2008/0803(CNS) | [ParlTrack]

Changes: 2023/08/03events.date, docs, docs.docs.url, 2021/12/18events.type, events.docs.url, events, docs.docs.url, 2020/01/19docs.body, committees, events.docs.url, docs.docs.url, 2019/07/06council, procedure.instrument, events, procedure.dossier_of_the_committee, activities, procedure.final.url, procedure.subject, committees, docs, other, procedure.final.title, commission, procedure.title, procedure.summary, 2015/11/04links.European_Commission.title

View current state | View Changes for this date

Procedure completed

2008/0803(CNS) Judicial cooperation: procedural rights of persons and the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. Initiative Slovenia, France, Czech Republic, Sweden, Slovakia, United Kingdom, Germany. Framework Decision

Role	Committee	Rapporteur	Shadows
Opinion	JURI	GILL Neena (PSE)
Lead	LIBE	FRANÇA Armando (PSE)

Lead committee dossier: LIBE/6/59595
Legal Basis Treaty on the European Union (after Amsterdam) M 031-p1-aa, Treaty on the European Union (after Amsterdam) M 034-p2b

Subjects

7.40.04 Judicial cooperation in criminal matters

Links

Activites

2008/12/05 Final act published in Official Journal
#2908
2008/11/27 Council Meeting
2008/11/27 End of procedure in Parliament
2008/11/27 Act adopted by Council after consultation of Parliament
2008/09/02 Results of vote in Parliament
- Results of vote in Parliament
- T6-0381/2008 summary
  
