European Parliament resolution on the Commission communication to the Council and the European Parliament on the mutual recognition of final decisions in criminal matters (COM(2000) 495 — C5-0631/2000 — 2000/2295(COS))
Date: 2001-05-17
Institutions: Committee on Civil Liberties, Justice and Home Affairs, European Parliament
Subjects: exchange of information, judicial cooperation, mutual recognition principle, penalty, ruling

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3. Welcomes the Commission(cid:146)s undertaking to introduce flexible measures for farmers, especially as
regards sowing;

Calls on the Commission to grant, in agreement with the French Government and the local auth-
4.
orities, exceptional financial aid to supplement the appropriations earmarked by the French authorities to
meet the urgent needs of the communities hardest hit, to restore the destroyed infrastructure and help to
relaunch economic activity;

Calls on the Commission, therefore, to speed up the payment of the appropriations already pro-
5.
grammed under the Structural Funds and to submit to the Council a proposal for a decision to release
(cid:145)Community aid for the reconstruction of disaster areas(cid:146);

Calls for the reinstatement of the budget line devoted to emergency aid in the event of natural

6.
disasters in the EU;

Calls on the Commission to propose exceptional modifications to the zoning of the flooded regions

7.
in the context of the Structural Funds;

8.
Calls on the Member States to reverse the current trend of destroying ecosystems and to preserve
them, in particular watercourses, irrigation systems, dikes and dams; also stresses the need to avoid in the
future the installing of infrastructure and the building of houses in regions at risk from the hydrogeological
point of view;

9. Welcomes the creation of Community instruments aimed at coordinating, at European level, the
various systems of civil protection, so that they are made more easily available and useable in the event
of natural disasters;

10.
Notes that the planet is currently experiencing the effects of climate change and that urgent
measures must be taken at international, national and local level to combat the effects of this phenom-
enon; calls on the Member States, in collaboration with the Commission, to make every effort to try, in the
light of the Conference of the Parties to be held in Bonn in July 2001, to comply with the Kyoto commit-
ments, in strict application of the principle of reciprocity between all the parties;

Instructs its President to forward this resolution to the Council, the Commission, the French govern-

11.
ment and parliament, regional and general councillors and the municipalities concerned.

18. Mutual recognition of final decisions in criminal matters

A5-0145/2001

European Parliament resolution on the Commission communication to the Council and the Euro-
pean Parliament on the mutual recognition of final decisions in criminal matters (COM(2000) 495
(cid:129) C5-0631/2000 (cid:129) 2000/2295(COS))

The European Parliament,

(cid:129) having regard to the Commission communication (COM(2000) 495 (cid:129) C5-0631/2000),

(cid:129) having regard to Article 31 of the Treaty on European Union,

(cid:129) having regard to the conclusions of the Cardiff European Council of 15 and 16 June 1998 requesting
the Council to identify the scope for applying the principle of mutual recognition of decisions,

(cid:129) having regard to point 45(f) of the Council and Commission Action Plan of 3 December 1998, which
asks for the initiation of a process with a view to implementing this principle within two years of the
entry into force of the Treaty of Amsterdam,

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(cid:129) having regard to the conclusions of the Tampere European Council of 15/16 October 1999, which
stated that the principle of mutual recognition should become the cornerstone of judicial cooperation
in both civil and criminal matters within the Union,

(cid:129) having regard to the programme of measures to implement the principle of mutual recognition of
decisions in criminal matters (1), approved by the Council and already included in the Commission(cid:146)s
scoreboard,

(cid:129) having regard to Rule 47(1) of its Rules of Procedure,

(cid:129) having regard to the report of the Committee on Citizens(cid:146) Freedoms and Rights, Justice and Home
Affairs and the opinion of the Committee on Legal Affairs and the Internal Market (A5-0145/2001),

A. whereas the proposals contained in the Commission communication and the Council(cid:146)s programme of
measures would be a satisfactory basis for common action on judicial cooperation in criminal matters,
as covered by Article 31 of the Treaty on European Union,

B. whereas the communication is aimed at introducing a mechanism to simplify procedures which will
overcome the long delays in carrying out the request for recognition and will ultimately make requests
for extradition largely superfluous and prevent conflicts of jurisdiction between Member States, as set
out in Article 31 of the Treaty on European Union,

C. whereas the communication puts forward various possible solutions for introducing the principle of
mutual recognition; whereas Parliament should select options for mutual recognition procedures that
are less complex than those currently applying to requests,

D. whereas, in establishing a mutual recognition mechanism, one alternative would be to aim at a har-
monisation of the Member States(cid:146) legislative, procedural and judicial systems, while another would be
to seek mutual trust between Member States, to ensure not only the adequacy of the laws of individual
states, but also the proper implementation of those laws in specific procedures,

