Council Decision 2005/876/JHA of  21 November 2005  on the exchange of information extracted from the criminal record
Date: 2005-11-21
Institutions: Council of the European Union
Subjects: criminal record, data protection, exchange of information, judicial cooperation in criminal matters in the EU, penalty, personal data, simplification of formalities

9.12.2005

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Official Journal of the European Union

L 322/33

(Acts adopted under Title VI of the Treaty on European Union)

COUNCIL DECISION 2005/876/JHA

of 21 November 2005

on the exchange of information extracted from the criminal record

THE COUNCIL OF THE EUROPEAN UNION,

Parties, but they are too slow to meet the demands of
judicial cooperation in an area such as that of
the
European Union.

Having regard to the Treaty on European Union, and in
particular Articles 31 and 34(2)(c) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

According to Article 29 of
the Treaty on European
Union, the European Union has set itself the objective
to provide citizens with a high level of safety within an
area of
freedom, security and justice. This objective
information concerning
presupposes the exchange of
criminal convictions of persons who reside in the
territory of the Member States between the competent
authorities of the Member States.

On 29 November 2000, the Council, in accordance with
the conclusions of the Tampere European Council of 15
and 16 October 1999, adopted a programme of
measures to implement the principle of mutual recog-
nition in criminal matters (3). This Decision contributes
to achieving the goals provided for by Measure 3 of the
programme, which calls
the establishment of a
for
standard form like that drawn up for the Schengen
bodies, translated into all the official Union languages,
for criminal records applications.

(3)

Articles 13 and 22 of
the European Convention on
Mutual Assistance in Criminal Matters of 20 April
1959 (4) provide for systems for the transmission of
information on convictions between the Contracting

(1) OJ C 322, 29.12.2004, p. 9.
(2) Not yet published in the Official Journal.
(3) OJ C 12, 15.1.2001, p. 10.
(4) Council of Europe, European Treaties Series, No 30.

(4)

(5)

(6)

(7)

The Final Report on the first evaluation exercise —
mutual legal assistance in criminal matters (5), called on
Member States to simplify the procedures for transferring
documents between States, using, if necessary, standard
forms to facilitate mutual judicial assistance.

On 25 March 2004, the European Council instructed the
Council to examine measures on the exchange of infor-
mation on convictions for terrorist offences and the
possibility of a European register on convictions and
disqualifications, and the Commission in its communi-
cation on measures to be taken to combat terrorism
to
and other
improve
the
importance of an effective mechanism for transmission
of information on convictions and disqualifications.

serious crime,
of

in particular
stressed

forms of
exchanges

information,

the

the principle of

subsidiarity
This Decision respects
the Treaty on European
referred to in Article 2 of
the Treaty establishing the
Union and Article 5 of
improvement of
since
the
European Community,
systems
information on
transmission of
for
convictions between Member States cannot be carried
out adequately by the Member States unilaterally and
requires coordinated action in the European Union. In
accordance with the principle of proportionality, as set
in the said Article 5, this Decision does not go
out
beyond what
to achieve that
objective.

is necessary in order

implies

The improvement of systems for the transmission of
information on convictions
that convictions
pronounced in a Member State against nationals of
another Member State are known about by the latter
soon as possible and that each
Member State as
Member State may obtain information which it needs
from criminal records from other Member States within
a very short time.

(5) OJ C 216, 1.8.2001, p. 14.

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Official Journal of the European Union

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(8)

for

This Decision supplements and facilitates the existing
mechanisms for
information on
the transmission of
convictions based on existing conventions. In particular,
the provisions
information
concerning requests
extracted from the criminal record do not replace the
possibility available to the judicial authorities of trans-
mitting information concerning criminal records direct
to each other under Article 6(1) of the Convention on
mutual assistance
in criminal matters between the
Member States of the European Union established by
Council Act of 29 May 2000 (1). It provides, however,
for a specific right for the central authority of a Member
State to send a request for information extracted from
the criminal record to the central authority of another
in the circumstances determined by
Member State,
national law.

(9)

The personal data processed under this Decision will be
protected in accordance with the principles enacted in
the Council of Europe Convention of 28 January 1981
for
Individuals with regard to
Automatic Processing of Personal Data.

the Protection of

(10) Under Council of Europe Recommendation No R (84) 10
on the criminal record and rehabilitation of convicted
persons, the main aim of establishment of the criminal
record is to inform the authorities responsible for the
justice system of the background of a person
criminal
subject to legal proceedings with a view to adapting the
decision to be taken to the individual situation. Since all
other use of the criminal record that might compromise
the chances of social rehabilitation of
the convicted
person must be as limited as possible, the use of infor-
mation transmitted under this Decision for use otherwise
than in the course of criminal proceedings can be limited
in accordance with the national
the
requested State and the requesting State.

legislation of

(11)

This Decision respects
rights and
the
observes the principles recognised by Article 6 of the
Treaty on European Union and restated by the Charter
of Fundamental Rights of the European Union.

fundamental

(12)

This Decision does not have the effect of obliging
Member States to register convictions or information in
criminal matters in their criminal record other than those
which they are obliged to register according to national
law.

