Amendment of section 5 of Act of 1995 59. Section 5 of the Act of 1995 is amended by the substitution of the following subsection for subsection (2): “(2) A warrant issued under subsection (1) shall authorise— (a) the taking of the sentenced person to a place in any part of the State for the purposes of delivery referred to in paragraph (b), (b) the delivery of the sentenced person into the custody of a person authorised by the administering state to receive the person— (i) at a place of departure from the State, for conveyance to the administering state and the keeping of the person in custody until the delivery is effected, or (ii) at a place of entry to the administering state and the keeping of the person in custody until the delivery is effected, and (c) the removal of the sentenced person from the State— (i) where paragraph (b)(i) applies, by the person to whom he or she is so delivered at the place of departure from the State, and (ii) where paragraph (b)(ii) applies, by a person authorised pursuant to subsection (4) for that purpose.”.
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Amendment of section 6 of Act of 1995 60. Section 6 of the Act of 1995 is amended— (a) in subsection (3)— (i) in paragraph (a), by the substitution of “the Minister” for “it”, and (ii) by the substitution of the following paragraph for paragraph (e): “(e) the offence under the law of the sentencing state in respect of which the sentence was imposed corresponds to an offence under the law of the State.”, and (b) by the insertion of the following subsection after subsection (3): “(3A) For the purposes of subsection (3)(e), where the sentence imposed in a sentencing state is in relation to more than one offence, the requirement set out in that provision shall be deemed to be satisfied where any one or more of the offences for which the sentence was imposed corresponds to an offence under the law of the State.”.
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Amendment of section 7 of Act of 1995 61. Section 7 of the Act of 1995 is amended— (a) in subsection (1), by the substitution of “the continued enforcement of the sentence (in its legal nature and duration) and the issue of a warrant under subsection (2)” for “the issue of a warrant authorising the bringing of the sentenced person concerned into the State from a place outside the State and the taking of the person to, and his or her detention in custody at, such place or places in the State as may be specified in the warrant”, (b) in subsection (2), by the substitution of “for the purpose of enforcement of the sentence issue a warrant authorising the bringing of the sentenced person into the State and the taking of the person to, and his or her detention in, a place of detention to await the making of a committal order” for “issue a warrant authorising the bringing of the sentenced person into the State and the taking of the person to, and his or her detention in custody at, such place or places in the State as are specified in the warrant”, (c) by the substitution of the following subsection for subsection (3): “(3) Where the High Court issues a warrant under subsection (2), the court shall take all such measures as are necessary to enforce the sentence and, in particular, may make an order under section 7C(3) or (5), or both adapting the sentence.”, and (d) by the repeal of subsections (4) to (10).
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Committal order and related matters 62. The Act of 1995 is amended by the insertion of the following sections after section 7: “Committal order 7A. (1) Subject to subsection (3), the High Court shall, on application by or on behalf of the Minister, in respect of a sentenced person brought into the State under a warrant issued under section 7(2), make an order (in this Act referred to as a ‘committal order’) not later than 21 days after the sentenced person is brought into the State, for the purpose of enforcement of the sentence, committing the person to a place of detention.
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(2)An application under this section shall— (a) be brought by the Minister after a sentenced person is brought into the State under a warrant issued under section 7(2), and (b) be made on notice to the sentenced person.
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(3)Where, for any reason, the High Court is unable to make a committal order within the period referred to in subsection (1), the period may be extended by such reasonable period as may be required by the court for that purpose.
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(4)A sentenced person may continue to be detained or otherwise restricted in his or her personal liberty pursuant to a warrant issued under section 7(2) notwithstanding that the period referred to in subsection (1) is extended under subsection (3).
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(5)The period for which a sentenced person may be committed to a place of detention in a committal order shall, subject to subsection (6), be a period equal to the period of the sentence (including where the sentence is adapted in accordance with section 7C(3) or (5) or both) less— (a) the period of the sentence actually served by the person in the sentencing state, and (b) the deductible period.
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(6)In determining the period for which a sentenced person may be committed to a place of detention in a committal order— (a) the High Court shall not have regard to the provisions of law of the sentencing state under which the sentenced person is entitled to early or conditional release, and (b) where by operation of law of the sentencing state the sentenced person would be entitled, other than in accordance with paragraph (a), to be released from custody, whether under licence or otherwise, at a specified time having served a specified portion of the sentence— (i) the High Court shall treat such release as a measure relating to the administration of the sentence, and (ii) the sentence shall be treated as a sentence to be spent in custody or other detention for the full period.
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(7)Where a committal order is made in respect of a sentenced person who has been sentenced to a term of imprisonment for life in a sentencing state, the order shall specify that the person is to be committed for imprisonment for life irrespective of whether his or her eligibility for early or conditional release (including parole) in the sentencing state was— (a) restricted for the whole term of the sentence, or (b) conditional on his or her having served a specified term of imprisonment as a result of— (i) a decision or order by the court or tribunal that imposed the sentence, (ii) the operation of law of the sentencing state, or (iii) a decision of a body in the sentencing state, other than a body referred to in subparagraph (i), on whom a power to make such a decision has been conferred by law.
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(8)Notwithstanding subsection (5), the period for which a sentenced person may be committed to a place of detention in a committal order may exceed the period for which he or she could lawfully have been detained or otherwise had his or her personal liberty restricted in custody in the sentencing state.
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Effect of committal order 7B. (1) Subject to subsections (3) and (4) and section 7C, the effect of a committal order shall be to authorise the continued enforcement by the State of a sentence (in its legal nature and duration) imposed in a sentencing state and such an order shall— (a) where a sentenced person is to be committed to a prison, have the same force and effect as an order imposing a sentence of imprisonment following conviction by the court, (b) where a sentenced person is to be committed to a designated centre, have the same force and effect as an order by the court under section 5(2) of the Act of 2006 committing a person to such a centre, and (c) where a sentenced person is to be committed to a children detention school, have the same force and effect as an order imposing a sentence of detention in a children detention school following conviction by the court.
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(2)Without prejudice to the generality of subsection (1), the following shall apply in relation to a sentence which is to be enforced in the State— (a) section 17
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(3)of the Criminal Justice Administration Act 1914 in respect of a sentenced person committed to a prison, (b) the power to commute or remit a punishment under section 23 of the Criminal Justice Act 1951 , (c) the power of the Minister to give a direction that a sentenced person be released from prison for a temporary period under section 2 of the Criminal Justice Act 1960 or be released for such period as may be specified by the Minister under section 2A of that Act, (d) the power of the Parole Board to make a parole order under section 27 of the Parole Act 2019 in respect of a sentenced person, and (e) in so far as the period served by a sentenced person in a place of detention on foot of a warrant issued under section 7(2) and a committal order is concerned, the rules or practice whereby sentenced persons generally may earn remission of sentences by industry or good conduct.
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(3)A person in respect of whom a warrant is issued under section 7(2) or a committal order is made shall not be entitled to bring any appeal in the State against the conviction or the sentence imposed in the sentencing state.
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(4)The Criminal Procedure Act 1993 shall not apply to a person in respect of whom a warrant is issued under section 7(2) or a committal order is made in so far as the conviction or sentence imposed in the sentencing state is concerned.
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Adaptation 7C. (1) The High Court may, on the application by or on behalf of the Minister (whether as part of an application under section 7 or 7A or at any other time) or of its own motion, make an order under subsection (3) or (5) or both adapting a sentence.
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(2)An application under subsection (1) may be made ex parte other than where— (a) the sentenced person is in the State, or (b) the High Court directs that it is in the interests of justice that it be made on notice to the sentenced person.
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(3)Where the sentence imposed in the sentencing state is by its legal nature incompatible with the law of the State, the High Court may make an order adapting the legal nature of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.
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(4)The legal nature of a sentence adapted under subsection (3) shall, as far as practicable, correspond to the legal nature of the sentence concerned imposed in the sentencing state and shall not, in any event, either— (a) aggravate it, or (b) exceed the maximum penalty prescribed by the law of the State for a similar offence.
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(5)Where the sentence imposed in the sentencing state is by its duration incompatible with the law of the State, the High Court may make an order adapting the duration of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.
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(6)The duration of a sentence adapted under subsection (5) shall, as far as practicable, correspond to the duration of the sentence imposed in the sentencing state and shall not, in any event, either— (a) aggravate it, or (b) exceed the maximum penalty prescribed by the law of the State for a similar offence.
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(7)The enforcement of a sentence that is, by its legal nature or duration, incompatible with the law of the State shall not be deemed to be unlawful by reason only of the sentence not having been adapted by way of an order under subsection (3) or (5) or both.
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(8)A sentenced person may continue to be detained or otherwise restricted in his or her personal liberty pursuant to a warrant issued under section 7(2) or a committal order notwithstanding that an application is made under subsection (1) for an order under subsection (3) or (5) or both adapting his or her sentence.
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(9)A sentence shall not be taken by its legal nature to be incompatible with the law of the State by reason only of— (a) the duration of the sentence imposed in a sentencing state, (b) any provisions of law of the sentencing state in respect of early or conditional release which applied to the sentence prior to the transfer of its enforcement to the State, (c) any provisions of law of the sentencing state, other than the provisions referred to in paragraph (b), under which the sentenced person would be entitled to be released from custody, whether under licence or otherwise, at a specified time having served a portion of the sentence, (d) in the case of a sentence of imprisonment for life— (i) any restriction for the whole term of the sentence regarding the eligibility of the sentenced person to early or conditional release (including parole), or (ii) any condition that means that the eligibility of the sentenced person to early or conditional release (including parole) was conditional on his or her having served a specified term of imprisonment as a result of— (I) a decision or order by the court or tribunal that imposed the sentence, (II) the operation of law of the sentencing state, or (III) a decision of a body in the sentencing state, other than a body referred to in clause (I), on whom a power to make such a decision has been conferred by law, or (e) its imposition in the sentencing state in respect of more than one offence.
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(10)In this section, ‘incompatible with the law of the State’ means— (a) in so far as it applies to the legal nature of a sentence imposed in a sentencing state, a sentence that, subject to subsection (9), consists of a punishment or measure that is different in nature from the punishment or measure which could be imposed on the sentenced person if he or she were— (i) convicted in the State of an offence corresponding to the offence of which he or she was convicted in the sentencing state, or (ii) the subject of a special verdict under section 5 of the Act of 2006, and (b) in so far as it applies to the duration of a sentence imposed in a sentencing state, a sentence that is greater than the maximum term of imprisonment or other detention to which the sentenced person would be liable if he or she were convicted in the State of an offence corresponding to the offence of which he or she was convicted in the sentencing state.
