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Luxembourg’s Minister of Justice, Luc Frieden, current President of the European Union’s Council for Justice and Home Affairs, received his European counterparts in the context of the first working day of the semi-annual informal meeting taking place on 28 and 29 January 2005 in Luxembourg.
This meeting will provide an opportunity for the Minister of Justice, to conduct an initial exchange of views on the implementation of the "The Hague Programme."*
The first working session focused on strengthening justice. The Luxembourg Presidency asked the different delegations for their views on four issues: the mutual recognition of criminal convictions within the European Union, the approach for a cross-border enforcement of disqualifications, how to ensure an optimal exchange of information with respect to criminal convictions and disqualifications and finally which European approach regarding the transfer of convited persons.
According to Frieden, the european citizens should be able to trust in the functioning of penal justice systems in every Member State of the Union. "In a common judicial area, criminal convictions must be applied without obstacles based on national territory considerations," he stated, noting that on this occasion, some tragic events have demonstrated the deficiencies of the mechanisms in place to give a full cross-border dimension to criminal sentences.
More specifically, on the issue of the mutual recognition of criminal convictions in the European Union, Frieden emphasized that the Council had already decided to draft an emergency measure to improve and accelerate the sharing of information on national criminal records. In this regard, the issue involves the legal effects that one State must grant for convictions handed down by foreign jurisdictions.
During the debates among the ministers, two approaches were considered. First, the approach that involves the approximation of legislation; and second, the approach that involves mutual recognition. The vast majority of ministers approved the concept of mutual recognition while underscoring that it must be limited in scope. Thus, this cross-border mutual recognition of criminal convictions will require a national criminal court to take into account all criminal convictions handed down in another Member State of the Union, just as it takes into account a criminal conviction handed down in the past by one of its own courts.
On the issue of the disqualifications, the Presidency stressed the fact that such disqualifications do not lose their effects simply by crossing borders. According to Frieden, "that goes against the concept of the European judicial area." A large majority of Member States wish to limit themselves to a "direct" mutual recognition of disqualifications based on a "sectoral" approach. A broad agreement among Member States exists on the recognition of disqualifications resulting from convictions for sexual violations committed against children.
Regarding the optimal exchange of information on criminal convictions and disqualifications, a certain number of national delegations supported the Commission’s proposal that seeks to create a "European index system," which would be a genuine system for automatically and directly accessing information to determine if a person has a criminal records. The Presidency requested that more work be done on this proposal. Such an "index system " should make it possible to identify the State in which a person has a prior criminal record, and would be supplemented by a mechanism of exchanging additional information between the competent national authorities.
On the issue of the transfer of convicted persons, the Austrian proposal was supported by a majority of the States. Austria wants to assert in principle that any person who is given a sentence involving a custodial sentence must be transferred to his country of residence or to the country in which his family or close relations. This proposal will soon be reviewed.
* "The Hague Programme," adopted by the European Council at its meeting of 4 and 5 November 2004, is a multi-year programme that lasts five years (covering the period from 2005 to 2010) and aims to strengthen cooperation among the States of Europe in the areas of justice and home affairs so that Europe becomes “an area of freedom, security and justice."
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