Green paper on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union
Date: 2004-04-30
Institutions: European Commission
Subjects: approximation of laws, criminal law, judicial cooperation in criminal matters in the EU, mutual recognition principle, penalty

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.04.2004 
COM(2004)334 final 

GREEN PAPER 

on the approximation, mutual recognition and enforcement of criminal sanctions in the 
European Union 

(presented by the Commission) 

EN 

   EN 

 
 
 
 
OBJECTIVES OF THE GREEN PAPER 

The  European  Union  has  set  itself  the  objective  of  offering  its  citizens  a  high  level  of 
protection in an area of freedom, security and justice (Article 29 of the Treaty on European 
Union).  For  this  the  Commission  considers  that  it  is  worth  analysing  whether  national 
differences  regarding  criminal  penalties  are  an  obstacle  to  attaining  that  objective.  It  is  also 
necessary  to  analyse  whether  these  differences  raise  problems  for  judicial  cooperation 
between Member States, which entails first identifying the barriers to implementation of the 
mutual  recognition  principle,  which,  according  to  the  conclusions  of  the  Tampere  European 
Council, is to “become the cornerstone of judicial cooperation in both civil and criminal matters 
within the Union” and in general terms make it easier to have penalties ordered in one Member 
State enforced in others.  

This  document  is  a  preliminary  reflection  instrument  so  that  at  a  second  stage  a  better 
informed  opinion  can  be  reached,  in  the  light  of  the  reactions  and  comments  on  it,  on  the 
utility and feasibility of a legislative proposal, and to some extent also on the approximation 
of  the  rules  applicable  to  criminal  penalties  in  general  and  to  the  mutual  recognition  of 
custodial sentences and alternative sanctions in the European Union. 

CONSULTATION OF ALL INTERESTED PARTIES 

A  series  of  questions  have  arisen  on  problems  that  the  Commission  regards  as  the  most 
important in establishing a genuine law enforcement area which would give rise to a degree of 
approximation of the rules applicable to criminal penalties in the Union.  

The Commission would like to receive reasoned replies to these questions from all interested 
parties. Comments may also be offered on other interesting aspects, whether or not they are 
mentioned in the Green Paper. Replies to the questions and other comments should be sent no 
later than 31 July 2004 to: 

European Commission 
Directorate-General for Justice and Home Affairs, Unit D.3 
B-1049 Brussels 

Fax: +32 2 296.76.34 

e-mail: JAI-justicepenale@cec.eu.int 

To simplify management, interested parties who respond by two different means (by e-mail 
and by post, for instance) are requested to specify that the same document has already been 
sent to the Commission. Interested parties wishing to comment on this Green Paper must give 
particulars of the interests they represent and the level at which they do so. 

This consultation and the replies and comments will be published on the Commission’s 
website: http://europa.eu.int/comm/justice_home/news_consulting_public_en.htm, unless the 
author specifically objects to this. 

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TABLE OF CONTENTS 

Objectives of the Green Paper.................................................................................................... 2 

Consultation of all interested parties.......................................................................................... 2 

1. 

1.1. 

1.2. 

1.3. 

2. 

Introduction.................................................................................................................. 8 

Objectives................................................................................................................... 10 

Objectives of mutual recognition ............................................................................... 13 

Method and structure of the Green Paper .................................................................. 14 

Measures taken by the European Union – a Stock-taking ......................................... 15 

2.1. 

Approximation of penalties........................................................................................ 15 

2.1.1.  The Treaty on European Union.................................................................................. 15 

2.1.2.  The Vienna Action Plan ............................................................................................. 15 

2.1.3.  Conclusions of the Tampere European Council......................................................... 15 

2.1.4. 

Instruments adopted or under negotiation.................................................................. 16 

2.1.5.  Custodial sentences .................................................................................................... 16 

2.1.6.  Financial penalties...................................................................................................... 19 

2.1.7.  Disqualification .......................................................................................................... 19 

2.1.8.  Confiscation ............................................................................................................... 20 

2.1.9.  Sanctions for legal persons......................................................................................... 21 

2.1.10.  Alternative sanctions.................................................................................................. 21 

2.1.11.  Enforcement of criminal penalties ............................................................................. 22 

2.1.12.  Conclusions ................................................................................................................ 23 

2.2. 

Mutual recognition and enforcement of criminal penalties in another Member State24 

2.2.1.  European arrest warrant ............................................................................................. 24 

2.2.2.  Recognition of financial penalties.............................................................................. 24 

2.2.3.  Recognition of decisions regarding confiscation ....................................................... 24 

2.2.4.  Recognition of decisions regarding disqualification.................................................. 25 

2.2.5.  Agreements concluded between the Member States of the European Community in 

the context of European Political Cooperation (EPC) ............................................... 26 

2.2.6.  Conclusions ................................................................................................................ 26 

3. 

Current situation: National legislation and international agreements ........................ 27 

3.1. 

Great diversity between the Member States............................................................... 27 

3 

 
 
  
 
3.1.1.  General rules of criminal law..................................................................................... 27 

3.1.1.1.  Principles governing prosecution – mandatory or discretionary................................ 27 

3.1.1.2.  The room for manoeuvre of the criminal courts ........................................................ 27 

3.1.1.3.  Level of participation: aiding and abetting. ............................................................... 28 

3.1.1.4.  Level of completion: attempts.................................................................................... 28 

3.1.1.5.  Aggravating and mitigating circumstances................................................................ 28 

3.1.1.6.  A special case – recidivism ........................................................................................ 29 

3.1.1.7.  Concurrent offences ................................................................................................... 29 

3.1.2.  Custodial penalties ..................................................................................................... 30 

3.1.3.  Financial penalties...................................................................................................... 31 

3.1.4.  Disqualification .......................................................................................................... 31 

3.1.5.  Confiscations.............................................................................................................. 32 

3.1.6.  Sanctions for legal persons......................................................................................... 32 

3.1.7.  Alternative sanctions.................................................................................................. 33 

3.1.8.  Enforcement of criminal penalties ............................................................................. 33 

3.2. 

An incomplete range of mutual recognition instruments........................................... 35 

3.2.1.  Mutual recognition of custodial penalties. ................................................................. 35 

3.2.1.1.  European Convention of the Council of Europe of 28 May 1970 on the International 

Validity of Criminal Judgments ................................................................................. 35 

3.2.1.2.  Convention of 13 November 1991 between the Member States of the European 

Communities on the enforcement of foreign criminal sentences............................... 36 

3.2.1.3.  The Treaty of 26 September 1968 between Belgium, the Netherlands and 

Luxembourg on the enforcement of judgments in criminal matters .......................... 38 

3.2.1.4.  The model for cooperation between the Nordic States .............................................. 39 

3.2.1.5.  Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 

1983............................................................................................................................ 40 

3.2.1.6.  Additional Protocol to the Council of Europe Convention on the transfer of 

sentenced persons of 18 December 1997 ................................................................... 42 

3.2.1.7.  Agreement on the application, between the Member States of the European 

Communities, of the Council of Europe Convention on the transfer of sentenced 
persons of 25 May 1987............................................................................................. 43 

3.2.2.  Recognition of judgments imposing a suspended sentence, conditional release or 

alternative sanctions ................................................................................................... 43 

3.2.2.1.  Description and identification of the problem. .......................................................... 43 

4 

 
 
  
 
3.2.2.2.  Existing instruments................................................................................................... 44 

3.2.3.  Recognition of disqualification decisions .................................................................. 46 

3.2.4.  Conclusions ................................................................................................................ 46 

4. 

Outstanding problems and need for action by the European Union .......................... 48 

4.1. 

Approximation of custodial penalties and alternative sanctions................................ 48 

4.1.1.  General rules of criminal law..................................................................................... 49 

4.1.1.1.  Prosecution – mandatory or discretionary?................................................................ 49 

4.1.1.2.  The room for manoeuvre of the criminal courts ........................................................ 49 

4.1.1.3.  Level of participation: aiding and abetting. ............................................................... 49 

4.1.1.4.  Aggravating and mitigating circumstances................................................................ 50 

4.1.1.5.  Recidivism ................................................................................................................. 50 

4.1.1.6.  Concurrent offences ................................................................................................... 52 

4.1.2.  Custodial penalties ..................................................................................................... 52 

4.1.3.  Financial penalties...................................................................................................... 53 

4.1.4.  Disqualification .......................................................................................................... 53 

4.1.5.  Confiscation ............................................................................................................... 53 

4.1.6.  Legal persons ............................................................................................................. 53 

4.1.7.  Alternative sanctions.................................................................................................. 55 

4.1.8.  Enforcement of penalties............................................................................................ 56 

4.2. 

Recognition and enforcement of custodial penalties and alternative sanctions in 
another Member State ................................................................................................ 58 

4.2.1.  Scope of possible European Union rules ................................................................... 59 

4.2.1.1.  Personal scope............................................................................................................ 59 

4.2.1.2.  Material scope ............................................................................................................ 60 

4.2.2.  Conditions for recognition ......................................................................................... 61 

4.2.2.1.  Right of initiative in the recognition procedure ......................................................... 61 

4.2.2.2.  Grounds for refusal .................................................................................................... 61 

4.2.2.3.  The power of the State of enforcement to adapt, convert or substitute a penalty 

imposed in the State of judgment............................................................................... 64 

4.2.2.4.  Participation of the sentenced person......................................................................... 66 

4.2.2.5.  Participation of the victim.......................................................................................... 66 

5 

 
 
  
 
4.2.3.  Questions of procedure and practical arrangements for implementing the recognition 
of judgments in criminal matters and the transfer of prisoners.................................. 67 

4.2.3.1.  Time-limits................................................................................................................. 67 

4.2.3.2.  Reimbursement of expenditure incurred by the State of enforcement of penalties ... 67 

4.2.4.  Distribution of powers between the State of judgment and the State of enforcement69 

ANNEX I: Inventory and comparison of Member States’ legislation regarding the way that 
custodial penalties that are imposed as part of the sentence are enforced ............................... 70 

1. Suspended sentences ............................................................................................................ 70 

2. Suspension/deferment of sentencing.................................................................................... 71 

3. Day release ........................................................................................................................... 71 

4. Sentences served in instalments (weekend detention) ......................................................... 72 

5. Electronic surveillance ......................................................................................................... 74 

6. Home detention .................................................................................................................... 75 

ANNEX II: Inventory and comparison of Member States’ legislation regarding 
 alternative sanctions ................................................................................................................ 78 

1. Community service .............................................................................................................. 78 

2. Mediation in criminal cases.................................................................................................. 79 

3) Settlement ............................................................................................................................ 83 

ANNEX III: Inventory and comparison of Member States’ legislation regarding the 
enforcement of criminal penalties ............................................................................................ 87 

1. Suspended sentences ............................................................................................................ 87 

2. Day release ........................................................................................................................... 87 

3. Early release ......................................................................................................................... 88 

4. Remission ............................................................................................................................. 90 

5. Amnesty and pardon............................................................................................................. 90 

ANNEX IV: Table of questions .............................................................................................. 91 

6 

 
 
  
 
1. 

INTRODUCTION 

Article  31(1)(e)  of  the  Treaty  on  European  Union  provides  for  the  gradual  adoption  of 
“measures  establishing  minimum  rules  relating  to  the  constituent  elements  of  criminal  acts 
and  to  penalties”  in  certain  fields.  This  approach  is  confirmed  by  the  Council  and 
Commission  Action  Plan  on  how  best  to  implement  the  provisions  of  the  Treaty  of 
Amsterdam  on  an  area  of  freedom,  security  and  justice1  (Vienna  Action  Plan)  and  the 
conclusions of the Tampere European Council2 (paragraph 48). 

The approximation of criminal penalties would also contribute to ensuring such compatibility 
in  rules  applicable  in  the  Member  States  as  may  be  necessary  to  improve  such  cooperation 
(Article  31(1)(c)),  and  to  facilitating  and  accelerating  cooperation  between  competent 
ministries  and  judicial  or  equivalent  authorities  of  the  Member  States,  in  relation  to 
proceedings and the enforcement of decisions (Article 31(1)(a)).  

To  act  on  this,  the  Council  has  already  adopted  legislative  instruments  (Framework 
Decisions)  on  fraud  involving  non-cash  means  of  payment,  euro  counterfeiting,  money 
laundering,  terrorism,  environmental  crime,  trafficking  in  human  beings  and  facilitation  of 
unauthorised entry and residence. Other instruments are under discussion in the Council and 
the European Parliament, such as the proposals for Council Framework Decisions on the fight 
against  ship-source  pollution  and  racism  and  xenophobia.3  The  purpose  of  the  Framework 
Decisions  is  to  approximate  the  Member  States’  legislation  and  regulations.  Framework 
Decisions are binding upon the Member States as to the result to be achieved but leave to the 
national authorities the choice of form and methods.4  

As regards penalties, there are provisions determining penalties applicable. The formula used 
to  harmonise  penalties  has  not  been  so  much  to  determine  effective,  proportionate  and 
dissuasive penalties as to set minimum levels for maximum penalties.5 In the Commission’s 
view  this  approach,  which  is  confined  to  custodial  sentences,  produces  a  minimum 
approximation which may not be adequate to meet the declared objectives. The Commission 
is meeting a need to identify the areas in which Union action is justified.  

It must also be borne in mind that the action undertaken by the Community on the basis of the 
Union Treaty is without prejudice to its powers to work for the objectives set out in Article 2 
of  the  EC  Treaty,  to  require  the  Member  States  to  legislate  for  national  penalties,  criminal 
penalties if need be, where a Community objective is to be secured. This would include, for 
example,  protection  of  the  environment,  including  the  prohibition  on  illicit  discharge  from 
vessels at sea, and the common fisheries policy. 

Apart from imprisonment, a wide range of criminal sanctions is provided for by the Member 
States’ criminal systems. And regarding imprisonment, even if the same penalty is set for an 
offence, there are major divergences between the general rules of criminal law in the Member 

1 

2 

3 

4 

5 

OJ C 19, 23.1.1999, p. 1. See also point 2.1.2. 
Accessible at: http://ue.eu.int/en/Info/eurocouncil/index.htm. 
See point 2.1.5. 
Article 34(2)(b) of the Treaty on European Union. 
But the Council Joint Action of 21 December 1998 on making it a criminal offence to participate in a 
criminal  organisation  in  the  Member  States  of  the  European  Union  does  not  provide  for  a  minimum 
penalty. 

7 

 
 
  
 
                                                 
States, which generate a difference between the sentence that is passed and the penalty that is 
served. 

This  Green  Paper  contains  a  comparative  analysis  of  the  Member  States’  legislation.  The 
situation of the acceding countries has not been reflected at this stage, since the studies used 
did  not  extend  to  the  legislation  of  all  of  them.  In  the  consultations  launched  by  this  Green 
Paper,  the  acceding  countries  will  of  course  have  every  opportunity  to  make  their  views 
known.  And  the  Commission  will  invite  them  to  send  contributions  so  as  to  complete  the 
information about their legislation in the relevant matters. 

In  this  context,  it  is  worth  asking  in  terms  of  effectiveness,  whether  the  penalty  is  actually 
applied and if it has a truly dissuasive effect, to take over the now well known concepts of the 
Greek-Yugoslav  Maize  case6  that  underlie  the  system  for  the  approximation  of  penalties 
established  by  third-pillar  instruments.  In  conclusion,  the  penalty  served  is  ultimately  the 
result of a complex equation involving an extremely large number of variables: theoretically 
action would have to be taken on every one of them to guarantee an identical penalty in all the 
legal orders. 

However, it must be acknowledged that it is not possible simultaneously to harmonise all the 
relevant factors in the short term and the Commission obviously has no intention of proposing 
the  standardisation  of  all  criminal  penalties  in  the  European  Union.  This  would  be  neither 
desirable nor legally feasible.  

The  differences  between  the  Member  States’  legislation  on  penalties  are  still  quite  sharp. 
There are historical, cultural and legal reasons for this, deeply-rooted in their legal systems, 
which  have  evolved  over  time  and  are  the  expression  of  the  way  in  which  Member  States 
have faced and answered fundamental questions about criminal law. These systems have their 
own internal coherence, and amending individual rules without regard for the overall picture 
would risk generating distortions.  

On  the  contrary,  in  accordance  with  the  subsidiarity  principle,  the  aim  must  be  to  focus  on 
areas where a need has been identified, in the light of the objectives set and the legal bases 
available. The point, therefore, is really to identify differences in penalties that have harmful 
effects  and  the  limits  to  be  imposed,  if  any,  in  order  to  attain  a  European  law-enforcement 
area. 

The first paragraph of Article I-41 of the Draft Constitution,7 concerning the area of freedom, 
security and justice, provides that the Union shall establish that area: 

- by adopting European laws and framework laws intended, where necessary, to approximate 
national laws in the areas listed in Part III; 
- by promoting mutual confidence between the competent authorities of the Member States, in 
particular on the basis of mutual recognition of judicial and extrajudicial decisions; 
- by operational cooperation between the competent authorities of the Member States. 

Part  III  of  the  Draft  Constitution,  in  the  Section  on  judicial  cooperation  in  criminal  matters 
(Article  III-171),  specifies  that  this  cooperation  is  to  be  based  on  the  principle  of  mutual 
recognition  of  judgments  and  judicial  decisions  and  shall  include  the  approximation  of  the 
laws and regulations of the Member States in certain areas. The Council, acting unanimously 

6 

7 

ECJ, Case 68/88, judgment given on 21 September 1989, Commission v Hellenic Republic [1989] ECR 
2965.  
Accessible at: http://european-convention.eu.int/. 

8 

 
 
  
 
                                                 
after  obtaining  the  consent  of  the  European  Parliament,  may  adopt  a  European  decision 
identifying other areas of crime. Article III-172 provides that “European framework laws may 
establish  minimum  rules  concerning  the  definition  of  criminal  offences  and  sanctions  in  the 
areas of particularly serious crime with cross-border dimensions resulting from the nature or 
impact of such offences or from a special need to combat them on a common basis”.  

By  point  2(d)  of  the  second  subparagraph  of  Article  III-171(1)  of  the  Draft  Constitution, 
European laws or framework laws shall establish measures to “facilitate cooperation between 
judicial or equivalent authorities of the Member States in relation to proceedings in criminal 
matters  and  the  enforcement  of  decisions”.  The  Council  of  Ministers,  acting  unanimously 
after  obtaining  the  consent  of  the  European  Parliament,  may  adopt  a  European  decision 
identifying any other specific aspects of criminal procedure (third subparagraph of Article III-
172(1)).  

If  the  approximation  of  criminal  legislation  proves  essential  to  ensure  the  effective 
implementation  of  a  Union  policy  in  an  area  which  has  been  subject  to  harmonisation 
measures,  European  framework  laws  may  establish  minimum  rules  with  regard  to  the 
definition of criminal offences and sanctions in the area concerned (Article III-172(2)). 

Under  Article  III-173  of  the  Draft  Constitution,  European  laws  or  framework  laws  may 
establish measures to promote and support the action of Member States in the field of crime 
prevention, which is important for the implementation of custodial sentences and alternative 
sanctions  (Annexes  I  and  II).  But  such  measures  may  not  include  the  approximation  of 
Member States’ legislative and regulatory provisions. 

1.1. 

Objectives 

The  approximation  of  criminal  penalties  can  satisfy  several  mutually  complementary 
objectives: 

First, by defining common offences and penalties in relation to certain forms of crime, 
- 
the Union would be putting out a symbolic message. The approximation of penalties would 
help  to  give  the  general  public  a  shared  sense  of  justice,  which  is  one  of  the  conditions  for 
establishing  the  area  of  freedom,  security  and  justice.8  It  would  also  be  a  clear  signal  that 
certain  forms  of  conduct  are  unacceptable  and  punished  on  an  equivalent  basis.  The  sexual 
exploitation of children is a good example. Approximation of the definition of the offence and 
of  the  level  of  the  penalty  incurred  for  it,  provides  effective  and  equivalent  protection  for 
citizens  throughout  the  Union  against  a  phenomenon  that  strikes  against  the  principles  and 
values shared by the Member States.  

- 
The corollary of a European area of justice would be that the same criminal conduct 
incurs similar penalties wherever the offence is committed in the Union. The approximation 
of legislation is accordingly an autonomous objective in areas regarded as deserving priority 
and identified as such. A degree of approximation of provisions of substantive criminal law is 
needed  since  certain  forms  of  crime  have  a  transnational  dimension  and  the  Member  States 
cannot combat them effectively on their own.  

- 
Union minimum standards thus help to prevent offenders (or at least certain categories 
of them, such as organised crime) from taking advantage of divergences between penalties in 
the Member States and moving from one to another to evade prosecution or the enforcement 

8 

See point 15 of the Vienna Action Plan. 

9 

 
 
  
 
                                                 
of  penalties.  The  Tampere  conclusions  (point  5)  state  that  criminals  must  not  find  ways  of 
exploiting  differences  in  the  judicial  systems  of  Member  States.  This  is  particularly  true  of 
financial crime.  

Discussions  in  Council  on  the  draft  Framework  Decision  on  the  “ne  bis  in  idem” 
- 
principle have also shown that the application of the principle in Article 50 of the Charter of 
Fundamental  Rights  of  the  European  Union  will  be  easier  to  accept  if  the  penalties  are 
comparable and actually applied. 

- 
While the operation of certain mechanisms for judicial cooperation in criminal matters 
was dependent on the level of penalties, this is no longer the case following the adoption of 
instruments based on the principle of mutual recognition. 

- 
There  is  also  a  link,  as  Article  III-172(2)  of  the  Draft  Constitution  makes  clear, 
between  the  approximation  of  criminal  law  and  the  effective  implementation  of  a  Union 
policy  where  harmonisation  measures  have  been  taken.  Examples  are  protection  of  the 
environment, safety at work and economic and financial transactions, as areas where criminal 
law could help to enforce a Union policy.  

- 
Finally,  the  approximation  of  rules  of  criminal  law  concerning  penalties  and  their 
enforcement also helps to secure acceptance of the mutual recognition of judgments, since it 
enhances mutual trust. But approximation is not a sine qua non for mutual recognition; rather, 
these  are  two  complementary  mechanisms  for  achieving  the  European  area  of  justice. 
Compatibility between the rules applicable in the Member States would thus be facilitated, as 
required  by  Article  31(1)(c)  of  the  TEU,  and  cooperation  between  the  authorities  of  the 
Member  States  in  the  enforcement  of  decisions  (Article  31(1)(a))  would  be  improved. 
Compatible  conditions  for  enforcement  of  penalties  between  the  Member  States  would 
promote the rehabilitation of persons by allowing them to serve their sentence in a Member 
State other than the one where they were convicted. 

Even  so,  any  action  seeking  to  approximate  criminal  penalties  must  quite  obviously  respect 
the  subsidiarity  and  proportionality  principles.  The  Protocol  on  the  application  of  the 
principles  of  subsidiarity  and  proportionality  annexed  to  the  EC  Treaty  by  the  Amsterdam 
Treaty  contains  guidelines  for  the  application  of  these  principles.  Community  action  is 
justified  where  the  issue  under  consideration  has  transnational  aspects,  where  actions  by 
Member  States  alone  or  lack  of  Community  action  would  conflict  with  the  requirements  of 
the Treaty or where action at Community level would produce clear benefits by reason of its 
scale or effects compared with action at the level of the Member States.  

Under  Article  2  of  the  Union  Treaty,  these  guidelines  are  applicable  in  the  context  of  the 
powers conferred on the Union. To attain the objective set by the Union Treaty of establishing 
an area of freedom, security and justice in the European Union, any effort at approximation of 
the application and enforcement of penalties is therefore justified since the objectives of the 
proposed action cannot be sufficiently achieved by Member States’ action in the framework 
of their national constitutional system and can therefore be better achieved by action on the 
part  of  the  Union.  To  attain  these  objectives,  the  proposed  approximation  measures  could 
refer to the various aspects of penalties that correspond somehow to four themes:  

(1) 

what penalties can be imposed under the criminal law? 

(2) 

how are offences prosecuted? 

10 

 
 
  
 
(3) 

how are penalties imposed?  

(4) 

how are the penalties that have been imposed enforced? 

The Commission considers that the problem should be seen in comprehensive terms and not 
merely  in  terms  of  approximating  penalties  themselves.  It  is  not  enough,  for  instance,  for 
similar penalty levels to be set in the Member States if penalties, once imposed, are applied 
more  flexibly  or  more  strictly  in  one  country  than  in  another.  Opting  for  a  penalty  that  is 
applicable necessarily entails opting for the way in which it will be enforced.  

A  consistent  policy  on  sentencing  in  the  Union  must  therefore  at  least9  consider  the  four 
following  issues,  without  there  being  any  prior  judgement  as  to  the  value  or  feasibility  of 
Union action on each of them: 

(1) the level of penalties and the range of penalties available (for example, custodial penalties, 
alternatives to custodial penalties, fines, etc.); 

(2)  the  rules  governing  prosecution  (discretionary  or  mandatory  prosecution,  priorities  in 
criminal policy etc.); 

(3) the general rules of criminal law (participation, attempts, aiding and abetting, instigation, 
aggravating and mitigating circumstances, recidivism etc.);  

(4)  rules  and  practices  regarding  enforcement  (different  forms  of  conditional  release, 
remission and reduction of sentence, amnesty, pardon, rehabilitation, involvement of judicial 
and  other  authorities  in  enforcing  sentences,  measures  for  personalisation  of  penalties  to 
facilitate reintegration, etc.). 

In  considering  all  these  questions,  the  Commission  will  also  be  mindful  of  the  results  of  a 
recent  study  on  “Harmonisation  of  criminal  penalties  in  Europe”10  by  the  “Unité  Mixte  de 
Recherche  de  Droit  Comparé”  in  Paris.  The  study,  which  was  financed  under  the  Grotius 

9 

10 

All the following factors influence criminal penalties: 
- the type of penalty prescribed by the law (custodial penalties or financial penalties, disqualification, 
confiscation, “informal penalties” in the context of restorative justice; possibility of combining different 
types of penalty; level of the various types of penalty); 
-  the  prosecution  system  (mandatory  or  discretionary;  triangular  cooperation  between  police, 
prosecution  authorities  and  courts;  the  role  of  victims  in  criminal  proceedings;  police  powers  of 
discretion and decision); 
- the specificities of criminal proceedings (availability or not of a restorative justice scheme; payment of 
amounts to the community; participation in training schemes; community service; eligibility); 
-  sentencing  (practices  and  traditions;  discretion  available,  application  of  aggravating  or  mitigating 
circumstances,  application  of  concepts  of  attempt/  participation/preparation,  use  of  unconditional  and 
(fully or partly) conditional penalties, including duration of probation periods); 
- enforcement of penalties (including the possibility of suspended or deferred sentencing and remission 
or discharge); 
- for fines: possibility of daily fines, of payment in instalments and of imprisonment for failure to pay; 
-  for  custodial  penalties:  standards  regarding  cells,  treatment  of  prisoners,  possibility  of  remuneration 
for  work  done  by  them;  social  security  systems;  rules  on  early  release  (conditionally  or 
unconditionally), amnesty and pardon. 
“L’harmonisation  des  sanctions  pénales  en  Europe”.  Dir:  M.  Delmas-Marty,  G.  Giudicelli-Delage,  E. 
Lambert-Abdelgawad. Société de législation comparée. Collection de l’UMR de Droit comparé de Paris 
(Paris I- CNRS, vol.V), Paris, 2003. 

11 

 
 
  
 
                                                 
 
 
 
 
 
 
 
Programme,  focuses  on  the  feasibility  of  harmonising  the  general  rules  of  criminal  law 
relating to sentencing and on the rules governing enforcement. The results of the study could 
be helpful in subsequently clarifying the issues where Union action might be envisaged. 

1.2. 

Objectives of mutual recognition 

Article 31(1)(a) of the Union Treaty provides that common action on judicial cooperation in 
criminal matters  is  to include “ facilitating and accelerating cooperation between competent 
ministries  and  judicial  or  equivalent  authorities  of  the  Member  States  ...  in  relation  to 
proceedings and the enforcement of decisions”. This provision was added at Amsterdam11 and 
does not mention the principle of mutual recognition, whereby judgments and other decisions 
by the judicial authorities of a Member State (Member State of judgment) are recognised and, 
if necessary, enforced in another Member State (Member State of enforcement). 

The Cardiff European Council on 15 and 16 June 1998 made the first mention of this concept, 
borrowed from the single market, and asked the Council to determine to what extent it should 
be extended to the decisions of the courts of the Member States.12 

Mentioned at point 45(f) of the Action Plan of the Council and the Commission on how best 
to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and 
justice,  adopted  on  3  December  1998,  the  idea  of  mutual  recognition  was  taken  up  by  the 
Tampere European Council in October 1999, which felt that it should be “the cornerstone of 
judicial cooperation in both civil and  criminal  matters within the Union” (points 33 to 37). 
The  Tampere  conclusions  state:  “Enhanced  mutual  recognition  of  judicial  decisions  and 
judgments  and  the  necessary  approximation  of  legislation  would  facilitate  cooperation 
between authorities and the judicial protection of individual rights”. Mutual recognition must 
therefore not only ensure that effect is given to judgments but also that this is done in such a 
way as to secure individual rights. By way of example, the recognition and enforcement of a 
judgment  in  a  Member  State  must  also  be  sought  where  it  improves  the  prospects  for  the 
social rehabilitation of the offender. 

The  Tampere  European  Council  asked  the  Council  and  the  Commission  to  adopt  a 
programme of measures to implement the principle of mutual recognition.13  

In  its  Communication  to  the  Council  and  Parliament  on  Mutual  Recognition  of  Final 
Decisions in Criminal Matters of 26 July 2000,14 the Commission proposed basic guidelines. 

These  were  then  spelled  out  in  a  Programme  of  measures  to  implement  the  principle  of 
mutual recognition of decisions in criminal matters.15 This programme states that the mutual 
recognition of judgments is a factor for certainty as to the law in the European Union since it 
ensures  that  a  judgment  given  in  one  Member  State  will  not  be  questioned  in  another.  It 
further notes that implementing the principle of mutual recognition of judgments on criminal 
matters  presupposes  mutual  trust  between  the  Member  States  in  their  respective  criminal 
justice  systems.  Such  trust  is  based  in  particular  on  the  common  core  of  principles  in  their 
attachment  to  the  principles  of  freedom,  democracy,  respect  for  human  rights  and 
fundamental  freedoms  and  the  rule  of  law.  And  mutual  trust  is  facilitated  by  the 

11 

12 

13 

14 

15 

Signed on 2 October 1997 and in force on 1 May 1999. 
Presidency Conclusions, point 39. 
Presidency Conclusions, point 37. 
COM(2000)495 final. 
OJ C 12, 15.1.2001, p. 10. 

12 

 
 
  
 
                                                 
approximation of national legislation, as can be seen in the experience of cooperation between 
the Nordic countries (see point 3.2.1.4.). 

The  Draft  Constitution  confirms  this  method  and  this  approached.  Article  III-171  provides 
that cooperation in criminal matters in the Union “shall be based on the principle of mutual 
recognition  of  judgments  and  judicial  decisions  and  shall  include  the  approximation  of  the 
laws and regulations of the Member States ….” 

1.3.  Method and structure of the Green Paper 

The  Green  Paper  takes  stock  of  the  measures  taken  by  the  European  Union  for  the 
approximation, mutual recognition and enforcement of criminal penalties in another Member 
State (Chapter II) and proceeds then to consider the situation regarding the legislation of the 
Member States on the general principles of criminal law, penalties and their enforcement and 
relevant international agreements concluded by the Member States (Chapter III, plus Annexes 
I, II and III).  

The final part (Chapter IV) identifies the problems remaining despite the adoption of a series 
of  Union  measures  for  approximation  and  mutual  recognition  and  the  conclusion  of 
international  agreements  by  the  Member  States.  That  part  will  give  examples  of  actual  or 
potential legal and practical barriers to the establishment of the European area of justice. On 
the  basis  of  that  analysis,  the  Chapter  will  go  on  to  consider  the  needs  for  Union  action  as 
seen  by  the  Commission  at  the  present  time,  given  the  legal  possibilities  of  attaining  these 
objectives.  It  will  look  only  at  the  mutual  recognition  of  custodial  sentences  (including  the 
enforcement  rules)  and  alternative  sanctions.  Initiatives  are  under  discussion  in  the  Council 
regarding the recognition of financial penalties and confiscation orders. The Commission will 
consider the question of disqualification orders in a separate Communication. Reactions to the 
Green  Paper,  and  in  particular  the  answers  to  the  questions  in  this  Chapter  (see  Annex  IV, 
summing up all the questions), will provide a basis for adding or removing items on the list of 
needs identified or modifying them. 

13 

 
 
  
 
2. 

MEASURES TAKEN BY THE EUROPEAN UNION – A STOCK-TAKING  

2.1. 

Approximation of sanctions 

2.1.1.  The Treaty on European Union 

The Treaty on European Union (TEU), as last amended by the Nice Treaty, which came into 
force in February 2003, sets the Union the objective of providing citizens with a high level of 
safety  within  an  area  of  freedom,  security  and  justice  (Article  29).  This  objective  is  to  be 
attained by, among other means, approximation, where necessary, of rules on criminal matters 
in  the  Member  States.  In  particular,  Article  31(1)(e)  provides  for  the  gradual  adoption  of 
“measures  establishing  minimum  rules  relating  to  the  constituent  elements  of  criminal  acts 
and to penalties in the fields of organised crime, terrorism and illicit drug trafficking”.  

Under  the  Maastricht  Treaty,  approximation  measures  had  already  begun  to  be  taken.  Joint 
actions  had  laid  down  common  definitions  of  offences  in  areas  such  as  racism  and 
xenophobia16 and participation in a criminal organisation,17 but these instruments are silent on 
the question of penalties. 

2.1.2.  The Vienna Action Plan 

Point 46 of the Action Plan of the Council and the Commission on how best to implement the 
provisions of the Treaty of Amsterdam on an area of freedom, security and justice18 provides 
for  approximating  the  Member  States’  criminal  law  rules  relating  to  a  number  of  offences, 
within two or five years of the entry into force of the Treaty, as the case may be. 

