Council Framework Decision 2008/909/JHA of 27 November 2008 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: 2008-11-27
Institutions: Council of the European Union
Subjects: European arrest warrant, criminal law, criminal procedure, enforcement of ruling, mutual recognition principle, rights of the defence

5.12.2008

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III

(Acts adopted under the EU Treaty)

ACTS ADOPTED UNDER TITLE VI OF THE EU TREATY

COUNCIL FRAMEWORK DECISION 2008/909/JHA

of 27 November 2008

on the application of the principle of mutual recognition to judgments in criminal matters imposing
their
custodial sentences or measures involving deprivation of

liberty for the purpose of

enforcement in the European Union

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the initiative of the Republic of Austria, the
Republic of Finland and the Kingdom of Sweden,

Having regard to the opinion of the European Parliament,

Whereas:

(3)

(4)

(5)

(1)

(2)

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

On 29 November 2000 the Council, in accordance with
the Tampere conclusions, adopted a programme of
measures to implement the principle of mutual recog­
nition of decisions in criminal matters (1),
in which it
the need for modern
called for an assessment of
mechanisms
final
the mutual
for
sentences involving deprivation of liberty (Measure 14)
and for extended application of
the
transfer of sentenced persons to cover persons resident
in a Member State (Measure 16).

the principle of

recognition of

The Hague Programme on strengthening freedom,
security and justice in the European Union (2) requires
States
Member
of
complete
in particular in the field of enforcing final
measures,
custodial sentences.

programme

the

to

their

the Member States have ratified the Council of
All
Europe Convention on the Transfer of Sentenced
Persons of 21 March 1983. Under that Convention,
sentenced persons may be transferred to serve the
remainder of
sentence only to their State of
nationality and only with their consent and that of the
States
to that
Convention of 18 December 1997, which allows
transfer without the person’s consent, subject to certain
conditions, has not been ratified by all
the Member
imposes any basic duty to
States. Neither instrument
take charge of sentenced persons for enforcement of a
sentence or order.

involved. The Additional

Protocol

in

the

judicial

taken by

issuing State’s

Procedural rights in criminal proceedings are a crucial
for ensuring mutual confidence among the
element
Member
cooperation. Relations
States
between the Member States, which are characterised by
special mutual confidence in other Member States’ legal
systems, enable recognition by the executing State of
decisions
authorities.
Therefore, a further development of
the cooperation
in the Council of Europe instruments
provided for
concerning the
judgments
should be envisaged, in particular where citizens of the
Union were the subject of a criminal judgment and were
sentenced to a custodial sentence or a measure involving
deprivation of liberty in another Member State. Notwith­
standing the need to provide the sentenced person with
in the
adequate safeguards, his or her
proceedings
by
longer
should
requiring in all cases his or her consent to the forwarding
of a judgment to another Member State for the purpose
of
the sentence
imposed.

its recognition and enforcement of

enforcement of

involvement

dominant

criminal

no

be

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

(2) OJ C 53, 3.3.2005, p. 1.

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(6)

This Framework Decision should be implemented and
applied in a manner which allows general principles of
equality, fairness and reasonableness to be respected.

6(3) do not constitute a ground for refusal on social
rehabilitation.

(7)

(8)

(9)

Article 4(1)(c) contains a discretionary provision which
enables the judgment and the certificate to be forwarded,
for example, to the Member State of nationality of the
sentenced person, in cases other than those provided for
in paragraphs 1(a) and (b) or to the Member State in
which the sentenced person lives and has been legally
residing continuously for at
five years and will
retain a permanent right of residence there.

least

authorities

the competent authority of
competent

In cases referred to in Article 4(1)(c) the forwarding of
the judgment and the certificate to the executing State is
subject to consultations between the competent auth­
orities of the issuing and the executing States, and the
the executing
consent of
State. The
into
account such elements as, for example, duration of the
residence or other links to the executing State. In cases
where the sentenced person could be transferred to a
Member State and to a third country under national
instruments, the competent auth­
law or international
in
orities of
consultations,
in the
executing State would enhance the aim of social rehabi­
litation better than enforcement in the third country.

the issuing and executing States should,
consider whether enforcement

should take

Enforcement of
the sentence in the executing State
should enhance the possibility of social rehabilitation of
the sentenced person. In the context of satisfying itself
that the enforcement of the sentence by the executing
State will serve the purpose of facilitating the social reha­
bilitation of
competent
authority of the issuing State should take into account
such elements as, for example, the person’s attachment to
the executing State, whether he or she considers it the
place of family,
linguistic, cultural, social or economic
and other links to the executing State.

sentenced person,

the

the

(10)

the sentenced person referred to in
The opinion of
in applying
Article 6(3) may be useful mainly
Article 4(4). The words ‘in particular’ are intended to
cover also cases where the opinion of
the sentenced
person would include information which might be of
relevance in relation to the grounds for non-recognition
and non-enforcement. Provisions of Articles 4(4) and

(11)

(12)

(13)

(14)

Poland needs more time than the other Member States to
face the practical and material consequences of transfer
of Polish citizens convicted in other Member States, espe­
cially in the light of an increased mobility of Polish
citizens within the Union. For that reason, a temporary
derogation of limited scope for a maximum period of
five years should be foreseen.

