fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ financial interests (8), — laundering of the proceeds of crime, — counterfeiting currency, including of the euro, — computer-related crime, — environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, — facilitation of unauthorised entry and residence, — murder, grievous bodily injury, — illicit trade in human organs and tissue, — kidnapping, illegal restraint and hostage-taking, — racism and xenophobia, — organised or armed robbery, — illicit trafficking in cultural goods, including antiques and works of art, — swindling, — racketeering and extortion, — counterfeiting and piracy of products, — forgery of administrative documents and trafficking therein, — forgery of means of payment, — illicit trafficking in hormonal substances and other growth promoters, — illicit trafficking in nuclear or radioactive materials, — trafficking in stolen vehicles, — rape, — arson, — crimes within the jurisdiction of the International Criminal Court, — unlawful seizure of aircraft/ships, — sabotage. 2. The Council may decide to add other categories of offences to the list provided for in paragraph 1 of this Article at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union. The Council shall examine, in the light of the report submitted to it pursuant to Article 26(1) of this Framework Decision, whether the list should be extended or amended. 3. For offences other than those covered by paragraph 1, the executing State may make the recognition of the judgment and, where applicable, the probation decision and the supervision of probation measures and of alternative sanctions subject to the condition that the judgment relates to acts which also constitute an offence under the law of the executing State, whatever its constituent elements or however it is described. 4. Each Member State may, on the adoption of this Framework Decision or later, by a declaration notified to the General Secretariat of the Council, declare that it will not apply paragraph 1. Any such declaration may be withdrawn at any time. Such declarations or withdrawals of declarations shall be published in the Official Journal of the European Union. Article 11 Grounds for refusing recognition and supervision 1. The competent authority of the executing State may refuse to recognise the judgment or, where applicable, the probation decision and to assume responsibility for supervising probation measures or alternative sanctions if: (a) the certificate referred to in Article 6(1) is incomplete or manifestly does not correspond to the judgment or to the probation decision and has not been completed or corrected within a reasonable period set by the competent authority of the executing State; (b) the criteria set forth in Articles 5(1), 5(2) or 6(4) are not met; (c) recognition of the judgment and assumption of responsibility for supervising probation measures or alternative sanctions would be contrary to the principle of ne bis in idem; (d) in a case referred to in Article 10(3) and, where the executing State has made a declaration under Article 10(4), in a case referred to in Article 10(1), the judgment relates to acts which would not constitute an offence under the law of the executing State. However, in relation to taxes or duties, customs and exchange, execution of the judgment or, where applicable, the probation decision may not be refused on the grounds that the law of the executing State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes or duties, customs and exchange regulations as the law of the issuing State; (e) the enforcement of the sentence is statute-barred according to the law of the executing State and relates to an act which falls within its competence according to that law; (f) there is immunity under the law of the executing State, which makes it impossible to supervise probation measures or alternative sanctions; (g) under the law of the executing State, the sentenced person cannot, owing to his or her age, be held criminally liable for the acts in respect of which the judgment was issued; (h) the judgment was rendered in absentia, unless the certificate states that the person was summoned personally or informed via a representative competent according to the national law of the issuing State of the time and place of the proceedings which resulted in the judgment being rendered in absentia, or that the person has indicated to a competent authority that he or she does not contest the case; (i) the judgment or, where applicable, the probation decision provides for medical/therapeutic treatment which, notwithstanding Article 9, the executing State is unable to supervise in view of its legal or health-care system; (j) the probation measure or alternative sanction is of less than six months’ duration; or (k) the judgment relates to criminal offences which under the law of the executing State are regarded as having been committed wholly or for a major or essential part within its territory, or in a place equivalent to its territory. 2. Any decision under paragraph 1(k) in relation to offences committed partly within the territory of the executing State, or in a place equivalent to its territory, shall be taken by the competent authority of the executing State only in exceptional circumstances and on a case-by case basis, having regard to the specific circumstances of the case, and in particular to whether a major or essential part of the conduct in question has taken place in the issuing State. 