Initiative of the Kingdom of Belgium with a view to adopting Council Framework Decision 2008/…/JHA of … on the recognition and enforcement of prohibitions arising from convictions for sexual offences committed against children
Date: 2007-12-07
Institutions: Belgium
Subjects: child pornography, child protection, criminal procedure, exchange of information, exclusion from public-sector employment, paedophilia

C 295/18

EN

Official Journal of the European Union

7.12.2007

III

(Preparatory Acts)

COUNCIL

Initiative of the Kingdom of Belgium with a view to adopting Council Framework Decision
2008/…/JHA of … on the recognition and enforcement of prohibitions arising from convictions for
sexual offences committed against children

(2007/C 295/07)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particu-
lar Article 31(1)(a) and Article 34(2)(b) thereof,

Having regard to the initiative of the Kingdom of Belgium,

Having regard to the Opinion of the European Parliament (1),

Whereas:

(1)

(2)

(3)

It is the European Union's objective to provide citizens
with a high level of safety within an area of freedom,
security and justice.

The European Council, meeting in Tampere on 15 and
16 October 1999, stressed that the principle of mutual
recognition should become the cornerstone of judicial
cooperation in both civil and criminal matters within the
Union.

being

On 29 November 2000 the Council adopted the
Programme of measures to implement the principle of
mutual
recognition of decisions in criminal matters.
According to point 3.4 of the Programme, concerning
disqualifications and similar sanctions, the effectiveness
of certain sanctions in the European context depends on
their
throughout
the Union. In that context, the Council set it as a priority
to draw up one or more instruments
(Measure 22)
enabling such 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 disqualifi-
cation.

recognised

enforced

and

(4)

(5)

(6)

Given that a prohibition is generally imposed either
because of the gravity of the offence committed or in
order to prevent the commission of further offences by
the convicted person,
it is genuinely desirable that the
prohibition be enforceable in any other Member State in
whose territory the person is resident.

Combating sexual exploitation of children and child
pornography, and in particular combating risks of recidi-
vism in this context, should be a priority for the Union.
In this particular area Council Framework Decision
2004/68/JHA of 22 December 2003 on combating the
sexual exploitation of children and child pornography (2)
established,
in accordance with the principle of subsi-
diarity, a minimum common Union approach to such
criminal offences,
in particular as regards the types of
penalty and prohibition that should be provided for by
national legislation. The principle of mutual recognition
should be applicable to temporary or permanent prohibi-
tion from exercising professional activities related to the
supervision of children, such prohibition being expressly
provided for by Framework Decision 2004/68/JHA,
where it is consequent upon a criminal conviction for
one of the offences connected to the sexual exploitation
of children and child pornography.

Awareness of the existence of such a prohibition in one
Member State is a prerequisite for its recognition and
interna-
enforcement in another Member State. Several
instruments govern the exchange of information
tional
on convictions,
in particular the European Convention
on Mutual Assistance in Criminal Matters of 20 April
1959, which provides that each Contracting Party is to
inform any other Party of all criminal convictions and
subsequent measures, entered in the judicial records in
respect of nationals of the latter Party. It is necessary to
improve the existing legal
framework for exchanging
information on the prohibitions associated with convic-
tions for sexual offences committed against children,

(1) Opinion of …

(2) OJ L 13, 20.1.2004, p. 44.

7.12.2007

EN

Official Journal of the European Union

C 295/19

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 4

TITLE I

SCOPE

Article 1

Purpose

1.
This Framework Decision shall apply to the offences
covered by Articles 2, 3 and 4 of Framework Decision
2004/68/JHA.

2.
Its purpose is to establish the rules under which Member
States shall recognise and enforce in their territory prohibitions
arising from convictions for such offences.

This Framework Decision shall not have the effect of
fundamental rights and
legal principles as enshrined in Article 6 of the

3.
modifying the obligation to respect
fundamental
Treaty.

Article 2

Definitions

For the purposes of this Framework Decision:

(a) ‘conviction’ means any final decision by a criminal court
establishing that a person is guilty of a criminal offence;

(b) ‘criminal record’ means the national register or registers
recording convictions in accordance with national law;

(c) ‘prohibition’ means a temporary or permanent ban on exer-
cising professional activities related to the supervision of
children, referred to in Article 5(3) of Framework Deci-
sion 2004/68/JHA, arising from a conviction for an offence
referred to in Article 1(1) of this Framework Decision;

(d) ‘central authority’ means the authority designated under
Article 1 of Council Decision 2005/876/JHA on the
criminal
exchange of
record (1);

information extracted from the

(e) ‘issuing State’ means the Member State in which the convic-

tion was handed down;

(f) ‘enforcing State’ means the Member State, other than that in
which the conviction was handed down, on whose territory
the convicted person resides.