This Framework Decision should also, mutatis mutandis,
apply to the enforcement of sentences in the cases under
Articles 4(6) and 5(3) of Council Framework Decision
2002/584/JHA of 13 June 2002 on the European
Arrest Warrant and the surrender procedures between
inter alia, that, without
Member States (1). This means,
prejudice to that Framework Decision,
the executing
State could verify the existence of grounds for non-recog­
nition and non-enforcement as provided in Article 9 of
including the checking of
this Framework Decision,
the executing
double criminality to the extent
State makes a declaration under Article 7(4) of
this
Framework Decision, as a condition for recognising and
enforcing the judgment with a view to considering
to enforce the
whether
sentence
of
4(6)
cases
Framework Decision 2002/584/JHA.

the person or
pursuant

to surrender

to Article

that

in

This Framework Decision respects fundamental rights
and observes the principles recognised by Article 6 of
the Treaty on European Union and reflected by the
Charter of Fundamental Rights of the European Union,
in particular Chapter VI
thereof. Nothing in this
Framework Decision should be interpreted as prohibiting
refusal to execute a decision when there are objective
reasons to believe that the sentence was imposed for
the purpose of punishing a person on the grounds of
his or her sex, race, religion, ethnic origin, nationality,
language, political opinions or sexual orientation, or that
that person’s position may be prejudiced on any one of
those grounds.

This Framework Decision should not prevent
Member State from applying its constitutional
relating
freedom of
other media.

any
rules
association,
the press and freedom of expression in

to due process,

freedom of

(1) OJ L 190, 18.7.2002, p. 1.

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(15)

(16)

Framework Decision should

in
This
accordance with the right of citizens of the Union to
move and reside freely within the territory of
the
Member States conferred by Article 18 of the Treaty
establishing European Community.

applied

be

be

applied
in
This
Framework Decision should
legislation,
accordance with applicable Community
including in particular Council Directive 2003/86/EC (1),
Council Directive
and Directive
2004/38/EC of
the
Council (3).

the European Parliament and of

2003/109/EC (2)

(17) Where in this Framework Decision reference is made to
the State in which the sentenced person ‘lives’,
this
indicates the place to which that person is attached
based on habitual residence and on elements such as
family, social or professional ties.

(18) When applying Article 5(1),

it should be possible to
transmit a judgment or a certified copy thereof and a
certificate to the competent authority in the executing
State by any means which leaves a written record, for
example e-mail and fax, under conditions allowing the
executing State to establish authenticity.

as a general rule, the final decision, including an appeal
procedure is completed within a period of 90 days.

(23) Article 18(1) states that, subject to the exceptions listed
in paragraph 2, the specialty rule applies only where the
person has been transferred to the executing State.
It
should therefore not be applicable where the person
for
has not been transferred to the executing State,
example where the person has fled to the executing State,

HAS ADOPTED THIS FRAMEWORK DECISION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Definitions

For the purposes of this Framework Decision:

(a)

‘judgment’ shall mean a final decision or order of a court of
the issuing State imposing a sentence on a natural person;

(19)

(20)

(21)

In cases referred to in Article 9(1)(k), the executing State
should consider the possibility of adapting the sentence
in accordance with this Framework Decision before it
refuses to recognise and enforce the sentence involving
a measure other than a custodial sentence.

(b) ‘sentence’ shall mean any custodial sentence or any measure
involving deprivation of liberty imposed for a limited or
unlimited period of time on account of a criminal offence
on the basis of criminal proceedings;

The ground for refusal provided for in Article 9(1)(k)
may be applied also in cases where the person has not
been found guilty of a criminal offence although the
competent authority applied the measure involving the
deprivation of liberty other than a custodial sentence as a
consequence of a criminal offence.

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
this Framework Decision, while taking
provisions of
into account
its purpose. Any decision to apply this
ground for refusal, should be based on a case-by-case
analysis and consultations between the competent auth­
orities of the issuing and executing States.

(c)

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

(d) ‘executing State’ shall mean the Member State to which a
judgment is forwarded for the purpose of its recognition
and enforcement.

