Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings
Date: 2008-07-24
Institutions: Council of the European Union
Subjects: criminal procedure, exchange of information, judicial cooperation in criminal matters in the EU, national law, penalty

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Official Journal of the European Union

15.8.2008

III

(Acts adopted under the EU Treaty)

ACTS ADOPTED UNDER TITLE VI OF THE EU TREATY

COUNCIL FRAMEWORK DECISION 2008/675/JHA

of 24 July 2008

on taking account of convictions in the Member States of the European Union in the course of new
criminal proceedings

THE COUNCIL OF THE EUROPEAN UNION,

(3)

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

Having regard to the proposal from the Commission,

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

Whereas:

(1)

(2)

The European Union has set itself the objective of main­
taining and developing an area of freedom, security and
it be possible for
justice. This objective requires that
information on convictions handed down in the
Member States to be taken into account outside the
convicting Member State, both in order to prevent new
offences and in the course of new criminal proceedings.

On 29 November 2000 the Council, in accordance with
the conclusions of
the Tampere European Council,
adopted the programme of measures to implement the
principle of mutual recognition of decisions in criminal
matters (2), which 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
assessing the
offender’s criminal record and establishing whether he
has reoffended, and in order to determine the type of
sentence applicable and the arrangements for enforcing
it’.

the purposes of

for

(1) Opinion of 27 September 2006 (not yet published in the Official

Journal).

(2) OJ C 12, 15.1.2001, p. 10.

(4)

(5)

(6)

this

The purpose of this Framework Decision is to establish a
minimum obligation for Member States to take into
account convictions handed down in other Member
Framework Decision should not
States. Thus
in
prevent Member States from taking into account,
accordance with their law and when they have infor­
mation available, for example, final decisions of admi­
nistrative authorities whose decisions can be appealed
against
in the criminal courts establishing guilt of a
criminal offence or an act punishable under national
law by virtue of being an infringement of the rules of
law.

Some Member States attach effects to convictions handed
down in other Member States, whereas others take
account only of convictions handed down by their
own courts.

The principle that the Member States should attach to a
conviction handed down in other Member States effects
equivalent
to those attached to a conviction handed
down by their own courts in accordance with national
law should be affirmed, whether those effects be regarded
law as matters of fact or of procedural or
by national
substantive law. However, this Framework Decision does
not seek to harmonise the consequences attached by the
different national legislations to the existence of previous
convictions, and the obligation to take into account
previous convictions handed down in other Member
States exists only to the extent that previous national
law.
convictions are taken into account under national

this

to other

instruments,

In contrast
Framework
Decision does not aim at the execution in one Member
State of judicial decisions taken in other Member States,
but rather aims at enabling consequences to be attached
to a previous conviction handed down in one Member
State in the course of new criminal proceedings in
another Member State to the extent that such conse­
quences are attached to previous national convictions
under the law of that other Member State.

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Therefore this Framework Decision contains no obli­
gation to take into account such previous convictions,
for example,
in cases where the information obtained
under applicable instruments is not sufficient, where a
conviction would not have been possible
national
regarding the act
for which the previous conviction
had been imposed or where the previously imposed
sanction is unknown to the national legal system.

(7)

The effects of a conviction handed down in another
Member State should be equivalent to the effects of a
stage of criminal
national decision at
proceedings, at
the time of
the trial
execution of the sentence.

stage and at

the pre-trial

(8) Where,

in the course of criminal proceedings

in a
Member State,
information is available on a previous
conviction in another Member State, it should as far as
possible be avoided that the person concerned is treated
less favourably than if the previous conviction had been
a national conviction.

(9)

(10)

(11)

Article 3(5) should be interpreted, inter alia, in line with
recital 8, in such a manner that if the national court in
the new criminal proceedings, when taking into account
a previously imposed sentence handed down in another
Member State, is of the opinion that imposing a certain
level of sentence within the limits of national law would
be disproportionately harsh on the offender, considering
the
his or her circumstances, and if
it
punishment can be achieved by a lower sentence,
may reduce the level of sentence accordingly,
if doing
so would have been possible in purely domestic cases.

the purpose of

This Framework Decision is to replace the provisions of
Article 56 of the European Convention of 28 May 1970
on the International Validity of Criminal
Judgments,
concerning the taking into consideration of criminal
judgments, as between the Member States parties to
that Convention.

