Council of the
European Union
Brussels, 23 February 2023
(OR. en)
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COPEN 343
DROIPEN 135
EVAL 23
JAI 1280
EUROJUST 93
EJN 38
CATS 61
NOTE
From:
To:

General Secretariat of the Council
Delegations

Subject:

Final report on the 9th round of mutual evaluations on Mutual recognition
legal instruments in the field of deprivation or restriction of liberty.

In line with Article 2 of Joint Action 97/827/JHA of 5 December 1997, the Coordinating Committee
in the area of police and judicial cooperation in criminal matters (‘CATS’) decided at its meeting on
21 November 2018 that the ninth round of mutual evaluations would be devoted to the principle of
mutual recognition.
Due to the broad range of legal instruments in the field of mutual recognition and their wide scope,
it was agreed at the CATS meeting on 12 February 2019 that the evaluation would focus on the
following mutual recognition instruments:
-

Framework Decision 2002/584/JHA on the European arrest warrant and the surrender
procedures between Member States (‘EAW’);

-

Framework Decision 2008/909/JHA 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
(‘custodial sentences’);

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-

Framework Decision 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 (‘probation and alternative measures’);

-

Framework Decision 2009/829/JHA on the application, between Member States of the
European Union, of the principle on mutual recognition to decisions on supervision
measures as an alternative to provisional detention (‘ESO’).

The final report on the ninth round of mutual evaluations was prepared by the General Secretariat
of the Council on behalf of the Presidency, after a thorough and comparative examination of all
previously adopted reports for each individual Member State, in particular of the key findings, main
conclusions and recommendations, for the purpose of summarizing and analysing the outcome of
the 9th mutual evaluation round, with a view to having an overview of the measures to be
undertaken at national and EU level to enhance the use of the legal instruments covered by this
round.
At its meeting on 16 February 2023, CATS endorsed the above-mentioned report.
Coreper/Council is informed of the results of the 9th round of mutual evaluations as included in the
final report set out in the Annex.
In accordance with Article 8(4) of the above-mentioned Joint Action, the final report will also be
forwarded to the European Parliament for information.

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ANNEX

FINAL REPORT ON THE NINTH ROUND OF MUTUAL EVALUATIONS ON MUTUAL
RECOGNITION LEGAL INSTRUMENTS IN THE FIELD OF DEPRIVATION OR
RESTRICTION OF LIBERTY

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Table of Contents
1.

EXECUTIVE SUMMARY ........................................................................................................ 6

2.

INTRODUCTION ....................................................................................................................... 9

3.

Framework Decision 2002/584/JHA ......................................................................................... 12

4.

3.1

Proportionality ................................................................................................................. 12

3.2.

Judgements in absentia ................................................................................................... 16

3.3.

Grounds for refusal ......................................................................................................... 20

3.3.1.

Optional and mandatory grounds for refusal ............................................................... 20

3.3.2

Double criminality ....................................................................................................... 22

3.3.3.

Ne bis in idem principle ............................................................................................... 24

3.4

Detention conditions .......................................................................................................... 26

3.5

Issues linked to translation ............................................................................................. 30

3.6

Deadlines ............................................................................................................................ 32

Framework decision 2008/909/JHA .......................................................................................... 35
4.1.

Grounds for refusal ......................................................................................................... 35

4.2

Issues linked to detention conditions ............................................................................ 35

4.3

Assessment of social rehabilitation ............................................................................... 36

4.4.

Information, opinion and consent to the transfer of the sentenced person ............ 40

4.4.1.

The situation in the issuing Member State ................................................................... 40

4.4.2.

Situation in the executing Member State ..................................................................... 43

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4.5.

Adaptation and partial recognition .............................................................................. 45

4.5.1.

Adaptation .................................................................................................................... 45

4.5.2.

Partial recognition ........................................................................................................ 48

4.6.

Issues linked to translation ............................................................................................. 51

4.7.

Deadlines ............................................................................................................................ 54

5.

LINKS BETWEEN FRAMEWORK DECISIONS 2002/584/JHA and 2008/909/JHA ........... 56

6.

FRAMEWORK DECISIONS 2008/947/JHA AND 2009/829/JHA ......................................... 62

7.

6.1

Lack of application .......................................................................................................... 62

6.2

Framework Decision 2008/947/JHA ............................................................................. 65

6.3

Framework Decision 2009/829/JHA ............................................................................. 67

HORIZONTAL ISSUES............................................................................................................ 70
7.1

Central authority and direct contacts .......................................................................... 70

7.1.1.

Central authority and direct contacts under Framework Decision 2002/584/JHA ...... 70

7.1.2.

Central authority and direct contacts under Framework Decision 2008/909/JHA ...... 72

7.1.3.

Central authority and direct contacts under Framework Decisions 2008/947/JHA and

2009/829/JHA ............................................................................................................................ 73
7.2.

Specialisation of the competent authorities ................................................................. 73

7.3.

Cooperation and exchange of information .................................................................. 75

7.4.

Transit of the requested or sentenced person ............................................................. 79

7.5.

Cooperation with Eurojust and EJN ............................................................................ 81

7.6.

Training ............................................................................................................................. 85

7.7.

Statistics ............................................................................................................................. 90

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1.

EXECUTIVE SUMMARY

The ninth round of mutual evaluations was dedicated to four mutual recognition instruments in the
field of judicial cooperation in criminal matters, relating to deprivation or restriction of liberty. The
final report contains key recommendations addressed to the Member States and to EU institutions
and agencies, aiming to further enhance application of the instruments subject to the evaluations.
No particular need for legislation at EU level was highlighted during the round.
Judicial cooperation among Member States based on Framework Decision 2002/584/JHA on the
European arrest warrant (EAW) and Framework Decision 2008/909/JHA on custodial
sentences works well in practice. However, there is room for development in some key areas. The
functional relationship and complementarity between these two instruments being quite complex,
the recommendations addressing this specific connection are aiming for more clarity across the EU.
Framework Decision 2002/584/JHA on the EAW was the subject of the fourth round of mutual
evaluations, with the final report adopted in 20091. Considering the importance and frequent use of
this instrument, as well as the steadily increasing number of requests for preliminary rulings to the
CJEU, some key topics were chosen to be the subject of the evaluation at hand.
Regarding the grounds for refusal, the evaluation showed that in several Member States, some
grounds for non-execution which are optional in the Framework Decision are mandatory in national
legislation. This approach reduces the number of EAWs actually executed and impedes the proper
functioning of judicial cooperation in criminal matters based on mutual trust.
In line with the relevant case-law of the CJEU related to the EAW (Judgment C-665/20 PPU of
29 April 2021), the executing judicial authority must, itself, have a margin of discretion as to
whether or not it is appropriate to execute the EAW on the grounds for optional non-execution.
Following the initiation of infringement proceedings, some Member States are currently reviewing
legislation, affecting, amongst others, the provisions on grounds for refusal.

1 ST 8302/4/2009

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Regarding the recurring issues in relation to the application of the proportionality principle, it is
worth noting that a significant improvement could be observed compared to the findings of the
fourth round of mutual evaluations. However, in a few Member States, proportionality is still
assessed by executing authorities. This approach may result in the creation of a new ground for
refusal to surrender that is not in line with Framework Decision 2002/584/JHA and conflicts with
the principles of mutual recognition and mutual trust.
In most Member States, the executing authorities, following CJEU case-law2 carry out a specific
assessment of the risk of inhuman or degrading treatment. As Member States do not apply the
abovementioned CJEU case-law in a uniform or consistent manner, several evaluation teams voiced
a need to clarify the relevant CJEU jurisprudence at EU level. The evaluations also showed that the
Member States affected by issues relating to detention conditions, including overcrowding, have
taken or are considering initiatives to improve the situation. In the context of the evaluations, it was
emphasised that in cases where surrender procedures are suspended or halted because of the
Aranyosi and Căldăraru two-step test on detention conditions, efforts should be made by the
competent Member States’ authorities to avoid impunity.
In the case of Framework Decision 2008/909/JHA on custodial sentences, amongst others, the
assessment of social rehabilitation was analysed, as this should be one of the aims of the
mechanism. Yet this interest needs to be balanced with the justice system’s interest in effectively
enforcing the penalty within one Member State.
The evaluations also showed that in the majority of Member States the issue of partial recognition
and adaptation of the sentence does not raise major challenges in the application of this Framework
Decision. However, difficulties stem from the differences between legal systems, such as: the
incompatibility of some measures with the law of the executing Member State; the different criteria
and methods used by each Member State to calculate the final sentence; and the application of the
principle of aggregation of penalties imposed. It has to be underlined that several Member Sates
experience difficulties in complying with the deadlines set out in this Framework Decision,
therefore Member States should make efforts to speed up their decision-making process.

2 C-404/15 Aranyosi and Caldararu, C-220/18 ML and C-128/18 Dorobantu

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The ninth round of mutual evaluations confirmed that there is a significant lack of application of
Framework Decisions 2008/947/JHA and 2009/829/JHA, concerning non-custodial measures
respectively in the post-trial and pre-trial stages of criminal proceedings. There were several
common reasons identified: lack of awareness and knowledge among practitioners, complexity and
length of the proceedings, low number of cases with cross-border implications. More specifically,
the lack of use in case of Framework Decision 2008/947/JHA lies mostly with the significant
differences between national systems regarding the nature and duration of the applicable probation
and alternative measures. For Framework Decision 2009/829/JHA, the rare application is usually
linked to the difficulty in identifying cases where it would be effective and appropriate to issue a
European Supervision Order as it does not necessary fit the purposes of the criminal procedure. The
recommendations aim at raising awareness of these two Framework Decisions, and at providing
guidance and tools for practitioners on their application, with a view to promoting and enhancing
their respective use.
Cooperation with Eurojust and the European Judicial Network in criminal matters (EJN) can
significantly contribute to effective judicial cooperation in criminal matters across the EU,
especially in complex cases with cross-border implications or when information is needed to
identify the competent authorities or the applicable rules in other Member States. However, it
results from the ninth round of mutual evaluations that a more extensive use of assistance provided
by Eurojust and by the EJN across all the Member States would significantly contribute to solving
cases more easily and speedily and could lead to further enhancing cross-border judicial
cooperation in the EU.

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2.

INTRODUCTION

The principle of mutual recognition was enshrined as a cornerstone of judicial cooperation in the
EU by the European Council of Tampere in 1999. The need to make the implementation of mutual
recognition legal instruments more effective has inter alia been underlined by the Council in its
conclusions of 7 December 2018 on ‘Promoting mutual recognition by enhancing mutual trust’.
Furthermore, in its conclusions on ‘The European arrest warrant and extradition procedures current challenges and the way forward’, the Council agreed inter alia that there is scope for
improvement as regards national transposition and the practical application of the Framework
Decision 2002/584/JHA, for addressing certain aspects of the procedure in the issuing and in the
executing Member State and for strengthening EAW surrender procedures in times of crisis.
Finally, the Council, in its conclusions of December 2019 on alternative measures to detention,
invited the Commission to continue to enhance the implementation of the EU Framework Decisions
on probation and alternative sanctions (2008/947/JHA) and on the European Supervision Order
(2009/829/JHA), taking into account the information gathered during the ninth round of mutual
evaluations.
Due to the broad range of legal instruments in the field of mutual recognition and their wide scope,
it was agreed at the CATS meeting on 12 February 2019 that the evaluation would focus on the
following mutual recognition instruments:
-

Framework Decision 2002/584/JHA on the European arrest warrant and the surrender
procedures between Member States (‘EAW’);

-

Framework Decision 2008/909/JHA 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
(‘custodial sentences’);

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-

Framework Decision 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 (‘probation and alternative measures’);

-

Framework Decision 2009/829/JHA on the application, between Member States of the
European Union, of the principle of mutual recognition to decisions on supervision measures
as an alternative to provisional detention (‘ESO’).

At the above mentioned CATS meeting it was also agreed that the evaluation would focus only on
those specific aspects of such instruments which Member States felt warranted particular attention,
as set out in detail in 6333/19, and on the legal and operational links between Framework Decision
2002/584/JHA on the EAW and Framework Decision 2008/909/JHA on custodial sentences.
Referring to Framework Decision 2008/947/JHA on probation and alternative measures and
Framework Decision 2009/829/JHA on the European Supervision Order (ESO), it was decided that
the evaluation had to be of a rather general nature and should endeavour to establish the reasons that
have led to those two Framework Decisions being applied only infrequently.
Due to the pandemic, it was not possible to follow the order of visits to the Member States adopted
by CATS on 13 May 2019, as several on-the-spot visits were repeatedly postponed, thus delaying
significantly the finalisation of the ninth round of evaluations. The on-the-spot visits that began in
November 2019 were therefore only concluded in April 2022. In accordance with Article 3 of Joint
Action 97/827/JHA of 5 December 1997, the Presidency drew up a list of experts in the evaluations
to be carried out, based on the designation by the Member States of experts with substantial
practical knowledge in the area subject to the evaluation. The evaluation teams consisted of three
national experts, supported by one or more members of staff from the General Secretariat of the
Council and, on several occasions, by observers (from the European Commission and Eurojust).
The aim of the ninth round of mutual evaluations was to provide added value by offering the
opportunity, via on-the-spot visits, to consider not only the legal issues, but also – and in particular
– relevant practical and operational aspects linked to the implementation of those instruments by
practitioners in the context of cross-border criminal proceedings.

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This report, prepared by the General Secretariat of the Council on behalf of the Presidency,
summarises the key findings, conclusions and recommendations in the individual country reports
and formulates recommendations to the Member States and to the EU institutions and bodies, taking
into account the recommendations identified as most relevant and/or recurrent on the basis of the
reports on the 27 evaluated Member States, where shortcomings and areas for improvement were
identified. The text of the report also highlights some best practices identified in the context of this
round of mutual evaluations that can be shared among Member States, with a view to ensuring a
more effective and coherent application of the principle of mutual recognition at all stages of
criminal proceedings throughout the Union.
More generally, this exercise is expected to promote the coherent and effective implementation of
this package of legal instruments to its full potential and to enhance mutual trust between Member
States’ judicial authorities, thus improving the functioning of cross-border judicial cooperation in
criminal matters within the area of freedom, security and justice.

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3.

FRAMEWORK DECISION 2002/584/JHA

3.1

Proportionality

The principle of proportionality, a key factor for effective cooperation in the area of freedom,
security and justice, is a general principle of criminal law that is not explicitly mentioned in the
legislation of all Member States and that in some derives from their constitutions, mainly from the
principle of the rule of law and the protection of human rights and fundamental freedoms.
In more general terms, the principle of proportionality involves balancing any intervention in the
rights of an individual in the context of criminal proceedings against the interests of society in
detecting and apprehending perpetrators of a criminal offence. In practice, it requires that detention
should be limited to cases involving serious criminal offences. Bearing in mind the consequences
that the execution of an EAW has on the requested person’s liberty and the restrictions to free
movement, it is important that the issuing judicial authorities consider a number of factors in order
to determine whether issuing an EAW is justified.
The principle of proportionality is well established in the EU legal system, the case-law of the Court
of Justice of the European Union, the European Court of Human Rights, and in the national
legislations. Nevertheless, Article 2(1) of Framework Decision 2002/584/JHA only establishes
thresholds for issuing a European arrest warrant. It stipulates that an EAW for the purpose of
prosecution can only be issued in respect of acts punishable by the law of the issuing Member State
by a custodial sentence or a detention order for a maximum period of at least 12 months, and that an
EAW for the purpose of executing a sentence can only be issued in respect of sentences of at least
four months.

