Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions
Date: 2008-11-27
Institutions: Council of the European Union
Subjects: alternative sentence, conditional discharge, criminal procedure, equal treatment, fundamental rights, judicial cooperation in criminal matters in the EU, police cooperation

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III

(Acts adopted under the EU Treaty)

ACTS ADOPTED UNDER TITLE VI OF THE EU TREATY

COUNCIL FRAMEWORK DECISION 2008/947/JHA

of 27 November 2008

on the application of the principle of mutual recognition to judgments and probation decisions with
a view to the supervision of probation measures and alternative sanctions

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the initiative of
Germany and of the French Republic (1),

the Federal Republic of

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

(3)

Whereas:

(1)

itself

the objective of
The European Union has set
freedom, security and justice.
developing an area of
there is an understanding of
This presupposes
that
the
freedom,
essential
in its
Member States which is
elements and based on the principles of
freedom,
democracy, respect for human rights and fundamental
freedoms, as well as the rule of law.

security and justice on the part of

identical

recognition of

in the Hague

judicial decisions,
principle of mutual
established in the conclusions of the European Council
meeting in Tampere on 15 and 16 October 1999 and
reaffirmed
Programme of 4 and
5 November 2004 for strengthening freedom, security
and
the
programme of measures of 29 November 2000
adopted for the purpose of implementing the principle
of mutual recognition of decisions in criminal matters,
the Council pronounced itself in favour of cooperation in
the area of suspended sentences and parole.

European Union (3).

justice

the

In

in

2008/909/JHA

Framework Decision

sentences or measures

Council
of
27 November 2008 on the application of the principle
of mutual recognition to judgments in criminal matters
imposing custodial
involving
deprivation of liberty for the purpose of their enforce­
ment in the European Union (4) concerns the mutual
recognition and enforcement of custodial sentences or
measures
Further
common rules are required, in particular where a non-
custodial sentence involving the supervision of probation
measures or alternative sanctions has been imposed in
respect of a person who does not have his lawful and
ordinary residence in the State of conviction.

involving deprivation of

liberty.

(2)

The aim of police and judicial cooperation in the
European Union is to provide a high degree of security
for all citizens. One of the cornerstones for this is the

(4)

The Council of Europe Convention of 30 November
1964 on the Supervision of Conditionally Sentenced or
Conditionally Released Offenders has been ratified by
only 12 Member States, with, in some cases, numerous
reservations. The present Framework Decision provides
for a more effective instrument because it is based on
the principle of mutual recognition and all Member
States participate.

(1) OJ C 147, 30.6.2007, p. 1.
(2) Opinion of 25 October 2007 (not yet published in the Official

Journal).

(3) OJ C 53, 3.3.2005, p. 1.
(4) OJ L 327, 5.12.2008, p. 27.

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(5)

(6)

(7)

(8)

(9)

This Framework Decision respects fundamental rights
and adheres to the principles recognised in Article 6 of
the Treaty on European Union, which are also expressed
in the Charter of Fundamental Rights of the European
Union, especially in Chapter VI thereof. No provision of
this Framework Decision should be interpreted as prohi­
biting refusal to recognise a judgment and/or supervise a
probation measure or alternative sanction if there are
objective reasons to believe that the probation measure
or alternative sanction was imposed to punish a person
because of his or her sex, race, religion, ethnic origin,
nationality, language, political opinions or sexual orien­
tation or that this person might be disadvantaged for one
of these reasons.

any
This Framework Decision should not prevent
Member State from applying its constitutional
rules
relating to entitlement to due process, freedom of asso­
ciation, freedom of the press, freedom of expression in
other media and freedom of religion.

The provisions of this Framework Decision should be
the Union’s
applied in conformity with the right of
citizens to move and reside freely within the territory
of the Member States, pursuant to Article 18 of the
Treaty establishing the European Community.

The aim of mutual
recognition and supervision of
suspended sentences, conditional sentences, alternative
sanctions and decisions on conditional
release is to
enhance the prospects of the sentenced person’s being
reintegrated into society, by enabling that person to
preserve family,
linguistic, cultural and other ties, but
compliance with
also to improve monitoring of
probation measures and alternative sanctions, with a
view to preventing recidivism, thus paying due regard
to the protection of victims and the general public.

There are several types of probation measures and alter­
native sanctions which are common among the Member
States and which all Member States are in principle
willing to supervise. The supervision of these types of
measures and sanctions should be obligatory, subject to
certain exceptions provided for
in this Framework
in addition,
Decision. Member States may declare that,
they are willing to supervise other types of probation
measures and/or other types of alternative sanctions.

(10)

The probation measures and alternative sanctions that
inter
are,
in principle, obligatory to supervise include,
alia, orders relating to behaviour (such as an obligation

to stop the consumption of alcohol), residence (such as
an obligation to change residence for reasons of domestic
violence), education and training (such as an obligation
to follow a ‘safe-driving course’), leisure activities (such as
an obligation to cease playing or attending a certain
sport) and limitations on or modalities of carrying out
a professional activity (such as an obligation to seek a
professional activity in a different working environment;
include the supervision of
this obligation does not
disqualifications
compliance with
imposed on the person as part of the sanction).

professional

any

(11) Where appropriate, electronic monitoring could be used
with a view to supervising probation measures or alter­
native sanctions,
law and
procedures.

in accordance with national

(12)

(13)

(14)

forward

judgment

The Member State where the person concerned is
sentenced may
and, where
a
applicable, a probation decision to the Member State
where the sentenced person is lawfully and ordinarily
resident with a view to the recognition thereof and to
the supervision of probation measures or alternative
sanctions contained therein.