There are references in particular to organised crime, terrorism and drug trafficking, where it 
is  urgent  and  necessary  to  adopt  measures  establishing  minimum  rules  relating  to  the 
constituent elements and to penalties and, if necessary, elaborate measures accordingly. The 
first areas in which this is envisaged might, in accordance with the Action Plan, be offences 
linked to organised crime, terrorism and drug trafficking such as trafficking in human beings 
and  the  sexual  exploitation  of  children,  offences  against  the  drug-trafficking  legislation, 
corruption,  computer  fraud,  offences  committed  by 
the 
environment, offences via the Internet and money-laundering linked to these forms of crime.  

terrorists,  offences  against 

2.1.3.  Conclusions of the Tampere European Council 

The  Tampere  European  Council  –  October  1999  (paragraph  48  of  the  conclusions)  also 
considered that “with regard to national criminal law, efforts to agree on common definitions, 
incriminations  and  sanctions  should  be  focused  in  the  first  instance  on  a  limited  number  of 
sectors of particular relevance, such as financial crime (money laundering, corruption, Euro 
counterfeiting),  drugs  trafficking,  trafficking  in  human  beings,  particularly  exploitation  of 
women, sexual exploitation of children, high tech crime and environmental crime”. 

There  is  accordingly  an  obligation  to  approximate  penalties,  both  under  the  Treaty  and  the 
Vienna Action Plan and in response to the political will of the European Council expressed at 
Tampere.  

16 

17 

18 

OJ L 185, 24.7.1996, p. 5. 
OJ L 351, 29.12.1998, p. 1. 
OJ C 19, 23.1.1999, p. 1. 

14 

 
 
  
 
                                                 
2.1.4. 

Instruments adopted or under negotiation 

In all the areas mentioned in the Union Treaty, the Vienna Action Plan and the conclusions of 
the Tampere European Council there have already been initiatives from the Member States or 
proposals  from  the  Commission  that  have  been  adopted  or  are  under  negotiation.  They  are 
listed here on the basis of the type of penalty:  

2.1.5.  Custodial sentences 

The  formula  used  to  harmonise  penalties  has  not  been  so  much  to  determine  effective, 
proportionate and dissuasive penalties as to set minimum levels for maximum penalties. The 
instruments adopted are the following: 

– 

– 

– 

– 

– 

– 

19 

20 

21 

22 

23 

The  Council  Framework  Decision  of  29  May  2000  on  increasing  protection  by 
criminal  penalties  and  other  sanctions  against  counterfeiting  in  connection  with  the 
introduction  of  the  euro:19  this  provides  for  effective,  proportionate  and  dissuasive 
criminal  penalties,  including  custodial  penalties  which  can  give  rise  to  extradition. 
For certain forms of conduct covered by the Framework Decision, provision is made 
for terms of imprisonment, the maximum being not less than eight years.  

The  Council  Framework  Decision  of  28  May  2001  on  combating  fraud  and 
counterfeiting  of  non-cash  means  of  payment:20  this  provides  for  effective, 
proportionate  and  dissuasive  criminal  penalties  including,  at  least  in  serious  cases, 
custodial penalties which can give rise to extradition. 

The  Council  Framework  Decision  of  26  June  2001  on  money  laundering,  the 
identification, tracing, freezing, seizing and confiscation of instrumentalities and the 
proceeds  of  crime:21  this  provides  that  the  offence  of  money  laundering  will  be 
punishable by deprivation of liberty for a maximum of not less than four years. 

The  Council  Framework  Decision  of  13  June  2002  on  combating  terrorism:22  this 
provides for effective, proportionate and dissuasive criminal penalties which can give 
rise to extradition. The relevant offences, where there are terrorist motives, must be 
punishable  by  custodial  sentences  heavier  than  those  imposable  under  national  law 
for such offences in the absence of the special intent. Offences relating to a terrorist 
group  must  be  punishable  by  a  maximum  sentence  of  no  less  than  eight  years  for 
participation  in  the  activities  of  such  groups  and  fifteen  years  for  the  offence  of 
directing a terrorist group.  

The  Council  Framework  Decision  of  19  July  2002  on  combating  trafficking  in 
human beings:23 this provides that Member States must ensure that the offences are 
punishable by effective, proportionate and dissuasive criminal penalties, which may 
entail extradition.  

Council  Directive  2002/90/EC  of  28  November  2002  and  the  Council  Framework 
Decision  of  28  November  2002  on  the  strengthening  of  the  penal  framework  to 

OJ L 140, 14.6.2000, p. 1. 
OJ L 149, 2.6.2001, p. 1. 
OJ L 182, 5.7.2001, p. 1. 
OJ L 164, 22.6.2002, p. 3. 
OJ L 203, 1.8.2002, p. 1. 

15 

 
 
  
 
                                                 
prevent the facilitation of unauthorised entry, transit and residence:24 Member States 
must  ensure  that  the  offences  are  punishable  by  effective,  proportionate  and 
dissuasive criminal penalties, which may entail extradition.  

The  Council  Framework  Decision  of  27  January  2003  on  the  protection  of  the 
environment  through  criminal  law:25  this  provides  for  effective,  proportionate  and 
dissuasive penalties including, at least in serious cases, penalties which can give rise 
to  extradition.  There  is  also  provision  for  the  disqualification  for  a  natural  person 
from engaging in an activity requiring official authorisation or approval. 

The  Council  Framework  Decision  of  22  July  2003  on  combating  corruption  in  the 
private  sector:26  this  provides  for  effective,  proportionate  and  dissuasive  penalties. 
Certain offences must be punishable by a maximum penalty of at least one to three 
years of imprisonment.  

The  Council  Framework  Decision  of  22  December  2003  on  combating  the  sexual 
exploitation  of  children  and  child  pornography:27  this  provides  for  maximum 
criminal penalties of at least between one and three years of imprisonment. 

– 

– 

– 

The  Joint  Action  adopted  by  the  Council  on  21  December  199828  on  making  it  a  criminal 
offence to participate in a criminal organisation in the Member States of the European Union 
does not provide for minimum levels of penalty. 

Other instruments are under discussion: 

– 

– 

– 

24 

25 

26 

27 

28 

29 

30 

31 

Proposal for a Council Framework Decision laying down minimum provisions on the 
constituent  elements  of  criminal  acts  and  penalties  in  the  field  of  illicit  drug 
trafficking.29  Political  agreement  was  recorded  at  the  (JHA)  Council  on  27-28 
November 2003. 

Proposal  for  a  Council  Framework  Decision  on  racism  and  xenophobia:30  this 
provides  for  effective,  proportionate  and  dissuasive  penalties.  For  certain  offences, 
the maximum custodial penalty must be at least between one and three years.  

Proposal  for  a  Council  Framework  Decision  on  attacks  against  information 
systems:31  this  provides  for  effective,  proportionate  and  dissuasive  penalties.  For 
certain  offences,  the  maximum  custodial  penalty  must  be  at  least  between  one  and 

OJ L 328, 5.12.2002, pages 1 et 17. 
OJ  L  29,  5.2.2003,  p.  55.  The  Commission  has  brought  an  action  in  the  Court  of  Justice  against  the 
Council challenging the legality of the Framework Decision and seeking a declaration that it encroaches 
on Community powers in requiring the Member States to impose penalties, including criminal penalties, 
where that is necessary for the attainment of Community objective. 
OJ L 192, 31.7.2003, p. 54. 
OJ L 13, 20.1.2004, p. 44. 
OJ L 351, 29.12.1998, p. 1. 
Proposal  for  a  Council  Framework  Decision  laying  down  minimum  provisions  on  the  constituent 
elements  of  criminal  acts  and  penalties  in  the  field  of  illicit  drug  trafficking,  presented  by  the 
Commission on 23 May 2001 (COM(2001)259; OJ C 270 E, 25.9.2001, p. 144). 
Proposal for a Council Framework Decision on racism and xenophobia, presented by the Commission 
on 29 November 2001 (COM (2001) 664; OJ C 75 E, 26.03.2002, p. 269). 
Proposal for a Council Framework Decision on attacks against information systems, presented by the 
Commission on 19 April 2002 (OJ C 203 E, 27.8.2002, p. 109). 

16 

 
 
  
 
                                                 
three  years.  Political  agreement  was  recorded  at  the  Council  (JHA)  on  27  and  28 
February 2003. 

– 

– 

Draft  Council  Framework  Decision  concerning  the  prevention  and  control  of 
trafficking in human organs and tissues.32 

Proposal  for  a  Council  Framework  Decision  to  strengthen  the  criminal  law 
framework  for  the  enforcement  of  the  law  against  ship-source  pollution:33  this 
provides for a maximum sentence of at least five to ten years’ imprisonment in the 
most  serious  cases,  and  for  criminal  or  non-criminal  fines.  Negotiations  in  the 
Council have begun. 

The  Council  Declaration  annexed  to  the  Framework  Decision  on  the  European  arrest 
warrant  and  the  surrender  procedures  between  Member  States,34  adopted  on  13  June 
2002,  calls  for  further  harmonisation  in  relation  to  the  offences  listed  in  Article  2(2)  of  the 
Framework Decision,35 where there has been no approximation in the Union as yet. But this 
declaration  certainly  does  not  remove  the  need  for  case-by-case  review  of  the  exercise  in 
subsidiarity  and  proportionality 
level  of  penalties,  following 
consideration of the issues under the Belgian and Spanish Presidencies, the Council (JHA) 
on  25  and  26  April  2002  adopted  conclusions  on  the  approach  to  apply  regarding 
approximation of penalties, with the establishment of ranges to determine the minimum level 
of the maximum penalty to be applied, as follows: 

terms.  Regarding 

the 

– 

– 

– 

– 

Level 1: Penalties of a maximum of at least between 1 and 3 years of imprisonment 

Level 2: Penalties of a maximum of at least between 2 and 5 years of imprisonment 

Level 3: Penalties of a maximum of at least between 5 and 10 years of imprisonment 

Level 4: Penalties of a maximum of at least 10 years of imprisonment 

The  conclusions  expressly  foresee  the  possibility  of  going  beyond  level  4  in  specific 
circumstances. For example, the Council Framework Decision of 13 June 2002 on combating 
terrorism36 provides for maximum custodial sentences of at least fifteen years for directing a 
terrorist group. 

The presentation in the form of ranges is a purely cosmetic exercise: only the lower level of 
each range really counts as the maximum applicable is to be at least 1, 2, 5 or 10 years, as the 
case may be.  

But  there  are  no  Union  instruments  providing  for  minimum  penalties.  It  should  be 
remembered  that  Declaration  8  annexed  to  the  Amsterdam  Treaty  provides  that  a  Member 
State which does not provide for minimum penalties cannot be obliged to adopt them.  

32 

33 

34 

35 

36 

Initiative  by  the  Hellenic  Republic  for  a  Council  Framework Decision  concerning  the prevention  and 
control of trafficking in human organs and tissues (OJ C 100, 26.4.2003, p. 27). 
COM(2003)227, 2.5.2003. 
OJ L 190, 18.7.2002, p. 1. 
Article 2(2) of the Decision refers to a list of 32 offences. 
OJ L 164, 22.6.2002, p. 3. 

17 

 
 
  
 
                                                 
As  regards  the  enforcement  of  custodial  penalties  (such  as  suspended  sentences  and 
suspended  or  deferred  sentencing,  day-release,  enforcement  in  instalments,  electronic 
surveillance and home detention), there is no European Union legislation. 

2.1.6.  Financial penalties 

As  has  already  been  seen,  hitherto  the  Union’s  activities  in  relation  to  penalties  have  been 
confined to custodial penalties. 

But the Commission  proposal for a  Council  Framework Decision to strengthen the criminal 
law framework for the enforcement of the law against ship-source pollution37 proposes a scale 
that  involves  setting  a  minimum  level  of  maximum  penalties  to  be  imposed  under  the 
proposal  for  a  directive  that  it  amplifies38  on  natural  and  legal  persons  for  offences  that  it 
covers. The Commission considers that fines would be more appropriate than imprisonment 
for such offences. 

Two  levels  of  penalty  are  provided  for.  The  first,  from  1%  to  10%  of  annual  turnover, 
concerns  cases  where  imprisonment  is  not  provided  for  by  the  directive.  The  second,  from 
10% to 20% of turnover, concerns more serious cases, where imprisonment could be ordered 
under the directive.  

Other harmonisation criteria could be devised, however, and are currently being discussed in 
the  Council.  For  example,  the  scale  of  the  damage  caused  (by  the  relevant  pollution  in  this 
case) seems unlikely to be accepted as it could be seen as condoning small-scale damage, or a 
minimum fine with the possibility of raising it to two thirds of the value of the cargo or freight 
carried by the offending ship. Discussions are continuing in the Council. 

2.1.7.  Disqualification 

For  the  purposes  of  this  Green  Paper,  disqualification  means  a  penalty  withdrawing  or 
restricting rights or a preventive measure whereby a natural or legal person is prohibited, for a 
limited  or  unlimited  period,  from  exercising  certain  rights,  occupying  a  position,  going  to 
certain places or doing certain things. 

A few Framework Decisions that have been or shortly will be adopted in the Union provide 
for  the  possibility  of  disqualifications  in  the  exercise  of  certain  occupations.  The  Council 
Framework  Decision  strengthening  the  penal  framework  to  prevent  the  facilitation  of 
unauthorised  entry,  transit  and  residence39  provides  for  the  possibility  of  a  prohibition  on 
practising  directly  or  through  an  intermediary  the  occupational  activity  in  the  exercise  of 
which the offence was committed.  

The Council Framework Decision on combating the sexual exploitation of children and child 
pornography requires Member States to take measures to ensure that a person who has been 
convicted of one of the offences referred to in the Framework Decision may, if appropriate, be 
temporarily  or  permanently  prevented  from  exercising  professional  activities  related  to  the 
supervision  of  children.  The  Framework  Decision  on  combating  corruption  in  the  private 
sector contains a provision requiring Member States to take measures to ensure that where a 

37 

38 

39 

Supra, point 2.1.5. 
Proposal  for  a  Parliament  and  Council  Directive  on  ship-source  pollution  and  on  the  introduction  of 
sanctions, including criminal sanctions, for pollution offences (COM(2003)92 final, 5.3.2003). 
Article 1(2) , OJ L 328, 5.12.2002, p. 1. 

18 

 
 
  
 
                                                 
natural person has been convicted of active or passive corruption in the private sector he may 
in  certain  circumstances  be  temporarily  prohibited  from  carrying  on  this  particular  or 
comparable business activity in a similar position or capacity. 

2.1.8.  Confiscation 

There  has  been  some  Union  approximation  of  confiscation  orders.  The  Council  Framework 
Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing 
and confiscation of instrumentalities and the proceeds of crime40 provides that, in so far as the 
offence is punishable by deprivation of liberty or a detention order for a maximum of more 
than one year, Member States may not make or uphold reservations in respect of Article 2 of 
the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of 
the Proceeds from Crime.41 This provides that each Party to the Convention must adopt such 
legislative and other measures as may be necessary to enable it to confiscate instrumentalities 
and  proceeds  or  property  the  value  of  which  corresponds  to  such  proceeds.  Member  States 
were  required  to  adopt  measures  to  comply  with  the  Framework  Decision  by  31  December 
2002.  The  Commission  will  shortly  be  presenting  a  report  on  implementation  by  the 
Member States. 

The Framework Decision applies horizontally, as the offence is punishable by deprivation of 
liberty  or  a  detention  order  for  a  maximum  of  more  than  one  year.  But  other  sectoral 
instruments  also  contain  specific  provisions  for  confiscation:  the  Council  Framework 
Decision  on  the  strengthening  of  the  penal  framework  to  prevent  the  facilitation  of 
unauthorised  entry,  transit  and  residence42  and  the  proposal  for  a  Framework  Decision  on 
minimum provisions on the constituent elements of criminal acts and penalties in the field of 
illicit drug trafficking.43 

In  August  2002  Denmark  presented  an  initiative  for  a  Council  Framework  Decision  on 
confiscation  of  crime-related  proceeds,  instrumentalities  and  property44  on  the  grounds  that 
existing  instruments  had  not  sufficiently  achieved  effective  cross-border  cooperation  with 
regard  to  confiscation  as  there  are  still  a  number  of  Member  States  which  are  unable  to 
confiscate the proceeds from all offences punishable by deprivation of liberty for more than 
one year.  

At the Council (JHA) in December 2002 political agreement was reached on this instrument, 
which  has  the  purpose  of  approximating  legislation  on  confiscation  orders.  It  will  enable 
Member  States  to  confiscate,  either  wholly  or  in  part,  instrumentalities  and  proceeds  from 
criminal offences punishable by deprivation of liberty for more than one year, or property the 
value  of  which  corresponds  to  such  proceeds.  It  represents  progress  over  the  Framework 
Decision of 2001 since it also contains extended confiscation powers for a list of offences. 

40 

41 

42 

43 

44 

OJ L 182, 5.7.2001, p. 1. Articles 1 and 3. 
Council of Europe Treaty Series, No 141. Opened for signature on 8 November 1990, entered into force 
on 1 September 1993, accessible at http://conventions.coe.int.  
Article 1(2) (OJ L 328, 5.12.2002, p. 17). 
Article 4, OJ C 270 E, 25.9.2001, p. 144. 
Initiative of the Kingdom of Denmark with a view to the adoption of a Council Framework Decision on 
Confiscation of Crime-related Proceeds, Instrumentalities and Property (OJ C 184, 2.8.2002, p. 3). 

19 

 
 
  
 
                                                 
2.1.9. 

Sanctions for legal persons. 

In  1997  the  Second  Protocol  of  the  Convention  on  the  protection  of  the  European 
Communities’ financial interests was adopted.45 This required each Member State to take the 
necessary measures to ensure that legal persons could be held liable for fraud, corruption and 
money-laundering. Since then, numerous legal instruments based on Title VI of the Treaty on 
European Union have been adopted or proposed containing provisions of this kind requiring 
the Member States to take the necessary measures to allow legal persons to be held liable for 
the offences referred to in the legislation and to lay down sanctions. 

These legal instruments do not require the Member States  to  introduce criminal liability for 
legal  persons  -  it  can  be  administrative  liability  -  because  the  criminal  liability  of  legal 
persons is not an accepted concept in all Member States. The liability of legal persons is not 
general but confined to specific offences, and the sanctions (which may include criminal and 
non-criminal fines) must be effective, proportionate and dissuasive. Other sanctions may also 
be  imposed,  such  as  exclusion  from  entitlement  to  public  benefits  or  aid,  a  temporary  or 
permanent  disqualification  from  the  practice  of  commercial  activities,  placement  under 
judicial supervision or a judicial winding-up order.46 

The  Council  Framework  Decision  on  trafficking  in  human  beings,  the  Framework  Decision 
on combating the sexual exploitation of children and child pornography and the proposal for a 
Framework Decision on drug trafficking also provide for the temporary or permanent closure 
of establishments used to commit the offence. 

It  is  clear  that  whenever  there  has  been  an  approximation  of  the  constituent  elements  of 
offences in a particular area at EU level it has been accompanied by an approximation of the 
sanctions imposed on natural and legal persons.  

Moreover, horizontal legislation on confiscation and the mutual recognition of fines applies to 
sanctions imposed on both natural and legal persons, even for non-harmonised offences. 

2.1.10.  Alternative sanctions. 

Given the significant differences between the criminal law of the Member States, particularly 
as  regards  the  classification  of  punishments  into  primary,47  additional48  and  ancillary49 

45 

46 

47 

48 

OJ C 221,19.7.1997, p. 11. 
See  Council  Framework  Decision  combating  fraud  and  counterfeiting  of  non-cash  means  of  payment 
(Articles  7  and  8);  Council  Framework  Decision  on  increasing  protection  by  criminal  penalties  and 
other sanctions against counterfeiting in connection with the introduction of the euro (Articles 8 and 9); 
Council  Framework  Decision  on  combating  trafficking  in  human  beings  (Articles  4  and  5);  Council 
Framework  Decision  on  the  strengthening  of  the  penal  framework  to  prevent  the  facilitation  of 
unauthorised entry, transit and residence (Articles 2 and 3); Council Framework Decision on combating 
terrorism  (Articles  7  and  8);  Council  Framework  Decision  on  the  sexual  exploitation  of  children  and 
child pornography (Articles 6 and 7); proposal for a Council Framework Decision on drug trafficking 
(Articles 7 and 8); proposal for a Council Framework Decision on combating racism and xenophobia 
(Articles 9 and 10); proposal for a Council Framework Decision on combating corruption in the private 
sector  (Articles  6  and  7)  proposal  for  a  Council  Framework  Decision  on  attacks  against  information 
systems (Articles 9 and 10).  
In most Member States there are two main types of punishment: deprivation of liberty and fines, which 
are prescribed by the legislatures either as alternatives or cumulatively. 
In  French  law  an  additional  penalty  is  one  that  may  be  added  to  the  primary  penalty  by  the  judge  if 
expressly provided for by the legislation making the act an offence. 

20 

 
 
  
 
                                                 
penalties,  it  is  hardly  surprising  that  the  term  “alternative  sanction  or  penalty”  is  not 
interpreted  in  the  same  way  in  all  Member  States.  In  France,  for  example,  an  alternative 
penalty  is  one  that  national  legislation  allows  the  judge  to  impose  instead  of  one  or  more 
primary penalties. Alternative sanctions consist of forfeiture or restriction of the rights listed 
in  Article  131-6  of  the  French  Criminal  Code,50  community  service  or  a  daily  fine.  In 
Germany, by contrast, the daily fine is a primary penalty because this is the only way fines are 
calculated,51 and in Belgium community service was recently introduced as a primary penalty 
(see below).  

To avoid becoming bogged down in a complex comparison between the classifications used 
by  the  15  different  criminal  law  systems  in  the  Member  States,  we  suggest  the  following 
definition:  for  the  purpose  of  this  Green  Paper,  “alternative  sanctions”  means  penalties 
imposed on natural persons or accepted by them in the course of a mediation or out-of-court 
settlement procedure which are not custodial penalties (or their implementing rules) or fines, 
confiscations or disqualifications.52 

This  definition  roughly  corresponds  to  the  term  “community  sanctions”  which  is  defined  in 
the annex to the Council of Europe Committee of Ministers’ Recommendation No R (92) 16 
on  the  European  rules  on  community  sanctions  and  measures  (which  sets  out  a  range  of 
alternatives  to  imprisonment):  “The  term  “community  sanctions  and  measures”  refers  to 
sanctions  and  measures  which  maintain  the  offender  in  the  community  and  involve  some 
restriction of his liberty through the imposition of conditions  and/or  obligations, and which 
are  implemented  by  bodies  designated  in  law  for  that  purpose.  The  term  designates  any 
sanction  imposed  by  a  court  or  a  judge,  and  any  measure  taken  before  or  instead  of  a 
decision  on  a  sanction  as  well  as  ways  of  enforcing  a  sentence  of  imprisonment  outside  a 
prison establishment.”53 

But there is no European Union legislation relating to alternative sanctions. 

2.1.11.  Enforcement of criminal penalties 

Under  Article  31(1)(c)  of  the  Union  Treaty,  “Common  action  on  judicial  cooperation  in 
criminal  matters  shall  include  ...  ensuring  compatibility  in  rules  applicable  in  the  Member 
States, as may be necessary to improve such cooperation”, which extends to the rules on the 
enforcement of criminal penalties. 

49 

50 

51 
52 
53 

These are penalties that follow ipso jure from the conviction and are therefore applied in conjunction 
with  the  primary  penalty  in  certain  Member  States  (e.g.  France)  without  being  handed  down  by  the 
judge. 
1) Suspension of driving licence; 2) ban on driving certain types of vehicle; 3) cancellation of driving 
licence; 4) confiscation of one or more vehicles belonging to the offender; 5) immobilisation of one or 
more vehicles belonging to the offender; 6) ban on possessing or carrying a weapon for which a licence 
is required for a period of up to five years; 7) confiscation of one or more weapons belonging to the 
offender or freely available to him; 8) withdrawal of a hunting licence; 9) ban on drawing cheques; 10) 
confiscation  of  any  object  that  was  used  in  or  intended  for  use  in  committing  the  offence  or  was  the 
product  of  the  offence;  11)  ban  on  exercising  any  professional  or  social  activity  where  the  facilities 
afforded by such an activity were knowingly used to prepare or commit the offence. 
“Tagessatzsystem”, Article 40 of the German Criminal Code (StGB). 
Though some Member States class disqualifications as alternative sanctions. 
See also the list of sanctions and alternative measures in point 1 to Recommendation (2000)22 of the 
Council of Europe Committee of Ministers on improving the implementation of the European rules on 
community  sanctions  and  measures  adopted  on  29  November  2000  and  Resolution  (76)10  of  the 
Council  of  Europe  Committee  of  Ministers  on  certain  alternative  penal  measures  to  imprisonment, 
adopted on 9 March 1976. 

21 

 
 
  
 
                                                                                                                                                         
Although the European Union has powers in relation to the enforcement of criminal penalties, 
it has not yet been highly active in this field. But some research has been done, with Union 
support or funding.54  

2.1.12.  Conclusions 

Union approximation of substantive criminal law has not yet gone far. All areas of crime are 
not  covered,  and  offences  are  often  defined  in  minimalist  terms  or  with  possibilities  for 
derogations.55 And certain forms of potentially criminal conduct have not been defined in the 
instruments and are perceived differently in the Member States (e.g. attempts, participation, 
instigation).  

It must also be borne in mind that as regards the approximation of penalties the exercise has 
so far been confined to defining the penalties applicable either as effective, proportionate and 
dissuasive  or  in  terms  of  the  minimum  level  of  the  maximum  penalty.  Apart  from 
imprisonment, a wide rage of penalties is available in the Member States’ criminal systems.  

Even if the same penalty is defined for the same offence, there are major divergences in the 
general  rules  of  criminal  law  on  the  Member  States,  so  that  the  penalty  imposed  and  the 
penalty  served  may  not  be  the  same  (for  example  in  the  active  detection  of  offences,  the 
principle of mandatory or discretionary prosecution, the level of the sentence imposed and the 
sentence actually served). 

54 

1.  

2.  

4.  

5.  

55 

Examples of projects and measures:  
European  citizens  in  prison  abroad  (financed  by  the  GROTIUS  –  II  (Criminal)  programme: 
2001/GRP/020) sets out, among other things, to establish and support a network of non-governmental 
organisations representing the needs of European prisoners.  
Des innovations pour une réinsertion durable des délinquants – modèles de réforme dans les Etats de 
l’UE (financed by the GROTIUS – II (Criminal) programme: 2002/GRP/019) deals with support for the 
rehabilitation of offenders on the basis of a systematic comparison of experience in the Member States. 
3.  HERO  (Health  and  Educational  Support  for  the  Rehabilitation  of  Offenders)  is  an  “e-learning” 
project of DG Education and Culture. It is a research and technological development project financed 
by  the  European  Commission  under  the  Information  Society  Technology  (IST)  programme.  HERO 
addresses two problems facing most societies: how to improve conditions in prisons, and how to reduce 
the  phenomenon of  recidivism  and  thereby  also  reduce  the  growing  number  of  people  sent  to  prison. 
HERO  addresses  these  problems  from  two  angles.  First,  by  helping  prisoners  and  prison  staff  take 
decisions  on  health  and  education  matters  more  efficiently  and  with  fuller  information.  Second,  by 
helping offenders to better prepare for their release and life outside prison.  
Draft  Resolution  of  the  Representatives  of  the  Governments  of  the  Member  States  meeting  in  the 
Council on the treatment of drug abusers in prisons (Doc. 10497/4/02, REV 4, CORDROGUE 54). The 
Member States are called on to consider ways of introducing or expanding programmes that promote 
and enhance the health of drug abusers in prisons in a way that does not compromise the general efforts 
of keeping drugs out of prisons.  
Study  done  in  2003  by  the  Unité  Mixte  de  Recherche  de  Droit  Comparé  de  Paris,  directed  by  Ms 
Delmas-Marty,  Ms  Guidicelli-Delage  and  Ms  Lambert-Abdelgawad  on  the  harmonisation  of  criminal 
penalties in Europe. 
For example, the Framework Decision of 28 May 2001 combating fraud and counterfeiting of non-cash 
means  of  payment  does  not  cover  all  means  of  payment;  the  proposal  for  a  Framework  Decision  on 
attacks against information systems, on which political agreement was reached at the Council (JHA) in 
February 2003, allows unlawful attacks to be excluded where security measures are not breached. 

22 

 
 
  
 
                                                 
2.2.  Mutual  recognition  and  enforcement  of  criminal  penalties  in  another  Member 

State 

Regarding the mutual recognition and enforcement of criminal penalties in another Member 
State,  the  following  measures  have  been  or  are  about  to  be  prepared  in  the  Commission  or 
adopted by the Council:  

2.2.1.  European arrest warrant 

On 13 June 2002 the Council adopted a Framework Decision on the European arrest warrant 
and the surrender procedures between Member States,56 which entered into force on 7 August 
2002.  It  had  to  be  transposed  by  the  Member  States  by  31  December  2003.  The  European 
arrest warrant is the first practical manifestation, in the criminal law field, of the principle of 
mutual  recognition  of  judicial  decisions.  Its  aim  is  to  ensure  that  the  person  concerned  is 
returned to the Member State which sentenced him (Article 1(1)). But the executing Member 
State may refuse to execute the European arrest warrant where the requested person is staying 
in, or is a national or a resident of, the executing Member State and that State undertakes to 
enforce the sentence or detention order in accordance with its domestic law (Article 4(6) of 
the Decision). 

2.2.2.  Recognition of financial penalties 

In  this  area,  on  8  May  2003  political  agreement  was  reached  within  the  Council  on  an 
initiative  of  the  United  Kingdom,  France  and  Sweden  with  a  view  to  the  adoption  by  the 
Council of a Framework Decision on the application of the principle of mutual recognition to 
financial  penalties.57  This  initiative  corresponds  to  Conclusion  37  of  the  Tampere  European 
Council  and  to  Measure  18  in  the  Programme  of  measures  to  implement  the  principle  of 
mutual  recognition,  which  refers  to  “preparation  of  an  instrument  enabling  the  State  of 
residence  to  levy  fines  imposed  by  final  decision  on  a  natural  or  legal  person  by  another 
Member  State”.  The  Framework  Decision  will  be  applicable  to  any  decision  which 
definitively imposes a financial penalty on a natural or legal person. The decision imposing 
the  financial  penalty  may  be  adopted  either  by  a  court  or  by  an  administrative  authority, 
provided  the  person  concerned  has  been  given  the  opportunity  to  have  the  case  heard  by  a 
court whose jurisdiction includes criminal matters. 

Measure  18  provides  that  the  instrument  to  be  adopted  should  also  include  provisions  on 
procedure  in  the  event  of  non-payment.  The  current  draft,  however,  contains  no  such 
provision. The question arises, therefore, whether it ought not to be supplemented by another 
instrument. 

2.2.3.  Recognition of decisions regarding confiscation 

In  2001  the  Danish  Government  presented  an  initiative  with  a  view  to  the  adoption  of  a 
Council  Framework  Decision  on  the  enforcement  in  the  European  Union  of  confiscation 
orders.58  This  initiative  provides  for  the  mutual  recognition  of  confiscation  orders  between 

56 
57 

58 

OJ L 190, 18.7.2002, p. 1. 
OJ C 278, 2.10.2001, p. 4. 
OJ C 184, 2.8.2002, p. 8. 

23 

 
 
  
 
 
                                                 
Member  States  and  supplements  the  draft  Framework  Decision  on  the  execution  in  the 
European  Union  of  orders  freezing  assets  or  evidence.59  It  has  not  yet  been  adopted  by  the 
Council. It implements Measure 19, first indent, in the Programme of measures to implement 
the  principle  of  mutual  recognition  of  decisions  in  criminal  matters  (“Examine:  …  in 
particular whether the grounds for refusal of enforcement of a confiscation measure in Article 
18  of  the  1990  Convention  are  all  compatible  with  the  principle  of  mutual  recognition”),60 
without, however, covering the aim in the second indent of Measure 19 (“Examine … how to 
improve the recognition and immediate enforcement in one Member State of another Member 
State’s decision to protect a victim’s interests, where such a decision forms part of a decision 
imposing a criminal conviction”), which has still to be achieved. 

2.2.4.  Recognition of decisions regarding disqualification 

As far as the recognition of decisions regarding disqualification is concerned, the Programme 
of  measures  to  implement  the  principle  of  mutual  recognition  has  as  its  aim  “gradually  to 
extend  the  effects  of  disqualifications  throughout  the  European  Union:  the  effectiveness  of 
certain  sanctions  in  the  European  context  depends  on  their  being  recognised  and  enforced 
throughout  the  Union”.  With  a  view  to  achieving  this  aim,  the  Programme  provides  for  the 
following measures:  

Measure  20:  “Compile  a  list  of  the  decisions  regarding  disqualification,  prohibition  and 
incapacity  common  to  all  Member  States,  handed  down  when  sentencing  a  natural  or  legal 
person or further thereto.” 

Measure 21: “Carry out a feasibility study to determine how best to ensure, while taking full 
account  of  requirements  relating  to  personal  freedoms  and  data  protection,  that  the 
competent  authorities  in  the  European  Union  are  informed  of  any  disqualification, 
prohibition  or  incapacity  handed  down  by  the  courts  in  a  Member  State.  The  study  should 
also  consider  which  of  the  following  would  be  the  best  method:  (a)  to  facilitate  bilateral 
information exchanges; (b) to network national criminal records offices; or (c) to establish a 
genuine European central criminal records office.” 

Measure 22: “Draw  up  one or  more instruments enabling the listed disqualifications to be 
enforced in the sentenced person’s Member State of residence and certain disqualifications to 
be  extended  to  the  Union  as  a  whole,  at  least  as  regards  certain  types  of  offence  and 
disqualification. The question whether a decision to ban a person from entering the territory 
issued in one Member State should be extended to the entire Union also needs to be dealt with 
in this context.” 

In  2002  Denmark  presented  an  initiative  “with  a  view  to  adopting  a  Council  Decision  on 
increasing  cooperation  between  European  Union  Member  States  with 
to 
disqualifications”.61  This  initiative,  which  is  currently  before  the  Council,  applies  to 
“disqualifications  which  are  imposed  on  natural  persons  as  part  of  a  judgment  or  as  a 

regard 

59 

60 

61 

In 2001, France, Sweden and Belgium presented an initiative on the execution in the European Union of 
orders  freezing  assets  or  evidence  (OJ  C  75,  7.3.2001,  p.  3)  which  seeks  to  render  immediately 
enforceable in a Member State a freezing order issued by another Member State without the enforcing 
Member State having to issue a fresh order.  
“Aim: To improve enforcement in one Member State of a confiscation order, inter alia for the purpose 
of restitution to a victim of a criminal offence, issued in another Member State, taking into account the 
existence of the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds 
from Crime of 8 November 1990.” 
OJ C 223,19.9.2002, p. 17. 