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A common understanding of the proportionality principle is articulated in the European
Commission’s Handbook on how to issue and execute a European arrest warrant, which contains
extensive explanations on the issue of proportionality and the criteria to be applied by the issuing
authorities in this respect: the seriousness of the offence, the likely penalty that could be imposed,
the likelihood of detention of the person after surrender, and the interests of the victim.
Most Member States, when acting as issuing Member States, consider whether, instead of issuing
an EAW, it is possible to use other instruments of judicial cooperation in criminal matters which are
also effective but less coercive, especially if the surrender is requested for hearing of the
suspect/accused person during the investigation and not yet for his or her prosecution or for the
enforcement of a custodial sentence In this case, a European Investigation Order (EIO) for the
purposes of hearing the suspect/accused via videoconference or of a temporary transfer could be
issued. This plays a key role in avoiding the misuse of the EAW in cases where less invasive
options are available to ensure that an accused person located abroad would participate in criminal
proceedings in the issuing Member State and detention is not absolutely necessary.
In the absence of a legal definition in the Framework Decision 2002/584/JHA and of a single model
for all jurisdictions, Member States apply the proportionality principle in different ways, and the
criteria used in practice to assess the proportionality of EAWs are not uniform in all Member States.
The most common criteria applied are the seriousness of the offence, the length of time since the
crime was committed, the damage caused, the interests of the victim, the expected punishment, the
age and behaviour of the person concerned and other circumstances of the case, etc. In one
evaluation report, another aspect of proportionality is emphasised, namely that the financial costs
associated with implementing an EAW are not negligible and should be proportionate to the
seriousness of the offence. Some Member States have issued national handbooks or guidelines to
facilitate the assessment of proportionality.

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As outlined in a number of evaluation reports of the ninth round, the proportionality check should
be carried out exclusively by the issuing State. Indeed, almost no Member States assess
proportionality when executing an EAW. However, a few Member States’ authorities are of the
view that Member States’ issuing authorities do not always assess proportionality correctly before
issuing EAWs that seem to be disproportionate to the seriousness of the offence. They also assess
proportionality when acting as executing authorities, and in certain cases, if they believe it is not
justified by the seriousness of the offence, suggest that the EAW should be withdrawn or refuse its
execution.
Nevertheless, these Member States make such assessments very rarely. As emphasised in the
respective reports, this approach may result in the creation of a new ground for refusal to surrender
that is not in line with Framework Decision 2002/584/JHA and also goes against the principles of
mutual recognition and mutual trust.
A problem may arise in relation to the choice between the EAW and the EIO due to the grounds for
refusal in the context of an EIO, e.g., if the executing Member State does not accept the use of
videoconferences for the interrogation of suspects/accused persons.
It must also be taken into account that Ireland and Denmark are not party to the European
Investigation Order. Therefore, if the competent authorities of these Member States do not use an
EAW, they would have to seek and provide criminal legal assistance pursuant to other instruments,
such as the Council of Europe Convention on Mutual Legal Assistance (MLA) and relevant EU
instruments, such as the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters
between the Member States of the European Union.
Against this background, a significant improvement could be observed when compared to the
findings of the fourth round of mutual evaluations where proportionality was a serious issue. Now,
in most Member States the principle of proportionality is implemented satisfactorily. The approach
of a few Member States in this respect was identified as a best practice and only a few Member
States were encouraged to further develop the principle of proportionality in their national EAW
proceedings.

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RECOMMENDATIONS

‒ Member States are encouraged to ensure that their competent authorities, when acting as
issuing authorities in EAW proceedings, always perform the proportionality test by carrying
out a careful assessment of the circumstances of every case, to decide whether, instead of
issuing the EAW, it is possible to use less intrusive instruments of judicial cooperation.
‒ Member States are advised to ensure that their competent authorities, when acting as
executing authorities in EAW proceedings, do not consider the lack of proportionality in
EAWs issued by the requesting Member State as a ground for refusal of the execution of the
EAW.

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3.2. Judgements in absentia
Framework Decision 2009/299/JHA, which amends Framework Decision 2002/584/JHA with, inter
alia, the insertion of Article 4a, provides for an optional ground of refusal for judgments rendered in
absentia, as well as for four exceptions under which an EAW may not be refused, as the requested
person is presumed to have been aware of the trial.
In some Member States, national legislation does not allow for in absentia judgments or submits
them to certain conditions, limiting the possibility of issuing this type of judgment to exceptional
cases. Nevertheless, these Member States, when acting as executing Member States, have had to
deal with cases where judgments in absentia had been handed down in the issuing State. Generally
speaking, the ninth round of mutual evaluations demonstrated that this does not seem to be an
obstacle in the application of Article 4a of Framework Decision 2002/584/JHA.
Furthermore, the requirements for rendering judgments in the absence of the requested person at the
trial and the criteria under which a judgment is classified as in absentia vary considerably in the
Member States. In a few Member States, pursuant to relevant national legislation, it is considered
sufficient to summon the accused person with a notification served at the designated address,
regardless of whether the person concerned actually personally receives the summons and is aware
of the trial.
For the majority of Member States, the ninth round of mutual evaluations did not highlight any
major problems regarding judgments in absentia. However, there are some recurrent difficulties
arising in most Member States, associated with:
a) the use and interpretation of section (d) of the EAW form, namely the use of the version
prior to the entry into force of Framework Decision 2009/299/JHA, or incorrect, incomplete
or contradictory information in the current version of the EAW form. Most Member States
pointed out that often it is not clear from the content of the EAW received whether or not the
grounds for refusal under Article 4a of the Framework Decision are applicable, for example
because the relevant box is not ticked or because the details given are not sufficient;

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b) differences in the interpretation of the concept of judgment in absentia and its
characteristics: adversarial judgment, final judgment, the possibility of appeal, etc. The
different legal requirements in the Member States regarding the service of judgments and
summons for judicial proceedings may complicate the recognition process. Some Member
States’ practitioners and also some evaluation teams expressed the view that it would be
useful to establish common practices at EU level on the handling of judgments in absentia
in the context of EAW proceedings;
c) the differences in the transposition of Framework Decision 2009/299/JHA in the Member
States and, more particularly, the mandatory or optional nature of the grounds for refusal.
Indeed, a few Member States have transposed this ground for refusal as mandatory, whereas
Article 4a of Framework Decision 2002/584/JHA provides for an optional ground for
refusal.

In the light of the above, the executing authorities often request additional information from the
issuing Member State, in accordance with Article 15 of Framework Decision 2002/584/JHA, in
order to obtain the missing information on in absentia procedures in those Member States and
clearly ascertain the details regarding the requested person’s presence at the criminal proceedings.
Such details are: the way the person was summoned, whether the person was present at the hearing,
whether the person was represented by a defence lawyer, whether the judgment rendered in
absentia had become final, and the right to a retrial. A few Member States also request the relevant
national decisions from the issuing State.

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As pointed out by some Member States’ authorities, after the adoption of Framework Decision
2009/299/JHA, and especially after the Tupikas3, Zdziaszek4 and Ardic5 judgments of the Court of
Justice of the European Union, the number of requests for additional information has increased,
especially in cases where the EAW is based on more than one judicial decision. In some cases, this
was also the reason for no observing the time limits set out in Article 17 of Framework Decision
2002/584/JHA or for an increase in the number of refusals of EAWs.
Some refusals, in line with CJEU case-law, seem to occur in cases where the national legislation of
the issuing Member State does not allow for a retrial. Taking into account the different
interpretations of the abovementioned case-law, some reports observed that guidance at EU level
would be useful with a view to a harmonised approach.
Indeed, such requests for supplementary information may be time consuming and lead to delays in
the procedure and/or in failure of respecting the deadlines. Therefore, it would be very useful if the
information provided by the issuing Member State in connection with judgments in absentia
regarding the convicted person’s knowledge of the trial and other relevant information were more
extensive and precise, and available from the very beginning, so as to avoid the need to request
additional information.
The situation may be more complex where the final decision follows proceedings which have been
through several instances and the person was not present at each stage of the criminal judicial
proceedings. In the light of the abovementioned CJEU case-law on judgments in absentia, it is
important to take into account the appearance of the accused at all instances of the criminal
proceedings; some Member States have adapted their legislation in order to comply with these
judgments, whereas the need for other Member States to do so was emphasised in the respective
evaluation reports.

3

Judgment of 10 August 2017, Openbaar Ministerie v Tadas Tupikas, C-270/17 PPU, EU:C:2017:628.
Judgment of 10 August 2017, Openbaar Ministerie v Sławomir Andrzej Zdziaszek, C-271/17 PPU, EU:C:2017:629.
5
Judgment of 22 December 2017, Samet Ardic, C-571/17PPU, EU:C:2017:1026.
4

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RECOMMENDATIONS

‒ Member States’ issuing authorities should provide clear and comprehensive information in
section (d) of the EAW form whenever Article 4a of Framework Decision 2002/584/JHA
applies as a result of judgments rendered in the absence of the defendant, in particular
regarding the national system for trials in absentia and the manner in which the requested
person was made aware of the trial.
‒ The European Commission is invited to consider issuing guidelines on how to deal with
judgments in absentia, focusing on the interpretation and application of Article 4a of
Framework Decision 2002/584/JHA across the Union, in line with relevant CJEU case-law,
following, as appropriate, relevant discussions at the competent Council’s instances.
‒ The European Judicial Network (EJN), in cooperation with the Member States, is invited to
consider including on its website specific information on national legislation and procedural
implications in the Member States relating to judgments in absentia.

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3.3. Grounds for refusal

3.3.1. Optional and mandatory grounds for refusal
Article 3 of Framework Decision 2002/584/JHA provides for three mandatory grounds for nonexecution of the EAW, on the basis of which the executing judicial authorities are obliged to refuse
the surrender of the requested person to the issuing State. Such mandatory grounds for the refusal
are: amnesty, ne bis in idem and the exclusion of criminal responsibility due to age.
Article 4 provides for seven optional grounds for non-execution, on the basis of which the executing
judicial authorities may refuse the surrender. However, in this respect, there are differences in the
transposition of Framework Decision 2002/584/JHA into national legislation. In a number of
Member States, some grounds for non-execution which are optional in the Framework Decision are
mandatory in national legislation. In one Member State, the national legislation transposing
Framework Decision 2002/584/JHA does not distinguish between mandatory and optional grounds
for refusal.
Some expert teams involved in the evaluations, in line with the fourth evaluation round on the
EAW, criticised these practices, highlighting inter alia that they deprive the executing judicial
authorities of the possibility to assess on a case-by-case basis whether or not they should apply the
grounds for refusal, where such grounds have been considered to be optional in the Framework
Decision. They underlined that, in line with the relevant case-law of the CJEU related to the EAW
(Judgment C-665/20 PPU of 29 April 2021) Member States should enjoy a certain margin of
discretion in order to determine whether or not it is appropriate to refuse to execute a European
arrest warrant. It is, nonetheless, not for the legislator, but for the judicial authority examining a
specific case, to exercise this margin of discretion.
They consequently expressed the view that all Member States’ national legislation should be
aligned with Framework Decision 2002/584/JHA as regards mandatory and optional grounds for
refusal and thus should be consistent across the EU.

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In a few Member States, national legislation provides for a ground for refusal not provided for in
Framework Decision 2002/584/JHA, where fundamental rights as enshrined in Article 6 TEU might
be violated. This may occur e.g. if the judgment was rendered in the course of proceedings in which
fundamental human rights and freedoms were violated, or where the person was sentenced on the
grounds of their sex, race, religion, ethnic origin, nationality, language, political conviction or
sexual orientation.
Some Member States limit the possibility to surrender their nationals and residents or subject it to
certain conditions (such as the consent of the requested person or a guarantee of return by the
issuing Member State) beyond those laid down in the Framework Decision 2002/584/JHA. In such
cases, the expert teams recommended that these Member States reconsider such possibility,
believing that in such cases the national legislation is not in line with Framework Decision
2002/584/JHA.
The evaluation teams observed that this approach extends the scope of Framework Decision
2002/584/JHA, reduces the number of EAWs actually executed and constitutes an obvious barrier
to the proper functioning of judicial cooperation in criminal matters based on mutual trust. They
also underlined the inconsistency with CJEU case-law, which states that the executing judicial
authorities may, in principle, refuse to execute such an EAW only on the grounds for non-execution
exhaustively listed by the EAW Framework Decision. Accordingly, while execution of the EAW is
the rule, refusal to execute it is intended to be an exception, which must be interpreted in a very
strict way (C-354/20 PPU and C-412/20 PPU).

In one Member State, nationality is a mandatory ground for refusal to execute an EAW issued to
enforce a custodial sentence, whereas the residence is an optional ground for refusal, thus treating
citizens and residents differently. The respective evaluation team found this to be inconsistent with
Article 4(6) of Framework Decision 2002/584/JHA, which provides that both nationality and
residence are optional grounds for non-execution. It has to be underlined that in some Member
States there is ongoing legislation including but not limited to grounds for refusal, following the
initiation of infringement procedures.

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3.3.2 Double criminality
A common ground for non-execution is double criminality, as laid down in Article 4(1) of
Framework Decision 2002/584/JHA as an optional ground for refusal. In such a case, if an EAW is
issued for offences that constitute a criminal offence under the legislation of the issuing Member
State, but not under the legislation of the executing Member State, the surrender may be refused,
unless the offence is listed among the 32 offences under Article 2(2) of Framework Decision
2002/584/JHA that are exempted from the verification of double criminality.
The most common offences leading to refusal of surrender due to a lack of double criminality are
petty crimes, drug and traffic offences, abduction of minors, etc. Whereas some Member States
stated that they do not or only rarely encounter difficulties in relation to double criminality, for
several Member States the description of the offence provided by the issuing authorities in the EAW
form poses a recurring problem.
The information therein is often deemed to be insufficient to establish whether the act constitutes a
criminal offence according to the national legislation of the executing Member State. The executing
authorities have to determine whether the essential features of the criminal offence exist under
national legislation and would be punishable by a criminal penalty if it occurred in their territory. If
so, they should be able to compare a factual description of the criminal offence, as indicated in
section (e) of the EAW form, with the factual description of the equivalent offence under a specific
provision of their national criminal law.
However, relevant information (detailed description of the constituent elements of the alleged
criminal offence for which the person has been sentenced, of the factual elements and circumstances
of the crime, including the time and place of the offence, or the degree of alleged involvement of the
requested person) is sometimes missing. In the absence of the abovementioned elements, when a
double criminality check is required, additional information may be requested by the executing
authorities pursuant to Article 15 of Framework Decision 2002/584/JHA in order to facilitate the
decision on the surrender.

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Obviously, a more concise description of the facts is sufficient in the case of the 32 offences under
Article 2 of Framework Decision 2002/584/JHA that are not subject to a verification of double
criminality. One Member State, however, has reported that some executing Member States still
check double criminality, even in case of a so called “list offence”, which is not in line with
Framework Decision 2002/584/JHA.
Issues linked to a lack of sufficient information can also arise and cause complications where the
case involves a number of alternative offences. There may be no double criminality for any of the
offences, but, in the absence of sufficient information, it becomes challenging to determine which
offences are covered by the double criminality requirement, as well as to enforce other parts of the
sentence that relate to other offences. In such situations, the executing authorities ask the issuing
State whether the sentence can be split. If this is not accepted, surrender is refused.
In order to ensure that the case is easily understood by the executing authorities, Annex III of the
Commission’s Handbook on how to issue and execute a European arrest warrant contains guidelines
on how to complete the EAW form, including section (e) on how to describe the crime in detail.
This way, the executing authority gets a clear picture of the facts and is able, if necessary, to easily
assess double criminality and any ne bis in idem situations (see the following sub-chapter).
Nevertheless, according to some practitioners, the number of EAWs refused on the basis of double
criminality is relatively low, which suggests that the supply of additional information usually solves
the problems, although it may be a delaying factor for the EAW proceedings.
Some Member States pointed out that Eurojust or the relevant EJN contact point can also assist in
ascertaining double criminality
One Member State’s authorities pointed out that Member States seem to apply different practices as
regards the link between the check on double criminality and a check on statutory limitation; in
some Member States, the former does not involve verifying whether the limitation period for
enforcement under the law of the executing Member State has expired, in accordance with Article
4(4) of Framework Decision 2002/584/JHA.