3. In the cases referred to in paragraph 1(a), (b), (c), (h), (i), (j) and (k), before deciding not to recognise the judgment or, where applicable, the probation decision and to assume responsibility for supervising probation measures and alternative sanctions, the competent authority of the executing State shall communicate, by appropriate means, with the competent authority of the issuing State and shall, as necessary, ask it to supply all additional information required without delay. 4. Where the competent authority of the executing State has decided to invoke a ground for refusal referred to in paragraph 1 of this Article, in particular the grounds referred to under paragraph 1(d) or (k), it may nevertheless, in agreement with the competent authority of the issuing State, decide to supervise the probation measures or alternative sanctions that are imposed in the judgment and, where applicable, the probation decision forwarded to it, without assuming the responsibility for taking any of the decisions referred to in Article 14(1)(a), (b) and (c). Article 12 Time limit 1. The competent authority of the executing State shall decide as soon as possible, and within 60 days of receipt of the judgment and, where applicable, the probation decision, together with the certificate referred to in Article 6(1), whether or not to recognise the judgment and, where applicable, the probation decision and assume responsibility for supervising the probation measures or alternative sanctions. It shall immediately inform the competent authority of the issuing State, by any means which leaves a written record, of its decision. 2. When in exceptional circumstances it is not possible for the competent authority of the executing State to comply with the time limit provided for in paragraph 1, it shall immediately inform the competent authority of the issuing State by any means, giving the reasons for the delay and indicating the estimated time needed for the final decision to be taken. Article 13 Governing law 1. The supervision and application of probation measures and alternative sanctions shall be governed by the law of the executing State. 2. The competent authority of the executing State may supervise an obligation as referred to in Article 4(1)(h) by requiring the sentenced person to provide proof of compliance with an obligation to compensate for the prejudice caused by the offence. Article 14 Jurisdiction to take all subsequent decisions and governing law 1. The competent authority of the executing State shall have jurisdiction to take all subsequent decisions relating to a suspended sentence, conditional release, conditional sentence and alternative sanction, in particular in case of non-compliance with a probation measure or alternative sanction or if the sentenced person commits a new criminal offence. Such subsequent decisions include notably: (a) the modification of obligations or instructions contained in the probation measure or alternative sanction, or the modification of the duration of the probation period; (b) the revocation of the suspension of the execution of the judgment or the revocation of the decision on conditional release; and (c) the imposition of a custodial sentence or measure involving deprivation of liberty in case of an alternative sanction or conditional sentence. 2. The law of the executing State shall apply to decisions taken pursuant to paragraph 1 and to all subsequent consequences of the judgment including, where applicable, the enforcement and, if necessary, the adaptation of the custodial sentence or measure involving deprivation of liberty. 3. Each Member State may, at the time of adoption of this Framework Decision or at a later stage, declare that as an executing State it will refuse to assume the responsibility provided for in paragraph 1(b) and (c) in cases or categories of cases to be specified by that Member State, in particular: (a) in cases relating to an alternative sanction, where the judgment does not contain a custodial sentence or measure involving deprivation of liberty to be enforced in case of non-compliance with the obligations or instructions concerned; (b) in cases relating to a conditional sentence; (c) in cases where the judgment relates to acts which do not constitute an offence under the law of the executing State, whatever its constituent elements or however it is described. 4. When a Member State makes use of any of the possibilities referred to in paragraph 3, the competent authority of the executing State shall transfer jurisdiction back to the competent authority of the issuing State in case of non-compliance with a probation measure or alternative sanction if the competent authority of the executing State is of the view that a subsequent decision as referred to in paragraph 1(b) or (c) needs to be taken. 5. In the cases referred to in paragraph 3 of this Article, the obligation to recognise the judgment and, where applicable, the probation decision, as well as the obligation to take without delay all necessary measures for the supervision of the probation measures or alternative sanctions, as referred to in Article 8(1), shall not be affected. 