24 

 
 
  
 
                                                 
corollary  of  a  criminal  conviction,  and  which  restrict  the  convicted  persons’  access  to 
employment,  with  the  exception  of  driving  disqualifications.”  The  draft  Decision  provides 
only for the exchange between Member States of information on disqualifications. It does not 
entail  any  mutual  recognition  of  disqualifications.  It  should,  however,  facilitate  future 
progress in this area in accordance with Measure 22 in the Programme of measures.  

Driving  disqualifications  are  covered  by  the  European  Union  Convention  on  driving 
disqualifications of 17 June 1998 (see point 3.2.3.). 

2.2.5.  Agreements  concluded  between  the  Member  States  of  the  European  Community  in 

the context of European Political Cooperation (EPC) 

In connection with the recognition of final judgments in criminal matters, several agreements 
concluded  between  the  Member  States  of  the  European  Community  in  the  context  of 
European  Political  Cooperation  (EPC),  chiefly  to  apply  or  amplify  Council  of  Europe 
Conventions,  need  to  be  borne  in  mind.  The  effort  made  by  these  agreements  between  the 
Member States of the European Community has not been highly fruitful as they have not been 
ratified by all the Member States and reservations abound. For structural reasons, and to aid 
comprehension, they will be presented and analysed in the context of the Council of Europe 
Conventions to which they relate (Chapter 3.2., in particular points 3.2.1.2. and 3.2.1.7.) 

2.2.6.  Conclusions 

Despite  the  adoption  of  the  Framework  Decision  on  the  European  arrest  warrant  and 
surrender procedures between the Member States, which constitutes major progress in mutual 
recognition,  and  even  if  there  is  reason  to  hope  that  drafts  now  under  discussion  or  in 
preparation  on  the  recognition  of  financial  penalties  and  confiscation  and  disqualification 
decisions  will  be  adopted  in  the  near  future,  the  fact  remains  that  the  range  of  mutual 
recognition  instruments  in  the  European  Union  is  still  somewhat  incomplete.  In  particular, 
there  are  virtually  no  rules  on  the  mutual  recognition  of  custodial  penalties  and  their 
enforcement in another Member State.  

25 

 
 
  
 
3. 

CURRENT SITUATION: NATIONAL LEGISLATION AND INTERNATIONAL AGREEMENTS 

3.1. 

Great diversity between the Member States 

The  legislation  of  the  Member  States  on  penalties  varies  widely.  The  Commission  does  not 
intend to offer an exhaustive survey in this Green Paper but feels it would be useful to give a 
general overview. 

3.1.1.  General rules of criminal law62 

3.1.1.1.  Principles governing prosecution – mandatory or discretionary 

The Member States’ criminal systems are divided on the issue of mandatory or discretionary 
prosecution. The discretionary principle is applied in Belgium, France, Denmark, Ireland, the 
United  Kingdom,  Luxembourg  and  the  Netherlands.  In  Germany,  Austria,  Spain,  Finland, 
Sweden, Greece, Italy and Portugal the mandatory prosecution principle applies.  

The mandatory prosecution principle is that the prosecution authorities must act – even if no 
complaint  has  been  lodged  –  where  they  suspect  that  an  offence  has  been  committed.  The 
discretionary  prosecution  principle  is  that  the  decision  whether  to  prosecute  is  at  the 
discretion of the prosecution service. 

In  practice,  however,  all  legal  systems  combine  elements  of  the  two  principles.  Certain 
questions  arise  in  both  systems,  for  example  the  question  of  the  evidence  needed  to 
commence  a  prosecution.  Those  that  apply  the  mandatory  prosecution  principle  apply 
discretionary criteria in certain circumstances, for example with the possibility of conditional 
discharge,  and  those  applying  discretionary  criteria  allow,  for  example,  instructions  from 
Prosecutors  General  or  criminal  policy  guidelines  from  the  Ministry  of  Justice  and  require 
reasons to be given for discharge decisions and/or appeal procedures to be available.  

In  the  United  Kingdom,  for  example,  there  are  two  rules:  the  reasonable  prospect  of  a 
conviction  –  which  is  more  and  more  widely  used  in  countries  that  apply  the  mandatory 
prosecution  principle  –  and  the  public  interest.  But  in  systems  where  the  mandatory 
prosecution  principle  applies  there  are  criteria  for  giving  priority  to  certain  cases  and  not 
prosecuting minor offences.  

3.1.1.2.  The room for manoeuvre of the criminal courts 

Even if the ambition is to establish an area of freedom, security and justice in which the same 
offence  incurs  an  equivalent  penalty  everywhere,  it  is  clear  that  we  have  to  operate  with 
bodies of legislation that provide sets of equations but that the practical outcome will always 
depend on an unknown factor – the decision of a court that in every case has a discretionary 
power when it comes to sentencing.  

But the first limit on the court’s freedom at the sentencing stage flows from the basic principle 
that  penalties  must  be  provided  for  by  law,  so  that  where  it  holds  that  an  offence  has  been 

62 

The  information  in  document  12432/01 DROIPEN  83  and  in  the  study on Harmonisation  of  criminal 
penalties in Europe (see footnote 10) was used in preparing this Chapter. 

26 

 
 
  
 
 
                                                 
committed it must pass a sentence provided for by the law for that offence. This in turn flows 
from  the  principle  of  legal  certainty,  whereby  the  penalty  incurred  for  an  offence  must  be 
specified by law. 

The presence of aggravating and mitigating circumstances, considered below, to some extent 
also limits the court’s freedom, as can the possibility, for example, of lowering the penalty or 
exempting from it. 

3.1.1.3.  Level of participation: aiding and abetting. 

Aiding  or  abetting  and  being  an  accomplice  are  the  commonest  form  of  participation.  The 
accomplice is defined as a person who participated in one way or another in the commission 
of  the  offence.  In  general,  being  an  accomplice  requires  there  to  be  two  elements:  a 
punishable  principal  offence  and  an  act  of  aiding  and  abetting  involving  an  objective 
component (for example aid or assistance) and a mental state (intention to participate in the 
offence).  

By  and  large  a  distinction  can  be  made  between  two  models  regarding  penalties  for 
participation  in  offences.  In  some  Member  States  (for  example,  France,  Italy,  Portugal, 
Austria, Denmark and Ireland), any person involved in the commission of the offence can be 
punished  as  for  the  principal  offence,  regardless  of  level  of  involvement.  But  the  court  can 
take account of the level of participation for sentencing purposes. In other Member States (for 
example, Germany, Spain, Belgium, Luxembourg, Netherlands, Finland and Greece), the law 
makes a distinction when sentencing the principal offender and accomplices. Joint offenders 
and instigators are generally punished in the same way as the principal offender.  

3.1.1.4.  Level of completion: attempts 

It  can  happen  that  the  result  of  an  offence  is  not  achieved  although  acts  directed  towards  it 
have been done. The absence of a result can have one of two causes: acts were commenced 
but suspended, or the act was completed but the result was lacking, or both.  

There  are  generally  possibilities  of  lower  penalties  for  attempts  than  for  the  completed 
offence,  either  because  the  court  has  a  discretion  (Austria,  Germany,  Denmark,  France  and 
Ireland)  or  because  there  is  express  statutory  provision  (Belgium,  Spain,  Finland,  Greece, 
Italy, Luxembourg, Netherlands, Portugal and United Kingdom).  

In  these  cases  the  lower  penalty  is  often  calculated  by  reference  to  the  penalty  for  the 
completed  offence,  so  that  if  these  penalties  differ  widely,  the  penalties  for  attempts  will 
differ likewise.  

3.1.1.5.  Aggravating and mitigating circumstances 

Aggravating  circumstances  as  regards  criminal  liability  can  be  general  –  applicable  to 
offences  generally–  or  specific  –  applicable  to  specific  offences.  For  sentencing  purposes, 
some  Member  States  allow  the  courts  to  pass  a  heavier  sentence  in  the  presence  of 

27 

 
 
  
 
aggravating  circumstances,63  whereas  others  do  not  allow  the  ordinary  maximum  to  be 
exceeded.64  

Regarding mitigating circumstances, all the Member States’ criminal systems allow the courts 
to reduce the statutory penalty for a specific offence on the basis of mitigating or exonerating 
circumstances provided for by the law. But in systems where there are no minimum penalties, 
such as France, the mitigating circumstances mechanism is broadly useless. As in the case of 
aggravating circumstances, the systems of some Member States provide for a general list of 
mitigating circumstances – Spain is an example – whereas others do not provide for a list and 
the court weighs up the facts that might be taken to constitute mitigating circumstances – for 
example Belgium. 

3.1.1.6.  A special case – recidivism 

Regarding  the  offender’s  background,  recidivism  can  be  taken  into  account  for  sentencing 
purposes (for example in Italy, Belgium and Austria) or as an aggravating circumstance (for 
example in Finland, Denmark and Spain). As regards the level of the penalty, as in the case of 
aggravating  circumstances,  some  Member  States  provide  for  a  penalty  in  excess  of  the 
standard  maximum  –  Austria,  Belgium,  France,  Italy,  Luxembourg,  Sweden  and  Portugal  – 
whereas  others  do  not  allow  the  statutory  maximum  penalty  to  be  exceeded  –  for  example, 
Finland, Ireland and Spain.  

It should be noted here that the Council Framework Decision of 6 December 2001 amending 
Framework Decision 2000/383/JHA on increasing protection by criminal penalties and other 
sanctions against counterfeiting in connection with the introduction of the euro65 requires each 
Member State to recognise the principle of the recognition of previous convictions under the 
conditions prevailing under its domestic law and, under those same conditions, shall recognise 
for  the  purpose  of  establishing  habitual  criminality  final  sentences  handed  down  in  another 
Member State for the offences referred to in the Framework Decision. 

3.1.1.7.  Concurrent offences 

“Concurrent offences” means a situation where the same offender commits several offences 
simultaneously or successively before being finally convicted for one of them. The absence of 
previous convictions distinguishes this from the recidivism. Several systems – for example in 
Belgium – distinguish between cases where the same offender commits several separate acts 
punishable under the criminal law and cases where one and the same act is an offence against 
several different statutory provisions.  

Where  a  person  is  prosecuted  for  related  or  unrelated  offences  in  several  Member  States, 
proceedings could be transferred to a single Member State to facilitate the prosecution. Article 
8(1)(d) of the European Convention on the Transfer of Proceedings in Criminal Matters 197266 
provides that a Contracting State may request another Contracting  State to take proceedings if 
proceedings for the same or other offences are being taken against the suspected person in the 
requested  State.  Article  32  of  the  Convention  provides  that  States  concerned  shall  examine 
whether it is expedient that one of them alone shall conduct proceedings. 

63 
64 
65 
66 

For example, in Greece, Italy and Portugal. 
For example, in Spain, Ireland and Sweden. 
OJ L329, 14.12.2001, p.3. 
Council of Europe, European Treaties No 73. Opened for signature on15 May 1972, entered into force 
on 30 March 1978. Accessible at http://conventions.coe.int/. 

28 

 
 
  
 
                                                 
The 1972 Convention provides that a Contracting State which, before the institution or in the 
course of proceedings is aware of proceedings pending in another Contracting State against the 
same  person  in  respect  of  the  same  offence  shall  consider  whether  it  can  either  waive  or 
suspend its own proceedings, or transfer them to the other State. If it deems it advisable in the 
circumstances not to waive or suspend its own proceedings it shall so notify the other State in 
good  time  and  in  any  event  before  judgment  is  given  on  the  merits.  In  that  eventuality,  the 
States  concerned  shall  endeavour  as  far  as  possible  to  determine  which  of  them  alone  shall 
continue  to  conduct  proceedings.  But  only  five  Member  States67  have  ratified  the  1972 
Convention and five have not even signed it. 

In  a  situation  in  which  an  offender  commits  offences  against  several  different  statutory 
provisions,  the  question  of  ne  bis  in  idem  arises,  a  fundamental  principle  of  criminal  law 
whereby  nobody  can  be  prosecuted  or  convicted  twice  for  the  same  act,68  as  does  the  lis 
pendens principle whereby a prosecution cannot be brought for an offence if proceedings are 
already in motion for it. 

3.1.2.  Custodial penalties 

While it has become conventional for sectoral instruments approximating substantive criminal 
law  to  set  minimum  levels  for  maximum  penalties  in  the  Union,  there  are  no  common 
maximum  penalties,  and  there  are  major  differences  here.  The  criminal  systems  of  some 
Member States, such as Belgium, Greece, the United Kingdom, France and Italy, provide for 
life imprisonment. Others such as Spain and Portugal do not.  

In general, in those Member States where there is provision for life imprisonment, there is the 
possibility of conditional release after a specified minimum period has been served, but that 
period varies very widely (from 10 years in Belgium to 15 in Germany and 20 in Ireland). In 
France, a minimum period of up to 30 years can be ordered. 

Life  imprisonment  being  a  sentence  reserved  for  very  serious  crimes,  the  maximum  prison 
sentences for non-life offences also vary from one Member State to another. This ranges from 
15 years in Germany to 20 in Austria and 30 in Belgium. Likewise, early release is possible 
after  one  third  of  the  sentence  has  been  served  in  Belgium,  two  thirds  in  Denmark  and 
Germany  and  three  quarters  in  Spain.  These  periods  are  usually  lengthened  in  the  case  of 
recidivists. 

As  for  the  various  modes  of  enforcement  of  custodial  penalties,  and  before  going  on  to 
consider whether there are grounds for Union action here, see the more detailed presentation 
in  Annex  I.  That  annex  deals  with  suspended  sentences,  suspended  or  deferred  sentencing, 
day-release, sentences served in instalments, electronic surveillance and home detention. 

On the basis of the inventory and comparative analysis of the Member States’ legislation on 
the  various  modes  of  enforcement  of  custodial  penalties,  it  can  be  seen  that  most  Member 
States have a relatively large variety  of  modes  of  enforcement  allowing  a gradual transition 
from prison to freedom. The approach generally flows from the desire to make use of forms 
of punishment that are more appropriate than firm imprisonment as a means of supporting the 
offender’s reintegration into society and from problems linked to overcrowding in prisons.69 

67 
68 
69 

Austria, Denmark, Netherlands, Spain and Sweden. 
That is to say for the same facts as in the initial decision – same date, place and specific effects. 
In several Member States, the problem of prison overcrowding is a topic of intense public debate, for 
example in Belgium (see article in Le Vif/L’Express of 9.5.2003, p. 26), in France (see articles in Le 
Monde, 12.4. and 30.4.2003) and in Portugal (see article in Grande Reportagem, April 2003, p. 78). 

29 

 
 
  
 
                                                 
The  most  widespread  form  is  the  suspended  sentence,  available  in  almost  all  the  Member 
States.  Electronic  surveillance  is  applied  in  six  Member  States  and  is  under  test  or 
consideration  in  a  further  five.  All  the  other  instruments  (suspended  or  deferred  sentencing, 
day-release, sentences served in instalments and home detention) are known and applied only 
in a minority of Member States. 

3.1.3.  Financial penalties 

Certain Member States (such as Denmark, Spain, Portugal and Germany) apply the daily fine 
system,  whereas  others  (Belgium,  Luxembourg,  the  Netherlands,  the  United  Kingdom  and 
Italy) follow the traditional fixed-amount system. In some countries the two systems coexist 
(France, Greece, Sweden and Finland).  

In the daily fine system, fines are usually determined by the national courts by the following 
procedure. First, the court decides the term of imprisonment that would be ordered if a prison 
sentence was in order. Then it determines the amount to be paid in place of each day of that 
period.  The  period  set  by  the  Member  States’  legislation  generally  begins  at  five  days,  or 
possibly less (in France, Finland, Greece, Spain and Germany), though in Sweden it begins at 
30 days. The maximum number of days that the courts can impose varies from 150 in Sweden 
to 730 in Spain. The minimum amounts that the court sets per day vary between 1 euro and 10 
euros, though there is a much greater variation in the maximum amounts, between 60 euros in 
Greece, 300 euros in Spain and 360 euros in France, all the way up to 5000 euros in Germany.  

In  the  traditional  fixed-amount  system,  minimum  and  maximum  amounts  reflecting  the 
seriousness  of  the  offence  are  usually  provided  for.  Between  the  two  extremes,  the  court 
commonly has a considerable discretion to set the fine. 

In jurisdictions where the traditional fixed-amount system coexists with the daily fine system, 
the sentencing rules are more complicated and vary from country to country. In Finland, for 
example,  the  daily  fine  system  is  applied  but  for  certain  specific  offences  the  fixed-amount 
system is used, whereas in France, the system applied depends on the status of the offence. 

Whatever  the  fine  system,  the  legislation  or  the  cases  in  most  Member  States  require  the 
sentencing  court  to  have  regard  to  the  circumstances  of  the  case  and/or  the  offender’s 
financial situation. 

Finally,  whatever  the  fine  system,  the  national  legislation  usually  explicitly  requires  the 
sentencing court to order imprisonment as an alternative, subsidiary penalty for failure to pay 
the fine (Germany, Belgium, France, Netherlands, Luxembourg and Portugal). 

3.1.4.  Disqualification 

There is a whole range of disqualification penalties or measures in the Member States’ legal 
systems,  from  bans  on  driving  certain  categories  of  vehicles  for  a  specified  period  to 
prohibition on entering the country or on exercising an occupation.  

Driving disqualifications exist in all Member States. But certain disqualifications in relation 
to  specific  occupations  (company  director,  armed  service)  or  to  being  in  specific  places 
(football stadiums, licensed premises) do not.  

There are also a series of disqualifications in the sense of deprivation of civic and civil rights 
ordered as secondary measures accompanying another penalty – usually imprisonment for a 

30 

 
 
  
 
certain duration. Such measures relate to the right to vote or stand for election or prohibitions 
on exercising certain public functions. 

3.1.5.  Confiscations 

Confiscation  is  usually  specific  (in  Germany,  Belgium,  Denmark,  Luxembourg,  the 
Netherlands, Italy or the United Kingdom), applying to articles used in the commission of an 
offence and to assets derived directly from the offence or assets substituted for them and even 
to  the  income  from  these  assets  once  invested.  If  these  articles  cannot  be  traced  in  the 
offender’s assets, the court will evaluate them in money’s worth and confiscate an equivalent 
sum (Belgium, Denmark, Luxembourg and France).  

All the Member States have ratified the Council of Europe Convention of 8 November 1990 
on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.70 But some of 
them have made declarations under Article 271 on confiscation that they will confiscate only 
the  proceeds  of  specified  offences.  Information  gathered  by  the  Commission  for  the 
forthcoming  report  on  the  implementation  of  the  Council  Framework  Decision  of  26  June 
2001  on  money  laundering,  the  identification,  tracing,  freezing,  seizing  and  confiscation  of 
instrumentalities  and  the  proceeds  of  crime72  shows  that  a  large  majority  of  Member  States 
comply with Article 1(a) of the decision, which prohibits reservations regarding Article 2 of 
the  Convention.  But  some  of  them  will  have  to  review  their  reservations  in  line  with  the 
Framework Decision. 

Clearly,  then,  there  are  still  divergences  in  the  possibilities  for  confiscation  in  the  Member 
States,  and  some  of  the  States  are  still  not  in  a  position  to  confiscate  the  proceeds  of  all 
offences that can give rise to prison sentences of more than a year.  

3.1.6. 

Sanctions for legal persons 

There are considerable differences between the Member States as regards sanctions for legal 
persons.  Some  provide  for  liability  –  sometimes  specifically  criminal  liability  –  for  legal 
persons, as in France, Ireland, the United Kingdom, Belgium and the Netherlands. But this is 
not the case of, for instance, Greece, Germany, Luxembourg or Italy. There is much debate 
about  the  criminal  liability  of  legal  persons.  Those  who  oppose  the  idea  argue  that  a  legal 
person  cannot  have  a  mind  of  its  own  and  cannot  therefore  have  a  criminal  intent  (societas 
delinquere non potest). Those who support the idea see things in a very different light. They 
regard  legal  persons  as  more  than  mere  legal  fictions.  They  exist,  they  hold  a  predominant 
place in our society and must be liable for the offences they commit.  

In  the  United  Kingdom  cases,  for  example,  the  liability  of  legal  persons  is  based  on  the 
doctrine of identification. This states that there is a degree of identity between the legal person 
and the persons who direct it – the managers or directors whose functions in the firm are such 
that  they  receive  no  orders  or  instructions  from  anybody  hierarchically  superior  to  them. 
Where  an  offence  is  committed  by  a  person  or  a  group  of  persons  identified  with  the 

70 

71 

72 

Accessible at: http://conventions.coe.int. 
Article 2 – “Confiscation measures: (1) Each Party shall adopt such legislative and other measures as 
may  be  necessary  to  enable  it  to  confiscate  instrumentalities  and  proceeds  or  property  the  value  of 
which corresponds to such proceeds. (2) Each Party may, at the time of signature or when depositing 
its  instrument  of  ratification,  acceptance,  approval  or  accession,  by  a  declaration  addressed  to  the 
Secretary  General  of  the  Council  of  Europe,  declare  that  paragraph  1  of  this  article  applies  only  to 
offences or categories of offences specified in such declaration.” 
OJ L 182, 5.7.2001, p. 1. 

31 

 
 
  
 
                                                 
organisation, it is therefore an offence by the legal person. But despite their differences from 
the common law systems, other Member States, France among them, provide for the criminal 
liability of legal persons. 

3.1.7.  Alternative sanctions 

Non-custodial penalties and measures offer a more creative and humane way of dealing with 
the  issue  of  crime  and  punishment.  In  particular,  they  limit  the  use  of  short  prison  terms, 
which most specialists agree are harmful. The involvement of the community (in many cases 
the  local  community)  is  a  necessary  and  unique  feature  of  the  application  of  alternative 
sanctions. 

Alternative  sanctions  therefore  play  an  important  role  in  crime  prevention  because  they  are 
much better than custodial sentences at promoting the successful rehabilitation of offenders. 
According to Article 29 (2) of the Union Treaty, the European Union’s objective of providing 
citizens  with  a  high  level  of  safety  within  an  area  of  freedom,  security  and  justice  will  be 
achieved  by  preventing  crime.  The  rehabilitation  of  offenders  contributes  directly  to  the 
prevention of re-offending. 

On the basis of the inventory and comparative analysis of the Member States’ legislation on 
alternative  sanctions  (Annex  II),  it  can  be  seen  that  most  Member  States  have  introduced 
alternative sanctions in recent years or are in the process of doing so. The approach generally 
flows from the desire to make use of forms of punishment that are more appropriate than firm 
imprisonment  as  a  means  of  supporting  the  offender’s  reintegration  into  society  and  from 
problems  linked  to  overcrowding  in  prisons.  In  some  Member  States  there  have  been 
difficulties  in  securing  acceptance  of  alternative  sanctions  by  the  courts.  And  national 
legislation  tends  to  focus  on  specific  forms  of  alternative  penalty  –  community  service  and 
mediation. 

3.1.8.  Enforcement of criminal penalties 

To ascertain the situation in the Member States, it is necessary to undertake an inventory and 
comparative  analysis  of  the  Member  States’  legislation  on  the  enforcement  of  criminal 
penalties.  Annex  III,  without  claiming  to  be  exhaustive,  presents  the  Member  States’ 
legislation on suspended sentences, day-release, early release, remission, amnesty and pardon.  

Annex  III  shows  that  the  differences  between  the  Member  States’  legislation  on  the 
enforcement of criminal penalties are also considerable. 

Suspended enforcement of a penalty is possible in only a minority of Member States, such as 
France  and  Italy.  Only  a  few  Member  States  have  the  option  of  day-release  (Germany, 
Belgium,  Spain,  France,  Italy,  Portugal)  while  the  sentence  is  served.  The  eligibility 
conditions,  the  implementing  rules  and  the  consequences  of  violation  of  the  conditions 
imposed  vary  widely.  Early  release  is  possible  in  all  Member  States,  but  the  eligibility 
conditions  and  implementing  rules  again  vary  widely.  The  possibility  of  more  or  less 
automatic  remission  exists  in  only  a  small  number  of  Member  States  (France  and  Greece). 
The  Member  States’  legislation  on  amnesty  and  pardon  diverge  widely,  usually  leaving  the 
public authorities with extensive powers of discretion. 

These differences are neatly illustrated by the numbers of prisoners (in absolute terms or per 
100 000  inhabitants)  in  the  Member  States,  though  the  differences  do  not  reflect  only  the 
differences as regards the enforcement of penalties but also as regards the full set of factors in 

32 

 
 
  
 
criminal law that influence the penalty. On 1 August 2003 the Commission sent the current 
and future Member States a questionnaire on the prison population. It has not yet received all 
the replies, but there is a geographical breakdown as follows: traditionally, there is a moderate 
approach  in  the  Scandinavian  countries  (between  50  and  70  prisoners  per  100  000 
inhabitants),  a  group  of  Member  States  with  a  rate  below  100  prisoners  (Germany,  Austria, 
Belgium, France, Italy, Greece, Luxembourg, Netherlands) and a group with a rate of between 
100 and 150 prisoners per 100 000 inhabitants (Spain, Great Britain, Portugal and a few new 
Member States). Since some of the new Member States have rates of more than 350 prisoners 
per 100 000 inhabitants, it can be seen that the prison population is proportionately six times 
higher than in the Scandinavian countries.  

33 

 
 
  
 
3.2. 

An incomplete range of mutual recognition instruments 

3.2.1.  Mutual recognition of custodial penalties. 

A  series  of  Council  of  Europe  Conventions,  amplified  by  instruments  agreed  in  European 
Political Cooperation (EPC) are relevant here. The main purpose of the EPC Conventions is 
to  facilitate  the  application  of  the  Council  of  Europe  Conventions  and  to  reinforce  judicial 
cooperation  in  criminal  matters  between  the  Member  States.  There  are  also  a  number  of 
regional conventions between, for instance, the Nordic countries.  

3.2.1.1.  European Convention of the Council of Europe of 28 May 1970 on the International 

Validity of Criminal Judgments 

The European Convention of the Council of Europe on the International Validity of Criminal 
Judgments,73 which was concluded on 28 May 1970, has been ratified by 15 of the Council of 
Europe’s  45  members.  It  entered  into  force  on  26  July  1974.  Eleven  Member  States  of  the 
Union have signed74 the Convention, and five have ratified it.75 Numerous reservations have 
been  entered  by  most  of  the  contracting  parties  with  respect  to  the  Convention’s 
implementation. The Convention applies to sentences involving deprivation of liberty. 

According to the Convention, the sentencing State may request another Contracting State to 
enforce  a  sentence  only  if  one  or  more  of  the  conditions  set  out  in  Article  5  are  fulfilled, 
namely:  (a)  if  the  sentenced  person  is  ordinarily  resident  in  the  other  State;  (b)  if  the 
enforcement of the sentence in the other State is likely to improve the prospects for the social 
rehabilitation of the sentenced person; (c) if, in the case of a sentence involving deprivation of 
liberty,  the  sentence  could  be  enforced  following  the  enforcement  of  another  sentence 
involving deprivation of liberty which the sentenced person is undergoing or is to undergo in 
the  other  State;  (d)  if  the  other  State  is  the  State  of  origin  of  the  sentenced  person  and  has 
declared itself willing to accept responsibility for the enforcement of that sentence; or (e) if it 
considers that it cannot itself enforce the sentence, even by having recourse to extradition, and 
that the other State can. In addition, the judgment handed down in the requesting State must 
be  final  and  enforceable  and  the  offence  in  respect  of  which  the  sentence  has  been  passed 
must  also  constitute  an  offence  under  the  law  of  the  requested  State  (“double  criminality” 
requirement76).  

Enforcement requested may be refused, in whole or in part, only in one of the cases listed in 
Article 6.77 

73 

74 

75 

76 

77 

Accessible at http://conventions.coe.int/. 
Austria, Belgium, Denmark, Germany, Spain, Italy, Luxembourg, Netherlands, Portugal and Sweden. 
Austria, Denmark, Spain, Netherlands and Sweden. 
The  double  criminality  requirement  has,  on  the  other  hand,  not  been  included  in  the  following 
agreements: the cooperation agreement of 23 March 1962 between Denmark, Finland, Iceland, Norway 
and  Sweden  (known  as  the  “Helsinki”  agreement),  the  judicial  cooperation  agreement  concluded  in 
1983 at Riyadh between certain Arab States and the 1986 Commonwealth Scheme for the Transfer of 
Offenders. 
Grounds for refusal: (a) where enforcement would run counter to the fundamental principles of the legal 
system  of  the  requested  State;  (b)  where  the  requested  State  considers  the  offence  for  which  the 
sentence was passed to be of a political nature or a purely military one; (c) where the requested State 
considers  that  there  are  substantial  grounds  for  believing  that  the  sentence  was  brought  about  or 

34 

 
 
  
 
 
                                                 
A  sentence  pronounced  in  the  requesting  State  may  not  be  enforced  in  the  requested  State 
except by a decision of a court in that State (Article 37). Before a court takes a decision upon a 
request for enforcement, the sentenced person must be given the opportunity to state his views 
(Article  39).  The  judicial  decisions  taken  in  the  requested  State  with  respect  to  the  requested 
enforcement and those taken on appeal from decisions by the administrative authority referred 
to in Article 37 must be appealable (Article 41). The requested State is bound by the findings as 
to the facts in so far as they are stated in the decision or in so far as it is impliedly based on them 
(Article 42). 

If the request for enforcement is accepted, the court will substitute for the sentence involving 
deprivation of liberty imposed in the requesting State a sentence prescribed by its own law for 
the same offence (Article 44). This sentence may, subject to the limitations mentioned below, 
be of a nature or duration other than that imposed in the requesting State. If this latter sentence 
is less than the minimum which may be pronounced under the law of the requested State, the 
court  will  not  be  bound  by  that  minimum  and  will  impose  a  sentence  corresponding  to  the 
sentence  imposed  in  the  requesting  State.  In  determining  the  sentence,  the  court  may  not 
aggravate the penal situation of the sentenced person as it results from the decision delivered in 
the requesting State. 

Under  the  Convention,  enforcement  is  governed  by  the  law  of  the  requested  State  and  that 
State  alone  is  competent  to  take  all  appropriate  decisions,  such  as  those  concerning 
conditional release. The requesting State alone has the right to decide on any application for 
review of sentence. Either State may exercise the right of amnesty or pardon.  

3.2.1.2.  Convention  of  13  November  1991  between  the  Member  States  of  the  European 

Communities on the enforcement of foreign criminal sentences 

On  13  November  1991  eight  Member  States78  of  the  European  Communities  signed  a 
Convention  on  the  enforcement  of  foreign  criminal  sentences.79  Since  it  has  never  been 
ratified by any of the Member States, the Convention has never entered into force. In relations 
between  Member  States  which  are  parties  to  the  European  Convention  of  the  Council  of 
Europe  on  the  International  Validity  of  Criminal  Judgments  of  28  May  1970,  the  1991 
Convention was to apply to the extent that it supplements the provisions of that Convention or 
facilitates the application of the principles contained therein (Article 20). 

Pursuant  to  Article  2  of  the  Convention,  Member  States  of  the  European  Communities 
undertake to accord each other the widest possible cooperation with regard to the transfer of 

aggravated by considerations of race, religion, nationality or political opinion; (d) where enforcement 
would be contrary to the international undertakings of the requested State; (e) where the act is already 
the  subject  of  proceedings  in  the  requested  State  or  where  the  requested  State  decides  to  institute 
proceedings  in  respect  of  the  act;  (f)  where  the  competent  authorities  in  the  requested  State  have 
decided not to take proceedings or to drop proceedings already begun, in respect of the same act; (g) 
where the act was committed outside the territory of the requesting State; (h) where the requested State 
is unable to enforce the sentence; (i) where the request is grounded on Article 5.e (“if it considers that it 
cannot itself enforce the sanction, even by having recourse to extradition, and that the other State can”) 
and  none  of  the  other  conditions  mentioned  in  that  article  is  fulfilled;  (j)  where  the  requested  State 
considers  that  the  requesting  State  is  itself  able  to  enforce  the  sentence;  (k)  where  the  age  of  the 
sentenced  person  at  the  time  of  the  offence  was  such  that  he  could  not  have  been  prosecuted  in  the 
requested State; (l) where under the law of the requested State the sentence imposed can no longer be 
enforced  because  of  the  lapse  of  time;  (m)  where  and  to  the  extent  that  the  sentence  imposes  a 
disqualification. 
Belgium, Denmark, Germany, Greece, Spain, France, Italy and Luxembourg. 
Accessible at http://ue.eu.int/ejn/. 

78 

79 

35 

 
 
  
 
                                                                                                                                                         
enforcement of sentences (custodial or financial penalties). The transfer of enforcement may 
be requested either by the sentencing State or by the administering State. Each Member State 
may  state  in  a  declaration  those  offences  which  it  intends  to  exclude  from  the  scope  of  the 
Convention. The other Member States may apply the rule of reciprocity (Article 1). 

The transfer of enforcement of a sentence involving deprivation of liberty may be requested 
where (a) the sentenced person is in the territory of the administering State and is a national of 
that  State  or  is  permanently  resident  in  its  territory;  or  (b)  the  sentenced  person  is  in  the 
territory of the administering State and his extradition has been refused, would be refused if 
requested, or is not possible; or (c) the sentenced person is in the territory of the administering 
State and is serving or is to serve a custodial sentence there (Article 3). 

The transfer of enforcement of a sentence needs the agreement of the sentencing State and the 
administering State and may take place only if it satisfies all the conditions set out in Article 5 
of the Convention, namely: (a) the judgment is final and enforceable; (b) the acts or omissions 
on account of which the sentence has been imposed constitute one of the offences referred to 
in Article 1(1)(a) according to the law of the administering State or would constitute such an 
offence if committed in its territory (“dual criminality”); (c) under the laws of the sentencing 
State  or  the  administering  State,  the  enforcement  is  not  barred  by  time  limitations;  (d)  final 
judgment against the sentenced person in respect of the same acts has not been delivered in 
the administering State; and (e) when a final judgment against the sentenced person in respect 
of the same acts has been delivered in a third State, the transfer of enforcement would not run 
counter to the principle of prohibiting double jeopardy. 

