Communication from the Commission to the Council and the European - Parliament Communication on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States {SEC(2005)641}
Date: 2005-05-19
Institutions: European Commission
Subjects: criminal procedure, judicial cooperation, mutual recognition principle, penalty

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 19.5.2005 
COM(2005) 195 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

Communication on the mutual recognition of judicial decisions in criminal matters and 
the strengthening of mutual trust between Member States 

{SEC(2005)641} 

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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

Communication on the mutual recognition of judicial decisions in criminal matters and 
the strengthening of mutual trust between Member States 

1. 

1. 

2. 

3. 

2. 

4. 

5. 

INTRODUCTION 

The  mutual  recognition  (MR)  principle  was  presented  at  the  Tampere  European 
Council in 1999 as the “cornerstone” of the European judicial area and confirmed in 
the  draft  Constitution,  and 
the 
Hague Programme,  which  links  its  development  to  enhanced  mutual  trust  between 
the Member States.  

importance 

recognised 

its  vital 

in 

is 

Nearly five years after the Council and the Commission adopted the MR programme 
to  give  effect  to  the  conclusions  of  the  Tampere  European  Council,  this 
communication  sets  out  to  present  the  Commission’s  thinking  on  further  work  to 
give  effect  to  the  MR  principle  in  the  light  of  initial  experience  to  date  and  on 
possible  items  for  inclusion  in  a  programme  of  action  to  enhance  mutual  trust 
between Member States. 

This  communication  is  part  of  the  Commission’s  general  process  of  drawing  up  a 
plan of action to give effect to the Hague Programme. It maps the general prospects 
for  the  five  years  ahead  (cf.  SEC(2005)  641  ),  though  it  specifically  stresses  the 
initial implementation period (2005-07), given that there will have to be a mid-term 
review  when  the  Constitution  comes  into  force.  And  as  the  Hague  Programme 
emphasised the importance of evaluating the implementation of policies, the results 
of the evaluation undertaken here will have to be taken into account and may even 
inspire changes to the agreed priorities. 

CONTINUING THE IMPLEMENTATION OF THE MUTUAL RECOGNITION PRINCIPLE 

For  some  years  now  the  implementation  of  the  MR  principle  has  been  one  of  the 
main  areas  of  European  Union  activity  regarding  criminal  justice,  and  is  probably 
one of the most promising. After more than four years of operation of the programme 
adopted  in  December  2000,  about  half  the  planned  measures  have  been  converted 
into  legislative  instruments,  either  adopted  already  or  in  the  pipeline.  Of  these,  the 
Framework Decision on the European arrest warrant and surrender procedures1 is the 
only one for which the time allowed for transposal into national legislation is up. 

This communication focuses on aspects of the MR programme not yet implemented 
so as to lay down priorities for the years ahead in the light of the Hague Programme 
and the analysis of initial achievements. 

1 

OJ L 190, 18.7.2002, p. 1. 

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2.1.  Mutual recognition at the pre-trial stages  

2.1.1.  The MR principle and gathering evidence2 

6. 

7. 

8. 

2 

3 
4 
5 

The Hague Programme calls on the Council to adopt the proposal on the European 
evidence warrant by the end of 2005. After the adoption of the Framework Decision 
on the freezing of assets3, this is a major step forwards in the application of the MR 
principle at the pre-trial evidence-gathering stage. But the evidence warrant will not 
be  a  universal  instrument.  Investigation  measures  such  as  questioning  suspects, 
witnesses and experts or bank account surveillance or telephone-tapping orders will 
also  have  to  be  covered  by  MR  instruments.  The  ultimate  objective  is  to  adopt  a 
single  legislative  instrument  to  facilitate  the  gathering  of  evidence  of  all  kinds  in 
criminal  cases  throughout  the  Union.  In  the  Commission’s  view,  the  effect  of 
applying the MR principle here should be to leave the investigations to be run by the 
issuing  State,  as  the  decision  to  seek  this  or  that  piece  of  evidence  cannot  be 
reopened  in  the  executing  Member  State.  That  is  one  of  the  reasons  why  the 
Commission  wants  the  double  criminality  principle  to  be  dropped  in  all  matters 
related  to  gathering  evidence.  As  regards  the  rules  governing  the  manner  in  which 
evidence  is  gathered,  the  national  rules  applicable  in  each  Member  State  for  the 
relevant  type  of  investigation  should  be  respected,  subject  to  the  application  of 
certain  formalities  or  procedures  specified  by  the  issuing  State  in  the  executing 
Member  State,  already  provided  for  by  Article  4(1)  of  the  Convention  of 
29 May 2000. And the adoption of minimum harmonisation rules on the gathering of 
evidence (cf. infra 3.1.1.2.) should help to ensure that evidence lawfully gathered in 
one Member State can be used in the courts of another. 