6. Declarations as mentioned in paragraph 3 shall be made by notification to the General Secretariat of the Council. Any such declaration may be withdrawn at any time. The declarations and withdrawals mentioned in this Article shall be published in the Official Journal of the European Union. Article 15 Consultations between competent authorities Where and whenever it is felt appropriate, competent authorities of the issuing State and of the executing State may consult each other with a view to facilitating the smooth and efficient application of this Framework Decision. Article 16 Obligations of the authorities involved where the executing State has jurisdiction for subsequent decisions 1. The competent authority of the executing State shall without delay inform the competent authority of the issuing State, by any means which leaves a written record, of all decisions on the: (a) modification of the probation measure or alternative sanction; (b) revocation of the suspension of the execution of the judgment or revocation of the decision on conditional release; (c) enforcement of a custodial sentence or measure involving deprivation of liberty, because of non-compliance with a probation measure or alternative sanction; (d) lapsing of the probation measure or alternative sanction. 2. If so requested by the competent authority of the issuing State, the competent authority of the executing State shall inform it of the maximum duration of deprivation of liberty that is foreseen in the national law of the executing State for the offence which gave rise to the judgment and that could be imposed on the sentenced person in case of breach of the probation measure or alternative sanction. This information shall be provided immediately after reception of the judgment and, where applicable, the probation decision, together with the certificate referred to in Article 6(1). 3. The competent authority of the issuing State shall immediately inform the competent authority of the executing State, by any means which leaves a written record, of any circumstances or findings which, in its opinion, could entail one or more of the decisions referred to in paragraph 1(a), (b) or (c) being taken. Article 17 Obligations of the authorities involved where the issuing State has jurisdiction for subsequent decisions 1. If the competent authority of the issuing State has jurisdiction for the subsequent decisions mentioned in Article 14(1) pursuant to the application of Article 14(3), the competent authority of the executing State shall immediately notify it of: (a) any finding which is likely to result in revocation of the suspension of the execution of the judgment or revocation of the decision on conditional release; (b) any finding which is likely to result in the imposition of a custodial sentence or measure involving deprivation of liberty; (c) all further facts and circumstances which the competent authority of the issuing State requests to be provided and which are essential in order to allow it to take subsequent decisions in accordance with its national law. 2. When a Member State has made use of the possibility referred to in Article 11(4), the competent authority of that State shall inform the competent authority of the issuing State in case of non-compliance by the sentenced person with a probation measure or alternative sanction. 3. Notice of the findings mentioned in paragraph 1(a) and (b) and in paragraph 2 shall be given using the standard form set out in Annex II. Notice of the facts and circumstances mentioned in paragraph 1(c) shall be given by any means which leaves a written record, including, where possible, through the form set out in Annex II. 4. If, under the national law of the issuing State, the sentenced person must be given a judicial hearing before a decision is taken on the imposition of a sentence, this requirement may be met by following mutatis mutandis the procedure contained in instruments of international or European Union law that provide the possibility of using video links for hearing persons. 5. The competent authority of the issuing State shall without delay inform the competent authority of the executing State of all decisions on: (a) the revocation of the suspension of the execution of the judgment or the revocation of the decision on conditional release; (b) the enforcement of the custodial sentence or measure involving deprivation of liberty, where such measure is contained in the judgment; (c) the imposition of a custodial sentence or measure involving deprivation of liberty, where such measure is not contained in the judgment; (d) the lapsing of the probation measure or alternative sanction. Article 18 Information from the executing State in all cases The competent authority of the executing State shall without delay inform the competent authority of the issuing State, by any means which leaves a written record of: 1. the transmission of the judgment and, where applicable, the probation decision, together with the certificate referred to in Article 6(1) to the competent authority responsible for its recognition and for taking the ensuing measures for the supervision of the probation measures or alternative sanctions in accordance with Article 6(7); 2. the fact that it is in practice impossible to supervise the probation measures or alternative sanctions for the reason that, after transmission of the judgment and, where applicable, the probation decision, together with the certificate referred to in Article 6(1) to the executing State, the sentenced person cannot be found in the territory of the executing State, in which case the executing State shall be under no obligation to supervise the probation measures or alternative sanctions; 3. the final decision to recognise the judgment and, where applicable, the probation decision and to assume responsibility for supervising the probation measures or alternative sanctions; 4. any decision not to recognise the judgment and, where applicable, the probation decision and to assume responsibility for supervising the probation measures or alternative sanctions in accordance with Article 11, together with the reasons for the decision; 5. any decision to adapt the probation measures or alternative sanctions in accordance with Article 9, together with the reasons for the decision; 6. any decision on amnesty or pardon which leads to not supervising the probation measures or alternative sanctions for the reasons referred to in Article 19(1), together, where applicable, with the reasons for the decision. Article 19 Amnesty, pardon, review of judgment 1. An amnesty or pardon may be granted by the issuing State and also by the executing State. 