  The European Parliament adopted by 609 votes to 60, with 14 abstentions, the initiative of several Member States to amend a series of Framework Decisions (2002/584/JHA on the European arrest warrant, 2005/214/JHA on the application of the principle of mutual recognition to financial penalties, 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders and 2008/…/JHA on the application of the principle of mutual recognition to judgments in criminal matters) for the purpose of the enforcement of decisions rendered in absentia.The report had been tabled for consideration in plenary by Armando FRANÇA (PES, PT) on behalf of the Committee on Civil Liberties, Justice and Home Affairs.Above all, the legislative resolution calls on both the Council and the Commission to give priority to dealing with any future proposal to amend this text by urgent procedure, as set out in the Lisbon Treaty and once this treaty enters into force.In concrete, the Parliament strengthened the ‘rights of persons judged in absentia’ section of the initiative by proposing a series of procedural safeguards. It also sought to eliminate the different approaches towards ‘grounds for non-recognition’. The main amendments can be summarised as follows (note that the same framework of amendments is envisaged for each of the amended Framework Decisions):Overall objective and amendment to the title: to ensure comprehension of the text, the Parliament specified the overall objective of the Framework Decision, which is to strengthen citizens' rights by promoting the application of the principle of mutual recognition in respect of decisions rendered following a trial at which the person concerned did not appear in person. It also added a text to the list of those already established by the initiative: Framework Decision 2008/…/JHA on the recognition and supervision of suspended sentences, alternative sanctions and conditional sentences (see CNS/2007/0807).Procedural safeguards: the Parliament asks that adequate procedural guarantees be established to ensure the recognition of judgments in criminal matters. It recalls, in this respect, that a Framework Decision on procedural rights in criminal proceedings is essential. In the meantime, the Parliament considers it necessary to provide clear and common solutions which define the grounds for refusal of the execution of the decision rendered following a trial at which the person concerned did not appear in person as well as the discretion left to the executing authority. The Parliament clearly specifies these common grounds for refusal and establishes a series of new provisions to complete, on a strictly technical level, either the relevant section of the European arrest warrant or the certificate in the annex to the other Framework Decisions, so that the issuing authority gives an assurance that the requirements have been or will be met.Recognition and execution of decisions: the Parliament considers that the recognition and execution of a decision rendered following a trial at which the defendant did not appear in person should not be refused:if, on the basis of the information provided by the issuing State, it is satisfactorily established that the defendant was summoned in person, or by other means actually received official information of the scheduled date and place of the trial. In this context, it is understood that the person should have received such information in good time, i.e. sufficiently in advance to allow him or her to participate in the trial and to effectively exercise his/her right of defence. All information should be provided in a language which the defendant understands;where the person concerned, being aware of the scheduled trial, was defended at the trial by a legal counsellor to whom he/she had given an explicit mandate to do so, thus ensuring that the legal assistance was practical and effective. In this context, it should be immaterial whether the legal counsellor was chosen, appointed and paid by the person concerned, or was appointed and paid by the State in accordance with its national law applicable to the rights of the defence, it being understood that the person concerned would have chosen to be represented by a legal counsellor instead of appearing him- or herself at the trial.Grounds for non-recognition of a decision: the Parliament considers that the common solutions on grounds for non-recognition should take into account the diversity of situations with regard to the right of the person concerned to a retrial or to an appeal. Such a retrial, which aims to safeguard the rights of the defence, is characterised by the following elements: the person concerned has the right to participate in the retrial; the merits of the case, including fresh evidence, will be (re)examined, and the proceedings may result in the original decision being quashed.Defence of the rights of persons judged in absentia: the Parliament considers that at a retrial following a conviction resulting from a trial at which the person concerned did not appear in person, the defendant should be in the same position as someone standing trial for the first time. Therefore the person concerned should have the right to be present at the retrial, the merits of the case, including fresh evidence, should be (re)examined, the retrial could result in the original decision being quashed and the defendant may appeal against the new decision.Technical amendments: in addition to the above amendments that cover the texts of each of the Framework Decisions, technical amendments specific to each Framework Decision are set out by the Parliament. In terms of Framework Decision 2002/584/JHA on the European arrest warrant, the Parliament specifies the procedure to follow to inform a person concerned by a European arrest warrant but who has not been ‘officially’ informed. In this case, this person may request a copy of the judgment before being surrendered to the competent authority. If the judgment is rendered in a language which the person concerned does not understand, the issuing judicial authority shall provide an extract of the judgment in a language which the person concerned understands. In this case, the provision of the judgment or an extract of the judgment to the person concerned shall be for information purposes only; it shall not be construed as constituting formal service of the judgment nor shall it activate any time-limits applicable for requesting a retrial or appeal. Other similar amendments were made to the annexes of the different Framework Decisions concerned.
2008/09/01 Debate in Parliament
- Debate in Parliament
2008/07/02 Committee report tabled for plenary, 1st reading/single reading
- A6-0285/2008
2008/06/24 Vote in committee, 1st reading/single reading
#2783
2008/06/05 Council Meeting
- 2783
#2863
2008/04/18 Council Meeting
- 2863
2008/02/21 Committee referral announced in Parliament, 1st reading/single reading
2008/02/13 Legislative proposal published
- 05598/2008 summary
  
