Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial
Date: 2009-02-26
Institutions: Council of the European Union
Subjects: EU Member State, European Court of Human Rights, human rights, judicial cooperation, legislative procedure, mutual recognition principle

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III

(Acts adopted under the EU Treaty)

ACTS ADOPTED UNDER TITLE VI OF THE EU TREATY

COUNCIL FRAMEWORK DECISION 2009/299/JHA

of 26 February 2009

amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and
2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of
the principle of mutual recognition to decisions rendered in the absence of the person concerned at
the trial

THE COUNCIL OF THE EUROPEAN UNION,

concerned did not appear in person. This diversity could
complicate the work of
the practitioner and hamper
judicial cooperation.

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

Having regard to the initiative of the Republic of Slovenia, the
French Republic, the Czech Republic, the Kingdom of Sweden,
the Slovak Republic, the United Kingdom of Great Britain and
Northern Ireland and the Federal Republic of Germany (1),

(3)

Having regard to the opinion of the European Parliament,

Whereas:

(1)

(2)

The right of an accused person to appear in person at the
trial is included in the right to a fair trial provided for in
Article 6 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, as interpreted by the
European Court of Human Rights. The Court has also
declared that the right of the accused person to appear in
person at the trial is not absolute and that under certain
conditions the accused person may, of his or her own
free will, expressly or tacitly but unequivocally, waive
that right.

implementing the
The various Framework Decisions
principle of mutual
judicial
decisions do not deal consistently with the issue of
decisions rendered following a trial at which the person

recognition of

final

to

financial

recognition

recognition

confiscation

sentences or measures

Solutions provided by these Framework Decisions are not
satisfactory as regards cases where the person could not
be informed of the proceedings. Framework Decisions
2005/214/JHA on the application of the principle of
penalties (2),
mutual
to
2006/783/JHA on the application of the principle of
orders (3),
mutual
2008/909/JHA 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) and 2008/947/JHA 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 (5) allow the executing authority to refuse the
execution of
Framework Decision
2002/584/JHA on the European arrest warrant and the
surrender procedures between Member States (6) allows
the executing authority to require the issuing authority
to give an assurance deemed adequate to guarantee the
person who is the subject of the European arrest warrant
that he or she will have an opportunity to apply for a
retrial of the case in the issuing Member State and to be
present when the judgment is given. The adequacy of
such an assurance is a matter to be decided by the
executing authority, and it is therefore difficult to know
exactly when execution may be refused.

such judgments.

(2) Framework Decision of 24 February 2005 (OJ L 76, 22.3.2005,

p. 16).

(3) Framework Decision of 6 October 2006 (OJ L 328, 24.11.2006,

p. 59).

(4) Framework Decision of 27 November 2008 (OJ L 327, 5.12.2008,

p. 27).

(5) Framework Decision of 27 November 2008 (OJ L 337, 16.12.2008,

p. 102).

(1) OJ C 52, 26.2.2008, p. 1.

(6) Framework Decision of 13 June 2002 (OJ L 190, 18.7.2002, p. 1).

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(4)

(5)

(6)

(7)

refining the definition of

It is therefore necessary to provide clear and common
grounds
rendered
for non-recognition of decisions
following a trial at which the person concerned did
in person. This Framework Decision is
not appear
such common
aimed at
grounds allowing the executing authority to execute the
decision despite the absence of the person at the trial,
while fully respecting the person’s right of defence. This
Framework Decision is not designed to regulate the
including procedural requirements,
forms and methods,
that are used to achieve the results specified in this
Framework Decision, which are
the
national laws of the Member States.

a matter

for

require

Such changes
Framework Decisions
mutual recognition of final
provisions
instruments in this field.

the

amendment of

existing
implementing the principle of
judicial decisions. The new
future

for

should also serve as a basis

person concerned needs to be aware of the scheduled
the person’s
this Framework Decision,
trial. Under
should be ensured by each
awareness of
the trial
Member State in accordance with its national
it
this must comply with the
being understood that
requirements of
In accordance with
the case law of the European Court of Human Rights,
when considering whether the way in which the infor­
mation is provided is sufficient to ensure the person’s
awareness of the trial, particular attention could, where
appropriate, also be paid to the diligence exercised by the
person concerned in order
information
addressed to him or her.

that Convention.

to receive

law,

(9)

The scheduled date of a trial may for practical reasons
initially be expressed as several possible dates within a
short period of time.