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One Member State’s authorities pointed out that some Member States examine double criminality
by assessing the merits of the case through a full application of the specific parameters of their
national legislation and underlined that this practice could weaken mutual trust and negatively
influence judicial cooperation across the EU.

3.3.3. Ne bis in idem principle
According to some practitioners, the number of EAWs denied on the basis of the ne bis in idem
principle, laid down in Article 3(2) of Framework Decision 2002/584/JHA as a mandatory ground
for refusal, appears to be quite low, with even fewer refusals than in the case of double criminality.
In most Member States, no major difficulties have been experienced by the judicial authorities as
regards the ne bis in idem principle. However, one possible issue refers to the assessment of the
‘same acts’. From a legal point of view, when assessing the concept of the ‘same acts’, reference
can be made, in addition to Article 3(2) of the Framework Decision 2002/584/JHA, to the CJEU
ruling in C-261/09, (Mantello) and C-665/20 PPU (X - Mandat d’arrêt européen - Ne bis in idem)
and to Article 54 of the Convention Implementing the Schengen Agreement (CISA).
From a practical point of view, however, such assessment may be problematic if the issuing
authority has provided very few details of the ‘same acts’ on which a decision has been made.
Indeed, in some cases, the executing authorities have to ask for additional information concerning
the description of the facts (nature, date, place, etc.), in order to assess whether or not the ne bis in
idem principle should be applied to the relevant case. Nevertheless, as for double criminality, in
these cases it seems that the additional information requested usually solves the problems
encountered by the executing authorities.

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RECOMMENDATIONS
‒ Member States should ensure that grounds for refusal that are foreseen as optional in
Framework Decision 2002/584/JHA, do not appear as mandatory ones in the
implementing legislation. Furthermore, no grounds for refusal other than those provided
for in the abovementioned Framework Decision should be established in line with the
CJEU’s relevant case-law.
‒ Member States are encouraged to ensure that, when completing section (e) of the EAW
form, their competent issuing authorities provide for the factual description of the offence
in detail and in a clear language, so as to facilitate the assessment of possible grounds for
non-recognition and non-enforcement based on double criminality and ne bis in idem.
‒ Member States should ensure that their competent executing authorities do not perform a
double criminality check when the offences in question fall within the 32 categories under
Article 2 of Framework Decision 2002/584/JHA, for which the verification of double
criminality is not required.

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3.4 Detention conditions
Whereas in other, subsequent EU mutual recognition instruments, the potential risk of violation of
fundamental rights is given as a ground for refusing execution, Framework Decision 2002/584/JHA
does not specifically incorporate this ground for non-recognition or non-enforcement, and only
contains a generic reference to fundamental rights in recital 12 and Article 1(3).
Nevertheless, taking into account that the principle of mutual trust, which underpins the principle
of mutual recognition of judicial decisions, does not a priori automatically remove the risk of
violation of fundamental rights, detention conditions in the issuing Member State play a major role
in the context of EAW proceedings.
Therefore, from the perspective of and within the boundaries set by CJEU case-law (C- 404/15
Aranyosi and Caldararu, CJEU C-220/18 ML and C-128/18 Dorobantu), in most Member States,
the executing authorities carry out a specific assessment of the risk of inhuman or degrading
treatment, within the meaning of Article 4 of the Charter of Fundamental Rights of the European
Union, exceptionally and on the basis of a two-step test. Systemic risk should not be considered as
sufficient; instead, there is a requirement for real exposure to a risk of violation of fundamental
rights, to be ascertained with regard to the specific circumstances of the particular case.
In so doing, the competent executing authorities take into consideration reliable information
concerning specific poor detention conditions in the issuing State or poor detention conditions in
specific penitentiary facilities or for specific groups of prisoners. Such information may be based
on: judgments handed down by the ECHR6 and the CJEU; decisions or reports issued by
international organisations (the UN and the Council of Europe (in particular the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT))); reports issued by the Ombudsman and by authoritative human rights NGOs (e.g. Amnesty
International, Human Rights Watch, etc.); and judgments of national courts, as well as the
assurances provided by the issuing Member State.

-

6 Muřsić v. Croatia; Sylla and Nollomont v. Belgium; Torreggiani and Others v. Italy; Bivolaru and Moldovan

v. France, etc.

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In some reports, it is indicated that the competent executing authorities may also rely on
information received through various EU networks/agencies (the European Judicial Network,
Eurojust and the Fundamental Rights Agency (FRA), etc.) and on specific tools, in particular the
recently updated FRA Criminal Detention Database, which is expected to become a very useful
tool for judicial authorities when confronted with issues concerning detention conditions, and the
FRA report ‘Criminal detention conditions in the European Union: rules and reality’, which
outlines selected minimum criminal detention standards.
The elements to be taken into account by the national judicial authorities as regards detention
conditions have been defined by the CJEU in its judgment in case Dorobantu (C- 128/18) and refer
to certain physical aspects of prison facilities in accordance with the standards set out by the
ECHR. The Member States also take into consideration various factors, such as activities for
prisoners (recreational, educational and work facilities), rehabilitation programmes, privacy, access
to natural light, duration of stay inside and outside the prison cell, duration of the detention, etc.
In cases where there are reasonable grounds to believe that the person sought might be subject to
inhuman or degrading penitentiary treatment, the executing judicial authority requests the
necessary additional information on the actual conditions in which the individual concerned will be
detained in the issuing Member State, pursuant to Article 15(2) of Framework Decision
2002/584/JHA. This postpones the decision on the execution of the EAW until the executing
authorities receive information and guarantees that enable them to rule out the real risk of inhuman
or degrading treatment.
Considerations related to detention conditions may lead to delays in the EAW proceedings,
especially if the competent issuing authority does not have sufficient information to reply within a
reasonable time. This can be the case when competence is decentralised and there is a need to ask
the Ministry of Justice or prisons administration in the issuing State for more information. If the
executing authorities do not receive the requested information or guarantees, they may refuse the
surrender. In practice, however, cases of refusal occur very rarely.

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It has to be underlined that Member States do not apply the abovementioned CJEU case-law on the
basis of a uniform interpretation and approach. Most Member States assess ex officio if there are
reasonable indications for inhuman or degrading detention conditions, regardless of whether the
person concerned consents to the surrender or not. In one report, reference is made by the Member
State under evaluation to the rights enshrined in Article 6 of the ECHR. Other Member States
assess detention conditions in the issuing State only if the issue is raised by the sentenced person or
their defence lawyer and/or if the person has given their consent to the surrender. Several
evaluation teams voiced a need at EU level to clarify the CJEU jurisprudence in this respect.
As outlined in some reports, the quality of prison facilities undoubtedly varies across the EU. Many
Member States, when acting as issuing authorities, had never been asked about detention
conditions in their prisons. Such information is requested frequently for a few Member States
where it is considered that there is still room for improvement with regard to detention conditions,
in particular to overcrowding. The evaluations, however, showed that some of these Member States
have taken or are considering initiatives to improve the situation, so as to avoid refusals of
surrender by other Member States.
In the context of the evaluations, it was emphasised that in cases where surrender procedures are
suspended or even completely halted as a result of the Aranyosi and Căldăraru two-step test on
detention conditions, efforts should be made by the competent Member States’ authorities to avoid
impunity.
It also has to be underlined, that in accordance with the relevant CJEU case-law, there is no scope
for the executing State to grant more extensive fundamental rights to the person sought than those
provided by EU law.

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RECOMMENDATIONS

-

Member States, when acting as executing states of an EAW, should ensure that their judges
and prosecutors involved in EAW proceedings take the initiative, where appropriate, to evaluate
the detention conditions in the issuing Member State, in accordance with the relevant CJEU
case-law, and not only when this is requested by the sought person (or by their lawyer) and
irrespective of their consent.

-

Member States as executing authorities in EAW proceedings should take into account the
CJEU case law, in accordance with the ECHR standards, when considering the prison
conditions which might pose a risk of inhuman or degrading treatment, in order to avoid that
higher national standards give rise to refusal to surrender.

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3.5

Issues linked to translation

Some Member States accept EAWs only in their own official language. Practice shows, however,
that it can sometimes be challenging to provide a translated EAW in the language of the executing
State during the provisional arrest, especially in Member States having strict time limits, as it may
be difficult to find a translator within this short time frame. Failure by the issuing State to produce a
translation within the time limit may result in the termination of the EAW proceedings and lead to
the release of the person sought, unless the court chooses to translate the EAW at its own expense.
Pursuant to Article 8(2) of Framework Decision 2002/584/JHA, any Member State may state in a
declaration deposited with the General Secretariat of the Council that it will accept a translation in
one or more other official languages of the institutions of the European Union. Some Member
States apply this provision and also accept EAWs in a language other than their own. This is a new
approach, which is also followed in the latest EU criminal law instruments, such as the EIO
Directive or the Regulation on freezing and confiscation orders, where the Member States are
encouraged to accept documents in more than one language.
Some Member States stated that when acting as executing State, they accept a translation of an
EAW in a language other than their own in urgent cases or on condition of reciprocity. In the latter
case, it is possible that an executing Member State recognises EAWs in any official language of any
issuing state which recognises EAWs in the official language of said executing Member State.
Some expert teams considered this possibility to be a best practice
A flexible language regime and the open attitude displayed by those Member States that accept
EAWs in a language other than their own, is considered to be a good practice worth being applied
more widely among the Member States, as it has the great advantage of speeding up EAW
proceedings.

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A number of Member States, when acting as issuing States, translate the outgoing EAW forms into
English before entering them into the SIS. This was also considered as a good practice, as it allows
a version generally understandable by all Member States to be always available, regardless of the
need to translate it into the accepted language of the executing Member State.
A few Member States’ practitioners declared that, although the official language in court hearings is
the national language, they prefer to receive EAWs in English because the translations into the
official language of the executing Member State are sometimes of poor quality. Nonetheless, the
EAW must then be translated into the language of the criminal procedure before the case can be
brought before a court.
When exchanging information, some Member States make or reply to requests for additional
information about EAWs in their own language. In such cases the request for additional information
must be translated and this can delay the EAW proceedings.
Some Member States pointed out that problems can arise when asking for additional information
when certain Member States do not frequently use languages that are widely understood. A few
Member States do not contact the authorities of the other Member States directly, but go through
their central authorities, due to not feeling comfortable using certain languages. Other Member
States stated that communication between the issuing and executing authorities could also take
place in a language other than the respective Member States’ official language, and English is
generally used in these cases.

RECOMMENDATION
‒ When acting as executing States, Member States are encouraged to consider a flexible
approach to language requirements and make greater use of Article 8(2) of Framework
Decision 2002/584/JHA, with a view to accepting EAWs in languages other than their
official language.

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3.6

Deadlines

The time limits provided for in Article 17 of that Framework Decision are usually met by Member
States’ executing authorities in cases where additional information does not need to be requested or
is sent in due time.
Where additional information is necessary to enable the competent executing authorities to decide
on the surrender, the missing information is requested by the executing judicial authority on the
basis of Article 15(2) of Framework Decision 2002/584/JHA. A deadline is usually set for the
receipt thereof, taking into account the need to observe the time limits provided for in Article 17 of
that Framework Decision.
Nevertheless, in some Member States, the processing of EAWs requires a great deal of time due to
the process of examining the information relating to an EAW, and in cases of insufficient additional
information or failure to give the correct response to the questions posed in the original request,
reminders to the issuing authorities may be needed. Other reasons for possible delays are linked to
judgments in absentia, mainly due to the lack of necessary and correct information or to requests
for information, and to cases in which questions are referred to the Court of Justice of the European
Union for a preliminary ruling.
In these cases, where the deadline for submitting the additional information is not met, the time
limits set under Article 17(3) of Framework Decision 2002/584/JHA are frequently exceeded. In
some reports, it was observed that failure to comply with a deadline or to provide the requested
information may result in the release of the person sought or even lead to the judicial authority’s
ultimate refusal to execute the EAW.
In many cases of delay, the executing Member State provide information regarding the reasons for
the delay. Several Member States as executing authorities stated that if they do not receive an
answer after several reminders, they contact the relevant EJN contact point and, in urgent or more
complex cases, their national member of Eurojust, to assist them in getting the required information.

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As indicated in some reports, the information regarding a delay and the estimated time needed to
make the decision on the execution of the EAW is rarely provided spontaneously to the issuing
State. The expert teams, however, considered that this practice is not fully in line with Framework
Decision 2002/584/JHA as its Article 17(4) states that when the EAW cannot be executed within
the time limits laid down in paragraphs 2 or 3, the executing judicial authority must immediately
inform the judicial issuing authority thereof and give reasons for the delay.
In some reports it was emphasised that it is important to strike a balance between, on the one hand,
the need for the prompt execution of the EAW and the thoroughness of the examinations performed
by the executing authorities, and, on the other hand, the necessity to give the issuing authority
sufficient time to respond to the request, including an eventual appeal process.
As observed in one evaluation report, the EAW procedings could be improved if cooperation
between Member States were streamlined in terms of the provision of supplementary information
relevant to the decision, which would speed up the decision-making process and facilitate
compliance with the deadlines set out in Article 17 of Framework Decision 2002/584/JHA.
In a few reports, it was pointed out that although the Tupikas, Zdziaszek and Ardic judgments
provided useful guidance on determining the scope of Article 4a of Framework Decision
2002/584/JHA, they increased the need for supplementary information not specifically requested in
the EAW form, which has undoubtedly led to an increase in requests for additional information and
non-compliance with the time limits provided for under Article 17 of Framework Decision
2002/584/JHA.
In cases of non-compliance with the deadlines laid down in Article 17 of Framework Decision
2002/584/JHA, only some Member States notify Eurojust of the incompliance with the time-limits
and the reasons for the delay. It also has to be underlined, that there is an additional obligation in
case of repeated non-compliance under Article 17(7): a Member State which has experienced
repeated delays on the part of another Member State in the execution of EAW, shall inform the
Council with a view to evaluating the implementation of this Framework Decision at Member State
level.

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RECOMMENDATIONS
‒ Both when acting as issuing and executing State, Member States should make the best
possible efforts in their decision-making process and relevant proceedings to ensure the
respect of the deadlines set out in Framework Decisions 2002/584/JHA, despite the
complexity of the procedures. For this purpose, when acting as issuing States, it is
recommended that Member States provide supplementary information requested in due time,
so as to avoid unnecessary delays.
‒ When acting as executing Member States under Framework Decisions 2002/584/JHA it is
recommended that Member States inform the issuing judicial authority and Eurojust when
the request cannot be executed within the time limits.

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4.

FRAMEWORK DECISION 2008/909/JHA

4.1. Grounds for refusal
In several Member States all or some of the grounds for non-recognition and non-enforcement
provided for by Article 9 of Framework Decision 2008/909/JHA have been transposed as
mandatory, although in the Framework Decision itself all these grounds are optional. The same
considerations expressed regarding Framework Decision 2002/584/JHA also apply to Framework
Decision 2008/909/JHA.
In most Member States, the most recurrent grounds for the non-recognition or non-enforcement of
other Member States’ judgments under Framework Decision 2008/909/JHA are the lack of double
criminality; judgments rendered in absentia ; and a length of sentence remaining to be served of less
than six months. Other frequently applied grounds for refusal are: no duly completed certificate has
been provided by the issuing authority ; the sentenced person is not a national of the executing
State; the facilitation of social rehabilitation has not been established due to the absence of a link to
the executing State; the enforcement of the sentence is statute-barred. Other grounds for nonrecognition or non-enforcement are more rarely used.

