Bulgaria is among European Union countries that have failed to conclusive information on the transposition of the legal effects attached to previous foreign convictions in their national criminal justice system, and also has failed to implement a framework decision intended to improve the fight against cross-border crime.
According to new European Commission reports released on June 2 2014, two sets of common rules allowing for the free circulation of previous convictions, and better co-ordination in fighting cross-border crime have not yet been implemented by many EU countries.
The reports examine the implementation of two framework decisions, agreed on unanimously by EU member states in 2008 and 2009, respectively.
“The late or incomplete implementation by several member states is particularly regrettable as the two framework decisions aim at increasing the protection of victims and society in general by ensuring citizens are not convicted twice for the same crime while at the same time making the fight against cross-border crime more effective,” the European Commission said.
“The Commission therefore urges all those member states which have not yet done so to take swift measures to implement these EU laws fully,” the Commission said.
When a judge decides on a sentence for an offender, he or she must know whether the person has previously been convicted in other member states. This is essential in order to make informed and fair decisions, respecting the fundamental rights of both the victims and offenders – like for example decisions made on pre-trial detention or bail, as well as at the sentencing stage.
The 2008 framework decision on taking into account convictions in EU member states during new criminal proceedings) obliges EU countries to take foreign convictions into account.
The overarching principle is that of “equivalence”, meaning that member states must take foreign convictions into account to the same extent as national convictions.
“This principle can help promote mutual trust in penal laws and judicial decisions in the European area of justice, by encouraging judicial culture.
“Furthermore, by implementing such legal tools to assess an offender’s criminal past, victims across the European Union would in turn be better protected,” the European Commission said.
So far, 22 member states have implemented this framework decision, with substantial differences in the implementation. For example, out of the 22 member states, nine (including Bulgaria) have not provided conclusive information on the transposition of the legal effects attached to previous foreign convictions in their national criminal justice system.
More than three years after the implementation deadline, six member states still need to implement these rules: Belgium, Spain, Italy, Lithuania, Malta and Portugal.
The EC said that criminal activity can easily take place across several member states.
“For example, the preparation of a crime may take place in one country, be executed in another, the criminals arrested in a different country, and the assets transferred to a fourth member state. This could potentially lead to multiple member states being competent to conduct criminal investigations.”
This is a problem both for the co-ordination and effectiveness of criminal prosecutions, as well as for the respect of the EU Charter of Fundamental Rights which states that a person may not be tried or punished twice for the same offence.
The 2009 framework decision on the prevention and settlement of conflicts of jurisdiction in criminal proceedings) ensures go-od coordination between member states, and that criminal proceedings are conducted in the best placed member state, the Commission said.
“By helping avoid multiple proceedings it allows the competent authorities to save time and human and financial resources. Member states are obliged to enter into direct consultation to reach consensus on any effective solution. Where it is not possible to reach consensus, the matter can be referred to Eurojust.”
So far, only 15 EU countries have implemented these common rules.
Thirteen member states still need to implement the framework decision which is an important first step in avoiding double prosecutions and a lack of judicial action, the EC said. These are: Bulgaria, Denmark, Estonia, Greece, Spain, France, Ireland, Italy, Lithuania, Luxembourg, Malta, Sweden and the United Kingdom.
“The Commission urges member states to implement these rules swiftly in order to ensure that citizens can benefit from protection in Europe’s area of justice.”
The European Commission does not currently have the powers to launch infringement proceedings under Article 258 Treaty on the Functioning of the European Union (TFEU) with regard to Framework Decisions adopted prior to the entry into force of the Lisbon Treaty. As of December 1 2014, the Commission will be able to launch infringement proceedings.
(Photo: Jason Morrison)