REPORT on the proposal for a Council Framework Decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings

8.9.2006 - (COM(2005)0091 – C6‑0235/2005 – 2005/0018(CNS)) - *

Committee on Civil Liberties, Justice and Home Affairs
Rapporteur: Panayiotis Demetriou

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a Council Framework Decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings

(COM(2005)0091 – C6‑0235/2005 – 2005/0018(CNS))

(Consultation procedure)

The European Parliament,

–   having regard to the Commission proposal (COM(2005)0091)[1],

–   having regard to Article 34(2)(b) of the EU Treaty,

–   having regard to Article 39(1) of the EU Treaty, pursuant to which the Council consulted Parliament (C6‑0235/2005),

–   having regard to Rules 93 and 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6-0268/2006),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.  Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.  Calls on the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

5.  Instructs its President to forward its position to the Council and Commission.

Text proposed by the Commission	Amendments by Parliament
Amendment 1 Recital 6
(6) The entry in the criminal record of a Member State of convictions against nationals or residents handed down in another Member State must be governed by the same rules as if it had been handed down by a national court and may not cause persons convicted in other Member States to be treated more unfavourably than those who have been convicted by national courts.	deleted
Justification
Provisions concerning the national criminal records should be removed from this Framework Decision and this matter should be addressed in the context of the draft Framework Decision on the organisation and content of the exchange of information extracted from criminal records between Member States (Diaz de Mera report) (COM(2005)690).
Amendment 2 Recital 7
(7) This decision is to replace the provisions concerning the taking into consideration of criminal judgments in the Convention of 28 May 1970 on the International Validity of Criminal Judgments.	(7) This Framework Decision applies between Member States without prejudice to the provisions concerning the taking into consideration of criminal judgments in the Convention of 28 May 1970 on the International Validity of Criminal Judgments.
Justification
See rapporteur's justification to Article 7.
Amendment 3 Article 1, paragraph 1
1. The purpose of this Framework Decision is to determine the conditions in which a Member State takes into account, in the course of new criminal proceedings against the same person, convictions handed down in another Member State for different facts or enters such convictions in the criminal record.	1. The purpose of this Framework Decision is to determine the conditions in which a Member State takes into account, in the course of criminal proceedings against a person, previous convictions handed down in another Member State against the same person for different facts.
Justification
Provisions concerning the national criminal records should be removed from this Framework Decision and this matter should be addressed in the context of the draft Framework Decision on the organisation and content of the exchange of information extracted from criminal records between Member States (Diaz de Mera report) (COM(2005)690) .
The wording is redrafted to be in accordance with the wording of the Article 3 paragraph 1.
Amendment 4 Article 1, paragraph 2
2. This Framework Decision may not have the effect the effect of amending the obligation to respect the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty.	2. This Framework Decision may not have the effect of amending the obligation to respect the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty.
Justification
This is a correction of what is obviously a typing mistake and a clarification of the name of the legal document.
Amendment 5 Article 2, point (a)
(a) “conviction” means any final decision of a criminal court or of an administrative authority whose decision can be appealed against in the criminal courts establishing guilt of a criminal offence or an act punishable in accordance with national law as an offence against the law;	(a) “conviction” means any final court decision establishing in criminal proceedings guilt of a criminal offence under national law;
Justification
The definition proposed by the Commission does not seem to correspond to judicial systems of all the Member States, especially as regards decisions of an administrative authority, and may create confusion.
Amendment 6 Article 2, point (b)
(b) “criminal record”: the national register or registers recording convictions in accordance with national law.	deleted
Justification
Provisions concerning the national criminal records should be removed from this Framework Decision and this matter should be addressed in the context of the draft Framework Decision on the organisation and content of the exchange of information extracted from criminal records between Member States (Diaz de Mera report) (COM(2005)690) .
Amendment 7 Article 3, paragraph 1
1. Each Member State shall, in the course of new criminal proceedings for different facts, attach to convictions handed down in the other Member States in accordance with rules determined by them legal effects that are equivalent to those they attach to national convictions.	1. Each Member State shall ensure that, in the course of criminal proceedings brought against a person, its competent national authorities and courts or tribunals take into account previous convictions handed down in other Member States against the same person for different facts in accordance with their national law and attach to them the same legal effects as they attach to previous national convictions, provided that such persons are not treated more unfavourably than they would have been if the previous convictions had been national convictions.
Justification
This amendment aims to replace the whole of the provisions of Article 5 of the Commission proposal.
Amendment 8 Article 3, paragraph 2
2. Paragraph 1 shall apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules of procedure, including those relating to provisional detention, the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision.	2. Paragraph 1 shall apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules, including those relating to provisional detention, the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision.
Justification
The rapporteur considers that the provision should not be limited only to the rules of procedure.
Amendment 9 Article 5, paragraph 1