Article 2

Determination of the competent authorities

1.
Each Member State shall inform the General Secretariat of
the Council which authority or authorities, under its national
law,
in accordance with this Framework
Decision, when that Member State is the issuing State or the
executing State.

competent

are

(22)

The time limit referred to in Article 12(2) should be
implemented by the Member States in such a way that

(1) OJ L 251, 3.10.2003, p. 12.
(2) OJ L 16, 23.1.2004, p. 44.
(3) OJ L 158, 30.4.2004, p. 77.

2.
The General Secretariat of the Council shall make the
information received available to all Member States and the
Commission.

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Article 3

Purpose and scope

1.
The purpose of this Framework Decision is to establish
the rules under which a Member State, with a view to facil­
itating the social rehabilitation of the sentenced person,
is to
recognise a judgment and enforce the sentence.

person will be deported, once he or she is released from
the enforcement of
the sentence on the basis of an
expulsion or deportation order included in the judgment
or in a judicial or administrative decision or any other
measure taken consequential to the judgment; or

This Framework Decision shall apply where the sentenced

2.
person is in the issuing State or in the executing State.

(c) any Member State other than a Member State referred to in
(a) or (b), the competent authority of which consents to the
forwarding of
the judgment and the certificate to that
Member State.

that,

this Framework Decision. The fact

3.
This Framework Decision shall apply only to the recog­
nition of judgments and the enforcement of sentences within
the meaning of
in
addition to the sentence, a fine and/or a confiscation order
has been imposed, which has not yet been paid, recovered or
enforced, shall not prevent a judgment from being forwarded.
The recognition and enforcement of such fines and confiscation
orders
in another Member State shall be based on the
instruments applicable between the Member States, in particular
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.

CHAPTER II

RECOGNITION OF JUDGMENTS AND ENFORCEMENT OF
SENTENCES

Article 4

Criteria for forwarding a judgment and a certificate to
another Member State

1.
Provided that the sentenced person is in the issuing State
or in the executing State, and provided that this person has
given his or her consent where required under Article 6, a
judgment, together with the certificate for which the standard
form is given in Annex I, may be forwarded to one of the
following Member States:

(a)

the Member State of nationality of the sentenced person in
which he or she lives; or

(b) the Member State of nationality, to which, while not being
the sentenced

the Member State where he or she lives,

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

2.
The forwarding of the judgment and the certificate may
take place where the competent authority of the issuing State,
where appropriate after consultations between the competent
authorities of the issuing and the executing States, is satisfied
that the enforcement of the sentence by the executing State
would serve the purpose of facilitating the social rehabilitation
of the sentenced person.

Before forwarding the judgment and the certificate, the
3.
competent authority of the issuing State may consult, by any
appropriate means, the competent authority of the executing
State. Consultation shall be obligatory in the cases referred to
in paragraph 1(c). In such cases the competent authority of the
executing State shall promptly inform the issuing State of its
decision whether or not to consent to the forwarding of the
judgment.

4.
During such consultation, the competent authority of the
executing State may present the competent authority of the
that enforcement of
issuing State with a reasoned opinion,
the sentence in the executing State would not
serve the
purpose of facilitating the social rehabilitation and successful
reintegration of the sentenced person into society.

Where there has been no consultation, such an opinion may be
presented without delay after the transmission of the judgment
and the certificate. The competent authority of the issuing State
shall consider such opinion and decide whether to withdraw the
certificate or not.

5.
The executing State may, on its own initiative, request the
issuing State to forward the judgment together with the certifi­
cate. The sentenced person may also request the competent
authorities of the issuing State or of the executing State to
initiate a procedure for forwarding the judgment and the cer­
tificate under this Framework Decision. Requests made under
this paragraph shall not create an obligation of the issuing State
to forward the judgment together with the certificate.

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in particular taking into account

facilitating social rehabilitation of

In implementing this Framework Decision, Member States
6.
the
shall adopt measures,
purpose of
the sentenced
person, constituting the basis on which their competent auth­
orities have to take their decisions whether or not to consent to
the forwarding of the judgment and the certificate in cases
pursuant to paragraph 1(c).

7.
this
Each Member State may, either on adoption of
Framework Decision or later, notify the General Secretariat of
the Council that, in its relations with other Member States that
its prior consent under
have given the same notification,
paragraph 1(c)
the
judgment and the certificate:

the forwarding of

required for

is not

authenticity. The original of the judgment, or a certified copy of
it, and the original of
to the
executing State if it so requires. All official communications
shall also be made directly between the said competent auth­
orities.

the certificate, shall be sent

The certificate, shall be signed, and its content certified as

2.
accurate, by the competent authority of the issuing State.

The issuing State shall forward the judgment together with

3.
the certificate to only one executing State at any one time.

(a)

if the sentenced person lives in and has been legally residing
continuously for at least five years in the executing State
and will retain a permanent right of residence in that State,
and/or

If the competent authority of the executing State is not
4.
known to the competent authority of the issuing State, the
latter shall make all necessary inquiries,
including via the
Contact points of the European Judicial Network set up by
Joint Action 98/428/JHA (1),
in order to obtain the
Council
information from the executing State.

