5.12.2008 EN Official Journal of the European Union L 327/27 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 THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 31(1)(a) and 34(2)(b) thereof, Having regard to the initiative of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, Having regard to the opinion of the European Parliament, Whereas: (1) The European Council meeting in Tampere on 15 and 16 October 1999 endorsed the principle of mutual recognition, which should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union. (2) On 29 November 2000 the Council, in accordance with the Tampere conclusions, adopted a programme of measures to implement the principle of mutual recognition of decisions in criminal matters (1), in which it called for an assessment of the need for modern mechanisms for the mutual recognition of final sentences involving deprivation of liberty (Measure 14) and for extended application of the principle of the transfer of sentenced persons to cover persons resident in a Member State (Measure 16). (3) The Hague Programme on strengthening freedom, security and justice in the European Union (2) requires Member States to complete the programme of measures, in particular in the field of enforcing final custodial sentences. (4) All the Member States have ratified the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983. Under that Convention, sentenced persons may be transferred to serve the remainder of their sentence only to their State of nationality and only with their consent and that of the States involved. The Additional Protocol to that Convention of 18 December 1997, which allows transfer without the person’s consent, subject to certain conditions, has not been ratified by all the Member States. Neither instrument imposes any basic duty to take charge of sentenced persons for enforcement of a sentence or order. (5) Procedural rights in criminal proceedings are a crucial element for ensuring mutual confidence among the Member States in judicial cooperation. Relations between the Member States, which are characterised by special mutual confidence in other Member States’ legal systems, enable recognition by the executing State of decisions taken by the issuing State’s authorities. Therefore, a further development of the cooperation provided for in the Council of Europe instruments concerning the enforcement of criminal judgments should be envisaged, in particular where citizens of the Union were the subject of a criminal judgment and were sentenced to a custodial sentence or a measure involving deprivation of liberty in another Member State. Notwithstanding the need to provide the sentenced person with adequate safeguards, his or her involvement in the proceedings should no longer be dominant by requiring in all cases his or her consent to the forwarding of a judgment to another Member State for the purpose of its recognition and enforcement of the sentence imposed. (6) This Framework Decision should be implemented and applied in a manner which allows general principles of equality, fairness and reasonableness to be respected. (7) Article 4(1)(c) contains a discretionary provision which enables the judgment and the certificate to be forwarded, for example, to the Member State of nationality of the sentenced person, in cases other than those provided for in paragraphs 1(a) and (b) or to the Member State in which the sentenced person lives and has been legally residing continuously for at least five years and will retain a permanent right of residence there. (8) In cases referred to in Article 4(1)(c) the forwarding of the judgment and the certificate to the executing State is subject to consultations between the competent authorities of the issuing and the executing States, and the consent of the competent authority of the executing State. The competent authorities should take into account such elements as, for example, duration of the residence or other links to the executing State. In cases where the sentenced person could be transferred to a Member State and to a third country under national law or international instruments, the competent authorities of the issuing and executing States should, in consultations, consider whether enforcement in the executing State would enhance the aim of social rehabilitation better than enforcement in the third country. (9) Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State. (10) The opinion of the sentenced person referred to in Article 6(3) may be useful mainly in applying Article 4(4). The words ‘in particular’ are intended to cover also cases where the opinion of the sentenced person would include information which might be of relevance in relation to the grounds for non-recognition and non-enforcement. Provisions of Articles 4(4) and 6(3) do not constitute a ground for refusal on social rehabilitation. (11) Poland needs more time than the other Member States to face the practical and material consequences of transfer of Polish citizens convicted in other Member States, especially in the light of an increased mobility of Polish citizens within the Union. For that reason, a temporary derogation of limited scope for a maximum period of five years should be foreseen. (12) This Framework Decision should also, mutatis mutandis, apply to the enforcement of sentences in the cases under Articles 4(6) and 5(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (3). This means, inter alia, that, without prejudice to that Framework Decision, the executing State could verify the existence of grounds for non-recognition and non-enforcement as provided in Article 9 of this Framework Decision, including the checking of double criminality to the extent that the executing State makes a declaration under Article 7(4) of this Framework Decision, as a condition for recognising and enforcing the judgment with a view to considering whether to surrender the person or to enforce the sentence in cases pursuant to Article 4(6) of Framework Decision 2002/584/JHA. (13) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected by the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision should be interpreted as prohibiting refusal to execute a decision when there are objective reasons to believe that the sentence was imposed for the purpose of punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced on any one of those grounds. (14) This Framework Decision should not prevent any Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media. (15) This Framework Decision should be applied in accordance with the right of citizens of the Union to move and reside freely within the territory of the Member States conferred by Article 18 of the Treaty establishing European Community. (16) This Framework Decision should be applied in accordance with applicable Community legislation, including in particular Council Directive 2003/86/EC (4), Council Directive 2003/109/EC (5) and Directive 2004/38/EC of the European Parliament and of the Council (6). (17) Where in this Framework Decision reference is made to the State in which the sentenced person ‘lives’, this indicates the place to which that person is attached based on habitual residence and on elements such as family, social or professional ties. (18) When applying Article 5(1), it should be possible to transmit a judgment or a certified copy thereof and a certificate to the competent authority in the executing State by any means which leaves a written record, for example e-mail and fax, under conditions allowing the executing State to establish authenticity. (19) In cases referred to in Article 9(1)(k), the executing State should consider the possibility of adapting the sentence in accordance with this Framework Decision before it refuses to recognise and enforce the sentence involving a measure other than a custodial sentence. (20) The ground for refusal provided for in Article 9(1)(k) may be applied also in cases where the person has not been found guilty of a criminal offence although the competent authority applied the measure involving the deprivation of liberty other than a custodial sentence as a consequence of a criminal offence. (21) 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 its purpose. Any decision to apply this ground for refusal, should be based on a case-by-case analysis and consultations between the competent authorities of the issuing and executing States. (22) The time limit referred to in Article 12(2) should be implemented by the Member States in such a way that as a general rule, the final decision, including an appeal procedure is completed within a period of 90 days. (23) Article 18(1) states that, subject to the exceptions listed in paragraph 2, the specialty rule applies only where the person has been transferred to the executing State. It should therefore not be applicable where the person has not been transferred to the executing State, for example where the person has fled to the executing State, HAS ADOPTED THIS FRAMEWORK DECISION: CHAPTER I GENERAL PROVISIONS Article 1 Definitions For the purposes of this Framework Decision: (a) ‘judgment’ shall mean a final decision or order of a court of the issuing State imposing a sentence on a natural person; (b) ‘sentence’ shall mean any custodial sentence or any measure involving deprivation of liberty imposed for a limited or unlimited period of time on account of a criminal offence on the basis of criminal proceedings; (c) ‘issuing State’ shall mean the Member State in which a judgment is delivered; (d) ‘executing State’ shall mean the Member State to which a judgment is forwarded for the purpose of its recognition and enforcement. Article 2 Determination of the competent authorities 1. Each Member State shall inform the General Secretariat of the Council which authority or authorities, under its national law, are competent in accordance with this Framework Decision, when that Member State is the issuing State or the executing State. 