(10)

(11)

The provisions of this Framework Decision amending
other Framework Decisions set conditions under which
the recognition and execution of a decision rendered
following a trial at which the person concerned did
not appear in person should not be refused. These are
alternative conditions; when one of
the conditions is
satisfied, the issuing authority, by completing the corre­
sponding section of the European arrest warrant or of
the other Framework
the relevant certificate under
Decisions, gives the assurance that
the requirements
have been or will be met, which should be sufficient
for the purpose of the execution of the decision on the
basis of the principle of mutual recognition.

the scheduled date and place of

The recognition and execution of a decision rendered
following a trial at which the person concerned did
not appear in person should not be refused if either he
or she was summoned in person and thereby informed
the trial which
of
she actually
resulted in the decision, or
received, by other means, official
the
scheduled date and place of that trial in such a manner
that it was unequivocally established that he or she was
is
aware of
understood that the person should have received such
information ‘in due time’, meaning sufficiently in time
to allow him or her to participate in the trial and to
effectively exercise his or her right of defence.

the scheduled trial.

In this context,

information of

if he or

it

The recognition and execution of a decision rendered
following a trial at which the person concerned did
not appear in person should not be refused where the
person concerned, being aware of the scheduled trial, was
defended at the trial by a legal counsellor to whom he or
she had given a mandate to do so, ensuring that legal
assistance is practical and effective.
it
should not matter whether
the legal counsellor was
chosen, appointed and paid by the person concerned,
this legal counsellor was appointed and
or whether
paid by the State,
it being understood that the person
concerned should deliberately have chosen to be rep­
resented by a legal counsellor instead of appearing in
the legal
the trial. The appointment of
person at
counsellor and related issues are a matter of national law.

In this context,

in

grounds
existing

concerning
relevant

for non-
Common solutions
Framework
recognition
the
the diversity of
Decisions should take into account
the person
situations with regard to the right of
concerned to a retrial or an appeal. Such a retrial, or
appeal,
the
defence and is characterised by the following elements:
the person concerned has the right to be present, the
including fresh evidence are re-
merits of
examined, and the proceedings can lead to the original
decision being reversed.

is aimed at guaranteeing the rights of

the case,

(8)

The right to a fair trial of an accused person is guaran­
teed by the Convention for the Protection of Human
Rights and Fundamental Freedoms, as interpreted by
the European Court of Human Rights. This
right
includes the right of the person concerned to appear in
person at the trial. In order to exercise this right, the

(12)

The right to a retrial or appeal should be guaranteed
when the decision has already been served as well as,
in the case of the European arrest warrant, when it had
not yet been served, but will be served without delay
after the surrender. The latter case refers to a situation
where the authorities failed in their attempt to contact
the person,
in particular because he or she sought to
evade justice.

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(13)

(14)

is issued for the
In case a European arrest warrant
purpose of executing a custodial sentence or detention
order and the person concerned has not previously
received any official information about the existence of
the criminal proceedings against him or her, nor has
been served with the judgment,
this person should,
in the executing Member State,
following a request
receive
information
the
copy of
a
purposes only. The issuing and executing judicial au­
thorities should, where appropriate, consult each other
on the need and existing possibilities to provide the
person concerned with a translation of the judgment,
or of essential parts thereof,
the
person understands. Such provision of
the judgment
should neither delay the surrender procedure nor delay
the decision to execute the European arrest warrant.

in a language that

judgment

for

the

principle

of mutual

This Framework Decision is limited to refining the defin­
ition of grounds for non-recognition in instruments im­
plementing
recognition.
Therefore, provisions such as those relating to the right
to a retrial have a scope which is limited to the definition
these grounds for non-recognition. They are not
of
designed
This
Framework Decision is without prejudice to future
European Union designed to
instruments of
approximate the laws of the Member States in the field
of criminal law.

