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Informal Meeting of the Justice and Home Affairs Ministers

Prague, 15 – 16 January 2009

Agenda item: Principle of mutual recognition in criminal matters

1. The gradual creating, developing and strengthening of the area of
freedom, security and justice has become one of the main aims of the
European Union. This aim is a necessary prerequisite not only for
providing security to the Member States, but also for building mutual
trust and the rule of law within the EU.   

2. Following the Tampere European Council in October 1999 this aim has
been put on the top of political agenda as the principle of mutual
recognition in criminal matters has been designated as the cornerstone
of judicial cooperation in both civil and criminal matters and a very
ambitious programme has been introduced to achieve this goal.  Five
years after the Tampere meeting the European Council enacted a new
programme to follow up the achieved results and face new challenges –
the Hague Programme. Its aim was, among others, to strengthen the
principle of mutual recognition in criminal matters. Although not all
envisaged objectives have been attained,  significant progress has been
reached. The work in the field of judicial cooperation based on the
principle of mutual recognition has indeed moved forward.

3. This year, at the end of the five-years Hague Programme, a convenient
occasion exists to assess the work that has been undertaken in the area
of freedom, security and justice, ponder further development and
consider new objectives and instruments.  

4. As the principle of mutual recognition is considered the cornerstone
of judicial cooperation in the European Union, it is currently used in
many legal instruments governing  judicial cooperation in criminal
matters including final decisions, as well as decisions taken during the
pre-trial stage. The time has come to consider whether the principle of
mutual recognition has met expectations in all areas of judicial
cooperation, i.e. simplification,  higher effectiveness, increasing
legal certainty, enhancing protection of individual rights and
rehabilitation of offenders. This is the case, for example, of the
principle’s application to mutual legal assistance. Would it be
advisable to replace the system based on the existing international
legal instruments?

5. Among the successful legal instruments of the Third Pillar, where the
principle of mutual recognition has brought convincing results,
undoubtedly belongs the surrender of persons between Member States
pursuant to the European Arrest Warrant (among practitioners it is
called „the success story“). The European Arrest Warrant is widely
applied in surrender cases for the purpose of criminal prosecution in
the pre-trial stage as well as in cases of  execution of a custodial
sentences in the post-trial stage. Current statistical data show that it
is an effective instrument of judicial cooperation which has brought
significant improvement and speeded up the surrender proceedings.  

6. The Framework Decision on the European Arrest Warrant is to be
complemented by the Framework Decision on mutual recognition of
judgments in criminal matters imposing custodial sentences for the
purpose of their enforcement in the EU. This instrument should resolve
doubts concerning the legal basis for surrender of own nationals for
criminal prosecution or execution of custodial sentence, as some Member
States still require the procedure envisaged in the Council of Europe
Convention on the Transfer of Sentenced Persons of 21 March 1983,
whereas others implemented the European Arrest Warrant in a manner
enabling to proceed in accordance with national law. Other framework
decisions which are not yet implemented by all Member States and which
regulate the recognition and enforcement of final decisions in the
post-trial stage are the Framework Decision on mutual recognition of
financial penalties and the Framework Decision on mutual recognition and
enforcement of confiscation orders.  Taking into account foreign
decisions, especially with regard to the „ne bis in idem“ principle
or assessment of recidivism, represents another important aspect of the
mutual recognition principle.      

7. The principle of mutual recognition has been introduced also to the
area of mutual legal assistance. The majority of the Member States has
already implemented the Framework Decision on freezing orders. However,
this instrument is not used in practice. The regime of requests for
mutual legal assistance pursuant to the Convention on Mutual Assistance
in Criminal Matters of 29 May 2000 between the Member States of the EU
or the Council of Europe Convention on Mutual Assistance in Criminal
Matters of 20 April 1959 and its additional protocols are still
preferred by judicial authorities. The practice shows that in this area
the use of the principle of mutual recognition might not bring a
simplification of judicial cooperation. The European Evidence Warrant,
although not yet formally approved, is based on the same principle. This
instrument is however limited to already existing evidence and does not
cover a majority of mutual legal assistance requests, namely for
testimony. In addition, judicial authorities are allowed to continue to
use traditional mutual legal assistance based on the 1959 or 2000
Conventions. Therefore the question could be asked whether it would be 
desirable to reconsider the use of the mutual recognition principle in
the area of mutual legal assistance.   