2. The General Secretariat of the Council shall make the information received available to all Member States and the Commission. Article 3 Purpose and scope 1. The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence. 2. This Framework Decision shall apply where the sentenced person is in the issuing State or in the executing State. 3. This Framework Decision shall apply only to the recognition of judgments and the enforcement of sentences within the meaning of this Framework Decision. The fact that, in addition to the sentence, a fine and/or a confiscation order has been imposed, which has not yet been paid, recovered or enforced, shall not prevent a judgment from being forwarded. The recognition and enforcement of such fines and confiscation orders in another Member State shall be based on the instruments applicable between the Member States, in particular Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (7) and Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (8). 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. CHAPTER II RECOGNITION OF JUDGMENTS AND ENFORCEMENT OF SENTENCES Article 4 Criteria for forwarding a judgment and a certificate to another Member State 1. Provided that the sentenced person is in the issuing State or in the executing State, and provided that this person has given his or her consent where required under Article 6, a judgment, together with the certificate for which the standard form is given in Annex I, may be forwarded to one of the following Member States: (a) the Member State of nationality of the sentenced person in which he or she lives; or (b) the Member State of nationality, to which, while not being the Member State where he or she lives, the sentenced person will be deported, once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure taken consequential to the judgment; or (c) any Member State other than a Member State referred to in (a) or (b), the competent authority of which consents to the forwarding of the judgment and the certificate to that Member State. 2. The forwarding of the judgment and the certificate may take place where the competent authority of the issuing State, where appropriate after consultations between the competent authorities of the issuing and the executing States, is satisfied that the enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person. 3. Before forwarding the judgment and the certificate, the competent authority of the issuing State may consult, by any appropriate means, the competent authority of the executing State. Consultation shall be obligatory in the cases referred to in paragraph 1(c). In such cases the competent authority of the executing State shall promptly inform the issuing State of its decision whether or not to consent to the forwarding of the judgment. 4. During such consultation, the competent authority of the executing State may present the competent authority of the issuing State with a reasoned opinion, that enforcement of the sentence in the executing State would not serve the purpose of facilitating the social rehabilitation and successful reintegration of the sentenced person into society. Where there has been no consultation, such an opinion may be presented without delay after the transmission of the judgment and the certificate. The competent authority of the issuing State shall consider such opinion and decide whether to withdraw the certificate or not. 5. The executing State may, on its own initiative, request the issuing State to forward the judgment together with the certificate. The sentenced person may also request the competent authorities of the issuing State or of the executing State to initiate a procedure for forwarding the judgment and the certificate under this Framework Decision. Requests made under this paragraph shall not create an obligation of the issuing State to forward the judgment together with the certificate. 6. In implementing this Framework Decision, Member States shall adopt measures, in particular taking into account the purpose of facilitating social rehabilitation of the sentenced person, constituting the basis on which their competent authorities have to take their decisions whether or not to consent to the forwarding of the judgment and the certificate in cases pursuant to paragraph 1(c). 7. Each Member State may, either on adoption of this Framework Decision or later, notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, its prior consent under paragraph 1(c) is not required for the forwarding of the judgment and the certificate: (a) if the sentenced person lives in and has been legally residing continuously for at least five years in the executing State and will retain a permanent right of residence in that State, and/or (b) if the sentenced person is a national of the executing State in cases other than those provided for in paragraph 1(a) and (b). In cases referred to in point (a), permanent right of residence shall mean that the person concerned: — has a right of permanent residence in the respective Member State in accordance with the national law implementing Community legislation adopted on the basis of Article 18, 40, 44 and 52 of the Treaty establishing the European Community, or — possesses a valid residence permit, as a permanent or long-term resident, for the respective Member State, in accordance with the national law implementing Community legislation adopted on the basis of Article 63 of the Treaty establishing the European Community, as regards Member States to which such Community legislation is applicable, or in accordance with national law, as regards Member States to which it is not. Article 5 Forwarding of the judgment and the certificate 1. The judgment or a certified copy of it, together with the certificate, 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 its authenticity. The original of the judgment, or a certified copy of it, and the original of the certificate, shall be sent to the executing State if it so requires. All official communications shall also be made directly between the said competent authorities. 2. The certificate, shall be signed, and its content certified as accurate, by the competent authority of the issuing State. 3. The issuing State shall forward the judgment together with the certificate to only one executing State at any one time. 4. 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 set up by Council Joint Action 98/428/JHA (9), in order to obtain the information from the executing State. 5. When an authority of the executing State which receives a judgment together with a certificate has no competence to recognise it and take the necessary measures for its enforcement, it shall, ex officio, forward the judgment together with the certificate to the competent authority of the executing State and inform the competent authority of the issuing State accordingly. Article 6 Opinion and notification of the sentenced person 1. Without prejudice to paragraph 2, a judgment together with a certificate may be forwarded to the executing State for the purpose of its recognition and enforcement of the sentence only with the consent of the sentenced person in accordance with the law of the issuing State. 2. The consent of the sentenced person shall not be required where the judgment together with the certificate is forwarded: (a) to the Member State of nationality in which the sentenced person lives; (b) to the Member State to which the sentenced person will be deported once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure consequential to the judgment; (c) to the Member State to which the sentenced person has fled or otherwise returned in view of the criminal proceedings pending against him or her in the issuing State or following the conviction in that issuing State. 