E. whereas the first solution would be difficult to achieve, because each country(cid:146)s judicial system is
closely bound up with the history and form of its institutions and cultural factors; whereas a compro-
mise between various types of judicial systems or acceptance of certain systems by the others would
never be possible,

F. whereas the second solution would seem more feasible because, although different models are
involved, the individual systems of the Member States are based on a set of procedural rules affording
adequate guarantees and on satisfactory implementation of these rules such as to produce reliable
criminal law decisions, which could therefore be implemented in the other Member States without
the need for laborious and uncertain recognition procedures,

G. whereas, in practical terms, mutual recognition entails the power to implement in one Member State a

final decision delivered by the competent authority in another Member State,

H. whereas mutual recognition of a final decision implies recognition of all preceding decisions, including

pre-trial orders,

I. whereas rules covering pre-trial orders differ considerably from one Member State to another,

J. whereas mutual recognition aims to guarantee legal certainty (which is inherent in the effective appli-
cation of the law throughout the EU), bring about the offender(cid:146)s social rehabilitation (avoiding uproot-
ing him from the state in which he has chosen to live and where his family and work are) and to
defend and respect the victim(cid:146)s rights,

K. whereas mutual recognition and the measures needed to implement it, especially procedural measures,
should be applied to all crimes, not only serious ones, in view of the difficulties of identification in the
absence of a common concept of what constitutes a serious crime,

(1) OJ C 12, 15.1.2001, p. 10.

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L.

accepting the communication(cid:146)s suggestion that a decision should be seen as final if it rules on the
substance of a case and no further ordinary appeal against it is possible or, where such appeal is still
possible, it has no suspensive effect,

M. whereas, in addition,

(cid:145)criminal matters(cid:146) should relate to a formal definition of criminal provisions,
i.e. to positive criminal law; whereas, therefore, it should be linked to any provision which, under
the laws of a Member State, is considered criminal and which links certain penalties, also defined as
(cid:145)criminal(cid:146), to prohibited acts,

N. whereas the definition of (cid:145)criminal matters(cid:146) should not be affected by the type of authorities applying
the provisions of criminal law (which could in fact be the administrative authorities), nor the way in
which the criminal proceedings are resolved (e.g. agreements between prosecution services and the
suspect) nor the legal nature of the person to whom the rule of criminal law is directed, who may
be a legal person,

O. whereas clear rules will have to be laid down in cases in which a penalty must be enforced in a state
other than the one which delivered the decision, with a view to preventing the offender having the
discretion to choose the state in which the penalty is enforced,

P. whereas the decision to be recognised should be translated and communicated rapidly; whereas, there-
fore, it would be appropriate to agree on the use of a limited number of better-known languages,
following the practice of various international bodies,

Q. whereas, in order to avoid double jeopardy, to apply provisions on recidivism and multiple sentences,
as well as to avoid conflicts, it is necessary to be aware of both final decisions and pending pro-
cedures; whereas, therefore, it would be useful to form a network of national judicial registers and to
computerise registers of pending procedures,

R. whereas the principle of (cid:145)ne bis in idem(cid:146) should be fully respected; whereas, to this end, the (cid:145)idem(cid:146)
should be interpreted as (cid:145)the same fact(cid:146) in the broad and substantive sense, irrespective of the fact(cid:146)s
legal status, while wherever there are two different decisions, the one that is more favourable to the
offender should be applied,

S. whereas, in order to apply mutual recognition correctly, it will be necessary to adopt some common
rules to govern cases of double jeopardy ((cid:145)ne bis in idem(cid:146)), persistent crime, multiple penalties, the
resolution of conflicts of jurisdiction, as well as rules on the maintenance of registers of offenders and
pending procedures, the translation of decisions, recidivism and anything else necessary to ensure that
final decisions can have substantially similar effects throughout the territory of the European Union,

T. whereas since registers of offenders and of pending procedures in particular will enable mutual access
to extremely sensitive information, it is necessary that they be covered by clear rules on data protec-
tion,

U. whereas, as a result, it will be necessary to entrust the resolution of disputes over such cases to a

central independent authority such as the Court of Justice of the European Communities,

V. whereas it will initially be difficult to reach agreement on a direct recognition procedure, since some
common essential guarantees must be observed, such as respect for defence rights and victims(cid:146) rights,
the exclusion of double jeopardy ((cid:145)ne bis in idem(cid:146)) and the compatibility of the penalty to be enforced
with the legal order of the state receiving the request (e.g. substitution of a life sentence by the
maximum penalty provided for) and so preliminary consideration must first be given to see whether
these guarantees are present before an implementation order is issued,

W. whereas, however, if a common area of freedom, security and justice is to become a reality, a system
which enables the principle of direct mutual recognition of final decisions to be fully implemented will
need to be established,

X. whereas a final sentence should constitute a precedent to be taken into account in all the Member
States; whereas, in some cases which should be agreed on, if there are several convictions, particularly
for offences which have some sort of connecting link, strict accumulation of sentences should not be
applied,

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Y.