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Transfer to State of enforcement of sentence 7D. (1) Subject to subsection (2), the enforcement of a sentence shall, where the sentenced person is in the sentencing state, be governed by the law of the State from the time he or she is delivered into the custody of a person authorised by the Minister to receive the sentenced person under a warrant issued under section 7(2).
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(2)Where a sentenced person escapes from custody or other detention and has not been retaken, the enforcement of the sentence shall revert to the sentencing state upon receipt by the sentencing state of notification by the Minister of the escape.
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Termination of enforcement 7E. (1) The enforcement of a sentence in the State shall cease where the Minister is notified by the sentencing state of any decision or measure, other than a decision or measure in respect of remission, as a result of which the sentence ceased to be enforceable in that state immediately or from such date as is contained in the notification.
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(2)The Minister shall, on receipt of a notification under subsection (1), immediately inform the following persons of the decision or measure referred to in the notification: (a) where the sentenced person is in a prison, the governor of the prison; (b) where the sentenced person is in a designated centre, the clinical director of the designated centre; (c) where the sentenced person is in a children detention school, the Director of the children detention school.
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(3)Subject to subsection (4), a sentenced person to whom a notification referred to in subsection (1) relates shall, upon the governor of the prison, the clinical director of the designated centre or the Director of the children detention school (as the case may be) being informed under subsection (2) that the notification has been received, be released from custody or other detention forthwith or on such later date as may be specified in the notification.
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(4)Subsection (3) shall not apply where— (a) (i) the person has been sentenced to a term of imprisonment for an offence of which he or she was convicted in the State, (ii) on the date on which he or she would, but for this paragraph, be entitled to be released under subsection (3), all or part of the term of imprisonment remains unexpired, and (iii) the person is required to serve all or part of the remainder of that term of imprisonment, or (b) (i) the person has been charged with, or convicted of, an offence in the State, and (ii) on the date on which he or she would, but for this paragraph, be entitled to be released under subsection (3), he or she is required to be in custody, by virtue of having been remanded in custody pending his or her being tried, or the imposition of sentence, as the case may be, in respect of that offence.
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(5)In this section, ‘governor’, in respect of a prison, means— (a) the governor of the prison, or (b) a person who is for the time being performing the functions of governor of the prison.”.
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Amendment of section 9 of Act of 1995 63. Section 9 of the Act of 1995 is amended— (a) in subsection (1)— (i) by the insertion of “(including as part of an application under section 7C)” after “at any time”, (ii) by the substitution of “this Act and the Convention” for “the provisions of the Convention”, (iii) by the insertion of “or a committal order” after “out of the State”, and (iv) by the substitution of the following paragraph for paragraph (b): “(b) in the case of a warrant issued under section 7(2) or a committal order, apply to the High Court for an order revoking, or varying the terms of, the warrant or committal order, as the case may be.”, (b) by the substitution of the following subsection for subsection (2): “(2) A sentenced person may in writing request the Minister to bring an application under subsection (1)(b) and the Minister shall bring the application unless, having regard to all the circumstances, he or she is satisfied that it is not necessary.”, and (c) by the insertion of the following subsection after subsection (2): “(3) The High Court may, upon an application under subsection (1)(b), make an order revoking or varying the terms of a warrant or order referred to in that subsection if the court is satisfied that the revocation or variation is necessary for the purposes of this Act and the Convention.”.
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PART 6
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Amendment of Act of 2005 Amendment of section 1 of Act of 2005 64. Section 1(1) of the Act of 2005 is amended— (a) by the substitution of the following definition for the definition of “sentence”: “‘sentence’ means a punishment or measure involving deprivation of liberty ordered by a court or tribunal for a limited or unlimited period of time on account of a criminal offence and includes a punishment or measure that includes a limited or unlimited period of time that is served otherwise than in custody;”, and (b) by the insertion of the following definitions: “‘Act of 2006’ means the Criminal Law (Insanity) Act 2006 ; ‘children detention school’ has the same meaning as it has in section 3
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(1)of the Children Act 2001 ; ‘committal order’ has the meaning assigned to it by section 10(1); ‘deductible period’, in relation to a sentenced person, means— (a) the period spent by the person in custody in the State on foot of a warrant issued under section 8 or 9 awaiting the making of a committal order, and (b) the period (if any) of the sentence indicated by a sentencing country to be deducted from the total length of the sentence— (i) in respect of an amnesty, pardon, clemency or other such decision granted by the sentencing country in relation to the sentence, and (ii) in respect of any other reduction (including a period of remission of sentence) in relation to the part of the sentence which has been served by the person in that country; ‘designated centre’ has the same meaning as it has in section 1 of the Act of 2006; ‘place of detention’ means— (a) a prison, (b) a designated centre, or (c) a children detention school; ‘prison’ means a place of custody (other than a Garda Síochána station) administered by or on behalf of the Minister and includes a place— (a) provided under section 2 of the Prisons Act 1970 , and (b) specified under section 3 of the Prisons Act 1972 ;”.
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Amendment of section 7 of Act of 2005 65. Section 7 of the Act of 2005 is amended by the insertion of the following subsection after subsection (2): “(2A) For the purposes of subsection (2)(d) and section 8(2)(b)(iv), where the sentence imposed in a sentencing country is in relation to more than one offence, the requirement set out in those provisions shall be deemed to be satisfied where any one or more of the offences for which the sentence was imposed corresponds to an offence under the law of the State.”.
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Amendment of section 8 of Act of 2005 66. Section 8 of the Act of 2005 is amended— (a) in subsection (1), by the insertion of “the continued enforcement of the sentence (in its legal nature and duration) and” after “High Court for”, (b) in subsection (2), by the insertion of “for the purpose of the enforcement of the sentence” after “concerned”, and (c) by the insertion of the following subsection after subsection (2): “(2A) Where the High Court issues a warrant under subsection (2), the court shall take all such measures as are necessary to enforce the sentence and, in particular, may make an order under section 10B(3) or (5) or both adapting the sentence.”.
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Identification procedures for purpose under Act 67. The Act of 2005 is amended by the insertion of the following section after section 9: “9A. (1) Where a member of the Garda Síochána arrests a person under any power conferred by this Act, the member of the Garda Síochána may, in order to assist in verifying or ascertaining the identity of the person for any purpose under this Act— (a) take, or cause to be taken, his or her fingerprint, (b) take, or cause to be taken, his or her palm print, and (c) photograph him or her or cause him or her to be photographed.
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(2)Where a fingerprint, palm print or photograph taken pursuant to subsection (1) is lost or damaged, or is otherwise unsuitable for use for the purpose referred to in that subsection, it may be taken on a second or any further occasion.
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(3)The powers conferred by subsection (1) shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of inspector.
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(4)A member of the Garda Síochána may, where a person fails or refuses to allow his or her fingerprint, palm print or photograph to be taken pursuant to subsection (1), use such force as he or she reasonably considers necessary to take the fingerprint, palm print or photograph or to cause the photograph to be taken.
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(5)The powers conferred by subsection (4) shall not be exercised except where authorised by a member of the Garda Síochána not below the rank of superintendent.
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(6)An authorisation pursuant to subsection (5) may be given orally or in writing and if given orally shall be confirmed in writing as soon as practicable.
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(7)Where a member of the Garda Síochána intends to exercise a power conferred by subsection (4), he or she shall inform the person who fails or refuses to allow his or her fingerprint, palm print or photograph to be taken pursuant to subsection (1)— (a) of that intention, and (b) that an authorisation to do so has been given pursuant to subsection (5).
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(8)A fingerprint, palm print or photograph taken pursuant to subsection (4) shall be taken in the presence of a member of the Garda Síochána not below the rank of inspector.
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(9)The taking of a fingerprint, palm print or photograph pursuant to subsection (4) shall be recorded by electronic or similar means.
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(10)A fingerprint, palm print or photograph of a person taken in pursuance of a power conferred by this section and every copy and record thereof shall be destroyed on the later of— (a) the expiration of the period of 12 months from the date of the taking of the fingerprint, palm print or photograph, as the case may be, or (b) the expiry of the sentence of imprisonment imposed on the person to which a request under section 6 or 7 relates.
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(11)A person who obstructs a member of the Garda Síochána in exercise of the powers under this section shall be guilty of an offence and shall, on summary conviction, be liable to a class A fine or to imprisonment for a term not exceeding 12 months or both.
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(12)Where a fingerprint, palm print or photograph of a person in respect of whom a request under section 7 has been received is transmitted by or on behalf of a sentencing country, such fingerprint, palm print or photograph shall, unless the contrary is proved, be received in evidence without further proof.”.
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Amendment of section 10 of Act of 2005 68. Section 10 of the Act of 2005 is amended— (a) in subsection (1)— (i) by the substitution of “order (in this Act referred to as a ‘committal order’) for the purpose of enforcement of the sentence, committing the person to a place of detention” for “order committing the person to a prison”, and (ii) by the substitution of “a period, subject to subsection (3), equal” for “a period equal”, (b) in subsection (2), by the substitution of “a committal order” for “an order under subsection (1)”, (c) by the substitution of the following subsection for subsection (3): “(3) In determining the period for which a sentenced person may be committed to a place of detention in a committal order— (a) the High Court shall not have regard to the provisions of law of the sentencing country under which the sentenced person is entitled to early or conditional release, and (b) where by operation of law of the sentencing country the sentenced person would be entitled, other than in accordance with paragraph (a), to be released from custody, whether under licence or otherwise, at a specified time having served a specified portion of the sentence— (i) the High Court shall treat such release as a measure relating to the administration of the sentence, and (ii) the sentence shall be treated as a sentence to be spent in custody or other detention for the full period.”, (d) by the substitution of the following subsection for subsection (4): “(4) Where a committal order is made in respect of a sentenced person who has been sentenced to a term of imprisonment for life in a sentencing country, the order shall specify that the person is to be committed for imprisonment for life irrespective of whether his or her eligibility for early or conditional release (including parole) in the sentencing country was— (a) restricted for the whole term of the sentence, or (b) conditional on his or her having served a specified term of imprisonment as a result of— (i) a decision or order by the court or tribunal that imposed the sentence, (ii) the operation of law of the sentencing country, or (iii) a decision of a body in the sentencing country, other than a body referred to in subparagraph (i), on whom a power to make such a decision has been conferred by law.”, (e) by the substitution of the following subsection for subsection (5): “(5) Notwithstanding subsection (1), the period for which a sentenced person may be committed to a place of detention in a committal order may exceed the period for which he or she could lawfully have been detained or otherwise had his or her personal liberty restricted in custody in the sentencing country.”,
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(f) in subsection (6)(a)— (i) by the substitution of “committal order” for “an order under subsection (1)”, and (ii) by the substitution of “the place of detention” for “prison”, and (g) by the repeal of subsection (7).