Extending the MR principle to the entire range of matters relating to the gathering of 
evidence will raise questions as to the future of the Convention of 29 May 2000 on 
Mutual  Assistance  in  Criminal  Matters  between  the  Member  States  of  the 
European Union4 and the Protocol of 20015, which, incidentally, are not yet in force 
as the right number of ratifications has not been reached. In addition to establishing a 
general MR instrument on evidence, the remaining provisions of the two instruments 
will  have  to  be  reformatted  as  a  European  Law  or  European  Framework  Law  after 
the Constitution comes into force.  

One of the difficulties that have been identified is that there are differences between 
the respective powers of the judicial authorities and the police in the Member States. 
The limits to each of these types of cooperation are thus blurred, for although they 
complement  each  other  they  are  subject  to  different  rules.  The  Commission  will 
make  proposals  in  connection  with  the  implementation  of  the  principle  that 
information in criminal matters must be made available. 

See  Commission Green  Paper  on  criminal  law  protection  of  the  financial  interests  of  the  Community 
and the establishment of a European Prosecutor: COM (2001) 715 final, 11.12.2001. 
OJ L 196, 2.3.2003, p 45; deadline for transposal 2 August 2005. 
OJ C 197, 12.7.2000. 
OJ C 326, 21.11.2001. 

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2.1.2.  Mutual recognition of non-custodial pre-trial supervision measures 

9. 

In August 2004 the Commission published a Green Paper on mutual recognition of 
non-custodial  pre-trial  supervision  measures6.  The  Green  Paper  observes  that 
excessive use of pre-trial detention is one of the causes of prison overcrowding and 
that the alternatives available in national law are often impossible to use where the 
person resides in another Member State, and suggests a number of solutions. In 2005, 
once the consultations are over, the Commission will make legislative proposals.  

2.2.  Mutual recognition of final judgments 

10. 

The  effect  of  the  MR  principle  is  that,  where  there  is  a  final  judgment  in  one 
Member State,  it  must  have  a  series  of  consequences  in  the  others.  Apart  from  the 
European Arrest Warrant, two specific aspects of the question have been covered by 
proposals  for  Framework  Decisions  on  the  application  of  the  MR  principle  to 
financial penalties7 and to confiscation orders8. But a number of fundamental aspects 
remain to be considered. 

2.2.1.  Mutual information on convictions 

11. 

Mutual recognition of convictions depends on information on convictions being able 
to circulate freely between Member States. Taking up an idea already formulated in 
the  conclusions  of  the  European  Council  of  25  and  26  March  2004,  the 
Hague Programme  calls  on  the  Commission  to  “present  its  proposals  on  enhancing 
the  exchange  of 
records  of  convictions  and 
from  national 
disqualifications,  in  particular  of  sex  offenders,  with  a  view  to  its  adoption  by  the 
Council  by  the  end  of  2005”.  In  January  2005  the  Commission  presented  a  White 
Paper analysing the main difficulties in exchanging information on convictions and 
making proposals for a computerised information exchange system. Proposals will be 
presented in 2005 following initial discussion in Council on the subject. 

information 

2.2.2.  The ne bis in idem principle 

12. 

13. 