3. In all cases where the sentenced person is still in the issuing State, he or she shall be given an opportunity to state his or her opinion orally or in writing. Where the issuing State considers it necessary in view of the sentenced person’s age or his or her physical or mental condition, that opportunity shall be given to his or her legal representative. The opinion of the sentenced person shall be taken into account when deciding the issue of forwarding the judgement together with the certificate. Where the person has availed him or her self of the opportunity provided in this paragraph, the opinion of the sentenced person shall be forwarded to the executing State, in particular with a view to Article 4(4). If the sentenced person stated his or her opinion orally, the issuing State shall ensure that the written record of such statement is available to executing State. 4. The competent authority of the issuing State shall inform the sentenced person, in a language which he or she understands, that it has decided to forward the judgment together with the certificate by using the standard form of the notification set out in Annex II. When the sentenced person is in the executing State at the time of that decision, that form shall be transmitted to the executing State which shall inform the sentenced person accordingly. 5. Paragraph 2(a) shall not apply to Poland as an issuing State and as an executing State in cases where the judgement was issued before the lapse of five years from 5 December 2011. Poland may at any time notify the General Secretariat of the Council that it will no longer avail itself of this derogation. Article 7 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 enforcement of the sentence imposed: — 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 (10), — 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 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 29(5) 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 enforcement of the sentence subject to the condition that it 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 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 8 Recognition of the judgment and enforcement of the sentence 1. The competent authority of the executing State shall recognise a judgment which has been forwarded in accordance with Article 4 and following the procedure under Article 5, and shall forthwith take all the necessary measures for the enforcement of the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided for in Article 9. 2. Where the sentence is incompatible with the law of the executing State in terms of its duration, the competent authority of the executing State may decide to adapt the sentence only where that sentence exceeds the maximum penalty provided for similar offences under its national law. The adapted sentence shall not be less than the maximum penalty provided for similar offences under the law of the executing State. 3. Where the sentence is incompatible with the law of the executing State in terms of its nature, the competent authority of the executing State may adapt it to the punishment or measure provided for under its own law for similar offences. Such a punishment or measure shall correspond as closely as possible to the sentence imposed in the issuing State and therefore the sentence shall not be converted into a pecuniary punishment. 4. The adapted sentence shall not aggravate the sentence passed in the issuing State in terms of its nature or duration. Article 9 Grounds for non-recognition and non-enforcement 1. The competent authority of the executing State may refuse to recognise the judgment and enforce the sentence, if: (a) the certificate referred to in Article 4 is incomplete or manifestly does not correspond to the judgment and has not been completed or corrected within a reasonable deadline set by the competent authority of the executing State; (b) the criteria set forth in Article 4(1) are not met; (c) enforcement of the sentence would be contrary to the principle of ne bis in idem; (d) in a case referred to in Article 7(3) and, where the executing State has made a declaration under Article 7(4), in a case referred to in Article 7(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 a judgment may not be refused on the ground 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, duties and 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; (f) there is immunity under the law of the executing State, which makes it impossible to enforce the sentence; (g) the sentence has been imposed on a person who, under the law of the executing State, owing to his or her age, could not have been held criminally liable for the acts in respect of which the judgment was issued; (h) at the time the judgment was received by the competent authority of the executing State, less than six months of the sentence remain to be served; (i) 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; (j) the executing State, before a decision is taken in accordance with Article 12(1), makes a request, in accordance with Article 18(3), and the issuing State does not consent, in accordance with Article 18(2)(g), to the person concerned being prosecuted, sentenced or otherwise deprived of his or her liberty in the executing State for an offence committed prior to the transfer other than that for which the person was transferred; (k) the sentence imposed includes a measure of psychiatric or health care or another measure involving deprivation of liberty, which, notwithstanding Article 8(3), cannot be executed by the executing State in accordance with its legal or health care system; (l) 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(l) 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 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), (i), (k) and (l), before deciding not to recognise the judgment and enforce the sentence, the competent authority of the executing State shall consult the competent authority of the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary additional information without delay. Article 10 Partial recognition and enforcement 1. If the competent authority of the executing State could consider recognition of the judgment and enforcement of the sentence in part, it may, before deciding to refuse recognition of the judgment and enforcement of the sentence in whole, consult the competent authority of the issuing State with a view to finding an agreement, as provided for in paragraph 2. 2. The competent authorities of the issuing and the executing States may agree, on a case-by-case basis, to the partial recognition and enforcement of a sentence in accordance with the conditions set out by them, provided such recognition and enforcement does not result in the aggravation of the duration of the sentence. In the absence of such agreement, the certificate shall be withdrawn. Article 11 Postponement of recognition of the judgment The recognition of the judgment may be postponed in the executing State where the certificate referred to in Article 4 is incomplete or manifestly does not correspond to the judgment, until such reasonable deadline set by the executing State for the certificate to be completed or corrected. Article 12 Decision on the enforcement of the sentence and time limits 1. The competent authority in the executing State shall decide as quickly as possible whether to recognise the judgment and enforce the sentence and shall inform the issuing State thereof, including of any decision to adapt the sentence in accordance with Article 8(2) and (3). 2. Unless a ground for postponement exists under Article 11 or Article 23(3), the final decision on the recognition of the judgment and the enforcement of the sentence shall be taken within a period of 90 days of receipt of the judgment and the certificate. 