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Effect of committal order and related matters 69. The Act of 2005 is amended by the insertion of the following sections after section 10: “Effect of committal order 10A. (1) Subject to subsections (3) and (4) and section 10B, the effect of a committal order shall be to authorise the continued enforcement by the State of a sentence (in its legal nature and duration) imposed in a sentencing country and such an order shall— (a) where a sentenced person is to be committed to a prison, have the same force and effect as an order imposing a sentence of imprisonment following conviction by the court, (b) where a sentenced person is to be committed to a designated centre, have the same force and effect as an order by the court under section 5(2) of the Act of 2006 committing a person to such a centre, and (c) where a sentenced person is to be committed to a children detention school, have the same force and effect as an order imposing a sentence of detention in a children detention school following conviction by the court.
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(2)Without prejudice to the generality of subsection (1), the following shall apply in relation to a sentence which is to be enforced in the State— (a) section 17
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(3)of the Criminal Justice Administration Act 1914 in respect of a sentenced person committed to a prison, (b) the power to commute or remit a punishment under section 23 of the Criminal Justice Act 1951 , (c) the power of the Minister to give a direction that a sentenced person be released from prison for a temporary period under section 2 of the Criminal Justice Act 1960 or be released for such period as may be specified by the Minister under section 2A of that Act, (d) the power of the Parole Board to make a parole order under section 27 of the Parole Act 2019 in respect of a sentenced person, and (e) in so far as the period served by a sentenced person in a place of detention on foot of a warrant issued under section 8 or 9 and a committal order is concerned, the rules or practice whereby sentenced persons generally may earn remission of sentences by industry or good conduct.
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(3)A person in respect of whom a warrant is issued under section 8 or 9 or a committal order is made shall not be entitled to bring any appeal in the State against the conviction or the sentence imposed in the sentencing country.
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(4)The Criminal Procedure Act 1993 shall not apply to a person in respect of whom a warrant is issued under section 8 or 9 or a committal order is made in so far as the conviction or sentence imposed in the sentencing country is concerned.
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Adaptation 10B. (1) The High Court may, on the application by or on behalf of the Minister (whether as part of an application under section 8(1) or at any other time) or of its own motion, make an order under subsection (3) or (5) or both adapting a sentence.
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(2)An application under subsection (1) shall be made on notice to the sentenced person.
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(3)Where the sentence imposed in the sentencing country is by its legal nature incompatible with the law of the State, the High Court may make an order adapting the legal nature of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.
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(4)The legal nature of a sentence adapted under subsection (3) shall, as far as practicable, correspond to the legal nature of the sentence concerned imposed in the sentencing country and shall not, in any event, either— (a) aggravate it, or (b) exceed the maximum penalty prescribed by the law of the State for a similar offence.
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(5)Where the sentence imposed in the sentencing country is by its duration incompatible with the law of the State, the High Court may make an order adapting the duration of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.
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(6)The duration of a sentence adapted under subsection (5) shall, as far as practicable, correspond to the duration of the sentence imposed in the sentencing state and shall not, in any event, either— (a) aggravate it, or (b) exceed the maximum penalty prescribed by the law of the State for a similar offence.
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(7)The enforcement of a sentence that is, by its legal nature or duration, incompatible with the law of the State shall not be deemed to be unlawful by reason only of the sentence not having been adapted by way of an order under subsection (3) or (5) or both.
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(8)A sentenced person may continue to be detained or otherwise restricted in his or her personal liberty pursuant to a warrant issued under section 8 or 9 or a committal order notwithstanding that an application is made under subsection (1) for an order under subsection (3) or (5) or both adapting his or her sentence.
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(9)A sentence shall not be taken by its legal nature to be incompatible with the law of the State by reason only of— (a) the duration of the sentence imposed in a sentencing country, (b) any provisions of law of the sentencing country in respect of early or conditional release which applied to the sentence prior to the transfer of its enforcement to the State, (c) any provisions of law of the sentencing country, other than the provisions referred to in paragraph (b), under which the sentenced person would be entitled to be released from custody, whether under licence or otherwise, at a specified time having served a portion of the sentence, (d) in the case of a sentence of imprisonment for life— (i) any restriction for the whole term of the sentence regarding the eligibility of the sentenced person to early or conditional release (including parole), or (ii) any condition that means that the eligibility of the sentenced person to early or conditional release (including parole) was conditional on his or her having served a specified term of imprisonment as a result of— (I) a decision or order by the court or tribunal that imposed the sentence, (II) the operation of law of the sentencing country, or (III) a decision of a body in the sentencing country, other than a body referred to in clause (I), on whom a power to make such a decision has been conferred by law, or (e) its imposition in the sentencing country in respect of more than one offence.
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(10)In this section, ‘incompatible with the law of the State’ means— (a) in so far as it applies to the legal nature of a sentence imposed in a sentencing country, a sentence that, subject to subsection (9), consists of a punishment or measure that is different in nature from the punishment or measure which could be imposed on the sentenced person if he or she were— (i) convicted in the State of an offence corresponding to the offence of which he or she was convicted in the sentencing country, or (ii) the subject of a special verdict under section 5 of the Act of 2006, and (b) in so far as it applies to the duration of a sentence imposed in a sentencing country, a sentence that is greater than the maximum term of imprisonment or other detention to which the sentenced person would be liable if he or she were convicted in the State of an offence corresponding to the offence of which he or she was convicted in the sentencing country.
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Transfer to State of enforcement of sentence 10C. (1) Subject to subsection (2), the enforcement of a sentence shall, where the sentenced person is in the State and he or she is a person to whom section 10(1) applies, be governed by the law of the State, from the date of the making of an order under that section.
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(2)Where a sentenced person escapes from custody or other detention and has not been retaken, the enforcement of the sentence shall revert to the sentencing country upon receipt by the sentencing country of notification by the Minister of the escape.
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Termination of enforcement 10D. (1) The enforcement of a sentence in the State shall cease where the Minister is notified by the sentencing country of any decision or measure, other than a decision or measure in respect of remission, as a result of which the sentence ceased to be enforceable in that country immediately or from such date as is contained in the notification.
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(2)The Minister shall, on receipt of a notification under subsection (1), immediately inform the following persons of the decision or measure referred to in the notification: (a) where the sentenced person is in a prison, the governor of the prison; (b) where the sentenced person is in a designated centre, the clinical director of the designated centre; (c) where the sentenced person is in a children detention school, the Director of the children detention school.
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(3)Subject to subsection (4), a sentenced person to whom a notification referred to in subsection (1) relates shall, upon the governor of the prison, the clinical director of the designated centre or the Director of the children detention school (as the case may be) being informed under subsection (2) that the notification has been received, be released from custody or other detention forthwith or on such later date as may be specified in the notification.
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(4)Subsection (3) shall not apply where— (a) (i) the person has been sentenced to a term of imprisonment for an offence of which he or she was convicted in the State, (ii) on the date on which he or she would, but for this paragraph, be entitled to be released under subsection (3), all or part of the term of imprisonment remains unexpired, and (iii) the person is required to serve all or part of the remainder of that term of imprisonment, or (b) (i) the person has been charged with, or convicted of, an offence in the State, and (ii) on the date on which he or she would, but for this paragraph, be entitled to be released under subsection (3), he or she is required to be in custody, by virtue of having been remanded in custody pending his or her being tried, or the imposition of sentence, as the case may be, in respect of that offence.
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(5)In this section, ‘governor’, in respect of a prison, means— (a) the governor of the prison, or (b) a person who is for the time being performing the functions of governor of the prison.
\n
Revocation and variation of warrants and orders 10E. (1) The Minister may at any time (including as part of an application under section 10B) apply to the High Court for an order revoking, or varying the terms of a warrant under section 8 or 9 or a committal order.
\n
(2)A sentenced person may in writing request the Minister to bring an application under subsection (1) and the Minister shall bring the application unless, having regard to all the circumstances, he or she is satisfied that it is not necessary.
\n
(3)The High Court may, upon an application under subsection (1), make an order revoking or varying the terms of a warrant or order referred to in that subsection if the court is satisfied that the revocation or variation is necessary for the purposes of this Act and the Convention on the Transfer of Sentenced Persons done at Strasbourg on 18 December 1997.”.
\n
Repeal of section 11 of Act of 2005 70. Section 11 of the Act of 2005 is repealed.
\n
Amendment of section 12 of Act of 2005 71. Section 12 of the Act of 2005 is amended by the substitution of “a committal order” for “an order under subsection (1) of section 10”.
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PART 7
\n
Miscellaneous Identification procedures 72. (1) Where a member of the Garda Síochána arrests a person under any power conferred by this Act, the member of the Garda Síochána may, in order to assist in verifying or ascertaining the identity of the person for any purpose under this Act and for no other purpose— (a) take, or cause to be taken, his or her fingerprint, (b) take, or cause to be taken, his or her palm print, and (c) photograph him or her or cause him or her to be photographed.
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(2)Where a fingerprint, palm print or photograph taken pursuant to subsection (1) is lost or damaged, or is otherwise unsuitable for use for the purpose referred to in that subsection, it may be taken on a second or any further occasion.
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(3)The powers conferred by subsection (1) shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of inspector.
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(4)A member of the Garda Síochána may, where a person fails or refuses to allow his or her fingerprint, palm print or photograph to be taken pursuant to subsection (1), use such force as he or she reasonably considers necessary to take the fingerprint, palm print or photograph or to cause the photograph to be taken.
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(5)The powers conferred by subsection (4) shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of superintendent.
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(6)An authorisation pursuant to subsection (5) may be given orally or in writing and if given orally shall be confirmed in writing as soon as practicable.
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(7)Where a member of the Garda Síochána intends to exercise a power conferred by subsection (4), he or she shall inform the person— (a) of that intention, and (b) that an authorisation to do so has been given pursuant to subsection (5).
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(8)Every fingerprint, palm print or photograph taken pursuant to subsection (4) shall be taken in the presence of a member of the Garda Síochána not below the rank of inspector.
\n
(9)The taking of every fingerprint, palm print or photograph pursuant to subsection (4) shall be recorded by electronic or similar means.
\n
(10)Every fingerprint, palm print or photograph of a person taken in pursuance of a power conferred by this section and every copy and record thereof shall be destroyed within the period of 12 months from the date of the taking of the fingerprint, palm print or photograph, as the case may be, or on the expiry of the sentence of imprisonment imposed on the person to which an application (within the meaning of
\n
Part 2
\n
or 3 applies) relates, whichever occurs later.
\n
(11)A person who obstructs a member of the Garda Síochána in exercise of the powers under this section shall be guilty of an offence and shall, on summary conviction, be liable to a class A fine or to imprisonment for a term not exceeding 12 months or to both.