2. Only the issuing State may decide on applications for review of the judgment which forms the basis for the probation measures or alternative sanctions to be supervised under this Framework Decision. Article 20 End of jurisdiction of the executing State 1. If the sentenced person absconds or no longer has a lawful and ordinary residence in the executing State, the competent authority of the executing State may transfer the jurisdiction in respect of the supervision of the probation measures or alternative sanctions and in respect of all further decisions relating to the judgment back to the competent authority of the issuing State. 2. If new criminal proceedings against the person concerned are taking place in the issuing State, the competent authority of the issuing State may request the competent authority of the executing State to transfer jurisdiction in respect of the supervision of the probation measures or alternative sanctions and in respect of all further decisions relating to the judgment back to the competent authority of the issuing State. In such a case, the competent authority of the executing State may transfer jurisdiction back to the competent authority of the issuing State. 3. When, in application of this Article, jurisdiction is transferred back to the issuing State, the competent authority of that State shall resume jurisdiction. For the further supervision of the probation measures or alternative sanctions, the competent authority of the issuing State shall take account of the duration and degree of compliance with the probation measures or alternative sanctions in the executing State, as well as of any decisions taken by the executing State in accordance with Article 16(1). Article 21 Languages The certificate referred to in Article 6(1) shall be translated into the official language or one of the official languages of the executing State. Any Member State may, on adoption of this Framework Decision or later, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other official languages of the institutions of the European Union. Article 22 Costs Costs resulting from the application of this Framework Decision shall be borne by the executing State, except for costs arising exclusively within the territory of the issuing State. Article 23 Relationship with other agreements and arrangements 1. This Framework Decision shall, in relations between the Member States, from 6 December 2011, replace the corresponding provisions of the Council of Europe Convention of 30 November 1964 on the Supervision of Conditionally Sentenced or Conditionally Released Offenders. 2. Member States may continue to apply bilateral or multilateral agreements or arrangements in force after 6 December 2008, in so far as they allow the objectives of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for the supervision of probation measures and alternative sanctions. 3. Member States may conclude bilateral or multilateral agreements or arrangements after 6 December 2008, in so far as such agreements or arrangements allow the provisions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for the supervision of probation measures and alternative sanctions. 4. Member States shall, by 6 March 2009, notify the Council and the Commission of the existing agreements and arrangements referred to in paragraph 2 which they wish to continue applying. Member States shall also notify the Council and the Commission of any new agreement or arrangement as referred to in paragraph 3, within three months of signing it. Article 24 Territorial application This Framework Decision shall apply to Gibraltar. Article 25 Implementation 1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 6 December 2011. 2. Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. Article 26 Review 1. By 6 December 2014, the Commission shall draw up a report on the basis of the information received from Member States under Article 25(2). 2. On the basis of this report, the Council shall assess: (a) the extent to which the Member States have taken the necessary measures in order to comply with this Framework Decision; and (b) the application of this Framework Decision. 3. The report shall be accompanied, if necessary, by legislative proposals. Article 27 Entry into force This Framework Decision shall enter into force on the day of its publication in the Official Journal of the European Union. Done at Brussels, 27 November 2008. For the Council The President M. ALLIOT-MARIE (1) OJ C 147, 30.6.2007, p. 1. (2) Opinion of 25 October 2007 (not yet published in the Official Journal). (3) OJ C 53, 3.3.2005, p. 1. (4) OJ L 327, 5.12.2008, p. 27. (5) OJ L 76, 22.3.2005, p. 16. (6) OJ L 328, 24.11.2006, p. 59. (7) OJ L 191, 7.7.1998, p. 4. (8) OJ C 316, 27.11.1995, p. 49. ANNEX I ANNEX II