  PURPOSE: initiative of Slovenia, France, the Czech Republic, Sweden, the Slovak Republic, the United Kingdom and Germany on the enforcement of decisions rendered in absentia and amending related legislation. PROPOSED ACT: Council Framework Decision.BACKGROUND: the aim of this proposal is to establish common rules for the recognition and/or execution of judicial decisions in one Member State (the executing Member State) issued by another Member State (the issuing Member State) following proceedings where the person was not present, according to the provisions laid down in the following:1) Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (see CNS/2001/0215);2) Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties (see CNS/2001/0825); 3) Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders (see CNS/2002/0816); 4) Framework Decision 2008/…/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 (not yet adopted, see CNS/2005/0805).The reason for this initiative is that the various Framework Decisions implementing the principle of mutual recognition of final judicial decisions do not deal consistently with the issue of decisions rendered in absentia. This diversity complicates the work of the practitioner and hampers judicial cooperation. Solutions provided by these Framework Decisions are not satisfactory as regards cases where the person could not be informed of the proceedings. Framework Decisions 2005/214/JHA and 2006/783/JHA allow the executing authority to refuse the execution of such judgments. Framework Decision 2002/584/JHA allows the executing authority to require the issuing authority to give an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment. The adequacy of such guarantee is a matter to be decided by the executing authority and it is therefore difficult to know exactly when execution may be refused. Accordingly, it is deemed necessary to provide clear and common solutions which define the grounds for refusal and the discretion left to the executing authority. CONTENT: Grounds for refusal: the proposed Framework Decision is limited to the definition of grounds for refusal in instruments implementing the principle of mutual recognition. Therefore, provisions such as the definition of the concept of decision rendered in absentia or rules on the right to a retrial have a scope which is limited to the definition of these grounds for refusal. They are not designed to harmonise national legislation. The main amendments are as follows:- the definition of a “decision rendered in absentia” which shall mean a custodial sentence or a detention order when the person did not personally appear in the proceedings resulting in that decision;- executing judicial authority may refuse to execute the European arrest warrant;- the executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order, if the decision was rendered in absentia, unless the European arrest warrant conforms to specified conditions;- the pro forma doe the European arrested warrant is amended;- amendments are also proposed to Framework Decision 2005/214/JHA and Framework Decision 2006/783/JHA with regard to the provisions on certificates, and to the standard form of the certificates on service and confiscation orders;- implementation will be 18 months after entry into force.It should be noted that this Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty, and any obligations incumbent upon judicial authorities in this respect shall remain unaffected.
- DG {'url': 'http://ec.europa.eu/dgs/legal_service/', 'title': 'Legal Service'}, BARROSO José Manuel

Documents

Legislative proposal published: 05598/2008
Debate in Council: 2863
Debate in Council: 2783
Committee report tabled for plenary, 1st reading/single reading: A6-0285/2008
Debate in Parliament: Debate in Parliament
Results of vote in Parliament: Results of vote in Parliament
Decision by Parliament, 1st reading/single reading: T6-0381/2008