\n
(12)Where a fingerprint, palm print or photograph of a person to whom a warrant issued under section 22
\n
(1), 35
\n
(1)or 42
\n
(1)relates is transmitted by or on behalf of a competent authority of an issuing state or executing state, such fingerprint, palm print or photograph shall be received in evidence without further proof.
\n
Transit 73. (1) Transit through the State of a sentenced person (in this section referred to as a “transferee”) being transferred from an issuing state to an executing state shall be permitted where the Minister receives a request in that behalf from the issuing state and where the issuing state provides the Minister with the following: (a) a certified copy of the Framework Decision Certificate in respect of the request concerned; (b) upon request of the Minister, a translation of the Certificate referred to in paragraph (a) in the English language.
\n
(2)The Minister may require an issuing state that has made a request under subsection (1) to provide such information in respect of the circumstances of the transit or transfer of the person concerned as the Minister considers to be necessary or expedient.
\n
(3)Where, at the time of receipt of a request under this section, there is in the State a warrant for the arrest of, or a prosecution pending against, the transferee in respect of a criminal offence committed or a sentence imposed before the departure of the transferee from the issuing state which may result in him or her being detained or otherwise restricted in his or her personal liberty while in the State, the Minister shall notify the issuing state of the warrant or the prosecution, as the case may be.
\n
(4)The Minister shall, within 1 week of receipt of a request in accordance with subsection (1), grant permission under that subsection.
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(5)The Minister may arrange for the supervision of the transit of a transferee through the State by members of the Garda Síochána and the transferee shall be deemed to be in the custody of any member of the Garda Síochána accompanying him or her pursuant to such arrangement.
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(6)(a) This subsection applies to an aircraft that has taken off from a place (other than the State) and that is scheduled to land in a place (other than the State) and on board which there is a transferee. (b) Where an aircraft to which this subsection applies lands (for whatever reason) in the State, the issuing state shall, upon its landing or within 72 hours of such landing, provide the Minister with the documentation referred to in subsection (1). (c) While an aircraft to which this subsection applies is in the State, a transferee who is on board that aircraft shall be deemed to be in transit through the State and subsection (5) shall apply accordingly.
\n
(7)Where a sentenced person is being transferred to an executing state in accordance with section 23 and the transfer involves the transit through the territory of a Member State (in this section referred to as a “specified Member State”) other than the executing State, the Minister shall request the specified Member State to permit the transit and provide that Member State with the following: (a) a certified copy of the Framework Decision Certificate in respect of the request concerned; (b) upon request of the specified Member State, a translation of the Certificate referred to in paragraph (a) in a relevant language.
\n
(8)The Minister may withdraw a request under subsection (7) where the specified Member State has notified the Minister that there is in the specified Member State a warrant for the arrest of, or a prosecution pending against, the sentenced person in respect of a criminal offence committed or a sentence imposed before the departure of the person from the State which may result in him or her being detained or otherwise restricted in his or her personal liberty while in the specified Member State.
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Amendment of section 151 of Children Act 2001 74.
\n
Section 151
\n
(4)of the Children Act 2001 is amended by the substitution of “or 3, or conditional release under section 2A,” for “or 3”.
\n
Amendment of Act of 2003 75. The Act of 2003 is amended by the substitution of the following section for section 45B: “45B. (1) Where a national or resident of another state from which he or she is surrendered— (a) is surrendered to the State pursuant to a Trade and Cooperation Agreement arrest warrant or an arrest warrant within the meaning of the EU-Iceland Norway Agreement with a view to being prosecuted in the State, and (b) whose surrender is subject to the condition that he or she, after being so prosecuted, is returned to that other state in order to serve any custodial sentence or detention order imposed upon him or her in the State, the Minister shall, following the final determination of the proceedings and if the person consents, issue a warrant under section 5 of that Act for the transfer of the person from the State to that state in order to serve there any custodial sentence or detention order so imposed.
\n
(2)Where a national or resident of another state from which he or she is surrendered— (a) is surrendered to the State pursuant to a European arrest warrant with a view to being prosecuted in the State, and (b) whose surrender is subject to the condition that he or she, after being so prosecuted, is returned to that other state in order to serve any sentence (within the meaning of the Act of 2023) imposed upon him or her in the State, the Minister shall, following the final determination of the proceedings, forward the judgment in the proceedings together with a copy of a Framework Decision Certificate (within the meaning of the Act of 2023) to that other state in order for the person to serve there any sentence so imposed.
\n
(3)For the purposes of subsection (1)— (a) a reference to the administering state in the Act of 1995 shall be construed as a reference to the state from which a person under subsection (1) is surrendered, (b) a person to whom subsection (1) applies shall be deemed to have made an application under section 4(1) of the Act of 1995, and (c) the state from which the person under subsection (1) is surrendered shall be deemed to have agreed under section 4(3)(f) of the Act of 1995 to the transfer.
\n
(4)For the purposes of subsection (2),
\n
Part 2
\n
of the Act of 2023 shall apply in respect of a judgment referred to in that subsection as it applies to a judgment to which that Part applies, subject to the following modifications: (a) the competent authority of the state from which a person under subsection (2) is surrendered shall be deemed to have made an application within the meaning of
\n
Part 2
\n
of the Act of 2023; (b) a reference in
\n
Part 2
\n
of the Act of 2023 to the executing state shall be construed as a reference to the state from which a person under subsection (2) is surrendered; (c) where paragraph (c) of section 14 of the Act of 2023 applies, the competent authority of the executing state shall be deemed to have given its consent under that provision; (d) any other necessary modifications.
\n
(5)In this section— ‘Act of 1995’ means the Transfer of Sentenced Persons Act 1995 ; ‘Act of 2023’ means the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023.”.
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Amendment of section 25 of Criminal Justice Act 2007 76.
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Section 25
\n
(8)of the Criminal Justice Act 2007 is amended— (a) in paragraph (c), by the substitution of “ Criminal Justice Act 1960 ,” for “ Criminal Justice Act 1960 , or”, and (b) by the insertion of the following paragraph after paragraph (c): “(ca) conditionally released under section 2A of the Criminal Justice Act 1960 , or”.
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Amendment of Criminal Justice (Mutual Assistance) Act 2008 77.
\n
Section 65
\n
(1)(b) of the Criminal Justice (Mutual Assistance) Act 2008 is amended by the insertion of “or under section 22 (transfer warrant for removal of sentenced person from State) of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023” after “the Transfer of Sentenced Persons Act 1995 ”.
\n
Amendment of Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 78. (1) Section 31 of the Act of 2014 is amended— (a) in subsection (1)(c)(ii)— (i) in clause (I), by the deletion of “or” where it lastly occurs, (ii) by the insertion of the following clause after clause (I): “(IA) a committal order within the meaning of the Transfer of Sentenced Persons Act 1995 ,”, (iii) by the insertion of the following clauses after clause (II): “(III) a committal order within the meaning of the Transfer of Execution of Sentences Act 2005 , or (IV) a committal order within the meaning of
\n
Part 3
\n
of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,”, and (iv) by the insertion of “or an appropriate court (within the meaning of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023), as the case may be,” after “the offence that the High Court”, and (b) in subsection (14), in paragraph (b) of the definition of “the expiry of the sentence”— (i) by the insertion of “or an appropriate court (within the meaning of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023), as the case may be” after “determined by the High Court”, (ii) in subparagraph (i), by the deletion of “or” where it lastly occurs, (iii) in subparagraph (ii), by the substitution of “ Transfer of Execution of Sentences Act 2005 , or” for “ Transfer of Execution of Sentences Act 2005 ,”, and (iv) by the insertion of the following subparagraph after subparagraph (ii): “(iii) on his or her transfer to the State and detention in a place of detention in the State under
\n
Part 3
\n
of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,”.
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(2)Section 32 of the Act of 2014 is amended— (a) in subsection (1)(c)(ii)— (i) in clause (I), by the deletion of “or” where it lastly occurs, (ii) by the insertion of the following clause after clause (I): “(IA) a committal order within the meaning of the Transfer of Sentenced Persons Act 1995 ,”, (iii) by the insertion of the following clauses after clause (II): “(III) a committal order within the meaning of the Transfer of Execution of Sentences Act 2005 , or (IV) a committal order within the meaning of
\n
Part 3
\n
of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,”, and (iv) by the insertion of “or an appropriate court (within the meaning of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023), as the case may be,” after “the offence that the High Court”, and (b) in subsection (15), in paragraph (b) of the definition of “the expiry of the sentence”— (i) by the insertion of “or an appropriate court (within the meaning of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023), as the case may be” after “determined by the High Court”, (ii) in subparagraph (i), by the deletion of “or” where it lastly occurs, (iii) in subparagraph (ii), by the substitution of “ Transfer of Execution of Sentences Act 2005 , or” for “ Transfer of Execution of Sentences Act 2005 ,”, and (iv) by the insertion of the following subparagraph after subparagraph (ii): “(iii) on his or her transfer to the State and detention in a place of detention in the State under
\n
Part 3
\n
of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,”.
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(3)Section 33(10) of the Act of 2014 is amended, in paragraph (b) of the definition of “the expiry of the sentence”— (a) by the insertion of “or an appropriate court (within the meaning of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023), as the case may be” after “determined by the High Court”, (b) in subparagraph (i), by the deletion of “or” where it lastly occurs, (c) in subparagraph (ii), by the substitution of “ Transfer of Sentenced Persons Act 1995 , or” for “ Transfer of Sentenced Persons Act 1995 ,”, and (d) by the insertion of the following subparagraph after subparagraph (ii): “(iii) on his or her transfer to the State and detention in a place of detention in the State under
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Part 3
\n
of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,”.
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(4)In this section, “Act of 2014” means the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 .
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Amendment of section 58 of Criminal Law (Sexual Offences) Act 2017 79.
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Section 58
\n
(7)of the Criminal Law (Sexual Offences) Act 2017 is amended— (a) in paragraph (c), by the substitution of “ Criminal Justice Act 1960 ,” for “ Criminal Justice Act 1960 , or”, and (b) by the insertion of the following paragraph after paragraph (c): “(ca) conditionally released under section 2A of the Criminal Justice Act 1960 , or”.
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Amendment of section 8 of Criminal Justice (Victims of Crime) Act 2017 80.
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Section 8
\n
(2)(m) of the Criminal Justice (Victims of Crime) Act 2017 is amended— (a) by the insertion of the following subparagraph after subparagraph (ii): “(iia) any conditional release of the person under section 2A of the Act of 1960 and any conditions attached to such release which relate to the victim,”, (b) by the insertion of the following subparagraph after subparagraph (iii): “(iiia) without prejudice to subparagraph (iii)— (I) any application to the Minister under section 4 of the Transfer of Sentenced Persons Act 1995 to transfer the person out of the State in order to serve the sentence or the balance thereof in another Convention state (within the meaning of that Act) and any transfer of the person out of the State in accordance with that Act, or (II) any application within the meaning of
\n
Part 2
\n
of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023 and any transfer of the person to an executing state (within the meaning of that Act) in accordance with that Part,”, and (c) in subparagraph (v), by the substitution of “or 3, or on conditional release under section 2A,” for “or 3”.