4.2

Issues linked to detention conditions

As in the EAW proceedings, several Member States, when issuing a certificate to transfer a prisoner
to another Member State under Framework Decision 2008/909/JHA, take fundamental rights in
relation to detention conditions into consideration and assess whether the prison conditions in the
executing Member State are satisfactory. In this context, they refer to CJEU case-law (especially the
Aranyosi and Căldăraru judgment), as a guidance for interpretation, , even though this case-law did
not refer to Framework Decision 2008/909/JHA.

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However, the evaluations showed that, in practice, cases in which a transfer under the Framework
Decision 2008/909/JHA is not finalised or initiated due to unsatisfactory prison conditions in the
executing State are quite rare.

4.3

Assessment of social rehabilitation

Pursuant to recital 9 and Article 4(2) of Framework Decision 2008/909/JHA, the competent
authority of the issuing State needs to be satisfied that the enforcement of the sentence by the
executing State would serve the purpose of facilitating the social rehabilitation and the successful
reintegration of the sentenced person. This assessment is a key aspect in the context of proceedings
under Framework Decision 2008/909/JHA, as it allows the educational and preventive objectives of
the punishment to be achieved to a greater extent.
Accordingly, as outlined in some reports, the sentenced person’s interest in social rehabilitation
should be given sufficient weight by the issuing authorities when deciding whether to request the
transfer of the enforcement of the sentence to another Member State, and by the executing
authorities when deciding whether or not to accept such transfer. Nevertheless, this interest in social
rehabilitation needs to be balanced with the justice system’s interest in effectively enforcing the
penalty within one Member State.
A few Member States have also highlighted the importance of victims’ rights in the application of
Framework Decision 2008/909/JHA. According to such opinion, attention should also be paid to
ensuring that the injured parties are actually compensated when the person concerned is transferred
to another Member State, because in practice it has been found that in certain cases such
compensation ceases as soon as the sentenced person is serving their sentence in another Member
State.

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Framework Decision 2008/909/JHA does not define the meaning of ‘social rehabilitation’. In some
Member States, guidelines on the specific criteria for the assessment of the prospects of social
rehabilitation before issuing a certificate have been issued, whereas in other Member States it is up
to the judge to assess in each individual case whether the transfer facilitate social rehabilitation.
According to the Handbook on the transfer of sentenced persons and custodial sentences in the
European Union (2019/C 403/02), the assessment of the facilitated social rehabilitation may not be
restricted to the mere establishment of a geographical connection, but needs to be based on a
thorough case-by-case evaluation.
The ninth round of mutual evaluations has demonstrated that the majority of Member States’
authorities carefully assess the prospects of the sentenced person’s social rehabilitation in the event
of a transfer to another Member State to serve the sentence, using, to a certain extent, similar
criteria, although the full range of parameters used may vary. Although in most cases social
rehabilitation is likely to be facilitated by a transfer to the Member State of origin, in order to ensure
that this is indeed the case, an overall case-by-case assessment may be necessary.
This refers to several factors and circumstances of the individual person’s situation, on the basis of
which a reasonable conclusion may be drawn on whether a transfer is appropriate in the light of the
social rehabilitation criterion. In most Member States, particular consideration is given to the social
environment of sentenced persons eligible for transfer to the executing State, namely the social,
economic, cultural, linguistic, family and other ties that the person has with this Member State.
Other criteria for the assessment of the factors that could create favourable conditions for social
rehabilitation may include: the duration, nature and conditions of the person’s residence, of their
financial situation, the language they speak, whether they have a job in the executing Member State,
and the availability of accommodation.

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In a few Member States, the competent authorities refer to other criteria, such as the location of the
centre of vital interests, health considerations, the length of sentence remaining to be served and the
possibility of early release, etc. The opinion of the sentenced person usually also carries significant
weight with respect to the final decision on the transfer of the sentence.
The information included in the national file or in the certificate may be insufficient to establish
whether the sentence would serve the purpose of facilitating social rehabilitation and the successful
reintegration of the sentenced person into society and additional information may therefore be
needed, in particular to ascertain the person’s links with the Member State to which they are to be
transferred.
To this end, Article 4(3) of Framework Decision 2008/909/JHA provides for the possibility for the
issuing Member States to consult the executing Member State before sending the certificate and the
judgment. However, this possibility is not used by the Member States to the same extent, and only a
few do so on a regular basis. Other Member States consult the executing State only in very specific
cases, such as where consultation or previous consent is needed.
Although such consultation is not mandatory, except for cases referred to in paragraph 1(c) of
Article 4 of Framework Decision 2008/909/JHA, some expert teams expressed the view that prior
consultation with the executing Member State is useful for the issuing Member State to obtain all
the relevant information in order to decide whether or not to issue a certificate under Framework
Decision 2008/909/JHA. Furthermore, this facilitates smooth cooperation with the executing
Member State during the further steps of the proceedings, not only in terms of assessing the
possibility of social rehabilitation, but also in relation to other issues regarding the transfer.

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Reasoned opinions stating that the enforcement of the sentence in the executing State would not
serve the purpose of facilitating the person’s rehabilitation and reintegration into society, based on
Article 4(4) of Framework Decision 2008/909, may be issued by the executing authorities and sent
to the issuing authorities. However, the ninth round of mutual evaluations has highlighted that such
opinions are not issued very frequently. It should also be pointed out that if such an opinion is
received, it is not binding for the issuing Member States’ authority and does not always lead to the
withdrawal of the certificate.

RECOMMENDATIONS
‒ All Member States, when acting as issuing Member States, are encouraged to ensure that
their competent authorities make the best possible use of the opportunity offered by Article
4(3) of Framework Decision 2008/909/JHA to consult the executing Member State with a
view to gathering relevant information as regards the actual prospects of social rehabilitation
for the sentenced person eligible for a transfer under Framework Decision 2008/909/JHA.

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4.4. Information, opinion and consent to the transfer of the sentenced person

Proceedings to forward the judgment and the certificate to another Member State under Framework
Decision 2008/909/JHA may be initiated ex officio by the issuing State, or at the request of the
executing State or the sentenced person. However, a few Member States do not initiate such
proceedings if the sentenced person or the executing State do not request that they do so or initiate
them only when the sentenced person consents to the transfer.
The evaluation reports have highlighted that these practices do not appear to be in line with the
spirit of Framework Decision 2008/909/JHA and that the competent issuing authorities should,
where applicable, in order to facilitate the sentenced person’s social rehabilitation, consider starting
such proceedings ex officio.
In one Member State it is possible to seek recognition and enforcement of a custodial sentence even
as early as at the hearing of the suspect, or even when preparing the hearing; this was considered
useful by the expert team. They expressed the view that this practice could be adopted in other
Member States, so that from an early stage of the proceedings and in the presence of a lawyer, who
can explain the possibilities offered by Framework Decision 2008/909/JHA and the judicial
authorities, and, if necessary, of an interpreter, the suspect can come to a more reasoned decision as
to whether they would benefit from a transfer.

4.4.1. The situation in the issuing Member State
The evaluations have highlighted that sentenced persons who are nationals from or have their
habitual residence in another Member State than the Member State where they have been sentenced,
are not necessarily aware of their right to be transferred to serve the sentence in their State of
nationality or habitual residence or in another Member State. Therefore, in most Member States
during Framework Decision 2008/909/JHA-related proceedings, when in custody, the person
concerned is informed about the possibility of a transfer to another Member State, the procedures to
be followed for this purpose and the legal implications of such transfer, such as the speciality rule.

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In most Member States this is done in a written form, by means of a form or leaflet, that, however,
is very often not available in all EU official languages. As outlined in several reports, this would be
advisable in order to ensure that the person concerned can understand the relevant information. In
one Member State, where written information is is not provided to the prisoners, but they are
informed only orally, the evaluation team emphasised that this is not sufficient and that all prisoners
should be informed in writing about the possibility to serve the sentence in another Member State
and about the relevant procedure for the transfer.
For the same purpose, it was also emphasised that, as prisoners are not usually familiar with
procedural law, it is also appropriate to ensure that such information is clear and accessible, as this
would enhance the prisoner’s understanding of the possibilities offered by Framework Decision
2008/909/JHA. One evaluation team suggested that an EU-standardised information sheet could be
distributed among inmates in all Member States’ prisons in all EU languages.
In accordance with Article 6(3) of Framework Decision 2008/909/JHA, the procedure to be
followed by the issuing Member State requires that, in all cases where the sentenced person is still
in their territory and there is a final judgment, the person shall also be given the opportunity to state
whether or not they agree to the transfer, even if their consent is not required. The procedure to
allow the sentenced person to state their opinion varies between Member States and can be in
written and/or oral form; however, if the opinion of the sentenced person is given orally, a written
record is usually made. One report noted that often it may be difficult in practice to double check
the information obtained from the convicted person (interviews with family, neighbours, employer).
The opinion of the sentenced person plays an important role in the decision on whether or not to
issue a certificate. This opinion

is usually taken into due consideration, together with other

elements of the case and the legal requirements, , although it is not decisive as regards the decision
on the transfer.

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In accordance with Article 6(1) of Framework Decision 2008/909/JHA, the sentenced person’s
consent shall be obtained, except for in the cases referred to in Article 6(2), namely if a person
eligible for transfer is a citizen of a Member State to which they would be transferred to , or a
deportation order is to be applied, or they absconded or returned to that Member State whilst being
prosecuted or sentenced in the issuing Member State. In one Member State, in cases where the
sentenced person requests to start the procedure for forwarding the certificate to another Member
State, it is presumed that the consent to the transfer is inherent in such a request. The evaluation
team expressed the view that this practice seems to disregard the fact that Framework Decision
2008/909/JHA requires sentenced persons to have explicitly given their consent and to have been
informed of the legal consequences of such consent.
In some of the reports, it was pointed out that in cases where the sentenced person is to be deported
to the Member State of nationality on the basis of an expulsion or deportation order, once released
from the enforcement of the sentence, the certificate is forwarded to the Member State of
nationality, whether or not the sentenced person agrees to the transfer.
The competent issuing authorities, in accordance with Article 6(4) of Framework Decision
2008/909/JHA, have to inform the sentenced person, in a language which they understand, of the
decision to forward the judgment, together with the certificate, to the executing Member State,
using the standard notification form set out in Annex II to that Framework Decision. When the
sentenced person is in the executing Member State at the time of that decision, that form is
transmitted to the executing Member State, which shall notify the sentenced person accordingly.
Although the Framework Decision 2008/909/JHA does not provide for legal remedies to challenge
the decision on transferring the execution of the sentence, some Member States provide for such
possibility in their national law

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4.4.2. Situation in the executing Member State
When the sentenced person is not in the executing Member State, unless they have already been
heard in the issuing State, the executing State most often relies on the issuing State to provide in
writing the opinion and, when requested, the consent to the proposed transfer of the convicted
person. A few executing Member States, however, ask directly in writing for the opinion and the
consent of the sentenced person.
When the sentenced person is in the executing Member State, all Member States have procedural
arrangements to receive the opinion and, when requested, the consent to the transfer of the
sentenced person. In most Member States, the sentenced person or the person responsible for
assisting or representing them, if they are a minor or are under legal protection, will be summoned
to a court hearing to give their opinion and, when requested, their consent. They will be assisted by
a lawyer and, if necessary, by an interpreter. In some other Member States this procedure is carried
out in writing.
Regardless of whether a Member State is acting as the issuing or the executing Member State, it has
to notify the person about all judicial decisions from the competent authority, using the notification
form in Annex II to Framework Decision 2008/909/JHA. When the person is still in the issuing
State, the decision is sent to them by the executing authorities via the competent authority of that
State or directly. Annex II to the Framework Decision 2008/909/JHA is widely used by the Member
States.
In several reports it is indicated that the decision regarding the recognition and enforcement of the
custodial sentence by the executing Member State can be challenged by filing an appeal.

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RECOMMENDATIONS
‒ All Member States are encouraged to ensure that their competent authorities inform the
sentenced person about the possibility to serve the sentence in another Member State in
accordance with Framework Decision 2008/909/JHA, the relevant procedure for the transfer
and its legal implications, in a simple and accessible way.
‒ It is recommended that all Member States ensure that the relevant information regarding a
transfer in order to serve a sentence in another Member State is given to the person eligible
for such transfer in writing by means of a form or leaflet, preferably available in all EU
official languages, in order for this information to be understood by the person concerned.

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4.5. Adaptation and partial recognition

The nature and length of custodial sentences varies significantly amongst Member States. For this
reason, the recognition and enforcement of a custodial sentence in another Member State under
Framework Decision 2008/909/JHA may involve adaptation or the partial recognition of the
sentence, as provided for in Articles 8 and 10 respectively of Framework Decision 2008/909/JHA.
Based on the outcome of the ninth round of mutual evaluations, it may be assumed that in the
majority of Member States the issue of partial recognition and adaptation of the sentence does not
raise any major challenges in the application of Framework Decision 2008/909/JHA or the mutual
recognition principle and is not an obstacle to their facilitating role in judicial cooperation in
criminal matters across the EU. However, the evaluation flagged up certain issues for consideration,
as described below.
4.5.1. Adaptation
It should be noted that the system of Framework Decision 2008/909/JHA is based on the principle
of mutual recognition and thus Article 8(1) of Framework Decision 2008/909/JHA in principle
provides for the continuation of the sentence, in terms of its nature and duration, as imposed in the
sentencing State. As an exception to this rule, Article 8(2) and (3) of Framework Decision
2008/909/JHA provide for an adaptation of the sentence in two specific situations:

‒ in line with Article 8(2) of Framework Decision 2008/909/JHA, where the sentence is
incompatible with the legal system of the executing Member State in terms of duration, because
it exceeds the maximum term provided for similar offences under the law in force at the time.
The executing Member State may adapt the sentence by imposing the maximum sentence
applicable in its own legal system;

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‒ in line with Article 8(3) of Framework Decision 2008/909/JHA, where the sentence is
incompatible in its nature with the legal system of the executing Member State, the competent
executing authority may adapt it to the punishment or measure which most closely corresponds
to the custodial sentence imposed in the issuing Member State. A criminal sanction involving
deprivation of liberty must not be converted into a fine or other penalty of a pecuniary nature.
In such cases, the executing authorities need to assess what constitutes a ‘similar offence’, as
referred to in Article 8 of Framework Decision 2008/909/JHA, with a view to identifying a
comparable offence, close in its objective and subjective features to the offence committed in the
issuing Member State, for which a punishment could theoretically have been imposed in an similar
situation in their own criminal law system.
Framework Decision 2008/909/JHA neither defines the notion of ‘similar offence’ nor specifies
which mandatory criminal law provisions should apply with regard to the determination of the
penalty and only refers in this respect to the law of the executing State. One expert team highlighted
that different Member States have chosen different ways of interpreting the term ‘similar offence’.
Some Member States adapt sentences to the general maximum prison sentence under their
legislation, while others adapt them to the maximum sentence for the set of similar offences.
In all cases, a legal analysis must be carried out in order to establish a match between the factual
elements constituting the offence and the criminal classification under the national law of the
executing State.
The evaluation has shown that Member States, when acting as executing Member States, assess
what can constitute a ‘similar offence’ under Article 8 of Framework Decision 2008/909/JHA using
similar criteria, such as the constituent elements of the offence, the type of crime and the duration of
the sentence, the facts of the case as described in the certificate and the legal classification of the
offence according to the issuing State.