Summary: Mutual recognition of probation measures and alternative sanctions Mutual recognition of probation measures and alternative sanctions The framework decision seeks to extend the principle of mutual recognition of judicial decisions to the implementation of non-custodial sentences. ACT Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions. SUMMARY WHAT DOES THIS FRAMEWORK DECISION DO? The framework decision sets down the rules to be followed by each EU country to recognise judgments and supervise probation measures (enabling early release) and alternative sanctions (imposing alternatives to detention) issued by other EU countries. It seeks to: increase the chances of the social reintegration of those who are sentenced by ensuring the follow-up in the EU country in which they are established of the measures imposed; improve the protection of victims; facilitate the application of probation measures and alternative sanctions if the offender does not live in the country of conviction. KEY POINTS Probation measures and alternative sanctions The framework decision lists a number of measures that each EU country must be able to supervise (such as the need to report to the executing authority, to repair damage caused, to not visit certain places, to avoid contact with people or objects, to perform community service, etc.). Procedures, deadlines and grounds for refusal The judgment (or the probation decision), accompanied by a certificate, is transmitted directly by the competent authority of the country of issue to that of the country of execution. The execution country must decide, 60 days after receipt of the judgment or the probation measures and certificate, whether it recognises the judgment or the probation measures and whether it takes responsibility for monitoring its execution; the framework decision lists some reasons why a country may refuse to recognise a judgment. The law of the executing country applies to the supervision and application of probation measures and alternative sanctions. The competent authority of the country of execution: may adapt the measures when, because of their nature or their duration, they are incompatible with its national legislation. It must inform the issuing authority of any proposed adaptation and ensure that measures are as consistent as possible with those imposed by the issuing country; is responsible for taking any subsequent decision in connection with the supervision and enforcement of the sentence: the modification of obligations, any extension of the probationary period and the revocation of the suspension. In a report published in 2014, the Commission called on EU countries that have not already done so to rapidly take the necessary measures to implement this framework decision. WHEN DOES THE FRAMEWORK DECISION APPLY? The framework decision was to be implemented no later than 6 December 2011. BACKGROUND Each year, tens of thousands of EU citizens are prosecuted for alleged criminal offences or convicted in another EU country. Mutual recognition of judgments is the cornerstone of judicial cooperation in criminal matters within the EU. REFERENCES Act Entry into force Deadline for transposition in the Member States Official Journal Framework Decision 2008/947/JHA 16.12.2008 6.12.2011 OJ L 337, 16.12.2008, pp. 102-122 Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal Framework Decision 2009/299/JHA 28.3.2009 28.3.2011 OJ L 81, 27.3.2009, pp. 24-36 RELATED ACTS Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention (COM(2014) 57 final of 5 February 2014 - not published in the Official Journal). last update 03.03.2015


6.12.2008 EN Official Journal of the European Union L 328/55 COUNCIL FRAMEWORK DECISION 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 29, 31 and 34(2)(b) thereof, Having regard to the proposal from the Commission, Having regard to the Opinion of the European Parliament (1), Whereas: (1) Racism and xenophobia are direct violations of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles upon which the European Union is founded and which are common to the Member States. (2) The Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice (2), the Conclusions of the Tampere European Council of 15 and 16 October 1999, the Resolution of the European Parliament of 20 September 2000 on the European Union’s position at the World Conference Against Racism and the current situation in the Union (3) and the Communication from the Commission to the Council and the European Parliament on the biannual update of the Scoreboard to review progress on the creation of an area of ‘freedom, security and justice’ in the European Union (second half of 2000) call for action in this field. In the Hague Programme of 4 and 5 November 2004, the Council recalls its firm commitment to oppose any form of racism, anti-Semitism and xenophobia as already expressed by the European Council in December 2003. (3) Council Joint Action 96/443/JHA of 15 July 1996 concerning action to combat racism and xenophobia (4) should be followed by further legislative action addressing the need for further approximation of law and regulations of Member States and for overcoming obstacles for efficient judicial cooperation which are mainly based on the divergence of legal approaches in the Member States. (4) According to the evaluation of Joint Action 96/443/JHA and work carried out in other international fora, such as the Council of Europe, some difficulties have still been experienced regarding judicial cooperation and therefore there is a need for further approximation of Member States’ criminal laws in order to ensure the effective implementation of comprehensive and clear legislation to combat racism and xenophobia. (5) Racism and xenophobia constitute a threat against groups of persons which are the target of such behaviour. It is necessary to define a common criminal-law approach in the European Union to this phenomenon in order to ensure that the same behaviour constitutes an offence in all Member