Dp 04 9220-re01[2] 06

Bilaga till dokument från EU-nämnden 2005/06:1328 Till p. 5-6

COUNCIL OF THE EUROPEAN UNION		Brussels, 19 May 2006
Interinstitutional File: 2005/0805 (CNS)	9220/1/06 REV 1 LIMITE
	COPEN 54

NOTE

from :	Presidency
tobj	Coreper/Council
No. prev. doc. :	9220/06 COPEN 54
Subject :	Draft Framework Decision 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

I – INTRODUCTION

The JHA Council discussed at its meeting on 27 and 28 April 2006 the key issue of double criminality in relation to the above draft Framework Decision. It was concluded that further work would continue on the basis of option B in the Annex of 8426/06 COPEN 42. On 3 and 4 May 2006, the Working Party on cooperation in criminal matters started examining option B, and, following further discussions in the Working Party, the issue will be submitted to the Article 36 Committee at a later stage.

At its meeting on 3 and 4 May 2006, the Working Party also examined two other key issues, namely the consent of the executing State (Article 3bis) and the consent of the sentenced person (Article 5). Proceedings took place on the basis of 8626/06 COPEN 44. The two questions were further examined by the Article 36 Committee at its meeting on 16 and 17 May 2006 on the basis of 9220/06 COPEN 54.

These two issues are under II below submitted to Coreper/Council with a view to reaching agreement on them at the JHA Council on 1 and 2 June 2006.

It should be emphasized that the Presidency aims at reaching agreement on the principles behind the text with the understanding that the possible need for technical adjustments to the text in the light of these principles may be examined later by the experts. It is not the intention to discuss the detailed drafting at Coreper/Council. Following the Council, the Presidency will establish a revised wording of the relevant provisions (Articles 3bis, 5 and 9 and possibly a recital) for the purpose of further proceedings in the Working Party. This will be integrated in a document taking into account also the result of proceedings of the Working Party on 3 and 4 May 2006 on other questions.

The European Parliament has been invited to give its opinion on the proposal.

The proposal is subject to general scrutiny reservations and general parliamentary scrutiny reservations by some delegations.

II – QUESTIONS TO EXAMINE

The draft Framework Decision would, in the relations between the Member States, replace:

- – the 1983 Convention on the transfer of sentenced persons (ratified by all Member States).

- – the 1997 Protocol to the 1983 Convention (ratified by 17 Member States) .

- – Articles 67-69 of the 1990 Schengen Convention.

Under these instruments, a State may request another State to enforce the sentence imposed on a national of that other State.

The consent of the requested State is always necessary.

The consent of the sentenced person is in general necessary, with two exceptions. The first exception is the case where the sentenced person has fled to his or her State of nationality and the sentencing State asks the State of nationality to enforce the judgment (see Article 2(1) of the 1997 Protocol and Articles 68 seq. of the Schengen Convention). The second exception is the case where the sentenced person will be deported or expulsed to the requested State as a consequence of the judgment of the sentencing State (see Article 3 of the 1997 Protocol which has been ratified by the majority of the Member States).

The aim of the Framework Decision is in particular tobj

- – Define cases for which the consent of the executing State is not required.

- – Widen the scope of cases for which the consent of the sentenced person is not required.

As far as the consent of the sentenced person is concerned, it must be ensured that the measures taken are in conformity with the provisions on right to residence under Community law. The Legal Service of the Council has on request of the Working Party given legal advice on this issue (7570/06 JUR 114 COPEN 28). Community law may in particular imply that the consent of the person concerned is needed for transferring that person to the State of his or her nationality which is not the person's State of permanent legal residence.

On the other hand, it should be emphasized that Community law does not limit the possibilities for restricting the requirement for consent of the executing State.

This means that the two issues - the consent of the executing State and the consent of the sentenced person - have to be seen as different issues; there may therefore be cases where the consent of the person is required but not that of the executing State, and vice versa.

It should be noted that in cases covered by Articles 4(6) and 5(3) of the Framework Decision on the European Arrest Warrant the decision on where the sentenced person shall serve his or her sentence is taken under that Framework Decision. The provisions on consent of the executing State and of the sentenced person in the present draft Framework Decision therefore do not cover these cases.

Consent of the executing State

Coreper/Council is invited to examine the following:

Can delegations agree that the consent of the executing State shall not be needed where the judgment together with the certificate is forwarded tobj

a) – the State of nationality of the sentenced person where he or she lives/resides?

b) – the State of nationality or the State of permanent legal residence of the sentenced person to which he or she would anyway be deported/expulsed as a consequence of the judgment after having served the sentence?

c) – the State of permanent legal residence of the sentenced person unless he or she has lost or will loose his or her residence permit as a consequence of the judgment?

The Presidency is of the view that the provisions referred to constitute the core element of mutual recognition in the instrument and should go as far as possible.

Consent of the person concerned

The Presidency proposes to limit the need for the consent of the sentenced person without getting in conflict with Community law regarding cases where:

1) – the executing State is the sentenced person's State of nationality and the person is not exercising his or her right of permanent legal residence in another Member State;

2) – the sentenced person would anyway be deported to the executing State as a consequence of the conviction after having served his or her sentence in the issuing State (= case under Article 3(1) of the 1997 Protocol);

3) – the sentenced person has fled or otherwise returned to his or her State of nationality or of permanent legal residence in view of the criminal proceedings against him or her in the issuing State or following the conviction in that State (= case under Article 2 of the 1997 Protocol).

Can delegations agree to this approach?

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