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Nevertheless, it appears that the notion of ‘similar offence’ in Article 8(2) of Framework Decision
2008/909/JHA may cause difficulties where the information pertaining to the offence contained in
the certificate (section (h)) is not consistent with the judgment or the description in the certificate or
the facts described in the certificate are unclear or insufficient to establish an equivalent
qualification of facts. In these cases, the executing State may request additional information or a
copy of the judgment from the issuing Member State.
Some evaluation reports mention that prior consultation between the issuing and the executing
authorities may be useful in order to avoid certificates being withdrawn because of adaptation
requirements in the executing Member State at any stage of the procedure (recognising the relevant
judicial decision, enforcing it or sending it for enforcement to another Member State) under
Framework Decision 2008/909/JHA.
Some reports have mentioned that the adaptation of sentences imposing a psychiatric or health care
requirement involving the deprivation of liberty but not constituting regular imprisonment is often
problematic, as a result of differences between national systems in terms of the competent
authorities, the compulsory nature of the psychiatric treatment or the duration of the confinement.
In some reports, it was highlighted that problems can arise in relation to the calculation of the
remainder of the sentence to be served, as the different legal systems vary and their calculation
methods may differ. Some Member States calculate the deprivation of liberty in years and months,
whereas others calculate it in days; this makes it more difficult to calculate the exact duration of the
sentence or of the remaining part to be served. In such cases, additional information may be
requested from the issuing authorities. Despite such difficulties, refusals on these grounds
nevertheless remain exceptional.

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Other than the issues mentioned above, most Member States did not report any further practical
difficulties in this area. Indeed, some Member States had not encountered the need to adapt the
sentence because its length or nature was incompatible with their own national law or had
experienced such situations in only a limited number of cases. Most Member States rarely
encountered cases in which certificates were withdrawn due to an excessively lenient sentence.

4.5.2. Partial recognition
Article 10 of Framework Decision 2008/909/JHA states that if the competent authority of the
executing Member State deems it appropriate to 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 its entirety, consult the competent authority of the issuing
Member State, with a view to finding an agreement,. The competent issuing and executing
authorities may agree, on a case-by-case basis, to the partial recognition and enforcement of a
sentence, provided that this does not result in the aggravation of the sentence.
If a consensus is not reached on a solution which satisfies the issuing authority, the final decision
taken by the issuing authority may be to withdraw the certificate, if they deem that the sentence
would not be served properly.
The ninth round of mutual evaluations has demonstrated that in most Member States, partial
recognition does not occur frequently. Only a few Member States reported situations where
sentences handed down by the issuing Member State have been partially recognised. Despite a lack
of practical experience with this issue, practitioners seem to be aware of the procedure to be
followed in accordance with Article 10 of Framework Decision 2008/909/JHA, including possible
consultation with the competent authorities of the issuing Member State and the need to agree with
the latter on the conditions of partial recognition and enforcement, provided that the sentence would
not be aggravated.

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Usually, neither national legislation nor other formal acts lay down specific criteria on how to
decide whether to recognise the judgment and execute the sentence only in part, namely, how to
assess whether this is possible or not, what should be taken into account for this purpose, or in
which cases the judicial authorities should or should not withdraw the certificate. Such assessment
is mainly left to the discretion of the competent authority.
Often, partial recognition of judgments is applied in cases where the person has been sentenced for
multiple concurrent offences, the act is decided upon separately, and the conditions are met only for
some of the offences, with one or more offences not punishable in the executing State. This may in
particular occur for offences (such as financial, drug, traffic offences, etc.) which in some Member
States fall within the remit of the administrative authorities.
In order to assess whether partial recognition in the executing State is acceptable, or whether the
certificate should be withdrawn, it is important for the issuing State to ascertain the reduction of the
sentence after partial recognition. As highlighted in some reports, in rare cases, if this reduction is
deemed to be significant, partial recognition may lead to the withdrawal of the certificate.
A few Member States pointed out some difficulties stemming from the differences between legal
systems. They referred mainly to the incompatibility of some measures with the law of the
executing State, to the different criteria and methods used by each Member State to calculate the
final sentence and to the principle of aggregation of penalties imposed. This may occur when one of
the basic penalties relates to a behaviour which is not criminalised in the executing State and it may
be difficult to determine afterwards what part of the sentence was imposed for that specific offence,
and therefore detailed information concerning the determination of the resulting penalty for multiple
offences may be required.
Most Member States have not encountered any significant difficulties in the consultation process
established under Article 10(1) of Framework Decision 2008/909/JHA; an agreement is often
reached between the issuing and the executing State on the partial recognition of the judgment and
the enforcement of the sentence. However, if difficulties in this process arise, they can be solved
with the intervention of Eurojust or the EJN contact points as facilitators.

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RECOMMENDATIONS

‒ Member States, acting as issuing and executing States, in cases where full recognition of a
sentence under Framework Decision 2008/909/JHA is not possible, are encouraged to
ensure that their competent authorities conduct consultations on the basis of Article 10(1) of
this Framework Decision, with a view to reaching an agreement as regards the possibility of
partial recognition of the judgment and enforcement of the sentence, as this can facilitate
mutual recognition.
‒ Member States are encouraged to ensure that their competent authorities, acting as issuing
authorities in proceedings under Framework Decision 2008/909/JHA, when filling in point
h) of the certificate, draw up a statement of facts as complete and precise as possible, so as
to complement, where appropriate, the information contained in the judgment in order to
avoid any difficulties in the executing authorities’ assessment of the offence.

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4.6. Issues linked to translation

Pursuant to Framework Decision 2008/909/JHA, the documents that have to be forwarded to the
executing Member State for recognising the judgment and executing the sentence are: a copy of the
certificate, a copy of the judgment, and a translation of the certificate into the official language/s of
the executing Member State or, where applicable, into an official language of the Union that is
accepted by that Member State.
Pursuant to Article 23(2) of Framework Decision 2008/909/JHA, as a principle, no translation of
the judgment is required; accordingly, the legislation of several Member States does not require a
translation of the judgment.
Pursuant to paragraph 3 of this provision, only Member States that have deposited a declaration
with the General Secretariat of the Council may, as executing States, in cases where they find the
content of the certificate insufficient to decide on the recognition and enforcement of the sentence,
request that the judgment or essential parts of it be accompanied by a translation into their official
language. Member States who have not made such a notification, where translation is required (i.e.
in more complicated judgments), may arrange for it without recourse to the issuing Member State.
In such cases, although a translation of the judgement has not been requested from the issuing state,
it is a requirement under the criminal procedure legislation of some Member States to use the
official language in legal proceedings. Therefore, in practice, the competent authorities of some
Member States consider the translation of the judgment desirable and often request it or, if they do
not receive it from the issuing Member State, frequently have it translated at their own expense.
A complete translation of the judgment may be considered necessary in cases where the content of
the certificate appears inadequate for the purpose of deciding on the execution of the sentence, and
a more detailed examination of potential grounds for refusal or the need for adaptation is required.
In addition, some Member States also ask for the translation of all supporting documents.

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In these cases, consultations between the competent authorities of the two Member States may take
place and may result in a compromise in view of the different legislation in the other Member State.
The issuing Member State may be asked to provide a translation only of the relevant parts of the
judgment (i.e. the examination of the offences, and the assessments made by the court in relation to
the choice and length of the sentence) or to submit a summary judgment rather than the full
judgment, as the translation of whole judgments is usually costly and time consuming. These
arrangements can save time and the unnecessary allocation of resources.
Clearly, where a request for translation of the sentencing decision and, where appropriate, of the
supporting documents is made, some Member States often fail to comply within the established
time limits, leading to a postponement of the decision to recognise and enforce the judgment.
A few executing Member States do not regularly require the translation of the judgment and of the
additional documents into their language and/or accept it in English, which was considered by the
expert teams to be a good practice.
A few issuing Member States usually forward to the executing Member State the judgment and the
certificate translated into a language accepted by that Member State, although it is not required and
independently from a specific request, which is also a good way to facilitate and speed up
proceedings.
In some cases where the certificate received is not translated or where no translation of the decision
or its essential elements is provided and the content of those documents is not sufficient for a
decision to be taken, the competent authorities of the executing State may refuse to recognise a
judgment of the other Member State imposing a custodial sentence and the procedure is terminated.

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RECOMMENDATIONS

‒ When acting as executing Member States under Framework Decision 2008/909/JHA,
Member States should ensure that their competent authorities limit requests for the
translation of whole judgments to cases where they find the content of the certificate
insufficient to decide on the enforcement of the sentence, and, where appropriate, after
consultation with the competent authorities of the issuing States, with a view to assessing
whether it would be sufficient for only the essential parts of the judgments be translated in
line with Article 23(3) of Framework Decision 2008/909/JHA.

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4.7. Deadlines
Several Member States, when acting as executing States, experience difficulties in complying with
the 90-day time limit set out in Article 12(2) of the Framework Decision 2008/909/JHA as regards
the decision on the recognition of the judgment and enforcement of the sentence.
The ninth round of mutual evaluations has shown that challenges in relation to timely responses
from the relevant executing authorities arise especially when information is missing from the
certificate or certain aspects need to be clarified (mainly relating to the sentence imposed, missing
documents, incomplete identification data of the sentenced person, etc.) or a translation of
documents is needed. These issues often result in delays and the time limits under Article 12 (2) of
Framework Decision 2008/909/JHA may not be met.
This may be particularly relevant in cases where the certificate concerns several judgments, or the
judgment covers several criminal offences, as the process will take longer due to the number of
authorities involved and the separate appeals that can be launched. This may not be a particular
problem in some Member States, where deadlines for submitting a legal remedy are quite short.
Difficulties in meeting the time limits may also occur when the sentence needs to be adapted.
In the event that the deadline laid down by Article 12(2) of Framework Decision 2008/909/JHA
cannot be met, executing Member States should notify the issuing Member State immediately,
giving reasons for non-compliance with the deadlines set and the estimated time needed for the final
decision, but in practice not all Member States do so.
In some cases, based on the outcome of the ninth round of mutual evaluations, this has led to a
certificate being withdrawn on account of the imminent (conditional) release of the sentenced
person, or because such release has already taken place.

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RECOMMENDATIONS
‒ Both when acting as issuing and executing State, Member States should make the best
possible efforts in their decision-making process to ensure the respect of the deadlines set
out in Framework Decision 2008/909/JHA, despite the complexity of the procedures. For
this purpose, when acting as issuing States, it is recommended that Member States provide
supplementary information requested in due time, so as to avoid unnecessary delays.
‒

When acting as executing Member State it is recommended that Member States inform the
issuing judicial authority when the request cannot be executed within the time limit laid
down in Framework Decision 2008/909/JHA, giving the reasons for the delay and the
estimated time needed for the final decision to be taken..

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5.

LINKS BETWEEN FRAMEWORK DECISIONS 2002/584/JHA AND 2008/909/JHA

The functional relationship and complementarity between Articles 4(6) and 5(3) of Framework
Decision 2002/584/JHA on the one hand, and Framework Decision 2008/909/JHA on the other
hand, are quite complex to manage, especially in Member States where the competence for these
two instruments lies with different authorities, which is the case in most Member States. In most
Member States, there is no specific memorandum of understanding between these authorities; the
experts made recommendations to some Member States to draft guidelines defining how this cooperation should be organised.
In only a few Member States, in cases where Article 4(6) of Framework Decision 2002/584/JHA is
applied, do the same authorities decide on the recognition of the judgment within the same
proceedings.
In cases where the execution of an EAW is refused under Article 4(6) of Framework Decision
2002/584/JHA or made conditional under Article 5(3) of that Framework Decision, the decision as
to whether to maintain the EAW or issue a certificate under Framework Decision 2008/909/JHA
may not be easy.
Only a few Member States have issued guidelines or fact sheets explaining to practitioners the
circumstances in which a judgment should be enforced either through the surrender of the person
concerned or through recognition of the judgment; this was considered by the experts to be best
practice.
In most Member States, no specific criteria for assessing whether an EAW or a certificate on the
basis of Framework Decision 2008/909/JHA should be issued, are laid down in the legislation or in
administrative guidelines, though in some cases such criteria are well identified. The choice is made
by the practitioners on a case-by-case basis. However, when the whereabouts of the sentenced
person are unknown, an EAW is usually issued.

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Among the criteria for choosing the appropriate mutual recognition instrument, some Member
States’ authorities mentioned the possibilities for actual enforcement of the sentence, the citizenship
and place of residence of the sentenced person, the links between the person and the executing State
and the possibilities for facilitating social rehabilitation and integration, as well as the need to avoid
impunity.
Given the complexity of a decision to refuse a surrender based on Article 4(6) of Framework
Decision 2002/584/JHA, some expert teams underlined the need for the issuing authorities to carry
out a thorough and careful reflection as to whether to issue an EAW or a certificate under
Framework Decision 2008/909/JHA, to strike a balance between the need for enforcement of the
sentence and the need to ensure the social rehabilitation of sentenced person, and to give
appropriate weight to the relevant criteria. In some reports, it was highlighted that communication
and consultations with the competent authorities of other Member States can be useful in order to
identify the instrument to be applied. The intervention of Eurojust or the EJN contact points could
also be considered, in order to facilitate these consultations, if need be. In one evaluation report,
holding bilateral meetings with the other Member State’s competent authorities, with a view to
establishing arrangements regarding the possible conversion of an EAW procedure into a procedure
for the recognition of a judgment under Framework Decision 2008/909/JHA, was considered a good
practice.
Some Member States are refusing surrender under 4(6) of Framework Decision 2002/584/JHA
before the decision on mutual recognition of the judgement or order imposing a sentence has
become final, without guaranteeing the enforcement of the sentence. The evaluation teams
considered that this practice should be changed in light of Article 25 of Framework Decision
2008/909/JHA, as interpreted by the CJEU.
In cases referred to in Article 4(6) of Framework Decision 2002/584/JHA and in those referred to in
Article 5(3) of Framework Decision 2002/584/JHA, there is no common practice among the
Member States as to whether to issue or require a certificate under Framework Decision
2008/909/JHA.

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Indeed, some Member States, on the basis of Article 4(6) of Framework Decision 2002/584/JHA,
always require a certificate to be issued in accordance with Framework Decision 2008/909/JHA in
order to establish a legal basis for the enforcement of a sentence of another Member State. Some
practitioners expressed the view that the certificate under Framework Decision 2008/909/JHA
provides more guarantees than ‘direct’ execution without a certificate, although this practice can
delay the execution of the judgment.
In one report, it is also pointed out that the certificate contains very valuable information which may
subsequently have to be requested from the authority that rendered the judgment handing down the
conviction, with a view to further proceedings, e.g. the duration of custody, if the person was
detained during the proceedings, legal provisions, whether the State of conviction requires provision
of information regarding the conditional release, etc. It is recalled a that a case addressing this issue
(C-179/22) is currently pending before the CJEU.
Other Member States, after refusing the surrender, directly enforce the executing Member State’s
judgment on the basis of the information contained in the EAW, especially in cases where the
requested person is a national of or legally residing in the issuing Member State. In these cases, the
recognition and execution of the judgment is considered to result automatically from the refusal of
surrender.
Despite the fact that, from a purely practical point of view, this ensures the swift execution of
sentences, in the context of the ninth round of mutual evaluations, some evaluation teams as well as
some practitioners of the evaluated Member States were not in favour of this option, stressing inter
alia that it deprives the issuing authorities, who might not want the sentence to be executed in the
executing State, of their power to decide whether to withdraw the certificate, as provided for in
Framework Decision 2008/909/JHA.