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Amendment of Parole Act 2019 81. The Parole Act 2019 is amended— (a) in section 2— (i) in subsection (1), in the definition of “relevant governor”— (I) in paragraph (b), by the substitution of “so released,” for “so released, or”, and (II) by the insertion of the following paragraph after paragraph (b): “(ba) where the parole applicant or parolee, as the case may be, is on conditional release from prison in accordance with a direction given by the Minister under section 2A of the Act of 1960, the governor of the prison from which he or she is so released, or”, and (ii) in subsection (3)— (I) in paragraph (a)— (A) by the substitution of “including” for “including both”, (B) in subparagraph (i), by the substitution of “Act of 2001,” for “Act of 2001, and”, (C) in subparagraph (ii), by the substitution of “Act of 1960, and” for “Act of 1960,” and (D) by the insertion of the following subparagraph after subparagraph (ii): “(iii) a person who is released from prison on conditional release in accordance with a direction given by the Minister under section 2A of the Act of 1960,”, and (II) in paragraph (b)— (A) in subparagraph (ii), by the substitution of “imprisonment,” for “imprisonment, and”, (B) in subparagraph (iii), by the substitution of “that Act, and” for “that Act,” and (C) by the insertion of the following subparagraph after subparagraph (iii): “(iv) any time spent on conditional release from prison for a period in accordance with a direction given by the Minister under section 2A of the Act of 1960 while serving the sentence of imprisonment other than time spent on such release where the currency of the sentence of the person is suspended pursuant to section 5 of that Act,”, (b) in section 6, by the insertion of the following paragraph after paragraph (a): “(aa) the power of the Minister to give a direction that a person be released from prison for a period under section 2A of the Act of 1960,”, and (c) in section 27— (i) in subsection (2)— (I) by the insertion of the following paragraph after paragraph (b): “(ba) without prejudice to paragraphs (a), (b) and (c) to (m), in the case of a foreign sentence— (i) any restriction, notified in writing to the Minister by the state in which the sentence was imposed, for the whole term of the sentence regarding the eligibility of the sentenced person to early or conditional release (including parole), (ii) any condition, notified in writing to the Minister by the state in which the sentence was imposed, that means the eligibility of the sentenced person to early or conditional release (including parole) was conditional on his or her having served a specified term of imprisonment where the condition was as a result of—
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(I) a decision or order by the court or tribunal that imposed the sentence, (II) the operation of law of the state in which the sentence was imposed, or (III) a decision of a body in the state in which the sentence was imposed, other than a body referred to in clause (I), on whom a power to make such a decision has been conferred by law,”, and (II) in paragraph (e)(iii), by the insertion of “or 2A” after “section 2”, and (ii) by the insertion of the following subsections after subsection (3): “(4) For the purposes of subsection (2)(b), a reference in that subsection to any recommendation of the court that imposed the sentence shall, in the case of a foreign sentence, be construed as a reference to any recommendation of the court or tribunal in the state that imposed the sentence.
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(5)In this section, ‘foreign sentence’, means— (a) a sentence of imprisonment for life, or (b) a sentence of imprisonment of a term equivalent to or longer than such term as may be prescribed in regulations made by the Minister under section 24(3), that is imposed by a court or tribunal in a state, other than the State, the enforcement of which has been transferred to the State and thereafter continued in accordance with a committal order within the meaning of the Transfer of Sentenced Persons Act 1995 , the Transfer of Execution of Sentences Act 2005 or
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Part 3
\n
of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023, as the case may be.”.
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Amendment of Act of 2019 82. Section 3 of the Act of 2019 is amended— (a) by designating the section as subsection (1), and (b) by the insertion of the following subsections after subsection (1): “(2) Nothing in this Act shall operate to prejudice— (a) the power of the Minister under
\n
Part 2
\n
of the Act of 2023 to forward a judgment (within the meaning of that Act) to the competent authority of an executing state (within the meaning of that Act), and (b) the power of the Minister to make an application under
\n
Part 3
\n
of the Act of 2023 in respect of a judgment (within the meaning of that Act).
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(3)In this section, ‘Act of 2023’ means the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023.”.
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Amendment of Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 83.
\n
Section 22
\n
of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 is amended in the definition of “relevant proceedings”— (a) by the insertion of the following paragraph after paragraph (a): “(aa) the Transfer of Sentenced Persons Act 1995 ,”, (b) in paragraph (c), by the substitution of “the European Arrest Warrant Act 2003 ,” for “the European Arrest Warrant Act 2003 , or”, (c) by the insertion of the following paragraph after paragraph (c): “(ca) the Transfer of Execution of Sentences Act 2005 ,”, (d) in paragraph (d), by the substitution of “the International Criminal Court Act 2006 , or” for “the International Criminal Court Act 2006,”, and (e) by the insertion of the following paragraph after paragraph (d): “(e)
\n
Part 3
\n
of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,”.
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Amendment of Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020 84. The Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020 is amended— (a) in section 11— (i) in subsection (1), by the substitution of the following paragraph for paragraph (b): “(b) establishes that he or she— (i) is lawfully and ordinarily resident in another Member State, or (ii) intends to reside in a Member State, other than that referred to in subparagraph (i), and the competent authority of the other Member State has consented to the forwarding of the proposed supervision decision, and”, and (ii) by the insertion of the following subsection after subsection (11): “(12) In this section, ‘other Member State’, in relation to a person, means— (a) where subsection (1)(b)(i) applies, the Member State in which the person is lawfully and ordinarily resident, and (b) where subsection (1)(b)(ii) applies, the Member State in which the person intends to reside.”, (b) in section 12— (i) in subsection (1)— (I) by the substitution of the following paragraph for paragraph (a): “(a) is— (i) lawfully and ordinarily resident in another Member State, or (ii) a person in respect of whom the competent authority of another Member State has consented to the forwarding of the proposed supervision decision,”, and (II) in paragraph (c), by the substitution of “reside in the other Member State” for “return to the other Member State to reside therein”, (ii) in subsection (2), by the substitution of “reside in” for “return to”, and (iii) by the insertion of the following subsection after subsection (3): “(4) In this section, ‘other Member State’, in relation to a person, means— (a) where subsection (1)(a)(i) applies, the Member State in which the person is lawfully and ordinarily resident, and (b) where subsection (1)(a)(ii) applies, the Member State the competent authority of which has consented to the forwarding of a proposed supervision decision in relation to the person.”, (c) in section 13, by the substitution of “(within the meaning of section 11 or 12, as the case may be)” for “concerned”, (d) in section 14— (i) in subsection (1), by the substitution of “(within the meaning of section 11 or 12, as the case may be)” for “concerned”, and (ii) by the insertion of the following subsection after subsection (7): “(8) The Central Authority shall not forward a supervision decision to more than one executing state at any one time.”, and (e) in section 28, by the insertion of the following subsections after subsection (7):
\n
“(8) Where a court or person employed by, or acting for or on behalf of, the public administration of the State receives a supervision decision and Article 10 certificate directly from the competent authority of an issuing State, the court or person, as the case may be, shall— (a) as soon as practicable send or arrange for the sending of, the documents to the Central Authority, and (b) as soon as practicable so inform the competent authority of the issuing State by any means capable of producing a record in writing.
\n
(9)For the purposes of this Part, the sending of a supervision decision and Article 10 certificate to the Central Authority under subsection (8) shall be deemed to constitute the forwarding of the documents to the Central Authority.”.
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Declaration of state to be Member State 85. The Minister may, by order, made following consultation with the Minister for Foreign Affairs, declare a state, other than a state referred to in paragraph (a) of the definition of “Member State” in section 2
\n
(1), to be a Member State for the purposes of paragraph (b) of that definition, where he or she is satisfied that the state has, by agreement concluded by the state with the European Union, agreed to implement and apply— (a) the Framework Decision, or (b) an act or measure taken by the European Union amending or building upon the Framework Decision.
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Transitional provision 86. Where, before the date on which Parts 1 to 3 come into operation— (a) a request was made by the Minister, a sentencing state (within the meaning of the Act of 1995) or a sentencing country (within the meaning of the Act of 2005), (b) an application was granted by the Minister, (c) a warrant was issued, or (d) any other order or step was taken, under the Act of 1995 or the Act of 2005 in respect of a sentence to which this Act applies, the request, application, warrant, other order or step shall be deemed to have been made under this Act and this Act shall apply accordingly.
\n
SCHEDULE Council Framework Decision 2008/909/JHA of 27 November 2008 as amended by Council Framework Decision 2009/299/JHA of 26 February 2009
\n
Section 2
\n
Council Framework Decision 2008/909/JHA of 27 November 2008 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 As amended by COUNCIL FRAMEWORK DECISION 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 31(1)(a) and 34(2)(b) thereof, Having regard to the initiative of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, Having regard to the opinion of the European Parliament, Whereas:
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(1)The European Council meeting in Tampere on 15 and 16 October 1999 endorsed the principle of mutual recognition, which should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union.
\n
(2)On 29 November 2000 the Council, in accordance with the Tampere conclusions, adopted a programme of measures to implement the principle of mutual recognition of decisions in criminal matters(1) , in which it called for an assessment of the need for modern mechanisms for the mutual recognition of final sentences involving deprivation of liberty (Measure 14) and for extended application of the principle of the transfer of sentenced persons to cover persons resident in a Member State (Measure 16).
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(3)The Hague Programme on strengthening freedom, security and justice in the European Union(2) requires Member States to complete the programme of measures, in particular in the field of enforcing final custodial sentences.
\n
(4)All the Member States have ratified the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983. Under that Convention, sentenced persons may be transferred to serve the remainder of their sentence only to their State of nationality and only with their consent and that of the States involved. The Additional Protocol to that Convention of 18 December 1997, which allows transfer without the person’s consent, subject to certain conditions, has not been ratified by all the Member States. Neither instrument imposes any basic duty to take charge of sentenced persons for enforcement of a sentence or order.
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(5)Procedural rights in criminal proceedings are a crucial element for ensuring mutual confidence among the Member States in judicial cooperation. Relations between the Member States, which are characterised by special mutual confidence in other Member States’ legal systems, enable recognition by the executing State of decisions taken by the issuing State’s authorities. Therefore, a further development of the cooperation provided for in the Council of Europe instruments concerning the enforcement of criminal judgments should be envisaged, in particular where citizens of the Union were the subject of a criminal judgment and were sentenced to a custodial sentence or a measure involving deprivation of liberty in another Member State. Notwithstanding the need to provide the sentenced person with adequate safeguards, his or her involvement in the proceedings should no longer be dominant by requiring in all cases his or her consent to the forwarding of a judgment to another Member State for the purpose of its recognition and enforcement of the sentence imposed.