legislation.

harmonise

national

the

to

(15)

The grounds for non-recognition are optional. However,
the discretion of Member States for transposing these
grounds into national
law is particularly governed by
the right to a fair trial, while taking into account the
overall objective of
Framework Decision to
enhance the procedural rights of persons and to facilitate
judicial cooperation in criminal matters,

this

HAS ADOPTED THIS FRAMEWORK DECISION:

This Framework Decision establishes common rules for
3.
the recognition and/or execution of judicial decisions in one
Member State (the executing Member State) issued by another
Member State (the issuing Member State) following proceedings
at which the person concerned was not present, pursuant to the
provisions
Framework Decision
2002/584/JHA, of Article 7(2)(g) of Framework Decision
2005/214/JHA, of Article 8(2)(e) of Framework Decision
2006/783/JHA, of Article 9(1)(i) of Framework Decision
2008/909/JHA and of Article 11(1)(h) of Framework Decision
2008/947/JHA.

of Article

5(1)

of

Article 2

Amendments to Framework Decision 2002/584/JHA

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

1. the following Article shall be inserted:

‘Article 4a

Decisions rendered following a trial at which the person
did not appear in person

The executing judicial authority may also refuse to
1.
execute the European arrest warrant issued for the purpose
of executing a custodial sentence or a detention order if the
person did not appear in person at the trial resulting in the
decision, unless the European arrest warrant states that the
person, in accordance with further procedural requirements
defined in the national law of the issuing Member State:

(a)

in due time:

summoned in person and thereby
(i) either was
informed of
the
the scheduled date and place of
trial which resulted in the decision, or by other
information of the
means actually received official
scheduled date and place of
in such a
that
manner that
it was unequivocally established that
he or she was aware of the scheduled trial;

trial

Article 1

Objectives and scope

and

1.
The objectives of this Framework Decision are to enhance
the procedural rights of persons subject to criminal proceedings,
to facilitate judicial cooperation in criminal matters and,
in
particular, to improve mutual recognition of judicial decisions
between Member States.

(ii) was informed that a decision may be handed down if

he or she does not appear for the trial;

or

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

(b) being aware of the scheduled trial, had given a mandate
to a legal counsellor, who was either appointed by the
person concerned or by the State, to defend him or her
at the trial, and was indeed defended by that counsellor
at the trial;

or

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(c) after being served with the decision and being expressly
informed about the right to a retrial, or an appeal,
in
which the person has the right to participate and which
allows the merits of the case, including fresh evidence, to
be re-examined, and which may lead to the original
decision being reversed:

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

decision;

or

(ii) did not

request a retrial or appeal within the

applicable time frame;

or

(d) was not personally served with the decision but:

(i) will be personally served with it without delay after
the surrender and will be expressly informed of his
or her right to a retrial, or an appeal, in which the
person has the right to participate and which allows
the merits of the case, including fresh evidence, to be
re-examined, and which may lead to the original
decision being reversed;

the existence of

In case the European arrest warrant is issued for the
2.
purpose of executing a custodial sentence or detention order
under the conditions of paragraph 1(d) and the person
concerned has not previously received any official
infor­
the criminal proceedings
mation about
against him or her, he or she may, when being informed
about the content of the European arrest warrant, request to
receive a copy of the judgment before being surrendered.
Immediately after having been informed about the request,
the issuing authority shall provide the copy of the judgment
via the executing authority to the person sought. The request
of
the person sought shall neither delay the surrender
procedure nor delay the decision to execute the European
arrest warrant. The provision of the judgment to the person
concerned is for information purposes only; it shall neither
be regarded as a formal service of the judgment nor actuate
any time limits applicable for requesting a retrial or appeal.

