Legislative Observatory
European Parliament
Please fill in this field to find a procedure

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

2008/0803(CNS)

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.