This Framework Decision respects the principle of subsi­
the Treaty on
diarity provided for by Article 2 of
European Union and Article 5 of the Treaty establishing
the European Community in so far as
to
approximate the laws and regulations of the Member
adequately by the
States, which cannot be done
Member
requires
concerted action in the European Union. In accordance
with the principle of proportionality, as set out
in
the Treaty establishing the European
Article 5 of
this Framework Decision does not go
Community,

unilaterally

it aims

acting

States

and

(12)

(13)

(14)

beyond what
objective.

is necessary in order

to achieve that

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

This Framework Decision respects the variety of domestic
solutions and procedures required for taking into account
a previous conviction handed down in another Member
State. The exclusion of a possibility to review a previous
conviction should not prevent a Member State from
issuing a decision,
in order to attach the
to such previous conviction.
equivalent
legal effects
However,
the procedures involved in issuing such a
decision should not, in view of the time and procedures
or formalities required, render it impossible to attach
equivalent
to a previous conviction handed
effects
down in another Member State.

if necessary,

Interference with a judgment or its execution covers, inter
alia, situations where, according to the national
law of
the second Member State, the sanction imposed in a
previous judgment is to be absorbed by or included in
another sanction, which is then to be effectively executed,
to the extent that the first sentence has not already been
executed or its execution has not been transferred to the
second Member State,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Subject matter

The purpose of this Framework Decision is to determine
1.
criminal
conditions under which,
the
proceedings in a Member State against a person, previous
convictions handed down against
same person for
different facts in other Member States, are taken into account.

course of

in the

the

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

2.
amending the obligation to respect
and fundamental
the Treaty.

Article 2

Definitions
For the purposes of this Framework Decision ‘conviction’ means
any final decision of a criminal court establishing guilt of a
criminal offence.

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Article 3

Taking into account,
proceedings,

in the course of new criminal
conviction handed down in another

a

Member State

1.
Each Member State shall ensure that in the course of
criminal proceedings against a person, previous convictions
handed down against the same person for different facts in
other Member States,
in respect of which information has
legal
been obtained under applicable instruments on mutual
assistance or on the exchange of information extracted from
criminal
extent
previous national convictions are taken into account, and that
equivalent legal effects are attached to them as to previous
national convictions, in accordance with national law.

taken into account

records,

to the

are

2.
Paragraph 1 shall apply at the pre-trial stage, at the trial
stage itself and at the time of execution of the conviction, in
particular with regard to the applicable rules of procedure,
including those relating to provisional detention, the definition
of the offence, the type and level of the sentence, and the rules
governing the execution of the decision.

3.
The taking into account of previous convictions handed
down in other Member States, as provided for in paragraph 1,
shall not have the effect of
revoking or
reviewing previous convictions or any decision relating to
their execution by the Member State conducting the new
proceedings.

interfering with,

4.
In accordance with paragraph 3, paragraph 1 shall not
apply to the extent that, had the previous conviction been a
national conviction of the Member State conducting the new
proceedings, the taking into account of the previous conviction
would, according to the national law of that Member State, have
had the effect of interfering with, revoking or reviewing the
previous conviction or any decision relating to its execution.

If

5.
the offence for which the new proceedings being
conducted was committed before the previous conviction had
been handed down or fully executed, paragraphs 1 and 2 shall
not have the effect of requiring Member States to apply their
national rules on imposing sentences, where the application of
those rules to foreign convictions would limit the judge in
imposing a sentence in the new proceedings.

However, the Member States shall ensure that in such cases
their
into account previous
convictions handed down in other Member States.

can otherwise

courts

take

Article 4

Relation to other legal instruments

replace Article 56 of

This Framework Decision shall
the
European Convention of 28 May 1970 on the International
Validity of Criminal Judgments as between the Member States
parties to that Convention, without prejudice to the application
of that Article in relations between the Member States and third
countries.

Article 5

Implementation

1. Member States
to
comply with the provisions of this Framework Decision by
15 August 2010.

take the necessary measures

shall

2. Member States shall communicate to the General Secre­
tariat 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.

3.
On the basis of that information the Commission shall, by
15 August 2011, present a report to the European Parliament
and the Council on the application of this Framework Decision,
accompanied if necessary by legislative proposals.

Article 6

Entry into force

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

Done at Brussels, 24 July 2008.

For the Council
The President

B. HORTEFEUX