It should be noted that, unlike Article 39 of the 1970 Council of Europe Convention, the 1991 
Convention between the Member States of the European Communities does not provide that 
the sentenced person must be heard on the question as to where the sentence will be served. 

Where  the  transfer  of  enforcement  of  a  custodial  penalty  is  accepted,  the  competent 
authorities  in  the  administering  State  must  either  enforce  the  penalty  imposed  in  the 
sentencing State - immediately or through an order – or through a judicial or administrative 
procedure convert the sentence into a decision of the administering State, thereby substituting 
the  penalty  imposed  in  the  sentencing  State  by  a  penalty  laid  down  by  the  law  of  the 
administering State for the same offence (Article 8). 

The administering State must, if so requested, inform the sentencing State which of these two 
procedures  it  will  follow.  Any  Member  State  may,  however,  indicate  by  declaration  that  it 
intends to exclude the application of one of the procedures. 

If the administering State adopts the first procedure (enforcement of the penalty imposed in 
the  sentencing  State),  it  will  be  bound  by  the  legal  nature  and  duration  of  the  penalty  as 
determined  in  the  sentencing  State.  If,  however,  that  penalty  is  by  its  nature  or  duration 
incompatible  with  the  law  of  the  administering  State,  or  if  its  law  so  requires,  the 
administering State may, by a court or administrative order, adapt the penalty to a penalty laid 
down  by  its  own  law  for  a  comparable  offence.  As  to  its  nature  the  penalty  must,  as  far  as 
possible,  correspond  to  the  penalty  imposed  by  the  sentence  to  be  enforced.  It  may  not 
aggravate by its nature or duration the penalty imposed in the sentencing State, nor exceed the 
maximum  penalty  laid  down  by  the  law  of  the  administering  State  for  the  same  offence 
(Article 8(4)). 

If the administering State adopts the procedure of conversion of the penalty, that State (a) will 
be bound by the findings as to the facts in so far as they appear explicitly or implicitly in the 

36 

 
 
  
 
judgment handed down in the sentencing State; (b) may, unless it has made a declaration to 
the contrary, convert a custodial penalty into a financial penalty if the penalty is less than or 
equal to a period of six months; and (c) may not aggravate the penal position of the sentenced 
person and will not be bound by any minimum penalty which its own law may provide for the 
offence or offences committed (Article 8(5)). 

The  sentencing  State  may  not  proceed  with  enforcement  of  the  sentence  once  it  has  agreed 
with  the  administering  State  to  transfer  enforcement.  However,  if  the  sentenced  person 
absconds, the right of enforcement will revert to the sentencing State, except where otherwise 
agreed between that State and the administering State (Article 17). 

3.2.1.3.  The  Treaty  of  26  September  1968  between  Belgium,  the  Netherlands  and 

Luxembourg on the enforcement of judgments in criminal matters 

This Treaty80concerns the enforcement of judgments in criminal matters between the Benelux 
countries. It is applicable to judgments sentencing the convicted person to a custodial penalty 
or  measure,  a  fine,  a  confiscation  or  a  disqualification  and  judgments  ruling  solely  on  the 
question of guilt.81  

The Treaty provides that a sentence passed in a Contracting State may be enforced in another 
Contracting State only if the conduct is an offence also in the second Contracting State or is 
on a list produced in accordance with the Treaty.82 

But the Treaty allows the possibility of refusing enforcement where the offence is a political 
or military offence or is being prosecuted in the requested State or where the requested State 
decides to prosecute it itself. The requested State may also refuse enforcement if enforcement 
would be contrary to its international commitments or the fundamental principles of its legal 
order,  if  the  offence  was  committed  outside  the  territory  of  the  requesting  State  or 
enforcement concerns a disqualification order.83 The relevant authority of the requesting State 
must  certify  that  the  judgment  is  enforceable.84  The  enforcement  of  sentences  passed  in 
absentia is basically subject to the same rules as normal sentences.85  

It is also provided that where there is an arrest warrant or any other form of detention order in 
the  requesting  State  and  the  requesting  State  asks  for  the  sentence  to  be  enforced,  the 
requested State may immediately arrest the offender. In urgent cases, the requested State may 
make  the  arrest  before  the  documents  that  ought  to  accompany  the  request  for  enforcement 
have been received.86 

The  possibility  of  temporary  transit  for  the  arrestee  is  provided  for,87  as  is  the  seizure  of 
certain articles with a view to subsequent confiscation if, under the Treaty, confiscation can 

80 

81 

82 

83 

84 

85 

86 

87 

The  Benelux  Treaty  of  1968  never  entered  into  force;  see  C.  VAN  DEN  WYNGAERT,  Strafrecht  en 
strafprocesrecht in hoofdlijnen, Maklu, Antwerpen, 1998, at p. 1010. 
Article 2. 
Articles 3 and 57. 
Article 5.  
Idem. 
Article 17. 
Article 30. 
Articles 32 and 33. 

37 

 
 
  
 
                                                 
also  be  enforced  in  the  requested  State.88  The  Treaty  also  determines  when  and  in  what 
circumstances the offender may serve his sentence in the requesting State.  

The requested State may enforce fines and confiscation orders only on the basis of a decision 
by  the  Prosecution  Service  in  the  requested  State,  which  must  check  the  authenticity  and 
enforceability  of  the  request.89  It  also  checks  whether  the  Treaty’s  requirements  have  been 
met  and  is  responsible  for  enforcing  technicalities.  The  decision  by  the  Prosecution  Service 
can be challenged in the relevant courts in the requested State. 

A Contracting State may enforce a disqualification order in another Contracting State only on 
the basis of an order from a court in the first Contracting State. It is explicitly provided that 
the disqualification can have effect in a State other than the one in which it was ordered only 
if  the  legislation  there  provides  for  disqualification  for  the  same  offence  or  for  a 
corresponding offence on the list provided for by the Treaty.90 

3.2.1.4.  The model for cooperation between the Nordic States 

The Nordic States (Denmark, Finland, Iceland, Norway and Sweden) have a long tradition of 
cooperation in criminal matters. It is based on their geographical proximity,  their historical, 
cultural and language ties91 and their shared political and economic interests. The instruments 
of  this  cooperation  were  preceded  by  periods  of  intense  public  debate  to  produce  common 
solutions and harmonise national legislation.  

The  first  instrument  is  the  Convention  of  8  March  1948  between  Norway,  Denmark  and 
Sweden  concerning  the  recognition  and  enforcement  of  judgments  in  criminal  matters.  This 
Convention  provided  that  final  judgments  given  in  one  signatory  State  were  enforceable  in 
another. But its scope was confined to fines, confiscations and court costs. It was followed on 
23  March  1962  by  a  Cooperation  Agreement  between  Denmark,  Finland,  Iceland,  Norway 
and  Sweden,  the  “Helsinki  Agreement”.  The  signatory  States  were  required  to  adopt  –  and 
have  adopted  –  identical  or  at  least  similar  rules  allowing  the  authorities  of  one  signatory 
State  to  recognise  and  enforce  judgments  by  authorities  in  the other  signatory  States  and  to 
transfer prisoners to that end. The mutual trust that typifies cooperation between the Nordic 
States  in  criminal  matters  is  founded  on  the  existence  of  identical  or  similar  rules  and 
regulations in all of them. 

The  transfer  of  prisoners  between  Nordic  States  is  based  on  humanitarian  and  penal  policy 
considerations.  The  purpose  of  the  cooperation  is,  among  other  things,  to  promote  the 
rehabilitation and reintegration of the sentenced person. The argument is – quite rightly – that 
it is easier to prepare the prisoner for a future life of freedom if enforcement takes place in the 
State  where  he  plans  to  live.  This  approach  would  also  facilitate  contacts  with  potential 
employers and other organisations, which will help to reduce the risk of recidivism. 

As regards the enforcement of custodial penalties, the State of enforcement is bound by the 
number  of  days’  imprisonment  set  by  the  decision  in  the  sentencing  State.  After  intensive 
debate, the possibility of reducing or adapting the level of sentences to those in the State of 
enforcement  was  felt  to  be  inadequate.  The dual  criminality  principle  was  not  adopted.  The 
transfer  of  prisoners  does  not  depend  on  the  prisoner’s  consent.  But  his  views  must  be 

88 

89 

90 
91 

Article 33.  
Article 42. 
Articles 50 et 57. 
With the exception of Finnish. 

38 

 
 
  
 
                                                 
obtained  before  a  decision  is  taken,  and  his  opinion  is  generally  respected.  He  is  further 
protected by the principle of speciality, whereby the State of enforcement can enforce only the 
sentence for which the transfer was made. To facilitate the procedure in practice, decisions to 
transfer prisoners from one State to another are taken by the central prisons administration of 
the  State  of  enforcement.  In  Sweden,  for  example,  the  central  prisons  administration  is 
empowered to present requests for the transfer of prisoners to another State and to decide on 
requests received from other States. Although enforcement is governed by the law of the State 
of enforcement, the Nordic States have agreed that the State of enforcement may not grant a 
pardon without first consulting the authorities of the sentencing State. 

3.2.1.5.  Council  of  Europe  Convention  on  the  Transfer  of  Sentenced  Persons  of  21  March 

1983 

The Council of Europe Convention on the Transfer of Sentenced Persons was concluded on 
21 March 198392 and has been ratified by 52 States.93 It entered into force on 1 July 1985. All 
the European Union Member States have signed and ratified it. Large numbers of reservations 
have been entered by most of the Member States regarding the application of certain parts of 
the Convention.  

The  chief  purpose  of  the  Convention  is  to  promote  the  social  rehabilitation  of  persons 
sentenced to custodial sentences or measures by allowing foreigners who are deprived of their 
liberty  as  a  result  of  their  commission  of  a  criminal  offence  to  be  given  the  opportunity  to 
serve  their  sentences  within  their  own  original  communities.  It  is  inspired  by  humanitarian 
considerations,  since  it  proceeds  from  an  observation  that  communication  difficulties  on 
account of language, social and cultural barriers and the absence of family contact can have 
deleterious effects on the conduct of foreign prisoners and make it difficult or even impossible 
to achieve their social rehabilitation. 

Under the procedure of Article 2(3) of the Convention, a transfer may be requested both by 
the  sentencing  State  and  by  the  enforcement  (administering)  State.  The  Convention  neither 
generates an obligation for States to transfer sentenced persons nor a right for such persons to 
be transferred. States have a fairly extensive discretionary power.  

A transfer may be made under the Convention only on the following conditions (Article 3): a) if 
that person is a national of the administering State; b) if the judgment is final; c) if, at the time 
of  receipt  of  the  request  for  transfer,  the  sentenced  person  still  has  at  least  six  months  of  the 
sentence  to  serve  or  if  the  sentence  is  indeterminate;  d)  if  the  transfer  is  consented  to  by  the 
sentenced person or, where in view of his age or his physical or mental condition one of the two 
States  considers  it  necessary,  by  the  sentenced  person’s  legal  representative;  e)  if  the  acts  or 
omissions  on  account  of  which  the  sentence  has  been  imposed  constitute  a  criminal  offence 
according  to  the  law  of  the  administering  State  or  would  constitute  a  criminal  offence  if 
committed on its territory; and f) if the sentencing and administering States agree to the transfer. 

As is the case in the Convention between the Member States of the European Communities on 
the enforcement of foreign criminal sentences of 13 November 1991, the State of enforcement 
has  two  options  as  to  the  manner  of  enforcement:  the  relevant  authorities  of  the  State  of 
enforcement  must  either  proceed  to  immediate  enforcement  of  the  sentence  or  convert  the 
sentence, through a judicial or administrative procedure,  into  a  decision  of  that  State,  thereby 

92 
93 

Accessible at http://conventions.coe.int/. 
Some of which are not members of the Council of Europe. 

39 

 
 
  
 
                                                 
substituting for the penalty imposed in the sentencing State a penalty prescribed by the law of 
the administering State for the same offence (Article 9). Enforcement is governed by the law of 
the State of enforcement, and that State has the sole power to take the appropriate decisions.  

The procedure for continued enforcement under Article 10 of the 1983 Convention is identical 
to the procedure of the 1991 Convention (see above). If the nature or duration of the penalty is 
incompatible with the law of the administering State, or its law so requires, that State may, by a 
court or administrative order, adapt the penalty to the punishment or measure prescribed by its 
own law for a similar offence. 

In  the  event  of  conversion  of  the  sentence  (Article  11),  the  procedure  provided  for  by  the 
legislation of the State of enforcement applies. At the time of conversion, the relevant authority: 
a) shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly 
from the judgment imposed in the sentencing State; b) may not convert a custodial sentence to a 
financial  sentence;  c)  shall  deduct  the  full  period  of  deprivation  of  liberty  served  by  the 
sentenced  person;  and  d)  shall  not  aggravate  the  penal  position  of  the  sentenced  person,  and 
shall not be bound by any minimum which the law of the administering State may provide for 
the offence or offences committed. Conditions b) and c) differ from those established in Article 
8(5)  of  the  1991  Convention:  that  Convention  allows  conversion  of  a  custodial  sentence  to  a 
financial sentence, unless expressly stated to the contrary; condition c) has no equivalent in the 
1991 Convention. 

For the sentencing State, the effect of the sentenced person being taken over by the authorities 
of the State of enforcement is to suspend enforcement of the sentence. The sentencing State 
can no longer enforce the sentence if the State of enforcement considers the enforcement of the 
sentence to be complete (Article 8).  

The  application  of  the  Convention  has  been  complicated  by  divergent  interpretations  of  the 
nationality criterion, the situation of detainees suffering from mental disorders and the treatment 
of  unpaid  fines,  failure  to  comply  with  time-limits  for  the  treatment  of  transfer  requests  and 
differences between the criminal systems of the States concerned. 

a. The nationality criterion: the Convention provides that a sentenced person seeking to obtain a 
transfer must be a national of the State of enforcement (Article 3). But this provision must be 
read in conjunction with Article 3(4), whereby any State may by a declaration define, as far as it 
is concerned, the term “national” for the purposes of this Convention. It can therefore extend the 
application of the Convention to persons other than “nationals”, such as nationals of other States 
who are permanent residents. Unfortunately, the Member States’ interpretation is not uniform. 
The  Council  of  Europe,  in  Recommendation  (88)  13,  consequently  suggested  that  Member 
States define the term “national” in a broad sense. It felt that habitual residence should be the 
principal criterion.  

b. The situation of detainees suffering from mental disorders: they are not necessarily sentenced 
in the usual sense of the term following conviction. Under the Member States’ legislation, their 
liability is reduced or negated and they are therefore sentenced to a period of internment for an 
indefinite  period  or  else  dispensed  from  appearing  in  court  but  interned  in  a  special 
establishment  because  of  the  danger  they  represent  for  the  general  public.  Certain  Member 
States consider that the Convention is not applicable to this category of detainees. To remedy 
the difficult of interpretation, the Council of Europe is planning a new recommendation to the 
effect that the Convention should apply to detainees suffering from mental disorders. 

40 

 
 
  
 
c.  Certain  Member  States  (e.g.  the  United  Kingdom  and  France)  allow  fines  and  prison 
sentences  to  be  imposed  for  the  same  offence.  In  such  cases,  it  is  quite  common  for  the 
sentencing State to block all requests for transfer from the sentenced person until they have 
paid the fine. The Council of Europe has tried to combat this practice: Recommendation R (92) 
18,  point  1.  f.,  advised  the  Member  States  to  take  measures  so  that  they  would  not  have  to 
refuse a transfer on the sole ground that fines on the sentenced person in connection with the 
judgment remained unpaid. Since the recommendation did not stem the practice, the Council of 
Europe  is  now  planning  to  look  more  closely  into  the  problem  and  suggest  a  solution  in  the 
form of a new Protocol to the Convention. 

d. In some sentencing States there has been a tendency to refuse the transfer if it would give the 
detainee  the  possibility  of  serving  a  lighter  sentence  in  his  country  of  origin  than  the  one 
imposed  in  the  sentencing  State.  This  situation  can  arise  not  only  where  the  State  of 
enforcement opts for conversion (Article 11) but also where it decides to continue enforcement 
of the sentence (Article 10). In the event of conversion, the risk is obvious since the legislation 
of the State of enforcement (which can always provide for a lighter sentence) is fully substituted 
for the legislation of the sentencing State (Article 9(1)(b), referring to Article 11). In the event 
of continued enforcement of the sentence, the State of enforcement may be obliged to adapt the 
sentence  passed  in  the  sentencing  State,  for  example  if  the  sentence  passed  exceeds  the 
maximum allowed by the legislation of the State of enforcement. Lastly, in practice, a lighter 
sentence  and  even  immediate  release  can  flow  from  the  considerable  differences  between  the 
Member States’ legislation as regards enforcement,94 in particular as regards early release (see 
above).  To  solve  the  problem  of  immediate  release,  the  Council  of  Europe  adopted  a 
Recommendation on 27 June 200195 that the Member States set a minimum enforcement rate 
(e.g. 50% of the total duration of the sentence), below which State would be entitled to refuse a 
transfer.96 

3.2.1.6.  Additional  Protocol  to  the  Council  of  Europe  Convention  on  the  transfer  of 

sentenced persons of 18 December 1997 

An  Additional  Protocol  to  the  Council  of  Europe  Convention  on  the  transfer  of  sentenced 
persons was concluded on 18 December 1997.97 It entered into force on 1 June 2000. It has 
been  ratified  by  sixteen  of  the  Member  States  of  the  Council  of  Europe.  Eleven  of  the  EC 
Member States have signed it, and five have ratified it.  

The  Protocol  amplifies  the  1983  Convention  on  the  transfer  of  sentenced  persons  and  lays 
down  rules  applicable  to  the  transfer  of  enforcement  of  sentences  as  regards  sentenced 
persons  who  have  fled  from  the  sentencing  State  to  return  to  the  State  of  which  they  are 
nationals  and  sentenced  persons  who  are  subject  to  an  expulsion  or  deportation  order  on 
account of their conviction.  

94 

95 

96 

97 

Enforcement of the sentence is governed by the law of the State of enforcement, and that State alone 
has jurisdiction to take the requisite decisions (Article 9(3) of the Convention). 
Recommendation 1527 (2001) on the functioning of the Council of Europe Convention on the transfer 
of sentenced persons. 
But the Committee of Experts on the functioning of the Conventions on criminal matters, in an opinion 
issued  on  22  January  2003,  objected  that  setting  a  minimum  rate  would  run  counter  to  the  flexibility 
that is an acknowledged quality of the Convention. Moreover a fixed rate would preclude case-by-case 
solutions.  The  Committee  accordingly  supports  an  approach  based  on  the  idea  of  a  certain  period 
compatible with the needs of justice. 
Accessible at http://conventions.coe.int/. 

41 

 
 
  
 
                                                 
3.2.1.7.  Agreement  on  the  application,  between  the  Member  States  of  the  European 
Communities,  of  the  Council  of  Europe  Convention  on  the  transfer  of  sentenced 
persons of 25 May 198798 

In relations between the Member States that have ratified the Council of Europe Convention 
on  the  transfer  of  sentenced  persons  of  1983  (the  “Transfer  Convention”),  this  Agreement 
amplifies the Convention (Article 1). It has been signed by eleven Member States and ratified 
by four. 

For the purpose of applying Article 3(1)(a) of the Transfer Convention, each Member State is 
to regard as its own nationals the nationals of another Member State whose transfer is deemed 
to  be  appropriate  and  in  the  interest  of  the  persons  concerned,  taking  into  account  their 
habitual  and  lawful  residence  in  its  territory  (Article  2).  Declarations  made  pursuant  to  the 
Convention on Transfer are not to apply with respect to the Member States that are party to 
this  Agreement.  In  its  relations  with  Member  States  that  are  party  to  the  Agreement,  each 
Member State may make, renew or alter any declaration provided for by the Convention on 
Transfer (Article 3).  

3.2.2.  Recognition  of  judgments  imposing  a  suspended  sentence,  conditional  release  or 

alternative sanctions 

3.2.2.1.  Description and identification of the problem. 

As  regards  supervision  and  assistance  measures  in  the  context  of  suspended  sentences 
accompanied  by  probation  orders  or  conditional  release,  the  Programme  of  Measures  to 
implement  the  principle  of  mutual  recognition  of  decisions  in  criminal  matters  mentioned 
above  sets  the  following  objective  and  measure  in  Chapter  4  (Post-sentencing  follow-up 
decisions):  

“Aim:  To  ensure  that  authorities  cooperate  in  dealing  with  a  person  who  is  subject  to 
obligations or undergoing supervision and assistance, in particular persons on probation or 
parole. 

Measure  23:  Endeavour  to  optimise  application  of  the  European  Convention  on  the 
Supervision of Conditionally Sentenced or Conditionally Released Offenders of 30 November 
1964. It would be especially useful to determine the extent to which certain reservations and 
grounds for refusing enforcement could cease to be enforceable as between Member States, if 
necessary by means of a specific instrument.” 

These  supervision  and  assistance  obligations  or  measures  in  the  context  of  suspended 
sentences accompanied by probation orders or conditional release raise the same problems as 
the recognition of alternative sanctions.  

The  mutual  recognition  of  alternative  sanctions  raises  difficulties  for  the  following  reasons. 
First,  as  was  seen  in  the  section  on  approximation  of  alternative  sanctions,  there  are 
considerable  differences  regarding  their  function  and  their  legal  nature:  in  some  Member 
States, certain alternative sanctions are principal or substitute penalties, whereas in others, the 
same penalties are measures accompanying suspended prison sentences. Then, there is a great 
variety of alternative sanctions themselves. And certain alternative sanctions – including the 
social supervision and supervisory bodies that belong with them – do not exist in all Member 

98 

Accessible at http:/ue.eu.int/ejn/.  

42 

 
 
  
 
                                                 
States.  Lastly,  in  certain  Member  States  there  are  simplified  procedures  for  some  of  the 
alternative sanctions – those within the category of criminal mediation – that operate outside 
the  conventional  criminal  procedure  and  regularly  entail  terminating  the  prosecution  if  the 
simplified procedure is completed successfully. 

Even if the Member States’ legislation seeks to avoid overt discrimination, the fact is that in 
practice  the  national  courts  do  not  pass  suspended  sentences  combined  with  rehabilitation 
measures where  convicted  offenders have their habitual residence in another Member State. 
Since  the  sentencing  State  cannot  carry  out  supervision  measures  in  the  State  where  the 
offender  has  his  habitual  residence,99  the  offender  is  liable  to  be  sentenced  to  actual 
imprisonment  even  for  a  minor  offence,  with  the  result  that  the  offender  is  punished  more 
severely  than  if  he  had  committed  the  same  offence  in  his  Member  State  of  residence.  The 
conclusion  must  be  that  the  chief  cause  of  difficulties  in  this  context  is  not  a  foreign 
nationality but the fact that the  convicted offender is  habitually resident in another Member 
State.  

The  present  position  is  that  in  the  European  Union  there  is  no  legislation  dealing  with  the 
enforcement  of  alternative  sanctions  beyond  national  borders.  Admittedly  the  Belgian 
Government presented an initiative for a Council Decision setting up a European network of 
national  contact  points  for  restorative  justice  in  2002.100  The  purpose  of  that  initiative  is  to 
develop  and  promote  the  various  aspects  of  restorative  justice  in  the  Union  by  setting  up  a 
European network of national contact points. But it does not deal with the mutual recognition 
of alternative sanctions. 

3.2.2.2.  Existing instruments 

The  European  Convention  on  the  Supervision  of  Conditionally  Sentenced  or 
Conditionally Released Offenders,101 prepared under the auspices of the Council of Europe, 
sets out to solve these problems. It was signed on 30 November 1964 and entered into force 
on 22 August 1975. It has been ratified by sixteen States. So far eleven Member States have 
signed102 and eight have ratified.103  

The Convention aims to allow sentenced persons to leave the territory of a Contracting Party 
(requesting  State)  where  they  have  been  sentenced  or  conditionally  released  and  be  placed 
under proper supervision by the authorities of another Contracting Party (requested State). It 
concerns  persons  who  have  been  found  guilty  by  a  court  and  placed  on  probation  without 
sentence  having  been  pronounced,  or  have  been  given  a  suspended  sentence  involving 
deprivation  of  liberty,  or  a  sentence  of  which  the  enforcement  has  been  conditionally 
suspended,  in  whole  or  in  part,  either  at  the  time  of  the  sentence  (“suspended  sentence”)  or 
subsequently (“early release”).104  

99 

100 
101 
102 

103 
104 

Without  an  international  agreement  or  without  European  Union  rules,  the  sentencing  State  would 
commit a violation of the sovereignty of the offender’s State of habitual residence if it took supervisory 
measures in the latter State’s territory. 
OJ C 242, 8.10.2002, p.20. 
Accessible at http://conventions.coe.int/. 
Austria,  Belgium,  Denmark,  Germany,  France,  Greece,  Italy,  Luxembourg,  Netherlands,  Portugal, 
Sweden. 
Austria, Belgium, France, Italy, Luxembourg, Netherlands, Portugal, Sweden. 
In most Member States, early release is a conditional release (see above). 

43 

 
 
  
 
                                                 
The Contracting Parties undertake to grant each other the mutual assistance necessary for the 
social rehabilitation of offenders sentenced abroad. The Convention deals with three types of 
assistance: 

(1) The first form of assistance is supervision (Part II of the Convention). The requesting State 
(State which pronounced the sentence) may request the State in whose territory the offender 
establishes  his  ordinary  residence  to  carry  out  supervision  only.  The  requested  State  may 
adapt the prescribed supervisory measures.  

If so, supervision may be accepted without formality, for example where it also exists in the 
requested State and there is no need to adapt it. If the conditions for a suspended sentence are 
supervised  by  the  State  of  enforcement,  the  question  arises  whether  the  sentencing  State 
should  have  the  possibility  of  ensuring  that  the  sentenced  person  complies  with  the 
conditions? What mechanism should be provided for?  

Where the legislation of the requested State makes no provision for the prescribed supervision 
measures, that State adapts them in accordance with its own legislation (Article 11(1) of the 
Convention).  This  entails  modifying  part  of  the  sentence  or  of  the  decision  of  the  body 
ordering  the  offender  to  be  conditionally  released.  In  no  case  may  the  supervisory  measures 
applied by the requested State, as regards either their nature or their duration, be more severe 
than those prescribed by the requesting State (Article 11(2) of the Convention).  

Under  the  Convention,  where  there  is  a  risk  that  the  conditional  release  decision  might  be 
withdrawn, because the offender has either re-offended or breached the obligations imposed on 
him,  the  requesting  State  alone  has  jurisdiction  to  judge,  on  the  basis  of  the  information  and 
comments  supplied  by  the  requested  State,  whether  or  not  the  offender  has  satisfied  the 
conditions  imposed  upon  him,  and,  on  the  basis  of  such  appraisal,  to  take  any  further  steps 
provided for by its own legislation (Articles 13 and 15 of the Convention). It must inform the 
requested State of its decision. 

(2)  The  second  form  of  assistance  consists  of  enforcement  of  the  sentence  (Part  III  of  the 
Convention) if the requesting State so requests and if it has withdrawn the conditional release 
decision. Enforcement takes place in accordance with the law of the requested State (Article 
17).  The  requested  State,  if  need  be,  substitutes  for  the  penalty  imposed  in  the  requesting 
State,  the  penalty  or  measure  provided  for  by  its  own  legislation  for  a  similar  offence.  The 
nature  of  such  penalty  or  measure  must  correspond  as  closely  as  possible  to  that  in  the 
sentence  to  be  enforced.  It  may  not  exceed  the  maximum  penalty  provided  for  by  the 
legislation of the requested State, nor may it be longer or more rigorous than that imposed by 
the  requesting  State  (Article  19).  The  requesting  State  may  no  longer  itself  take  any  of  the 
measures of enforcement requested, unless the requested State indicates that it is unwilling or 
unable to do so (Article 20). 

(3)  The  third  form  of  assistance  is  relinquishment  to  the  requested  State  (Part IV  of  the 
Convention). Here the requested State adapts to its own penal legislation the penalty or measure 
prescribed as if the sentence had been pronounced for the same offence committed in its own 
territory.  The  penalty  imposed  by  the  requested  State  may  not  be  more  severe  than  that 
pronounced  in  the  requesting  State  (Article  23).  The  requested  State  ensures  complete 
application of the sentence thus adapted as if it were a sentence pronounced by its own courts 
(Article  24).  The  acceptance  by  the  requested  State  of  a  request  in  accordance  with  Part  IV 
extinguishes the right of the requesting State to enforce the sentence (Article 25). 

44 

 
 
  
 
In most cases, the effect of withdrawal of the conditional release decision is that the offender 
must  serve  a  term  of  imprisonment  in  the  State  of  enforcement.  Consequently,  the  same 
questions arise as at points 3.2.1. 

The 1964 Convention has two major drawbacks: the large number of reservations105 entered 
by  most  of  the  Member  States  and  the  grounds  for  refusal106  which  make  it  ineffective  in 
operation.  

3.2.3.  Recognition of disqualification decisions 

Driving  disqualifications  are  covered  by  the  European  Union  Convention  on  driving 
disqualifications of 17 June 1998.107 This Convention, which has so far been ratified only by 
Spain, makes no provision, however, for a genuine mutual recognition mechanism. It does not 
provide  for  the  possibility  of  a  driving  ban  being  recognised  directly  in  all  Union  Member 
States but requires the Member State of residence to intervene. That State has three options 
for  the  enforcement  of  driving  disqualifications:  it  can  enforce  the  disqualification  order 
directly, it can enforce it indirectly via a judicial or administrative decision, or it can convert it 
into  a  domestic  judicial  or  administrative  decision,  which  is  tantamount  to  replacing  the 
decision  in  the  original  Member  State  by  a  new  decision  of  the  Member  State  of  residence 
(Article 4(1) of the Convention). In the latter two cases, the Member State of residence can 
shorten  the  duration  of  the  disqualification.  This  possibility  does  not  seem  compatible  with 
the  mutual  recognition  principle.  The  Convention  also  provides  for  mandatory  and  optional 
grounds for refusing to give effect to the disqualification. Once again, some of these do not 
seem compatible with the mutual recognition principle. 

3.2.4.  Conclusions 

Apart from the Council of Europe Convention of 21 March 1983 on the transfer of sentenced 
persons,  signed  and  ratified  by  all  the  EU  Member  States,  none  of  the  other  conventions 
considered  above  has  been  signed  and  ratified  by  all  the  Union  States.  Among  the  few  EU 
Member  States  that  have  ratified  the  conventions,  many  have  made  declarations  and 
reservations,  which  considerably  limit  their  effectiveness.  Without  wishing  to  reiterate  the 
various criticisms of the substance of the planned rules set out at points 3.2.1 and 3.2.2. here, 
since  that  will  be  examined  more  closely  at  point  4.2.,  the  range  of  instruments  applicable 
between  the  EU  Member  States  to  meet  the  concern  to  recognise  and  enforce  sanctions  in 
another Member State is also rather incomplete and, where it actually exists (as in the case of 

105 
106 

107 

These reservations exclude in particular the application of Parts III and IV. 
According  to  Article  7,  supervision,  enforcement  or  complete  application  must  be  refused:  a)  if  the 
request  is  regarded  by  the  requested  State  as  likely  to  prejudice  its  sovereignty,  security,  the 
fundamentals of its legal system, or other essential interests; b) if the request relates to a sentence for an 
offence which has been judged in final instance in the requested State; c) if the act for which sentence 
has been passed is considered by the requested State as either a political offence or an offence related to 
a political offence, or as a purely military offence; d) if the penalty imposed can no longer be exacted, 
because of the lapse of time, under the legislation of either the requesting or the requested State; e) if 
the offender has benefited under an amnesty or a pardon in either the requesting or the requested State.  
Supervision, enforcement or complete application may also be refused: a) if the competent authorities in 
the  requested  State  have  decided  not  to  take  proceedings,  or  to  drop  proceedings  already  begun,  in 
respect  of  the  same  act;  b)  if  the  act  for  which  sentence  has  been  pronounced  is  also  the  subject  of 
proceedings  in  the  requested  State;  c)  if  the  sentence  to  which  the  request  relates  was  pronounced  in 
absentia; d) to the extent that the requested State deems the sentence incompatible with the principles 
governing the application of its own penal law, in particular, if on account of his age the offender could 
not have been sentenced in the requested State. 
“Explanatory report on the convention on driving disqualifications”, OJ C 211, 23.7.1999, p. 1. 

45 

 
 
  
 
                                                 
 
the Council of Europe Convention of 21 March 1983 on the transfer of sentenced persons), 
capable of improvement. 

46 

 
 
  
 
4. 

OUTSTANDING PROBLEMS AND NEED FOR ACTION BY THE EUROPEAN UNION  

4.1. 

Approximation of custodial penalties and alternative sanctions 

Here  as  elsewhere,  action  by  the  European  Union  is  governed  by  the  subsidiarity  and 
proportionality  principles.  Under  the  Protocol  on  the  application  of  the  principles  of 
subsidiarity  and  proportionality,  Community  action  is  justified  where  the  issue  under 
consideration  has  transnational  aspects,  where  actions  by  Member  States  alone  or  lack  of 
Community  action  would  conflict  with  the  requirements  of  the  Treaty  or  where  action  at 
Community level would produce clear benefits by reason of its scale or effects compared with 
action at the level of the Member States.  

This approach was to the fore in the Council (JHA) conclusions of 25 and 26 April 2002,108 
which  emphasised  the  internal  consistency  of  the  Member  States’  criminal  systems  and  the 
acceptance  that  there  will  be  differences  in  matters  of  penalties.  As  has  already  been  seen, 
there  are  historical,  cultural  and  legal  reasons  for  this,  deeply-rooted  in  their  legal  systems, 
which  have  evolved  over  time  and  are  the  expression  of  the  way  in  which  Member  States 
have faced and answered fundamental questions about criminal law. These systems have their 
own internal coherence. This is ultimately an area which lies at the very heart of the Member 
States’ sovereignty. 