The decision on whether to forward the judgment and,
where applicable,
the probation decision to another
Member State should be taken in each individual case
by the competent authority of
the issuing Member
the declarations
taking into account,
State,
made in accordance with Articles 5(4), 10(4) and 14(3).

inter alia,

set out

The judgment and, where applicable,
the probation
decision may also be forwarded to a Member State
other than that where the sentenced person is residing,
if the competent authority of that executing State, taking
account of any conditions
in the relevant
declaration made by that State in accordance with this
Framework Decision, consents to such forwarding.
In
particular, consent may be given, with a view to social
sentenced person, without
rehabilitation, where
losing his/her right of residence,
intends to move to
another Member State because he/she is granted an
employment contract,
if he/she is a family member of
a lawful and ordinary resident person of that Member
State, or if he/she intends to follow a study or training in
that Member State, in accordance with Community law.

the

(15) Member States should apply their own national law and
procedures for the recognition of a judgment and, where
applicable, a probation decision. In the case of a condi­
the
alternative
tional

sanction where

sentence or

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sentence or
judgment does not contain a custodial
measure involving deprivation of liberty to be enforced
in case of non-compliance with the obligations or
instructions concerned,
this could imply that having
made the relevant declaration in accordance with this
Framework Decision, Member States, when deciding to
recognise, agree to supervise the probation measures or
alternative sanctions concerned and to assume no other
responsibility than just
subsequent
for
decisions consisting of the modification of obligations
or instructions contained in the probation measure or
alternative sanction, or modification of the duration of
the probation period. Consequently, the recognition has,
than to enable the
in such cases, no further effect
subsequent
executing State to take those types of
decisions.

taking the

sanctions, and subsequent
measures and alternative
decisions in case, notably, of non-compliance with a
probation measure or alternative sanction.

(20)

In view of the principle of mutual recognition, on which
this Framework Decision is based, issuing and executing
Member States should promote direct contact between
their competent authorities in the application of
this
Framework Decision.

(16) A Member State may refuse to recognise a judgment and,
where applicable, a probation decision, if the judgment
concerned was issued against a person who has not been
found guilty, such as in the case of a mentally ill person,
and the judgment or, where applicable, the probation
decision provides
treatment
which the executing State cannot supervise in respect
of such persons under its national law.

for medical/therapeutic

(21) All Member States should ensure that sentenced persons,
in respect of whom decisions under this Framework
Decision are taken, are subject to a set of legal rights
law,
and remedies in accordance with their national
regardless
authorities
of whether
designated to take decisions under
this Framework
Decision are of a judicial or a non-judicial nature.

competent

the

(22) All

a

conditional

subsequent decisions

suspended
an alternative
sentence,
sanction which result in the imposition of a custodial
sentence or measure involving deprivation of
liberty
should be taken by a judicial authority.

relating
sentence or

to a

(17)

(18)

(19)

The ground for refusal relating to territoriality should be
applied only in exceptional cases and with a view to
cooperating to the greatest extent possible under the
provisions of
this Framework Decision, while taking
into account of the objectives thereof. Any decision to
apply this ground for refusal should be based on a case-
by-case analysis and on consultations between the
competent authorities of the issuing and executing States.

If the probation measures or alternative sanctions include
community service, then the executing State should be
entitled to refuse to recognise the judgment and, where
applicable,
the community
service would normally be completed in less than six
months.

the probation decision if

(23)

(24)

The form of the certificate is drafted in such a way so
the judgment and, where
that essential elements of
applicable, of the probation decision are comprised in
the certificate, which should be translated into the
official language or one of the official languages of the
the
executing
competent authorities in the executing State in taking
decisions under
including
decisions on recognition and assumption of responsi­
bility for supervision of probation measures and alter­
native sanctions, decisions on adaptation of probation

this Framework Decision,

State. The

certificate

should

assist

Since all Member States have ratified the Council of
the
Europe Convention of 28 January 1981 for
Protection of
Individuals with regard to Automatic
Processing of Personal Data, personal data processed
when implementing this Framework Decision should be
protected in accordance with the principles laid down in
that Convention.

application of

and facilitating the

Since the objectives of this Framework Decision, namely
facilitating the social rehabilitation of sentenced persons,
improving the protection of victims and of the general
public,
suitable
probation measures and alternative sanctions in case of
offenders who do not live in the State of conviction,
cannot be sufficiently achieved by the Member States
themselves in view of the cross-border nature of the
situations involved and can therefore, by reason of the
scale of the action, be better achieved at Union level, the
Union may adopt measures,
in accordance with the
principle of subsidiarity as defined in Article 5 of the
Treaty establishing the European Community as applied
by the second paragraph of Article 2 of the Treaty on
European Union.
In accordance with the principle of
proportionality, as set out in Article 5 of the Treaty
establishing the European Community, this Framework
Decision does not go beyond what
is necessary in
order to achieve those objectives,