Convictions handed down in another Member State may be disregarded where the underlying facts do not constitute an offence against the criminal law of the Member State.	deleted
The first subparagraph shall not apply to the following categories of offences:
- participation in a criminal organisation;
- terrorism;
- trafficking in human beings;
- sexual exploitation of children and child pornography;
- trafficking in narcotic drugs and psychotropic substances;
- trafficking in weapons, munitions and explosives;
- corruption;
- fraud, including fraud affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests;
- laundering the proceeds of crime;
- counterfeiting currency, including the euro;
- computer-related crime;
- environmental crime, including trafficking in endangered animal species and in endangered plant species and varieties;
- facilitation of unauthorised entry and residence;
- murder, grievous bodily harm;
- illicit trade in human organs and tissue;
- kidnapping, illegal restraint and hostage-taking;
- racism and xenophobia;
- organised or armed robbery;
- illicit trafficking in cultural goods, including antiques and works of art;
- swindling;
- racketeering and extortion;
- counterfeiting and piracy of products;
- forgery of administrative documents and trafficking therein;
- forgery of means of payment;
- trafficking in hormonal substances and other growth promoters;
- trafficking in nuclear or radioactive materials;
- trafficking in stolen vehicles;
- rape;
- arson;
- crimes within the jurisdiction of the International Criminal Court;
- unlawful seizure of aircraft/ships;
- sabotage;
- conduct which infringes road traffic regulations, including breaches of regulations pertaining to driving hours and rest periods and regulations on hazardous goods;
- smuggling of goods;
- infringements of intellectual property rights;
- threats and acts of violence against persons, including during sports events;
- criminal damage;
- theft;
- offences established by the convicting State and serving the purpose of implementing obligations arising from instruments adopted under the Treaty establishing the European Community or under Title VI of the Treaty on European Union.
Justification
Taking into account changes proposed in the Article 3 paragraph 1, there is no need for the optional grounds for not taking into account the previous foreign conviction. According to the wording of the new Article 3, that is the discretion of competent national authorities according to their national law to decided if and to what extent previous convictions should be taken into account.
Amendment 10 Article 5, paragraph 2
2. Without prejudice to paragraph 1, convictions handed down in another Member State may also be disregarded where the consequence of having been convicted in another Member State on the occasion of new criminal proceedings for different facts is that the person concerned is treated more unfavourably than if the conviction had been handed down by a national court.	deleted
Amendment 11 Article 6, paragraph 1
1. Where a Member State enters convictions handed down in another Member State in its criminal record, the amount of the penalty entered shall correspond to that of the sentence actually passed, unless the amount of the penalty has been actually reviewed when the penalty was executed in the registering Member State.	deleted
Justification
Provisions concerning the national criminal records should be removed from this Framework Decision and this matter should be addressed in the context of the draft Framework Decision on the organisation and content of the exchange of information extracted from criminal records between Member States (Diaz de Mera report) (COM(2005)690).
Amendment 12 Article 6, paragraph 2
2. If, under national legislation, convictions handed down in the other Member States against nationals or residents are entered in the national criminal record, the rules governing entry in the record, modifications or deletion of the information entered may under no circumstances have the effect of causing the person to be treated more unfavourably than if he/she had been convicted by a national court.	deleted
Justification
See the justification for amendment article 6, paragraph 1
Amendment 13 Article 6, paragraph 3
3. Any modification or deletion of an entry in the convicting Member State shall entail an equivalent deletion or modification in the Member State of nationality or residence if it made an entry in the record and is informed of the modification or deletion, unless the legislation of the latter State provides for more favourable treatment for the convicted person.	deleted
Justification
See the justification for amendment article 6, paragraph 1
Amendment 14 Article 7
1. Without prejudice to its application in relations between the Member States and third countries, this Framework Decision replaces Article 56 of the Hague Convention of 28 May 1970 on the International Validity of Criminal Judgments as between the Member States.	This Framework Decision shall apply between the Member States without prejudice to Article 56 of the Hague Convention of 28 May 1970 on the International Validity of Criminal Matters with regard to the relations between Member States and third countries.
Justification
It is very doubtful that a provision of an international convention may be replaced by an article of a Framework decision. The rapporteur therefore suggests the application of this framework decision amongst the Member States without prejudice to the provisions of the relevant international convention.
Amendment 15 Article 8, paragraph 1
1. Member States shall adopt the measures necessary to comply with the provisions of this Framework Decision no later than 31 December 2006.	1. Member States shall adopt the measures necessary to comply with the provisions of this Framework Decision within one year of its adoption.
Justification
The time limits which were originally recommended are not realistic currently.
Amendment 16 Article 8, paragraph 3
3. On the basis of that information the Commission shall, no later than 31 December 2007 present a report to the European Parliament and the Council on the application of this Framework Decision, accompanied if necessary by legislative proposals.	3. On the basis of that information the Commission shall no later than two years after the adoption of this Framework Decision present a report to the European Parliament and the Council on the application of this Framework Decision, accompanied if necessary by legislative proposals.
Justification
To comply with the amendment for the Article 7 paragraph 1.

• [1]  Not yet published in OJ.