3. When in exceptional cases it is not practicable for the competent authority of the executing State to comply with the period provided for in paragraph 2, it shall without delay inform the competent authority of the issuing State by any means, giving the reasons for the delay and the estimated time needed for the final decision to be taken. Article 13 Withdrawal of the certificate As long as the enforcement of the sentence in the executing State has not begun, the issuing State may withdraw the certificate from that State, giving reasons for doing so. Upon withdrawal of the certificate, the executing State shall no longer enforce the sentence. Article 14 Provisional arrest Where the sentenced person is in the executing State, the executing State may, at the request of the issuing State, before the arrival of the judgment and the certificate, or before the decision to recognise the judgment and enforce the sentence, arrest the sentenced person, or take any other measure to ensure that the sentenced person remains in its territory, pending a decision to recognise the judgment and enforce the sentence. The duration of the sentence shall not be aggravated as a result of any period spent in custody by reason of this provision. Article 15 Transfer of sentenced persons 1. If the sentenced person is in the issuing State, he or she shall be transferred to the executing State at a time agreed between the competent authorities of the issuing and the executing States, and no later than 30 days after the final decision of the executing State on the recognition of the judgment and enforcement of the sentence has been taken. 2. If the transfer of the sentenced person within the period laid down in paragraph 1 is prevented by unforeseen circumstances, the competent authorities of the issuing and executing States shall immediately contact each other. Transfer shall take place as soon as these circumstances cease to exist. The competent authority of the issuing State shall immediately inform the competent authority of the executing State and agree on a new transfer date. In that event, transfer shall take place within 10 days of the new date thus agreed. Article 16 Transit 1. Each Member State shall, in accordance with its law, permit the transit through its territory of a sentenced person who is being transferred to the executing State, provided that a copy of the certificate referred to in Article 4 has been forwarded to it by the issuing State together with the transit request. The transit request and the certificate may be transmitted by any means capable of producing a written record. Upon request of the Member State to permit transit, the issuing State shall provide a translation of the certificate into one of the languages, to be indicated in the request, which the Member State requested to permit transit accepts. 2. When receiving a request to permit transit, the Member State requested to permit transit shall inform the issuing State if it cannot guarantee that the sentenced person will not be prosecuted, or, except as provided in paragraph 1, detained or otherwise subjected to any restriction of his or her liberty in its territory for any offence committed or sentence imposed before his or her departure from the territory of the issuing State. In such a case, the issuing State may withdraw its request. 3. The Member State requested to permit transit shall notify its decision, which shall be taken on a priority basis and not later than one week after having received the request, by the same procedure. Such a decision may be postponed until the translation has been transmitted to the Member State requested to permit transit, where such translation is required under paragraph 1. 4. The Member State requested to permit transit may hold the sentenced person in custody only for such time as transit through its territory requires. 5. A transit request shall not be required in the case of transport by air without a scheduled stopover. However, if an unscheduled landing occurs, the issuing State shall provide the information provided for in paragraph 1 within 72 hours. Article 17 Law governing enforcement 1. The enforcement of a sentence shall be governed by the law of the executing State. The authorities of the executing State alone shall, subject to paragraphs 2 and 3, be competent to decide on the procedures for enforcement and to determine all the measures relating thereto, including the grounds for early or conditional release. 2. The competent authority of the executing State shall deduct the full period of deprivation of liberty already served in connection with the sentence in respect of which the judgment was issued from the total duration of the deprivation of liberty to be served. 3. The competent authority of the executing State shall, upon request, inform the competent authority of the issuing State of the applicable provisions on possible early or conditional release. The issuing State may agree to the application of such provisions or it may withdraw the certificate. 4. Member States may provide that any decision on early or conditional release may take account of those provisions of national law, indicated by the issuing State, under which the person is entitled to early or conditional release at a specified point in time. Article 18 Specialty 1. A person transferred to the executing State pursuant to this Framework Decision shall not, subject to paragraph 2, be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed before his or her transfer other than that for which he or she was transferred. 2. Paragraph 1 shall not apply in the following cases: (a) when the person having had an opportunity to leave the territory of the executing State has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it; (b) when the offence is not punishable by a custodial sentence or detention order; (c) when the criminal proceedings do not give rise to the application of a measure restricting personal liberty; (d) when the sentenced person could be liable to a penalty or a measure not involving deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure in lieu may give rise to a restriction of his or her personal liberty; (e) when the sentenced person consented to the transfer; (f) when the sentenced person, after his or her transfer, has expressly renounced entitlement to the specialty rule with regard to specific offences preceding his or her transfer. Renunciation shall be given before the competent judicial authorities of the executing State and shall be recorded in accordance with that State’s national law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel; (g) for cases other than those mentioned under points (a) to (f), where the issuing State gives its consent in accordance with paragraph 3. 3. A request for consent shall be submitted to the competent authority of the issuing State, accompanied by the information mentioned in Article 8(1) of Framework Decision 2002/584/JHA and a translation as referred to in Article 8(2) thereof. Consent shall be given where there is an obligation to surrender the person under that Framework Decision. The decision shall be taken no later than 30 days after receipt of the request. For the situations mentioned in Article 5 of that Framework Decision, the executing State shall give the guarantees provided for therein. 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 imposing the sentence to be enforced under this Framework Decision. Article 20 Information from the issuing State 1. The competent authority of the issuing State shall forthwith inform the competent authority of the executing State of any decision or measure as a result of which the sentence ceases to be enforceable immediately or within a certain period of time. 2. The competent authority of the executing State shall terminate enforcement of the sentence as soon as it is informed by the competent authority of the issuing State of the decision or measure referred to in paragraph 1. Article 21 Information to be given by the executing State 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: (a) of the forwarding of the judgment and the certificate to the competent authority responsible for its execution in accordance with Article 5(5); (b) of the fact that it is in practice impossible to enforce the sentence because after transmission of the judgment and the certificate to the executing State, the sentenced person cannot be found in the territory of the executing State, in which case there shall be no obligation on the executing State to enforce the sentence; (c) of the final decision to recognise the judgment and enforce the sentence together with the date of the decision; (d) of any decision not to recognise the judgment and enforce the sentence in accordance with Article 9, together with the reasons for the decision; (e) of any decision to adapt the sentence in accordance with Article 8(2) or (3), together with the reasons for the decision; (f) of any decision not to enforce the sentence for the reasons referred to in Article 19(1) together with the reasons for the decision; (g) of the beginning and the end of the period of conditional release, where so indicated in the certificate by the issuing State; (h) of the sentenced person’s escape from custody; (i) of the enforcement of the sentence as soon as it has been completed. Article 22 Consequences of the transfer of the sentenced person 1. Subject to paragraph 2, the issuing State shall not proceed with the enforcement of the sentence once its enforcement in the executing State has begun. 