States and that effective, proportionate and dissuasive penalties are provided for natural and legal persons having committed or being liable for such offences. (6) Member States acknowledge that combating racism and xenophobia requires various kinds of measures in a comprehensive framework and may not be limited to criminal matters. This Framework Decision is limited to combating particularly serious forms of racism and xenophobia by means of criminal law. Since the Member States’ cultural and legal traditions are, to some extent, different, particularly in this field, full harmonisation of criminal laws is currently not possible. (7) In this Framework Decision ‘descent’ should be understood as referring mainly to persons or groups of persons who descend from persons who could be identified by certain characteristics (such as race or colour), but not necessarily all of these characteristics still exist. In spite of that, because of their descent, such persons or groups of persons may be subject to hatred or violence. (8) ‘Religion’ should be understood as broadly referring to persons defined by reference to their religious convictions or beliefs. (9) ‘Hatred’ should be understood as referring to hatred based on race, colour, religion, descent or national or ethnic origin. (10) This Framework Decision does not prevent a Member State from adopting provisions in national law which extend Article 1(1)(c) and (d) to crimes directed against a group of persons defined by other criteria than race, colour, religion, descent or national or ethnic origin, such as social status or political convictions. (11) It should be ensured that investigations and prosecutions of offences involving racism and xenophobia are not dependent on reports or accusations made by victims, who are often particularly vulnerable and reluctant to initiate legal proceedings. (12) Approximation of criminal law should lead to combating racist and xenophobic offences more effectively, by promoting a full and effective judicial cooperation between Member States. The difficulties which may exist in this field should be taken into account by the Council when reviewing this Framework Decision with a view to considering whether further steps in this area are necessary. (13) Since the objective of this Framework Decision, namely ensuring that racist and xenophobic offences are sanctioned in all Member States by at least a minimum level of effective, proportionate and dissuasive criminal penalties, cannot be sufficiently achieved by the Member States individually, since such rules have to be common and compatible and since this objective can therefore be better achieved at the level of the European Union, the Union may adopt measures, in accordance with the principle of subsidiarity as referred to in Article 2 of the Treaty on European Union and as set out in Article 5 of the Treaty establishing the European Community. In accordance with the principle of proportionality, as set out in the latter Article, this Framework Decision does not go beyond what is necessary in order to achieve that objective. (14) This Framework Decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Articles 10 and 11 thereof, and reflected in the Charter of Fundamental Rights of the European Union, and notably Chapters II and VI thereof. (15) Considerations relating to freedom of association and freedom of expression, in particular freedom of the press and freedom of expression in other media have led in many Member States to procedural guarantees and to special rules in national law as to the determination or limitation of liability. (16) Joint Action 96/443/JHA should be repealed since, with the entry into force of the Treaty of Amsterdam, Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (5) and this Framework Decision, it becomes obsolete, HAS ADOPTED THIS FRAMEWORK DECISION: Article 1 Offences concerning racism and xenophobia 1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: (a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin; (b) the commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material; (c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group; (d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group. 2. For the purpose of paragraph 1, Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting. 3. For the purpose of paragraph 1, the reference to religion is intended to cover, at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin. 4. Any Member State may, on adoption of this Framework Decision or later, make a statement that it will make punishable the act of denying or grossly trivialising the crimes referred to in paragraph 1(c) and/or (d) only if the crimes referred to in these paragraphs have been established by a final decision of a national court of this Member State and/or an international court, or by a final decision of an international court only. Article 2 Instigation, aiding and abetting 1. Each Member State shall take the measures necessary to ensure that instigating the conduct referred to in Article 1(1)(c) and (d) is punishable. 2. Each Member State shall take the measures necessary to ensure that aiding and abetting in the commission of the conduct referred to in Article 1 is punishable. Article 3 Criminal penalties 1. Each Member State shall take the necessary measures to ensure that the conduct referred to in Articles 1 and 2 is punishable by effective, proportionate and dissuasive criminal penalties. 2. Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1 is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment. Article 4 Racist and xenophobic motivation For offences other than those referred to in Articles 1 and 2, Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties. Article 5 Liability of legal persons 1. Each Member State shall take the necessary measures to ensure that a legal person can be held liable for the conduct referred to in Articles 1 and 2, committed for its benefit by any person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on: (a) a power of representation of the legal person; (b) an authority to take decisions on behalf of the legal person; or (c) an authority to exercise control within the legal person. 2. Apart from the cases provided for in paragraph 1 of this Article, each Member State shall take the necessary measures to ensure that a legal person can be held liable where the lack of supervision or control by a person referred to in paragraph 1 of this Article has made possible the commission of the conduct referred to in Articles 1 and 2 for the benefit of that legal person by a person under its authority. 3. Liability of a legal person under paragraphs 1 and 2 of this Article shall not exclude criminal proceedings against natural persons who are perpetrators or accessories in the conduct referred to in Articles 1 and 2. 4. ‘Legal person’ means any entity having such status under the applicable national law, with the exception of States or other public bodies in the exercise of State authority and public international organisations. Article 6 Penalties for legal persons 1. Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 5(1) is punishable by effective, proportionate and dissuasive penalties, which shall include criminal or non-criminal fines and may include other penalties, such as: (a) exclusion from entitlement to public benefits or aid; (b) temporary or permanent disqualification from the practice of commercial activities; (c) placing under judicial supervision; (d) a judicial winding-up order. 2. Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 5(2) is punishable by effective, proportionate and dissuasive penalties or measures. Article 7 Constitutional rules and fundamental principles 1. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression and association, as enshrined in Article 6 of the Treaty on European Union. 2. This Framework Decision shall not have the effect of requiring Member States to take measures in contradiction to fundamental principles relating to freedom of association and freedom of expression, in particular freedom of the press and the freedom of expression in other media as they result from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability. Article 8 Initiation of investigation or prosecution Each Member State shall take the necessary measures to ensure that investigations into or prosecution of the conduct referred to in Articles 1 and 2 shall not be dependent on a report or an accusation made by a victim of the conduct, at least in the most serious cases where the conduct has been committed in its territory. Article 9 Jurisdiction 1. Each Member State shall take the necessary measures to establish its jurisdiction with regard to the conduct referred to in Articles 1 and 2 where the conduct has been committed: (a) in whole or in part within its territory; (b) by one of its nationals; or (c) for the benefit of a legal person that has its head office in the territory of that Member State. 2. When establishing jurisdiction in accordance with paragraph 1(a), each Member State shall take the necessary measures to ensure that its jurisdiction extends to cases where the conduct is committed through an information system and: (a) the offender commits the conduct when physically present in its territory, whether or not the conduct involves material hosted on an information system in its territory; (b) the conduct involves material hosted on an information system in its territory, whether or not the offender commits the conduct when physically present in its territory. 3. A Member State may decide not to apply, or to apply only in specific cases or circumstances, the jurisdiction rule set out in paragraphs 1(b) and (c). Article 10 Implementation and review 1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 28 November 2010. 2. By the same date Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. On the basis of a report established using this information by the Council and a written report from the Commission, the Council shall, by 28 November 2013, assess the extent to which Member States have complied with the provisions of this Framework Decision. 3. Before 28 November 2013, the Council shall review this Framework Decision. For the preparation of this review, the Council shall ask Member States whether they have experienced difficulties in judicial cooperation with regard to the conduct under Article 1(1). In addition, the Council may request Eurojust to submit a report, on whether differences between national legislations have resulted in any problems regarding judicial cooperation between the Member States in this area. Article 11 Repeal of Joint Action 96/443/JHA Joint Action 96/443/JHA is hereby repealed. Article 12 Territorial application This Framework Decision shall apply to Gibraltar. Article 13 Entry into force This Framework Decision shall enter into force on the day of its publication in the Official Journal of the European Union. Done at Brussels, 28 November 2008. For the Council The President M. ALLIOT-MARIE (1) Opinion of 29 November 2007 (not yet published in the Official Journal). (2) OJ C 19, 23.1.1999, p. 1. (3) OJ C 146, 17.5.2001, p. 110. (4) OJ L 185, 24.7.1996, p. 5. (5) OJ L 180, 19.7.2000, p. 22.