Amendments	Dossier
28	2008/0803(CNS) 2008/05/08 LIBE 28 amendments... Amendment 40 # Philip BRADBOURN Draft legislative resolution Paragraph 1 1. ~~Approve~~Rejects the initiative byof the Republic of Slovenia, the French Republic, the Czech Republic, the Kingdom of Sweden, the Slovak Republic, the United Kingdom and the Federal Republic of Germany ~~as amended~~; Amendment 41 # Ioannis VARVITSIOTIS Proposal for a decision – amending act Recital 1 a (new) (1a) It is necessary to strengthen mutual trust in the European area of freedom, security and justice in criminal matters by means of measures at European level designed to ensure greater harmonisation and mutual recognition of judgments in criminal matters and by adopting some European provisions and practices in criminal matters. Amendment 42 # Kathalijne Maria BUITENWEG Proposal for a decision – amending act Recital 1 a (new) (1a) The framework decision on procedural rights in criminal proceedings (still pending in the Council) is a prerequisite for the good functioning of this framework decision; the adoption of the framework decision on procedural rights is a matter of urgency for the implementation of the area of freedom, security and justice. Amendment 43 # Panayiotis DEMETRIOU Proposal for a decision – amending act Recital 4 (4) It is therefore necessary to provide clear and common solutions which define the grounds for refusal of the execution of a decision rendered in absentia and the discretion left to the executing authority. Amendment 44 # Baroness Sarah LUDFORD Proposal for a decision – amending act Recital 6 (6) Common solutions on grounds for refusal in the relevant existing Framework Decisions should take into account the diversity of situations with regard to informing the accused person of his right to a retrial.deleted Amendment 45 # Panayiotis DEMETRIOU Proposal for a decision – amending act Recital 6 (6) Common solutions on grounds for refusal in the relevant existing Framework Decisions should take into account the diversity of situations with regard to the right to informing the ~~accused person~~person concerned of his right to a retrial or to appeal and of his rights to ~~a retrial~~participate in such retrial or appeal and have the merits of the case, including fresh evidence re-examined, with the possibility that the original decision may be quashed. Amendment 46 # Baroness Sarah LUDFORD Proposal for a decision – amending act Recital 6 a (new) (6a) The recognition and execution of a decision rendered following a trial at which the defendant did not appear in person should not be refused if, on the basis the information provided by the issuing State, it can be satisfactorily established that the defendant was summoned in person, or by other means actually received official information of the scheduled date and place of the trial. In this context it is understood that the person should have received such information in good time, i. e. sufficiently in advance to allow him or her to participate in the trial and to effectively exercise his/her right of defence. All information should be provided in a language which the defendant understands. Amendment 47 # Baroness Sarah LUDFORD Proposal for a decision – amending act Recital 7 a (new) (7a) The recognition and execution of a decision rendered following a trial at which the defendant did not appear in person should not be refused where the defendant, having been duly informed of the scheduled trial, was defended at the trial by a legal counsellor of his/her own choice, to whom he/she had given a written mandate to do so, thus ensuring that the legal assistance was practical and effective. Amendment 48 # Baroness Sarah LUDFORD Proposal for a decision – amending act Recital 7 a (new) (7b) At a retrial following a conviction in absentia, the defendant should be in the same position as someone standing trial for the first time. Therefore the person concerned shall have the right to be present at the retrial, the merits of the case, including fresh evidence, shall be (re)examined, the retrial could result in the original decision being quashed and the defendant may appeal against the new decision. Amendment 49 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 2 – point 1 Framework Decision 2002/584/JHA Article 1 – paragraph 4 4. For the purpose of this Framework Decision, "decision rendered in absentia" shall mean a custodial sentence or a detention order when the person did not personally appear in the court proceedings resulting in that decision. Amendment 50 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 2 – point 2 Framework Decision 2002/584/JHA Article 4a – point a (a) was summoned in person or duly informed in accordance with the national law of the issuing Member State through a competent representative or other means and in due time, of the scheduled date and place of the ~~hearing~~trial which led to the decision rendered in absentia and informed about the fact that such a decision may be handed down in case the person does not appear for the trial; Amendment 51 # Kathalijne Maria BUITENWEG Proposal for a decision – amending act Article 2 – point 2 Framework Decision 2002/584/JHA Article 4a – point a (a) was directly summoned in person or ~~informed in accordance with the national law of the issuing Member State through a competent representative~~ effectively received the information by other meands in due time~~, of~~ about the scheduled date and place of the ~~hearing~~trial which led to the decision rendered in absentia and informed about the fact that such a decision may be handed down in case the person does not appear for the trial; or Amendment 52 # Kathalijne Maria BUITENWEG Proposal for a decision – amending act Article 2 – point 2 Framework Decision 2002/584/JHA Article 4a – point a a (new) (aa) being aware of the scheduled trial, had given a