8. It apparently follows from practice that due to the different
national legislations concerning certain legal institutes difficulties
may arise not only in relation to the recognition of a decision, but to
its execution as well. The execution of a decision may, due to the
distinct perception of the principle of mutual recognition in the
national law, differ from one Member State to another. That may lead to
undermining of the mutual trust. In this respect the question of setting
minimum standards is still topical and should be addressed. 

9. The mutual trust which Member States give to each other’s legal
system is inseparably bound to the principle of mutual recognition.
There is a common consensus that it should be supported and broadened.
However, the question remains as to what extent and in particular which
are the means for this process.  

10. Conclusion

In order to achieve more effective judicial cooperation in criminal
matters between the Member States it might be appropriate to assess the
current legal instruments and set further direction of the legislative
proposals towards effective development of a common judicial area. 

	Having regard to the above mentioned issues, Ministers of Justice are
requested to express their opinions on the following questions: 

In which areas of judicial cooperation in criminal matters it is
suitable, practicable and effective to apply the principle of mutual
recognition?

Are there any areas of the judicial cooperation where the principle of
mutual recognition has not brought about the expected results? If yes,
which measures should be taken to make this principle work properly
(minimum standards, approximation etc.)?

Are there any areas of judicial cooperation, where the principle of
mutual recognition is less suitable (contrary to what was affirmed in
the Tampere conclusions) and thus current legal instruments of judicial
cooperation should remain in place? Or should the principle of mutual
recognition be strengthened or replaced by a new approach? If yes, which
one should that be and what would be the grounds for such a change? 

 See point No. 33 of the European Council meeting in Tampere, 15 -16
October 1999   

 See The Hague Programme: Strengthening Freedom, Security and Justice in
the European Union

(2005/C 53/01)

  see programme of measures to implement the principle of Mutual
Recognition of decisions in criminal matters (OJ 2001/C 12/02)

 See e.g. the study „Analysis of the future of mutual recognition in
criminal matters in the European Union“ assigned by the Commission to
the Université Libre de Bruxelles in cooperation with the European
Criminal Law Academic Network (ECLAN) on 13 October 2008.

 Council Framework Decision on the European arrest warrant and the
surrender procedures between Member States (2002/584/JHA). 

 The 4th round of mutual evaluations of the European Arrest Warrant is
being finalized on the basis of results from expert missions to all
Member States. In the Spring 2009 the Council will publish the final
evaluation report on the practical application of the European Arrest
Warrant.  

 See Council Framework Decision 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  

 See Art. 4.6 of the Framework Decision on the European Arrest Warrant,
which enables the refusal of surrender of own nationals or residents for
the purpose of execution of a custodial sentence  if the executing state
undertakes to execute the sentence in accordance with its domestic law
or  Art. 5.3 which makes the surrender of own nationals or residents for
the purpose of criminal prosecution subject to the condition that the
person is returned to the executing state to serve the imposed custodial
sentence.   

 Council Framework Decision on the application of the principle of
mutual recognition to financial penalties (2005/214/JHA) and Council
Framework Decision on the application of the principle of mutual
recognition to confiscation orders (2006/783/JHA)

 Within the meaning of the Council Framework Decision on taking account
of convictions in the Member States of the European Union in the course
of new criminal proceedings (2008/675/JHA)

 Council Framework Decision on the execution in the European Union of
orders freezing property or evidence (2003/577/JHA)

 Council Framework Decision on the European Evidence Warrant for
obtaining objects, documents and data for use in proceedings in criminal
matters (COM 2003/0688)

  See The Gözutok/Brügge judgments of the Court of Justice.

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