Z.

whereas, furthermore, since some offences are committed in several states, general jurisdictional rules
should be introduced to regulate negative and positive conflicts, to avoid the duplication of proceed-
ings and to regulate cases where it is advisable to have a single trial for the accused,

whereas decisions which, under the law of the state in which they are delivered, concern minors or
individuals suffering from mental abnormality should be excluded from the principle of mutual
recognition,

AA. whereas the principle of dual criminality is accepted in almost all international agreements; whereas,
as these make clear, it should be understood in a broad sense: not only as (cid:145)double criminalisation(cid:146)
(an act which in abstract terms is described as a breach of criminal law by the legislation of the
requesting state and the state receiving the request) but also as an act which is punishable in concrete
terms (an act whose author is not in a situation which rules out punishment),

AB. whereas accepting the principle of dual criminality in its wider sense would undoubtedly eliminate all
possible cases of incompatibility between differing legal systems, but would make the recognition
procedure considerably more cumbersome because the legal authority of the state receiving the
request would be placed in the position of having to repeat the trial by reconsidering the decision
on the substance of the case and its procedural aspects,

AC. whereas the Member States have laws which, although differing, ensure both that the offences which
are of the greatest social concern are considered as crimes, and also a fair trial and respect for the
rule of law; whereas, however, the principle of dual criminality would preclude the recognition of
decisions on minor offences, in respect of which the same degree of homogeneity has not been
achieved as for more serious offences,

AD. whereas, therefore, dual criminality should not be included in the essential guarantees which must
regulate the application of mutual recognition, since maintaining this requirement would leave the
problems substantially unchanged and would not be consistent with the line taken by the heads of
State and Government, who consider mutual recognition to be a cornerstone in the creation of a
common judicial area,

AE. whereas, however, at least in the initial stages, as a counter-balance to the removal of the principle of
dual criminality, Member States should be granted a margin of independent decision-making by
means of some safeguard provisions such as, in particular, the exclusion of a small number of types
of crime (such as euthanasia) where it could be difficult to reach an agreement,

AF. whereas, furthermore, among the safeguard provisions should be rules concerning respect for the
accused(cid:146)s right to defence and the victims(cid:146) rights; whereas these provisions should be strictly demar-
cated and defined so as not to entail a reconsideration of the decision on the substance of the case,

AG. whereas a certain enforcement of national law, in particular certain aspects of procedural law, may
help build mutual trust and therefore limit Member States(cid:146) need for safeguards and preliminary con-
sideration before an order is enforced,

AH. whereas the enforcement of penalties should be governed by the law of the state in which enforce-
ment takes place; whereas, therefore, the safeguard provisions should include the possibility for the
state itself to adjust the length of the sentence (e.g. not applying life sentences) and enforcement
methods (e.g. the absence of solitary confinement) to its own specific system,

AI. whereas, as a result, the state receiving the request should have all the decision-making power on
privileges or penalties connected with the conduct or personal circumstances of the offender, such as
conditional release, permits to work or make visits outside and suspension of the enforcement of the
sentence for health reasons,

AJ. whereas, on the other hand, all decisions regarding the extinguishing of a penalty or of an offence,
pardons and amnesties should remain within the sphere of responsibility of the requesting state,

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AK. whereas the costs of enforcing penalties should be borne by the state receiving the request in order
to avoid red tape, controversies and disputes, and in the belief that, in a European Union open to the
free movement of individuals, in the long term these costs will be set off against each other overall,

AL. whereas it is essential that, in the event of a change to the penalty, or its termination, the rights of
victims and their families are taken into account,
including the right to be informed promptly,
adequate physical protection and respect for their dignity, which may be achieved by imposing on
the offender a specific prohibition on entering certain parts of EU territory,

AM. whereas recognition of disqualifications should only apply when these can also fulfil their function of

social protection and rehabilitation in the state receiving the request,

Considers that the principle of mutual recognition should apply to all crimes, including those for

1.
which only pecuniary penalties are prescribed, apart from any necessary exceptions;

2.