EXPLANATORY STATEMENT

The object of the proposed framework decision is to lay down the basis for a conviction handed down in one Member State to be taken into account in new criminal proceedings concerning different facts in another Member State. This proposal is made in furtherance of the Tampere Conclusions in the field of freedom, security and justice.

The conclusions of the Tampere European Council presented the mutual recognition principle as the cornerstone of judicial cooperation in both civil and criminal matters. The proposal under consideration falls within the context of the White Paper on exchange of information on convictions and the effect of such convictions in the European Union. That White Paper defines the two objectives of future European Union action: improving the circulation and the use of information and ensuring that it can have an impact outside the convicting State, in particular as a means of preventing further offences.

There is a long way to go until justice is procedurally, evidentially and substantially administered in a more or less similar way in all the Member States of the European Union. Despite however the present diversities of the national systems of justice, the mutual recognition of judgements between Member States has to be pushed forward as much as possible. This is, of course, the one side of the coin which will be effective when the other side, that is to say, the recording and exchanging of information, is regulated. It is, therefore, the rapporteur´s view that this framework decision is better to become in force when a similar decision is taken regulating the registration and circulation of information on convictions in the territory of the Union.

This proposal is closely linked to the proposal for a Council Framework decision on the organisation and content of the exchange of information extracted from the criminal records between Member States (COM(2005)690). The purpose of this proposal therefore is to lay down the situations is which convictions against a person which are taken in one Member State can or may be taken into account in course of new criminal proceeding against the same person for different facts. The basis for the taking into account is the principle of assimilation.

With regard to the definition of the term "conviction" the rapporteur believes that the use of the phrase "appealed against in criminal courts" does not seem to correspond to the judicial systems of the member states and may create confusion. The rapporteur further feels that at these first stages of establishment of this system of cooperation, administrative decisions should not be included, as it is unnecessary.

In relation to Articles 3, 4 and 5 the rapporteur is in favour of the principle of the simple assimilation together with some elements of harmonisation. In this regard, the rapporteur proposes to redraft the wording of the Article 3 paragraph 1 to explicitly state that the only criteria for deciding if and to what extend legal effects should be attached to the previous foreign conviction is a national law. However, the basic principles such as ne bis in idem, statutory limitation, amnesty as well as deletion of a reference to the conviction in the national criminal record should be observed throughout the European Union and, the Article 4, therefore, should be kept. Furthermore, it should be explicitly stated that, in the course of criminal proceedings in a Member State, account must not be taken of a foreign conviction related to acts not punishable in that Member State.

Further, according to the rapporteur, the provisions of Article 6 best belong in the proposal for a Council Framework Decision on the organisation and content of the exchange of information extracted from the criminal records between Member States (COM(2005)690).

In relation to the proposed wording of Article 7, the rapporteur feels that it needs to be amended because it does not seem valid under international law that signatories of a Convention effect amendments or replacements of its Articles unilaterally. The text proposed in substitution of Article 7 is more in line with international law.

PROCEDURE

Title	Proposal for a Council Framework Decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings
References	COM(2005)0091 – C6-0235/2005 – 2005/0018(CNS))
Date of consulting Parliament	18.7.2005
Committee responsible   Date announced in plenary	LIBE 6.9.2005
Committee(s) asked for opinion(s)   Date announced in plenary
Not delivering opinion(s)   Date of decision
Enhanced cooperation   Date announced in plenary
Rapporteur(s)   Date appointed	Panayiotis Demetriou 10.5.2005
Previous rapporteur(s)
Simplified procedure – date of decision
Legal basis disputed   Date of JURI opinion
Financial endowment amended   Date of BUDG opinion
Parliament to consult European Economic and Social Committee – date decided in plenary
Parliament to consult Committee of the Regions – date decided in plenary
Discussed in committee	4.5.2006		12.7.2006	4.9.2006
Date adopted	4.9.2006
Result of final vote	+: –: 0:	37 0 1
Members present for the final vote	Alexander Alvaro, Roberta Angelilli, Alfredo Antoniozzi, Edit Bauer, Johannes Blokland, Mihael Brejc, Giusto Catania, Carlos Coelho, Agustín Díaz de Mera García Consuegra, Kinga Gál, Elly de Groen-Kouwenhoven, Adeline Hazan, Timothy Kirkhope, Ewa Klamt, Wolfgang Kreissl-Dörfler, Barbara Kudrycka, Stavros Lambrinidis, Henrik Lax, Sarah Ludford, Antonio Masip Hidalgo, Claude Moraes, Martine Roure, Antonio Tajani, Ioannis Varvitsiotis, Manfred Weber, Stefano Zappalà, Tatjana Ždanoka
Substitute(s) present for the final vote	Marco Cappato, Panayiotis Demetriou, Gérard Deprez, Ignasi Guardans Cambó, Jeanine Hennis-Plasschaert, Sophia in 't Veld, Jean Lambert, Siiri Oviir, Hubert Pirker, Marie-Line Reynaud, Kyriacos Triantaphyllides
Substitute(s) under Rule 178(2) present for the final vote
Date tabled	8.9.2006
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