(b) if the sentenced person is a national of the executing State
in cases other than those provided for in paragraph 1(a) and
(b).

In cases referred to in point (a), permanent right of residence
shall mean that the person concerned:

— has a right of permanent residence in the respective Member
State in accordance with the national
law implementing
Community legislation adopted on the basis of Article 18,
40, 44 and 52 of the Treaty establishing the European
Community, or

for

the
the

— possesses a valid residence permit, as a permanent or long-
in
term resident,
accordance with
law implementing
Community legislation adopted on the basis of Article 63
the Treaty establishing the European Community, as
of
regards Member States to which such Community legislation
is applicable, or in accordance with national law, as regards
Member States to which it is not.

respective Member
national

State,

5. When an authority of the executing State which receives a
together with a certificate has no competence to
judgment
recognise it and take the necessary measures for its enforce­
it shall, ex officio, forward the judgment together with
ment,
the certificate to the competent authority of
the executing
State and inform the competent authority of the issuing State
accordingly.

Article 6

Opinion and notification of the sentenced person

1. Without prejudice to paragraph 2, a judgment together
with a certificate may be forwarded to the executing State for
the purpose of its recognition and enforcement of the sentence
only with the consent of the sentenced person in accordance
with the law of the issuing State.

2.
The consent of the sentenced person shall not be required
where the judgment together with the certificate is forwarded:

(a)

to the Member State of nationality in which the sentenced
person lives;

Article 5

Forwarding of the judgment and the certificate

1.
The judgment or a certified copy of it, together with the
certificate, 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 its

(b) to the Member State to which the sentenced person will be
deported once he or she is released from the enforcement of
the sentence on the basis of an expulsion or deportation
order included in the judgment or in a judicial or adminis­
trative decision or any other measure consequential to the
judgment;

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

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(c)

to the Member State to which the sentenced person has fled
or otherwise returned in view of the criminal proceedings
pending against him or her in the issuing State or following
the conviction in that issuing State.

3.
in the
In all cases where the sentenced person is still
issuing State, he or she shall be given an opportunity to state
his or her opinion orally or in writing. Where the issuing State
considers it necessary in view of the sentenced person’s age or
his or her physical or mental condition, that opportunity shall
be given to his or her legal representative.

The opinion of
the sentenced person shall be taken into
account when deciding the issue of forwarding the judgement
together with the certificate. Where the person has availed him
or her self of the opportunity provided in this paragraph, the
opinion of the sentenced person shall be forwarded to the
If
executing State,
the sentenced person stated his or her opinion orally,
the
issuing State shall ensure that
the written record of such
statement is available to executing State.

in particular with a view to Article 4(4).

The competent authority of the issuing State shall inform
4.
the sentenced person,
in a language which he or she under­
stands, that it has decided to forward the judgment together
with the certificate by using the standard form of the notifi­
cation set out in Annex II. When the sentenced person is in the
executing State at the time of that decision, that form shall be
inform the
transmitted to the executing State which shall
sentenced person accordingly.

5.
Paragraph 2(a) shall not apply to Poland as an issuing
State and as an executing State in cases where the judgement
was issued before the lapse of five years from 5 December
2011. Poland may at any time notify the General Secretariat
of the Council that it will no longer avail itself of this dero­
gation.

Article 7

Double criminality

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
recognition of the judgment and enforcement of the sentence
imposed:

— sexual exploitation of children and child pornography,

— 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),

— laundering of the proceeds of crime,

— counterfeiting currency, including of the euro,

— computer-related crime,

— 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,

— kidnapping, illegal restraint and hostage-taking,

— racism and xenophobia,

— organised or armed robbery,

— participation in a criminal organisation,

— illicit trafficking in cultural goods,

including antiques and

— terrorism,

works of art,

— swindling,

— trafficking in human beings,

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

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— 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,

— crimes within the jurisdiction of the International Criminal

Court,

— unlawful seizure of aircraft/ships,

— sabotage.

after

2.
The Council may decide to add other categories of
offences to the list provided for in paragraph 1 at any time,
the European
acting unanimously
Parliament under the conditions laid down in 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 29(5)
of this Framework Decision, whether the list should be extended
or amended.

consultation of

3.
For offences other than those covered by paragraph 1, the
executing State may make the recognition of the judgment and
enforcement of the sentence subject to the condition that it
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.
Each Member State may, on adoption of this Framework
Decision or later, by a declaration notified to the General Secre­
tariat 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 8

Recognition of

the judgment and enforcement of

the

sentence

The competent authority of

1.
the executing State shall
recognise a judgment which has been forwarded in accordance
with Article 4 and following the procedure under Article 5, and
shall forthwith take all the necessary measures for the enforce­
ment of the sentence, unless it decides to invoke one of the
grounds for non-recognition and non-enforcement provided for
in Article 9.