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HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Objectives and scope

This Framework Decision aims at facilitating the social
1.
rehabilitation of sentenced persons,
improving the protection
of victims and of the general public, and facilitating the appli­
cation of suitable probation measures and alternative sanctions,
in case of offenders who do not live in the State of conviction.
With a view to achieving these objectives,
this Framework
Decision lays down rules according to which a Member State,
other than the Member State in which the person concerned has
been sentenced, recognises judgments and, where applicable,
probation
probation measures
imposed on the basis of a judgment, or alternative sanctions
contained in such a judgment, and takes all other decisions
judgment, unless otherwise provided for in
relating to that
this Framework Decision.

supervises

decisions

and

Article 2

Definitions

For the purposes of this Framework Decision:

1.

‘judgment’ shall mean a final decision or order of a court of
the issuing State, establishing that a natural person has
committed a criminal offence and imposing:

(a) a custodial sentence or measure involving deprivation of
liberty, if a conditional release has been granted on the
basis of that judgment or by a subsequent probation
decision;

(b) a suspended sentence;

2.

This Framework Decision shall apply only to:

(c) a conditional sentence;

(a)

the
recognition of
probation decisions;

judgments

and, where

applicable,

(d) an alternative sanction;

(b) the

transfer of

responsibility for

the

supervision of

2.

probation measures and alternative sanctions;

(c) all other decisions related to those under (a) and (b);

as described and provided for in this Framework Decision.

3.

This Framework Decision shall not apply to:

(a)

the execution of judgments in criminal matters imposing
custodial sentences or measures involving deprivation of
liberty which fall within the scope of Framework Decision
2008/909/JHA;

(b) recognition and execution of financial penalties and confis­
cation orders which fall within the scope of Council
Framework Decision 2005/214/JHA of 24 February 2005
on the application of the principle of mutual recognition to
financial penalties (1) and Council Framework Decision
2006/783/JHA of 6 October 2006 on the application of
the principle of mutual
recognition to confiscation
orders (2).

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

4.
modifying the obligation to respect
fundamental
Treaty on European Union.

‘suspended sentence’ shall mean a custodial sentence or
measure involving deprivation of liberty, the execution of
which is conditionally suspended, wholly or in part, when
the sentence is passed by imposing one or more probation
measures. Such probation measures may be included in the
judgment
itself or determined in a separate probation
decision taken by a competent authority;

3.

‘conditional sentence’ shall mean a judgment in which the
imposition of a sentence has been conditionally deferred by
imposing one or more probation measures or in which one
or more probation measures are imposed instead of a
custodial
sentence or measure involving deprivation of
liberty. Such probation measures may be included in the
judgment
itself or determined in a separate probation
decision taken by a competent authority;

4.

‘alternative sanction’ shall mean a sanction, other than a
sentence, a measure involving deprivation of
custodial
imposing an obligation or
liberty or a financial penalty,
instruction;

5.

‘probation decision’
decision of a competent authority of
taken on the basis of such judgment:

shall mean a judgment or a final
the issuing State

(a) granting a conditional release; or

(1) OJ L 76, 22.3.2005, p. 16.
(2) OJ L 328, 24.11.2006, p. 59.

(b) imposing probation measures;

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6.

7.

release’

‘conditional
shall mean a final decision of a
competent authority or stemming from the national
law
on the early release of a sentenced person after part of the
sentence or measure involving deprivation of
custodial
imposing one or more
liberty has been served by
probation measures;

(b) an obligation not

to enter certain localities, places or

defined areas in the issuing or executing State;

(c) an obligation containing limitations on leaving the territory

of the executing State;

‘probation measures’ shall mean obligations and instructions
imposed by a competent authority on a natural person, in
accordance with the national
in
connection with a
conditional
sentence or a conditional release;

law of the issuing State,

suspended sentence,

a

(d)

instructions relating to behaviour, residence, education and
training,
leisure activities, or containing limitations on or
modalities of carrying out a professional activity;

(e) an obligation to report at specified times to a specific

8.

‘issuing State’ shall mean the Member State in which a
judgment is delivered;

authority;

9.

‘executing State’ shall mean the Member State in which the
probation measures and alternative sanctions are supervised
following a decision in accordance with Article 8.

Article 3

Designation of competent authorities

1.
Each Member State shall inform the General Secretariat of
the Council which authority or authorities, under its national
law, are competent to act according to this Framework Decision
in the situation where that Member State is the issuing State or
the executing State.