The  principle  governing  action  in  judicial  cooperation  in  criminal  matters  is  mutual 
recognition, as the Tampere conclusions make clear. But there are grounds for considering the 
consequences  of  diversity  in  criminal  penalties.  In  particular,  there  is  the  question  whether 
this creates a barrier to the attainment of the area of freedom, security and justice which the 
Union has set itself as an objective. 

The Commission considers that Union action can be envisaged where it is needed to ensure 
the  effectiveness  of  a  policy  in  harmonised  sectors.  There  is  the  question,  for  example, 
whether the harmonised response within the limits described above to a criminal phenomenon 
developed in the Union really works. In other words, can the desired objective of a high level 
of  security  be  attained  if  certain  conduct  is  not  classed  as  an  offence  or  not  actually 
prosecuted? 

There  is  also  the  question  whether  there  is  a  risk  that  certain  criminals  might  relocate  to  a 
Member State where their nefarious activity is not classified as an offence or attracts lighter 
penalties. It would be interesting to consider whether this is a purely academic hypothesis or 
corresponds to reality in the event, for example, of financial, business or computer crime. 

Another question worth debating is whether and to what extent the absence of approximation 
impedes freedom of movement, or whether the public must expect that conduct that is lawful 
in their own country might be unlawful in another (offences related to racism, paedophilia or 
drug-use, for instance). 

Question 1: To what extent do the differences between sentencing systems raise barriers to 
the establishment of the area of freedom, security and justice such as: 

108 

See above, point 2.1.5. 

47 

 
 
  
 
                                                 
(1)  criminals  relocating  their  activities  owing  to  disparities  between  the  way  the  offences 
are defined, prosecuted and punished; or 

(2) barriers to the free movement of persons?  

Regarding the possibilities of action as perceived by the Commission for the various types of 
penalty, using the breakdown followed above, distinctions can be made as follows: 

4.1.1.  General rules of criminal law 

4.1.1.1.  Prosecution – mandatory or discretionary? 

The choice between one or other system brings us to the question whether there should be a 
European criminal policy giving priority to prosecutions for certain types of offence. 

Incidentally,  the  Commission,  in  its  Green  Paper  on  the  European  Prosecutor,109  as  regards 
fraud  against  the  Community  budget,  expressed  a  preference  for  a  mandatory  prosecution 
system modified by exceptions. This basically implies uniformity in prosecutions throughout 
the  European  area  of  justice,  with  no  discretion  for  the  European  Public  Prosecutor.  At  a 
public hearing on the Green Paper in September 2002, there was a majority in favour of the 
mandatory prosecution principle, subject to specific exceptions. 

The chief objective is to strike a balance and secure efficiency in the administration of justice. 
As a rule it is for each Member State to find that balance, but there is no doubt something to 
be said for there being no major divergence between Member States as regards the decision to 
prosecute at least such offences as are harmonised in Europe. 

4.1.1.2.  The room for manoeuvre of the criminal courts 

Independence is one of the court’s prerogatives; it flows from the principle of the separation 
of powers that is recognised in all Member States. As a general rule, the criminal courts have 
considerable discretion in sentencing. It would not be right to lay down mandatory rules on 
this.  And  as  the  Treaty  stands,  following  Declaration  No  8  to  the  Amsterdam  Treaty  a 
Member State which does provide for minimum penalties cannot be obliged to do so.  

The  study  on  the  approximation  of  criminal  penalties  in  Europe mentioned  in  section  1.1. 
proposes envisaging soft law instruments recommending the adoption of penalties lying in a 
range  between  a  minimum  and  a  maximum  (sentencing  guidelines)  or  areas  for  common 
application  in  standard  cases.  Another  option  might  be  to  conduct  regular  comparison 
exercises  in  the  form  of  meetings  and  case  studies, for example, to  ascertain the sentencing 
practice of the Member States’ courts. It might also be possible to consider the possibility of 
taking  as  a  European  model  a  system  like  the  High  Court  Sentencing  Information  System 
developed  in  Scotland,  to  which  all  Scottish  courts  have  access,  containing  all  the  High 
Courts’ sentencing decisions by way of practical guidance for the courts. 

4.1.1.3.  Level of participation: aiding and abetting. 

The  Framework  Decisions  that  have  been  adopted  and  those  in  the  process  of  adoption110 
generally  contain  provisions  defining  offences  and  sanctions  –  which  must  at  least  be 

109 
110 

COM(2001)715 final, 11.12.2001, point 6.2.2.1. 
See above, point 2.1.5. 

48 

 
 
  
 
                                                 
effective, proportionate and dissuasive111 – for instigation and participation in the commission 
of the offences to which they refer. 

It is simply not possible to embark on the approximation of penalties applicable on the basis 
of the level of participation without approximating the penalties for the principal offender, as 
the penalty incurred by the accomplice in Member States that differentiate sentences in such 
cases generally depends on the penalty for the principal offence. 

4.1.1.4.  Aggravating and mitigating circumstances 

Given that aggravated sentences in certain circumstances provided for by the law are usually 
determined  by  reference  to  the  penalty  for  the  basic  offence,  which  is  not  harmonised  in 
general terms, it is difficult to envisage approximation here. 

Regarding mitigating circumstances, it must be ensured that a proportional reduction system 
does  not  violate  declaration  No  8  to  the  Amsterdam  Treaty,  which  does  not  allow  Member 
States to be required to introduce minimum penalties if they do not have them already.  

Union action would probably be rather limited; the justification for it is doubtful.  

4.1.1.5.  Recidivism 

The Programme of measures to implement the principle of mutual recognition of decisions in 
criminal matters112 contains a number of measures to ensure that courts in one Member State 
take account of sentences passed in another Member State to evaluate the offender’s criminal 
background and draw the appropriate conclusions when sentencing. 

Measure 2, in particular, provides for the adoption of one or more instruments establishing the 
principle  that  a  court  in  one  Member  State  must  be  able  to  take  account  of  final  criminal 
judgments  rendered  by  the  courts  in  other  Member  States  for  the  purposes  of  assessing  the 
offender’s  criminal  record  and  establishing  whether  he  has  re-offended,  and  in  order  to 
determine the type of sentence applicable and the arrangements for enforcing it. 

The Member States hold differing views on the question of taking account of final criminal 
judgments  rendered  by  the  courts  in  other  Member  States  for  the  purposes  of  Measure  2. 
Article  56  of  the  European  Convention  on  the  International  Validity  of  Criminal  Judgments 
1970113  provides  that  “Each  Contracting  State  shall  legislate  as  it  deems  appropriate  to 
enable  its  courts  when  rendering  a  judgment  to  take  into  consideration  any  previous 
European criminal judgment rendered for another offence after a hearing of the accused with 
a  view  to  attaching  to  this  judgment  all  or  some  of  the  effects  which  its  law  attaches  to 
judgments rendered in its territory. It shall determine the conditions in which this judgment is 
taken into consideration.” But only four Member States have ratified the Convention without 
entering reservations on Article 56.114 

111 

112 
113 

114 

For example, Articles 2 and 3 of the Council Framework Decision on combating trafficking in human 
beings (OJ L 203, 1.8.2002, p. 1); Articles 5 and 6 of the Council Framework Decision combating fraud 
and counterfeiting of non-cash means of payment (OJ L 149, 2.6.2001, p. 1). 
OJ C12, 15.1.2001, p.10. 
Council of Europe, European Treaties No 70. Opened for signature on 28 May 1970, entered into force 
on 26 July 1974. Accessible at http://conventions.coe.int/. 
Austria, Denmark, Spain and Sweden. 

49 

 
 
  
 
                                                 
Obviously  a  judicial  authority  that  is  to  take  account  of  a  foreign  decision  when  passing 
sentence must first be acquainted with the foreign decision. To facilitate mutual information, 
Measure 3 of the Mutual Recognition Programme states that a standard form like that drawn 
up  for  the  Schengen  bodies,  translated  into  all  the  official  Union  languages,  should  be 
introduced  for  criminal  records  applications.  The  Commission  proposal  for  a  Council 
Framework Decision on the European Evidence Warrant for obtaining objects, documents and 
data for use in proceedings in criminal matters,115 introduces a standard form for applying for 
a criminal record which would satisfy Measure 3 of the programme of measures to implement 
the principle of mutual recognition in criminal matters. 

Finally,  Measure  4  in  the  Programme  states  that  a  feasibility  study  should  be  carried  out  to 
determine how best to ensure, while taking full account of requirements relating to personal 
freedoms  and  data  protection,  that  the  competent  authorities  in  the  European  Union  are 
informed of an individual’s criminal convictions. The Commission has financed two studies. 
It  will  evaluate  the  extent  to  which  they  contribute  to  the  feasibility  study  called  for  by  the 
Programme. 

The question of information on penalties ordered in other Member States and the action to be 
taken on such information in the event of a fresh prosecution or conviction will be considered 
in a separate Commission study and proposals.  

However, the question of recidivism can give rise to debates that deserve mention here.  

Application of the mutual recognition principle should mean treating a judgment of a court in 
another  Member  State  in  the  same  way  as  a  judgment  of  a  national  court  for  an  equivalent 
offence.  If  an  equivalent  national  judgment  is  the  first  of  a  series  of  repeat  offences,  the 
judgment in the other Member State must likewise be treated as such.  

However, application of this simple principle in practice can come up against difficulties. The 
first  difficulty  relates  to  the  classification  of  the  offence  by  the  trial  court.  This  is  the 
traditional question of dual criminality, much written about in the European Union. But there 
is  a  specific  aspect  where  the  question  of  recidivism  comes  up  since  for  certain  offences 
certain Member States apply the special recidivism principle whereby there is a repeat offence 
only  if  the  second  conviction  is  for  the  same  offence  as  the  first  (example:  two  successive 
drug-dealing offences). It might be possible as a line of least resistance to consider a Union-
based  special  recidivism  mechanism  whereby  account  would  be  taken  in  all  the  Member 
States  of  convictions  in  another  Member  States  if  they  concern  repeat  instances  of  specific 
offences.  

The second difficulty concerns the type of judgment, the type of authority giving it (court, but 
in  certain  cases  a  prosecutor  whose  decision  terminates  proceedings,  or  administrative 
authorities  in  some  cases),  the  type  of  penalty  or  order  (imprisonment,  suspended  or  not, 
alternative  penalty,  discharge,  out-of-court  settlement,  mediation,  etc.),  and  the  quantum  of 
the  penalty.  These  parameters,  under  the  legislation  of  some  countries,  can  be  used  to 
determine whether or not the first judgment is the beginning of a series of repeat offences. It 
could be necessary for the various bodies of national legislation to take a common approach. 

National legislation diverges on the period within which a conviction is taken into account to 
be regarded as the first of a series of repeat offences and the circumstances that can make the 

115 

COM(2003)688 final, 14.11.2003. 

50 

 
 
  
 
                                                 
first judgment  ineffective for that purpose. Here  again,  there  might  be  something  to  be  said 
for approximation.  

4.1.1.6.  Concurrent offences 

The Greek Presidency has presented an initiative116 for the adoption of a Council Framework 
Decision  to  harmonise  the  application  of  the  “ne  bis  in  idem”  principle,  including  the  lis 
pendens principle. It is under discussion in the Council. 

For  the  moment  there  is  nothing  to  suggest  that  general  approximation  measures  should  be 
proposed here until the results of the negotiations on that instrument are known. 

4.1.2.  Custodial penalties 

In particular, it would be worth considering common penalties for the offence of participating 
in  a  criminal  organisation,  since  the  Joint  Action  adopted  by  the  Council  on  21  December 
1998  making  it  a  criminal  offence  to  participate  in  a  criminal  organisation  in  the  Member 
States of the European Union does not provide for a minimum penalty. 

While it has become conventional for sectoral instruments approximating substantive criminal 
law to set minimum levels of maximum penalties in the European Union, there is no common 
maximum penalty, and the differences here are substantial as has been seen. Certain Member 
States  provide  for  life  imprisonment,  whereas  others  do  not.  There  are  grounds  for 
considering whether life imprisonment should be abolished or modified in the Union.  

Abolishing life imprisonment would be justified from the point of view of the objective of re-
educating  and rehabilitating the  offender. As is  well known, a person’s  conduct can change 
during  imprisonment  and  the  absence  of  all  hope  of  ever  being  released  will  not  stimulate 
efforts at reintegration. But in certain circumstances provided for by the law (good conduct, 
studies, vocational training while in detention, etc.) a life term can be reduced substantially in 
a Member State where it is actually provided for, while a long term served in a Member State 
where there is no life imprisonment can amount in practice to a life term.  

Life  imprisonment  could  be  replaced  by  fixed-term  sentences.  For  the  most  serious  crimes, 
threat, 
associated  with  certain  personal  characteristics,  which  represent  a  manifest 
consideration  could  be  given  to  the  possibility  of  reducing  the  penalty  to  a  fixed  period  of, 
say,  20  to  30  years,  the  offender’s  situation  being  regularly  reviewed,  or  ensuring  that  the 
situation of offenders sentenced to unlimited terms come up for periodic review. Combining 
the two options is a real alternative. A degree of approximation would avert difficulties for the 
enforcement of custodial penalties imposed in the sentencing State in a State where they are 
unknown.  

However,  there  are  no  Union  instruments  providing  for  minimum  penalties.  It  should  be 
remembered  that  Declaration  8  annexed  to  the  Amsterdam  Treaty  provides  that  a  Member 
State which does not provide for minimum penalties cannot be obliged to adopt them.  

The  question  arises  whether  the  legislation  of  the  Union  States  (summed  up  in  Annex  I) 
concerning the enforcement of custodial penalties needs harmonising. At first sight it might 
be thought that the enforcement of custodial penalties raises no special problems beyond the 
typical  problems  of  recognising  penalties  that  do  not  exist  in  all  the  Member  States  or  are 

116 

OJ C100, 26.4.2003, p.24. 

51 

 
 
  
 
                                                 
applied in different ways (see Chapter 4.2.). But major divergences could have the effect that 
only residents enjoy the more flexible arrangements. 

4.1.3.  Financial penalties 

Where  the  approximation  of  rules  of  criminal  law  is  indispensable  for  the  effective 
implementation  of  a  Union  policy  in  an  area  where  there  are  harmonisation  measures,  it  is 
possible to establish minimum rules for the definition of offences and penalties. It might also 
be  appropriate  to  do  so  for  financial  penalties  for  failure  to  comply  with  Community 
provisions in the context of a Union policy. The exercise need not be confined to the principle 
of financial penalties but extend to the way in which they are calculated, which vary from one 
Member State to another. 

The need for this might arise in order to ensure that financial or other penalties imposed by 
Member  States  for  violation  of  a  Union  policy  really  are  effective,  proportionate  and 
dissuasive. 

4.1.4.  Disqualification 

Regarding  disqualification,  the  approach  favoured  by  the  Union  in  the  mutual  recognition 
programme117 is to recognise and enforce disqualification throughout the Union. There is no 
obvious  need  for  the  moment  to  propose  general  approximation  measures  here.  Even  so,  it 
might be possible to consider specific disqualification measures linked to specific offences, as 
was done for the sexual exploitation of children and corruption in the private sector.118 

4.1.5.  Confiscation 

As has already been seen, there has been a degree of approximation of confiscation measures 
through the adoption of Union Framework Decisions. There is therefore something to be said 
for  waiting  until  the  instruments  already  adopted  are  implemented  before  preparing  new 
measures concerning the confiscation of the proceeds of crime. The Commission is working 
on a report on the Member States’ implementation of the Council Framework Decision of 26 
June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation 
of instrumentalities and the proceeds of crime .119 

4.1.6.  Legal persons 

There are no general instruments providing for common sanctions applicable to legal persons. 
It must be remembered that most legal persons have activities and assets in several Member 
States. If these measures are not available in all the Member States, there is a risk that legal 
persons  will  relocate  their  activities  and  or  assets  in  the  Member  State  where  the  risk  of 
penalty is lowest or even non-existent.  

As  is  the  case  for  financial  penalties,  thought  might  be  given  to  approximating  sanctions 
ordered against legal persons where this is indispensable for the effective implementation of a 
Union policy in an area where there are harmonisation measures.  

117 

118 

119 

See point 2.2.4.  
See point 2.1.7. 
See point 2.1.8. 

52 

 
 
  
 
                                                 
Question 2: How can major divergences between Member States as regards the decision to 
prosecute be avoided, at least for offences that are harmonised in the Union? 

Question 3: To what extent could European sentencing guidelines be developed, that is to 
say  basic  principles  for  sentencing,  without  interfering  with  the  courts’  room  for 
discretion? 

Question  4:  Should  studies  of  the  sentencing  practice  of  the  Member  States’  courts  be 
carried out?  

Question  5:  Would  it  be  helpful  to  establish  a  sentencing  information  system  to  provide 
guidance for the courts? 

Question  6:  Is  it  enough  to  recognise  a  final  criminal  judgment  given  in  other  Member 
State (and/or treat it in the same way as a national judgment) for it to be taken into account 
in a national court for recidivism purposes? 

Question 7: Should there first of all be a degree of approximation of legislation in matters 
such as: 

- determination of the offences to be taken into account systematically as the beginning of a 
series of repeat offences (establishment of a special European recidivism system); 

-  determination  of  the  type  of  final  criminal  judgments  to  be  taken  into  account  for 
recidivism purposes (type of decision and authority, type and quantum of penalty); 

-  the  period  during  which  final  criminal  judgments  should  be  taken  into  account  as  the 
beginning  of  a  series  of  repeat  offences  in  another  Member  State  and  the  circumstances 
that might neutralise the effect of a conviction for recidivism purposes? 

Question  8:  To  what  extent  should  the  divergences  between  national  rules  on  the 
procedures  for  enforcement  of  custodial  penalties  be  reduced,  particularly  with  a  view  to 
avoiding  the  risks  of  discrimination  against  non-resident  offenders  in  the  application  of 
such penalties? 

Question  9:  Are  there  categories  of  offences  on  the  list  in  Article  2(2)  of  the  Framework 
Decision on the European arrest warrant and/or the proposal for a Framework Decision on 
the application of the principle of mutual recognition to financial penalties for which the 
penalties (and the definitions of the offences) should be harmonised as a matter of priority? 

Question 10: To what extent should criminal fine systems be approximated (for example in 
relation to economic crime, including offences committed by legal persons)? 

Question  11:  To  what  extent  should  divergences  between  national  rules  governing  the 
criminal  or  administrative  liability  of  legal  persons  be  narrowed,  particularly  to  avert  the 
risk of criminals relocating their activities in the field of financial crime?  

Question 12: Could the same range of sanctions as provided for by the current Framework 
Decisions apply on a general basis to legal persons? 

53 

 
 
  
 
4.1.7.  Alternative sanctions 

Given  the  advantages  of  alternative  sanctions  as  compared  with  custodial  sentences,  the 
question must be asked whether measures should be taken at European level to promote - or 
even to impose - alternative sanctions for certain offences. An example would be Article 6(4) 
of  the  Commission  proposal  for  a  Council  Framework  Decision  on  combating  racism  and 
xenophobia.120 

Which  alternative  sanctions  should  be  encouraged?  And  what  steps  should  be  taken  to 
promote  these  penalties?  Acceptance  of  alternative  sanctions  by  judges  could  be  improved, 
for  example  by  setting  up  mechanisms  at  European  Union  level  to  disseminate  information 
and allow the pooling of experience and the establishment of good practice in this area.  

the  practical  arrangements 

As  regards  community  service,  the  question  is  whether  there  should  be  harmonisation  at 
European  Union level of the  conditions under which such alternative  sanctions are imposed 
and 
recognition  and 
implementation  in  other  Member  States.  As  was  seen  in  the  introduction,  there  is  a  strong 
complementary relationship between approximation and mutual recognition. The presentation 
must be considered in the light of section 4.2. 

implementation, 

facilitate 

for 

to 

A  minimal  approach  would  be  to  regulate  the  following  aspects:  conditions  in  which  these 
penalties may be imposed; duration of the penalty, with a possible indication of a minimum 
and/or a maximum period; conditions of implementation; the nature of the work to be done 
which,  like  the  practical  arrangements  for  community  service,  may  differ  according  to  the 
offence committed (for example hospital work for a person who has caused grievous bodily 
harm or work in old people’s home for a young person who has attacked an elderly person); 
monitoring of alternative sanctions; penalties for failure to respect the conditions imposed for 
their  implementation  and,  finally,  as  regards  probation,  the  consequences  of  not  abiding  by 
the  conditions  set.  With  regard  to  mediation  in  criminal  cases,  it  is  important  to  look  at 
whether it is necessary to take measures at European Union level other than those laid down 
in Article 10 of the Council Framework Decision of 15 March 2001 on the standing of victims 
in  criminal  proceedings,121  to  harmonise  certain  conditions  and  practical  arrangements  for 
mediation in criminal cases in order to facilitate the recognition of measures and arrangements 
arising  from  mediation  procedures  and  their  implementation  in  another  Member  State.  A 
minimum  framework  would  govern,  for  example,  the  categories  of  offence  concerned,  the 
procedure  for  mediation,  the  status  of  mediators,  including  the  extent  of  their independence 
from  the  courts,  training  and  conditions  of  eligibility  for  mediators.  Finally,  it  should  be 
decided  whether  steps  should  be  taken  at  European  Union  level,  as  far  as  mediation  in 
criminal cases is concerned, other than those laid down in the Council Framework Decision of 
15  March  2001  on  the  standing  of  victims  in  criminal  proceedings,  to  take  account  of  the 
interests  of  victims  -  including  those  who  do  not  reside  in  the  Member  State  in  which  the 
offence was committed - when imposing alternative sanctions.  

Question  13:  To  what  extent  should  divergences  between  national  rules  governing 
alternative  sanctions  be  narrowed,  in  particular  to  avoid  them  being  applicable  in 
practice only to residents? 

Question  14:  What  mechanisms  might  be  envisaged  to  reduce  the  legal  and  practical 

120 

121 

OJ C 75 E, 26.3.2002, p.269. 
OJ L82, 22.3.2001, p.1. 

54 

 
 
  
 
                                                 
difficulties potentially precluding the mutual recognition and enforcement of alternative 
sanctions in another Member State? 

Question 15: Is it necessary to take measures at European Union level, other than those 
laid  down  in  Article  10  of  the  Council  Framework  Decision  of  15  March  2001  on  the 
standing  of  victims  in  criminal  proceedings,  to  harmonise  certain  conditions  and 
practical  arrangements  for  mediation  in  criminal  cases,  to  facilitate  the  recognition  of 
measures  and  arrangements  arising 
their 
from  mediation  procedures  and 
implementation in another Member State? Should a minimum framework govern: 

- the categories of offence concerned? 

- the mediation procedure? 

- the status of mediators, including the extent of their independence from the courts? 

- training and conditions of eligibility for mediators? 

Question 16: To what extent should measures be taken at European Union level to take 
account  of  the  interests  of  victims  -  including  those  who  do  not  reside  in  the  Member 
State in which the offence was committed - when imposing alternative sanctions? If so, 
what should they be? 

4.1.8.  Enforcement of penalties  

As can be seen in Annex III, suspended sentences, day-release and remission are only known 
in  a  minority  of  Member  States.  Since  they  do  not  raise  specific  problems  beyond  those 
relating  to  the  recognition  of  penalties  that  do not  exist  in  all  the  Member  States,  or  whose 
conditions  of  eligibility  and  implementation  vary  from  one  Member  State  to  another  (see 
Chapter  4.2.),  the  Commission  feels  that  the  time  is  not  ripe  for  a  debate  on  possible 
harmonisation  of  these  instruments.  The  same  conclusion  is  valid  for  instruments  such  as 
amnesty  and  pardon,  as  the  relevant  authorities  generally  enjoy  extensive  discretionary 
powers there. The only instrument for which such a debate is not prima facie excluded is early 
release, which exists in all Member States. As has been seen, the conditions of eligibility and 
implementation  vary  widely  between  them.  In  the  practical  application  of  the  Council  of 
Europe Convention of 21 March 1983 on the transfer of sentenced persons,122 the differences 
in the Member States’ legislation regarding the minimum term of imprisonment to be served 
(Belgium,  for  instance,  allows  early  release  after  a  third  of  the  sentence  has  been  served 
whereas  in  Spain  the  corresponding  period  is  three  quarters123)  have  created  difficulties  of 
application and in some cases even refusals to transfer as they can entail lighter penalties and 
even  immediate  release.  Approximation  of  the Member  States’  legislation  on  this  minimum 
period would thus be conducive to the transfer of prisoners.124  

The fundamental question arising here is whether provision should be made in the European 
Union  for  common  minimum  conditions  covering,  in  particular:  a)  the  minimum  period  of 
imprisonment to be served before early release, b) the criteria for ordering or refusing to order 

122 

123 

124 

Available at http://conventions.coe.int/. 
Article 90, Criminal Code. 
See also points 3.2.1.3. and 4.2.2.2. 

55 

 
 
  
 
 
                                                 
early release, c) the release procedure, d) the supervision conditions and the duration of the 
probation period, e) penalties for failure to comply with the conditions imposed at the time of 
early release, f) procedural safeguards for offenders, and g) victims’ interests.  

Regarding victims’ interests, the question arises how they can be reflected at the enforcement 
stage and whether provision should be made in the Union for early release to be allowed only 
if the victim or victims have been compensated or if the offender has made a serious effort to 
do so or the order can be revoked in default. 

Question 17: To what extent should measures be taken at European level to provide for 
approximation of certain conditions of eligibility and implementation of early 
release, 
their 
enforcement in another Member State? Should minimum standards govern: 

the  recognition  of  prison  sentences  and 

to  facilitate 

-  regarding  life  sentences,  the  possibility  of  periodic  review  with  a  view  to 

early release? 

-  regarding  sentences 

to  specific  periods, 

the  minimum  period  of 
imprisonment that should be served before early release can be allowed? If 
so, how long should it be? Are there any prospects of approximation along 
the lines that, for non-life sentences, early release should be possible after 
half the sentence has been served in  normal circumstances and two thirds 
in repeat offence cases? 

- the criteria for allowing or refusing early release? 

- the release procedure? Should procedural standards be provided for? 

- supervisory arrangements and the duration of the trial period? 

- penalties for failure to comply with the conditions for early release? 

- the procedural safeguards for offenders? 

-  victims’  interests?  Should  the  European  Union  provide  that  early  release 
can  be  allowed  only  if  the  victim  or  victims  have  been  compensated  or  the 
offender has  made  serious efforts  to compensate them, or can  be revoked if 
this condition is not met? 

56 

 
 
  
 
4.2. 

Recognition and enforcement of custodial penalties and alternative sanctions in 
another Member State 

This  Chapter  deals  only  with  the  mutual  recognition  of  custodial  penalties  (and  their 
enforcement  rules)  and  alternative  sanctions.  There  are  initiatives  under  discussion  in  the 
Council  for  the  recognition  of  financial  penalties  and  confiscation  orders.  The  Commission 
will  consider  disqualifications  in  a  separate  communication.  With  regard  to  the  mutual 
recognition  of  final  sentences  involving  deprivation  of  liberty,  the  Programme  of  measures 
intended  to  implement  the  principle  of  mutual  recognition  of  decisions  in  criminal  matters 
lays down, in Chapter 3.1.1., the following aim and measure:  

“Aim:  It  is  necessary  to  assess  international  instruments  on  final  sentences  involving 
deprivation of liberty and to see whether such instruments allow full arrangements for mutual 
recognition. 

Measure  14:  Assess  the  extent  to  which  more  modern  mechanisms  make  it  possible  to 
envisage full arrangements for mutual recognition of final sentences involving deprivation of 
liberty.”  

Measure  13125  in  the  Programme  of  measures  was  implemented  in  part  by  the  Framework 
Decision  on  the  European  arrest  warrant  and  the  surrender  procedures  between  Member 
States. But it also provides for the adoption of an instrument establishing a new principle of 
“extraditing  or  enforcing”.  The  principle  was  implemented  by  Articles  4(6)  and  5(3)  of  the 
Framework  Decision  on  the  European  arrest  warrant  and  surrender  procedures  between 
Member States. 

Measure 13 states moreover that a new instrument at European Union level “should include 
the  practical  modalities  for  enforcing  the  sentence,  for  example,  continued  enforcement  or 
conversion  of  the  sentence”.  With  regard  to  the  transfer  of  sentenced  persons,  which  is  a 
specific form of recognition of custodial penalties, since enforcement of a judgment implies 
recognising  it,  the  Programme  of  measures  lays  down,  in  Chapter  3.1.3.  “Transfer  of 
sentenced persons in the interests of social rehabilitation”, the following aim and measure: 

“Aim:  To  enable  a  Member  State’s  residents  to  serve  their  sentences  in  their  State  of 
residence.  In  this  connection,  Article  2126  of  the  Agreement  on  the  application  between  the 

125 

126 

“Aim: If it is  not possible for a Member State to relinquish the principle that it does not extradite its 
own nationals, to ensure that the sentence for which extradition has been requested is enforced by that 
Member State in its territory. Measure 13: Adoption of an additional instrument to the EU Convention 
relating  to  Extradition  of  27  September  1996  and  the  European  Convention  on  Extradition  of  13 
December 1957. Only situations where the transfer of enforcement is requested are covered by Article 
3(b) of the Convention between the Member States of the European Communities on the enforcement 
of  foreign  criminal  sentences  signed  in  Brussels  on  13  November  1991.  The  future  instrument  could 
apply a new principle to such situations: “either extradite or enforce the sentence”.” 
“For the purpose of applying Article 3(1)(a) of the Convention on Transfer, each Member State shall 
regard  as  its  own  nationals  the  nationals  of  another  Member  State  whose  transfer  is  deemed  to  be 
appropriate and in the interest of the persons concerned, taking into account their habitual and lawful 
residence in its territory.” 

57 

 
 
  
 
 
                                                 
Member  States  of  the  European  Communities  of  the  Council  of  Europe  Convention  on  the 
Transfer of Sentenced Persons of 25 May 1987127 should be borne in mind.” 

Measure  16:  Adoption  of  an  additional  instrument  to  the  European  Convention  on  the 
Transfer of Sentenced Persons of 21 March 1983 extending that Convention, which applies to 
the nationals of the States concerned, in order to cover their residents.” 

In view of the growing mobility of Union citizens, it is increasingly common for an offender 
to  be  sentenced  in  a  Member  State  other  than  that  in  which  he  is  permanently  resident.  As 
already  indicated  in  point  9.1.  of  the  Communication  of  26  July  2000,  two  sets  of  interests 
have  to  be  accommodated  in  the  area  of  the  mutual  recognition  of  custodial  penalties:  the 
interest of the Member State where the sentence was pronounced in having it enforced, and 
the interest of the sentenced person in having a realistic chance of reintegration into society. 
The Communication concludes from this that “custodial penalties should as a general rule be 
executed  as  close  to  the  social  environment  into  which  the  offender  is  to  be  reintegrated  as 
possible” and that “in most cases, this will be in the offender’s Member State of residence”. 

For a sentenced person, the sentence will be all the more severe for having to be served in a 
Member State other than that of which he is a national or in which he is permanently resident. 
Owing  to  differences  in  culture,  language,  customs,  religion  and  social  conditions,  foreign 
prisoners are in a much more difficult position than national ones. Language difficulties alone 
can significantly affect the way in which they are able to exercise, or even learn about, their 
rights,  considerably  complicate  prisoners’  daily  lives  (e.g.  in  relation  to  medical  treatment) 
and thus lead, as a result of the separation from family and friends, to greater social isolation 
of the foreign prisoner and often also to his exclusion from rehabilitation and resocialisation 
programmes both inside and outside prison. 

In general, the recognition of a penalty and its enforcement in the Member State of permanent 
residence is therefore not only in the interest of the sentenced person but also in that of the 
sentencing  State  and  the  enforcing  State.  For  the  sentencing  State,  the  enforcement  of 
penalties  imposed  on  foreign  nationals  involves  considerable  extra  cost  (to  overcome  the 
abovementioned  problems)  which  it  can  avoid  by  transferring  enforcement.  Lastly,  the 
sentenced  person’s  reintegration  into  society  in  the  enforcing  Member  State  –  where  this  is 
the  State  in  which  the  sentenced  person  is  permanently  resident  –  also  serves  that  State’s 
interests.  

If the European Union enacted rules governing mutual recognition by the Member States of 
custodial penalties, including suspended sentences and early release and alternative sanctions, 
they would have to cover the following aspects: 

4.2.1. 

Scope of possible European Union rules  

4.2.1.1.  Personal scope 

First  of  all,  the  personal  scope  of  the  possible  rules  would  have  to  be  defined,  in  particular 
with  regard  to  recognition  of  a  criminal  judgment  whose  enforcement  has  already  begun 
(transfer  of  enforcement):  to  which  sentenced  persons  should  the  rules  apply?  Experience 
with  the  Council  of  Europe  Convention  on  the  transfer  of  sentenced  persons  of  21  March 
1983 shows that confining the possibility of a transfer to nationals of the State of enforcement 

127 

The Convention has been signed by 11 Member States and ratified by only 4. 

58 

 
 
  
 
                                                 
would  discriminate  against  persons  who  are  habitually  resident  in  the  State  of  enforcement. 
The  solution  in  the  agreement  on  the  application  between  Member  States  of  the  European 
Communities of the Council of Europe Convention on the transfer of sentenced persons of 25 
May 1987 should therefore be confirmed, so that each Member State would treat in the same 
way as its own nationals the nationals of all other Member States if they have their habitual 
and regular residence in the territory of that State.  

As  specified  in  the  Communication  to  the  Council  and  Parliament  of  26  July  2000  on  the 
mutual recognition of final decisions in criminal matters,128 the rules of criminal law relating 
to the treatment of minors and mental patients vary widely from one Member State to another. 
Consequently,  in  the  absence  of  a  detailed  analysis  of  the  legal  situation  in  all  the  Member 
States,  it  might  be  preferable,  for  the  time  being  at  least,  to  exclude  judgments  concerning 
them from the scope of any mutual recognition rules.  

Question 18: What categories of sentenced persons should be eligible for transmission 
of  enforcement  in  the  State  of  enforcement:  nationals  of  the  State  of  enforcement, 
persons who habitually reside there, sentenced persons who are in the territory of the 
State of enforcement where they are serving or are due to serve a custodial sentence? 
Should there be specific conditions for minors and mental patients to be eligible also? 