TITLE II

INFORMATION ON PROHIBITIONS

Article 3

Registration obligation

Member States shall take the necessary steps to ensure that any
prohibition is registered in the criminal record.

(1) OJ L 322, 9.12.2005, p. 33.

Obligation to pass on information

1. When the central authority of the issuing State passes on
criminal record information to another Member State under the
applicable international rules on mutual
legal assistance in
criminal matters, it shall mention any prohibition in the excerpt
from the criminal record.

The central authority of the issuing State shall also indicate

2.
the duration of any prohibition.

Article 5

Obligation to request information

Where in application of this Framework Decision in accordance
with national law, information from the criminal records of a
Member State is requested, a request with a view to obtaining
such information on a national of another Member State shall
always be sent to the central authority of the Member State of
which the person concerned is a national.

TITLE III

PROCEDURE FOR ENFORCEMENT OF PROHIBITIONS

Article 6

Recognition and enforcement of a prohibition

any prohibition, without

The competent authority of

the enforcing State shall
1.
recognise
any formalities being
required, and shall enforce it, unless it decides to invoke one of
the grounds for non-recognition or non-enforcement provided
for in Article 7.

2. When an enforcing State is informed of the existence of a
prohibition, it shall forward that information to the competent
authority for the purposes of applying paragraph 1. The compe-
tent authority shall issue its decision within thirty days of such
information being forwarded.

Article 7

Reasons for non-recognition or non-enforcement

The competent authorities in the enforcing State may refuse to
recognise and enforce a prohibition only if:

(a) the penalty is time-limited under the law of the enforcing
State, where the offences concerned are subject to the juris-
diction of that State under its own criminal law;

(b) the conviction was handed down in default of appearance
and the person concerned was not summoned in person
nor otherwise informed of the date and location of the
hearing that led to the conviction handed down in default
of appearance;

(c) a conviction was handed down on the person concerned for

the same offences in the enforcing State.

C 295/20

EN

Official Journal of the European Union

7.12.2007

Article 8

Enforcement procedures

The competent authority of

1.
the enforcing State shall
enforce the prohibition without any formalities being required,
other than a reply on the basis of form referred to in Article 3(2)
of Decision 2005/876/JHA.

2.
If the duration of the prohibition exceeds the maximum
provided for by the national law of the enforcing State for the
same offence, the duration of the enforced prohibition shall be
reduced to that maximum.

Article 9

Legal remedy

Each Member State shall put

in place the necessary
1.
arrangements to ensure that the convicted person has a non-sus-
pensive legal remedy against the recognition and enforcement of
a prohibition pursuant to Article 6. The action shall be brought
before a court in the enforcing State in accordance with the
national law of that State.

The conviction itself and the sentence may not be chal-

2.
lenged before a court in the enforcing State.

If

the competent authority of

2.
the enforcing State is
informed of a subsequent measure affecting the prohibition in
accordance with paragraph 1,
it shall accordingly adapt the
measures taken pursuant to Article 6(1).

TITLE IV

FINAL PROVISIONS

Article 11

Implementation

1. Member States
comply with the provisions of
before …

shall

take the necessary measures

to
this Framework Decision

2. Member States shall, by the same date, transmit to the
General Secretariat of the Council and to the Commission the
law the
text of the provisions transposing into their national
obligations imposed on them under this Framework Decision.
On the basis of a report established using this information by
the Commission, the Council shall, before …, assess the extent
to which Member States have complied with the provisions of
this Framework Decision.

Article 12

Entry into force

Article 10

Subsequent changes

This Framework Decision shall enter into force on the day of its
publication in the Official Journal of the European Union.

The central authority of the issuing State shall inform the
1.
the enforcing State of any subsequent
central authority of
measure affecting the prohibition,
including review, pardon,
amnesty, rehabilitation and erasure. The central authority of the
enforcing State shall forward this information to the competent
authority for the purposes of applying Article 6(1).

Done at Brussels, …

For the Council

The President