(f) an obligation to avoid contact with specific persons;

(g) an obligation to avoid contact with specific objects, which
have been used or are likely to be used by the sentenced
person with a view to committing a criminal offence;

(h) an obligation to compensate financially for the prejudice
caused by the offence and/or an obligation to provide
proof of compliance with such an obligation;

(i) an obligation to carry out community service;

2. Member States may designate non-judicial authorities as
this
for
the competent authorities
Framework Decision, provided that
such authorities have
competence for taking decisions of a similar nature under
their national law and procedures.

taking decisions under

(j) an obligation to cooperate with a probation officer or with
a representative of a social service having responsibilities in
respect of sentenced persons;

3.
If a decision under Article 14(1)(b) or (c) is taken by a
competent authority other than a court, the Member States shall
ensure that, upon request of
such
decision may be reviewed by a court or by another independent
court-like body.

the person concerned,

The General Secretariat of the Council shall make the
4.
information received available to all Member States and to the
Commission.

(k) an obligation to undergo therapeutic treatment or treatment

for addiction.

Each Member State shall notify the General Secretariat of
2.
the Council, when implementing this Framework Decision,
which probation measures and alternative sanctions, apart
from those referred to in paragraph 1,
is prepared to
supervise. The General Secretariat of the Council shall make
the information received available to all Member States and to
the Commission.

it

Article 4

Article 5

Types of probation measures and alternative sanctions

This Framework Decision shall apply to the following

1.
probation measures or alternative sanctions:

(a) an obligation for the sentenced person to inform a specific
authority of any change of residence or working place;

Criteria for forwarding a judgment and, where applicable, a
probation decision

The competent authority of the issuing State may forward
1.
a judgment and, where applicable, a probation decision to the
the Member State in which the
competent authority of
sentenced person is lawfully and ordinarily residing,
in cases
where the sentenced person has returned or wants to return
to that State.

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The competent authority of the issuing State may, upon
2.
request of the sentenced person, forward the judgment and,
where applicable,
the probation decision to a competent
authority of a Member State other than the Member State in
which the sentenced person is lawfully and ordinarily residing,
on condition that this latter authority has consented to such
forwarding.

Article shall include only such measures or sanctions as notified
by the executing State in accordance with Article 4(2).

The competent authority of the issuing State shall forward
5.
the judgment and, where applicable, the probation decision,
together with the certificate referred to in paragraph 1 only
to one executing State at any one time.

3. When implementing this Framework Decision, Member
States shall determine under which conditions their competent
authorities may consent to the forwarding of a judgment and,
where applicable, a probation decision under paragraph 2.

Each Member State shall make a declaration to the
4.
General Secretariat of the Council of the determination made
under paragraph 3. Member States may modify such a
declaration at any time. The General Secretariat shall make
the information received available to all Member States and to
the Commission.

Article 6

Procedure

forwarding

for
applicable, a probation decision

judgment

a

and, where

1. When, in application of Article 5(1) or (2), the competent
authority of the issuing State forwards a judgment and, where
it
applicable, a probation decision to another Member State,
shall ensure that
the
standard form for which is set out in Annex I.

is accompanied by a certificate,

it

The judgment and, where applicable,

the probation
2.
decision, together with the certificate referred to in paragraph
1, shall be forwarded by the competent authority of the issuing
State directly to the competent authority of the executing State
by any means which leaves a written record under conditions
allowing the executing State to establish their authenticity. The
original of the judgment and, where applicable, the probation
decision, or certified copies thereof, as well as the original of the
certificate, shall be sent
the
executing State if it so requires. All official communications
shall also be made directly between the said competent auth­
orities.

to the competent authority of

6.
If the competent authority of the executing State is not
known to the competent authority of the issuing State, the
including via the
latter shall make all necessary inquiries,
contact points of the European Judicial Network created by
Joint Action 98/428/JHA (1),
in order to obtain the
Council
information from the executing State.

7. When an authority of the executing State which receives a
judgment and, where applicable, a probation decision, together
with the certificate referred to in paragraph 1, has no
competence to recognise it and take the ensuing necessary
measures for the supervision of the probation measure or alter­
native sanction, it shall, ex officio, forward it to the competent
authority and shall without delay inform the competent
authority of the issuing State accordingly by any means which
leaves a written record.

Article 7

Consequences for the issuing State

1.
Once the competent authority of the executing State has
recognised the judgment and, where applicable, the probation
decision forwarded to it and has informed the competent
authority of the issuing State of such recognition, the issuing
State shall no longer have competence in relation to the super­
the probation measures or alternative sanctions
vision of
to take subsequent measures referred to in
imposed, nor
Article 14(1).

The competence referred to in paragraph 1 shall revert to

2.
the issuing State:

(a) as soon as its competent authority has notified withdrawal
of the certificate referred to in Article 6(1), pursuant to
Article 9(4), to the competent authority of the executing
State;

3.
The certificate referred to in paragraph 1 shall be signed
and its content certified as accurate by the competent authority
of the issuing State.

(b) in cases referred to in Article 14(3) in combination with

14(5); and

4.
Apart from the measures and sanctions referred to in
Article 4(1), the certificate referred to in paragraph 1 of this

(1) OJ L 191, 7.7.1998, p. 4.

(c)

in cases referred to in Article 20.

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Article 8

Decision of the executing State

Article 10

Double criminality

The competent authority of

1.
the executing State shall
recognise the judgment and, where applicable, the probation
decision forwarded
in accordance with Article 5 and
following the procedure laid down in Article 6 and shall
without delay take all necessary measures for the supervision
of the probation measures or alternative sanctions, unless it
decides to invoke one of the grounds for refusing recognition
and supervision referred to in Article 11.