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In these cases, it was recommended that the executing authorities request and obtain a certificate
from the issuing authority before taking over the custodial sentence. However, it should also be
highlighted that, as emphasised in some reports, such practice avoids the risk of the sought person
absconding, thus helping to avoid impunity.
In one report it is considered that these differences may stem from a certain level of ambiguity in
Framework Decision 2008/909/JHA on this point. Article 25 stipulates that, without prejudice to
Framework Decision 2002/584/JHA, the provisions of Framework Decision 2008/909/JHA apply
mutatis mutandis, to the extent they are compatible with the provisions ofArticle 4(6) of Framework
Decision 2002/584/JHA, or where the surrender is subject to the condition of the person’s
subsequent return (Article 5(3) of Framework Decision 2002/584/JHA). Based on the formulation
‘without prejudice to Framework Decision 2002/584/JHA’ and then ‘to the extent [the provisions]
are compatible with provisions of [Framework Decision 2002/584/JHA]’, it was observed that it
seems that Framework Decision 2002/584/JHA should prevail. In the same legal text, however,
recital 12 states that ‘the executing State could verify the existence of grounds for non-recognition
and non-enforcement, as provided in Article 9 of Framework Decision 2008/909/JHA’. This legal
uncertainty is reflected in the different practices and domestic laws of the Member States.
It is also recalled that the Popławski I and II case-law, stating that the executing State must
guarantee to effectively undertake the execution or the surrender, is not interpreted and applied in a
uniform way across the EU.
The need for clarification at EU level as regards the implications of the combined application of
Article 4(6) of Framework Decision 2002/584/JHA and Framework Decision 2008/909/JHA, in
particular on whether it is possible or not to directly enforce a sentence after having refused
surrender on the basis of the information contained in the EAW without a certificate, was stressed
in the context of the ninth round of mutual evaluations, by both practitioners of the evaluated
Member States and expert teams.

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When the surrender has been agreed with a guarantee of return on the basis of Article 5(3) of
Framework Decision 2002/584/JHA, it seems that most Member States can agree on the need to
issue a certificate after the sought person is sentenced in the issuing State.
Another relevant issue regarding the combined application of Framework Decision 2002/584/JHA
and Framework Decision 2008/909/JHA is linked to the question of what happens to the detained
person between the refusal to surrender and the recognition of a custodial sentence.
For the Member States which directly enforce the sentence, this issue is not relevant. Other Member
States postpone their decision on the surrender while waiting for the certificate to be delivered; in
these cases, there is a time gap during which the person could possibly flee. Some of these Member
States keep the sought person under provisional arrest while waiting for the issuing State to issue
the certificate, pursuant to Article 14 of Framework Decision 2008/909/JHA. It was emphasised in
the context of the evaluation that such an approach avoids the possibility of the wanted person
absconding pending recognition of the custodial sentence, and thus promotes mutual trust.
In other Member States, such provisional arrest is not applied. In this case, the experts
recommended that national authorities make use of Article 14 of Framework Decision
2008/909/JHA if surrender under an EAW for the purpose of executing a sentence is refused, in
order to avoid any risk of impunity.

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RECOMMENDATIONS

-

Member States are invited to ensure that, before issuing an EAW for the purpose of enforcing
a sentence, the competent judicial authorities thoroughly check whether it would be more
appropriate to follow the procedures provided for in Framework Decision 2008/909/JHA.

-

It is recommended that Member States make use of provisional arrest, as provided for in
Article 14 of Framework Decision 2008/909/JHA, if surrender under an EAW for the purpose
of executing a sentence is refused, in order to avoid any risk of impunity.

-

Eurojust, together with EJN is invited to provide guidance on the functional relationship and
complementarity between Article 4(6) of Framework Decision 2002/584/JHA and Framework
Decision 2008/909/JHA and the implications and possible problems of their combined
application, with a view to establishing more consistency in Member States’ practices,
depending on the outcome of the case C-179/22 of the Court of Justice of the European Union.

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6.

FRAMEWORK DECISIONS 2008/947/JHA AND 2009/829/JHA

6.1

Lack of application

The level of application of Framework Decisions 2008/947/JHA on the transfer of non-custodial
sentences and 2009/829/JHA, on the European Supervision Order (ESO), is quite low across the
Union.
Based on the outcome of the ninth round of mutual evaluations, it seems that the reasons for the
lack of application of Framework Decisions 2008/947/JHA and 2009/829/JHA do not lie with the
way these Framework Decisions have been transposed. Most of the practitioners interviewed in the
context of this round of mutual evaluations usually find the national transposing legislation
comprehensive and understandable.
The reasons for the scarce use of Framework Decisions 2008/947/JHA and 2009/829/JHA appear to
be multifaceted and linked to the coexistence of several factors.. Some of these were already
identified some time ago in the context of discussions among practitioners from all Member States
under the auspices of the EJN (ST 14754/18). The main points raised were that the instruments are
not widely known among EU practitioners, and this has led to a lack of experience and delays in
execution. Another problem raised was the difficulty in identifying the competent authority to
address in the other Member States.
This round of mutual evaluations offered an opportunity to look in depth at these and other
circumstances underlying the rare use of Framework Decisions 2008/947/JHA and 2009/829/JHA
and to identify possible ways for improvement. Certain issues and challenges common to both
Framework Decisions are dealt with in this sub-chapter, whereas others which are specific to each
legal instrument are dealt with in the following sub-chapters.

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Apart from the fact that these instruments are relatively recent additions, the evaluation highlighted
that a recurrent problem is a lack of sufficient awareness, knowledge of and experience with
Framework Decisions 2008/947/JHA and 2009/829/JHA among Member States’ practitioners, not
only judges and prosecutors, but also the probation services and defence lawyers, who should be
key players in this field. Another issue is the lack of sufficient training on these instruments.
These shortcomings are common to most Member States and clearly indicate that initiatives are
needed to promote the knowledge and use of Framework Decisions 2008/947/JHA and
2009/829/JHA among all relevant stakeholders involved in their application, by ensuring training,
exchange of information and good practices among practitioners at both national and EU level.
Moreover, it would be useful to provide practitioners with handbooks for the practical
implementation of these instruments both at EU and at national level as the absence of specific
national procedural guidelines may cause a certain reluctance among judges to use these legal
instruments.
It has been observed that the very limited use of Framework Decisions 2008/947/JHA and
2009/829/JHA is also due to the length and complexity of the related procedures. As a consequence,
the judicial authorities most often opt for simpler solutions rather than using complex and timeconsuming mechanisms. Therefore, in the opinion of some practitioners, a possible measure at EU
level to promote their greater use could be to simplify the procedures.
In addition, practitioners have pointed out that there is a limited number of cases where it would be
appropriate or expedient to effectively use these instruments, including in the absence of crossborder implications.
A significant obstacle to the use of Framework Decisions 2008/947/JHA and 2009/829/JHA that
was clearly identified in this round of evaluations lies with the significant differences between
national systems in terms of the nature and duration of the applicable probation, alternative and
control measures. The measures covered by these Framework Decisions may not even exist in some
Member States’ jurisdictions. Moreover, the information provided by the issuing State is sometimes
incomplete or the certificate is not sent to the executing authorities.

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This evaluation round has clearly identified that the differences within the national legal systems
make it difficult to transfer such measures to another Member State. Knowledge of the other
judicial systems and national practices as regards pre-trial and post-trial measures is not widespread
among Member States’ practitioners and this may have an impact on mutual trust between
competent judicial authorities, which is a pre-requisite to the good functioning of mutual
recognition, including on the basis of Framework Decisions 2008/947/JHA and 2009/829/JHA.
In order to remedy such problems, in the context of this round of mutual evaluations, it was
emphasised that it would be very helpful to have a single source of information on the non-custodial
measures in the legal systems of all the Member States, for example on the EJN website. In order to
facilitate the application of Framework Decisions 2008/947/JHA and 2009/829/JHA, it was also
stressed that Member States should update the information on the EJN website (EJN Atlas) on the
competent authorities that deal with the abovementioned mutual recognition instruments, allowing
efficient direct contact between the competent authorities,.
Another common issue regarding Framework Decisions 2008/947/JHA and 2009/829/JHA is the
lack of awareness among the persons eligible for the measures provided for by these legal
instruments of the possibilities they offer. Therefore, it was recommended that the competent
national authorities effectively provide information on these possibilities to the prosecuted or
sentenced person during the hearing or the trial. In one report, it was pointed out that regular
meetings between the judiciary, public prosecutors and the other authorities involved could be held
in order to identify cases where Framework Decision 2008/947/JHA can be applied at an early stage
of the proceedings and to coordinate their action at national level. The same applies to Framework
Decision 2009/829/JHA.

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6.2 Framework Decision 2008/947/JHA

Although acknowledging that Framework Decision 2008/947/JHA, which is a post-trial mutual
recognition instrument aimed at enhancing the prospects of reintegration of the sentenced person
into society, is relatively recent, this evaluation round has shown how rarely it is used.
As already pointed out above, the differences in the Member States’ penal systems, including in
how alternative and probation sentences are structured, give rise to practical problems. While
Member States can recognise prison sentences fairly simply, it seems far from straightforward to do
so with alternative and probation sanctions involving particular types of care or prohibition, for
which the executing authority may have no equivalent in its national system. Therefore, in order to
improve practitioners’ knowledge and facilitate transfers, more information should be gathered on
the non-custodial sentences imposed in different Member States, possibly on the EJN website, as
mentioned above in the previous sub-chapter.
Furthermore, the fact that there are multiple national authorities that are competent to implement
Framework Decision 2008/947/JHA also makes matters more complex and causes uncertainty as to
which authority should be contacted. There are also difficulties in identifying the competent
authorities in the EJN Atlas, which, inter alia, does not currently include information on the
probation authorities.
Moreover, when the duration of probation measures is short, by the time the issuing authority has
taken the necessary steps to adopt the measure, the probation period has often already expired or is
just about to expire; furthermore, a decision on the recognition of a measure may arrive after the
end of the probation period.

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As pointed out in one report, efficient and timely communication between the competent authorities
of the Member States, with a view to securing the successful and timely transfer of the supervision
of probation or alternative measures in accordance with Framework Decision 2008/947/JHA, is of
the utmost importance to promote the application of the principle of mutual recognition to
judgments and probation decisions. Some expert teams identified several cases of inefficient
communication between competent authorities of the Member States that caused delays and a lack
of compliance with the time limits to complete transfers. One Member States’ authorities suggested
that contacts between probation services dealing with Framework Decision 2008/947/JHA from all
Member States could be enhanced at EU level, as this would facilitate consultation and cooperation
on specific cases when needed.
In addition, the particular scope of Framework Decision 2008/947/JHA, i.e. probation measures and
alternative sanctions, calls for specific monitoring and supervision of sentenced persons. Effective
monitoring requires great trust between the competent authorities of other Member States and
therefore knowledge of other judicial systems. However, there seems to be room for improvement
in this respect as some national judicial authorities prefer to keep the execution of the
penalty/measure, even at a distance, under the responsibility of their national services, rather than
accept cross-border supervision, as they believe this ensures a more efficient monitoring of the
measures.
In order to give more visibility at EU level to Framework Decision 2008/947/JHA, some reports
suggested creating a network made up of the relevant Member States’ authorities in order to share
experience and best practices and find common solutions when using this legal instrument.
One step in this direction is the METIS project, which aims to promote, inter alia, the use of
Framework Decision 2008/947/JHA by developing practical tools for both practitioners and
sentenced persons and their lawyers. The Member States involved in the METIS project are also
drawing up a table comparing probation sentences. Some experts considered that this project would
promote the use of this mutual recognition instrument and, more broadly, reinforce mutual trust
between Member States.

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6.3 Framework Decision 2009/829/JHA

Some of the conclusions regarding Framework Decision 2008/947/JHA, as illustrated in the
previous sub-chapter, can also be applied to Framework Decision 2009/829/JHA: The latter is a
pre-trial mutual recognition instrument providing for the transfer of supervision measures to another
Member State, with a view to preventing inequalities between residents and non-residents in the
trial State and taking into account that in similar circumstances non-residents are remanded in
custody more often than residents.
One explanation for the reluctance among judges to apply Framework Decision 2009/829/JHA is
linked to the difficulty in identifying cases where it would be effective and appropriate to issue a
European Supervision Order (ESO). Some Member States’ practitioners expressed the view that the
added value of the ESO is questionable, as it does not suit the needs of criminal proceedings.
Namely the time required to set up the related procedures is not compatible with the deadlines for
hearings on provisional detention. Indeed, the decision to place a person under provisional detention
must be taken within a short time and it is not possible in this time frame to issue an ESO and
receive a reply from the executing Member State.
Furthermore, the competent authorities are often not willing to allow the suspect/accused person to
leave the country when their presence will be needed in the course of the criminal procedure, as
they consider that detention, and therefore an EAW is necessary.
Some Member States’ practitioners expressed the view that when a pre-trial investigation can be
completed fairly swiftly, it would not be appropriate to issue an ESO, as this could make the case
more complicated to manage. A better option for a faster resolution of a criminal case is to briefly
keep the person concerned under provisional arrest rather than releasing them to return for further
investigation or a trial.

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Regarding more complex and time-consuming investigations, different views were expressed by
some practitioners and expert teams. Some practitioners believe that for such investigations, where
suspects are usually in detention, an ESO might jeopardise the investigation.
One expert team expressed the opposite view - that in long drawn-out criminal cases, the benefits
provided by Framework Decision 2009/829/JHA (enhancing the presumption of innocence and the
right to liberty) should prevail.
More generally this evaluation round has demonstrated that the reluctance to use the ESO is also
due to the uncertainty experienced by the issuing authority as to how effectively the supervision
measure is monitored by executing authorities. In the opinion of some practitioners, ongoing
interaction and communication between these authorities to monitor compliance with the measures
imposed seems to be quite difficult in practice.
Finally, another reason given by the competent authorities of one Member State for the infrequent
use of Framework Decision 2009/829/JHA is that the cost of supervision measures do not justify
the use in case of minor offences.

RECOMMENDATIONS

-

Member States are invited to take appropriate measures to increase practitioners’ awareness
of Framework Decisions 2008/947/JHA and 2009/829/JHA and, accordingly, to include
information on these legal instruments in the training programmes for all relevant
stakeholders, as well as to draw up specific guidelines to facilitate and promote the use of
these instruments.

-

It is recommended that the European Commission take concrete non-legislative measures to
enhance the application of EU Framework Decisions 2008/947/JHA on probation and
alternative sanctions and 2009/829/JHA on the European Supervision Order, taking into
account the information gathered during this round of mutual evaluations.

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-

The European Commission, where appropriate in cooperation with the EJN and Eurojust, is
encouraged to consider providing practitioners with EU handbooks containing practical
guidance on the application of Framework Decisions 2008/947/JHA and 2009/829/JHA.

-

With a view to facilitating the application of Framework Decisions 2008/947/JHA and
2009/829/JHA, the EJN, in cooperation with the Member States, is encouraged to include
relevant information on all national systems and the non-custodial measures they provide for,
as well as updated information on all Member States’ authorities competent to apply these
Framework Decisions, on the EJN website.

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7.

HORIZONTAL ISSUES

7.1 Central authority and direct contacts

7.1.1. Central authority and direct contacts under Framework Decision 2002/584/JHA
According to Article 7(1) of Framework Decision 2002/584/JHA, each Member State may
designate a central authority or, when its legal system so provides, more than one central authority.
Member States may, if it is necessary as a result of the organisation of their internal judicial system,
make their central authority or authorities responsible for the administrative transmission and
reception of EAWs, as well as for all other official correspondence relating thereto.
One Member State has designated two bodies as the central authorities. In just a few Member
States, no central authority within the meaning of Article 7(1) of Framework Decision
2002/584/JHA has been appointed. Of those Member States that have appointed a central authority,
most have appointed their Ministry of Justice, while a few have appointed a national (judicial)
authority other than the Ministry of Justice.
In almost all Member States, the central authority has a limited role and intervenes only when
requested to do so. It does not interfere in relations between judicial authorities and does not
maintain contacts with other Member States’ judicial authorities, although it does maintain contacts
with the Ministries of Justice of other Member States.