mandate to a legal counsellor who was chosen, appointed and paid by the person concerned or who was paid by the State, and was represented by that counsellor during the trial; or Amendment 53 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 2 – point 2 Framework Decision 2002/584/JHA Article 4a – point c – point i (i) will be personally served with it ~~at the latest on the fifth~~immediately and in any event not later than three days after the surrender and will be expressly informed about the right to a retrial ~~and~~or to ~~be present at that trial~~appeal and participate in the hearing; Amendment 54 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 2 – point 2 Framework Decision 2002/584/JHA Article 4a – point c – point ii (ii) will have ~~at least […]¹ days~~the right to request a retrial~~. ¹ Period to be provided~~ or appeal within the applicable timeframe. Amendment 55 # Baroness Sarah LUDFORD Proposal for a decision – amending act Article 2 – point 2 Framework Decision 2002/584/JHA Article 4a The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order, if the decision was rendered in absentia, unless, on the European arrest warrant states that the person: (a) was summoned in person or informed in accordance with the national law of the issuing Member State through a competent representative and in due time, ofbasis of the information provided by the issuing judicial authority, it can be satisfactorily established that the person: (a) in due time, and in a language which he/she understood, (i) was summoned in person or by other means actually received official information about the scheduled date and place of the ~~hearing~~trial which lresulted toin the decision ~~rendered in absentia and informed about the fact that such~~, in such a manner that it may be unequivocally established that he/she was aware of the trial, and (ii) was personally informed, in writing and by an official authority, that a decision ~~may~~could be handed down i~~n case the person does not appear for~~f he/she did not appear at the trial, or (b) having been personally summoned or by other means having actually received official information about the scheduled date and place of the trial, had given a written mandate to a legal counsellor to defend him/her at the trial; , or (bc) after being personally served with the decision ~~render~~and being expressly informed, in ~~absentia and being expressly informed about the right to a retrial and to be present at that trial~~writing, by an official authority and in a language which he/she understood, about the right to a retrial, in which he/she would have the right to be present, the merits of the case, including fresh evidence, would be (re)examined, the retrial could lead to the original decision being quashed and he/she may appeal against the new decision: (i) expressly stated that he or /she does not contest the decision ~~rendered in absentia~~; or (ii) did not request a retrial or appeal in the applicable timeframe which was of at least […]H days; or (ca) was not personally served with the decision ~~rendered in absentia~~ but: (i) will be served with it ~~at the latest on the fifth day after~~before the surrender and will be expressly informed ~~about the right to a retrial and to be present at that trial; and (ii) will have~~in a language which he/she understands about the right to a retrial, in which he/she has the right to be present, the merits of the case, including fresh evidence, will be (re)examined, the retrial can lead to the original decision being quashed and he/she can appeal against the new decision and (ii) will be informed that he/she has at least [~~…]H~~...]¹ days to request such a retrial."; Amendment 56 # Kathalijne Maria BUITENWEG Proposal for a decision – amending act Article 2 – point 4 Framework Decision 2002/584/JHA Annex – box d – point 2.3.2 – indent 1 – the person will be personally served with the decision rendered in absentia within ... days after the surrender; and Amendment 57 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 2 – point 4 Framework Decision 2002/584/JHA Annex – box d – point 2.3.2 –indent 1 – the person will be ~~served with the decision rendered in absentia within … days after the surrender~~personally served immediately, but in any event not later than three days after the surrender, with the decision rendered in absentia ; and Amendment 58 # Baroness Sarah LUDFORD Proposal for a decision – amending act Article 2 – point 4 Framework Decision 2002/584/JHA Annex – box d (d) Indicate if the decision was rendered in absentia: 1. No, it was not 2. Yes, it was. If you have answered yes, please confirm that: or informed in accordance with the national law of the issuing Member State through a competent representative and in due time, of the scheduled date and place of the hearing which led to the decision rendered in absentia and informed about the fact that such a decision may be handed down in case the person does not appear for the trial Time and place when and where the person was summoned or otherwise informed: …………………………………………… Describe how the person was informed: …………………………………………… OR 2.2 the person, after being served with the decision rendered in absentia, expressly stated that he or she does not contest the decision rendered in absentia Describe when and how the person expressly stated that he or she does not contest the decision rendered in absentia: …………………………………………… OR 2.3 the person was entitled to a retrial under the following conditions: with the decision rendered in absentia on ……………. (day/month/year); and – the person was expressly informed about the right to a retrial and to be present at that trial; and – after being informed of this right, the person had …. days to request a retrial and he or she did not request it during this period. OR 2.3.2 the person was not served with the decision rendered in absentia, and – the person will be served with the decision rendered in absentia within … days after the surrender; and – when served with the decision rendered in absentia, the person will be expressly informed about the right to a retrial and to be present at that trial; and – after being served with the decision rendered in absentia, the person will have … days to request a retrialperson appeared in person at the proceedings resulting in the decision: 1. Yes, the person appeared in person at the proceedings resulting in the decision. 