(13)

This Decision does not apply to the transmission of
rulings or copies thereof,

(1) OJ C 197, 12.7.2000, p. 1.

HAS DECIDED AS FOLLOWS:

Article 1

Central authority

1.
For the purposes of Articles 2 and 3, each Member State
shall designate a central authority. However, for sending infor-
mation under Article 2 and replying to requests under Article 3
Member States may designate one or more central authorities.

Each Member State shall inform the General Secretariat of
2.
the Council and the Commission of the authority designated in
accordance with paragraph 1. The General Secretariat of the
Council shall notify the Member States and Eurojust of this
information.

Article 2

Own-initiative information on convictions

Each central authority shall, without delay, inform the central
authorities of the other Member States of criminal convictions
and subsequent measures in respect of nationals of
those
record. Where the
Member States entered in the criminal
person concerned is a national of two or more other Member
States, the information shall be given to each of these Member
States, unless the person is a national of the Member State in
the territory of which he has been convicted.

Article 3

Request for information on convictions

the central authority may,

records of a
1. Where information from the criminal
in
Member State is
requested,
accordance with national
for extracts
from, and information relating to, criminal records to the
central authority of another Member State. All
information
requests shall be sent on the basis of the request form set out
in the Annex hereto.

law, send a request

When a person requests information on his or her criminal
record, the central authority of the Member State where this
request is made, may in accordance with national law send a
request for extracts from, and information relating to, criminal
records to the central authority of another Member State if the
person concerned is or has been a resident or a national of the
requesting or the requested Member State.

The reply shall be sent immediately and,

2.
in any event
within a period not exceeding 10 working days from the
receipt of the request, under the conditions provided for by
law, regulations or practice by the central authority
national
of the requested Member State, to the central authority of the
requesting Member State on the basis of the form set out in the
Annex hereto.
include the information received in
accordance with Article 2 and registered in the criminal
record of the requested Member State.

It shall

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If the request is made for the person concerned in accordance
with paragraph 1, second subparagraph, the period referred to
in the first subparagraph of this paragraph shall not exceed 20
working days from the receipt of the request.

3. Where the requested Member State needs further infor-
mation to identify the person to whom the request refers,
it
shall
immediately consult with the requesting Member State
with a view to providing a reply within 10 working days of
receipt of the additional information sought.

4.
The reply shall be accompanied by a statement of
convictions, under the conditions provided for by national law.

5.
Requests, replies and other relevant information may be
transmitted by any means capable of producing a written record
under conditions allowing the receiving Member State to
establish authenticity.

Article 4

Conditions for the use of personal data

the
Personal data communicated under Article 3 for
1.
purpose of criminal proceedings may be used by the requesting
Member State only for the purpose of the criminal proceedings
for which it has been requested as specified in the form set out
in the Annex hereto.

2.
Personal data communicated under Article 3 for purposes
other than criminal proceedings, may be used by the requesting
Member State in accordance with its national law only for the
purpose for which it has been requested and within the limits
specified by the requested Member State in the form.

3.
This Article does not apply to personal data obtained by a
Member State under this Decision and originating from that
Member State.

the European Communities that it accepts. The General Secre-
tariat of the Council shall notify the Member States of this
information.

Article 6

Relationship to other legal instruments

to the Member States,

1. With respect
this Decision
supplements and facilitates the implementation of Articles 13
and 22 of the European Convention on Mutual Assistance in
Criminal Matters of 20 April 1959, its additional Protocols of
17 March 1978 (1) and 8 November 2001 (2), the Convention
on Mutual Assistance in Criminal Matters between the Member
the European Union of 29 May 2000 (3) and its
States of
Protocol of 16 October 2001 (4).

2.
For the purpose of this Decision, Member States shall
waive the right to rely among themselves on their reservations
to Article 13 of the European Convention on Mutual Assistance
in Criminal Matters of 20 April 1959. This Decision shall not
affect reservations made with respect
that
Convention. Such reservations may be invoked with respect
to Article 2 of this Decision.

to Article 22 of

3.
This Decision shall not affect the application of more
favourable provisions in bilateral or multilateral agreements
between Member States.

Article 7

Implementation

Member States
implement
possible and in any event no later than 21 May 2006.

this Decision as

shall

soon as

Article 8

Application

Article 5

Languages

This Decision shall take effect on the day of its publication in
the Official Journal of the European Union.

the official

language, or one of

The form shall be sent by the requesting Member State in the
official
the
requested Member State. The requested Member State shall
languages or in another
its official
reply either in one of
language agreeable to both Member States. Any Member State
may, at the time of the adoption of this Decision or at a later
date, indicate, in a statement to the General Secretariat of the
Council, which are the official languages of the institutions of

languages of

Done at Brussels, 21 November 2005.

For the Council
The President

J. STRAW

(1) Council of Europe, European Treaty Series, No 99.
(2) Council of Europe, European Treaty Series, No 182.
(3) OJ C 197, 12.7.2000, p. 3.
(4) OJ C 326, 21.11.2001, p. 1.

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ANNEX

Form referred to in Articles 3, 4 and 5 of Council Decision 2005/876/JHA of 21 November 2005 on the
exchange of information extracted from the criminal record

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