4.2.1.2.  Material scope 

There is also the question of what decisions should be eligible for mutual recognition between 
the  Member  States.  The  Commission’s  view  is  that  the  establishment  of  a  genuine  area  of 
freedom,  security  and  justice  demands  recognition  of  all  criminal  penalties,  including 
alternative sanctions and measures and arrangements emerging from criminal mediation and 
settlement procedures. It would be quite unacceptable for alternative sanctions to be available 
in practice only for residents and not for people who live in another Member State. 

As  regards  suspended  prison  sentences  (combined  with  supervision  and  re-education 
measures), there is a clear need – see points 3.2.2.1 and 3.2.2.2 – to cover them as well in a 
recognition scheme to ensure that those who offend in a Member State other than their State 
of  habitual  residence  are  not  discriminated  against  by  being  punished  more  severely  than  if 
they  had  offended  in  the  Member  State  of  their  habitual  residence  because  suspended 
sentences are not available to them. 

As  long  as  measures  and  arrangements  emerging  from  criminal  mediation  and  settlement 
procedures require the offender to compensate for the damage or pay the victim damages, the 
question arises whether they can be treated as equivalent to agreements covered by civil law, 
with the consequence that their recognition in other Member States would be governed by the 
rules described in the Green Paper of 19 April 2002 on alternative dispute resolution in civil 
and commercial law.129 The question arises here whether agreements emerging from criminal 
mediation and settlement procedures are enforceable and whether there is a need for European 
Union rules. 

Regarding the mutual recognition of disqualifications and the implementation of Measures 20 
and 22 of the mutual recognition programme (see point 2.2.4.), the Commission will present, 
in the second half of 2004, a non-legislative Communication announced in its Legislative and 

128 
129 

COM(2000)495 final. 
COM(2002)196 final, point 3.2.2.3. 

59 

 
 
  
 
                                                 
Work  Programme,130  identifying  the  need  for  action  here  and  suggesting  possible  European 
Union solutions. This will have to take into account what the Commission already noted in its 
Communication  of  26  July  2000  to  the  Council  and  the  European  Parliament  Mutual 
Recognition of Final Decisions in Criminal Matters,131 which is that a disqualification would 
be  substantially  deprived  of  its  effect  if  the  person  disqualified  –  being  banned  from 
exercising  a  given  occupation  or  function  in  the  State  where  judgment  was  given  –  could 
escape  the  penalty  just  by  crossing  a  border  to  exercise  the  same  function  or  occupation  in 
neighbouring  Member  States.  As  regards  the  recognition  of  financial  penalties  and 
confiscation orders, draft Framework Decisions are currently under discussion in the Council 
(see points 2.2.2. and 2.2.3.). 

Question  19:  Is  there  a  need  to  make  agreements  emerging  from  criminal  mediation 
and  settlement  procedures  in  the  Member  States  more  effective?  What  is  the  best 
solution to the problem of recognition and enforcement of such agreements in another 
Member State of the European Union? For instance, should specific rules be adopted 
to make such agreements enforceable? If so, what guarantees should apply? 

4.2.2.  Conditions for recognition 

4.2.2.1.  Right of initiative in the recognition procedure 

Unlike what is provided for by the Council of Europe Conventions of 30 November 1964,132 
28  May  1970133  and  21  March  1983,134  the  Convention  between  the  Member  States  of  the 
European Communities of 13 November 1991135 provides that the two States concerned – the 
State in which judgment is given and the State in which enforcement is sought – may ask for 
the  judgment  to  be  enforced  in  the  other  State.  This  solution  seems  preferable  not  only  on 
grounds of practical flexibility but also because the State of enforcement has, or should have, 
an interest in a judgment concerning one of its nationals or a person habitually resident in its 
territory being enforced in it. 

Question 20: Should it be possible only for the sentencing State to ask for transmission of 
enforcement, or should it also be possible for the State of enforcement? 

4.2.2.2.  Grounds for refusal 

In the event of a refusal by the State of enforcement to recognise a criminal judgment, there is 
the  question  of  the  grounds  that  can  be  legitimately  put  forward.  At  any  rate,  given  that  the 
objective  is  to  secure  the  free  movement  of  judgments  in  criminal  matters,  the  grounds  for 
refusal should be very limited and concern only those provided for by the Council Framework 
Decision of 13 June 2002 on the European arrest warrant and surrender procedures between 
Member States.136 It is questionable whether all these grounds are actually transposable, given 

130 

131 
132 

133 

134 

135 

136 

COM(2003)645 final, reference 2003/JAI/142.  
COM(2000)495 final. 
Council  of  Europe  Convention  on  the  Supervision  of  Conditionally  Sentenced  or  Conditionally 
Released Offenders, 30 November 1964. Accessible at http://conventions.coe.int/ 
Council  of  Europe  Convention  on  the  International  Validity  of  Criminal  Judgments,  28  May  1970. 
Accessible at http://conventions.coe.int/ 
Council  of  Europe  Convention  on  the  Transfer  of  Sentenced  Persons,  21  March  1983.  Accessible  at 
http://conventions.coe.int/ 
Convention between the Member States of the European Communities  on the enforcement of foreign 
criminal sentences, 13 November 1991. Accessible at http://ue.eu.int/ejn/ 
OJ L 190, 18.7.03, p.1. 

60 

 
 
  
 
                                                 
that  recognition  and  enforcement  operate  primarily  for  the  benefit  of  the  person  concerned. 
That  Framework  Decision  lists the  mandatory  and  optional  grounds  for  non-enforcement.  It 
would be worth considering whether all these grounds should be applied mutatis mutandis in 
the  context  of  recognition  of  criminal  penalties,  and  in  particular  alternative  sanctions,  or 
whether the status of some of them should be adapted or whether others should be added, and 
if so, which ones and why.  

The first mandatory ground for non-enforcement concerns cases where the offence on which 
the arrest warrant is based is covered by amnesty in the executing Member State, where that 
State had jurisdiction to prosecute the offence under its own criminal law (Article 3(1) of the 
Framework Decision of 13 June 2002). 

The second mandatory ground for non-enforcement concerns situations where the executing 
judicial authority is informed that the requested person has been finally judged by a Member 
State in respect of the same acts provided that, where there has been sentence, the sentence 
has been served or is currently being served or may no longer be executed under the law of 
the  sentencing  Member  State  (Article  3(2)  of  the  Framework  Decision,  “ne  bis  in  idem” 
principle).  

In Joined Cases C-187/01 Gözütok and C-385/01 Brügge,137 the Court of Justice held that the 
“ne  bis  in  idem”  principle,  enshrined  in  Article  54  of  the  Convention  implementing  the 
Schengen Agreement, signed on 19 June 1990, applied also to proceedings for withdrawal of 
prosecutions,  such  as  those  in  the  principal  action,  whereby  the  prosecution  service  in  a 
Member State, without a court order, terminates the criminal proceedings commenced in that 
State  after  the  accused  has  met  certain  obligations,  in  particular  by  paying  a  certain  sum  of 
money set by the prosecution service (out-of-court settlements). 

This  situation  is  also  covered  by  Article  4(3)  of  the  Framework  Decision:  the  enforcing 
judicial authority can refuse to enforce a European arrest warrant if the judicial authorities in 
the  Member  State  of  enforcement  have  decided  to  refrain  from  prosecuting  the  offence  on 
which the European arrest warrant is based or to drop its prosecution. This is an optional non-
enforcement  situation  but  it  should  become  mandatory  following  the  judgment  referred  to 
above.  

Although the Court has now made it clear that the “ne bis in idem” principle applies also to 
out-of-court  settlements,  there  is  still  the  question  whether  criminal  mediation  procedures, 
which differ from the former in that the victim plays an active part in negotiating a solution, 
should not also be covered by “ne bis in idem” and whether European legislation should be 
envisaged. 

There  is  currently  an  initiative  from  the  Greek  Republic  for  the  adoption  of  a  Council 
Framework Decision on the application of the “non bis in idem” principle,138 under discussion 
in the Council. The initiative contains additional provisions on lis pendens in criminal matters 
(Articles 1(d) and 3) and the criteria for determining the Member State having jurisdiction. 

Applying  the  third  mandatory  ground  for  non-enforcement  provided  for  by  the  Council 
Framework  Decision  of  13  June  2002  (Article  3(3)),  the  judicial  authority  of  the  Member 
State of enforcement refuses to order enforcement if a person against whom a European arrest 

137 
138 

[2003] ECR I-1345 (judgment given on 11 February 2003). 
OJ C 100, 26.4.2003 p. 24. 

61 

 
 
  
 
                                                 
warrant has been issued cannot, on grounds of age, be held criminally liable for the act on the 
basis of the warrant under the law of the Member State of enforcement. 

These mandatory grounds for non-enforcement should be applied in the context of recognition 
of criminal penalties, whether or not the offence is one to which the European arrest warrant 
applies. 

All the other grounds for non-enforcement in Article 4 of the Framework Decision of 13 June 
2002 are optional: 

– 

– 

– 

– 

– 

– 

the absence of dual criminality in cases other than those listed in Article 2; 

where the person is being prosecuted in the executing Member State for the same act;  

where  the  criminal  prosecution  or  punishment  of  the  requested  person  is  statute-
barred according to the law of the executing Member State; 

if the requested person has been finally judged by a third State in respect of the same 
acts; 

if  the  European  arrest  warrant  has  been  issued  for  the  purposes  of  execution  of  a 
custodial sentence or detention order, where the requested person is staying in, or is a 
national  or  a  resident  of  the  executing  Member  State  and  that  State  undertakes  to 
execute the sentence or detention order in accordance with its domestic law; 

if the Member State in which judgment was given has exercised its extra-territorial 
jurisdiction (in certain circumstances). 

The ground stated at the second item of the list (“where the person is being prosecuted in the 
executing  Member  State  for  the  same  act”)  will  be  covered  by  a  future  instrument  on  lis 
pendens.  The  fifth  item  is  obviously  not  relevant  for  present  purposes.  Given  the  main 
objective,  which  is  to  facilitate  reintegration,  and  the  corollary  of  preserving  only  such 
grounds  as  contribute  to  that  objective,  only  the  grounds  in  the  third  and  fourth  items 
(statute-bar, ne bis in idem) should be adopted. 

Other grounds might include the following: 

As seen at point 3.2.1.3.c, certain Member States (e.g. the United Kingdom and France) allow 
fines  and  prison  sentences  to  be  imposed  for  the  same  offence.  In  such  cases,  it  is  quite 
common for the sentencing State to block all requests for transfer from the sentenced person 
until they have paid the fine. Given the prospect of the adoption of the Framework Decision 
on the application of the principle of mutual recognition to financial penalties,139 the question 
arises whether the sentencing State should be entitled to refuse to transfer enforcement until 
the sentenced person has paid the fine. 

Given the differences between the Member States’ legislation on early release (see Annex III, 
point 3), a sentenced person can be released immediately after transfer to the requested State: 
a person who has been sentenced to nine years in Member State A and after serving four years 
applies to be transferred for enforcement in Member State B could be released immediately if 
the  law  of  Member  State  B  allows  early  release  after,  say,  a  third  of  the  sentence  has  been 

139 

OJ C 278, 2.10.2001, p. 1. 

62 

 
 
  
 
                                                 
served (in this case three years). The question here is whether the risk of early release might 
be seen in Member State of judgment A as a legitimate ground for refusing to transfer.  

A solution to this problem in the European Union might consist of setting a minimum period 
during  which  the  sentenced  person  would  continue  to  serve  his  sentence  in  the  convicting 
Member State so as to avoid situations in which he might be released immediately on transfer 
to the State of enforcement or serve a much lighter sentence than in the sentencing State. How 
long should that period be? 

Question 21: What are the grounds that the State of enforcement could legitimately put 
forward for refusing recognition and enforcement in its territory of a criminal penalty 
imposed in another Member State? 

Question  22:  Where  national  legislation  allows  financial  penalties  to  be  imposed 
concurrently  with  prison  sentences,  given  the  prospect  of  the  adoption  of  the 
Framework  Decision  on  the  application  of  the  principle  of  mutual  recognition  to 
financial  penalties,140  should  the  sentencing  State  be  entitled  to  refuse  to  transfer 
enforcement until the sentenced person has paid the fine? 

Question  23:  Given  the  differences  between  the  Member  States’  legislation  on  early 
release, a sentenced person may be released immediately after transfer to the requested 
State.  Could  this  be  seen  in  the  relevant  Member  States  as  a  legitimate  ground  for 
refusing to transfer? 

Question 24: Should a minimum period be set in the European Union during which the 
sentenced person would continue to serve his sentence in the convicting Member State 
so as to avoid situations in which he might be released immediately on transfer to the 
State  of  enforcement  or  serve  a  much  lighter  sentence  than  in  the  sentencing  State? 
How  long  should  that  period  be?  Would  the  introduction  of  a  minimum  period 
jeopardise flexibility and preclude case-by-case solutions? Would determining a period 
compatible  with  the  needs  of  justice,  as  proposed  by  the  Committee  of  Experts  on  the 
operation of the Council of Europe Conventions on criminal law (see point 3.2.1.5.d.), 
be preferable?  

4.2.2.3.  The  power  of  the  State  of  enforcement  to  adapt,  convert  or  substitute  a  penalty 

imposed in the State of judgment 

The  recognition  and  enforcement  of  a  penalty  imposed  in  another  Member  State  can  pose 
problems if the type or duration of the penalty is incompatible with the legislation of the State 
of enforcement. The problem of the incompatibility of the type of penalty with the legislation 
of  the  State  of  enforcement  arises  in  particular  in  the  context  of  alternative  sanctions.  The 
Council  of  Europe  Conventions  of  30  November  1964  and  21  March  1983  and  the 
Convention between the Member States of the European Communities of 13 November 1991 
give the State of enforcement a choice141 between adapting the penalty to be recognised into 
the penalty provided for by its own legislation for comparable offences (Conventions of 1964, 
1983  and  1991)  and  the  possibility  of  substituting  for  the  penalty  ordered  in  the  State  of 
judgment a penalty provided for by its own legislation for the same offence (Conventions of 

140 
141 

OJ C 278, 2.10.2001, p. 1. 
The Convention of 28 May 1970 allows only substitution. 

63 

 
 
  
 
 
                                                 
1964  and  1970)  or  converting  the  penalty  ordered  in  the  State  of  judgment  into  a  penalty 
provided for by its own legislation for the same offence (Conventions of 1983 and 1991). In 
practical  terms  these  three  possibilities  give  the  same  results,  namely  that  the  State  of 
enforcement may change the penalty to be recognised by adapting it into a penalty provided 
for by its own legislation for comparable offences. Yet this possibility does not seem to be 
consistent with the principle of mutual recognition. All these Conventions provide that the 
penalty imposed in the State of enforcement may not be heavier than the penalty imposed in 
the State of judgment; that the penalty imposed in the State of enforcement must correspond 
as closely as possible, in type and duration, to the penalty imposed in the State of judgment; 
and  that  the  State  of  enforcement  is  not  bound  to  respect  the  minimum  penalty,  if  any, 
provided  for  by  its  own  legislation  for  the  relevant  offence  or  offences.  In  this  context,  the 
question arises whether rules should be adopted in this respect in the European Union – and if 
so, what rules – to guide the Member States (States of enforcement) in seeking an equivalent 
penalty. 

Regarding  alternative  sanctions  and  the  supervisory  schemes  that  go  with  suspended 
sentences,  if  the  enforcing  State  does  not  have  the  measures  prescribed  by  the  convicting 
State,  the  question  arises  how  the  enforcing  State  can  come  up  with  an  adequate  measure 
corresponding most closely in terms of functions and objectives to what is prescribed in the 
convicting  State.  To  avoid  the  convicted  offender  being  put  at  a  disadvantage  by  the 
conversion,  the  Max  Planck  Institute  for  Foreign  and  International  Criminal  Law  in  Freiburg 
suggests,  in  a  study  on  Recognition  of  alternative  sanctions  in  the  European  Union, 
commissioned by the European Commission and published in December 2001, that the court in 
the  State  of  enforcement  should  make  a  “functional comparison”  between  the  (alternative) 
penalties or measures of the sentencing State and the State of enforcement.  

This  functional comparison  should  be  made  on  the  basis  of  a  set  of  “functional  categories” 
and a certain analysis and evaluation method that distinguishes three levels of analysis: 

At  the  first  and  highest  level,  the  “procedural  level”,  a  distinction  must  be  made  between 
alternative  sanctions  adopted  “in  the  course  of  criminal  proceedings”  and  those  adopted 
“outside criminal proceedings”, regarded as being non-punitive and seeking to avoid criminal 
proceedings. The latter category includes the alternative sanctions described in the Chapter on 
criminal mediation. At the second level of functional comparison, the “functional level”, the 
Max Planck Institute suggests that within the category of alternative sanctions adopted “in the 
course of criminal proceedings”, a distinction be made between two categories of “formal” and 
“substitute” penalties. At the third level, the “substantive level” the comparison highlights the 
content  of  the  alternative penalty:  within  “substitute  penalties”,  a  distinction  must  be  made 
between alternative sanctions adopted before, during and after the judgment stage. The “formal 
penalties” category is to be subdivided into two sub-categories: penalties that restrict freedom of 
movement (e.g. house arrest, with or without electronic surveillance) and those which, without 
actually  restricting  freedom  of  movement,  merely  affect  the  offender’s  life-style.  This  last 
category  includes  all  forms  of  suspended  sentence  accompanied  by  supervision  measures 
(including community service) and training and treatment schemes, and all ancillary measures 
(such as the ban on certain professional activities or on driving a vehicle). 

Proceeding  from  the  functional  classification  scheme  described  above  and  the  suggested 
functional comparison method, the task for the authorities of the State of enforcement would 
be to transpose the alternative penalty imposed by the authorities of the sentencing State into 
an alternative penalty as nearly equivalent as can be without changing its function, sense or 
purpose.  In  other  words,  the  authorities  of  the  State  of  enforcement,  when  transposing  the 
sentencing State’s alternative sanctions, may use only such alternative sanctions of their own 

64 

 
 
  
 
system that belong to the same functional category. Only if the State of enforcement has no 
alternative  penalty  in  the  same functional category  can  it  use  another functional category  at 
the  same  level.  If  no  alternative  penalty  at  this  level  is  available,  it  could  move  up  a  level. 
When choosing the corresponding penalty, the fullest possible account must be taken of the 
objective of reintegrating the offender in society and the penalty most likely to achieve that 
should be chosen. 

But  the  approach  suggested  above  disregards  quantitative  criteria  for  classifying  alternative 
sanctions on the basis of their rigour or severity. Establishing a quantitative classification – like 
the Sentencing Guidelines in the United States – presupposes, as the Max Planck Institute points 
out,  a  degree  of  consistency  among  alternative  sanctions  in  Europe  which  currently  does  not 
exist. In the meantime, all quantitative comparison will have to be within the discretion of the 
courts in the State of enforcement.  

Question 25: Where the type or duration of the penalty imposed in the State of judgment 
is  incompatible  with  the  legislation  of  the  State  of  enforcement,  should  the  latter  State 
enjoy  the  possibility  of  adapting  the  penalty  imposed  in  the  State  of  judgment  into  a 
penalty provided for by the State of enforcement for comparable offences? 

Question  26:  Should  provision  be  made  in  the  European  Union  for  the  possibility  of 
adapting, converting or substituting penalties, or should the State of enforcement be left 
with full powers of discretion? 

Question 27: Would the approach proposed by the Max Planck Institute of Foreign and 
International  Criminal  Law  in  Freiburg,  which  consists  of  making  a  functional 
comparison between (alternative) sanctions or measures in the State of judgment and the 
State  of  enforcement  by  a  certain  analysis  and  evaluation  method  provide  a  solution? 
What shortcomings does this approach have? How can they be remedied? 

4.2.2.4.  Participation of the sentenced person 

Article  39  of  the  1970  Council  of Europe  Convention  provides  that  “Before  a  court  takes  a 
decision upon a request for enforcement the sentenced person shall be given the opportunity 
to state his views”. In this context, the question arises whether the sentenced person should be 
given more rights to make the transfer of enforcement subject to his request or consent. 

Question 28: Should the transfer of enforcement of a criminal judgment be subject to the 
request,  the  consent  or  merely  the  consultation  of  the  person  sentenced?  Would  the 
answer  to  this  question  be  different  if  the  person  sentenced  has  already  begun  serving 
his sentence in a prison in the sentencing State? 

4.2.2.5.  Participation of the victim 

Regarding the participation of the victim in proceedings for recognition of criminal penalties, 
including  the  transfer  of  prisoners,  the  question  arises  whether  the  European  Union  should 
make provision for information for the victim (as to the existence of a request for recognition 
and transfer and the outcome of the proceeding), consultation or even consent, as a possible 

65 

 
 
  
 
 
 
condition  for  the  recognition  and  transfer  of  enforcement  (Article  13(2)d)  of  the  Council 
Framework Decision of 15 March 2001 on the status of victims in criminal proceedings142). 

Question  29:  How  can  the  victim’s  interests  be  taken  into  account  in  the  transfer  of 
enforcement of the penalty? Should provision be made for information for the victim (as 
to  the  existence  of  a  request  for  recognition  and  transfer  and  the  outcome  of  the 
proceeding), consultation or even consent, as a possible condition for the recognition and 
transfer of enforcement? 

4.2.3.  Questions of procedure and practical arrangements for implementing the recognition 

of judgments in criminal matters and the transfer of prisoners 

4.2.3.1.  Time-limits 

The application of the Council of Europe Convention of 21 March 1983 is bureaucratic, slow 
and  rigid.143  In  most  cases,  the  time  taken  to  process  a  transfer  request  (generally  ranging 
from  a  year  to  eighteen  months)  is  considerably  longer  than  the  implicit  six-month  limit  in 
Article  3(1)(c)  of  the  Convention.  There  are  several  reasons  for  this:  the  large  number  of 
administrative  documents  that  the  two  States  must  exchange;  the  fact  that  certain  States 
exceed  the  Convention’s  requirements  and  demand  even  more  documents;  and  the  fact  that 
transfer  requests,  even  when  made  by  the  prisoner  himself,  are  not  processed  with  due 
dispatch.  

The  first  question  arising  in  this  context  is  therefore  whether  the  European  Union  should 
make provision for a time-limit for processing requests for recognition of criminal penalties, 
and in particular for processing requests for transfer of prisoners. The question of the transfer 
of prisoners is closely bound up with the question whether the European Union should require 
that  a  minimum  of  x  months  of  the  sentence  should  remain  to  be  served,  below  which  a 
transfer  request  would  be  out  of  time  on  account  of  the  time  needed  to  process  it.  The 
departments  responsible  for  handling  transfer  requests  encounter  internal  structures  and 
procedures  that  differ  from  one  State  to  another.  For  these  reasons,  the  Council  of  Europe 
Parliamentary  Assembly  recommends  the  Committee  of  Ministers  to  set  a  time-limit  for 
responding  to  requests  for  information.  Finally  the  Council  of  Europe  Parliamentary 
Assembly recommends rationalising and harmonising the information requested by States and 
organising  training  seminars  on  transfer  procedures  to  exchange  information  and  study  the 
possibilities for improving practices and making them more transparent. 

4.2.3.2.  Reimbursement of expenditure incurred by the State of enforcement of penalties 

Another  question  not  addressed  by  the  existing  conventions  but  liable  to  arise  with  the 
transfer  of  enforcement  concerns  the  reimbursement  of  detention-related  expenditure.  In  its 
Communication  of  26  July  2000  (point  9.1)  the  Commission  posits  the  principle  that, 
“whoever  is  interested  in  a  certain  measure  to  be  taken,  ought  also  to  bear  the  financial 
burden. When a Member State issues a decision sentencing a person to imprisonment, it does 
so in the implementation of its criminal law policy. One can safely assume that this measure 
is thus in that Member State’s interest. Certainly, there may be an interest of other Member 

142 
143 

OJ L 82, 22.3.2001, p.1. 
J.C. Froment, Les avatars de la Convention sur le transfèrement des détenus en Europe, in “Panorama 
européen de la prison”, Paris 2002, p.133. 

66 

 
 
  
 
 
                                                 
States or rather of society as a whole that certain offenders are kept in prison for a certain 
period,  notably  with  regard  to  prevention,  but  it  appears  difficult  to  charge  prison  costs  to 
society as a whole. Thus, the basic rule could be that it is the issuing Member State that has to 
bear  the  cost  of  imprisonment.”  On  the  other  hand,  reintegrating  the  sentenced  person  in 
society  in  the  State  of  enforcement  –  which  is  the  sentenced  person’s  Member  State  of 
habitual residence – is also in the interests of the latter State. Moreover, at the end of the day, 
each State of enforcement will be a State of judgment and vice versa. For these reasons, but 
also  on  grounds  of  administrative  simplicity,  no  reimbursement  of  expenditure  incurred 
should  be  envisaged.  That  is  the  solution  adopted  in  Article  17  of  the  Initiative  of  the 
Kingdom  of  Denmark  for  the  adoption  of  a  Framework  Decision  on  the  execution  in  the 
European Union of confiscation orders.144 

Question 30: Should the European Union make provision for a time-limit for processing 
requests for recognition of criminal penalties, and in particular for processing requests 
for transfer of prisoners, and if so what limit? 

Question  31:  Given  the  administrative  burden  of  processing  a  request  for  transfer  of  a 
prisoner,  should  the  European  Union  provide  that  only  prisoners  sentenced  to  at  least  a 
specified term of imprisonment or who still have a specified minimum time to serve should 
be eligible for transfer? If so, what would be a proper period? 

Question 32: Should the European Union make provision for a time-limit for responding 
to  a  request  for  information  needed  in  connection  with  the  recognition  of  criminal 
penalties, and in particular for the transfer of prisoners? 

Question  33:  Given  the  complexity  of  judicial  and  administrative  structures  in  the 
Member  States  and  the  differences  between  them,  what  simple  and  effective  structures 
should  be  provided  to  implement  the  mutual  recognition  of  criminal  penalties  and  the 
transfer of prisoners?  

Question  34:  Should  there  be  a  standard  form  in  the  European  Union  to  facilitate  the 
implementation of the recognition of criminal penalties and the transfer of prisoners? 

Question  35:  Should  the  State  of  enforcement  be  able  to  ask  for  reimbursement  of 
expenditure incurred in the enforcement of penalties that it has recognised? 

Question  36:  Should  a  network  of  contact  points  be  set  up  to  facilitate  –  and  perhaps 
even  help  to  evaluate  –  the  practical  application  of  a  European  Union  legislative 
instrument  on  the  mutual  recognition  of  criminal  penalties  and  the  transfer  of 
prisoners? 

144 

OJ  C  184,  2.8.2002  p.  8;  Article  17 reads:  “Without  prejudice  to  Article  14  on  the  sharing  of  assets, 
Member  States  may  not  claim  from  each  other  the  refund  of  costs  resulting  from  application  of  this 
Framework Decision”. 

67 

 
 
  
 
 
                                                 
4.2.4.  Allocation of powers between the State of judgment and the State of enforcement 

The  Council  of  Europe  conventions  and  several  European  Union  instruments  providing  for 
recognition145  provide  as  a  general  rule  that  enforcement  is  governed  by  the  law  of  the 
requested State (State of enforcement). In this context, point 9.1 of the Communication of 26 
July  2000  on  Mutual  recognition  of  Final  Decisions  in  criminal  matters  states  that  “mutual 
trust  should  work  both  ways:  while  the  executing  Member  State  trusts  the  issuing  Member 
State that the decision it has handed down is correct, the issuing Member State should trust 
the  executing  Member  State  that  the  way  it  handles  the  execution  is correct.  Thus,  it  would 
appear  that  decisions  relevant  for  the  execution,  which  are  based  on  the  behaviour  of  the 
prisoner, should fall within the competence of the executing Member State. Practical reasons 
also  speak  for  this  solution:  it  is  the  authorities  of  the  executing  Member  State  who  are  in 
direct  contact  with  the  prisoner  and  thus  best  placed  to  form  an  opinion  on  his  or  her 
behaviour”. There will be even greater justification for this once mechanisms are in place to 
allow the sentenced person to serve his sentence in his State of residence.  

Since the sentenced person will probably want to live in the State of habitual residence, which 
is the State of enforcement, he should be prepared for integration into local society there after 
release.  This  is  a  further  reason  for  leaving  this  aspect  in  the  hands  of  the  State  of 
enforcement.  But  the  possibility  for  the  authorities  of  the  Member  State  of  judgment  to  be 
consulted, or at least informed, before a major measure such as early release is taken should 
not  be  excluded.  Another  possibility  would  be  for  the  Member  State  taking  the  decision  to 
impose  limits  or  conditions  at  the  time  of  transfer  (for  example  to  protect  or  inform  the 
victim).  

Lastly,  the  question  arises  of  which  State  (State  of  judgment  or  of  enforcement)  should  have 
jurisdiction to withdraw custodial sentences passed subject to conditions or whose enforcement 
has been suspended conditionally, and alternative sanctions, if the sentenced person has not met 
the conditions imposed. 

Under the 1970 Convention, the requesting State alone has the right to rule on applications for 
review of the sentence but each of the two States can exercise the right to give an amnesty or 
pardon. 

Question 37: Where a custodial penalty or an alternative penalty is recognised, are there 
any reasons for departing from the rule that enforcement should be governed entirely by 
the law of the State of enforcement? 

Question  38:  If  the  conditions  attached  to  a  suspended  sentence  are  supervised  by  the 
State  of  enforcement,  should  the  State  of  judgment  be  given  the  possibility  of  ensuring 
that  the  sentenced  person  complies  with  the  conditions?  What  mechanisms  should  be 
envisaged for that purpose? 

Question  39:  Which  of  the  two  States  should  be  able  to  exercise  the  right  to  give  an 
amnesty or pardon?  

145 

For  example  Article  6(2)  of  the  Council  Framework  Decision  of  13  June  2002  (European  arrest 
warrant). 

68 

 
 
  
 
 
                                                 
ANNEX I 

Inventory and comparison of Member States’ legislation regarding the way that 
custodial penalties that are imposed as part of the sentence are enforced 

1. SUSPENDED SENTENCES 

The  suspended  sentence  is  traditionally  seen  as  a  means  of  preventing  re-offending. 
Experience  shows  that  imprisonment  -  and  particularly  short  prison  sentences  -  can  have  a 
harmful  rather  than  a  beneficial  effect.  A  suspended  sentence  encourages  the  offender  to 
behave because failure to do so may lead to the suspension being revoked and consequently 
the sentence being enforced.  

While recognising the major differences between the criminal systems of the Member States 
as  regards  the  rules  and  conditions  of  suspended  sentences,  we  propose  defining  it  as  a 
provisional stay of execution of the sentence. Thanks to this stay of execution the effects of 
the sentence are suspended. 

As  far  as  the  conditions  of  use  are  concerned,  those  found  guilty  of  serious  offences  are 
usually not eligible for suspended sentences. However, the maximum prison terms for which 
a suspended sentence may be handed down differ from one system to the next, ranging from a 
term  of  imprisonment  of  up  to  one  year  in  Germany146  and  the  Netherlands,  two  years  in 
Greece,  the  United  Kingdom  and  Spain  and  five  years  in  Belgium  and  France.  There  is 
usually a margin of discretion for the judge in deciding whether or not to apply the measure. 
In  certain  Member  States  (e.g.  Italy  and  Belgium),  the  administration  is  responsible  for 
monitoring the measure. 

A  probation  period  may  also  be  imposed,  during  which  the  penalty  is  deferred.  During  this 
period  the  offender  is  usually  subject  to  various  forms  of  supervision  and/or  assistance.  A 
wide  range  of  conditions  may  be  imposed:  victim  reparation,  exclusion  from  contact  with 
certain people or places, supervision, training or community service. 

The probation period is usually between one and five years for the most serious offences and 
between  six  months  and  three  years  for  the  least  serious.  Fines,  daily  fines  and  alternative 
sanctions may also be suspended, for example in France and the Netherlands. 

If the offender complies with the terms of the probation order the conviction will be expunged 
at  the  end  of  the  probation  period.  However,  if  the  offender  does  not  comply  with  the 
conditions or commits an offence, probation will be revoked.147  

In  practice,  one  of  the  consequences  of  the  differences  between  the  Member  States’ 
legislation is that some judges are reluctant to hand down suspended sentences for people who 
are  habitually  resident  in  a  Member  State  other  than  the  state  where  they  are  convicted.  A 
degree of  approximation  of the conditions under  which suspended sentences are passed  and 

146 

147 

In exceptional cases a prison term of up to two years may be suspended (Article 56(2) of the German 
Criminal Code. 
According  to  UK  law  (section  119(1)  of  the  Powers  of  Criminal  Courts  (Sentencing)  Act),  only 
convictions for offences punishable by imprisonment, committed during the probation period, can lead 
to revocation. 

69 

 
 
  
 
                                                 
the  rules  for  supervising  them  would  undoubtedly  simplify  the  conditions  for  mutual 
recognition and enforcement of these measures by the Member States.148 

2. SUSPENSION/DEFERMENT OF SENTENCING 

In a minority  of  Member States (e.g. Belgium and France) sentencing may be deferred to a 
later hearing. In the meantime the accused is placed on probation. 

In  Belgium,  the  Act  of  29  June  1964  on  suspension,  deferment  and  probation  allows  for 
sentencing to be deferred, with the agreement of the person concerned, if the accused has no 
previous  conviction  for  a  felony  or  has  never  received  a  primary  sentence  of  more  than  six 
months’ imprisonment for a misdemeanour, provided the offence is not a misdemeanour for 
which  the  primary  sentence  is  imprisonment  of  more  than  five  years  or  a  more  serious 
penalty,  and  provided  the  charge  has  been  proved  (Article  3  of  the  Act).  Deferment  can 
always be ordered ex officio, required by the Public Prosecutor’s Office or requested by the 
accused.  The  decisions  ordering  deferment  will  specify  the  period  of  postponement,  which 
may  not  be  less  than  one  year  or  more  than  five  years  from  the  date  of  the  decision,  and, 
where  necessary,  the  terms  of  probation.149  Providing  they  are  not  revoked,  such  decisions 
mark the end of the proceedings. Deferment may be revoked if a new offence is committed 
during  the  probation  period  that  results  in  a  conviction  for  a  felony  or  a  primary  prison 
sentence of at least one month (Article 13 of the Act). 