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Usually, the central authority provides assistance to the issuing and executing judicial authority,
especially in the most complex cases, for instance, by facilitating communication with the judicial
authorities of the Member States concerned or in the event of difficulties arising that cannot be
resolved directly with the competent authorities of other Member States, e.g., identifying the
competent or central authority, sending documentation or verifying its authenticity. Often it
produces materials to support competent authorities (handbook, intranet, guidelines, circulars, etc.)
or handles statistics. In some cases, it can also carry out a quality check before issuing an EAW.
In some reports, it was observed that the role of the central authorities in providing assistance in
EAW proceedings has recently been decreasing and recourse to their assistance is most often
limited to situations where the problematic issue in question cannot be resolved through direct
contacts between the judicial authorities concerned. In some cases, this change has resulted from the
follow-up to the recommendations of the fourth round of mutual evaluations, whereas in other cases
it may be due to a greater awareness of the scope and the experience gained by the judicial
authorities in the practical application of Framework Decision 2002/584/JHA.
There are, however, a few Member States, where the central authority continues to play an
important role in the main aspects of the surrender procedure, going beyond the administrative,
practical and methodological tasks assigned to them by Article 7(1) and (2) of Framework Decision
2002/584/JHA. For instance, it is enabled inter alia to issue and execute the EAWs or is designated
as the unique channel through which all communications with and requests to other Member States
should go or is also authorised to request supplementary information from the issuing competent
authority on the basis of Article 15(2) of Framework Decision 2002/584/JHA, thus exercising tasks
that are usually performed by the judiciary. These Member States have been advised to take
measures to limit the role of their central authority, and to promote direct contacts between
competent authorities in line with the principle of mutual recognition.

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In the context of the ninth evaluation round, it has been emphasised that this new model of judicial
cooperation entails a radical change in relations between the Member States, replacing the former
approach of communication between central or governmental authorities with direct communication
between Member States’ judicial authorities, with the aim of facilitating judicial cooperation
without the involvement of executive bodies.
A few practitioners pointed out that in certain cases they are discouraged from establishing such
direct contacts due to language limitations, fear of not identifying the competent authority, etc. It
was stressed by the expert team that although linguistic barriers can be an obstacle to efficient direct
contacts, since the latter are a core element of mutual recognition, measures should be taken to
overcome such difficulties.
7.1.2. Central authority and direct contacts under Framework Decision 2008/909/JHA
The central authority assists the judicial authorities in proceedings related to receiving and
transmitting the certificates and judgments, as well as any official correspondence relating to them.
It may also assist the competent authorities in the procedures under Framework Decision
2008/909/JHA by providing advice or information on the procedures. Not all Member States,
however, have designated a central authority for the purpose of this Framework Decision.
Usually, the articulation between the principle of direct contacts between judicial authorities and the
role of the central authorities under Framework Decision 2008/909/JHA mirrors the allocation of
competencies in the context of EAW proceedings; see therefore the relevant chapter above in this
respect.

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7.1.3. Central authority and direct contacts under Framework Decisions 2008/947/JHA and
2009/829/JHA
Many Member States have not designated a central authority, as either the issuing or executing
authority, for the purpose of issuing and forwarding decisions and certificates pursuant to
Framework Decisions 2008/947/JHA and 2009/829/JHA. However, the Ministry of Justice usually
assists the competent judicial authorities in the event of difficulties that cannot be resolved directly
with the competent authorities of other Member States.
7.2. Specialisation of the competent authorities
Member States have different organisational approaches when allocating responsibility for
handling the EU mutual recognition instruments. Some have established a centralised system for
one or all of these instruments, while others take a decentralised approach. Centralised bodies - in
most Member States the Ministry of Justice- are highly specialised in the use of EU mutual
recognition instruments (acting as both issuing and executing authority) and can advise and
support local practitioners.
In local courts, specialisation may be more difficult to achieve, and the practitioners are frequently
not specialised in the use of EU mutual recognition instruments, as each prosecutor or criminal
court deals with them among other tasks. In the context of this evaluation round, these Member
States have been encouraged to consider establishing specialized units at courts that specialise in
matters relating to international judicial cooperation, or, alternatively, to increase the number of
magistrates working exclusively on cases related to these instruments, as well as to provide
adequate specialized training on these instruments, as possible ways of improving specific
expertise in this field.
Nevertheless, in some Member States there is, to differing extent, a certain degree of specialisation
at various levels of the judiciary, as some magistrates and/or courts, more often those located in the
larger districts, have some level of specialisation.

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This is more frequently the case for Framework Decision 2002/584/JHA, as the EAW has been
widely used for a significant length of time and practitioners have gained experience, and to a lesser
extent for Framework Decision 2008/909/JHA, as only a few Member States have separate
specialised departments handling cases under this Framework Decision. No specialisation exists on
Framework Decision 2008/947/JHA and Framework Decision 2009/829/JHA.
In one Member State, the structure of the competent authorities is based on territorial specialisation
in specific instruments, with the benefit of a high level of expertise of the judges, magistrates and
administrative staff involved. In one Member State, a specialised court performs a check of the
EAW before it is issued, which minimises the risk of issuing an incomplete form. In some Member
States, there are networks of practitioners or working groups specialising in international judicial
cooperation in criminal matters, who meet regularly to discuss relevant issues in the field of judicial
cooperation and can provide guidance and assistance to other practitioners in issuing and executing
mutual recognition requests. Moreover, the EJN contact points usually have the knowledge and
experience to be able to advise their colleagues.
Almost no Member State has lawyers specialized in EU mutual recognition instruments. Moreover,
lawyers are not even sufficiently aware of EU legislation and the case-law of the CJEU in this field.
Some Member States, however, have lawyers with some knowledge of the EAW and, to a lesser
extent, knowledge of Framework Decision 2008/909/JHA, but there is no specialisation among
lawyers in Framework Decisions 2008/947/JHA and 2009/829/JHA. Furthermore, given that these
lawyers are usually appointed ex officio, there is a risk that lawyers who are not specialised in a
given area are not able to adequately protect a convicted or suspected persons’ rights and legitimate
interests.

RECOMMENDATIONS
‒ Member States are encouraged to ensure an adequate level of specialisation of
practitioners, including lawyers, if possible, dealing with all the EU mutual recognition
instruments involving deprivation or restriction of liberty, subject to the ninth round of
mutual evaluations, by offering specialised training, and promoting networks of
magistrates specialising in this area.

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7.3. Cooperation and exchange of information
The exchange of information between judicial authorities is of vital importance in the context of
procedures related to all EU mutual recognition legal instruments involving deprivation or
restriction of liberty, subject to the ninth round of mutual evaluations. Additional information may
be needed by the executing State further to the information already sent by the issuing State.
However, in the context of this evaluation round, it was observed that sometimes the requested
additional information is not relevant or is unnecessary, as it goes beyond the requirements set out
in the respective legal instrument, with the result that the duration of the proceedings may be
unjustifiably extended.
In the context of this round of mutual evaluations, the issue of the exchange of information has been
dealt with mainly in relation to Framework Decision 2002/584/JHA and to a more limited extent in
relation to Framework Decision 2008/909/JHA.
As regards the EAW, the information communicated by the issuing Member State may be
insufficient to decide on the execution of the EAW. One of the most common information deficit is:
the insufficiently detailed description of the facts and circumstances of the crime, such as the place
where and time when the individual acts were committed. The reason therefore is, that the
information should be detailed enough to distinguish the acts concerned from other acts, which vital
to verify double criminality, ne bis in idem or in absentia judgments. In other cases, there is not
enough information on the detention conditions in the issuing Member State. In case of EAWs
issued for the enforcement of a judgement, missing information may concern the indication of the
length of the sentence or whether the person in question was notified about the time of the court
hearing.
In the vast majority of cases, when a need for additional information occurs, in accordance with
Article 15(2) of Framework Decision 2002/584/JHA, the issuing judicial authorities are asked to
provide the relevant information within a set deadline. Such deadlines, if reasonable, are usually,
although not always, adhered to by the issuing judicial authorities and responses are usually timely
and appropriate.

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However, in some cases, where such deadlines are short and difficult to meet or where repeated
requests for additional information are necessary, because the issuing State fails to reply on time or
to give the correct response, this may result in proceedings being prolonged and respect of the time
limits set by Article 17 of Framework Decision 2002/584/JHA being a challenge. Furthermore,
there have been situations where the requested information has not been provided by the issuing
State and the surrender has been refused by the executing State.
This issue of information exchange does not end with the surrender of the person, as the executing
authorities are also expected to send the surrender decisions and other relevant follow-up
information after a decision on the EAW has been taken, in particular on the period of detention
served, using the standard form set out in Annex VII to the Commission’s Handbook on how to
issue and execute a European arrest warrant. However, not all executing Member States send such
follow-up information regularly and it is sometimes necessary for the issuing State to request it.
As regards Framework Decision 2008/909/JHA, additional information may be requested in the
event of incomplete or incorrectly completed certificates. This may concern various types of
information, such as: legal classification and designation of the offence; the exact duration of the
time spent in custody and the unserved part of the sentence; the applicable scheme for conditional
release, etc. In general, however, the information included in the certificate sent from the issuing
State is sufficient.
In the context of proceedings under Framework Decision 2008/909/JHA, consultation may or shall
be carried out between the competent authorities of the issuing and the executing State in order to
establish whether the sentence would serve the purpose of facilitating the social rehabilitation and
successful reintegration of the sentenced person into society. Such consultations are not always
mandatory. The issuing authorities do not always make prior contact with the executing Member
States’ authorities, except where their consent is needed. However, some expert teams have
observed that prior consultation with the executing Member State could be useful in order to obtain
all the relevant information needed to decide whether to issue a certificate under Framework
Decision 2008/909/JHA. For more details, see the chapter on the assessment of social rehabilitation.

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The competent judicial authorities of the executing State have the obligation, as laid down in Article
21 of Framework Decision 2008/909/JHA, to provide the information listed in this provision to the
issuing State without delay; however, not all Member States comply with this obligation.
The exchange of information or the consultations are carried out through various channels. The
general rule, in line with the principle of mutual trust - which is a fundamental element of the
system of mutual recognition instruments in the EU - is that the competent Member States’
authorities communicate directly with the competent authorities of other Member States. Based on
the outcome of the ninth round of mutual evaluations, the direct contact between judicial authorities
is satisfactory in general. A few Member States request additional information through their central
authorities.
Communication may take place by ordinary mail or phone, fax, electronic mail, etc. With a view to
facilitating the application of Framework Decision 2008/909/JHA, some Member States’ authorities
have agreed to send transfer requests and any follow-up elements (relevant documents, recognition
decisions, additional information) electronically.
The more widespread use and availability of new technologies helps to speed up interaction, but at
the same time requires that the ENJ Atlas, which contains the email addresses of judicial and central
authorities, be kept up to date.
In some cases, the channels of Eurojust and the EJN may be useful to establish quick and effective
communication, especially in urgent cases and/or where no reply is received or in order to
circumvent difficulties arising from language barriers. For those Member States that use the
Schengen Information System, communication may occasionally, where relevant, also take place
via the SIRENE Bureaunit and, for those Member States which do not use the Schengen
Information System, via the INTERPOL Bureau.

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RECOMMENDATIONS
‒ Member States are advised to ensure that the role of their central authorities is limited to
what is provided for by each EU mutual recognition instrument subject to the ninth round
of mutual evaluations, and to promote direct contacts between competent authorities in
line with the principle of mutual recognition of judgments and judicial decisions, set out
in Article 82(1) TFEU.
‒ When acting as issuing States for the purposes of Framework Decisions 2002/584/JHA
and 2008/909/JHA, Member States are advised to ensure that their competent authorities
transmit to the competent authorities of the executing State all information necessary to
decide on the execution of the request, and when the latter requires additional
information, to provide such information as soon as possible.

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7.4. Transit of the requested or sentenced person

Transit through the territory of a Member State other than the executing State, for the purpose of
surrender pursuant to Article 25 of Framework Decision 2002/584/JHA and for the purpose of
transferring a sentenced person to another Member State under Framework Decision
2008/909/JHA, is an essential element of finalising the proceedings under these Framework
Decisions.
In most Member States, the Ministry of Justice is the competent authority for dealing with transit,
both for incoming and outgoing cases. Requests for transit are made through the SIRENE Bureau
and in some cases through the INTERPOL Bureau. The practical arrangements for the execution of
the actual transit are organised in cooperation with the police, who are responsible for the
operational aspects.
Most Member States have not encountered major problems in the transit of requested persons.
However, some practical challenges can arise when organising the transit, especially as a result of
the very tight transit deadlines - the handover must be completed within ten days - and in such
cases, frequent delays in response time may lead to a postponement of the operation, as receiving
the transit request at very short notice before the transit date can minimise the time to arrange the
surrender. Other practical difficulties may concern identifying the competent authority of the other
Member State responsible for transit. Some practitioners and expert teams pointed out that it would
be useful if the EJN Atlas contained this information and recommended that the EJN website be
updated to that end. Issues may also arise with regard to documentation and translation
requirements for authorising the transit.
Transit permissions are often an urgent matter, but they are time consuming, especially if the
transfer request needs to be translated into the official language of the requested Member State.

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In some cases, transit requests are incomplete , there are a few Member States that require the
translation and in some instances a translation of both the transit request and the EAW is required.
The Fiches Belges on the EJN website, when updated, could help to identify the requirements
regarding the necessary documents, time frame and accepted languages.Disruption of air traffic,
was also mentioned by some Member States as an additional practical difficulty in executing the
transit. Several Member States indicated problems in cases where the executing State ordered the
surrender of the requested persons without taking any precautionary measures to ensure their
availability, merely notifying the person of the date for surrender, to present themselves voluntarily.
Sometimes, a person being surrendered who has not been placed in detention, does not appear at the
pick-up place, so the transit has to be reorganised several times.
From a logistical point of view, extensive preparations are needed in order for the actual transfer to
take place. Moreover, the geographical location of some Member States can create challenges due
to long distances and a lack of direct flights. Generally speaking, bilateral talks with the most
relevant neighbouring and partner Member States have proved useful in improving the practical
implementation of the transit. EJN contact points can help to speed up the procedure and establish
flexible and swift contacts with the competent authorities.
It should also be emphasised that during the COVID period, all Member States faced problems with
cross-border transport of persons to Member States other than the neighbouring Member States due
to significant restrictions on air travel and other methods of transportation.

RECOMMENDATIONS
‒ In cooperation with the Member States, the EJN is invited to ensure that updated information
on the competent authorities responsible for authorising transit and on the necessary
documentation, time frame and accepted languages is available in the EJN Atlas and the
Fiches Belges, in order to facilitate and speed up the process.

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7.5. Cooperation with Eurojust and EJN
Based on the outcome of the ninth round of mutual evaluations, the competent national authorities
are generally well informed as regards the competence of Eurojust and the European Judicial
Network in the field of judicial cooperation and the possibilities they offer, and the assistance they
provide is generally assessed by Member States’ practitioners as valuable and necessary. Eurojust
and the EJN are considered the most efficient channels of communication in cross-border
proceedings and are generally reported to be very effective, as they contribute to strengthening
cooperation and mutual trust among the judicial authorities of different Member States.
Only a limited number of Member States do not involve Eurojust and the EJN in cross-border cases
related to mutual recognition procedures as much as they could, in order to expedite proceedings.
Assistance either from Eurojust or the EJN may be considered by Member States’ authorities when
applying EU mutual recognition instruments, depending on the merits of the case and in particular
its complexity and urgency. Theoretically, they can provide different but complementary means of
assistance. The EJN contact points are usually asked to provide assistance with a view to facilitating
and streamlining communication and obtaining the information necessary to render a decision,
whereas in urgent or more complex cases concerning serious criminal activity or where more
Member States are involved in a case, the national member of Eurojust may be contacted for the
purpose of facilitating cooperation.
However, it is not always easy to establish a clear division between their respective roles. In
practice Member States’ authorities seek alternatively the assistance of Eurojust or the national EJN
contact points in situations, where there is a need for assistance in establishing contacts, as this is
difficult or problematic, including for linguistic reasons, or when problems arise in obtaining
supplementary information or documents from the issuing State.