The following offences,

1.
they are punishable in the
if
issuing State by a custodial sentence or a measure involving
deprivation of liberty for a maximum period of at least three
years, and as they are defined by the law of the issuing State,
shall, under the terms of this Framework Decision and without
verification of the double criminality of the act, give rise to
the
recognition of
probation decision and to supervision of probation measures
and alternative sanctions:

and, where

applicable,

judgment

the

The competent authority of

the executing State may
2.
postpone the decision on recognition of the judgment and,
where applicable,
the probation decision in the situation
where the certificate referred to in Article 6(1) is incomplete
or obviously does not correspond to the judgment or, where
applicable,
such reasonable
deadline set for the certificate to be completed or corrected.

the probation decision, until

— participation in a criminal organisation,

— terrorism,

— trafficking in human beings,

Article 9

— sexual exploitation of children and child pornography,

Adaptation of

the probation measures or alternative

sanctions

If

the nature or duration of

the relevant probation
1.
the
measure or alternative sanction, or
the duration of
the
probation period, are incompatible with the law of
that State may
the competent authority of
executing State,
the
them in line with the nature and duration of
adapt
probation measures and alternative sanctions, or duration of
the probation period, which apply, under
the
executing State, to equivalent offences. The adapted probation
measure, alternative sanction or duration of
the probation
period shall correspond as far as possible to that imposed in
the issuing State.

the law of

— illicit

trafficking

in narcotic drugs

and psychotropic

substances,

— illicit trafficking in weapons, munitions and explosives,

— corruption,

— fraud, including that affecting the financial interests of the
the
European Communities within the meaning of
Convention of 26 July 1995 on the protection of
the
European Communities’ financial interests (1),

2. Where the probation measure, the alternative sanction or
the probation period has been adapted because its duration
exceeds the maximum duration provided for under the law of
the executing State,
the adapted probation
measure, alternative sanction or probation period shall not be
below the maximum duration provided for equivalent offences
under the law of the executing State.

the duration of

— laundering of the proceeds of crime,

— counterfeiting currency, including of the euro,

— computer-related crime,

3.
The adapted probation measure, alternative sanction or
probation period shall not be more severe or longer than the
probation measure, alternative sanction or probation period
which was originally imposed.

to withdraw the

4.
Following receipt of the information referred to in Articles
16(2) or 18(5), the competent authority of the issuing State
may decide
referred to in
Article 6(1) provided that supervision in the executing State
has not yet begun. In such cases, the decision shall be taken
and communicated as soon as possible and within ten days of
the receipt of the information.

certificate

— environmental

in
including
endangered animal species and in endangered plant species
and varieties,

trafficking

crime,

illicit

— facilitation of unauthorised entry and residence,

— murder, grievous bodily injury,

— illicit trade in human organs and tissue,

(1) OJ C 316, 27.11.1995, p. 49.

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— kidnapping, illegal restraint and hostage-taking,

— racism and xenophobia,

— organised or armed robbery,

— illicit trafficking in cultural goods,

including antiques and

works of art,

— swindling,

— racketeering and extortion,

— counterfeiting and piracy of products,

— forgery of administrative documents and trafficking therein,

— forgery of means of payment,

— illicit trafficking in hormonal substances and other growth

promoters,

— illicit trafficking in nuclear or radioactive materials,

— trafficking in stolen vehicles,

— rape,

— arson,

condition that the judgment relates to acts which also constitute
an offence under the law of the executing State, whatever its
constituent elements or however it is described.

4.
this
Each Member State may, on the adoption of
Framework Decision or later, by a declaration notified to the
General Secretariat of the Council, declare that it will not apply
paragraph 1. Any such declaration may be withdrawn at any
time. Such declarations or withdrawals of declarations shall be
published in the Official Journal of the European Union.

Article 11

Grounds for refusing recognition and supervision

1.
The competent authority of the executing State may refuse
to recognise the judgment or, where applicable, the probation
decision and to assume responsibility for supervising probation
measures or alternative sanctions if:

(a)

the certificate referred to in Article 6(1) is incomplete or
manifestly does not correspond to the judgment or to the
probation decision and has not been completed or corrected
within a reasonable period set by the competent authority
of the executing State;

(b) the criteria set forth in Articles 5(1), 5(2) or 6(4) are not

met;

(c) recognition of the judgment and assumption of responsi­
bility for supervising probation measures or alternative
sanctions would be contrary to the principle of ne bis in
idem;

— crimes within the jurisdiction of the International Criminal

Court,

(d)

— unlawful seizure of aircraft/ships,

— sabotage.