6 
7 
8 
9 

Article  50  of  the  Charter  of  Fundamental  Rights  of  the  European  Union  provides: 
“No one shall be liable to be tried or punished again in criminal proceedings for an 
offence for which he or she has already been finally acquitted or convicted within the 
Union in accordance with the law”. The Charter broadens the territorial scope of the 
ne bis in idem principle to cover the entire Union, which is progress compared with 
Protocol 7 to the European Human Rights Convention (ECHR), which provided for it 
to apply only in each contracting State’s territory. 

This  principle  underlies  two  major  judgments  given  by  the  European  Court  of 
Justice9,  specifying  its  scope  in  terms  of  the  Schengen  Implementing  Convention, 
Articles 54 to 58 of which affirm and adapt the ne bis in idem principle. Initial work 
on the application of the ne bis in idem principle began on the basis of an initiative 

COM(2004) 562 final. 
OJ L76, 22.3.2005 p.16. 
OJ C 184, 2.8.2002. 
Cases C-187/01 and C-385/01 Gozütok and Brugge (judgment given on 11 February 2003) and Case C-
469/03 Miraglia (judgement given on 10 March 2005). 

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from  Greece10.  It  was  suspended  on  account  of  the  close  link  with  the  problem  of 
conflicts of jurisdiction (cf. infra). There will be a Commission Green Paper on the 
two issues in 2005, followed by a legislative proposal in 2006. 

2.2.3.  Taking  account  of  convictions  in  the  Member  States  in  the  course  of  criminal 

proceedings 

14. 

In most Member States, the existence of previous convictions can have effects at the 
time of fresh criminal proceedings: repeat offending, for instance, can influence the 
procedural rules that apply, the type of offence charged or, more often, the nature and 
quantum  of  the  sentence.  The  Commission  recently  presented  a  proposal  for  a 
Framework  Decision  on  taking account of convictions in the Member States of the 
European Union, which establishes a general principle whereby each Member State 
is to attach the same effects to convictions handed down in the other Member States 
as  to  national  convictions  and  sets  out  a  series  of  rules  for  the  application  of  the 
principle. A principle of recognition of repeat offending along these lines was in the 
Framework Decision of 6 December 2001 on the protection of the Euro11. The new 
instrument will be a major contribution to the MR of final judgments. 

2.2.4.  The enforcement of criminal penalties 

15. 

It  must  be  possible  for  a  sentence  handed  down  in  a  Member  State  to  be  enforced 
anywhere  in  the  Union.  In  April  2004  the  Commission  launched  a  consultation  on 
the approximation, mutual recognition and enforcement of criminal sanctions in the 
European Union on the basis of a Green Paper12. Austria, Sweden and Finland have 
presented an initiative to  permit  enforcement in the Member State of  nationality or 
residence  of  a  prison  sentence  ordered  in  another  Member  State.  This  instrument 
should also make it easier to apply certain provisions on the European arrest warrant 
that  allow  a  surrender  request  to  be  refused  where  the  sentence  is  executed  in  the 
executing State.  

16. 

But  it  is  silent  on  the  question  of  the  enforcement  of  non-custodial  measures,  on 
suspended sentences and the conditions for it to be overridden by a penalty ordered 
in another Member State. The Commission will present legislative proposals on these 
topics in 2007.  

2.2.5.  The mutual recognition of disqualifications 

17. 

Convicted  offenders  are  often  subject  to  disqualifications  (from  working  with 
children, tendering for public contracts, driving or whatever), and depending on the 
Member  State  these  disqualifications  may  flow  from  statutory  provisions,  court 
decisions or administrative instruments. This is a particularly delicate question both 
because  such  disqualifications  vary  widely  in  nature  and  because  there  are 
difficulties in the exchange of information about them. Major initial progress will be 
achievable once information on convictions can be exchanged via the computerised 
system.  Generally  speaking  the  Commission  recommends  a  sector-by-sector 
approach  here,  taking  each  type  of  sentence  in  turn,  and  will  present  a 

10 
11 
12 

OJ C 100, 26.4.2003, p. 24. 
OJ L 329, 14.12.2001, p.3. 
COM (2004) 334 final. 