2. Where the sentence is incompatible with the law of the
executing State in terms of its duration, the competent authority
of the executing State may decide to adapt the sentence only
where that sentence exceeds the maximum penalty provided for
similar offences under its national
law. The adapted sentence
shall not be less than the maximum penalty provided for similar
offences under the law of the executing State.

the executing State may adapt

3. Where the sentence is incompatible with the law of the
executing State in terms of its nature, the competent authority
of
to the punishment or
measure provided for under its own law for similar offences.
Such a punishment or measure shall correspond as closely as
possible to the sentence imposed in the issuing State and
therefore the sentence shall not be converted into a pecuniary
punishment.

it

4.
The adapted sentence shall not aggravate the sentence
passed in the issuing State in terms of its nature or duration.

Article 9

Grounds for non-recognition and non-enforcement

The competent authority of the executing State may refuse

1.
to recognise the judgment and enforce the sentence, if:

(a)

the certificate referred to in Article 4 is incomplete or mani­
festly does not correspond to the judgment and has not
been completed or corrected within a reasonable deadline
set by the competent authority of the executing State;

(b) the criteria set forth in Article 4(1) are not met;

(c) enforcement of

the sentence would be contrary to the

principle of ne bis in idem;

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(d)

in a case referred to in Article 7(3) and, where the executing
State has made a declaration under Article 7(4), in a case
referred to in Article 7(1),
the judgment relates to acts
which would not constitute an offence under the law of
in relation to taxes or
the executing State. However,
duties, customs and exchange, execution of a judgment
may not be refused on the ground 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, duties and 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;

(f)

there is immunity under the law of the executing State,
which makes it impossible to enforce the sentence;

(g) the sentence has been imposed on a person who, under the
law of the executing State, owing to his or her age, could
not have been held criminally liable for the acts in respect
of which the judgment was issued;

(h) at the time the judgment was received by the competent
authority of the executing State, less than six months of the
sentence remain to be served;

Any decision under paragraph 1(l) in relation to offences
2.
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 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.

the

sentence,

3.
In the cases referred to in paragraph 1(a), (b), (c), (i), (k)
and (l), before deciding not to recognise the judgment and
the
enforce
executing State shall consult the competent authority of the
issuing State, by any appropriate means, and shall, where appro­
priate, ask it to supply any necessary additional
information
without delay.

authority of

competent

the

Article 10

Partial recognition and enforcement

1.
If the competent authority of the executing State could
consider recognition of the judgment and enforcement of the
sentence in part, it may, before deciding to refuse recognition of
the judgment and enforcement of
the sentence in whole,
consult the competent authority of the issuing State with a
view to finding an agreement, as provided for in paragraph 2.

(i)

(j)

that

the person was

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;

2.
The competent authorities of the issuing and the executing
States may agree, on a case-by-case basis, to the partial recog­
nition and enforcement of a sentence in accordance with the
conditions set out by them, provided such recognition and
enforcement does not
the
duration of the sentence. In the absence of such agreement,
the certificate shall be withdrawn.

aggravation of

in the

result

the executing State, before a decision is taken in accordance
in accordance with
with Article 12(1), makes a request,
in
Article 18(3), and the issuing State does not consent,
accordance with Article 18(2)(g), to the person concerned
being prosecuted, sentenced or otherwise deprived of his or
her liberty in the executing State for an offence committed
prior to the transfer other than that for which the person
was transferred;

Article 11

Postponement of recognition of the judgment

The recognition of the judgment may be postponed in the
executing State where the certificate referred to in Article 4 is
incomplete or manifestly does not correspond to the judgment,
until such reasonable deadline set by the executing State for the
certificate to be completed or corrected.

(k) the sentence imposed includes a measure of psychiatric or
health care or another measure involving deprivation of
liberty, which, notwithstanding Article 8(3), cannot be
executed by the executing State in accordance with its
legal or health care system;

(l)

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 12

Decision on the enforcement of the sentence and time
limits

The competent authority in the executing State shall
the
inform the
including of any decision to adapt the

1.
decide
as quickly as possible whether
judgment and enforce the sentence and shall
issuing State thereof,
sentence in accordance with Article 8(2) and (3).

to recognise

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Unless a ground for postponement exists under Article 11
2.
or Article 23(3), the final decision on the recognition of the
judgment and the enforcement of the sentence shall be taken
within a period of 90 days of receipt of the judgment and the
certificate.

3. When in exceptional cases it is not practicable for the
the executing State to comply with
competent authority of
the period provided for in paragraph 2, it shall without delay
inform the competent authority of the issuing State by any
means, giving the reasons for the delay and the estimated
time needed for the final decision to be taken.