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As regards in particular Framework Decision 2002/584/JHA, the channels of Eurojust and the EJN
are both considered helpful, as they allow effective and quick contacts with the issuing authority of
the EAW. Compliance with the deadlines is also often achieved thanks to the help of the EJN
contact points and, in urgent or more complex cases, with the assistance of the National Desk at
Eurojust.
As regards the EAW, Eurojust channels are used for rapidly solving problems, e.g. difficulties in
the execution of the request or in the event of multiple competing requests to surrender against a
requested person issued by the judicial authorities of several Member States (Article 16 of
Framework Decision 2002/584/JHA.). Whilst this is not an obligation, involving Eurojust is a
possibility that can quickly provide the executing authority with coordinated and well-informed
advice on which of the competing EAWs should be executed, taking into consideration all relevant
aspects. In many reports, the experts stressed how helpful Eurojust can be in such cases, with the
use of existing Eurojust guidelines for deciding on competing requests for surrender and extradition
(revised in 2019) and the possibility of reaching an agreement shared by all stakeholders within a
limited time frame. In many Member States, this option is not included in national law or is very
rarely used in practice. Several reports include recommendations to involve Eurojust more often in
relation to competing EAWs.
Eurojust can also be very helpful when problems occur in case an EAW is related to other mutual
recognition instruments, e.g. a EIO, to be carried out in parallel or immediately after the requested
person’s arrest, or simultaneously, since the competent authorities for the individual instruments
could also be different.
Eurojust’s involvement in EAW proceedings is also relevant in cases where, in exceptional
circumstances which could lead to delays in the execution of the EAW, the judicial authority has to
notify Eurojust, giving the reasons for the delay in accordance with Article 17(7) of Framework
Decision 2002/584/JHA. In some reports, the added value of the coordination meetings organised
by Eurojust, especially in cases where different EU legal instruments are applicable, was also
emphasised, as well as of coordination centres, where EAWs and other measures must be executed
simultaneously in several Member States.

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Inquiries aimed at identifying the competent authorities of other Member States are mainly carried
out by the EJN, e.g. with the assistance of the experts designated as EJN contact points or with
Eurojust. It has proved helpful in practice to call upon the EJN’s contact points or Eurojust
especially in urgent cases, when the process of obtaining information from the executing authority
is delayed or if the information provided is insufficient, in order to receive assistance with further
enquiries or to speed up the matter.
Cooperation via the EJN is highly valued by practitioners, as the EJN contact points can usually
advise their colleagues on the handling of EAW cases and distribute all the relevant information,
including information about recent CJEU judgments to other practitioners. In several reports, the
evaluation teams highlighted the usefulness of the Eurojust overview of the case law of the Court of
Justice of the European Union on EAW, and other Eurojust products.
In many Member States, magistrates are aware of the existence of the EJN website and online
resources, use them on a regular basis and find them extremely practical and indispensable tools for
the efficient and easy drafting of both requests and the responses submitted among practitioners of
different Member States. In some Member States, on the contrary, EJN tools are not sufficiently
known and used by practitioners and there is a need for awareness-raising concerning the tools that
can facilitate cross-border judicial cooperation.
The EJN instrument most frequently used and deemed most important is the EJN Atlas, which
facilitates identification of the competent authorities. However, in the context of the ninth round of
mutual evaluations it was highlighted that contact details in the EJN Atlas are sometimes outdated
or incomplete and do not include all Member States’ judicial authorities’ email addresses.
Therefore, it was stressed that the information on the Atlas platform should be regularly updated for
all Member States. The EJN also has a secure telecommunication system that can be used in
criminal matters including for the transmission of European arrest warrants. In one report, it was
recommended that the templates used in the implementation of legal instruments of judicial
cooperation, could, as is already the case for the EAW, be translated into all EU languages and
made available on the EJN website.

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Other EJN tools are:
-

the Fiches Belges that provide practical information on specific sets of measures that are
covered by judicial cooperation in criminal matters;

-

the Judicial Library, which enables practitioners to check the status of implementation of
the different legal instruments and the declarations made by the Member States on them;

-

the Compendium, which provides support for drafting requests for judicial cooperation;

-

the report ‘Criminal detention conditions in the European Union: rules and reality’, which
outlines selected minimum criminal detention standards at international and European
level, such as the size of the premises, sanitation (access to toilet and bathroom facilities,
the length of time spent by detainees outside, etc.) and reports from various institutions in
Europe concerning these conditions.

RECOMMENDATIONS

‒ Member States are encouraged to promote awareness and the use of Eurojust and EJN and
the tools they offer, taking into account the added value they can provide in order to
overcome difficulties in the application of EU mutual recognition instruments and, more
generally, to improve the effectiveness of judicial cooperation with other EU Member States.
In cooperation with the Member States, the EJN is invited to ensure a regular update of its
website, since it is an essential and valuable central resource, and in particular to keep the
contact details to judicial authorities in the respective Member States and also the section on
the contact points in the Atlas up to date, so that Member States’ practitioners can easily
identify the competent authorities of other Member States in cross-border cases involving
EU mutual recognition instruments.

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7.6. Training
Most Member States have quite comprehensive and well-organised systems for the training of
practitioners in the field of judicial cooperation; some Member States make the most of new and
modern IT tools to offer e-learning training courses. Nevertheless, extra efforts seem necessary to
ensure continuous training for magistrates at all stages of their career on all the mutual recognition
instruments covered by this round of evaluations, as outlined below.
Framework Decision 2002/584/JHA on the EAW has existed for a long time and is by now more or
less an everyday tool for practitioners across the EU, and Framework Decision 2008/909/JHA on
the transfer of custodial sentences is also known and applied to a quite satisfactory extent. There is
however a lack of knowledge and experience among practitioners on Framework Decisions
2008/947/JHA on probation and alternative sanctions and 2009/829/JHA on the European
Supervision Order (ESO), which is an obstacle to a more frequent application of these instruments.
This round of evaluations found that in the majority of Member States, training activities on
Framework Decision 2002/584/JHA regularly take place and that training on Framework Decision
2008/909/JHA is often provided, although not systematically. However, training on the Framework
Decisions 2008/947/JHA and 2009/829/JHA is seldom available, with the exception of a few ad hoc
initiatives in some Member States.
There is clearly room for improvement by increasing the training activities for judges, prosecutors,
lawyers, and other staff involved in the application of all the mutual recognition instruments
covered by this evaluation round, as this would encourage their use, raise awareness, and increase
the possibility of sharing practical experience and relevant case-law developments. In the context of
this evaluation round, it was repeatedly recommended that specific and regular training on all the
above mentioned legal instruments should be organised both at national and at EU level for all the
authorities involved in their implementation.

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This need concerns especially the lesser-known Framework Decisions 2008/947/JHA and
2009/829/JHA. The lack of specific training has been identified as one of the main obstacles to the
widespread use of these Framework Decisions. In order to be able to make use of their full
potential, it is important to raise awareness and enhance knowledge of these Framework Decisions
among practitioners.
Several evaluation teams as well as many practitioners of the evaluated Member States stressed that
there is a clear need for training related to Framework Decisions 2008/947/JHA and 2009/829/JHA
to be provided in a regular manner, targeting all relevant stakeholders in order to make them aware
of the objectives and the possibilities offered by these mutual recognition instruments. It was also
emphasised that it would be useful to have guidelines or handbooks on these Framework Decisions.
This evaluation round has demonstrated that, in the majority of the Member States, training
programmes on all the above mentioned Framework Decisions for defence lawyers are insufficient
or unavailable. There are no specialised lawyers for EU mutual recognition instruments, therefore,
there is also a clear need to promote ways of upgrading defence lawyers’ knowledge of these
instruments, so as to enable them to provide their clients with quality counsel in this field.
A number of reports suggested that joint training for judges, prosecutors and lawyers and other
relevant stakeholders could be organised with a view to sharing experience and solving practical
issues. As regards Framework Decision 2008/947/JHA, it would be useful to include probation and
prison staff in such joint training.
A few Member States have organised joint training with neighbouring countries; this was
considered by the expert teams to be helpful in solving practical problems, understanding the
differences between different judicial systems and strengthening mutual trust.

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Judges and prosecutors can also participate in training events at EU level on EU mutual recognition
instruments provided for by institutions such as the European Judicial Training Network (EJTN)
and the Academy of European Law (ERA). Other EU-wide training opportunities are those offered
by the Association for Criminal Justice Research and Development (ACJRD), as well as training or
seminars organised by Eurojust or the EJN.
Lawyers can also participate in training events organised at EU level, insofar as these are known
and accessible to them, namely the training programmes offered by the ERA, since those of the
EJTN are intended only for members of the judicial service.
However, at the time of the evaluation, these training possibilities at EU-level did not cover all the
EU mutual recognition instruments subject to this round of mutual evaluations, in particular
Framework Decisions 2008/947/JHA and 2009/829/JHA, and were not used by all the Member
States to their full extent.
Nevertheless, as outlined in some reports, EU training programmes have particular advantages
which go beyond the pure transmission of knowledge and awareness-raising on the practical
application of the EU instruments, as they offer an excellent opportunity for practitioners to
network and share experience with colleagues from other Member States. In this sense, the
importance of training at EU level, especially in the field of Framework Decisions 2008/947/JHA
and 2009/829/JHA, was also expressed in several evaluation reports.
In addition, there are projects and initiatives which aim to enhance judicial cooperation at EU level.
The Cross Justice platform provides a legal information service primarily intended for legal
practitioners - judges, prosecutors, investigating magistrates and lawyers - but also accessible to law
students, NGOs and all EU citizens, and is expected to be extended to the mechanisms for
cooperation among the Member States in criminal matters, including the EAW.

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Regarding Framework Decisions 2008/947/JHA and 2009/829/JHA, the Confederation of European
Probation (CEP - www.cep-probation.org) has an open expert network group dedicated to these
Framework Decisions. They share expertise, experience and knowledge and promote the use of
these Framework Decisions among probation services and professionals. The PONT project funded
by the European Commission’s Justice programme has a range of free online training courses on the
application of Framework Decisions 2008/947/JHA and 2009/829/JHA, the completion of required
documentation and the management of adaptation and of transfer processes.
Practitioners of several Member States stressed that EU handbooks containing guidance on the
application of Framework Decisions 2008/947/JHA and 2009/829/JHA, which are not frequently
applied and on which there is therefore limited experience, similar to those that already exist for
Framework Decisions 2002/584/JHA and 2008/909/JHA, would be an important source of
information.
Several Member States are aware of the work done in Europris and participate in its activities, in
particular as regards Framework Decision 2008/909/JHA, and to a lesser extent of the work of the
Confederation of European Probation (CEP), as regards Framework Decision 2008/947/JHA. The
outcome of meetings held by Europris and CEP are generally disseminated in the Member States by
the practitioner who attended them.

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RECOMMENDATIONS
‒ Member States are encouraged to provide regular and systematic specialised training in
Framework Decisions 2002/584/JHA, 2008/909/JHA, 2008/947/JHA and 2009/829/JHA
and related case-law of the CJEU to all practitioners involved in their application,
including joint training for judges, prosecutors and, if possible, considering the
independence of the legal professions according to national law, lawyers, and other
relevant staff.
‒ Member States are encouraged to promote the participation of practitioners dealing with
the abovementioned EU mutual recognition instruments in training activities available at
EU level, so as to enhance the opportunities to increase knowledge and share experience
offered by this type of training.
‒ The EJTN is encouraged to increase its efforts to offer training to practitioners on EU
mutual recognition instruments including Framework Decisions 2008/947/JHA on
probation and alternative sanctions and 2009/829/JHA on the European Supervision
Order (ESO) and to give greater visibility to its training programme.

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7.7. Statistics

A common issue identified in almost all the Member States in the context of this evaluation round is
the lack of reliable and detailed statistical data collected regularly on outgoing and incoming
requests for all four mutual recognition instruments covered by this evaluation.
Other challenges are data aggregation and collection and the processing of statistics at central level.
These shortcoming and deficiencies are even more serious in the Member States that have
decentralised systems, as it is more difficult to gather data from different authorities at different
levels than from one single body.
Only a few Member States collect annual statistics on the abovementioned legal instruments at
central level, and these are usually collected and processed manually, so there is no digital record of
the related cases. In addition, these activities are time consuming, inaccurate and fragmented.
In one Member State, the Ministry of Justice is responsible for the collection of statistics, and the
judges, courts and prosecutors responsible for transmitting or executing a decision on the basis of
the mutual recognition instruments have an obligation to send a copy of the decision to the Ministry
of Justice. The evaluation team considered this to be good practice.
Most Member States’ authorities were able to provide the respective evaluation teams with general
figures, such as the number of measures issued or executed for the different instruments, but they do
not collect such data systematically and are often unable to provide more detailed statistics.
Statistics on the EAW are collected by all Member States, as they are obliged to provide these
statistics to the European Commission. However, such statistics usually simply provide the number
of EAWs received and executed, further details on time limits, grounds for refusal or the length of
the procedure are usually not available.

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A number of Member States collect and compile statistics on Framework Decision 2008/909/JHA,
but with a few exceptions, no detailed information on the outcome of the procedure (how many
requests have been recognised and how many have been refused) is usually available. As regards
Framework Decisions 2008/947/JHA and 2009/829/JHA, in most Member States there are no
registered statistics.
The ninth round of mutual evaluations has highlighted that a well-functioning and comprehensive
statistical system would give a better picture of the use of the various Framework Decisions,
allowing monitoring and analysis of their application, the difficulties encountered, , and the reasons
for possible refusals, with a view to more precise guidance on their application and the adaptation
of policies and working methods accordingly. Such a statistical system could enhance efficiency of
the mutual recognition instruments for judicial cooperation in criminal matters.
Furthermore, it was observed that the lack of computer records could lead to inadequate follow-up.
Currently, only a few Member States use electronic tools for statistical purposes. A few Member
States have case-management systems that, if coordinated with other data collection systems or
further developed, might contribute to a better application of the Framework Decisions subject to
the current round of mutual evaluations.
As mentioned in one report, automated systems could help to provide an accurate reflection of the
use of the instrument for mutual recognition of custodial sentences and to establish the length of the
proceedings or the main grounds for refusal to recognise a sentence, etc., as well as to manage the
follow-up of requests sent to executing Member States.
In one Member State, there is an ongoing project on the EAW that, with appropriate adaptations, if
necessary, can be considered as a starting point to centralize the collection of statistics concerning
the other mutual recognition instruments covered by this evaluation. In another Member State,
arrangements are also ongoing for a disaggregated collection of EAW cases, so that in the near
future it will be possible to provide statistical indicators on them.

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RECOMMENDATIONS
‒ It is recommended that Member States establish an efficient and reliable system for the
collection of statistics on the use of Framework Decisions 2002/584/JHA, 2008/909/JHA,
2008/947/JHA and 2009/829/JHA, in order to facilitate the analysis of their application
and adapt policies and working methods accordingly. In doing so, they are encouraged to
consider using electronic tools, so as to save time for all the competent authorities and
obtain a better picture of the use of the abovementioned legal instruments.

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