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communication in 2005. In November 2004 Belgium presented an initiative relating 
to the MR of disqualifications from working with children following convictions for 
child  pornography  offences.  Sector-by-sector  work  will  continue  in  2006  with  a 
proposal for the MR of driving disqualifications. 

3. 

18. 

REINFORCING MUTUAL TRUST 

Reinforcing mutual trust is the key to making MR operate smoothly. This is one of 
the important messages in the Hague Programme and involves both legislative action 
to  ensure  a  high  degree  of  protection  for  personal  rights  in  the  EU  and  a  series  of 
practical  measures  to  give  legal  practitioners  a  stronger  sense  of  belonging  to 
a common judicial culture. 

3.1. 

Reinforcing mutual trust by legislative measures  

19. 

The first endeavours to apply the MR principle, in particular with the European arrest 
warrant, revealed a series of difficulties which could to some extent be resolved if the 
Union  were  to  adopt  harmonisation  legislation.  This  can  revolve  around  two  axes: 
ensuring  that  mutually  recognised  judgments  meet  high  standards  in  terms  of 
securing personal rights and also ensuring that the courts giving the judgments really 
were the best placed to do so. Taking MR a stage further might imply giving further 
consideration to certain measures to approximate legislation on substantive criminal 
law. 

3.1.1.  Harmonising the law of criminal procedure 

3.1.1.1.  Improving guarantees in criminal proceedings 

20. 

21. 

In  April  2004,  the  Commission  presented a  proposal  for  a  Framework  Decision  on 
certain procedural rights in criminal proceedings throughout the European Union13. It 
seeks  to  ensure  that  suspects  and  defendants  in  criminal  proceedings  enjoy  the 
minimum rights secured in all the Union Member States as regards access to lawyers, 
interpreters  and  translators,  the  right  to  communicate  with  consular  and  other 
authorities,  information  on  one’s  rights  and  the  protection  of  vulnerable  categories. 
The European Council has asked that this Decision be adopted by the end of 2005.  

But  this  is  only  a  first  stage.  Work  must  continue  in  the  years  ahead  to  provide 
permanent  back-up  for  MR.  There  are  three  areas  in  particular  where  work  needs 
doing:  the  presumption  of  innocence,  gathering  evidence  in  criminal  cases  and 
decisions in absentia14. In each of them there will have to be extensive analysis and 
consultation with the 25 Member States and criminal-law practitioners to identify the 
difficulties  and  potential  solutions  in  the  light  of  each  Member  State’s  legal 
traditions. 

13 
14 

COM (2004) 328 final. 
See  Commission Green  Paper  on  criminal  law  protection  of  the  financial  interests  of  the  Community 
and the establishment of a European Prosecutor: COM (2001) 715 final, 11.12.2001. 

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3.1.1.2.  Reinforcing the presumption of innocence. 

22. 

The presumption of innocence is one of the foremost foundations of the criminal law. 
It is asserted by Article 6 of the ECHR and taken over in Article 48 of the Charter of 
Fundamental Rights of the European Union; it exists in all the Member States but the 
concept is not universally co-extensive. In 2005 the Commission will issue a Green 
Paper  to  spell  out  the  scope  of  the  concept,  consider  ways  of  reinforcing  it  and 
determine the limits to it, if any. 

3.1.1.3.  Minimum standards on the gathering of evidence  

23. 

Cross-border  court  actions  entail  the  possibility  for  evidence  gathered  in  one 
Member State  to  be  used  in  another.  But  respect  for  defence  rights  entails  certain 
minimum  rules  on  the  gathering of evidence being observed throughout  the Union. 
The  Commission  will  issue  a  Green  Paper  in  2006  on  the  basis  of  a  study15, 
proposing  a  minimum  harmonisation  exercise  regarding standards  for the gathering 
and disclosure of evidence, admissibility criteria and possible exceptions. 

24. 