2. The right to enforce the sentence shall revert to the issuing State upon its being informed by the executing State of the partial non-enforcement of the sentence pursuant to Article 21(h). Article 23 Languages 1. The certificate 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. 2. Subject to paragraph 3, no translation of the judgment shall be required. 3. Any Member State may, on adoption of this Framework Decision or later, in a declaration deposited with the General Secretariat of the Council state that it, as an executing State, may without delay after receiving the judgment and the certificate, request, in cases where it finds the content of the certificate insufficient to decide on the enforcement of the sentence, that the judgment or essential parts of it be accompanied by a translation into the official language or one of the official languages of the executing State or into one or more other official languages of the Institutions of the European Union. Such a request shall be made, after consultation, where necessary, to indicate the essential parts of the judgments to be translated, between the competent authorities of the issuing and the executing States. The decision on recognition of the judgment and enforcement of the sentence may be postponed until the translation has been transmitted by the issuing State to the executing State or, where the executing State decides to translate the judgment at its own expenses, until the translation has been obtained. Article 24 Costs Costs resulting from the application of this Framework Decision shall be borne by the executing State, except for the costs of the transfer of the sentenced person to the executing State and those arising exclusively in the sovereign territory of the issuing State. Article 25 Enforcement of sentences following a European arrest warrant Without prejudice to Framework Decision 2002/584/JHA, provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible with provisions under that Framework Decision, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence in cases pursuant to Article 4(6) of that Framework Decision, or where, acting under Article 5(3) of that Framework Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State concerned, so as to avoid impunity of the person concerned. CHAPTER III FINAL PROVISIONS Article 26 Relationship with other agreements and arrangements 1. Without prejudice to their application between Member States and third States and their transitional application according to Article 28, this Framework Decision shall, from 5 December 2011, replace the corresponding provisions of the following conventions applicable in relations between the Member States: — The European Convention on the transfer of sentenced persons of 21 March 1983 and the Additional Protocol thereto of 18 December 1997; — The European Convention on the International Validity of Criminal Judgements of 28 May 1970; — Title III, Chapter 5, of the Convention of 19 June 1990 implementing the Schengen Convention of 14 June 1985 on the gradual abolition of checks at common borders; — The Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991. 2. Member States may continue to apply bilateral or multilateral agreements or arrangements in force after 27 November 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 enforcement of sentences. 3. Member States may conclude bilateral or multilateral agreements or arrangements after 5 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 enforcement of sentences. 4. Member States shall by 5 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 27 Territorial application This Framework Decision shall apply to Gibraltar. Article 28 Transitional provision 1. Requests received before 5 December 2011 shall continue to be governed in accordance with the existing legal instruments on the transfer of sentenced persons. Requests received after that date shall be governed by the rules adopted by Member States pursuant to this Framework Decision. 2. However, any Member State may, on the adoption of this Framework Decision, make a declaration indicating that, in cases where the final judgment has been issued before the date it specifies, it will as an issuing and an executing State, continue to apply the existing legal instruments on the transfer of sentenced persons applicable before 5 December 2011. If such a declaration is made, those instruments shall apply in such cases in relation to all other Member States irrespective of whether or not they have made the same declaration. The date in question may not be later than 5 December 2011. The said declaration shall be published in the Official Journal of the European Union. It may be withdrawn at any time. Article 29 Implementation 1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 5 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. On the basis of a report established using this information by the Commission, the Council shall, no later than 5 December 2012, assess the extent to which Member States have complied with the provisions of this Framework Decision. 3. The General Secretariat of the Council shall notify the Member States and the Commission of the notifications or declarations made pursuant to Article 4(7) and Article 23(1) or (3). 4. Without prejudice to Article 35(7) of the Treaty on European Union, a Member State which has experienced repeated difficulties in the application of Article 25 of this Framework Decision, which have not been solved through bilateral consultations, shall inform the Council and the Commission of its difficulties. The Commission shall, on the basis of this information and any other information available to it, establish a report, accompanied by any initiatives it may deem appropriate, with a view to resolving these difficulties. 5. By 5 December 2013, the Commission shall establish a report on the basis of the information received, accompanied by any initiatives it may deem appropriate. The Council shall on the basis of any report from the Commission and any initiative, review, in particular Article 25, with a view to considering whether it is to be replaced by more specific provisions. Article 30 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 12, 15.1.2001, p. 10. (2) OJ C 53, 3.3.2005, p. 1. (3) OJ L 190, 18.7.2002, p. 1. (4) OJ L 251, 3.10.2003, p. 12. (5) OJ L 16, 23.1.2004, p. 44. (6) OJ L 158, 30.4.2004, p. 77. (7) OJ L 76, 22.3.2005, p. 16. (8) OJ L 328, 24.11.2006, p. 59. (9) OJ L 191, 7.7.1998, p. 4. (10) OJ C 316, 27.11.1995, p. 49. ANNEX I ANNEX II NOTIFICATION OF THE SENTENCED PERSON You are hereby notified of the decision of … (competent authority of the issuing State) to forward the judgment of … (competent court of the issuing State) dated … (date of judgment) … (reference number; if available) to … (executing State) for the purpose of its recognition and enforcement of the sentence imposed therein in accordance with the national law implementing Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. The enforcement of the sentence will be governed by the law of … (executing State). The authorities of that State will be competent to decide on the procedures for enforcement and to determine all the measures relating thereto, including the grounds for early or conditional release. The competent authority of … (executing State) has to deduct the full period of deprivation of liberty already served in connection with the sentence from the total duration of deprivation of liberty to be served. An adaptation of the sentence by the competent authority of … (executing State) may take place only if it is incompatible with the law of that State in terms of its duration or nature. The adapted sentence must not aggravate the sentence passed in … (issuing State) by its nature or duration.