2. No, the person did not appear in person at the proceedings resulting in the decision. 2.1 If you answered “no” to the above question, please indicate if: 2.1 the person was summoned in person 2.1.1 the person was summoned in person or by other means actually received official information, in a language which he/she understood, of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that the person concerned was aware of the scheduled trial and was personally informed, in writing and by an official authority, that a decision may be handed down if he/she does not appear for the trial Time and place when and where the person was summoned or personally received the official information by other means: .................................................................. Language in which the information was delivered ................................................................. Describe how the person was informed and attach documentary evidence: .................................................................. OR 2.1.2 having been personally summoned or having actually received official information by other means, in a language he/she understood, of the scheduled date and place of the trial, the defendant had given a written mandate to a legal counsellor to defend him/her at the trial, and did in fact receive practical and effective legal assistance and representation; Provide information on how this condition has been met: ..................................................................... OR 2.1.3 the person, after being personally served with the decision and being expressly informed, in writing, by an official authority and in a language which he/she understood, about the right to a retrial, in which he/she would have the right to be present, the merits of the case, including fresh evidence, would be (re)examined, the proceedings may lead to the original decision being quashed and he/she may appeal against the new decision, expressly stated that he or she does not contest the decision Describe when and how the person expressly stated that he or she does not contest the decision, and attach documentary evidence: ..................................................................... OR 2.1.4 the person, after being personally served with the decision and being expressly informed, in writing, by an official authority and in a language which he/she understood, about the right to a retrial, in which he/she would have the right to be present, the merits of the case, including fresh evidence, would be (re)examined, the retrial could lead to the original decision being quashed and he/she may appeal against the new decision, did not request a retrial within the applicable timeframe, i.e. at least […]>¹ days OR 2.3.1 the person was personally served 2.1.5 the person, was not personally served with the decision and was not expressly informed of the right to a retrial, in which he/she would have the right to be present, the merits of the case, including fresh evidence, would be (re)examined, the retrial could lead to the original decision being quashed and he/she may appeal against the new decision, and – the person will be personally served with this decision before the surrender; and – when served with this decision, the person will be expressly informed, in writing and by an official authority, about the right to a retrial, in which he/she will have the right to be present, the merits of the case, including fresh evidence, will be (re)examined, the retrial may lead to the original decision being quashed and he/she may appeal against the new decision; and – after being served with the decision, the person will have the right to request a retrial within the applicable timeframe, which is of at least […]>¹ days. The above information will be provided to the person in a language which he/she understands, and evidence of the delivery of this information will be given by the issuing authority to the executing authority prior to the surrender. ¹ Period to be provided. Amendment 59 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 3 – point 1 Framework Decision 2005/214/JHA Article 1 – point e (e) "Decision rendered in absentia" shall mean a decision as defined in (a) when the person did not personally appear in the court proceedings resulting in that decision. Amendment 60 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 3 – point 2 - subpoint b Framework Decision 2005/214/JHA Article 7(2) – point i – subpoint i (i) was summoned in person or duly informed in accordance with the national law of the issuing State through a competent representative or other meands in due time, of the scheduled date and place of the ~~hearing~~trial which led to the decision rendered in absentia and informed about the fact that such a decision may be handed down in case the person does not appear for the trial; or Amendment 61 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 3 – point 2 – subpoint b Framework Decision 2005/214/JHA Article 7(2) – point i – subpoint iii (iii) after being served with the decision rendered in absentia and being duly informed about the right to a retrial ~~and to be present at that trial~~or appeal and to participate in the hearing: Amendment 62 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 4 – point 2 Framework Decision 2006/783/JHA