Following  in-depth  consultation  on  the  basis  of  these  two  Green  Papers,  the 
Commission will present a proposal for a Framework Decision on the presumption of 
innocence and minimum standards on the gathering of evidence.  

3.1.1.4.  Judgments in absentia 

25. 

The question of judgments in absentia has often been raised in the EU and regularly 
re-appears  in  instruments  that  have  been  adopted.  In  practice  the  matter  has  been 
much  discussed,  and  both  experience  and  the  decisions  of  the  European  Court  of 
Human Rights have clearly shown that there are difficulties. In 2006 the Commission 
will issue a Green Paper, possibly to be followed by legislative proposals to resolve 
the difficulties and bring about greater certainty as to the law. 

3.1.1.5.  Transparency in the choice of court 

26. 

In criminal matters, where the courts of several Member States have jurisdiction over 
the same case, investigations and prosecutions may be commenced simultaneously in 
both. Such multiple proceedings can be seriously detrimental both to personal rights 
and to procedural efficiency. A procedure to determine the most appropriate place for 
conducting a prosecution is more and more necessary and will be a major factor in 
facilitating  the  application  of  the  mutual  recognition  principle.  It  should  make  it 
easier to gather evidence at the pre-trial stage (once the Member States have agreed 
on where the trial is to take place, on which the applicable law is predicated) and to 
enforce the final judgment (once the Member States have acknowledged in advance 
that the case has been tried at the most appropriate place). It should also help to avoid 
cases in which the ne bis in idem principle applies.  

27. 

In 2005 the Commission will present a Green Paper on conflicts of jurisdiction and 
the ne bis in idem principle, which, without interfering with the national machinery 
for determining jurisdiction, will propose solutions to settle conflicts of jurisdiction 

15 

Study of the laws of evidence in criminal proceedings throughout the EU, October 2004. 

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in the European Union on the basis of, among other things, the role of Eurojust under 
Article III-273 of the Constitution and the calls made in the Hague Programme.  

3.1.2.  Further approximation of substantive criminal law 

28. 

29. 

Considerable  approximation  work  has  been  done  here  in  recent  years.  It  must  be 
continued, with consideration being given to the value of promoting more diversified 
forms of punishment in the Union and not focusing simply on prison sentences. The 
accent should be on evaluating the implementation of such instruments as have been 
adopted, initial results being disappointing, and on the operation of the mechanism of 
the  positive  list  of  offences  for  which  there  is  no  check  as  to  double  criminality  in 
MR  instruments  so  that  the  difficulties  that  have  been  identified  can  be  remedied 
wherever possible. 

Initial  reflections  on  the  need  for  a  Union-wide  definition  of  concepts  such  as  the 
liability of bodies corporate or the approximation of fines were set out in the Green 
Paper on penalties. The Commission will make a proposal for a Framework Decision 
in 2007 following a Green Paper. 

3.2. 

Reinforcing mutual trust by practical flanking measures 

3.2.1.  Reinforcing evaluation mechanisms 

30. 

The European Council stated that “Evaluation of the implementation as well as of the 
effects  of  all  measures  is  ...  essential  to  the  effectiveness  of  Union  action”.  Future 
developments in the MR principle in criminal matters will have to be accompanied 
by  evaluation  mechanisms.  These  must  be  capable  of  meeting  two  methodological 
objectives that  are  separate  from  the  job  of  verifying  whether  Union  instruments 
have been correctly transposed into national law within the time allowed: 

–  Evaluating  the  practical  needs  of  the  justice  system,  and  particularly  identifying 

potential barriers before new instruments are adopted; and 

–  Evaluating the specific practical conditions for implementing Union instruments, 
in particular best practices and how they can meet the needs identified at the first 
stage.  

These two objectives will have to be applied in relation to all instruments. They are 
predicated  on  stronger  tools  for  analysing  judicial  practice  being  available  to  the 
Commission.  

31. 