Article 13

Withdrawal of the certificate

As long as the enforcement of the sentence in the executing
State has not begun, the issuing State may withdraw the certifi­
cate from that State, giving reasons for doing so. Upon with­
drawal of the certificate, the executing State shall no longer
enforce the sentence.

Article 14

Provisional arrest

Where the sentenced person is in the executing State,
the
executing State may, at the request of the issuing State, before
the arrival of the judgment and the certificate, or before the
decision to recognise the judgment and enforce the sentence,
the sentenced person, or take any other measure to
arrest
ensure that
the sentenced person remains in its territory,
pending a decision to recognise the judgment and enforce the
sentence. The duration of the sentence shall not be aggravated
as a result of any period spent in custody by reason of this
provision.

Article 15

Transfer of sentenced persons

1.
If the sentenced person is in the issuing State, he or she
shall be transferred to the executing State at a time agreed
between the competent authorities of
the issuing and the
executing States, and no later than 30 days after the final
decision of
the
the executing State on the recognition of
judgment and enforcement of the sentence has been taken.

2.
If the transfer of the sentenced person within the period
laid down in paragraph 1 is prevented by unforeseen circum­
stances, the competent authorities of the issuing and executing
States shall immediately contact each other. Transfer shall take
place as soon as these circumstances cease to exist. The
competent authority of
immediately
the executing State and
inform the competent authority of

the issuing State shall

agree on a new transfer date. In that event, transfer shall take
place within 10 days of the new date thus agreed.

Article 16

Transit

Each Member State shall,

1.
in accordance with its law,
permit the transit through its territory of a sentenced person
who is being transferred to the executing State, provided that a
copy of
the certificate referred to in Article 4 has been
forwarded to it by the issuing State together with the transit
request. The transit request and the certificate may be trans­
mitted by any means capable of producing a written record.
Upon request of the Member State to permit transit, the issuing
State shall provide a translation of the certificate into one of the
languages, to be indicated in the request, which the Member
State requested to permit transit accepts.

2. When receiving a request to permit transit, the Member
State requested to permit transit shall inform the issuing State if
it cannot guarantee that
the sentenced person will not be
prosecuted, or, except as provided in paragraph 1, detained or
otherwise subjected to any restriction of his or her liberty in its
territory for any offence committed or sentence imposed before
his or her departure from the territory of the issuing State. In
such a case, the issuing State may withdraw its request.

3.
The Member State requested to permit transit shall notify
its decision, which shall be taken on a priority basis and not
later than one week after having received the request, by the
same procedure. Such a decision may be postponed until the
translation has been transmitted to the Member State requested
to permit
transit, where such translation is required under
paragraph 1.

4.
The Member State requested to permit transit may hold
the sentenced person in custody only for such time as transit
through its territory requires.

5.
A transit request shall not be required in the case of
transport by air without a scheduled stopover. However, if an
unscheduled landing occurs, the issuing State shall provide the
information provided for in paragraph 1 within 72 hours.

Article 17

Law governing enforcement

The enforcement of a sentence shall be governed by the
1.
law of the executing State. The authorities of the executing State
alone shall, subject to paragraphs 2 and 3, be competent to
decide on the procedures for enforcement and to determine all
the measures relating thereto, including the grounds for early or
conditional release.

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The competent authority of

the executing State shall
2.
deduct the full period of deprivation of liberty already served
in connection with the sentence in respect of which the
judgment was issued from the total duration of the deprivation
of liberty to be served.

shall be drawn up in such a way as to make clear that the
person has given it voluntarily and in full awareness of the
consequences. To that end, the person shall have the right
to legal counsel;

The competent authority of

the executing State shall,
3.
upon request,
inform the competent authority of the issuing
State of the applicable provisions on possible early or condi­
tional release. The issuing State may agree to the application of
such provisions or it may withdraw the certificate.

4. Member States may provide that any decision on early or
conditional release may take account of those provisions of
national
indicated by the issuing State, under which the
person is entitled to early or conditional release at a specified
point in time.

law,

Article 18

Specialty

(g) for cases other than those mentioned under points (a) to (f),
where the issuing State gives its consent in accordance with
paragraph 3.

of

8(1)

in Article

3.
A request for consent shall be submitted to the competent
authority of the issuing State, accompanied by the information
Framework Decision
mentioned
2002/584/JHA and a translation as referred to in Article 8(2)
thereof. Consent shall be given where there is an obligation to
surrender
the person under that Framework Decision. The
decision shall be taken no later than 30 days after receipt of
the request. For the situations mentioned in Article 5 of that
Framework Decision, the executing State shall give the guar­
antees provided for therein.