In case a person is surrendered under the conditions of
3.
paragraph (1)(d) and he or she has requested a retrial or
appeal, the detention of that person awaiting such retrial
these proceedings are finalised, be
or appeal shall, until
issuing
law of
reviewed in accordance with the
Member State, either on a regular basis or upon request of
the person concerned. Such a review shall
in particular
include the possibility of suspension or interruption of the
detention. The retrial or appeal shall begin within due time
after the surrender.’;

the

and

2.

in Article 5, paragraph 1 shall be deleted;

(ii) will be informed of the time frame within which he
or she has to request such a retrial or appeal, as
mentioned in the relevant European arrest warrant.

3.

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

‘(d)

Indicate if the person appeared in person at the trial resulting in the decision:
1.  Yes, the person appeared in person at the trial resulting in the decision.
2.  No, the person did not appear in person at the trial resulting in the decision.

3. If you have ticked the box under point 2, please confirm the existence of one of the following:

 3.1a.

OR

 3.1b.

the person was summoned in person on … (day/month/year) and thereby informed of
the scheduled date and place of the trial which resulted in the decision and was
informed that a decision may be handed down if he or she does not appear for the
trial;

the person was not summoned in person but by other means actually received official
information of the scheduled date and place of the trial which resulted in the decision,
in such a manner that it was unequivocally established that he or she was aware of the
scheduled trial, and was informed that a decision may be handed down if he or she
does not appear for the trial;

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OR

 3.2.

OR

 3.3.

OR

 3.4.

being aware of the scheduled trial, the person had given a mandate to a legal coun­
sellor, who was either appointed by the person concerned or by the State, to defend
him or her at the trial, and was indeed defended by that counsellor at the trial;

the person was served with the decision on … (day/month/year) and was expressly
informed about the right to a retrial or appeal, in which he or she has the right to
participate and which allows the merits of the case, including fresh evidence, to be re-
examined, and which may lead to the original decision being reversed, and

 the person expressly stated that he or she does not contest this decision,

OR

 the person did not request a retrial or appeal within the applicable time frame;

the person was not personally served with the decision, but
— the person will be personally served with this decision without delay after the

surrender, and

— when served with the decision, the person will be expressly informed of his or her
right to a retrial or appeal, in which he or she has the right to participate and
which allows the merits of the case, including fresh evidence, to be re-examined,
and which may lead to the original decision being reversed, and

— the person will be informed of the time frame within which he or she has to

request a retrial or appeal, which will be … days.

4.

If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about
how the relevant condition has been met:

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

........................................................................................................................................................................................ ’

Amendments to Framework Decision 2005/214/JHA

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

Article 3

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

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

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

(b) the following points shall be added:

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‘(i) according to the certificate provided for in Article 4, the person did not appear in person at the
in accordance with

trial resulting in the decision, unless the certificate states that the person,
further procedural requirements defined in the national law of the issuing State:

(i) in due time:

— either was summoned in person and thereby informed of the scheduled date and place of
the trial which resulted in the decision, or by other means actually received official
information of the scheduled date and place of that trial in such a manner that it was
unequivocally established that he or she was aware of the scheduled trial,

and

— was informed that a decision may be handed down if he or she does not appear for the

trial;

or

(ii) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either
appointed by the person concerned or by the State, to defend him or her at the trial, and was
indeed defended by that counsellor at the trial;

or

(iii) after being served with the decision and being expressly informed of the right to a retrial, or
an appeal, in which he or she has the right to participate and which allows the merits of the
case, including fresh evidence, to be re-examined, and which may lead to the original decision
being reversed:

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

or

— did not request a retrial or appeal within the applicable time frame;

(j) according to the certificate provided for in Article 4, the person did not appear in person, unless
the certificate states that the person, having been expressly informed about the proceedings and
the possibility to appear in person in a trial, expressly waived his or her right to an oral hearing
and has expressly indicated that he or she does not contest the case.’;

2. Article 7(3) shall be replaced by the following:

‘3.
In the cases referred to in paragraphs 1 and 2(c), (g), (i) and (j), before deciding not to recognise
and to execute a decision, either totally or in part, the competent authority in the executing State shall
consult the competent authority in the issuing State, by any appropriate means, and shall, where
appropriate, ask it to supply any necessary information without delay.’;

3.

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

‘3.