Summary: Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law The purpose of this Framework Decision is to ensure that certain serious manifestations of racism and xenophobia are punishable by effective, proportionate and dissuasive criminal penalties throughout the European Union (EU). Furthermore, it aims to improve and encourage judicial cooperation in this field. ACT Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. SUMMARY As a follow-up to Joint Action 96/443/JHA, this Framework Decision provides for the approximation of laws and regulations of EU countries on offences involving certain manifestations of racism and xenophobia. Certain serious manifestations of racism and xenophobia must constitute an offence in all EU countries and be punishable by effective, proportionate and dissuasive penalties. This Framework Decision applies to all offences committed: within the territory of the European Union (EU), including through an information system; by a national of an EU country or for the benefit of a legal person established in an EU country. To that end, the Framework Decision provides criteria on how to determine the liability of legal persons. ‘Hate speech’ Certain forms of conduct as outlined below, are punishable as criminal offences: public incitement to violence or hatred directed against a group of persons or a member of such a group defined on the basis of race, colour, descent, religion or belief, or national or ethnic origin; the above-mentioned offence when carried out by the public dissemination or distribution of tracts, pictures or other material; publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8) and crimes defined in Article 6 of the Charter of the International Military Tribunal, when the conduct is carried out in a manner likely to incite violence or hatred against such a group or a member of such a group. Instigating, aiding or abetting in the commission of the above offences is also punishable. With regard to these offences listed, EU countries must ensure that they are punishable by: effective, proportionate and dissuasive penalties; a term of imprisonment of a maximum of at least one year. With regard to legal persons, the penalties must be effective, proportionate and dissuasive and must consist of criminal or non-criminal fines. In addition, legal persons may be punished by: exclusion from entitlement to public benefits or aid; temporary or permanent disqualification from the practice or commercial activities; being placed under judicial supervision; a judicial winding-up order. The initiation of investigations or prosecutions of racist and xenophobic offences must not depend on a victim’s report or accusation. ‘Hate crime’ In all cases, racist or xenophobic motivation shall be considered to be an aggravating circumstance or, alternatively, the courts must be empowered to take such motivation into consideration when determining the penalties to be applied. REFERENCES Act Entry into force Deadline for transposition in the Member States Official Journal Framework Decision 2008/913/JHA 6.12.2008 28.11.2010 OJ L 328 of 6.12.2008 RELATED ACTS Report from the Commission to the European Parliament and the Council on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law [ COM(2014) 27 final of 27.1.2014 - not published in the Official Journal]. The report highlights the fact that a number of EU countries have not transposed fully and/or correctly all the provisions of the Framework Decision, in particular in relation to the offences of denying, condoning and grossly trivialising certain international crimes. The majority of EU countries are equipped with provisions criminalising public incitement to racist and xenophobic violence and hatred but a number of them do not fully transpose the offences covered by the Framework Decision. Gaps also remain in relation to the approach taken on racist and xenophobic motivation, the liability of legal persons and jurisdiction. The Commission is engaging in bilateral dialogues with EU countries in the course of 2014 with a view to ensuring full and correct transposition of the Decision. last update 15.06.2014