Initiative of the Republic of Slovenia, the French Republic, the Czech Republic, the Kingdom of Sweden, the Slovak Republic, the United Kingdom and the Federal Republic of Germany with a view to adopting a Council Framework Decision 2008/…/JHA on the enforcement of decisions rendered in absentia and amending Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties, Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders, and Framework Decision 2008/…/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union
Date: 2008-02-26
Institutions: Czechia, France, Germany, Slovakia, Slovenia, Sweden, United Kingdom
Subjects: European arrest warrant, criminal law, criminal procedure, judicial cooperation in criminal matters in the EU, mutual recognition principle, rights of the defence

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III

(Preparatory Acts)

COUNCIL

Initiative of the Republic of Slovenia, the French Republic, the Czech Republic, the Kingdom of
Sweden, the Slovak Republic, the United Kingdom and the Federal Republic of Germany with a
view to adopting a Council Framework Decision 2008/…/JHA on the enforcement of decisions
rendered in absentia and amending Framework Decision 2002/584/JHA on the European arrest
warrant and the surrender procedures between Member States, Framework Decision 2005/214/JHA
on the application of the principle of mutual recognition to financial penalties, Framework Decision
2006/783/JHA on the application of the principle of mutual recognition to confiscation orders, and
Framework Decision 2008/…/JHA on the application of the principle of mutual recognition to judg-
ments in criminal matters imposing custodial sentences or measures involving deprivation of
liberty for the purpose of their enforcement in the European Union

(2008/C 52/01)

THE COUNCIL OF THE EUROPEAN UNION,

in absentia. This diversity complicates the work of the
practitioner and hampers judicial cooperation.

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 from the Republic of Slovenia,
the French Republic,
the Kingdom of
Sweden,
the United Kingdom and the
the Slovak Republic,
Federal Republic of Germany (1),

the Czech Republic,

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

Whereas:

(1)

The right for an accused person to be present during
hearings of the trial is a fundamental right provided in
the United Nations' International Covenant on Civil and
Political Rights (Article 14(3)(d)). The European Court of
Human Rights declared that it is included in the right to
a fair trial provided in Article 6 of the Convention for
the Protection of Human Rights and Fundamental Free-
doms.
It also declared that such right of the accused
person to be present during hearings is not absolute and
that under certain conditions the accused person may
waive the right to be present.

(2)

The various Framework Decisions implementing the prin-
ciple of mutual recognition of final judicial decisions do
not deal consistently with the issue of decisions rendered

(1) OJ C …
(2) OJ C …

(3)

(4)

(5)

satisfactory as

2006/783/JHA (4)

2005/214/JHA (3),

Solutions provided by these Framework Decisions are
regards cases where the person
not
could not be informed of the proceedings. Framework
Decisions
and
2008/…/JHA (5) allow the executing authority to refuse
the execution of such judgments. Framework Decision
2002/584/JHA (6) allows
the executing authority to
require the issuing authority to give an assurance deemed
adequate to guarantee the person who is the subject of
the European arrest warrant that he or she will have an
opportunity to apply for a retrial of
the case in the
issuing Member State and to be present at the judgment.
The adequacy of such guarantee is a matter to be decided
by the executing authority and it is therefore difficult to
know exactly when execution may be refused.

It is therefore necessary to provide clear and common
solutions which define the grounds for refusal and the
discretion left to the executing authority.

Such changes require amendment of the existing Frame-
work Decisions implementing the principle of mutual
recognition of final judicial decisions. The new provisions
should serve as a basis for future instruments in this
field.

(3) OJ L 76, 22.3.2005, p. 16.
(4) OJ L 328, 24.11.2006, p. 59.
(5) OJ L …
(6) OJ L 190, 18.7.2002, p. 1.

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(6)

(7)

Common solutions on grounds for refusal in the relevant
existing Framework Decisions should take into account
the diversity of situations with regard to informing the
accused person of his right to a retrial.