2.
The Council may decide to add other categories of
offences to the list provided for in paragraph 1 of this Article
at any time, acting unanimously after consultation of
the
laid down in
European Parliament under
Article 39(1) of the Treaty on European Union. The Council
shall examine, in the light of the report submitted to it pursuant
to Article 26(1) of this Framework Decision, whether the list
should be extended or amended.

the conditions

State

declaration

has made

in a case referred to in Article 10(3) and, where the
executing
under
a
Article 10(4),
in a case referred to in Article 10(1), the
judgment relates to acts which would not constitute an
offence under the law of the executing State. However, in
relation to taxes or duties, customs and exchange, execution
of the judgment or, where applicable, the probation decision
may not be refused on the grounds that the law of the
executing State does not impose the same kind of tax or
duty or does not contain the same type of rules as regards
taxes or duties, customs and exchange regulations as the law
of the issuing State;

(e)

the enforcement of the sentence is statute-barred according
to the law of the executing State and relates to an act which
falls within its competence according to that law;

3.
For offences other than those covered by paragraph 1, the
executing State may make the recognition of the judgment and,
where applicable, the probation decision and the supervision of
probation measures and of alternative sanctions subject to the

(f)

there is immunity under the law of the executing State,
which makes
probation
it
measures or alternative sanctions;

impossible

supervise

to

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(g) under the law of the executing State, the sentenced person
cannot, owing to his or her age, be held criminally liable for
the acts in respect of which the judgment was issued;

Article 12

Time limit

that

the person was

(h) the judgment was rendered in absentia, unless the certificate
states
summoned personally or
informed via a representative competent according to the
national law of the issuing State of the time and place of the
proceedings which resulted in the judgment being rendered
in absentia, or that the person has indicated to a competent
authority that he or she does not contest the case;

The competent authority of

1.
the executing State shall
decide as soon as possible, and within 60 days of receipt of
the judgment and, where applicable, the probation decision,
referred to in Article 6(1),
together with the
whether or not
and, where
the
applicable,
the probation decision and assume responsibility
alternative
for
sanctions. It shall immediately inform the competent authority
of
the issuing State, by any means which leaves a written
record, of its decision.

certificate
to recognise

probation measures

supervising

judgment

the

or

(i)

the judgment or, where applicable, the probation decision
provides for medical/therapeutic treatment which, notwith­
standing Article 9, the executing State is unable to supervise
in view of its legal or health-care system;

(j)

the probation measure or alternative sanction is of less than
six months’ duration; or

2. When in exceptional circumstances it is not possible for
the competent authority of the executing State to comply with
the time limit provided for in paragraph 1, it shall immediately
inform the competent authority of the issuing State by any
means, giving the reasons for the delay and indicating the
estimated time needed for the final decision to be taken.

(k) the judgment relates to criminal offences which under the
law of the executing State are regarded as having been
committed wholly or for a major or essential part within
its territory, or in a place equivalent to its territory.

Article 13

Governing law

1.
The supervision and application of probation measures
and alternative sanctions shall be governed by the law of the
executing State.

2.
Any decision under paragraph 1(k) in relation to offences
committed partly within the territory of the executing State, or
in a place equivalent to its territory, shall be taken by the
competent authority of the executing State only in exceptional
circumstances and on a case-by case basis, having regard to the
specific circumstances of the case, and in particular to whether a
major or essential part of the conduct in question has taken
place in the issuing State.

In the cases referred to in paragraph 1(a), (b), (c), (h), (i), (j)
3.
and (k), before deciding not
to recognise the judgment or,
where applicable, the probation decision and to assume respon­
sibility for
supervising probation measures and alternative
sanctions, the competent authority of the executing State shall
communicate, by appropriate means, with the competent
authority of the issuing State and shall, as necessary, ask it to
supply all additional information required without delay.

4. Where the competent authority of the executing State has
decided to invoke a ground for refusal referred to in paragraph
1 of this Article,
in particular the grounds referred to under
paragraph 1(d) or (k), it may nevertheless, in agreement with the
competent authority of the issuing State, decide to supervise the
probation measures or alternative sanctions that are imposed in
the judgment and, where applicable,
the probation decision
forwarded to it, without assuming the responsibility for taking
any of the decisions referred to in Article 14(1)(a), (b) and (c).

The competent authority of

2.
the executing State may
supervise an obligation as referred to in Article 4(1)(h) by
requiring the sentenced person to provide proof of compliance
with an obligation to compensate for the prejudice caused by
the offence.

Article 14

Jurisdiction to take all subsequent decisions and governing
law

The competent authority of the executing State shall have
1.
jurisdiction to take all
relating to a
suspended sentence, conditional release, conditional sentence
and alternative sanction, in particular in case of non-compliance
with a probation measure or alternative sanction or if
the
sentenced person commits a new criminal offence.

subsequent decisions

Such subsequent decisions include notably:

(a)

the modification of obligations or instructions contained in
the probation measure or alternative sanction, or the modi­
fication of the duration of the probation period;

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(b) the revocation of the suspension of the execution of the
judgment or the revocation of the decision on conditional
release; and

declarations and withdrawals mentioned in this Article shall
be published in the Official Journal of the European Union.

(c)

the imposition of a custodial sentence or measure involving
deprivation of liberty in case of an alternative sanction or
conditional sentence.

2.
The law of the executing State shall apply to decisions
taken pursuant to paragraph 1 and to all subsequent conse­
quences of the judgment including, where applicable, the en­
forcement and,
if necessary, the adaptation of the custodial
sentence or measure involving deprivation of liberty.