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(6)This Framework Decision should be implemented and applied in a manner which allows general principles of equality, fairness and reasonableness to be respected.
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(7)Article 4(1)(c) contains a discretionary provision which enables the judgment and the certificate to be forwarded, for example, to the Member State of nationality of the sentenced person, in cases other than those provided for in paragraphs 1(a) and (b) or to the Member State in which the sentenced person lives and has been legally residing continuously for at least five years and will retain a permanent right of residence there.
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(8)In cases referred to in Article 4(1)(c) the forwarding of the judgment and the certificate to the executing State is subject to consultations between the competent authorities of the issuing and the executing States, and the consent of the competent authority of the executing State. The competent authorities should take into account such elements as, for example, duration of the residence or other links to the executing State. In cases where the sentenced person could be transferred to a Member State and to a third country under national law or inter- national instruments, the competent authorities of the issuing and executing States should, in consultations, consider whether enforcement in the executing State would enhance the aim of social rehabilitation better than enforcement in the third country.
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(9)Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State.
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(10)The opinion of the sentenced person referred to in Article 6(3) may be useful mainly in applying Article 4(4). The words ‘in particular’ are intended to cover also cases where the opinion of the sentenced person would include information which might be of relevance in relation to the grounds for non-recognition and non-enforcement. Provisions of Articles 4(4) and 6(3) do not constitute a ground for refusal on social rehabilitation.
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(11)Poland needs more time than the other Member States to face the practical and material consequences of transfer of Polish citizens convicted in other Member States, especially in the light of an increased mobility of Polish citizens within the Union. For that reason, a temporary derogation of limited scope for a maximum period of five years should be foreseen.
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(12)This Framework Decision should also, mutatis mutandis, apply to the enforcement of sentences in the cases under Articles 4(6) and 5(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States(1) . This means, inter alia, that, without prejudice to that Framework Decision, the executing State could verify the existence of grounds for non-recognition and non-enforcement as provided in Article 9 of this Framework Decision, including the checking of double criminality to the extent that the executing State makes a declaration under Article 7(4) of this Framework Decision, as a condition for recognising and enforcing the judgment with a view to considering whether to surrender the person or to enforce the sentence in cases pursuant to Article 4(6) of Framework Decision 2002/584/JHA.
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(13)This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected by the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision should be interpreted as prohibiting refusal to execute a decision when there are objective reasons to believe that the sentence was imposed for the purpose of punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced on any one of those grounds.
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(14)This Framework Decision should not prevent any Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.
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(15)This Framework Decision should be applied in accordance with the right of citizens of the Union to move and reside freely within the territory of the Member States conferred by Article 18 of the Treaty establishing European Community.
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(16)This Framework Decision should be applied in accordance with applicable Community legislation, including in particular Council Directive 2003/86/EC(2) , Council Directive 2003/109/EC(3) and Directive 2004/38/EC of the European Parliament and of the Council(4) .
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(17)Where in this Framework Decision reference is made to the State in which the sentenced person ‘lives’, this indicates the place to which that person is attached based on habitual residence and on elements such as family, social or professional ties.
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(18)When applying Article 5(1), it should be possible to transmit a judgment or a certified copy thereof and a certificate to the competent authority in the executing State by any means which leaves a written record, for example e-mail and fax, under conditions allowing the executing State to establish authenticity.
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(19)In cases referred to in Article 9(1)(k), the executing State should consider the possibility of adapting the sentence in accordance with this Framework Decision before it refuses to recognise and enforce the sentence involving a measure other than a custodial sentence.
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(20)The ground for refusal provided for in Article 9(1)(k) may be applied also in cases where the person has not been found guilty of a criminal offence although the competent authority applied the measure involving the deprivation of liberty other than a custodial sentence as a consequence of a criminal offence.
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(21)The ground for refusal relating to territoriality should be applied only in exceptional cases and with a view to cooperating to the greatest extent possible under the provisions of this Framework Decision, while taking into account its purpose. Any decision to apply this ground for refusal, should be based on a case-by-case analysis and consultations between the competent authorities of the issuing and executing States.
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(22)The time limit referred to in Article 12(2) should be implemented by the Member States in such a way that as a general rule, the final decision, including an appeal procedure is completed within a period of 90 days.
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(23)Article 18(1) states that, subject to the exceptions listed in paragraph 2, the specialty rule applies only where the person has been transferred to the executing State. It should therefore not be applicable where the person has not been transferred to the executing State, for example where the person has fled to the executing State, HAS ADOPTED THIS FRAMEWORK DECISION:
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CHAPTER I
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GENERAL PROVISIONS
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Article 1Definitions
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For the purposes of this Framework Decision: (a) ‘judgment’ shall mean a final decision or order of a court of the issuing State imposing a sentence on a natural person; (b) ‘sentence’ shall mean any custodial sentence or any measure involving deprivation of liberty imposed for a limited or unlimited period of time on account of a criminal offence on the basis of criminal proceedings; (c) ‘issuing State’ shall mean the Member State in which a judgment is delivered; (d) ‘executing State’ shall mean the Member State to which a judgment is forwarded for the purpose of its recognition and enforcement.
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Article 2Determination of the competent authorities
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1.Each Member State shall inform the General Secretariat of the Council which authority or authorities, under its national law, are competent in accordance with this Framework Decision, when that Member State is the issuing State or the executing State.
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2.The General Secretariat of the Council shall make the information received available to all Member States and the Commission.
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Article 3Purpose and scope
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1.The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence.
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2.This Framework Decision shall apply where the sentenced person is in the issuing State or in the executing State.
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3.This Framework Decision shall apply only to the recognition of judgments and the enforcement of sentences within the meaning of this Framework Decision. The fact that, in addition to the sentence, a fine and/or a confiscation order has been imposed, which has not yet been paid, recovered or enforced, shall not prevent a judgment from being forwarded. The recognition and enforcement of such fines and confiscation orders in another Member State shall be based on the instruments applicable between the Member States, in particular Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties(1) and Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders(3) .
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4.This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.
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CHAPTER II
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RECOGNITION OF JUDGMENTS AND ENFORCEMENT OF SENTENCES
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Article 4Criteria for forwarding a judgment and a certificate to another Member State
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1.Provided that the sentenced person is in the issuing State or in the executing State, and provided that this person has given his or her consent where required under Article 6, a judgment, together with the certificate for which the standard form is given in Annex I, may be forwarded to one of the following Member States: (a) the Member State of nationality of the sentenced person in which he or she lives; or (b) the Member State of nationality, to which, while not being the Member State where he or she lives, the sentenced person will be deported, once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure taken consequential to the judgment; or (c) any Member State other than a Member State referred to in (a) or (b), the competent authority of which consents to the forwarding of the judgment and the certificate to that Member State.
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2.The forwarding of the judgment and the certificate may take place where the competent authority of the issuing State, where appropriate after consultations between the competent authorities of the issuing and the executing States, is satisfied that the enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person.
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3.Before forwarding the judgment and the certificate, the competent authority of the issuing State may consult, by any appropriate means, the competent authority of the executing State. Consultation shall be obligatory in the cases referred to in paragraph 1(c). In such cases the competent authority of the executing State shall promptly inform the issuing State of its decision whether or not to consent to the forwarding of the judgment.
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4.During such consultation, the competent authority of the executing State may present the competent authority of the issuing State with a reasoned opinion, that enforcement of the sentence in the executing State would not serve the purpose of facilitating the social rehabilitation and successful reintegration of the sentenced person into society.
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Where there has been no consultation, such an opinion may be presented without delay after the transmission of the judgment and the certificate. The competent authority of the issuing State shall consider such opinion and decide whether to withdraw the certificate or not 5. The executing State may, on its own initiative, request the issuing State to forward the judgment together with the certificate. The sentenced person may also request the competent authorities of the issuing State or of the executing State to initiate a procedure for forwarding the judgment and the certificate under this Framework Decision. Requests made under this paragraph shall not create an obligation of the issuing State to forward the judgment together with the certificate.
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6.In implementing this Framework Decision, Member States shall adopt measures, in particular taking into account the purpose of facilitating social rehabilitation of the sentenced person, constituting the basis on which their competent authorities have to take their decisions whether or not to consent to the forwarding of the judgment and the certificate in cases pursuant to paragraph 1(c).
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7.Each Member State may, either on adoption of this Framework Decision or later, notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, its prior consent under paragraph 1(c) is not required for the forwarding of the judgment and the certificate: (a) if the sentenced person lives in and has been legally residing continuously for at least five years in the executing State and will retain a permanent right of residence in that State, and/or (b) if the sentenced person is a national of the executing State in cases other than those provided for in paragraph 1(a) and (b).
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In cases referred to in point (a), permanent right of residence shall mean that the person concerned: — has a right of permanent residence in the respective Member State in accordance with the national law implementing Community legislation adopted on the basis of Article 18, 40, 44 and 52 of the Treaty establishing the European Community, or — possesses a valid residence permit, as a permanent or long-term resident, for the respective Member State, in accordance with the national law implementing Community legislation adopted on the basis of Article 63 of the Treaty establishing the European Community, as regards Member States to which such Community legislation is applicable, or in accordance with national law, as regards Member States to which it is not.
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Article 5Forwarding of the judgment and the certificate
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1.The judgment or a certified copy of it, together with the certificate, shall be forwarded, by the competent authority of the issuing State directly to the competent authority of the executing State by any means which leaves a written record under conditions allowing the executing State to establish its authenticity. The original of the judgment, or a certified copy of it, and the original of the certificate, shall be sent to the executing State if it so requires. All official communications shall also be made directly between the said competent authorities.
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2.The certificate, shall be signed, and its content certified as accurate, by the competent authority of the issuing State.
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3.The issuing State shall forward the judgment together with the certificate to only one executing State at any one time.
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4.If the competent authority of the executing State is not known to the competent authority of the issuing State, the latter shall make all necessary inquiries, including via the Contact points of the European Judicial Network set up by Council Joint Action 98/428/JHA(1) , in order to obtain the information from the executing State 5. When an authority of the executing State which receives a judgment together with a certificate has no competence to recognise it and take the necessary measures for its enforcement, it shall, ex officio, forward the judgment together with the certificate to the competent authority of the executing State and inform the competent authority of the issuing State accordingly.
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Article 6Opinion and notification of the sentenced person
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1.Without prejudice to paragraph 2, a judgment together with a certificate may be forwarded to the executing State for the purpose of its recognition and enforcement of the sentence only with the consent of the sentenced person in accordance with the law of the issuing State.