Summary: EU mutual recognition system – prison sentences and prisoner transfers EU mutual recognition system – prison sentences and prisoner transfers SUMMARY OF: Decision 2008/909/JHA – 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 SUMMARY This framework decision seeks to extend the application of the principle of mutual recognition, whereby EU countries agree to recognise one another’s laws or decisions, to judgments in criminal matters imposing prison sentences. WHAT DOES THIS FRAMEWORK DECISION DO? It describes how EU countries recognise and enforce each other’s judgments in regard to criminal matters. The aim is to help convicted persons to better reintegrate in society. It allows an EU country to enforce a prison sentence imposed by another EU country against a person who resides in its territory. It sets up a system for the transfer of convicted prisoners back to the EU country of which they are nationals (or normally live) or to another EU country with which they have close ties so that they serve their prison sentence there. KEY POINTS The procedure is based on the following principles: A judgment with a certificate is transmitted directly by the competent authority of the issuing country to the country enforcing it. The transfer is subject to the consent of the convicted person, but can be made without this consent in specified circumstances. In all cases, the convicted person should have the chance to give his/her opinion if s/he is still in the country of its issue. The country of enforcement must, without delay, take measures to enforce the sentence. If a sentence is adapted, it must correspond as closely as possible to, and never be harsher than, the original sentence. The execution of a sentence is governed by the law of the country of enforcement, as are the grounds for early or conditional release (when the person must respect conditions, such as not going to a certain district). The decision sets out a list of serious offences that are punishable in the issuing country by at least 3 years in prison, for which judgments are recognised and enforced and for which there is no need to check for dual criminality (i.e. when a crime exists under the law of both issuing and enforcing countries). The country of enforcement must, in most cases, decide within 90 days of receiving the judgment and the certificate whether to recognise the judgment and whether to impose the sentence. The decision includes a limited list of grounds on the basis of which a country may refuse to recognise a judgment and enforce a sentence. The European Commission’s 2014 report on the implementation of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA notes that, despite the efforts made to date by some EU countries, the implementation of these three acts is unsatisfactory. It calls on EU countries that have not already implemented the decisions to do so promptly. FROM WHEN DOES THE FRAMEWORK DECISION APPLY? It entered into force on 5 December 2008. EU countries had to incorporate it in national by 5 December 2011. BACKGROUND Each year, several thousand EU citizens are pursued for alleged criminal offences or are convicted in an EU country other than their own. Mutual recognition of judicial decisions is the cornerstone of judicial cooperation in criminal matters within the EU. ACT 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 (OJ L 327, 5.12.2008, pp. 27–46) RELATED ACTS 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 (OJ L 337, 16.12.2008, pp. 102–122) Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (OJ L 294, 11.11.2009, pp. 20–40) 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 5.2.2014) Commission Staff Working Document — Tables ‘State of play’ and ‘Declarations’ accompanying the document: 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 (SWD(2014) 34 final of 5.2.2014) Commission Decision 2014/858/EU of 1 December 2014 on the notification by the United Kingdom of Great Britain and Northern Ireland of its wish to participate in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon and which are not part of the Schengen acquis (OJ L 345, 1.12.2014, pp. 6–9) last update 17.10.2015


12.11.2008 EN Official Journal of the European Union L 301/38 COUNCIL DECISION 2008/852/JHA of 24 October 2008 on a contact-point network against corruption THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Article 29, Article 30(1), Article 31 and Article 34(2)(c) thereof, Having regard to the initiative of the Federal Republic of Germany (1), Having regard to the opinion of the European Parliament (2), Whereas: (1) Article 29 of the Treaty states that the objective of the Union to provide citizens with a high level of safety within an area of freedom, security and justice is to be achieved by preventing and combating crime, organised or otherwise, including corruption and fraud. (2) The European Union strategy for the beginning of the new millennium on the prevention and control of organised crime emphasises the need to develop a comprehensive EU policy against corruption. (3) In its Resolution of 14 April 2005 concerning a comprehensive EU policy against corruption, which refers to the communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 28 May 2003 on a Comprehensive EU Policy against Corruption, the Council reaffirms the importance of the role and work of the Member States in developing a comprehensive, multi-faceted policy against corruption in both the public and private sectors, in partnership with all relevant players from civil society and business alike. (4) The European Council welcomed the development in the Hague Programme (3) (point 2.7) of a strategic concept with regard to cross-border organised crime and corruption at EU level and asked the Council and the Commission to develop this concept further and make it operational. (5) The heads and key representatives of EU Member States' national police monitoring and inspection bodies and those of their anti-corruption agencies with a wider remit met in November 2004 in Vienna at the AGIS conference on the Enhancement of Operational Cooperation in Fighting Corruption in the European Union. They emphasised the importance of further enhancing their cooperation, inter alia, through annual meetings, and welcomed the idea of a European anti-corruption network based upon existing structures. In the wake of the Vienna conference these European Partners Against Corruption (EPAC) met in Budapest in November 2006 for their sixth annual meeting, where with an overwhelming majority, they confirmed their commitment to supporting the initiative on setting up a more formal anti-corruption network. (6) In order to build upon existing structures, the authorities and agencies to form part of the European anti-corruption network could include EPAC member organisations. (7) The enhancement of international cooperation is generally (4) recognised as a key issue in the fight against corruption. The fight against all forms of corruption should be improved by cooperating effectively, identifying opportunities, sharing good practices and developing high professional standards. The establishment of an anti-corruption network at EU level is an important contribution to the improvement of such cooperation, HAS DECIDED AS FOLLOWS: Article 1 Objective In order to improve cooperation between authorities and agencies to prevent and combat corruption in Europe a network of contact points of the Member States of the European Union shall be set up (hereinafter referred to as the ‘network’). The European Commission, Europol and Eurojust shall be fully associated with the activities of the Network. Article 2 Composition of the network The network shall consist of authorities and agencies of the Member States of the European Union charged with preventing or combating corruption. The members shall be designated by the Member States. The Member States shall each designate at least one, but not more than three organisations. The European Commission shall designate its representatives. Within their respective competencies, Europol and Eurojust may participate in the activities of the Network. Article 3 Tasks of the network 1. The network shall in particular have the following tasks: 1. it shall constitute a forum for the exchange throughout the EU of information on effective measures and experience in the prevention and combating of corruption; 2. it shall facilitate the establishment and active maintenance of contacts between its members. To these ends, inter alia, a list of contact points shall be kept up-to-date and a web site operated. 2. The members of the network shall, for the accomplishment of their tasks, meet at least once a year. Article 4 Scope Police and judicial cooperation between the Member States shall be governed by the relevant rules. The setting up of the network shall be without prejudice to such rules, and without prejudice to the role of CEPOL. Article 5 Organisation of the network 1. The network shall organise itself, building upon existing informal collaboration between the EPAC. 2. The Member States and the European Commission shall bear all expenses of the members or representatives designated by them. The same rule shall apply to Europol and Eurojust. Article 6 Entry into force This Decision shall take effect on the day following that of its adoption. Done at Luxembourg, 24 October 2008. For the Council The President M. ALLIOT-MARIE (1) OJ C 173, 26.7.2007, p. 3. (2) Opinion of 5 June 2008 (not yet published in the Official Journal). (3) The Hague Programme in strengthening freedom, security and justice in the European Union (OJ C 53, 3.3.2005, p. 1). (4) United Nations Convention against Corruption, adopted by General Assembly Resolution 58/4 of 31 October 2003.