This Framework Decision is limited to the definition of
in instruments implementing the
grounds for refusal
principle of mutual recognition. Therefore, provisions
such as the definition of the concept of decision rendered
in absentia or rules on the right to a retrial have a scope
which is limited to the definition of these grounds for
refusal. They are not designed to harmonise national
legislation,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Objective and scope

The objective of this Framework Decision is to ensure the
1.
procedural rights of persons subject to criminal proceedings and
at the same time to facilitate judicial cooperation in criminal
matters and in particular to improve mutual recognition of judi-
cial decisions between Member States.

2.
This Framework Decision shall not have the effect of
modifying the obligation to respect
fundamental rights and
legal principles as enshrined in Article 6 of the
fundamental
Treaty, and any obligations incumbent upon judicial authorities
in this respect shall remain unaffected.

The scope of

this Framework Decision is to establish
3.
common rules for the recognition and/or execution of judicial
decisions in one Member State (the executing Member State)
issued by another Member State (the issuing Member State)
following proceedings where the person was not present,
according to the provisions in Article 5(1) of Framework Deci-
sion 2002/584/JHA,
in Article 7(2)(g) of Framework Deci-
sion 2005/214/JHA, in Article 8(2)(e) of Framework Decision
2006/783/JHA and Article 9(1)(f) of Framework Decision
2008/…/JHA.

1. the following paragraph shall be added to Article 1:

For the purpose of this Framework Decision, “decision
‘4.
rendered in absentia” shall mean a custodial sentence or a
detention order when the person did not personally appear
in the proceedings resulting in that decision.’;

2. the following Article shall be inserted:

‘Article 4a

Decisions rendered in absentia

The executing judicial authority may also refuse to execute
the purpose of
the European arrest warrant
executing a custodial sentence or a detention order,
if the
decision was rendered in absentia, unless the European arrest
warrant states that the person:

issued for

law of

(a) was summoned in person or informed in accordance
with the national
the issuing Member State
through a competent representative and in due time, of
the scheduled date and place of the hearing which led to
the decision rendered in absentia and informed about the
fact that such a decision may be handed down in case
the person does not appear for the trial;

(b) after being served with the decision rendered in absentia
and being expressly informed about the right to a retrial
and to be present at that trial:

(i) expressly stated that he or she does not contest the

decision rendered in absentia;

or

(ii) did not request a retrial in the applicable timeframe

which was of at least […] (*) days;

or

(c) was not personally served with the decision rendered in

absentia but:

(i) will be served with it at the latest on the fifth day
after the surrender and will be expressly informed
about the right to a retrial and to be present at that
trial;

Article 2

and

Amendments to Framework Decision 2002/584/JHA

(ii) will have at least […] (*) days to request a retrial.’;

Framework Decision 2002/584/JHA is hereby amended as
follows:

(*) Period to be provided.

3.

in Article 5, paragraph 1 shall be deleted;

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4.

in the Annex (EUROPEAN ARREST WARRANT), box (d) shall be replaced by the following:

‘(d) Indicate if the decision was rendered in absentia:

1.

2.

No, it was not.

Yes, it was. If you have answered yes, please confirm that:

2.1.

the person was summoned in person or informed in accordance with the national law of
the issuing Member State through a competent representative and in due time, of the
scheduled date and place of the hearing which led to the decision rendered in absentia
and informed about the fact that such a decision may be handed down in case the
person does not appear for the trial

Time and place when and where the person was summoned or otherwise informed:

.....................................................................................................................

Describe how the person was informed:

.....................................................................................................................

or

2.2.

the person, after being served with the decision rendered in absentia, expressly stated that
he or she does not contest the decision rendered in absentia

Describe when and how the person expressly stated that he or she does not contest the decision
rendered in absentia:

.....................................................................................................................

or

2.3.

the person was entitled to a retrial under the following conditions:

2.3.1.

the person was personally served with the decision rendered in absentia on …
(day/month/year), and

— the person was expressly informed about the right to a retrial and to be

present at that trial, and

— after being informed of this right, the person had … days to request a

retrial and he or she did not request it during this period.

or

2.3.2.

the person was not served with the decision rendered in absentia, and

— the person will be served with the decision rendered in absentia within …

days after the surrender, and

— when served with the decision rendered in absentia, the person will be
expressly informed about the right to a retrial and to be present at that
trial, and

— after being served with the decision rendered in absentia, the person will

have … days to request a retrial.’