Article 15

Consultations between competent authorities

Where and whenever it is felt appropriate, competent auth­
orities of the issuing State and of the executing State may
consult each other with a view to facilitating the smooth and
efficient application of this Framework Decision.

Article 16

3.
Each Member State may, at the time of adoption of this
Framework Decision or at a later stage, declare that as an
executing State it will
refuse to assume the responsibility
provided for in paragraph 1(b) and (c) in cases or categories
of cases to be specified by that Member State, in particular:

The competent authority of

1.
the executing State shall
without delay inform the competent authority of the issuing
State, by any means which leaves a written record, of all
decisions on the:

Obligations of
the
authorities
executing State has jurisdiction for subsequent decisions

involved where

the

(a)

in cases relating to an alternative sanction, where the
sentence or
contain a
judgment does not
measure involving deprivation of liberty to be enforced in
case of non-compliance with the obligations or instructions
concerned;

custodial

(b) in cases relating to a conditional sentence;

(a) modification of

the probation measure or alternative

sanction;

(b) revocation of

the suspension of

judgment or revocation of
release;

the
the execution of
the decision on conditional

(c)

in cases where the judgment relates to acts which do not
constitute an offence under the law of the executing State,
whatever its constituent elements or however it is described.

(c) enforcement of a custodial sentence or measure involving
deprivation of liberty, because of non-compliance with a
probation measure or alternative sanction;

4. When a Member State makes use of any of the possibi­
lities referred to in paragraph 3, the competent authority of the
executing State shall transfer jurisdiction back to the competent
authority of the issuing State in case of non-compliance with a
probation measure or alternative sanction if
the competent
authority of the executing State is of the view that a subsequent
decision as referred to in paragraph 1(b) or (c) needs to be
taken.

5.
In the cases referred to in paragraph 3 of this Article, the
obligation to recognise the judgment and, where applicable, the
probation decision, as well as the obligation to take without
delay all necessary measures
the
probation measures or alternative sanctions, as referred to in
Article 8(1), shall not be affected.

the supervision of

for

6.
Declarations as mentioned in paragraph 3 shall be made
by notification to the General Secretariat of the Council. Any
any time. The
such declaration may be withdrawn at

(d) lapsing of the probation measure or alternative sanction.

If so requested by the competent authority of the issuing
2.
State,
the executing State shall
the competent authority of
inform it of the maximum duration of deprivation of liberty
that is foreseen in the national law of the executing State for the
offence which gave rise to the judgment and that could be
imposed on the sentenced person in case of breach of the
probation measure or alternative sanction. This information
shall be provided immediately after reception of the judgment
and, where applicable, the probation decision, together with the
certificate referred to in Article 6(1).

The competent authority of the issuing State shall immedi­
3.
ately inform the competent authority of the executing State, by
any means which leaves a written record, of any circumstances
or findings which, in its opinion, could entail one or more of
the decisions referred to in paragraph 1(a),
(b) or (c) being
taken.

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Article 17

(b) the enforcement of

involving deprivation of
contained in the judgment;

the custodial

sentence or measure
liberty, where such measure is

Obligations of the authorities involved where the issuing
State has jurisdiction for subsequent decisions

If the competent authority of the issuing State has juris­
1.
diction for the subsequent decisions mentioned in Article 14(1)
pursuant to the application of Article 14(3), the competent
authority of the executing State shall immediately notify it of:

(a) any finding which is likely to result in revocation of the
suspension of the execution of the judgment or revocation
of the decision on conditional release;

(b) any finding which is likely to result in the imposition of a
custodial sentence or measure involving deprivation of
liberty;

(c) all

further facts and circumstances which the competent
authority of the issuing State requests to be provided and
which are essential in order to allow it to take subsequent
decisions in accordance with its national law.

2. When a Member State has made use of the possibility
referred to in Article 11(4), the competent authority of that
the issuing
inform the competent authority of
State shall
State in case of non-compliance by the sentenced person with
a probation measure or alternative sanction.

in Annex II. Notice of

3.
Notice of the findings mentioned in paragraph 1(a) and (b)
and in paragraph 2 shall be given using the standard form set
out
the facts and circumstances
mentioned in paragraph 1(c) shall be given by any means
including, where possible,
which leaves a written record,
through the form set out in Annex II.

law of

If, under

the national

the issuing State,

taken on the imposition of a sentence,

4.
the
sentenced person must be given a judicial hearing before a
decision is
this
requirement may be met by following mutatis mutandis the
international or
procedure
European Union law that provide the possibility of using
video links for hearing persons.

contained in instruments of

(c)

the imposition of a custodial sentence or measure involving
deprivation of liberty, where such measure is not contained
in the judgment;

(d) the lapsing of the probation measure or alternative sanction.