Indicate if the person concerned appeared in person at the trial resulting in the decision:
1.  Yes, the person appeared in person at the trial resulting in the decision.
2.  No, the person did not appear in person at the trial resulting in the decision.
3. If you have ticked the box under point 2, please confirm the existence of one of the following:

 3.1a.

the person was summoned in person on … (day/month/year) and thereby informed of
the scheduled date and place of the trial which resulted in the decision and was
informed that a decision may be handed down if he or she does not appear for the trial;

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OR

 3.1b.

OR

 3.2.

OR

 3.3.

OR

 3.4.

Official Journal of the European Union

27.3.2009

the person was not summoned in person but by other means actually received official
information of the scheduled date and place of the trial which resulted in the decision,
in such a manner that it was unequivocally established that he or she was aware of the
scheduled trial, and was informed that a decision may be handed down if he or she does
not appear for the trial;

being aware of the scheduled trial, the person had given a mandate to a legal counsellor,
who was either appointed by the person concerned or by the State, to defend him or
her at the trial, and was indeed defended by that counsellor at the trial;

the person was served with the decision on … (day/month/year) and was expressly
informed about the right to a retrial or appeal, in which he or she has the right to
participate and which allows the merits of the case, including fresh evidence, to be re-
examined, and which may lead to the original decision being reversed, and

 the person expressly stated that he or she does not contest this decision,

OR

 the person did not request a retrial or appeal within the applicable time frame;

the person, having been expressly informed about the proceedings and the possibility to
appear in person in a trial, expressly waived his or her right to an oral hearing and has
expressly indicated that he or she does not contest the case.

4.

If you have ticked the box under points 3.1b, 3.2, 3.3 or 3.4 above, please provide information
about how the relevant condition has been met:

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

........................................................................................................................................................................................ ’

Article 4

Amendments to Framework Decision 2006/783/JHA

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

1.

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

‘(e) according to the certificate provided for in Article 4(2), the person did not appear in person at the
trial resulting in the confiscation order, unless the certificate states that the person, in accordance
with further procedural requirements defined in the national law of the issuing State:

(i) in due time:

— either was summoned in person and thereby informed of the scheduled date and place of the
trial which resulted in the confiscation order, or by other means actually received official
information of the scheduled date and place of that trial
in such a manner that it was
unequivocally established that he or she was aware of the scheduled trial,

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and

— was informed that such a confiscation order may be handed down if he or she does not

appear for the trial;

or

(ii) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either
appointed by the person concerned or by the State, to defend him or her at the trial, and was
indeed defended by that counsellor at the trial;

or

(iii) after being served with the confiscation order and being expressly informed of the right to a
retrial, or an appeal, in which the person has the right to participate and which allows the merits
of the case, including fresh evidence, to be re-examined, and which may lead to the original
decision being reversed:

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

or

— did not request a retrial or appeal within the applicable time frame.’;

2.

in the Annex (CERTIFICATE), point (j) shall be replaced by the following:

‘(j) Proceedings resulting in the confiscation order

Indicate if the person appeared in person at the trial resulting in the confiscation order:
1.  Yes, the person appeared in person at the trial resulting in the confiscation order.
2.  No, the person did not appear in person at the trial resulting in the confiscation order.

3. If you have ticked the box under point 2, please confirm the existence of one of the following:

the person was summoned in person on … (day/month/year) and thereby informed of
the scheduled date and place of the trial which resulted in the confiscation order and
was informed that a decision may be handed down if he or she does not appear for the
trial;

the person was not summoned in person but by other means actually received official
information of the scheduled date and place of the trial which resulted in the confis­
cation order, in such a manner that it was unequivocally established that he or she was
aware of the scheduled trial, and was informed that a decision may be handed down if
he or she does not appear for the trial;

being aware of the scheduled trial, the person had given a mandate to a legal counsellor,
who was either appointed by the person concerned or by the State, to defend him or
her at the trial, and was indeed defended by that counsellor at the trial;

 3.1a.

OR

 3.1b.

OR

 3.2.

