The European Judicial Network on Detention and its Alternatives: about the Framework Decisions

The EJN is composed of Contact Points in the Member States, defined in the EJN Decision as “active intermediaries”. The Contact Points are designated by each Member State amongst central authorities in charge of international judicial cooperation and the judicial authorities or other competent authorities. Their main role is to facilitate judicial cooperation in criminal matters between the EU Member States, particularly in actions to combat forms of serious crime. They assist with establishing direct contacts between competent authorities and by providing legal and practical information necessary to prepare an effective request for judicial cooperation or to improve judicial cooperation in general.

The EJN holds at least three plenary meetings every year. The purposes of the plenary meetings are to allow Contact Points to get to know each other and share experience, and to provide a forum for discussion of practical and legal problems encountered by the Member States in relation to the interpretation and application of the EU legal instruments.

Recent Discussions on Relevant EU Instruments

The 51^st Plenary of the EJN took place in November 2018 in Vienna, under the Austrian Presidency of the Council of the EU. The aim of the discussions was to identify practical problems and possible solutions to the less used Mutual Recognition Instruments. Prior to the meeting, the EJN Contact Points were asked to complete a questionnaire on the aforementioned instruments, the results of which were discussed at the Plenary.

For the purposes of this article, particular attention will be paid to the conclusions in respect of Framework Decision 2008/947/JHA (Supervision of Probation Measures and Alternative Sanctions) and Framework Decision 2009/829/JHA (Supervision measures as an alternative to provisional detention). Other instruments discussed were Framework Decisions 2008/909/JHA Custodial Sentences or measures involving deprivation of liberty, 2005/214/JHA Financial Penalties, 2006/782/JHA Confiscation Orders and Directive 2011/99/EU European Protection Order.

General Conclusions

The EJN Contact Points stated that these legal instruments are not widely known amongst EU practitioners. The limited knowledge and the consequent lack of practical experience deter the judicial authorities from making use of these legal instruments.

Additionally, the lack of experience of using the instruments leads to delays in their execution, as sometimes it is necessary for the issuing authority to provide extra information and guidance to the executing authority. Furthermore, participants reported difficulties in identifying the right authority to address the orders/certificates, thus causing additional delays to the process.

In order to combat these issues, three main solutions were proposed: awareness raising and sharing of information, trainings on these legal instruments at the national and EU level, and continuous update of the EJN website to ensure the competent authorities can be identified.

In addition to the lack of knowledge of these instruments, the Contact Points noted that the differences between the legal systems and the differing national legislation pose an additional obstacle when applying the instruments. For example, the differences regarding the maximum penalty and different rules on pre-trial detention across the EU require steps of adaptation in the executing state.

The solutions proposed in this regard were involvement of the EJN during the EU legislative process, executive/legislative action via bilateral agreements and revision or amendment of national legislation, and assistance from the tools located on the EJN website.

Framework Decision 2008/947/JHA

In relation to the FD 2008/947/JHA on mutual recognition of supervision of probation measures and alternative sanctions, the Contact Points specifically noted difficulties in executing measures due to the different interpretations of measures/sanctions under each Member State’s national law. For example, regarding health-related measures (treatment of a drug addict), for most Member States treatment as an out-patient falls under the scope of FD 2008/947/JHA, whereas others would apply the FD 2008/909/JHA. According to some Contact Points, execution is not possible for these types of measures. In response to a question on community service, 3/5 of the Contact Points replied that community service is an alternative sanction according to national law, whereas 1/3 replied that it is considered a probation measure and the rest stated that both options are available. The proposed solution is to consider adding information to the EJN website on what probation measures and alternative sanctions are available in each Member State.

Framework Decision 2009/829/JHA

In relation to the FD 2009/829/JHA on mutual recognition to decisions on supervision measures as an alternative to provisional detention, the Plenary meeting addressed several issues caused by the lack of knowledge about supervision measures within the Member States both as an issuing and as an executing Member State. It was noted that different rules on maximum penalty and pre-trial detention in the Member States posed a problem as well as adapting/leaving out measures without consulting the issuing state. Moreover, a number of participants experienced the issue of applying more severe supervision measures than foreseen by the issuing state along with confusion about the types of measures listed in Article 8.1. The proposed solution to these issues is to consider adding an overview of the different types of supervision measures available in each Member State to the EJN website.

For more information, visit the EJN website.