1.
A person transferred to the executing State pursuant to
this Framework Decision shall not, subject to paragraph 2, be
prosecuted, sentenced or otherwise deprived of his or her liberty
for an offence committed before his or her transfer other than
that for which he or she was transferred.

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.

2.

Paragraph 1 shall not apply in the following cases:

(a) when the person having had an opportunity to leave the
territory of the executing State has not done so within 45
days of his or her final discharge, or has returned to that
territory after leaving it;

(b) when the offence is not punishable by a custodial sentence

or detention order;

(c) when the criminal proceedings do not give rise to the

application of a measure restricting personal liberty;

(d) when the sentenced person could be liable to a penalty or a
measure not involving deprivation of liberty, in particular a
financial penalty or a measure in lieu thereof, even if the
penalty or measure in lieu may give rise to a restriction of
his or her personal liberty;

(e) when the sentenced person consented to the transfer;

(f) when the sentenced person, after his or her transfer, has
expressly renounced entitlement to the specialty rule with
regard to specific offences preceding his or her transfer.
Renunciation shall be given before the competent judicial
authorities of the executing State and shall be recorded in
accordance with that State’s national law. The renunciation

Only the issuing State may decide on applications for
2.
review of the judgment imposing the sentence to be enforced
under this Framework Decision.

Article 20

Information from the issuing State

The competent authority of

the issuing State shall
1.
the executing
forthwith inform the competent authority of
State of any decision or measure as a result of which the
sentence ceases to be enforceable immediately or within a
certain period of time.

The competent authority of

the executing State shall
2.
terminate enforcement of
is
informed by the competent authority of the issuing State of
the decision or measure referred to in paragraph 1.

the sentence as

soon as

it

Article 21

Information to be given by the executing State

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:

(a) of the forwarding of the judgment and the certificate to the
execution in

authority responsible

for

its

competent
accordance with Article 5(5);

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(b) of the fact that it is in practice impossible to enforce the
sentence because after transmission of the judgment and the
certificate to the executing State,
the sentenced person
cannot be found in the territory of the executing State, in
which case there shall be no obligation on the executing
State to enforce the sentence;

(c) of the final decision to recognise the judgment and enforce

the sentence together with the date of the decision;

(d) of any decision not to recognise the judgment and enforce
the sentence in accordance with Article 9, together with the
reasons for the decision;

(e) of any decision to adapt the sentence in accordance with
the

together with the reasons for

(3),

Article 8(2) or
decision;

(f) of any decision not to enforce the sentence for the reasons
referred to in Article 19(1) together with the reasons for the
decision;

tariat of the Council that it will accept a translation in one or
more other official languages of the Institutions of the European
Union.

Subject to paragraph 3, no translation of the judgment

2.
shall be required.

3.
Any Member State may, on adoption of this Framework
Decision or later, in a declaration deposited with the General
Secretariat of the Council state that it, as an executing State,
may without delay after receiving the judgment and the certifi­
cate, request, in cases where it finds the content of the certifi­
cate insufficient to decide on the enforcement of the sentence,
that the judgment or essential parts of it be accompanied by a
translation into the official
the official
languages of the executing State or into one or more other
languages of the Institutions of the European Union.
official
shall be made, after consultation, where
Such a request
necessary, to indicate the essential parts of the judgments to
be translated, between the competent authorities of the issuing
and the executing States.

language or one of

(g) of the beginning and the end of the period of conditional
release, where so indicated in the certificate by the issuing
State;

(h) of the sentenced person’s escape from custody;

The decision on recognition of the judgment and enforcement
of the sentence may be postponed until the translation has been
transmitted by the issuing State to the executing State or, where
the executing State decides to translate the judgment at its own
expenses, until the translation has been obtained.

(i) of the enforcement of the sentence as soon as it has been

completed.

Article 22

Consequences of the transfer of the sentenced person

Subject to paragraph 2, the issuing State shall not proceed
1.
with the enforcement of the sentence once its enforcement in
the executing State has begun.

Article 24

Costs

Costs resulting from the application of this Framework Decision
shall be borne by the executing State, except for the costs of the
transfer of the sentenced person to the executing State and
the
those arising exclusively in the sovereign territory of
issuing State.

The right

to enforce the sentence shall revert

2.
to the
issuing State upon its being informed by the executing State
of the partial non-enforcement of the sentence pursuant
to
Article 21(h).

Article 23

Languages

The certificate shall be translated into the official language
1.
or one of the official
languages of the executing State. Any
Member State may, on adoption of this Framework Decision
or later, state in a declaration deposited with the General Secre­

Article 25

Enforcement of sentences following a European arrest
warrant

Without prejudice to Framework Decision 2002/584/JHA,
this Framework Decision shall apply, mutatis
provisions of
mutandis to the extent
they are compatible with provisions
under that Framework Decision, to enforcement of sentences
in cases where a Member State undertakes to enforce the
sentence in cases pursuant to Article 4(6) of that Framework
Decision, or where, acting under Article 5(3) of that Framework
Decision, it has imposed the condition that the person has to be
returned to serve the sentence in the Member State concerned,
so as to avoid impunity of the person concerned.