OR

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 3.3.

the person was served with the confiscation order on … (day/month/year) and was
expressly informed about the right to a retrial or appeal, in which he or she has the
right to participate and which allows the merits of the case, including fresh evidence, to
be re-examined, and which may lead to the original decision being reversed, and

 the person expressly stated that he or she does not contest the decision,

OR

 the person did not request a retrial or appeal within the applicable time frame.

4.

If you have ticked the box under points 3.1b, 3.2, 3.3 or 3.4 above, please provide information
about how the relevant condition has been met:

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

........................................................................................................................................................................................ ’

Article 5

Amendments to Framework Decision 2008/909/JHA

Framework Decision 2008/909/JHA is hereby amended as follows:

1.

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

‘(i) according to the certificate provided for in Article 4, the person did not appear in person at the trial
in accordance with further

resulting in the decision, unless the certificate states that the person,
procedural requirements defined in the national law of the issuing State:

(i) in due time:

— either was summoned in person and thereby informed of the scheduled date and place of the
trial which resulted in the decision, or by other means actually received official information of
in such a manner that it was unequivocally
the scheduled date and place of that trial
established that he or she was aware of the scheduled trial,

and

— was informed that a decision may be handed down if he or she does not appear for the trial;

or

(ii) being aware of the scheduled trial had given a mandate to a legal counsellor, who was either
appointed by the person concerned or by the State, to defend him or her at the trial, and was
indeed defended by that counsellor at the trial;

or

(iii) after being served with the decision and being expressly informed of the right to a retrial, or an
appeal, in which the person has the right to participate and which allows the merits of the case,
including fresh evidence, to be re-examined, and which may lead to the original decision being
reversed:

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

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or

— did not request a retrial or appeal within the applicable time frame.’;

2.

in point (i) of Annex I (CERTIFICATE), point 1 shall be replaced by the following:

‘1.

Indicate if the person appeared in person at the trial resulting in the decision:
1.  Yes, the person appeared in person at the trial resulting in the decision.
2.  No, the person did not appear in person at the trial resulting in the decision.

3. If you have ticked the box under point 2, please confirm the existence of one of the following:

 3.1a.

OR

 3.1b.

OR

 3.2.

OR
 3.3.

the person was summoned in person on … (day/month/year) and thereby informed of
the scheduled date and place of the trial which resulted in the decision and was
informed that a decision may be handed down if he or she does not appear for the trial;

the person was not summoned in person but by other means actually received official
information of the scheduled date and place of the trial which resulted in the decision,
in such a manner that it was unequivocally established that he or she was aware of the
scheduled trial, and was informed that a decision may be handed down if he or she does
not appear for the trial;

being aware of the scheduled trial the person had given a mandate to a legal counsellor,
who was either appointed by the person concerned or by the State, to defend him or
her at the trial, and was indeed defended by that counsellor at the trial;

the person was served with the decision on … (day/month/year) and was expressly
informed about the right to a retrial or appeal, in which he or she has the right to
participate and which allows the merits of the case, including fresh evidence, to be re-
examined, and which may lead to the original decision being reversed, and

 the person expressly stated that he or she does not contest this decision,

OR

 the person did not request a retrial or appeal within the applicable time frame.

4.

If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about
how the relevant condition has been met:

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

........................................................................................................................................................................................ ’

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Article 6

Amendments to Framework Decision 2008/947/JHA

Framework Decision 2008/947/JHA is hereby amended as follows:

1.

in Article 11(1), point (h) shall be replaced by the following:

‘(h) according to the certificate provided for in Article 6, the person did not appear in person at the trial
in accordance with further

resulting in the decision, unless the certificate states that the person,
procedural requirements defined in the national law of the issuing State:

(i) in due time:

— either was summoned in person and thereby informed of the scheduled date and place of the
trial which resulted in the decision, or by other means actually received official information
of the scheduled date and place of that trial in such a manner that it was unequivocally
established that he or she was aware of the scheduled trial,

and

— was informed that a decision may be handed down if he or she does not appear for the trial;

or

(ii) being aware of the scheduled trial had given a mandate to a legal counsellor, who was either
appointed by the person concerned or by the State, to defend him or her at the trial, and was
indeed defended by that counsellor at the trial;

or

(iii) after being served with the decision and being expressly informed about the right to a retrial, or
an appeal, in which the person has the right to participate and which allows the merits of the
case, including fresh evidence, to be re-examined, and which may lead to the original decision
being reversed:

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

or

— did not request a retrial or appeal within the applicable time frame.’;

2.

in Annex I (CERTIFICATE), point (h) shall be replaced by the following:

‘(h)

Indicate if the person appeared in person at the trial resulting in the decision:
1.  Yes, the person appeared in person at the trial resulting in the decision.
2.  No, the person did not appear in person at the trial resulting in the decision.

3. If you have ticked the box under point 2, please confirm the existence of one of the following:

 3.1a.

the person was summoned in person on … (day/month/year) and thereby informed of
the scheduled date and place of the trial which resulted in the decision and was
informed that a decision may be handed down if he or she does not appear for the trial;

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Official Journal of the European Union

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OR

 3.1b.

OR

 3.2.

OR

 3.3.

the person was not summoned in person but by other means actually received official
information of the scheduled date and place of the trial which resulted in the decision,
in such a manner that it was unequivocally established that he or she was aware of the
scheduled trial, and was informed that a decision may be handed down if he or she does
not appear for the trial;

being aware of the scheduled trial the person had given a mandate to a legal counsellor,
who was either appointed by the person concerned or by the State, to defend him or
her at the trial, and was indeed defended by that counsellor at the trial;

the person was served with the decision on … (day/month/year) and was expressly
informed about the right to a retrial or appeal, in which he or she has the right to
participate and which allows the merits of the case, including fresh evidence, to be re-
examined, and which may lead to the original decision being reversed, and

 the person expressly stated that he or she does not contest this decision,

OR

 the person did not request a retrial or appeal within the applicable time frame.

4.

If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about
how the relevant condition has been met:

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

........................................................................................................................................................................................ ’

Article 7

Territorial application

This Framework Decision shall apply to Gibraltar.

Article 8

Implementation and transitional provisions

1. Member States
to
comply with the provisions of this Framework Decision by
28 March 2011.

take the necessary measures

shall

2.
This Framework Decision shall apply as from the date
mentioned in paragraph 1 to the recognition and enforcement

of decisions rendered in the absence of the person concerned at
the trial.

If a Member State has declared, on the adoption of this
3.
Framework Decision, to have serious reasons to assume that it
will not be able to comply with the provisions of
this
Framework Decision by the date referred to in paragraph 1,
this Framework Decision shall apply as from 1 January 2014
at the latest to the recognition and enforcement of decisions,
rendered in the absence of the person concerned at the trial
which are issued by the competent authorities of that Member
State. Any other Member State may require that the Member
State having made such a declaration shall apply the relevant
provisions of the Framework Decisions referred to in Articles 2,
3, 4, 5 and 6 in the versions in which they were adopted
originally to the recognition and enforcement of decisions,
rendered in the absence of the person concerned at the trial,
which were issued by such other Member State.

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Until the dates mentioned in paragraphs 1 and 3, the
4.
relevant provisions of the Framework Decisions referred to in
Articles 2, 3, 4, 5 and 6 shall continue to apply in the versions
in which they were adopted originally.

(a)

the extent to which Member States have taken the necessary
measures in order to comply with this Framework Decision;
and

5.
A declaration made in accordance with paragraph 3 shall
be published in the Official Journal of the European Union. It may
be withdrawn at any time.

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

Article 9

Review

By 28 March 2014, the Commission shall draw up a
the information received from the

1.
report on the basis of
Member States pursuant to Article 8(6).

On the basis of the report referred to in paragraph 1, the

2.
Council shall assess:

(b) the application of this Framework Decision.

The report referred to in paragraph 1 shall be accom­

3.
panied, where necessary, by legislative proposals.

Article 10

Entry into force

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

Done at Brussels, 26 February 2009.

For the Council
The President

I. LANGER