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Article 3

Amendments to Framework Decision 2005/214/JHA

Framework Decision 2005/214/JHA is hereby amended as follows:

1. the following point shall be added to Article 1:

‘(e) “Decision rendered in absentia” shall mean a decision as defined in (a) when the person did not

personally appear in the proceedings resulting in that decision.’;

2. Article 7(2) is hereby amended as follows:

(a) point (g) shall be replaced by the following:

‘(g) according to the certificate provided for in Article 4, the person concerned, in case of a written
procedure was not,
informed personally or
in accordance with the law of the issuing State,
through a representative, competent according to national law, of his right to contest the case
and of time limits of such a legal remedy;’;

(b) the following point shall be added:

‘(i) according to the certificate provided for in Article 4, the decision was rendered in absentia, unless

the certificate states that the person:

(i) was summoned in person or informed in accordance with the national law of the issuing
State through a competent representative and in due time, of the scheduled date and place of
the hearing which led to the decision rendered in absentia and informed about the fact that
such a decision may be handed down in case the person does not appear for the trial; or

(ii) expressly stated to a competent authority that he or she does not contest the case; or

(iii) after being served with the decision rendered in absentia and being informed about the right

to a retrial and to be present at that trial:

— expressly stated that he or she does not contest the decision rendered in absentia,

or

— did not request a retrial in the applicable timeframe which was of at least […] (*) days.’;

3.

in box (h) of the Annex (certificate), point 3 is replaced by the following:

‘3. Indicate if the decision was rendered in absentia:

1.

2.

No, it was not.

Yes, it was. If you have answered yes, please confirm that:

2.1.

the person was summoned in person or informed in accordance with the national law of
the issuing State through a competent representative and in due time, of the scheduled
date and place of the hearing which led to the decision rendered in absentia and informed
about the fact that such a decision may be handed down in case the person does not
appear for the trial

Time and place when and where the person was summoned or otherwise informed:

.....................................................................................................................

Describe how the person was informed:

.....................................................................................................................

or

(*) Period to be provided.

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2.2.

the person, before or after being served with the decision rendered in absentia, expressly
stated that he or she does not contest the decision rendered in absentia

Describe when and how the person expressly stated that he or she does not contest the decision
rendered in absentia:

.....................................................................................................................

or

2.3.

the person was served with the decision rendered in absentia on … (day/month/year) and
was entitled to a retrial in the issuing State under the following conditions:

— the person was expressly informed about the right to a retrial and to be present at

that trial, and

— after being informed of this right, the person had … days to request a retrial and

did not request it during this period.’

Article 4

Amendments to Framework Decision 2006/783/JHA

Framework Decision 2006/783/JHA is hereby amended as follows:

1. the following point shall be added to Article 2:

‘(i) “Decision rendered in absentia” shall mean a confiscation order as defined in (c) when the person did

not personally appear in the proceedings resulting in that decision.’;

2.

in Article 8(2), point (e) shall be replaced by the following:

‘(e) according to the certificate provided for in Article 4(2), the decision was rendered in absentia, unless

the certificate states that the person:

(i) was summoned in person or informed in accordance with the national law of the issuing State
through a competent representative and in due time, of the scheduled date and place of the
hearing which led to the confiscation order rendered in absentia and informed about the fact that
such a confiscation order may be handed down in case the person does not appear for the trial;

or

(ii) after being served with the confiscation order rendered in absentia and being informed about the

right to a retrial and to be present at that trial:

— expressly stated that he she does not contest the confiscation order,

or

— did not request a retrial in the applicable timeframe which was of at least […] (*) days.’;

(*) Period to be provided.

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3.

in the Annex (certificate), box (j) shall be replaced by the following:

‘(j) Indicate if the decision was rendered in absentia:

1.

2.

No, it was not.