Article 8(2) – point e – subpoint i (i) was summoned in person or duly informed in accordance with the national law of the issuing State through a competent representative or other means and in due time, of the scheduled date and place of the hearing which led to the decision rendered in absentia and informed about the fact that such a decision may be handed down in case the person does not appear for the trial; or Amendment 63 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 4 – point 2 Framework Decision 2006/783/JHA Article 8(2) – point e – subpoint ii - did not request a retrial or appeal in the applicable timeframe ~~which was of at least […]¹ days. ¹ Period to be provided~~. Amendment 64 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 5 – point 2 Framework Decision 2008/.../JHA Article 9(1) – point f (f) according to the certificate provided for in Article 4, the decision was rendered in absentia, unless the certificate states that, in accordance with the national law of the issuing Member State, the person: Amendment 65 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 5 – point 2 Framework Decision 2008/.../JHA Article 9(1) – point f – subpoint i (i) was summoned in person or duly informed in accordance with the national law of the issuing State through a competent representative or other means and in due time, of the scheduled date and place of the hearing which led to the decision rendered in absentia and informed about the fact that such a decision may be handed down in case the person does not appear for the trial; or Amendment 66 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 5 – point 3 Framework Decision 2008/.../JHA Annex – box k – point 1– subpoint b.1 – first paragraph b.1 the person was summoned in person or duly informed in accordance with the national law of the issuing State through a competent representative or other means and in due time, of the scheduled date and place of the hearing which led to the decision rendered in absentia and informed about the fact that such a decision may be handed down in case the person does not appear for the trial Amendment 67 # Panayiotis DEMETRIOU Proposal for a decision – amending act Article 5 a (new) Article 5a Amendments to Framework Decision 2008/.../JHA¹ Framework Decision 2008/.../JHA is hereby amended as follows: 1) in Article 2, the following point shall be added: (h) "Decision rendered in absentia" shall mean a decision as defined in point (a) when the person did not appear in person at the proceedings resulting in that decision. 2) in Article [9(1)]², point (h) shall be replaced by the following: (h) according to the certificate provided for in Article [6a], the person did not appear in person at the proceedings resulting in the decision, unless the certificate states that the person, in accordance with the national law of the issuing Member State: i) was summoned in person or properly informed through a complete representative or other means in due time on the scheduled date and place of the trial which led to the decision rendered in absentia and informed about the fact that such a decision may be handed down in case the person does not appear for the trial; or ii) being aware of the scheduled trial, had given a mandate to a legal counsellor who was chosen, appointed and paid by the person concerned or who was appointed and paid by the State in accordance with its national law applicable to the rights of the defence, and was represented by that counsellor during the trial; or iii) after having been served with the decision and expressly informed about the right to a retrial or appeal and to participate in that trial: - expressly stated that he or she did not contest the decision; or - did not request a retrial or appeal in the applicable timeframe. 3) in box (i) of Annex I ("certificate"), point 1 shall be replaced by the following: 1. Indicate if the decision was rendered in absentia: 1. No, it was not 2. Yes, it was. If you have answered yes please confirm that: 2.1 the person was summoned in person or, in accordance with the national law of the issuing Member State, effectively received the information in due time by other means about the scheduled date and place of the trial which led to the decision rendered in absentia and informed about the fact that such a decision may be handed down if the person did not appear at the trial. Time and place when and where the person was summoned or otherwise informed: …………………………………………… Describe how the person was informed: …………………………………………… OR 2.2. the person, being aware of the scheduled trial, had given a mandate to a legal counsellor who was chosen, appointed and paid by the person concerned or who was appointed and paid by the State in accordance with its national law applicable to the rights of the defence, and was represented by that counsellor during the trial; Provide information on how this condition has been met: …………………………………………… OR 2.3 the person, after having been served with the decision rendered in absentia, expressly stated that he or she did not contest the decision rendered in absentia. Describe when and how the person expressly stated that he or she did not contest the decision rendered in absentia ………………………………………… OR 2.4 the person was served with the decision rendered in absentia on ………… (day/month/year) and was entitled to a retrial in the issuing State under the following conditions: - the person was expressly informed about the right to a retrial and to participate in that trial; and - after having been informed of that right, the person had … days in which to request a retrial and did not request it during that period. ________________________________ ¹ The number of the instrument will be inserted as soon as adopted by the Council. ² The number of the Article will be inserted as soon as adopted by the Council. source: PE-405.951

