Council Decision 2005/876/JHA of  21 November 2005  on the exchange of information extracted from the criminal record

9.12.2005 EN Official Journal of the European Union L 322/33
COUNCIL DECISION 2005/876/JHA
of 21 November 2005
on the exchange of information extracted from the criminal record
THE COUNCIL OF THE EUROPEAN UNION
,
Having regard to the Treaty on European Union, and in particular Articles 31 and 34(2)(c) thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Whereas:
(1) According to Article 29 of the Treaty on European Union, the European Union has set itself the objective to provide citizens with a high level of safety within an area of freedom, security and justice. This objective presupposes the exchange of information concerning criminal convictions of persons who reside in the territory of the Member States between the competent authorities of the Member States.
(2) On 29 November 2000, the Council, in accordance with the conclusions of the Tampere European Council of 15 and 16 October 1999, adopted a programme of measures to implement the principle of mutual recognition in criminal matters (3). This Decision contributes to achieving the goals provided for by Measure 3 of the programme, which calls for the establishment of a standard form like that drawn up for the Schengen bodies, translated into all the official Union languages, for criminal records applications.
(3) Articles 13 and 22 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (4) provide for systems for the transmission of information on convictions between the Contracting Parties, but they are too slow to meet the demands of judicial cooperation in an area such as that of the European Union.
(4) The Final Report on the first evaluation exercise — mutual legal assistance in criminal matters (5), called on Member States to simplify the procedures for transferring documents between States, using, if necessary, standard forms to facilitate mutual judicial assistance.
(5) On 25 March 2004, the European Council instructed the Council to examine measures on the exchange of information on convictions for terrorist offences and the possibility of a European register on convictions and disqualifications, and the Commission in its communication on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information, stressed the importance of an effective mechanism for transmission of information on convictions and disqualifications.
(6) This Decision respects the principle of subsidiarity referred to in Article 2 of the Treaty on European Union and Article 5 of the Treaty establishing the European Community, since the improvement of systems for the transmission of information on convictions between Member States cannot be carried out adequately by the Member States unilaterally and requires coordinated action in the European Union. In accordance with the principle of proportionality, as set out in the said Article 5, this Decision does not go beyond what is necessary in order to achieve that objective.
(7) The improvement of systems for the transmission of information on convictions implies that convictions pronounced in a Member State against nationals of another Member State are known about by the latter Member State as soon as possible and that each Member State may obtain information which it needs from criminal records from other Member States within a very short time.
(8) This Decision supplements and facilitates the existing mechanisms for the transmission of information on convictions based on existing conventions. In particular, the provisions concerning requests for information extracted from the criminal record do not replace the possibility available to the judicial authorities of transmitting information concerning criminal records direct to each other under Article 6(1) of the Convention on mutual assistance in criminal matters between the Member States of the European Union established by Council Act of 29 May 2000 (6). It provides, however, for a specific right for the central authority of a Member State to send a request for information extracted from the criminal record to the central authority of another Member State, in the circumstances determined by national law.
(9) The personal data processed under this Decision will be protected in accordance with the principles enacted in the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data.
(10) Under Council of Europe Recommendation No R (84) 10 on the criminal record and rehabilitation of convicted persons, the main aim of establishment of the criminal record is to inform the authorities responsible for the criminal justice system of the background of a person subject to legal proceedings with a view to adapting the decision to be taken to the individual situation. Since all other use of the criminal record that might compromise the chances of social rehabilitation of the convicted person must be as limited as possible, the use of information transmitted under this Decision for use otherwise than in the course of criminal proceedings can be limited in accordance with the national legislation of the requested State and the requesting State.
(11) This Decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and restated by the Charter of Fundamental Rights of the European Union.
(12) This Decision does not have the effect of obliging Member States to register convictions or information in criminal matters in their criminal record other than those which they are obliged to register according to national law.
(13) This Decision does not apply to the transmission of rulings or copies thereof,