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CHAPTER III

FINAL PROVISIONS

Article 26

Article 27

Territorial application

This Framework Decision shall apply to Gibraltar.

Relationship with other agreements and arrangements

1. Without prejudice to their application between Member
States and third States and their
transitional application
according to Article 28, this Framework Decision shall, from
5 December 2011, replace the corresponding provisions of the
following conventions applicable in relations between the
Member States:

— The European Convention on the transfer of sentenced
persons of 21 March 1983 and the Additional Protocol
thereto of 18 December 1997;

— The European Convention on the International Validity of

Criminal Judgements of 28 May 1970;

— Title III, Chapter 5, of the Convention of 19 June 1990
implementing the Schengen Convention of 14 June 1985
on the gradual abolition of checks at common borders;

— The Convention between the Member States of

the
European Communities on the Enforcement of Foreign
Criminal Sentences of 13 November 1991.

Article 28

Transitional provision

1.
Requests received before 5 December 2011 shall continue
to be governed in accordance with the existing legal instruments
on the transfer of sentenced persons. Requests received after
that date shall be governed by the rules adopted by Member
States pursuant to this Framework Decision.

However, any Member State may, on the adoption of this
2.
in
Framework Decision, make a declaration indicating that,
judgment has been issued before the
cases where the final
date it specifies,
it will as an issuing and an executing State,
continue to apply the existing legal instruments on the transfer
of sentenced persons applicable before 5 December 2011. If
such a declaration is made, those instruments shall apply in
such cases in relation to all other Member States irrespective
of whether or not they have made the same declaration. The
date in question may not be later than 5 December 2011. The
said declaration shall be published in the Official Journal of the
European Union. It may be withdrawn at any time.

Article 29

Implementation

2. Member States may continue to apply bilateral or multi­
lateral agreements or arrangements in force after 27 November
2008, in so far as they allow the objectives of this Framework
Decision to be extended or enlarged and help to simplify or
facilitate
enforcement of
sentences.

the procedures

further

the

for

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

take the necessary measures

shall

3. Member States may conclude bilateral or multilateral
agreements or arrangements after 5 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 enforcement
of sentences.

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. On the basis of a report
established using this information by the Commission,
the
Council shall, no later than 5 December 2012, assess the
to which Member States have complied with the
extent
provisions of this Framework Decision.

the Commission of

4. Member States shall by 5 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

The General Secretariat of the Council shall notify the
3.
Member States and the Commission of
the notifications or
declarations made pursuant to Article 4(7) and Article 23(1)
or (3).

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the Treaty on
4. Without prejudice to Article 35(7) of
European Union, a Member State which has experienced
repeated difficulties in the application of Article 25 of this
Framework Decision, which have not been solved through
inform the Council and the
bilateral consultations,
Commission of its difficulties. The Commission shall, on the
basis of this information and any other information available
to it, establish a report, accompanied by any initiatives it may
deem appropriate, with a view to resolving these difficulties.

shall

5.
By 5 December 2013, the Commission shall establish a
report on the basis of the information received, accompanied by
any initiatives it may deem appropriate. The Council shall on
the basis of any report from the Commission and any initiative,
review,
in particular Article 25, with a view to considering
whether it is to be replaced by more specific provisions.

Article 30

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, 27 November 2008.

For the Council
The President

M. ALLIOT-MARIE

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ANNEX I

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ANNEX II

NOTIFICATION OF THE SENTENCED PERSON

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

You are hereby notified of the decision of .......................................... (competent authority of the issuing State) to forward
(competent court of the issuing State) dated ................................... (date of judgment)
the judgment of
.......................................... (reference number; if available) to .........................................
(executing State) for the purpose of its
recognition and enforcement of the sentence imposed therein in accordance with the national law implementing Council
Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition of
judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose
of their enforcement in the European Union.

The enforcement of the sentence will be governed by the law of ...................................... (executing State). The authorities
of that State will be competent to decide on the procedures for enforcement and to determine all the measures relating
thereto, including the grounds for early or conditional release.

The competent authority of .............................................................................. (executing State) has to deduct the full period of
deprivation of liberty already served in connection with the sentence from the total duration of deprivation of liberty to
(executing State)
be served. An adaptation of the sentence by the competent authority of .......................................................
may take place only if it is incompatible with the law of that State in terms of its duration or nature. The adapted
sentence must not aggravate the sentence passed in ................................................. (issuing State) by its nature or duration.