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2.The consent of the sentenced person shall not be required where the judgment together with the certificate is forwarded: (a) to the Member State of nationality in which the sentenced person lives; (b) to the Member State to which the sentenced person will be deported once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure consequential to the judgment; (c) to the Member State to which the sentenced person has fled or otherwise returned in view of the criminal proceedings pending against him or her in the issuing State or following the conviction in that issuing State.
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3.In all cases where the sentenced person is still in the issuing State, he or she shall be given an opportunity to state his or her opinion orally or in writing. Where the issuing State considers it necessary in view of the sentenced person’s age or his or her physical or mental condition, that opportunity shall be given to his or her legal representative.
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The opinion of the sentenced person shall be taken into account when deciding the issue of forwarding the judgement together with the certificate. Where the person has availed him or her self of the opportunity provided in this paragraph, the opinion of the sentenced person shall be forwarded to the executing State, in particular with a view to Article 4 (4). If the sentenced person stated his or her opinion orally, the issuing State shall ensure that the written record of such statement is available to executing State 4. The competent authority of the issuing State shall inform the sentenced person, in a language which he or she understands, that it has decided to forward the judgment together with the certificate by using the standard form of the notification set out in Annex II. When the sentenced person is in the executing State at the time of that decision, that form shall be transmitted to the executing State which shall inform the sentenced person accordingly.
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5.Paragraph 2(a) shall not apply to Poland as an issuing State and as an executing State in cases where the judgement was issued before the lapse of five years from 5 December 2011. Poland may at any time notify the General Secretariat of the Council that it will no longer avail itself of this derogation.
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Article 7Double criminality
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1.The following offences, if they are punishable in the issuing State by a custodial sentence or a measure involving deprivation of liberty for a maximum period of at least three years, and as they are defined by the law of the issuing State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to recognition of the judgment and enforcement of the sentence imposed: — participation in a criminal organisation, — terrorism, — trafficking in human beings, — sexual exploitation of children and child pornography, — illicit trafficking in narcotic drugs and psychotropic substances, — illicit trafficking in weapons, munitions and explosives, — corruption, — fraud, including that 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(1) , — laundering of the proceeds of crime, — counterfeiting currency, including of the euro, — computer-related crime, — environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, — facilitation of unauthorised entry and residence, — murder, grievous bodily injury, — 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, — illicit trafficking in hormonal substances and other growth promoters, — illicit 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 2. The Council may decide to add other categories of offences to the list provided for in paragraph 1 at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union. The Council shall examine, in the light of the report submitted to it pursuant to Article 29 (5) of this Framework Decision, whether the list should be extended or amended.
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3.For offences other than those covered by paragraph 1, the executing State may make the recognition of the judgment and enforcement of the sentence subject to the condition that it relates to acts which also constitute an offence under the law of the executing State, whatever its constituent elements or however it is described.
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4.Each Member State may, on adoption of this Framework Decision or later, by a declaration notified to the General Secretariat of the Council declare that it will not apply paragraph 1. Any such declaration may be withdrawn at any time. Such declarations or withdrawals of declarations shall be published in the Official Journal of the European Union.
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Article 8Recognition of the judgment and enforcement of the sentence
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1.The competent authority of the executing State shall recognise a judgment which has been forwarded in accordance with Article 4 and following the procedure under Article 5, and shall forthwith take all the necessary measures for the enforcement of the sentence, unless it decides to invoke one of the grounds for non-recognition and non- enforcement provided for in Article 9.
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2.Where the sentence is incompatible with the law of the executing State in terms of its duration, the competent authority of the executing State may decide to adapt the sentence only where that sentence exceeds the maximum penalty provided for similar offences under its national law. The adapted sentence shall not be less than the maximum penalty provided for similar offences under the law of the executing State.
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3.Where the sentence is incompatible with the law of the executing State in terms of its nature, the competent authority of the executing State may adapt it to the punishment or measure provided for under its own law for similar offences. Such a punishment or measure shall correspond as closely as possible to the sentence imposed in the issuing State and therefore the sentence shall not be converted into a pecuniary punishment.
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4.The adapted sentence shall not aggravate the sentence passed in the issuing State in terms of its nature or duration.
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Article 9Grounds for non-recognition and non-enforcement
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1.The competent authority of the executing State may refuse to recognise the judgment and enforce the sentence, if: (a) the certificate referred to in Article 4 is incomplete or manifestly does not correspond to the judgment and has not been completed or corrected within a reasonable deadline set by the competent authority of the executing State; (b) the criteria set forth in Article 4(1) are not met; (c) enforcement of the sentence would be contrary to the principle of ne bis in idem; (d) in a case referred to in Article 7(3) and, where the executing State has made a declaration under Article 7(4), in a case referred to in Article 7(1), the judgment relates to acts which would not constitute an offence under the law of the executing State. However, in relation to taxes or duties, customs and exchange, execution of a judgment may not be refused on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing State; (e) the enforcement of the sentence is statute-barred according to the law of the executing State; (f) there is immunity under the law of the executing State, which makes it impossible to enforce the sentence; (g) the sentence has been imposed on a person who, under the law of the executing State, owing to his or her age, could not have been held criminally liable for the acts in respect of which the judgment was issued; (h) at the time the judgment was received by the competent authority of the executing State, less than six months of the sentence remain to be served; (i) according to the certificate provided for in Article 4, the person did not appear in person at the trial resulting in the decision, unless the certificate states that the person, in accordance with further procedural requirements defined in the national law of the issuing State: (i) in due time: —either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and —was informed that a decision may be handed down if he or she does not appear for the trial; or (ii) being aware of the scheduled trial had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;
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or (iii) after being served with the decision and being expressly informed of the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed: —expressly stated that he or she does not contest the decision, or —did not request a retrial or appeal within the applicable time frame; (j) the executing State, before a decision is taken in accordance with Article 12(1), makes a request, in accordance with Article 18(3), and the issuing State does not consent, in accordance with Article 18(2)(g), to the person concerned being prosecuted, sentenced or otherwise deprived of his or her liberty in the executing State for an offence committed prior to the transfer other than that for which the person was transferred; (k) the sentence imposed includes a measure of psychiatric or health care or another measure involving deprivation of liberty, which, notwithstanding Article 8(3), cannot be executed by the executing State in accordance with its legal or health care system; (l) the judgment relates to criminal offences which under the law of the executing State are regarded as having been committed wholly or for a major or essential part within its territory, or in a place equivalent to its territory.
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2.Any decision under paragraph 1(l) in relation to offences committed partly within the territory of the executing State, or in a place equivalent to its territory, shall be taken by the competent authority of the executing State in exceptional circumstances and on a case-by-case basis, having regard to the specific circumstances of the case, and in particular to whether a major or essential part of the conduct in question has taken place in the issuing State.
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3.In the cases referred to in paragraph 1(a), (b), (c), (i), (k) and (l), before deciding not to recognise the judgment and enforce the sentence, the competent authority of the executing State shall consult the competent authority of the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary additional information without delay.
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Article 10Partial recognition and enforcement
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1.If the competent authority of the executing State could consider recognition of the judgment and enforcement of the sentence in part, it may, before deciding to refuse recognition of the judgment and enforcement of the sentence in whole, consult the competent authority of the issuing State with a view to finding an agreement, as provided for in paragraph 2.
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2.The competent authorities of the issuing and the executing States may agree, on a case-by-case basis, to the partial recognition and enforcement of a sentence in accordance with the conditions set out by them, provided such recognition and enforcement does not result in the aggravation of the duration of the sentence. In the absence of such agreement, the certificate shall be withdrawn.
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Article 11Postponement of recognition of the judgment
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The recognition of the judgment may be postponed in the executing State where the certificate referred to in Article 4 is incomplete or manifestly does not correspond to the judgment, until such reasonable deadline set by the executing State for the certificate to be completed or corrected.
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Article 12Decision on the enforcement of the sentence and time limits
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1.The competent authority in the executing State shall decide as quickly as possible whether to recognise the judgment and enforce the sentence and shall inform the issuing State thereof, including of any decision to adapt the sentence in accordance with Article 8(2) and (3).
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2.Unless a ground for postponement exists under Article 11 or Article 23(3), the final decision on the recognition of the judgment and the enforcement of the sentence shall be taken within a period of 90 days of receipt of the judgment and the certificate.
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3.When in exceptional cases it is not practicable for the competent authority of the executing State to comply with the period provided for in paragraph 2, it shall without delay inform the competent authority of the issuing State by any means, giving the reasons for the delay and the estimated time needed for the final decision to be taken.
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Article 13Withdrawal of the certificate
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As long as the enforcement of the sentence in the executing State has not begun, the issuing State may withdraw the certificate from that State, giving reasons for doing so. Upon withdrawal of the certificate, the executing State shall no longer enforce the sentence.
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Article 14Provisional arrest
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Where the sentenced person is in the executing State, the executing State may, at the request of the issuing State, before the arrival of the judgment and the certificate, or before the decision to recognise the judgment and enforce the sentence, arrest the sentenced person, or take any other measure to ensure that the sentenced person remains in its territory, pending a decision to recognise the judgment and enforce the sentence. The duration of the sentence shall not be aggravated as a result of any period spent in custody by reason of this provision.
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Article 15>Transfer of sentenced persons
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1.If the sentenced person is in the issuing State, he or she shall be transferred to the executing State at a time agreed between the competent authorities of the issuing and the executing States, and no later than 30 days after the final decision of the executing State on the recognition of the judgment and enforcement of the sentence has been taken.
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2.If the transfer of the sentenced person within the period laid down in paragraph 1 is prevented by unforeseen circumstances, the competent authorities of the issuing and executing States shall immediately contact each other. Transfer shall take place as soon as these circumstances cease to exist. The competent authority of the issuing State shall immediately inform the competent authority of the executing State and agree on a new transfer date. In that event, transfer shall take place within 10 days of the new date thus agreed.
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Article 16Transit
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1.Each Member State shall, in accordance with its law, permit the transit through its territory of a sentenced person who is being transferred to the executing State, provided that a copy of the certificate referred to in Article 4 has been forwarded to it by the issuing State together with the transit request. The transit request and the certificate may be transmitted by any means capable of producing a written record. Upon request of the Member State to permit transit, the issuing State shall provide a translation of the certificate into one of the languages, to be indicated in the request, which the Member State requested to permit transit accepts.
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2.When receiving a request to permit transit, the Member State requested to permit transit shall inform the issuing State if it cannot guarantee that the sentenced person will not be prosecuted, or, except as provided in paragraph 1, detained or otherwise subjected to any restriction of his or her liberty in its territory for any offence committed or sentence imposed before his or her departure from the territory of the issuing State. In such a case, the issuing State may withdraw its request.