Yes, it was. If you have answered yes please confirm that:

2.1.

the person was summoned in person or informed in accordance with the national law of
the issuing State through a competent representative and in due time, of the scheduled
date and place of the hearing which led to the decision rendered in absentia and informed
about the fact that such a decision may be handed down in case the person does not
appear for the trial

Time and place when and where the person was summoned or otherwise informed:

.....................................................................................................................

Describe how the person was informed:

.....................................................................................................................

or

2.2.

the person, after being served with the decision rendered in absentia, expressly stated that
he or she does not contest the decision rendered in absentia

Describe when and how the person expressly stated that he or she does not contest the decision
rendered in absentia:

.....................................................................................................................

or

2.3.

the person was served with the decision rendered in absentia on … (day/month/year) and
was entitled to a retrial in the issuing State under the following conditions:

— the person was expressly informed about the right to a retrial and to be present at

that trial, and

— after being informed of this right, the person had … days to request a retrial and

did not request it during this period.’

Article 5

Amendments to Framework Decision 2008/…/JHA

Framework Decision 2008/…/JHA is hereby amended as follows:

1. the following point shall be added to Article 1:

‘(e) “Decision rendered in absentia” shall mean a judgment as defined in (a) when the person did not

personally appear in the proceedings resulting in that decision.’;

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2.

in Article 9(1), point (f) shall be replaced by the following:

‘(f) according to the certificate provided for in Article 4, the decision was rendered in absentia, unless the

certificate states that the person:

(i) was summoned in person or informed in accordance with the national law of the issuing State
through a competent representative and in due time, of the scheduled date and place of the
hearing which led to the decision rendered in absentia and informed about the fact that such a
decision may be handed down in case the person does not appear for the trial;

or

(ii) after being served with the decision rendered in absentia and being informed about the right to a

retrial and to be present at that trial:

— expressly stated that he or she does not contest the decision rendered in absentia,

or

— did not request a retrial in the applicable timeframe which was of at least […] (*) days.’;

3.

in box (k) of the Annex (certificate), point 1 shall be replaced by the following:

‘1. Indicate if the decision was rendered in absentia:

a.

b.

No, it was not.

Yes, it was. If you have answered yes please confirm that:

b.1.

the person was summoned in person or informed in accordance with the national law of
the issuing State through a competent representative and in due time, of the scheduled
date and place of the hearing which led to the decision rendered in absentia and informed
about the fact that such a decision may be handed down in case the person does not
appear for the trial

Time and place when and where the person was summoned or otherwise informed:

.....................................................................................................................

Describe how the person was informed:

.....................................................................................................................

or

b.2.

the person, after being served with the decision rendered in absentia, expressly stated that
he or she does not contest the decision rendered in absentia

Describe when and how the person expressly stated that he or she does not contest the decision
rendered in absentia:

.....................................................................................................................

or

(*) Period to be provided.

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b.3.

the person was served with the decision rendered in absentia on … (day/month/year) and
was entitled to a retrial in the issuing State under the following conditions:

— the person was expressly informed about the right to a retrial and to be present at

that trial, and

— after being informed of this right, the person had … days to request a retrial and

did not request it during this period.’

Article 6

Implementation

1. Member States shall take the necessary measures to comply with the provisions of this Framework
Decision by … (*).

2. Member States shall transmit to the General Secretariat of the Council and to the Commission the text
of the provisions transposing into their national law the obligations imposed on them under this Framework
Decision.

Article 7

Review

By … (**), the Commission shall draw up a report on the basis of the information received from the

1.
Member States pursuant to Article 6.

2.

On the basis of the report referred to in paragraph 1, the Council shall assess:

(a) the extent to which Member States have taken the necessary measures in order to comply with this

Framework Decision; and

(b) the application of this Framework Decision.

3.

The report referred to in paragraph 1 shall be accompanied, where necessary, by legislative proposals.

Article 8

Entry into force

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

Done at Brussels, …

For the Council

The President

…

(*) 18 months after the date of entry into force of this Framework Decision.
(**) Date to be provided.