In France,  under  Article  132-60  of  the  Criminal Code, the  court may defer sentencing if it 
appears  that the offender is  successfully  undergoing rehabilitation, reparation  is being made 
for the damage caused and the nuisance caused by the offence will cease. In its decision the 
court sets the date for sentencing. A deferment may only be ordered where the accused (in the 
case of a natural person) or the representative (in the case of a body corporate) is present at 
the hearing. 

A court may place the accused on probation (deferment with probation, Article 132-63 of the 
Criminal Code). The probation system is the same as for suspension with probation. French 
law  even  allows  for  injunctions  to  be  served  on  those  convicted  requiring  them  to  comply 
with one or more provisions laid down by law or regulation (Article 132-66 of the Criminal 
Code). 

The sentencing decision is taken no later than one year after the first decision on deferment 
(Article 132-62 of the Criminal Code). At the reconvened hearing, the court may exempt the 
defendant from penalty (while still recognising his guilt),150 or impose the penalty set out by 
law, or defer sentencing once more (Article 132-61 of the Criminal Code).  

3. DAY RELEASE 

Day release allows offenders to leave the prison in which they are serving their sentences in 
order to engage in a professional activity, attend an educational course or vocational training 
programme, gain work experience or hold a temporary job with a view to their rehabilitation, 

148 
149 
150 

See point 3.2.2. 
In which case it is referred to as “probationary deferment”. 
Articles 132-58 and 132-59 of the Criminal Code. Unless an exception is made, the decision will appear 
on the criminal record. 

70 

 
 
  
 
                                                 
or alternatively to play a vital role in their family life or undergo medical treatment, without 
being under the constant supervision of the prison administration.  

The  system  seeks  to  offset  one  of  the  major  disadvantages  of  prison,  namely  the 
desocialisation of the prisoner. Compared with suspended sentences with probation, detention 
with day release seems more successfully to reconcile the needs of rehabilitation and public 
protection.  

Among the small number of Member States using this measure, day release is generally used 
during the term of the sentence151 as a transitional stage between prison life and the return to 
life on the outside.152 Only in a minority of Member States153 can it be ordered from the outset 
by the court that convicts the offender. 

Offenders benefiting from such a measure from the outset are those sentenced to short terms 
of imprisonment (three months in Portugal154 and one year in France). In Portugal, it can only 
be granted if the prison sentence to which it applies cannot be replaced by a fine, another non-
custodial sentence or weekend detention. Day release sometimes requires the consent of the 
offender (in Germany and Portugal). It may be used as way of serving sentences in Italy if the 
offender has been sentenced to a term of  no more than  six  months or, in the case of longer 
prison sentences, if the offender has already served half of the sentence. In France it may be 
used at the end of a sentence if the prison term that remains to be served is no more than one 
year. 

A number of conditions may be attached to day release. Offenders are required to return to the 
prison  according  to  a  timetable  decided  by  the  competent  authority,  taking  into  account  the 
time necessary for the professional activity, schooling, vocational training, work experience, 
involvement  in  family  life  or  medical  treatment  that  was  the  reason  for  allowing  the  day 
release arrangement. Offenders are normally required to remain in prison on those days when 
they have no obligations outside.  

Offenders on day release continue to be subject to all disciplinary rules. The arrangement may 
be revoked if they do not comply with their obligations, if they are guilty of misconduct or if 
the conditions that led to the arrangement being made cease to apply. In this case offenders 
must  complete  their  sentences  in  prison.  In  certain  Member  States  the  act  of  evading  the 
supervision to which an offender is subject under this scheme or of returning to the prison late 
will earn the offender a penalty for escaping (France).  

4. SENTENCES SERVED IN INSTALMENTS (WEEKEND DETENTION) 

A sentence may be served in instalments, i.e. with one or more interruptions. The length of 
the  sentence  remains  unchanged,  but  it  is  served  in  different  ways.  It  is  a  system  used 
particularly  for  short  custodial  sentences,  but  exists  only  in  a  minority  of  Member  States 

151 

152 

153 

154 

E.g. Germany (§11 StVollzG), Belgium, Spain, Finland (Law on enforcement of criminal sanctions of 
19.12.1889/39A, Chapter 3, Article 8 and Chapter 4, Articles 4 and 5), France (Article 132-25 of the 
Criminal Code) and Italy (Article 50 of Act No. 354 of 26/7/1975). 
In  France  it  is  even  a  pre-requisite  for  release  on  parole  (Article  723-1  of  the  Code  of  Criminal 
Procedure. 
This is the case for France (Article 132-25 of the Code of Criminal Procedure), Italy (Article 50 of Act 
No. 354 of 26/7/1975) and Portugal (Article 46 of the Criminal Code).  
Article 46 of the Portuguese Criminal Code. 

71 

 
 
  
 
                                                 
(Belgium,155 Spain,156 France,157 Greece158 and Portugal.159 This is different from the power 
which the prison administration has to allow an interruption in the sentence on the grounds of 
serious illness.160  

In  France  an  instalment  arrangement  may  be  applied  at  the  time  of  sentencing  or  in  the 
course  of  the  prison  term.  It  entails  an  extension  of  the  period  over  which  the  sentence  is 
enforced  (up  to  a  maximum  of  three  years).  The  measure  may  be  used  for  serious  medical, 
family, professional or social reasons in the case of prison sentences of one year or more. The 
instalments may not be less than two days. 

The offender is released on the specified date without assistance or supervision, as if the full 
sentence  had  been  served.  During  the  period  of  interruption  offenders  who  are  subject  to 
social or judicial supervision must continue to fulfil the obligations this entails,161 compliance 
with which is monitored primarily by the prison administration. 

Offenders return to the same establishment from which they were released, at the stipulated 
time  and  date.  Failure  to  return  to  prison  as  required  is  punishable  in  the  same  way  as  an 
escape162 by both the court and the prison administration.  

The judge responsible for enforcing sentences may allow, adjourn, refuse, withdraw or revoke 
the suspension or division of the prison sentence into instalments. Cases are referred to this 
judge ex officio at the request of the offender or the Public Prosecutor. The judge’s decision 
(which  can  be  appealed)  is  taken  after  consulting  the  representative  of  the  prison 
administration,  following  an  adversarial  debate  in  chambers,  where  the  submissions  of  the 
Public Prosecutor and the comments of the offender or his/her counsel are heard. 

In Spain weekend detention is ordered at the time of sentencing. It lasts for 36 hours and is 
equivalent  to  two  days  of  imprisonment.  A  maximum  of  24  weekend  detentions  may  be 
imposed,  except  where  this  measure  replaced  another  custodial  sentence.  The  weekend 
detention  is  normally  served  on  Friday,  Saturday  and  Sunday  in  the  prison  nearest  to  the 
offender’s place of residence. 

The  judge  or  court  passing  sentence  may,  however,  order  the  detention  to  take  place  on  other 
days  of  the  week  or  in  another  location.  If  an  offender  has  two  unauthorised  absences  the 
supervising judge may order the sentence to be served without interruption.  

Spain  is  currently  debating  a  bill  to  abolish  weekend  detention  on  the  grounds  that  it  is 
ineffective, based on seven years of (unsatisfactory) experience with this type of sentence. This 
bill  would  replace  weekend  detention  with  a  prison  sentence,  fine,  community  service  or 
electronic surveillance, depending on the nature and severity of the offence.  

In Portugal  prison  sentences  of  up  to  three  months  that  cannot  be  replaced  by  a  fine  or  other 
non-custodial  sentence  are  enforced  in  the  form  of  periods  of  weekend  detention,  if  this  is 
appropriate  and  sufficient  for  the  purpose  of  the  penalty.  Each  weekend  detention  lasts  for  a 

155 
156 
157 
158 
159 
160 
161 
162 

Referred to as “arrêt de fin de semaine”, this system plays only a very marginal role in Belgium. 
“Arresto de fin de semana”, Article 37 of the Criminal Code. 
Article 132-27 of the Criminal Code. 
Article 63 of the Code of Penal Enforcement. 
Prisão por dias livres, Article 45 of the Criminal Code. 
See for example Article 46 of the German rules on the enforcement of sentences (StVollstrO).  
Article 763-7 of the Code of Criminal Procedure. 
Article 434-29, 3° of the Criminal Code. 

72 

 
 
  
 
                                                 
minimum of 36 hours and a maximum of 48, which is equivalent to five days of continuous 
imprisonment.  A  maximum  of  18  periods  of  weekend  detention  may  be  imposed.  Public 
holidays immediately before or after a weekend may also be used for this type of detention.  

5. ELECTRONIC SURVEILLANCE 

Electronic  surveillance  works  by  requiring  offenders  or  prisoners  to  wear  a  transmitter 
(usually an electronic bracelet) which makes it possible to detect their presence in (or absence 
from)  a  particular  location  (usually  the  home)  designated  by  the  competent  authority  for  a 
given  period.  Offenders  are  prohibited  from  leaving  the  designated  location  except  at  times 
specified by the authority.  

Electronic  surveillance  is  a  relatively  new  measure  used  by  six  Member  States  (Belgium, 
Spain, France, Italy, Sweden and the United Kingdom). It is being introduced on a trial basis 
in  Hesse  (Germany),  the  Netherlands,  Finland  and  Portugal  and  is  being  discussed  in 
Germany and Denmark.  

The  legislator’s  main  reason  for  introducing  such  a  measure  is  to  diversify  the  means  of 
enforcing  penalties  in  order  to  reduce  the  prison  population  and  thus  limit  the  harmful 
consequences of imprisonment  (social stigma, loss of employment and  consequent financial 
difficulties  for  the  family,  parental  absence  and  loss  of  parental  authority,  etc.),  to  facilitate 
the rehabilitation of offenders by providing strict supervision and thereby to reduce the risk of 
re-offending, to reduce the tensions caused by overcrowding in prisons and to achieve savings 
on the daily cost of prison care.163  

The measure may serve various functions, depending on the stage of the procedure at which it 
is  used.  It  can  be  used  as  the  main  sentence  (Italy,  Sweden164),  or  as  an  alternative  to 
imprisonment on remand (France, Italy, Portugal).165 It is also to be used on a trial basis for 
conditional  release  (Belgium,  France,166  the  Netherlands,  Sweden),  in  conjunction  with  the 
open prison system (Spain) or weekend detention (Spain). A pilot project has been under way 
in  Sweden  since  1  October  2001  using  electronic  surveillance  in  the  final  phase  (last  three 
months) of prison sentences of at least two years. 

Offenders eligible for electronic surveillance are those sentenced to a term of imprisonment 
up to a certain limit (France: one year or more for offenders who have less than a year left to 
serve; Italy: four years; Sweden: three months). In Belgium the scheme is intended for those 
sentenced  to  a  maximum  of  three  years,  in  which  case  electronic  surveillance  may  be  used 
from  the  start  of  the  sentence,  or  for  offenders  sentenced  to  longer  terms,  in  which  case 
electronic surveillance is used when they become eligible or are recommended for release on 
parole.  

Certain  categories  of  offenders  are  excluded  from  the  scheme:  e.g.  in  Belgium,  those 
convicted of sexual offences, trafficking in human beings or drug trafficking.  

163 

164 
165 
166 

In France, for example, prison costs around €60 per day, compared with €20-€30 for day release and 
€22 for electronic surveillance (Le Monde, 29.4.2003). 
To replace short prison sentences of up to three months. 
The Swedish legislation, on the other hand, explicitly excludes this possibility. 
In France for a period of no more than one year. 

73 

 
 
  
 
                                                 
In all Member States the measure requires the explicit consent of the offender, in some cases 
in  the  presence  of  a  lawyer  (France).  In  certain  Member  States  those  who  live  with  the 
offender must also give their consent (Belgium). 

Several  Member  States  lay  down  minimum  periods  (Belgium:  one  month)  and  maximum 
periods for applying the scheme (Belgium: three months; England and Wales: six months;167 
Scotland: 12 months168). 

Several  Member  States  (e.g.  France)  allow  for  the  possibility  of  consulting  a  doctor  (at  the 
offender’s  request)  in  order  to  check  that  the  procedure  is  not  harmful  to  the  individual’s 
health.  

Depending on the individual circumstances, the offender may be prohibited from leaving the 
designated  location  outside  the  periods  specified,  for  example  for  employment,  training, 
medical treatment or involvement in family life. 

The  competent  authority  may  also  impose  one  or  more  suspended  sentences  with  probation 
(Belgium, France). It may alter the conditions of electronic surveillance either ex officio or at 
the request of the offender. 

Electronic surveillance may be revoked according to the procedure in force if requested by the 
offender or in the event of a refusal to accept a change in the arrangement, failure to comply 
with the obligations imposed or deliberate evasion of surveillance (which is equivalent to an 
escape  under  certain  legal  systems,  e.g.  in  France).  In  this  case  the  offender  will  serve  the 
sentence  that  remained  outstanding,  but  the  period  of  surveillance  will  count  towards  the 
period served (France). 

Failure to comply with the conditions, and particularly the way time is spent, is punished by a 
warning  or  a  tightening  up  of  the  conditions.  In  the  event  of  a  major  violation  (repeated 
absences, deliberate destruction of the bracelet or monitoring equipment, new offences, etc.) 
the measure may be revoked and the offender will be returned to serve the sentence in prison.  

6. HOME DETENTION 

Home detention was designed as a way of giving privileged treatment to certain categories of 
offenders in view of their particular status, to enable them to serve their sentence at home or 
in  another  location  where  they  receive  treatment  or  assistance.  With  the  exception  of  the 
United  Kingdom  and  Italy,  home  detention  exists  only  in  conjunction  with  electronic 
surveillance (see above). Home detention in Spain was abolished with the entry into force of 
the new Criminal Code in 1995.169 

In the United Kingdom, Article 37 of the Powers of Criminal Courts (Sentencing) Act 2000 
provides  for  the  imposition  of  a  “curfew  order”,  a  form  of  home  detention  (or  detention  in 
another  location)  for  a  given  length  of  time.  They  can  be  used  for  any  offences  other  than 
murder and the other crimes listed in Articles 109 to 111 of the Act referred to above. 

167 
168 
169 

“Curfew order” which is enforced partly by private companies. 
“Restriction of liberty orders”. 
Articles 27 and 30 of the 1973 Criminal Code. 

74 

 
 
  
 
                                                 
The curfew order specifies the location or locations where the offender must remain and the 
periods during which the offender may not leave these places. The maximum duration of such 
an order is six  months for those aged 16 and  over  and  three  months  for  offenders  under  16 
years  of  age.  The  curfew  period  may  be  no  more  than  12  hours  and  no  less  than  two. 
Observance  of  the  curfew  may  be  monitored  by  electronic  surveillance.  The  court  decision 
imposing such detention must specify the name of the person responsible for monitoring the 
offender during the period of home detention. Imposition of this penalty does not require the 
agreement of the offender.  

Offenders  who  violate  the  terms  of  the  curfew  order  may  be  fined  £1000.  Alternatively  the 
curfew order may be revoked and the offender is likely to receive a more severe sentence. The 
same  treatment  (revocation  and  re-conviction)  is  given  to  individuals  who  commit  another 
offence while under a curfew order. 

In Italian law home detention is used to reconcile the conflicting demands of punishment and 
public safety on the one hand and protection of certain fundamental rights of the individual 
(like the right to health, the right/duty to support and educate one’s children and the right to 
maternity protection) on the other.170 In Italian law home detention is intended either as a way 
of enforcing provisional detention during the investigation stage (in which case it is referred 
to as “house arrest”)171 or as a means of serving prison sentences of up to four years, or longer 
prison sentences of which no more than four years remain to be served. In the latter case the 
home detention order is not issued at the time of the initial judgment but while the prison term 
is  being  served.  The  following  are  eligible  for  home  detention:  a)  pregnant  women  and 
mothers of children under 10 who live with them; b) fathers who exercise parental authority 
over  children  under  10 who  live  with  them  if  the  mother  is  dead  or  incapable  of  caring  for 
their  children;  d)  those  over  60  years  of  age  if  they  are  incapacitated,  even  partly;  e)  those 
under  21  where  there  are  duly  substantiated  reasons  connected  with  their  health,  education, 
work  or  family  situation.172  There  are  also  special  provisions  for  offenders  with  AIDS.  The 
authorities have recently introduced the possibility for all offenders - not just those referred to 
in  categories  a)  to  e)  above  -  to  be  granted  home  detention  in  order  to  serve  sentences 
(including residual sentences) of up to two years, if the conditions do not exist for probation 
and provided there is no risk of their committing other offences.173 

It  is  for  the  supervising  court  in  Italy  to  determine  the  arrangements  for  applying  home 
detention  and  to  specify  the  conditions  relating  to  the  role  of  the  social  services.  The 
supervising  judge  will  order  offenders  not  to  leave  their  home  or  other  private  residence  or 
public healthcare establishment. If necessary, judges may restrict or prohibit communication 
between offenders and people other than those who live with them or care for them. Offenders 
who cannot provide for their essential needs or are completely destitute may be authorised by 
the judge to leave their place of detention during the day for as long as is strictly necessary to 
provide for these needs or engage in employment. The Public Prosecutor or police may at any 
time check that offenders are complying with the conditions imposed on them.174 

The measure is revoked if an offender leaves the place where the detention has to be served 
(which may constitute an escape under Article 385 of the Criminal Code) or if the offender’s 
behaviour is against the law or violates the conditions imposed and is incompatible with the 

170 
171 
172 
173 
174 

Article 47ter of Act No 354/1975. 
Article 284 of the Code of Criminal Procedure. 
Article 47ter of Act No 354/1975. 
Article 47ter (1bis) of Act No 354/1975. 
Article 284 of the Code of Criminal Procedure. 

75 

 
 
  
 
                                                 
continuance of the measure. It will also be revoked if the conditions for awarding it cease to 
exist or if the sentence is expunged. 

76 

 
 
  
 
Inventory and comparison of Member States’ legislation regarding alternative sanctions  

ANNEX II 

1. COMMUNITY SERVICE 

This punishment consists of performing unpaid work for a public authority, public institution 
or non-profit-making organisation. 

In  view  of  the  need  to  relieve  prison  overcrowding  and  to  find  alternatives  to  prison,  the 
Council  of  Europe,  in  its  Resolution  (76)  10  on  certain  alternative  penal  measures  to 
imprisonment,  advocated  community  service  as  a  way  “for  the  community  to  contribute 
actively to the rehabilitation of the offender by accepting his cooperation in voluntary work”.  

Community  service  has  since  been  introduced  in  all  Member  States  and  works  reasonably 
successfully in most of them.175 

Community service may serve various functions depending on the stage of the procedure at 
which it is used: it may be a factor in the decision as to whether or not to prosecute, often as 
part  of  a  mediation  or  settlement  procedure  (see  below),  in  order  to  avoid  a  conviction 
(Belgium,176 Germany,177 France178), or it may be used as the primary sentence (Belgium,179 
France, Italy,180 the Netherlands), or as an additional sentence (France), or for certain offences 
in  the  category  of  contraventions  graves  (Belgium,  France181).  It  may  also  be  used  as  an 
alternative  to  civil  imprisonment182  for  the  recovery  of  fines  (Germany,183  Italy),  a  fine 
(Spain, Italy, Portugal) or weekend detention (Spain). A community service order may also be 
accompanied  by  a  suspended  prison  sentence  (Belgium,  Germany,  Denmark,  France, 
Sweden). In Greece a prison sentence or fine may be partially converted, at the request of the 
offender, into a term of community service.  

In  certain  Member  States  community  service  may  only  be  imposed  for  particular  offences 
defined by their nature (Denmark, Italy) or by the severity of the punishment it replaces (e.g. 
penalty for a summary offence (peine de police) or misdemeanour (peine correctionnelle) in 
Belgium, prison sentence of up to six months (the Netherlands) or one year (Portugal)).  

The  consent  of  the  person  concerned  is  required  in  some  form  or  other  by  all  the  Member 
States’ legislation. Various international texts require such consent, specifically Article 4 of 
the  European  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms 
which states that “No one shall be required to perform forced or compulsory labour.” Article 

175 

176 
177 
178 
179 
180 
181 
182 

183 

Some Member States (e.g. France), however, have difficulty applying it (delays in implementation, lack 
of available jobs, etc.). 
Article 216ter of the Code of Criminal Procedure. 
§§ 153, 153a StPO. 
As part of a settlement. 
Introduced as a primary penalty by the Act of 17 April 2002. 
For minor offences heard by a cantonal court.  
Traffic offences. 
Civil imprisonment is used to force a person to pay a sum owed to the Treasury as a result of a criminal 
conviction.  
Germany is currently considering extending the use of community service as part of a wider reform of 
the  penal  system:  in  future  community  service  will  be  the  primary  alternative  penalty  to  a  fine 
(replacing civil imprisonment for the recovery of fines). 

77 

 
 
  
 
                                                 
5  of  the  Charter  of  Fundamental  Rights  of  the  European  Union  uses  exactly  the  same 
wording. 

The  number  of  hours  of  community  service  to  which  a  person  may  be  sentenced  ranges 
between  20  and  300  hours  (Belgium184),  20  and  200  hours  (Finland),  30  and  240  hours 
(Denmark),  40  and  240  hours  (France,  Sweden,  United  Kingdom185)  and  36  and  380  hours 
(Portugal). In the case of a criminal law settlement (with a view to avoiding a conviction), the 
maximum figures are lower (60 hours in France). 

The  work  must  usually  be  performed  within  a  certain  period  (e.g.  12  months  in  the  United 
Kingdom, 18 months in France, except in the case of a settlement when it is 6 months).  

The  work  to  be  performed  has  traditionally  involved  maintenance,  cleaning  and  repairs  for 
local authorities and administrations. 

If  the  community  service  was  the  primary  penalty  an  offender  who  deliberately  fails  to 
perform  the  work  will  be  liable  to  prosecution  for  non-performance  (a  specific  offence  in 
France,  for  example).186  If  the  community  service  was  a  condition  of  a  sentence  being 
suspended, the suspension is liable to be revoked. In this case, if the offender has completed 
some  of  the  work  he  or  she  may  be  entitled  under  the  legislation  of  certain  Member  States 
(e.g. Portugal) to a corresponding reduction in the prison term. 

2. MEDIATION IN CRIMINAL CASES 

Mediation  in  criminal  cases  is  a  structured  procedure  in  which  the  victim  and  the  offender 
both participate, which aims to find a negotiated solution to the conflict caused by an offence 
with the help of a qualified mediator.187 The objective is to make good the damage caused, to 
put an end to any problems resulting from the offence and to contribute to the rehabilitation of 
the author of the offence. It also aims to bring about a lasting change in the behaviour of the 
parties involved to ensure that the same thing does not happen again for the same reasons. 

It allows the victim to meet voluntarily with the offender, encourages the latter to understand 
the consequences of  his actions and to  take  responsibility  for the damage caused, and gives 
the victim and the offender the chance to agree compensation for the damage done.  

Mediation  in  criminal  cases  in  the  strict  sense  differs  from  other  forms  of  contract  or 
arrangement (“compromise procedures”) between the public prosecutor and the author of the 
offence  which  avoid  criminal  sanctions,  such  as  la  composition  pénale  (settlement)  and  la 

184 
185 

186 

187 

The cut-off point between a summary offence and a misdemeanour is 45 hours. 
The  maximum  sentence  is  240  hours  for  a  “community  punishment  order”  and  100  hours  for  a 
“community punishment and rehabilitation order”. 
In  France  such  an  offender  may  be  sentenced  to  a  term  of  imprisonment,  a  fine  or  another  period  of 
community service. 
Article 1(e) of Council Framework Decision of 15 March 2001 on the standing of victims in criminal 
proceedings  defines  mediation  in  criminal  cases  as  follows  “mediation  in  criminal  cases”  shall  be 
understood as the search, prior to or during criminal proceedings, for a negotiated solution between the 
victim and the author of the offence, mediated by a competent person.” Recommendation No R (99)19 
of the Committee of Ministers of the Council of Europe of 15 September 1999 concerning mediation in 
penal matters contains the following definition of mediation: “any process whereby the victim and the 
offender are enabled, if they freely consent, to participate actively in the resolution of matters arising 
from the crime through the help of an impartial third party (mediator)”. 

78 

 
 
  
 
                                                 
transaction  pénale  (plea  agreement)  in  French  law,  in  that  the  latter  do  not  involve  active 
participation by the victim in a negotiated solution. 

Mediation  in  criminal  cases  is  part  of  the  broader  concept  of  “restorative  justice”,  in  which 
repairing the damaged relationship between victim, community and offender, in material and 
immaterial terms, is a guiding principle. This approach is supported in the European Union by 
several  non-governmental  organisations,  some  of  which  have  received  grants  under  the 
GROTIUS or AGIS programmes. 

In June 2002, Belgium put forward a formal initiative on “Setting up a European Network of 
National  Contact  Points  For  Restorative  Justice”.188  The  purpose  of  this  European  network 
was to contribute to developing, supporting and promoting the various aspects of restorative 
justice within the Member States and at Union level. The initiative has not been debated in the 
Council.  

As  regards  the  existing  legislation  at  European  Union  level,  Article  10  of  the  Council 
Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings,189 
provides  that  Each  Member  State  must  seek  to  promote  mediation  in  criminal  cases  for 
offences which it considers appropriate for this sort of measure. They must also ensure that 
any agreement between the victim and the offender reached in the course of such mediation is 
taken  into  account.  However,  this  provision  does  not  come  into  force  until  22  March  2006 
(see Article 17 of the Framework Decision). 

Austria, Belgium, Finland, France, Germany, Luxembourg, Sweden and the United Kingdom 
have already  adopted  quite detailed legislation on mediation in criminal cases. In Denmark, 
Ireland, the Netherlands, Portugal and Spain, pilot projects are under way. 

There  are  special  provisions  in  several  Member  States  on  mediation  in  criminal  cases 
involving  young  people.  Such  provisions  are  often  adopted  before  those  on  mediation  for 
adults. 

Mediation in criminal cases can come in to play at various points in the procedure: it may be 
at the stage at which a decision is made on whether to initiate criminal proceedings, in order 
to  avoid  a  conviction  (Austria,190  Belgium,191  Germany,192  France193),  it  may  be  part  of  the 
judgment (as it is for example in Germany194 and the United Kingdom195) or it may only come 
into play during sentencing (as in Belgium196). 

In  Germany,  mediation  in  criminal  cases  was  introduced  in  1994  by  Article  46a  of  the 
German  Criminal  Code  as  a  “third  way”  of  imposing  criminal  penalties,  in  addition  to  the 
main penalties (custodial sentences and fines) and educational and guarantee measures. This 
provision provides that the court can mitigate a sentence (according to the rules laid down in 
Article 49 of the Criminal Code) or even decide not to impose a sentence provided that the 

188 

189 

190 

191 

192 

193 

194 

195 

196 

OJ C 242, 8.10.2002, p.20. 
OJ L 82, 22.3.2001, p.1. 
Article 90a Code of Criminal Procedure (“Diversion”) 
Article 216b of the Criminal Code and Royal Decree of 24.10.1994. 
Articles 153 and 153a of the Code of Criminal Procedure. 
As part of a criminal settlement. Article 41-2 of the Code of Criminal Procedure. 
Article 46a of the Criminal Code, Article 155a of the Code of Criminal Procedure. 
Compensation  order  in  accordance  with  Articles  130  to  134  of  the  Powers  of  Criminal  Courts 
(Sentencing) Act. 
With the help of a restorative justice counsellor in each prison. 

79 

 
 
  
 
                                                 
sentence would not have exceeded one year or 360 daily fines, provided that the author of the 
offence has a) undergone the mediation procedure (Täter-Opfer-Ausgleich) and has made full 
or almost full reparation for the damage caused, or has genuinely tried to do so or, b) made 
full or almost full reparation for the damage caused, provided that this required considerable 
personal effort on the part of the author of the offence. In both cases, reparation requires more 
than the mere payment of damages and involves the active participation of the offender. 

In Austria, legislation on mediation in criminal cases provides for two options according to 
the seriousness of the offence: 

a. Offences which would incur a fine or custodial sentence of a maximum of three years are 
not considered punishable197 if a) the offence is deemed to be very minor b) the offence had 
no negative consequences or negligible negative consequences, or if the author of the offence 
made reparation for the consequences of his act or genuinely tried to do so, and c) there is no 
need to impose a sentence as a deterrent.198  

b. For offences carrying a custodial sentence of a maximum of five years, provided that the 
offence is deemed to be minor and did not cause anyone’s death, the public prosecutor must 
drop proceedings if, as a result of mediation (“aussergerichtlicher Tatausgleich”), payment of 
a  fine,  imposition  of  community  service  or  a  probationary  period  with  certain  conditions 
attached,  no  other  sentence  is  necessary  as  a  deterrent.199  According  to  Article  90g  of  the 
Austrian Criminal Code, mediation implies that the author of the offence should acknowledge 
his  misdeed,  agree  to  examine  the  cause,  make  reparation  for  the  negative  effects  of  the 
offence  and,  where  necessary,  undertake  to  demonstrate  that  he  is  prepared  to  abandon  the 
kind  of  behaviour  which  led  to  the  offence.  Mediation  presumes  the  consent  of  the  victim, 
unless the reasons for his refusal are inadequate. The essential element of the procedure is a 
mediation  interview  between  the  victim  and  the offender. This interview  is organised by  an 
independent mediator. The results of the interview are recorded in a written agreement which 
the  mediator  puts  before  the  public  prosecutor, the  implementation  of  which  is  overseen  by 
the mediator. If the offender fulfils the conditions of the agreement, criminal proceedings are 
dropped; if not proceedings take their normal course, up to and possibly including conviction. 

In  Belgium,  according  to  Article  216b  of  the  Criminal  Code,  the  public  prosecutor  can 
summon an offender and, so long as the offence does not appear to be punishable by a prison 
term of over two years or a heavier penalty, invite him to compensate or make reparation for 
the  damage  caused  by  the  offence  and  to  provide  proof  that  he  has  done  so.  A  lawyer  may 
represent the offender and the victim. The public prosecutor is assisted in the various phases 
of  mediation  and  in  particular  at  the  implementation  stage  by  the  Ministry  of  Justice 
department  of  “Maisons  de  justice”  (law  centres).  The  staff  of  this  department  (counsellors 
and mediation assistants) carry out their work in close cooperation with the public prosecutor, 
who oversees their activities. The rules on how mediation procedures are to be conducted are 
laid down in a Royal Decree.200 The rules on implementation of the results of mediation are 
set  down  in  an  official  report.  Once  the  offender  has  satisfied  all  these  conditions,  court 
proceedings are dropped.  

197 

198 

199 

200 

“so ist die Tat nicht strafbar, wenn”. 
Article 42 of the Austrian Criminal Code. 
Article 90a of the Austrian Criminal Code (“Diversion”). 
Royal  Decree  of  24.10.1994  “laying  down  implementing  measures  for  the  procedures  governing 
mediation in criminal cases”. 

80 

 
 
  
 
                                                 
In France, Article 41-1(5) of the Code of Criminal Procedure allows the public prosecutor to 
use mediation in cases of petty crime (misdemeanours or petty offences), with the consent of 
the victim and the offender, before deciding whether to take criminal proceedings, if he feels 
that this will ensure that reparation is made to the victim, that any difficulties arising from the 
offence will be resolved and that it will help with the rehabilitation of the offender. 

Mediation in criminal cases can only be authorised by the public prosecutor. The parties may 
not directly approach the mediator. Mediation suspends limitation periods. To implement the 
results of mediation, the prosecutor enlists the help of a mediation service or an independent 
mediator.201 The procedure for appointing and empowering mediators is laid down in Article 
R.  15-33-30  of  the  Code  of  Criminal  Procedure.  Mediation  is  optional  for  the  parties 
involved. It respects the rights of complainants and suspected offenders who may be advised 
or assisted by the lawyer of their choice at their own expense. The type of offence concerned 
is  decided  solely  by  the  public  prosecutor.  It  may  include  petty  crimes  of  violence,  theft, 
minor cases of swindling, non-payment of alimony, non-representation of children, deliberate 
damage, threats, injuries, failure to report an accident, use of drugs etc. Mediation is free to 
the parties. There are various ways in which damage can be made good: financial, material or 
symbolic.  

Mediation  in  criminal  cases  usually  follows  the  pattern  below:  at  the  request  of  the  public 
prosecutor, the mediation service or independent mediator: 

•  summons the parties in writing; 

•  receives  the  parties  separately  or  together,  explains  to  them  the  objectives  of  mediation, 
and secures, where the Public Prosecutor has not already done so, the consent of the parties 
to participate in mediation; 

•  organises  the  mediation  meeting,  which  involves  getting  all  the  parties  to  attend  so  that 
they  can  establish  or  re-establish  contact  and  enter  into  dialogue  with  a  view  to  finding 
solutions to the problem; 

•  draws up the written agreement between the parties; 

•  informs the Public Prosecutor in writing of the results of the mediation procedure, having 
monitored  the  progress  of  the  case  for  the  period  laid  down  by  the  Public  Prosecutor’s 
office. 

The  Prosecutor  checks  that  the  conditions  of  the  agreement  have  been  fulfilled  (reparation, 
reimbursement). He takes the legal decision either to drop court proceedings or to take action 
before the appropriate court. If the public prosecutor drops proceedings after mediation, the 
complainant will be informed. 

201 

Since  the  establishment  in  1990  of  the  “Maisons  de  Justice  et  du  Droit ”  (law  centres),  mediation 
procedures increasingly take place there. These centres are under the authority of the president of the 
regional court and the public prosecutor. 

81 

 
 
  
 
                                                 
3) SETTLEMENT

202 

Settlement is a procedure by which disputes in criminal cases may be resolved by agreement 
between  the  complainant  and  the  defendant,  without  the  need  for  legal  proceedings  in  the 
strict  sense.  In  this  type  of  settlement,  there  is  no  negotiation  between  the  offender  and  the 
public prosecutor as regards sentencing. The state makes an offer through the authority whose 
task  it  is  to  implement  the  penalty,  which  the  defendant  can  take  or  leave.  There  is  no 
negotiated agreement between the defendant and the public authorities. It would be erroneous 
to regard a settlement as contractual in nature, because it involves the imposition of sentence, 
albeit a light and an agreed one, which is nonetheless a penalty and fulfils the function of a 
sentence. 