A  third  objective,  of  undertaking  a  more  general  evaluation  of  the  conditions  in 
which  judgments  are  produced  in  order  to  ensure  that  they  meet  high  quality 
standards  enabling  mutual  trust  between  judicial  systems  to  be  reinforced,  without 
which  MR  will  not  be  able  to  work,  depends  on  broader-based  and  longer-term 
action. The Hague Programme states as a matter of principle that “mutual confidence 
[must] be based on the certainty that all European citizens have access to a judicial 
system  meeting  high  standards  of  quality”  and  calls  for  “a  system  providing  for 
objective and impartial evaluation of the implementation of EU policies in the field 
of justice, while fully respecting the independence of the judiciary” to be established. 
In  the  context  of  boosting  mutual  trust  by  the  certainty  that  judicial  systems 

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producing judgments that are eligible for Union-wide enforcement meet high quality 
standards,  this  evaluation  must  provide  a  fully  comprehensive  view  of  national 
systems.  The  credibility  and  efficiency  of  a  judicial  system  need  to  be  assessed  in 
overall  terms,  covering  both  institutional  mechanisms  and  procedural  aspects.  This 
will  be  tricky,  and  the  subsidiarity  and  proportionality  principles  and  the 
independence  of  the  judiciary  must  be  respected.  The  object  of  the  exercise  is  to 
produce regular rapports based strictly on criteria of independence and transparency, 
highlighting best practices. 

32. 

In  February  2005  the  European  Parliament  adopted  a  recommendation16,  and  in 
2006,  after  close  consultations  with  judicial  organisations  and  institutions,  the 
Commission will produce a communication on evaluation of the quality of justice. 

3.2.2.  Promoting  networking  among  practitioners  of  justice  and  developing  judicial 

training 

33. 

34. 

35. 

the 

importance  of 

improving  mutual 
The  Hague  Programme  emphasises 
understanding  between  judicial  authorities  and  legal  systems.  It  calls  for  the 
development  of  networks  of  judicial  organisations  and  institutions,  such  as  the 
Network of Councils for the Judiciary, the European Network of Supreme Courts and 
the  European  Judicial  Training  Network,  with  which  the  Commission  wishes  to 
develop close relations. By bringing professionals together more often and promoting 
reflection on the implementation of Union instruments and on matters of horizontal 
interest  such  as  the  quality  of  justice,  such  networks,  which  should  include 
advocates, should play a key role in gradually building up a common judicial culture. 

Second, the Hague Programme emphasises the importance of training as a means of 
promoting  mutual  trust.  Since  2004,  at  the  European  Parliament’s  request  the 
Commission  has  been  operating  a  judicial  exchanges  scheme  as  a  pilot  project 
alongside the AGIS programme. This is to continue in 2005 and will be evaluated in 
2006 before final proposals are made. 

The  effect  of  developing  the  MR  principle  is  to  give  judgments  an  impact  that 
extends well beyond national borders. Consequently, the European dimension of the 
judicial function must be fully integrated into syllabuses at all stages of the careers of 
judges  and  prosecutors.  The  training  of  judicial  authorities  is  based  on  national 
entities  responsible  for  organising  it  and  determining  the  content.  Training  is  now 
grouped  in  a  network  currently  operating  on  an  association  basis.  The  Hague 
Programme  emphasises  the  importance  of  boosting  the  network  to  make  it  into  an 
effective structure for meetings and cooperation between judicial authorities. At the 
end  of  2005,  after  consultations,  the  Commission  will  present  a  communication  on 
judicial training in the European Union. 

3.2.3. 

Support for the development of quality justice 

36. 

16 

In the new financial perspective 2007-12, the Commission presented three proposals 
for  action  programmes  including  a  specific  criminal  justice  programme.  This 
programme will increase the support that the Union can give for judicial cooperation, 

Recommendation from the European Parliament to the Council on the quality of criminal justice and the 
harmonisation of criminal law in the Member States: A6-0036/2005. 

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the  development  of  MR  and  the  reinforcement  of  mutual  trust  between  Member 
States.  Its  objectives  are  in  particular  to  promote  contacts  and  exchanges  between 
practitioners, strengthen judicial training and improve access to justice. 

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