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3.The Member State requested to permit transit shall notify its decision, which shall be taken on a priority basis and not later than one week after having received the request, by the same procedure. Such a decision may be postponed until the translation has been transmitted to the Member State requested to permit transit, where such translation is required under paragraph 1.
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4.The Member State requested to permit transit may hold the sentenced person in custody only for such time as transit through its territory requires.
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5.A transit request shall not be required in the case of transport by air without a scheduled stopover. However, if an unscheduled landing occurs, the issuing State shall provide the information provided for in paragraph 1 within 72 hours.
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Article 17Law governing enforcement
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1.The enforcement of a sentence shall be governed by the law of the executing State. The authorities of the executing State alone shall, subject to paragraphs 2 and 3, be competent to decide on the procedures for enforcement and to determine all the measures relating thereto, including the grounds for early or conditional release.
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2.The competent authority of the executing State shall deduct the full period of deprivation of liberty already served in connection with the sentence in respect of which the judgment was issued from the total duration of the deprivation of liberty to be served.
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3.The competent authority of the executing State shall, upon request, inform the competent authority of the issuing State of the applicable provisions on possible early or conditional release. The issuing State may agree to the application of such provisions or it may withdraw the certificate.
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4.Member States may provide that any decision on early or conditional release may take account of those provisions of national law, indicated by the issuing State, under which the person is entitled to early or conditional release at a specified point in time.
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Article 18Specialty
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1.A person transferred to the executing State pursuant to this Framework Decision shall not, subject to paragraph 2, be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed before his or her transfer other than that for which he or she was transferred.
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2.Paragraph 1 shall not apply in the following cases: (a) when the person having had an opportunity to leave the territory of the executing State has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it; (b) when the offence is not punishable by a custodial sentence or detention order; (c) when the criminal proceedings do not give rise to the application of a measure restricting personal liberty; (d) when the sentenced person could be liable to a penalty or a measure not involving deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure in lieu may give rise to a restriction of his or her personal liberty; (e) when the sentenced person consented to the transfer; (f) when the sentenced person, after his or her transfer, has expressly renounced entitlement to the specialty rule with regard to specific offences preceding his or her transfer. Renunciation shall be given before the competent judicial authorities of the executing State and shall be recorded in accordance with that State’s national law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel; (g) for cases other than those mentioned under points (a) to (f), where the issuing State gives its consent in accordance with paragraph 3.
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3.A request for consent shall be submitted to the competent authority of the issuing State, accompanied by the information mentioned in Article 8(1) of Framework Decision 2002/584/JHA and a translation as referred to in Article 8(2) thereof. Consent shall be given where there is an obligation to surrender the person under that Framework Decision. The decision shall be taken no later than 30 days after receipt of the request. For the situations mentioned in Article 5 of that Framework Decision, the executing State shall give the guarantees provided for therein.
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Article 19Amnesty, pardon, review of judgment
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1.An amnesty or pardon may be granted by the issuing State and also by the executing State.
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2.Only the issuing State may decide on applications for review of the judgment imposing the sentence to be enforced under this Framework Decision.
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Article 20Information from the issuing State
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1.The competent authority of the issuing State shall forthwith inform the competent authority of the executing State of any decision or measure as a result of which the sentence ceases to be enforceable immediately or within a certain period of time.
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2.The competent authority of the executing State shall terminate enforcement of the sentence as soon as it is informed by the competent authority of the issuing State of the decision or measure referred to in paragraph 1.
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Article 21Information to be given by the executing State
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The competent authority of the executing State shall without delay inform the competent authority of the issuing State by any means which leaves a written record: (a) of the forwarding of the judgment and the certificate to the competent authority responsible for its execution in accordance with Article 5(5); (b) of the fact that it is in practice impossible to enforce the sentence because after transmission of the judgment and the certificate to the executing State, the sentenced person cannot be found in the territory of the executing State, in which case there shall be no obligation on the executing State to enforce the sentence; (c) of the final decision to recognise the judgment and enforce the sentence together with the date of the decision; (d) of any decision not to recognise the judgment and enforce the sentence in accordance with Article 9, together with the reasons for the decision; (e) of any decision to adapt the sentence in accordance with Article 8 (2) or (3), together with the reasons for the decision; (f) of any decision not to enforce the sentence for the reasons referred to in Article 19(1) together with the reasons for the decision; (g) of the beginning and the end of the period of conditional release, where so indicated in the certificate by the issuing State; (h) of the sentenced person’s escape from custody; (i) of the enforcement of the sentence as soon as it has been completed.
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Article 22Consequences of the transfer of the sentenced person
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1.Subject to paragraph 2, the issuing State shall not proceed with the enforcement of the sentence once its enforcement in the executing State has begun.
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2.The right to enforce the sentence shall revert to the issuing State upon its being informed by the executing State of the partial non-enforcement of the sentence pursuant to Article 21(h).
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Article 23Languages
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1.The certificate shall be translated into the official language or one of the official languages of the executing State. Any Member State may, on adoption of this Framework Decision or later, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other official languages of the Institutions of the European Union.
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2.Subject to paragraph 3, no translation of the judgment shall be required.
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3.Any Member State may, on adoption of this Framework Decision or later, in a declaration deposited with the General Secretariat of the Council state that it, as an executing State, may without delay after receiving the judgment and the certificate, request, in cases where it finds the content of the certificate insufficient to decide on the enforcement of the sentence, that the judgment or essential parts of it be accompanied by a translation into the official language or one of the official languages of the executing State or into one or more other official languages of the Institutions of the European Union. Such a request shall be made, after consultation, where necessary, to indicate the essential parts of the judgments to be translated, between the competent authorities of the issuing and the executing States.
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The decision on recognition of the judgment and enforcement of the sentence may be postponed until the translation has been transmitted by the issuing State to the executing State or, where the executing State decides to translate the judgment at its own expenses, until the translation has been obtained.
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Article 24Costs
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Costs resulting from the application of this Framework Decision shall be borne by the executing State, except for the costs of the transfer of the sentenced person to the executing State and those arising exclusively in the sovereign territory of the issuing State.
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Article 25Enforcement of sentences following a European arrest warrant
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Without prejudice to Framework Decision 2002/584/JHA, provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible with provisions under that Framework Decision, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence in cases pursuant to Article 4(6) of that Framework Decision, or where, acting under Article 5(3) of that Framework Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State concerned, so as to avoid impunity of the person concerned.
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CHAPTER III
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FINAL PROVISIONS
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Article 26Relationship with other agreements and arrangements
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1.Without prejudice to their application between Member States and third States and their transitional application according to Article 28, this Framework Decision shall, from 5 December 2011, replace the corresponding provisions of the following conventions applicable in relations between the Member States: — The European Convention on the transfer of sentenced persons of 21 March 1983 and the Additional Protocol thereto of 18 December 1997; — The European Convention on the International Validity of Criminal Judgements of 28 May 1970; — Title III, Chapter 5, of the Convention of 19 June 1990 implementing the Schengen Convention of 14 June 1985 on the gradual abolition of checks at common borders; — The Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991 2. Member States may continue to apply bilateral or multilateral agreements or arrangements in force after 27 November 2008, in so far as they allow the objectives of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for the enforcement of sentences.
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3.Member States may conclude bilateral or multilateral agreements or arrangements after 5 December 2008 in so far as such agreements or arrangements allow the provisions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for the enforcement of sentences.
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4.Member States shall by 5 March 2009, notify the Council and the Commission of the existing agreements and arrangements referred to in paragraph 2 which they wish to continue applying. Member States shall also notify the Council and the Commission of any new agreement or arrangement as referred to in paragraph 3, within three months of signing it.
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Article 27Territorial application
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This Framework Decision shall apply to Gibraltar.
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Article 28Transitional provision
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1.Requests received before 5 December 2011 shall continue to be governed in accordance with the existing legal instruments on the transfer of sentenced persons. Requests received after that date shall be governed by the rules adopted by Member States pursuant to this Framework Decision.
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2.However, any Member State may, on the adoption of this Framework Decision, make a declaration indicating that, in cases where the final judgment has been issued before the date it specifies, it will as an issuing and an executing State, continue to apply the existing legal instruments on the transfer of sentenced persons applicable before 5 December 2011. If such a declaration is made, those instruments shall apply in such cases in relation to all other Member States irrespective of whether or not they have made the same declaration. The date in question may not be later than 5 December 2011. The said declaration shall be published in the Official Journal of the European Union. It may be withdrawn at any time.
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Article 29Implementation
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1.Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 5 December 2011.
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2.Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. On the basis of a report established using this information by the Commission, the Council shall, no later than 5 December 2012, assess the extent to which Member States have complied with the provisions of this Framework Decision 3. The General Secretariat of the Council shall notify the Member States and the Commission of the notifications or declarations made pursuant to Article 4(7) and Article 23(1) or (3).
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4.Without prejudice to Article 35(7) of the Treaty on European Union, a Member State which has experienced repeated difficulties in the application of Article 25 of this Framework Decision, which have not been solved through bilateral consultations, shall inform the Council and the Commission of its difficulties. The Commission shall, on the basis of this information and any other information available to it, establish a report, accompanied by any initiatives it may deem appropriate, with a view to resolving these difficulties.
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5.By 5 December 2013, the Commission shall establish a report on the basis of the information received, accompanied by any initiatives it may deem appropriate. The Council shall on the basis of any report from the Commission and any initiative, review, in particular Article 25, with a view to considering whether it is to be replaced by more specific provisions.
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Article 30Entry into force
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This Framework Decision shall enter into force on the day of its publication in the Official Journal of the European Union.
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ANNEX I CERTIFICATE referred to in Article 4 of Council Framework Decision 2008/909/JHA of 27 November 2008 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 (1 ) ANNEX II NOTIFICATION OF THE SENTENCED PERSON You are hereby notified of the decision of .............. (competent authority of the issuing State) to forward the judgment of .......... (competent court of the issuing State) dated .................... (date of judgment) ..................... (reference number; if available) to .................. (executing State) for the purpose of its recognition and enforcement of the sentence imposed therein in accordance with the national law implementing Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.
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The enforcement of the sentence will be governed by the law of .......... (executing State). The authorities of that State will be competent to decide on the procedures for enforcement and to determine all the measures relating thereto, including the grounds for early or conditional release.
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The competent authority of .................... (executing State) has to deduct the full period of deprivation of liberty already served in connection with the sentence from the total duration of deprivation of liberty to be served. An adaptation of the sentence by the competent authority of ................................................ (executing State) may take place only if it is incompatible with the law of that State in terms of its duration or nature. The adapted sentence must not aggravate the sentence passed in ............................... (issuing State) by its nature or duration.
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1 OJ No. L327, 5.12.2008, p. 27 2 OJ No. L294, 11.11.2009, p. 20