As we have seen, several Member States have settlement procedures, or similar procedures by 
other  names,  where  the  state  will  drop  action  against  an  individual,  on  the  basis  of  a  legal 
authorisation, and in some systems, without any legal decision, after he has paid a certain fine 
or satisfied other conditions.  

This form of administration of criminal justice does not, however, apply to all offences. It is 
specifically designed to punish certain types of behaviour, which are not considered serious in 
social terms, and which do not require the full machinery of the state to be set in motion nor, 
consequently, the full implementation of the guarantees of the criminal justice system through 
the intervention of a judge. 

Settlement  allows  the  offender  to  acknowledge  his  guilt,  explicitly  or  implicitly,  without 
having to go through legal proceedings, and to expiate it by carrying out obligations agreed 
between himself and Public Prosecutor, within the limits laid down by the legislation, which 
will in any case be less constraining than the normal criminal procedure to which he would be 
subject in the absence of an agreement. In return, the state drops proceedings. 

Under  German  law,203  the  public  prosecutor’s  office  may  decide  to  discontinue  criminal 
proceedings provided  that the  offender agrees to the obligations imposed on him and fulfils 
them.  Although,  as  a  general  rule,  the  approval  of  the  competent  court  is  required,  it  is  not 
essential  in  the  case  of  minor  offences  punishable  by  a  penalty  which  does  not  exceed  the 
minimum  provided  for  in  the  Criminal  Code  and  if  the  damage  caused  is  slight.  If  there  is 
agreement, the prosecutor fixes a time limit for fulfilment of what has been agreed and, once 
it has been fulfilled, the liability is finally extinguished and `the offence cannot be prosecuted 
as a crime’.204  

Austria205  has  a  procedure  which  is  called  ‘diversion’,  which  allows  the  prosecutor  (or  the 
trial  judge)  to  abandon  criminal  proceedings  in  exchange  for  payment  of  a  sum  of  money, 
community  service,  a  probationary  period  or  mediation  (aussergerichtlicher  Tatausgleich). 

202 

203 

204 

205 

With the exception of Belgium and France, the text in this chapter on settlement procedures is mostly 
taken from the Opinion of Mr Advocate General Ruiz-Jarabo Colomer given on 19 September 2002 in 
Joined Cases C-187/01 and C-385/01, paragraph 61 et seq. 
Article 153a of the Code of Criminal Procedure. See also Case C-385/01 Brügge (judgment given on 11 
February 2003). 
Paragraph  1  of  Article  153a.  The  German  Criminal  Code  differentiates  between  a  misdemeanour 
(Vergehen) and a crime (Verbrechen). An offence punishable by a term of imprisonment of one year or 
more is a ‘crime’. The others, which receive lighter punishments, are ‘misdemeanours’. 
Articles 90a to 90m of the Code of Criminal Procedure. 

82 

 
 
  
 
                                                 
Once  the  accused  has  fulfilled  the  obligations  imposed,  the  criminal  action  is  permanently 
discontinued.206  

In Belgium there are two kinds of procedure within the jurisdiction of the public prosecutor’s 
office:  settlement  and  mediation  (see  preceding  chapter),  provided  for  in  Articles  216a  and 
216b of the Criminal Code, which allow the Prosecutor to order the final discontinuance of 
proceedings  if  the  accused  fulfils  certain  conditions.  Under  the  terms  of  Article  216a,  the 
prosecutor may, for an offence which is punishable by a fine or by a maximum of five years 
imprisonment,  impose  no  more  than  a  fine  or  a  fine  and  confiscation.  Complete  reparation 
must  be  made  for  any  damage  caused  before  settlement  can  be  proposed.  However,  it  may 
also  be  proposed  if  the  author  of  the  offence  has  acknowledged  his  civil  liability  for  the 
damage in writing, and has produced proof of payment of the uncontested part of the damages 
and  the  practical  arrangements  for  paying  them  off.  In  any  event,  the  victim  can  claim  his 
rights before the competent court. In this case, acceptance of the settlement by the author of 
the offence constitutes an unquestionable presumption of his liability (paragraph 4 of Article 
216a). 

Under Article 41-2 of the French Code of Criminal Procedure, the Public Prosecutor may, 
provided that a prosecution has not already been brought, suggest a settlement to an adult who 
recognises having committed one or more offences punishable by a maximum of three years 
imprisonment, consisting of one or more of the following measures: 1) paying a “settlement 
fine”  to  the  public  treasury  not  exceeding  €3750  or  half  of  the  maximum  fine  incurred;  2) 
surrendering  to  the  state  the  means  of  committing  the  offence  or  the  profit  from  it;  3) 
surrendering  his  driving  licence  to  the  regional  court  for  a  maximum  of  six  months,  or  his 
hunting permit for a maximum of four months; 4) carrying out unpaid community service for 
a  maximum  of  60  hours  over  a  maximum  period  of  six  months;  5)  undertaking  a  training 
period  or  course  in  a  health,  social  or  professional  organisation  for  a  maximum  of  three 
months over a maximum period of 18 months. 

Where  the  victim  has  been  identified,  the  public  prosecutor  must  also  ask  the  offender  to 
make good the damages caused in a maximum of six months, unless he can prove that he has 
already done so. He must inform the victim of this proposal. The settlement may be proposed 
in a “maison de justice et du droit” (law centre). The person to whom the settlement is offered 
is  informed  that  he  may  request  the  assistance  of  a  lawyer  before  agreeing  to  the  proposal 
made by the public prosecutor. An official record is made of the agreement. A copy of this 
record is given to him.  

If the offender agrees to the proposal, the Public Prosecutor asks the President of the Court to 
validate  the  settlement.  The  Prosecutor  informs  the  offender  and,  where  appropriate,  the 
victim,  of  this  request.  The  President  of  the  Court  may  hear  the  offender  and  the  victim, 
assisted  where  necessary  by  their  lawyers.  If  the  judge  validates  the  settlement,  it  will  be 
implemented. If the offender does not accept the settlement, or if after agreeing to it he does 
not  carry  out  all  the  measures  contained  in  it,  the  usual  procedure  is  followed  up  until  the 
point  at  which  a  conviction  may  be  imposed.  The  time-limit  for  court  action  is  suspended 
between the date on which the Public Prosecutor proposes a settlement and the date on which 
the time limit laid down for implementation of the settlement expires. Implementation of the 
settlement implies discontinuance of court proceedings. 

206 

Articles 90c(5), 90d(5), 90f(4) and 90g(1) of the Code of Criminal Procedure. 

83 

 
 
  
 
                                                 
Denmark  provides207  that,  in  the  case  of  an  offence  punishable  by  a  fine,  the  Public 
Prosecutor’s office may suggest to the defendant that the proceedings will be discontinued if 
he acknowledges his guilt and undertakes to pay a fine within a certain period. At the end of 
the  two-month  period  prescribed  for  reversal  of  the  proposal  by  a  higher  authority,  the 
decision to discontinue proceedings becomes final.  

The  Spanish  legal  system208  permits  the  accused  to  agree  with  the  penalty  sought  by  the 
prosecutor,  in  which  case  the  court  pronounces  sentence  in  accordance  with  the  mutually 
agreed penalty.  

Finnish law209 does not have a settlement procedure as such; however, it does have measures 
in the nature of a settlement which may lead to the discontinuance of criminal proceedings. It 
is  a  simplified  procedure  for  misdemeanours,  in  which  the  prosecutor  may  impose  a  fine 
without the need to refer the matter to a court. That decision is final and has the force of res 
judicata.  

Ireland210 has means of preventing an offence being the subject of criminal prosecution, for 
various reasons. One example is the payment of a fine, which puts an end to the matter.  

Although under Italian law there is in general no settlement or penal mediation (except for 
offences committed by minors), there is a particular procedure called patteggiamento.211 It is a 
special  procedure  which  presupposes  the  existence  of  a  settlement  agreement  in  respect  of 
both  the  proceedings  and  the  sentence,  which  must  not  be  more  than  two  years.  Both  the 
Prosecutor  and  the  accused  may  introduce  the  patteggiamento  procedure.  In  any  event,  the 
agreement must be ratified by a court.  

In Luxembourg, the Act of 6 May 1999 incorporated a fifth paragraph into Article 24 of the 
Criminal Code, under which, before bringing proceedings, the prosecutor may have recourse 
to mediation, which may lead to a decision to continue with the proceedings or to allow the 
criminal action to lapse.  

The  Netherlands  also  has  the  settlement  procedure  (“transactie”),212  which  is  governed  by 
Article 74 et seq. of the Netherlands Criminal Code. The criminal action is discontinued when 
the accused fulfils the conditions imposed by the prosecutor. That discontinuance is expressly 
provided for in Article 74(1).  

In  Portugal213  proceedings  may  be  temporarily  suspended.  This  mechanism  authorises  the 
Public Prosecutor’s Office to bring a halt to a criminal action by imposing certain obligations 
during a specific period. The decision is subject to the acceptance of the accused and, where 
appropriate,  the  prosecution  and  to  the  approval  of  the  trial  judge.  Once  the  accused  fulfils 
what has been agreed, the case is discontinued and cannot be reopened.  

207 

208 

209 

210 

211 

212 

213 

Article 924 of the Code of Criminal Procedure.  
See Articles 655, 791(3) and 793(3) of the Law of Criminal Procedure.  
Laki rangaistusmääräysmenettelystä/ lagen om strafforderförfarande 26.7.1993/692 
Road Traffic Acts, 1961-1995; Litter Pollution Act, 1997, p. 28. 
Governed by Articles 444 to 448 of the Code of Criminal Procedure 
See also Case C-385/01 Brügge (judgment given on 11 February 2003). 
See  Articles  281  and  282  of  the  Código  de  Processo  Penal  and  the  particular  case  of  the  simplified 
procedure (processo sumaríssimo), provided for in Articles 392 to 398 of the Code. Article 282(3) of 
the Code of Criminal Procedure. 

84 

 
 
  
 
                                                 
In  the  United  Kingdom,  there  is  a  settlement  procedure  under  English  law  for  road  traffic 
offences.  A  fixed  penalty  notice  offers  a  person  the  opportunity  of  avoiding  criminal 
proceedings by paying a fine and having penalty points entered on his driving licence. Once 
the  conditions  have  been  fulfilled,  the  criminal  action  lapses.214  It  should  be  borne  in  mind 
that Lord Justice Auld has recommended215 that the field of compromise procedures should be 
extended  and  that  his  proposal  was  the  subject  of  a  White  Paper  issued  by  the  British 
Government in the middle of July 2002. Under Scottish law216 the Prosecutor is permitted to 
make a conditional offer to the accused in order to avoid criminal proceedings, in respect of 
the offences which may be judged by District Courts. If the accused accepts the proposal, he 
must pay a fine and, once that has been done, the criminal action lapses.217  

Finally, there is in Sweden218 a procedure for imposing penalties without the intervention of a 
court (stafföreläggande), which is used for minor offences such as driving under the influence 
of  alcohol  and  petty  theft.  If  the  Prosecutor’s  order  is  accepted  by  the  accused  (with  the 
agreement  of  the  possible  victims),  the  imposition  of  the  penalty  acquires  the  force  of  res 
judicata.  

214 

215 

216 

217 

218 

Section 52(1) of the Road Traffic Offenders Act 1988. 
A Review of the Criminal Courts of England and Wales. 
Section 302 of the Criminal Procedure (Scotland) Act 1995.  
Section 302(6) of the Criminal Procedure (Scotland) Act 1995.  
Chapter 48, Article 4 of the Rättegångsbalk (Criminal Code) 1942.  

85 

 
 
  
 
                                                 
ANNEX III 

Inventory and comparison of Member States’ legislation regarding the enforcement of 
criminal penalties  

The  mechanisms  for  applying  and  enforcing  custodial  sentences  must  be  inspired  by  the 
constant  concern  to  strike  a  balance  between  the  demand  from  the  enforcement  authorities 
that sentences that are passed should actually be enforced and the interest for both sentenced 
persons and society at large in having them enforced in such a way as to best ensure social 
rehabilitation. 

Day release, electronic surveillance and enforcement in instalments (weekend detention), 
can be decided in certain Member States not only ab initio by the sentencing court but also 
subsequently by the enforcement authority. For these measures, see Annex I. 

1. SUSPENDED SENTENCES 

Suspension  of  enforcement  of  the  penalty  –  which  is  not  the  same  thing,  incidentally,  as 
suspension  of  part  or  all  of  the  sentence  itself  –is  possible  only  after  enforcement  has 
commenced. It is available in only a minority of Member States such as France and Italy.  

Under Article 720-1 of the French Code of Criminal Procedure, where the sentenced person 
has  no  more  than  one  year  of  the  term  of  imprisonment  to  serve,  the  enforcement  of  the 
sentence  may  be  suspended  for  up  to  three  years  by  the  court  that  reviews  penalties  or  the 
Tribunal  correctionnel,  depending  whether  the  suspension  is  for  more  than  three  months  or 
three  months  or  less,  where  there  are  serious  medical,  family,  professional  or  social 
considerations.  

The Italian Criminal Code provides for suspension of the enforcement of the sentence in two 
situations, one of them mandatory (section 146) and one optional (section 147). The decision 
falls to the Supervision Court. The two situations in which enforcement of the sentence can be 
suspended  under  the  law  concern  protection  of  maternity,  health  and  dignity  of  AIDS 
sufferers  and  protection  of  the  health  of  prison  inmates.  Given  the  very  close  resemblance 
between  the  conditions  for  admission  to  house-arrest  and  the  conditions  for  suspending 
enforcement  of  the  penalty,  the  areas  in  which  the  two  measures  are  applicable  tend  to 
coincide. 

2. DAY RELEASE 

This  measure,  which  is  described  in  detail  above,  can  be  decided  not  only  ab  initio  by  the 
sentencing court but also sometimes at a later date by the enforcement authority.219  

3. EARLY RELEASE 

Early release means the release of the offender before his prison term is finished. It is possible 
only while the sentence is still being served.220All the Member States’ legal systems provide 

219 

As in France. 

86 

 
 
  
 
                                                 
for  it,  but  the  characteristics  and  definitions  vary  from  one  Member  State  to  another.221  In 
many  Member  States,  it  is  known  as  conditional  release,  which  emphasises  its principal 
feature  (which  is  that  early  release  is  available  only  in  the  event  of  good  conduct  during 
detention) but it can exist in unconditional form (Netherlands, United Kingdom). 

All the Member States’ criminal systems require a certain minimum portion of the sentence to 
have  been  served  prior  to  early  release.  The  minimum is  expressed  in  some  countries  as  a 
percentage of the sentence and/or in absolute terms as so many months or years. Specific rules 
apply in the event of life imprisonment.  

For  limited-duration  sentences,  the  minimum  period  that  a  sentenced  person  must  serve  in 
prison to be eligible for early release varies from a third (Belgium) to three quarters (Spain) of 
the  original  sentence  and  the  maximum  (in  particular  in  cases  of  recidivism)  between  two 
thirds  and five  sixths  (Portugal).222 But most Member States provide for a minimum of one 
half and a maximum – especially in cases of recidivism- of two thirds. 

In absolute terms, the minimum varies from one month (Sweden) to two months (Germany), 
three months (Belgium) and six months (Belgium, Germany, Netherlands, Portugal).  

For  life  sentences,  the  minimum  to  be  served  by  an  offender  before  gaining  eligibility  for 
early  release  ranges  from  ten  years  (Belgium)  to  26  years  (Italy).  But  most  of  the  Member 
States set the minimum at 15 years.  

In certain Member States, early release is not allowed if the sentence is within certain duration 
parameters – two years or less (Germany223) or four years (France). In others (e.g. Portugal), 
the minimum varies with the sentence, from one half where the sentence is for less than five 
years to two thirds above five years. 

Member States’ legislation contains a wide range of conditions of eligibility for early release. 
A few examples:  

– 

– 

– 

– 

220 

221 

222 
223 

The  offender  must  consent  (Belgium,  Germany,  France,  Greece,  Luxembourg, 
Portugal); 

The offender must have made a serious effort at social rehabilitation (France); 

The offender  must, prior to release, be subject to a less severe enforcement regime 
(Spain, France) and have successfully undergone a period of day-release, placement 
in society etc; 

The  offender  must  remit  all  or  part  of  accounts  in  his  name  to  the  prisons  service 
(France); 

This distinguishes it from suspended enforcement of a penalty, which can be ordered only by a court 
judgment. 
In German law it is called “Aussetzung des Strafrestes” (suspended enforcement), § 57 StGB. Belgian 
law distinguishes between conditional release and provisional release. The latter is not provided for by 
statute but by ministerial circulars. The conditions for provisional release are more flexible than those 
for conditional release since, for example, all offenders sentenced to a total of no more than three years 
can be released after serving a third of their sentence, even if they are repeat offenders. 
A special situation predicated solely on the effluxion of time, Article 61(5) of the Criminal Code. 
Only if the offender wishes to obtain early release after serving half his sentence. 

87 

 
 
  
 
                                                                                                                                                         
– 

– 

– 

– 

– 

– 

The offender must join the army or another of the armed forces (France); 

If the offender is a foreigner, he must be expelled from French territory (France); 

Conditional release is excluded during the period of firm imprisonment; 

Victims must be compensated;224 

There are more favourable provisions for offenders who are aged over 70, seriously 
ill (Spain, Greece) or exercise parental authority over a child aged less than ten and 
habitually resident with this parent (France); 

The offender must not constitute a threat to the public (Germany) or there must be no 
counter-arguments  based  on  a  serious  risk  for  society (Belgium);  this  condition  is 
evaluated  on  the  basis  of  the  following  criteria:  possibilities  for  reintegrating  the 
offender (Belgium), offender’s personality (Belgium, Germany), offender’s conduct 
during detention (Belgium, Spain, Finland, Greece, Italy), risk that offender will re-
offend (Belgium, Germany), offender’s attitude to victims (Belgium), seriousness of 
offence (Germany). 

In most Member States early release is conditional, i.e. subject to a trial period during which 
the  offender  must  not  re-offend  if  he  does  not  wish  to  run  the  risk  of  the  release  decision 
being  withdrawn.  But  two  Member  States  (Netherlands  and  United  Kingdom)  provide  for 
unconditional early release. 

In  most  Member  States,  the  trial  period  depends  on  the  time  remaining  to  be  served  at  the 
time of release (e.g. Belgium, Germany, Spain, Finland, Greece,225 Sweden), but may not be 
less than one year (Sweden) or, in Belgium, two years or five years for more serious sentences 
(more than five years imprisonment ordered by a Tribunal correctionnel), with a maximum of 
three years (Finland) or 10 years (Belgium). The trial period in the event of life imprisonment 
is five years in Germany, Italy and Portugal.  

Early  release  is  usually  accompanied  by  a  series  of  prohibitions  or  obligations,  such  as  the 
prohibition  on  exercising  certain  occupations  (France,  Portugal),  being  in  certain  places 
(Germany,  France,  Greece,  Portugal,  Sweden),  residing  in  certain  places  (France,  Greece, 
Portugal),  being  with  certain  people  (Germany,  France,  Greece,  Portugal),  associations  and 
meetings  (Portugal),  owning  certain  articles  (Germany,  Portugal),  driving  certain  vehicles 
(France),  owning  or  bearing  arms  (France),  or  the  obligation  to  reside  in  certain  places 
(France,  Greece,  Sweden),  to  appear  before  the  authorities  from  time  to  time  (Germany, 
Portugal),  to  follow  vocational  training  (France,  Sweden),  medical  treatment  (Greece, 
Sweden), with the offender’s consent (Portugal), to do community service (Greece), pay costs 
(France,  Portugal)  or  damages  (France,  Portugal,  Sweden),  compensate  for  damage 
(Germany), give the victim moral satisfaction (Portugal), pay a sum of money to a charitable 
organisation  (Germany,  Portugal)  or  public  funds  (Germany),  present  a  rehabilitation 
programme  (Belgium)  or  a  social  reintegration  programme  (Portugal),  pay  maintenance 
obligations (Germany, France, Greece) or submit to a form of guardianship (Belgium). 

224 

225 

Under Belgian legislation, victims may be given the opportunity to make their views known, if they so 
request, on the conditions to be imposed on the offender. 
Only if at least three years remain to be served. Otherwise the trial period is three years. 

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Where  the  conditions  for  the  early  release  are  breached,  the  early  release  can  be  suspended 
(Belgium), withdrawn (Belgium, Germany, France) or be left in place on amended conditions 
(Belgium, Germany). The legislation of several Member States allows a graduated response, 
ranging from a warning (Sweden) to time in prison of 15 days for every breach (Sweden). 

There  are  major  differences  between  the  Member  States’  legislation  on  the  powers  of  those 
concerned (courts, Justice Ministry, regional or local prisons administration), the extent of the 
authorities’  discretion  (in  particular  the  question  whether  release  is  mandatory  or  optional), 
the early release procedure, the possibilities for challenging a decision refusing to allow early 
release, supervisory arrangements etc. 

4. REMISSION 

In some Member States (e.g. France, Greece) a remission or reduction of sentence is possible 
while the sentence is being served.  

In  France,  the  possibility  is  available  in  different  forms:  an  ordinary  reduction  (virtually 
automatic  for  good  conduct:  7  days  per  month  or  3  months  per  year)  and  a  supplementary 
reduction (4 days per month or 2 months per year if the offender manifests “serious efforts at 
social rehabilitation, in particular by passing school, university or vocational examinations”). 
The  supplementary  reduction  is  even  given  in  the  event  of  a  repeated  offence  (2  days  per 
month  or  1  month  per  year).  In  Greece,  the  legislation  provides  for  a  system  whereby  each 
day worked is equivalent, on a sliding scale depending on the nature of the work, to 2½, 2, 1¾ 
or 1½ days’ imprisonment. 

In both Member States (France and Greece), the reduction can be combined with conditional 
release thus bringing forward the time at which the prisoner can apply for conditional release.  

5. AMNESTY AND PARDON 

Amnesty is a measure that retroactively decriminalises certain acts. It thus legally precludes 
enforcement  of  the  sentence  or  brings  it  to  an  immediate  end  if  it  has  begun.  Pardon  is  a 
personal  measure  whereby  an  individual  convicted  and  sentenced  is  released  from  the 
sentence in whole or in part. Since the Member States’ legislation varies widely on amnesty 
and pardon, which are given in the exercise of wide discretion enjoyed by the authorities, the 
Commission feels it would not be right to discuss their approximation in the European Union. 

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ANNEX IV 

Table of questions 

Question 1: (see point 4.1.): To what extent do the differences between sentencing systems 
raise barriers to the establishment of the area of freedom, security and justice such as: 

(1)  criminals  relocating  their  activities  owing  to  disparities  between  the  way  the  offences 
are defined, prosecuted and punished; or 

(2) barriers to the free movement of persons? 

Question  2  (see  point  4.1.1.1.):  How  can  major  divergences  between  Member  States  as 
regards  the  decision  to  prosecute  be  avoided,  at  least  for  offences  that  are  harmonised  in 
the Union? 

Question  3  (see  point  4.1.1.2.):  To  what  extent  could  European  sentencing  guidelines  be 
developed, that is to say basic principles for sentencing, without interfering with the courts’ 
room for discretion? 

Question  4  (see  point  4.1.1.2.):  Should  studies  of  the  sentencing  practice  of  the  Member 
States’ courts be carried out?  

Question  5  (see  point  4.1.1.2.):  Would  it  be  helpful  to  establish  a  sentencing  information 
system to provide guidance for the courts? 

Question 6 (see point 4.1.1.5): Is it enough to recognise a final criminal judgment given in 
other  Member  State  (and/or  treat  it  in  the  same  way  as  a  national  judgment)  for  it  to  be 
taken into account in a national court for recidivism purposes? 

Question  7  (see  point  4.1.1.5):  Should  there  first  of  all  be  a  degree  of  approximation  of 
legislation in matters such as: 

- determination of the offences to be taken into account systematically as the beginning of a 
series of repeat offences (establishment of a special European recidivism system); 

-  determination  of  the  type  of  final  criminal  judgments  to  be  taken  into  account  for 
recidivism purposes (type of decision and authority, type and quantum of penalty); 

-  the  period  during  which  final  criminal  judgments  should  be  taken  into  account  as  the 
beginning  of  a  series  of  repeat  offences  in  another  Member  State  and  the  circumstances 
that might neutralise the effect of a conviction for recidivism purposes? 

Question 8 (see point 4.1.2.): To what extent should the divergences between national rules 
on  the  procedures  for  enforcement  of  custodial  penalties  be  reduced,  particularly  with  a 
view  to  avoiding  the  risks  of  discrimination  against  non-resident  offenders  in  the 
application of such penalties? 

Question 9 (see point 4.1.2.): Are there categories of offences on the list in Article 2(2) of 
the  Framework  Decision  on  the  European  arrest  warrant  and/or  the  proposal  for  a 
Framework Decision on the application of the principle of mutual recognition to financial 
penalties for which the penalties (and the definitions of the offences) should be harmonised 
as a matter of priority? 

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Question 10 (see point 4.1.3): To what extent should criminal fine systems be approximated 
(for  example  in  relation  to  economic  crime,  including  offences  committed  by  legal 
persons)? 

Question  11  (see  point  4.1.6.):  To  what  extent  should  divergences  between  national  rules 
governing the criminal or administrative liability of legal persons be narrowed, particularly 
to avert the risk of criminals relocating their activities in the field of financial crime? 

Question 12 (see points 2.1.9 and 4.1.6.): Could the same range of sanctions as provided for 
by the current Framework Decisions apply on a general basis to legal persons?  

Question  13  (see  point  4.1.7.):  To  what  extent  should  divergences  between  national  rules 
governing alternative sanctions be narrowed, in particular to avoid them being applicable 
in practice only to residents? 

Question  14  (see  point  4.1.7.):  What  mechanisms  might  be  envisaged  to  reduce  the  legal 
and practical difficulties potentially precluding the mutual recognition and enforcement of 
alternative sanctions in another Member State? 

Question  15  (see  point  4.1.7.):  Is  it  necessary  to  take  measures  at  European  Union  level, 
other than those laid down in Article 10 of the Council Framework Decision of 15 March 
2001  on  the  standing  of  victims  in  criminal  proceedings,  to  harmonise  certain  conditions 
and practical arrangements for mediation in criminal cases, to facilitate the recognition of 
measures and arrangements arising from mediation procedures and their implementation 
in another Member State? Should a minimum framework govern: 

– 

– 

– 

– 

the categories of offence concerned? 

the mediation procedure? 

the  status  of  mediators,  including  the  extent  of  their  independence  from  the 
courts? 

training and conditions of eligibility for mediators? 

Question  16  (see  point  4.1.7.):  To  what  extent  should  measures  be  taken  at  European 
Union level to take account of the interests of victims - including those who do not reside in 
the  Member  State  in  which  the  offence  was  committed  -  when  imposing  alternative 
sanctions? If so, what should they be? 

Question 17 (see point 4.1.8.): To what extent should measures be taken at European level 
to provide for approximation of certain conditions of eligibility and implementation of early 
release, to facilitate the recognition of prison sentences and their enforcement in another 
Member State? Should minimum standards govern: 

- regarding life sentences, the possibility of periodic review with a view to early release? 

- regarding sentences to specific periods, the minimum period of imprisonment that should 
be served before early release can be allowed? If so, how long should it be? Are there any 
prospects of approximation along the lines that, for non-life sentences, early release should 
be possible after half the sentence has been served in normal circumstances and two thirds 
in repeat offence cases? 

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- the criteria for allowing or refusing early release? 

- the release procedure? Should procedural standards be provided for? 

- supervisory arrangements and the duration of the trial period? 

- penalties for failure to comply with the conditions for early release? 

- the procedural safeguards for offenders? 

- victims’ interests? Should the European Union provide that early release can be allowed 
only  if  the  victim  or  victims  have  been  compensated  or  the  offender  has  made  serious 
efforts to compensate them, or can be revoked if this condition is not met? 

Question 18 (see point 4.2.1.1.): What categories of sentenced persons should be eligible for 
transmission  of  enforcement  in  the  State  of  enforcement:  nationals  of  the  State  of 
enforcement,  persons  who  habitually  reside  there,  sentenced  persons  who  are  in  the 
territory of the State of enforcement where they are serving or are due to serve a custodial 
sentence? Should there be specific conditions for minors and mental patients to be eligible 
also? 

Question  19  (see  point  4.2.1.2.):  Is  there  a  need  to  make  agreements  emerging  from 
criminal mediation and settlement procedures in the Member States more effective? What 
is the best solution to the problem of recognition and enforcement of such agreements in 
another  Member  State  of  the  European  Union?  For  instance,  should  specific  rules  be 
adopted to make such agreements enforceable? If so, what guarantees should apply? 

Question 20 (see point 4.2.2.1.): Should it be possible only for the sentencing State to ask 
for transmission of enforcement, or should it also be possible for the State of enforcement? 

Question 21 (see point 4.2.2.2.): What are the grounds that the State of enforcement could 
legitimately  put  forward  for  refusing  recognition  and  enforcement  in  its  territory  of  a 
criminal penalty imposed in another Member State? 

Question 22 (see point 4.2.2.2.): Where national legislation allows financial penalties to be 
imposed  concurrently  with  prison  sentences,  given  the  prospect  of  the  adoption  of  the 
Framework Decision on the application of the principle of mutual recognition to financial 
penalties, should the sentencing State be entitled to refuse to transfer enforcement until the 
sentenced person has paid the fine? 

Question  23  (see  point  4.2.2.2.):  Given  the  differences  between  the  Member  States’ 
legislation on early release, a sentenced person may be released immediately after transfer 
to  the  requested  State.  Could  this  be  seen  in  the  relevant  Member  States  as  a  legitimate 
ground for refusing to transfer? 

Question 24 (see point 4.2.2.2.): Should a minimum period be set in the European Union 
during which the sentenced person would continue to serve his sentence in the convicting 
Member  State  so  as  to  avoid  situations  in  which  he  might  be  released  immediately  on 
transfer to the State of enforcement or serve a much lighter sentence than in the sentencing 
State?  How  long  should  that  period  be?  Would  the  introduction  of  a  minimum  period 
jeopardise  flexibility  and  preclude  case-by-case  solutions?  Would  determining  a  period 
compatible  with  the  needs  of  justice,  as  proposed  by  the  Committee  of  Experts  on  the 

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operation of the Council of Europe Conventions on criminal law (see point 3.2.1.5.d.), be 
preferable? 

Question 25 (see point 4.2.2.3.): Where the type or duration of the penalty imposed in the 
State of judgment is incompatible with the legislation of the State of enforcement, should 
the  latter  State  enjoy  the  possibility  of  adapting  the  penalty  imposed  in  the  State  of 
judgment into a penalty provided for by the State of enforcement for comparable offences? 

Question 26 (see point 4.2.2.3.): Should provision be made in the European Union for the 
possibility  of  adapting,  converting  or  substituting  penalties,  or  should  the  State  of 
enforcement be left with full powers of discretion? 

Question 27 (see point 4.2.2.3.): Would the approach proposed by the Max Planck Institute 
of  Foreign  and  International  Criminal  Law  in  Freiburg,  which  consists  of  making  a 
functional  comparison  between  (alternative)  sanctions  or  measures  in  the  State  of 
judgment and the State of enforcement by a certain analysis and evaluation method provide 
a solution? What shortcomings does this approach have? How can they be remedied? 

Question 28 (see point 4.2.2.4.): Should the transfer of enforcement of a criminal judgment 
be subject to the request, the consent or merely the consultation of the person sentenced? 
Would the answer to this question be different if the person sentenced has already begun 
serving his sentence in a prison in the sentencing State? 

Question 29 (see point 4.2.2.5.): How can the victim’s interests be taken into account in the 
transfer of enforcement of the penalty? Should provision be made for information for the 
victim (as to the existence of a request for recognition and transfer and the outcome of the 
proceeding), consultation or even consent, as a possible condition for the recognition and 
transfer of enforcement? 

Question 30 (see point 4.2.3.): Should the European Union make provision for a time-limit 
for  processing  requests  for  recognition  of  criminal  penalties,  and  in  particular  for 
processing requests for transfer of prisoners, and if so what limit? 

Question 31 (see point 4.2.3.): Given the administrative burden of processing a request for 
transfer of a prisoner, should the European Union provide that only prisoners sentenced to at 
least a specified term of imprisonment or who still have a specified minimum time to serve 
should be eligible for transfer? If so, what would be a proper period? 

Question 32 (see point 4.2.3.): Should the European Union make provision for a time-limit 
for  responding  to  a  request  for  information  needed  in  connection  with  the  recognition  of 
criminal penalties, and in particular for the transfer of prisoners? 

Question  33  (see  point  4.2.3.):  Given  the  complexity  of  judicial  and  administrative 
structures  in  the  Member  States  and  the  differences  between  them,  what  simple  and 
effective  structures  should  be  provided  to  implement  the  mutual  recognition  of  criminal 
penalties and the transfer of prisoners?  

Question 34 (see point 4.2.3.): Should there be a standard form in the European Union to 
facilitate  the  implementation  of  the  recognition  of  criminal  penalties  and  the  transfer  of 
prisoners? 

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Question  35  (see  point  4.2.3.):  Should  the  State  of  enforcement  be  able  to  ask  for 
reimbursement  of  expenditure  incurred  in  the  enforcement  of  penalties  that  it  has 
recognised? 

Question 36 (see point 4.2.3.): Should a network of contact points be set up to facilitate – 
and  perhaps  even  help  to  evaluate  –  the  practical  application  of  a  European  Union 
legislative  instrument  on  the  mutual  recognition  of  criminal  penalties  and  the  transfer  of 
prisoners? 

Question  37  (see  point  4.2.4.):  Where  a  custodial  penalty  or  an  alternative  penalty  is 
recognised, are there any reasons for departing from the rule that enforcement should be 
governed entirely by the law of the State of enforcement? 

Question  38  (see  point  4.2.4.):  If  the  conditions  attached  to  a  suspended  sentence  are 
supervised by the State of enforcement, should the State of judgment be given the possibility 
of  ensuring  that  the  sentenced  person  complies  with  the  conditions?  What  mechanisms 
should be envisaged for that purpose? 

Question 39 (see point 4.2.4.): Which of the two States should be able to exercise the right 
to give an amnesty or pardon?  

94