Summary: European contact-point network against corruption (EACN) European contact-point network against corruption (EACN) SUMMARY OF: Decision 2008/852/JHA on a contact-point network against corruption WHAT IS THE AIM OF THE DECISION? It establishes a network of contact points against corruption throughout the European Union (EU) building upon existing collaboration within the European Partners against Corruption (EPAC). KEY POINTS This decision establishes a network of contact points in EU countries responsible for preventing or combating corruption. It aims to enhance cooperation between these authorities in order to step up action against corruption at the EU level. The network is composed of the relevant authorities and agencies in EU countries. Each country designates one to three organisations as its members. The European Anti-Fraud Office (OLAF) is also a member. The European Commission also participates in the activities of the network and designates its own representatives. Similarly, Europol and Eurojust may take part in the network. An updated list of contact points is available on the EPAS-EACN website. The tasks of the network consist of: setting up a forum for the exchange of best practices and experiences concerning the prevention and fight against corruption; facilitating and upholding communication between its members. Furthermore, the network meets at least once a year in order to carry out its tasks. The establishment of the network does not affect the rules governing police and judicial cooperation between EU countries nor the role of the European Police College. The informal collaboration taking place between the European Partners against Corruption (EPAC) is the basis for the organisation of the network. Each EU country, the Commission, Europol and Eurojust is to bear its own expenses relating to the network. BACKGROUND At the AGIS conference of November 2004 on the enhancement of operational cooperation in fighting corruption in the EU, the EPAC supported the establishment of an EU-wide anti-corruption network. This initiative was further endorsed at their annual meeting in November 2006. MAIN DOCUMENT Council Decision 2008/852/JHA of 24 October 2008 on a contact-point network against corruption (OJ L 301, 12.11.2008, pp. 38–39) last update 01.12.2016


11.11.2008 EN Official Journal of the European Union L 300/42 COUNCIL FRAMEWORK DECISION 2008/841/JHA of 24 October 2008 on the fight against organised crime THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 29, 31(1)(e) and 34(2)(b) thereof, Having regard to the proposal of the Commission, Having regard to the opinion of the European Parliament (1), Whereas: (1) The objective of the Hague Programme is to improve the common capability of the Union and the Member States for the purpose, among others, of combating transnational organised crime. This objective is to be pursued by, in particular, the approximation of legislation. Closer cooperation between the Member States of the European Union is needed in order to counter the dangers and proliferation of criminal organisations and to respond effectively to citizens’ expectations and Member States’ own requirements. In this respect point 14 of the conclusions of the Brussels European Council of 4 and 5 November 2004 states that the citizens of Europe expect the European Union, while guaranteeing respect for fundamental freedoms and rights, to take a more effective, combined approach to cross-border problems such as organised crime. (2) In its Communication of 29 March 2004 on measures to be taken to combat terrorism and other forms of serious crime, the Commission considered that the facilities available for combating organised crime in the EU needed to be strengthened and stated that it would draw up a Framework Decision to replace Joint Action 98/733/JHA of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union (2). (3) Point 3.3.2 of the Hague Programme states that the approximation of substantive criminal law serves the purpose of facilitating mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters and concerns areas of particularly serious crime with cross-border dimensions and that priority should be given to areas of crime that are specifically mentioned in the Treaties. The definition of offences relating to participation in a criminal organisation should therefore be approximated in the Member States. Thus, this Framework Decision should encompass crimes which are typically committed in a criminal organisation. It should provide, moreover, for the imposition of penalties corresponding to the seriousness of those offences, on natural and legal persons who committed them or are responsible for their commission. (4) The obligations arising by virtue of Article 2(a) should be without prejudice to Member States’ freedom to classify other groups of persons as criminal organisations, for example, groups whose purpose is not financial or other material gain. (5) The obligations arising by virtue of Article 2(a) should be without prejudice to the Member States’ freedom to interpret the term ‘criminal activities’ as implying the carrying out of material acts. (6) The European Union should build on the important work done by international organisations, in particular the United Nations Convention Against Transnational Organised Crime (the ‘Palermo Convention’), which was concluded, on behalf of the European Community, by Council Decision 2004/579/EC (3). (7) Since the objectives of this Framework Decision cannot be sufficiently achieved by the Member States, 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 set out in Article 5 of the Treaty establishing European Community, as applied by the second paragraph of Article 2 of the Treaty on European Union. In accordance with the principle of proportionality this Framework Decision does not go beyond what is necessary to achieve those objectives. (8) This Framework Decision respects the fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union, and in particular Articles 6 and 49 thereof. Nothing in this Framework Decision is intended to reduce or restrict national rules relating to fundamental rights or freedoms such as due process, the right to strike, freedom of assembly, of association, of the press or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate. (9) Joint Action 98/733/JHA should therefore be repealed, HAS ADOPTED THIS FRAMEWORK DECISION: Article 1 Definitions For the purposes of this Framework Decision: 1. ‘criminal organisation’ means a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit; 2. ‘structured association’ means an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure. Article 2 Offences relating to participation in a criminal organisation Each Member State shall take the necessary measures to ensure that one or both of the following types of conduct related to a criminal organisation are regarded as offences: (a) conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organisation or its intention to commit the offences in question, actively takes part in the organisation’s criminal activities, including the provision of information or material means, the recruitment of new members and all forms of financing of its activities, knowing that such participation will contribute to the achievement of the organisation’s criminal activities; (b) conduct by any person consisting in an agreement with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences referred to in Article 1, even if that person does not take part in the actual execution of the activity. Article 3 Penalties 1. Each Member State shall take the necessary measures to ensure that: (a) the offence referred to in Article 2(a) is punishable by a maximum term of imprisonment of at least between two and five years; or (b) the offence referred to in Article 2(b) is punishable by the same maximum term of imprisonment as the offence at which the agreement is aimed, or by a maximum term of imprisonment of at least between two and five years. 2. Each Member State shall take the necessary measures to ensure that the fact that offences referred to in Article 2, as determined by this Member State, have been committed within the framework of a criminal organisation, may be regarded as an aggravating circumstance. Article 4 Special circumstances Each Member State may take the necessary measures to ensure that the penalties referred to in Article 3 may be reduced or that the offender may be exempted from penalties if he, for example: (a) renounces criminal activity; and (b) provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to: (i) prevent, end or mitigate the effects of the offence; (ii) identify or bring to justice the other offenders; (iii) find evidence; (iv) deprive the criminal organisation of illicit resources or of the proceeds of its criminal activities; or (v) prevent further offences referred to in Article 2 from being committed. Article 5 Liability of legal persons 1. Each Member State shall take the necessary measures to ensure that legal persons may be held liable for any of the offences referred to in Article 2 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on one of the following: (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. Member States shall also take the necessary measures to ensure that legal persons may be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission, by a person under its authority, of any of the offences referred to in Article 2 for the benefit of that legal person. 3. Liability of legal persons under paragraphs 1 and 2 shall be without prejudice to criminal proceedings against natural persons who are perpetrators of, or accessories to, any of the offences referred to in Article 2. 