Amendments

Dossier

2008/0803(CNS)

2008/05/08 LIBE 28 amendments...

Amendment 40 #

Philip BRADBOURN

Draft legislative resolution
Paragraph 1

1. ~~Approve~~Rejects the initiative byof the Republic of Slovenia, the French Republic, the Czech Republic, the Kingdom of Sweden, the Slovak Republic, the United Kingdom and the Federal Republic of Germany ~~as amended~~;

Amendment 41 #

Ioannis VARVITSIOTIS

Proposal for a decision – amending act
Recital 1 a (new)

(1a) It is necessary to strengthen mutual trust in the European area of freedom, security and justice in criminal matters by means of measures at European level designed to ensure greater harmonisation and mutual recognition of judgments in criminal matters and by adopting some European provisions and practices in criminal matters.

Amendment 42 #

Kathalijne Maria BUITENWEG

Proposal for a decision – amending act
Recital 1 a (new)

(1a) The framework decision on procedural rights in criminal proceedings (still pending in the Council) is a prerequisite for the good functioning of this framework decision; the adoption of the framework decision on procedural rights is a matter of urgency for the implementation of the area of freedom, security and justice.

Amendment 43 #

Panayiotis DEMETRIOU

Proposal for a decision – amending act
Recital 4

(4) It is therefore necessary to provide clear and common solutions which define the grounds for refusal of the execution of a decision rendered in absentia and the discretion left to the executing authority.

Amendment 44 #

Baroness Sarah LUDFORD

Proposal for a decision – amending act
Recital 6

(6) Common solutions on grounds for refusal in the relevant existing Framework Decisions should take into account the diversity of situations with regard to informing the accused person of his right to a retrial.deleted

Amendment 45 #

Panayiotis DEMETRIOU

Proposal for a decision – amending act
Recital 6

(6) Common solutions on grounds for refusal in the relevant existing Framework Decisions should take into account the diversity of situations with regard to the right to informing the ~~accused person~~person concerned of his right to a retrial or to appeal and of his rights to ~~a retrial~~participate in such retrial or appeal and have the merits of the case, including fresh evidence re-examined, with the possibility that the original decision may be quashed.

Amendment 46 #

Baroness Sarah LUDFORD

Proposal for a decision – amending act
Recital 6 a (new)

(6a) The recognition and execution of a decision rendered following a trial at which the defendant did not appear in person should not be refused if, on the basis the information provided by the issuing State, it can be satisfactorily established that the defendant was summoned in person, or by other means actually received official information of the scheduled date and place of the trial. In this context it is understood that the person should have received such information in good time, i. e. sufficiently in advance to allow him or her to participate in the trial and to effectively exercise his/her right of defence. All information should be provided in a language which the defendant understands.

Amendment 47 #

Baroness Sarah LUDFORD

Proposal for a decision – amending act
Recital 7 a (new)

(7a) The recognition and execution of a decision rendered following a trial at which the defendant did not appear in person should not be refused where the defendant, having been duly informed of the scheduled trial, was defended at the trial by a legal counsellor of his/her own choice, to whom he/she had given a written mandate to do so, thus ensuring that the legal assistance was practical and effective.

Amendment 48 #

Baroness Sarah LUDFORD

Proposal for a decision – amending act
Recital 7 a (new)

(7b) At a retrial following a conviction in absentia, the defendant should be in the same position as someone standing trial for the first time. Therefore the person concerned shall have the right to be present at the retrial, the merits of the case, including fresh evidence, shall be (re)examined, the retrial could result in the original decision being quashed and the defendant may appeal against the new decision.

Amendment 49 #

Panayiotis DEMETRIOU

Proposal for a decision – amending act
Article 2 – point 1

Framework Decision 2002/584/JHA
Article 1 – paragraph 4

4. For the purpose of this Framework Decision, "decision rendered in absentia" shall mean a custodial sentence or a detention order when the person did not personally appear in the court proceedings resulting in that decision.

Amendment 50 #

Panayiotis DEMETRIOU