Article 18

Information from the executing State in all cases

The competent authority of the executing State shall without
delay inform the competent authority of the issuing State, by
any means which leaves a written record of:

1. the transmission of the judgment and, where applicable, the
probation decision, together with the certificate referred to in
Article 6(1) to the competent authority responsible for its
recognition and for taking the ensuing measures for the
supervision of
alternative
sanctions in accordance with Article 6(7);

the probation measures or

after

transmission of

2. the fact that it is in practice impossible to supervise the
probation measures or alternative sanctions for the reason
that,
and, where
applicable, the probation decision, together with the certifi­
cate referred to in Article 6(1) to the executing State, the
sentenced person cannot be found in the territory of the
executing State, in which case the executing State shall be
under no obligation to supervise the probation measures or
alternative sanctions;

judgment

the

3. the final decision to recognise the judgment and, where
applicable, the probation decision and to assume responsi­
bility for supervising the probation measures or alternative
sanctions;

4. any decision not

to recognise the judgment and, where
applicable, the probation decision and to assume responsi­
bility for supervising the probation measures or alternative
sanctions in accordance with Article 11, together with the
reasons for the decision;

5.
The competent authority of the issuing State shall without
delay inform the competent authority of the executing State of
all decisions on:

5. any decision to adapt the probation measures or alternative
sanctions in accordance with Article 9, together with the
reasons for the decision;

(a)

the revocation of the suspension of the execution of the
judgment or the revocation of the decision on conditional
release;

6. any decision on amnesty or pardon which leads to not
supervising the probation measures or alternative sanctions
for the reasons referred to in Article 19(1), together, where
applicable, with the reasons for the decision.

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Article 19

Amnesty, pardon, review of judgment

An amnesty or pardon may be granted by the issuing

1.
State and also by the executing State.

Article 22

Costs

Costs resulting from the application of this Framework Decision
shall be borne by the executing State, except for costs arising
exclusively within the territory of the issuing State.

Only the issuing State may decide on applications for
2.
review of
the
probation measures or alternative sanctions to be supervised
under this Framework Decision.

the judgment which forms

the basis

for

Article 20

End of jurisdiction of the executing State

If

the sentenced person absconds or no longer has a
1.
lawful and ordinary residence in the executing State,
the
competent authority of the executing State may transfer the
the probation
jurisdiction in respect of
measures or alternative sanctions and in respect of all further
decisions relating to the judgment back to the competent
authority of the issuing State.

the supervision of

Article 23

Relationship with other agreements and arrangements

This Framework Decision shall, in relations between the
1.
Member States,
from 6 December 2011, replace the corre­
sponding provisions of the Council of Europe Convention of
30 November 1964 on the Supervision of Conditionally
Sentenced or Conditionally Released Offenders.

2. Member States may continue to apply bilateral or multi­
lateral agreements or arrangements in force after 6 December
2008, in so far as they allow the objectives of this Framework
Decision to be extended or enlarged and help to simplify or
facilitate further the procedures for the supervision of probation
measures and alternative sanctions.

2.
If new criminal proceedings against the person concerned
are taking place in the issuing State, the competent authority of
the issuing State may request the competent authority of the
executing State to transfer jurisdiction in respect of the super­
vision of the probation measures or alternative sanctions and in
respect of all further decisions relating to the judgment back to
the competent authority of the issuing State. In such a case, the
competent authority of the executing State may transfer juris­
diction back to the competent authority of the issuing State.

3. Member States may conclude bilateral or multilateral
agreements or arrangements after 6 December 2008, in so far
as such agreements or arrangements allow the provisions of this
Framework Decision to be extended or enlarged and help to
simplify or facilitate further the procedures for the supervision
of probation measures and alternative sanctions.

3. When, in application of this Article, jurisdiction is trans­
ferred back to the issuing State, the competent authority of that
State shall resume jurisdiction. For the further supervision of the
the competent
probation measures or alternative sanctions,
authority of
the
duration and degree of
compliance with the probation
measures or alternative sanctions in the executing State, as
well as of any decisions taken by the executing State in
accordance with Article 16(1).

the issuing State shall

take account of

Article 21

Languages

language or one of the official

The certificate referred to in Article 6(1) shall be translated into
languages of the
the official
executing State. Any Member State may, on adoption of this
Framework Decision or later, state in a declaration deposited
with the General Secretariat of the Council that it will accept a
translation in one or more other official languages of the insti­
tutions of the European Union.

the Commission of

4. Member States shall, by 6 March 2009, notify the Council
and
and
the
arrangements referred to in paragraph 2 which they wish to
continue applying. Member States shall also notify the Council
and the Commission of any new agreement or arrangement as
referred to in paragraph 3, within three months of signing it.

agreements

existing

Article 24

Territorial application

This Framework Decision shall apply to Gibraltar.

Article 25

Implementation

1. Member States
to
comply with the provisions of this Framework Decision by
6 December 2011.

take the necessary measures

shall

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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.

The report shall be accompanied,

3.
lative proposals.

if necessary, by legis­

Article 26

Review

By 6 December 2014, the Commission shall draw up a
1.
report on the basis of the information received from Member
States under Article 25(2).

Article 27

Entry into force

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

2.

On the basis of this report, the Council shall assess:

Done at Brussels, 27 November 2008.

(a)

the extent
necessary measures
Framework Decision; and

to which the Member States have taken the
to comply with this

in order

(b) the application of this Framework Decision.

For the Council
The President

M. ALLIOT-MARIE

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ANNEX I

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ANNEX II

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