4. For the purpose of this Framework Decision ‘legal person’ shall mean any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for 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, for example: (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) judicial winding-up; (e) temporary or permanent closure of establishments which have been used for committing the offence. 2. Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 5(2) is punishable by penalties or measures which are effective, proportionate and dissuasive. Article 7 Jurisdiction and coordination of prosecution 1. Each Member State shall ensure that its jurisdiction covers at least the cases in which the offences referred to in Article 2 were committed: (a) in whole or in part within its territory, wherever the criminal organisation is based or pursues its criminal activities; (b) by one of its nationals; or (c) for the benefit of a legal person established in the territory of that Member State. A Member State may decide that it will not apply, or that it will apply only in specific cases or circumstances, the jurisdiction rules set out in (b) and (c) where the offences referred to in Article 2 are committed outside its territory. 2. When an offence referred to in Article 2 falls within the jurisdiction of more than one Member State and when any one of the States concerned can validly prosecute on the basis of the same facts, the Member States concerned shall cooperate in order to decide which of them will prosecute the offenders, with the aim, if possible, of centralising proceedings in a single Member State. To this end, Member States may have recourse to Eurojust or any other body or mechanism established within the European Union in order to facilitate cooperation between their judicial authorities and the coordination of their action. Special account shall be taken of the following factors: (a) the Member State in the territory of which the acts were committed; (b) the Member State of which the perpetrator is a national or resident; (c) the Member State of the origin of the victims; (d) the Member State in the territory of which the perpetrator was found. 3. A Member State which, under its law, does not as yet extradite or surrender its own nationals shall take the necessary measures to establish its jurisdiction over and, where appropriate, to prosecute the offence referred to in Article 2, when committed by one of its nationals outside its territory. 4. This Article shall not exclude the exercise of jurisdiction in criminal matters as laid down by a Member State in accordance with its national legislation. Article 8 Absence of requirement of a report or accusation by victims Member States shall ensure that investigations into, or prosecution of, offences referred to in Article 2 are not dependent on a report or accusation made by a person subjected to the offence, at least as regards acts committed in the territory of the Member State. Article 9 Repeal of existing provisions Joint Action 98/733/JHA is hereby repealed. References to participation in a criminal organisation within the meaning of Joint Action 98/733/JHA in measures adopted pursuant to Title VI of the Treaty on European Union and the Treaty establishing the European Community shall be construed as references to participation in a criminal organisation within the meaning of this Framework Decision. Article 10 Implementation and reports 1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision before 11 May 2010. 2. The Member States shall transmit to the General Secretariat of the Council and to the Commission, before 11 May 2010, 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 and a written report transmitted by the Commission, the Council shall, before 11 November 2012, assess the extent to which Member States have complied with the provisions of this Framework Decision. Article 11 Territorial application This Framework Decision shall apply to Gibraltar. Article 12 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 Luxembourg, 24 October 2008. For the Council The President M. ALLIOT-MARIE (1) Opinion delivered following non-compulsory consultation (not yet published in the Official Journal). (2) OJ L 351, 29.12.1998, p. 1. (3) OJ L 261, 6.8.2004, p. 69.

Summary: Fight against organised crime: offences linked to participation in a criminal organisation Fight against organised crime: offences linked to participation in a criminal organisation SUMMARY OF: Framework Decision 2008/841/JHA on the fight against organised crime WHAT IS THE AIM OF THE FRAMEWORK DECISION? It criminalises offences linked to participation in a criminal organisation. It aims to harmonise the laws of the European Union (EU) and the EU Member States on the criminalisation of these offences and lays down penalties for them. Offences Member States must recognise at least one of these two types of conduct as an offence: 1.active participation in an organisation’s criminal activities, with the knowledge of its aim or of its intention to commit crimes; 2.agreement to the carrying out of crimes without necessarily taking part in committing them. Penalties Member States must lay down penalties corresponding to the offences mentioned above: for the first option, the requirement is at least 2 years’ imprisonment for the maximum level of penalty;for the second option, the requirement is at least 2 years’ imprisonment for the maximum level of penalty or a maximum term of imprisonment equivalent to that of the planned activities. Penalties may be reduced in specific circumstances, such as the offender renouncing the criminal activity or cooperating by identifying and bringing to justice other offenders. On the basis of the framework decision, Member States must introduce rules that aim to hold legal persons (such as companies) liable for the offences when they are committed on their behalf by a person with a leading role in the legal person. The penalties for legal persons must be effective, proportionate and dissuasive. They should include fines, but may also include the following: ending the right to public aid;temporarily or permanently prohibiting commercial activities and the premises used for the offences;placing under judicial supervision;judicial winding up or liquidation of a business. Jurisdiction and coordination of prosecution A Member State’s jurisdiction must extend to the offences when they are committed, in whole or in part, by one of its nationals or on behalf of a legal person that is set up in their territory. If the offence falls within the jurisdiction of several Member States, they must collaborate, for example through the European Union Agency for Criminal Justice Cooperation, to decide on the prosecuting Member State and to centralise the proceedings. Special account must be taken of: where the offence was carried out;the nationality or place of residence of the offender;the country of origin of the victim; andthe territory where the offender was found. Offences affecting the EU’s financial interests Directive (EU) 2017/1371 sets out rules concerning criminal offences and penalties on combatting fraud and other illegal activities detrimental to the EU’s financial interests (see summary). Article 22(1) of Regulation (EU) 2017/1939 establishing the European Public Prosecutor’s Office (EPPO) (see summary) gives the EPPO power in respect of the criminal offences affecting the EU’s financial interests that are set out in Directive (EU) 2017/1371. In accordance with Article 22(2) of the same regulation, the EPPO also has power in respect of offences regarding participation in a criminal organisation, as defined in Framework Decision 2008/841/JHA, if the focus of the criminal activity of such a criminal organisation is to commit crimes affecting the EU’s financial interests. FROM WHEN DOES THE FRAMEWORK DECISION APPLY? It has applied since 11 November 2008. BACKGROUND Since the 1990s, the EU has taken steps to make the fight against organised crime more effective. 1997: the EU adopts its first action plan to combat organised crime. 1998: the EU adopts Joint Action 98/733/JHA on participation in a criminal organisation. 2000: the United Nations General Assembly adopts the United Nations Convention against Transnational Organized Crime, the first global legal instrument for combating cross-border organised crime, which entered into force in 2003. 2002: the EU adopts Framework Decision 2002/475/JHA on combating terrorism (which defines a ‘terrorist group’ on the basis of the definition of ‘criminal organisation’ in Joint Action 1998/733/JHA), later repealed and replaced by Directive (EU) 2017/541, see summary). 2004: the European Commission communication recognises a need to improve measures used to combat organised crime; by means of Decision 2004/579/EC, the EU accedes to the UN convention. 2008: the EU adopts Framework Decision 2008/841/JHA repealing and replacing Joint Action 98/733/JHA. MAIN DOCUMENT Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (OJ L 300, 11.11.2008, pp. 42–45). RELATED DOCUMENTS Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, pp. 1–71). Successive amendments to Regulation (EU) 2017/1939 have been incorporated in the original text. This consolidated version is of documentary value only. Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law (OJ L 198, 28.7.2017, pp. 29–41). Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88, 31.3.2017, pp. 6–21). United Nations Convention against Transnational Organized Crime and the protocols thereto. Council Decision 2004/579/EC of 29 April 2004 on the conclusion, on behalf of the European Community, of the United Nations Convention Against Transnational Organised Crime (OJ L 261, 6.8.2004, p. 69). last update 16.03.2022