Considers that, as a result, the measures in the Council(cid:146)s programme should apply to all crimes;

3.
Requests that a decision should be seen as final if it rules on the substance of a case (even if this is
following a settlement by agreement between the suspect and prosecution services) and no further ordinary
appeal against the decision is possible or, where such appeal is still possible, it has no suspensive effect;

Calls on the Commission, before presenting legal instruments, to identify the problems which arise in

4.
practice owing to shortcomings in the implementation of final decisions in criminal matters;

Considers that the release of a suspect during investigations should not be considered as a final

5.
decision if it is still possible to reopen proceedings subsequently;

Calls on the Commission to determine those substantive legal and procedural areas in which mini-

6.
mum standards are necessary;

7.
Considers that the definition of the term (cid:145)criminal matters(cid:146) should relate to positive criminal law and
therefore to any provision which, under the laws of the relevant Member State, is considered as such;
considers also that neither the type of authorities (e.g. administrative authorities) enforcing the penalty,
the way in which the criminal proceedings are resolved nor the legal nature of the person against whom
the penalty is enforced should have any influence thereon;

8.
Requests that clear rules be laid down to define the cases in which the penalty may be enforced in a
state other than the one in which the decision was delivered, with a view to preventing the offender
having the discretion to choose;

Calls on the Commission to submit a plan for establishing a registry of pending and concluded

9.
procedures specifying, in particular, the form of data collection, access to data and data protection;

10.
Requests that, with a view to prompt awareness of the existence of the decision to be recognised,
the use of two or three more widely-used languages is agreed to for translation purposes, following the
practice in certain international bodies such as the European Court of Human Rights and the UN;

11.
Requests that, for exchanges of information on final sentences, the option of forming a network of
national registers is chosen and calls on the Member States to take appropriate measures to make
information on pending procedures accessible as well;

Requests that a future network of national registers and mutual access to information on pending

12.
cases should be subject to clear rules on data protection;

13.
Requests that in a system of mutual recognition full respect is shown for the principle of (cid:145)ne bis in
idem(cid:146) and that, in order to apply this principle correctly, the (cid:145)idem(cid:146) which is the object of the second
decision should be interpreted as (cid:145)the same fact(cid:146) in the broad and substantive sense, irrespective of its
legal status;

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Considers, as a result, that wherever there is a second (or further) trial and a final sentence is

14.
handed down for the (cid:145)same fact(cid:146), the decision that is more favourable to the offender should be applied;

Considers that a final sentence in one Member State should constitute a precedent to be taken into
15.
account in the event of a further conviction in another Member State, and should therefore give rise to the
application of provisions on recidivism;

16.
Requests that common rules be established with a view to ensuring that, where there are several
convictions in two or more Member States (particularly for offences which have some sort of connecting
link), strict accumulation of sentences is not always applied;

17.
Considers that general jurisdictional rules should be introduced in order to regulate negative and
positive conflicts in this area, to avoid the duplication of proceedings and to regulate cases where it would
be advisable to have a single trial;

18.
Requests that the resolution of all possible disputes between the Member States(cid:146) judicial authorities
concerning mutual recognition be entrusted to a central independent authority such as the Court of Justice
of the European Communities;

Considers that final decisions in which the mental abnormality or legal minority of the offender are

19.
recognised should be excluded from the scope of recognition;

20.
Considers that the precondition of dual criminality should be abolished and that, at the same time,
as a safeguard provision, agreement should be reached on a restricted number of crimes to which mutual
recognition would not apply;

21.
Considers, furthermore, that additional safeguard provisions should be included concerning respect
for the right to defence and the victims(cid:146) rights, strictly defined so as not to entail a reconsideration of the
decision on the substance of the case;

Considers that in order to prevent too many safeguard provisions from being included and at the
22.
same time to guarantee a common level of protection of fundamental rights protection throughout the EU,
Member States should agree on common minimum standards for certain aspects of procedural law;

Calls on the Commission to involve the candidate countries in drawing up a system of mutual

23.
recognition of final decisions in criminal matters;

24.
Requests that the enforcement of custodial penalties be governed by the law of the state in which
enforcement takes place, with the possibility of adjusting the length of the sentence and enforcement
methods, and that no requests be made for the enforcement of a penalty which does not exist in that
state (e.g. community service or other similar service);

25.
Requests, furthermore, that the state in which enforcement takes place should take all decisions
connected with the conduct or personal circumstances of the offender, such as conditional release, permits
to work or make visits outside and suspension of the enforcement of the sentence for health reasons;

Requests that, on the other hand, decisions regarding the extinguishing of a penalty or an offence,

26.
pardons and amnesties should remain within the sphere of responsibility of the requesting state;

Requests that, in the event of a change to the penalty, or its termination, the rights of victims are

27.
taken into account, including the right to prompt information and adequate physical protection;

28.
Considers that the costs of enforcing custodial and pecuniary penalties should be borne by the state
in which enforcement takes place since in the long term these costs will be balanced over all the Member
States;

Considers that the principle of mutual recognition of disqualifications should apply when it can also

29.
fulfil a function of social protection and rehabilitation in the state in which enforcement takes place;

30.

Instructs its President to forward this resolution to the Council and Commission.