Framework Decisions 909 and 947 A Policy Perspective

Framework Decisions 909 and 947 A Policy Perspective DUTT Conference Amsterdam, Netherlands 25 January 2013

State of Play • Implementation deadline passed in December 2011 • Green Paper on Detention June 2011, 81 replies • No support for new legislative action • Concentrate on existing legal instruments • Implementation reports Mid-2013 • Experts' meetings in March and November 2012

State of Play Implementation FD 909 FD 947 12 MS 7 MS AT, BE, DK, FI, IT, LU, LV, MT, NL, PL, SK, UK BG, DK, FI, LV, NL, PL, SK RO, HU and HR

Importance of timely implementation • Infringement actions from December 2014 • Mutual recognition: MS are dependant upon each other • Less need to use EAW (909), to resort to custodial sentences (947) and pre-trial detention (829) • Contributes to the social rehabilitation, provides alternatives to detention and as improves detention conditions by reducing overcrowding

Background and purpose • • • Initiatives of MS Counter balance to EAW In line with other procedural rights instruments Main purpose : social rehabilitation Existing Co. E Conventions not very efficient and limited application

Differences Co. E/FD 909 Co. E FD 909 Transfer only possible to MS of nationality Also transfer of persons legally residing Consent required, unless person has fled or will be deported No consent required in case of national who lives in ES, person will be deported or has fled Conversion and continued enforcement Only continued enforcement No time limits Time limits of 90 (+30) days

Differences Co. E/FD 909 Co. E FD 909 ES collects prisoner IS transfers prisoner to IS and also pays the costs Early/conditional release: according to law of ES Early/conditional release: possibility to apply law IS Grounds for refusal unlimited 12 grounds for refusal Always double criminality No need for double criminality check if offence falls within 32 listed offences

Aims of the FD: some reminders • Social rehabilitation should always be assessed • Obligation ES to accept transfers, unless grounds for refusal • Mutual recognition: not re-examine decision of IS, only adapt • Role of sentenced person: legal remedies • IS has last say, can always withdraw certificate

Implementation problems FD 909 • Regime of subsequent decisions (Article 17) • Consent (Article 6) • Grounds for refusal (Article 9)

Implementation problems FD 947 • Nature of Competent Authorities (Article 3) • Types of Probation measures/Alternative Sanctions (Article 4) • Consent (Article 5) • Regime of subsequent decisions (Article 14)

Transitional regime • Article 26 of FD 909 indicates that the FD shall, from 5 December 2011, replace the corresponding provisions of the existing conventions applicable in relations between MS, such as Co. E Convention on the Transfer of Prisoners • Indirect effect of FDs : ECJ Case C-105/03 (Pupino) and C-42/11 (Lopes Da Silva Jorge)

Late declarations • Article 28 of FD 909 states that, any Member State may, on the adoption of this Framework Decision, make a declaration indicating that, with respect to judgments issued before 5 December 2011, continue to apply the existing legal instruments on the transfer of sentenced persons • Date of adoption was 27 November 2008

Thank you! Contact/Info: European Commission DG Justice Procedural Criminal Law Jesca Beneder Legal Officer Tel. : +32 -2 29 67530 E-mail: jesca. beneder@ec. europa. eu 13