Council of Europe Treaty Series - Explanatory Reports

Article 13

This article lays down the rules governing the transit of persons passing from the requesting State to the requested State through the territory of another Contracting State.

Article 13 corresponds to Article 21 of the European Convention on Extradition.

Under the terms of paragraph 1 the Contracting State which has been asked to grant transit must do so. If this were not so, that State could render the application of the Convention, if not impossible, at least considerably more difficult by withholding its consent.

The State of transit is entitled to have its own authorities examine whether the conditions provided for under this Convention are fulfilled. It is thus not obliged to consent without question to a request for transit. This results from the right of that State to be supplied on its request with any document throwing light on the facts and the legal basis of the case. Such documents may, for instance, be a copy of the judgment and the written consent to enforcement by the requested State.

On granting transit, the authorities are under obligation to maintain the person under transfer in custody, the purpose, of course, of the transit being to facilitate enforcement; this presupposes control of his whereabouts on his passage from the authorities of the State imposing the sanction to the authorities of the State called upon to enforce that sanction.

Article 13 applies only to Contracting States. Transit through a State which has not become a party to the Convention, though a Member of the Council of Europe, cannot be claimed as a right by the States concerned by the enforcement procedure. It is, however, hoped that those member States of the Council of Europe which are unable to accept the Convention, will nevertheless give all possible assistance to the States which are able to do so. It is indeed in the interest of the European community as a whole that crime be counteracted as efficiently as possible by the unimpeded function, inter alia, of the several European Conventions to that effect.

Paragraph 1 does not exclude the transit of a national of the State of transit. Paragraph 2, however, entitles a State to refuse the transit of its nationals. It may also refuse if the offence for which the sanction was imposed was of a political or purely military character or if it was brought about by considerations, alien to a proper respect for human rights. An exception to this rule is provided for under Article 34 where the convicted person has himself taken the initiative to have his opposition against a judgment rendered in absentia heard in the State in which he is not present. His presence at the hearing of the opposition is vital to the functioning of the special system established in respect of such judgments and if the State of transit had the right to oppose transit it could render this system inoperative to the detriment of the convicted person in particular and to the administration of justice in general.

Paragraph 3 deals with transit by air. A prior request for transit is required only if the aircraft intends to land in the State of transit. Otherwise a simple notification suffices. If for some unexpected reason the aircraft lands in the State of transit, a formal request for transit shall immediately be made ; meanwhile that State may proceed to the arrest Of the person transferred, the notification already received being considered to imply a request for such arrest. In such cases the State of transit is also entitled to refuse transit on the grounds laid down in paragraph 2.

When a similar text was examined in the committee of experts drafting the Convention on Extradition, a full discussion took place on whether the transport of a person on board a ship or aircraft of the nationality of a State other than the requesting or requested State was to be considered as transit through the territory of that State. Several experts thought that it should be so considered. Others observed that the strict application of such a rule would raise difficulties, in particular when the ship called in at the ports of third States or merely went through their territorial waters. Would it in such cases be necessary to request such third States to allow transit ? The reply to this question would vary according to whether the ship in question belonged to a private person, a private company or a State. In view of these difficulties, the committee decided not to deal with this question in the Convention on Extradition, but to leave it to be settled in practice. The question was not further elucidated in the committee drafting the present Convention which decided to limit itself to a reference to the European Convention on Extradition.

In this Convention, unlike the European Convention on Extradition, the requesting State will often be the State in which the person concerned is present. It is for that State alone to make the necessary arrangements for transit and to settle all questions connected with it in agreement with the authorities of the State of transit. It shall inform the requested State as soon as the transit can be effected. It has fulfilled its obligations by the delivery of the person transferred either at the frontier or at the port of disembarkation of the ship or at the place of landing or the aircraft used to transport the person if, however, charge of the person is taken over by one requested State on the territory of the requesting State, with the intention of transporting him by air through a third country, the requested State alone is responsible for securing transit. The requesting State cannot therefore demand guarantees concerning the arrangements for the transit even if an aircraft of the requesting State is used.

The rule of speciality laid down in Article 9 applies to persons in transit, whether this transit takes place with their consent or not.

Article 14

This article, which governs the question of costs, provides that States shall not claim the refund of any expenses which may result from application of the Convention. The purpose is to eliminate a possible obstacle to the smooth functioning of the Convention by avoiding the procedural difficulties involved.

SECTION 2 – Requests for enforcement

Section 2 lays down the formal rules applicable to the proceedings at inter-State level. Most of these rules are common to all the Conventions drawn up by the Council of Europe in the field of crime problems.

Article 15

The requirement that requests shall be made in writing is generally recognised in other Conventions ⁽⁴⁾.

Article 15 lays down that communications shall be exchanged as a general rule between the Ministries of Justice of the States concerned, but allows for communications to be exchanged, by agreement, direct between the competent authorities.

" Communications" means both the decisions to take further action on the request and the decisions to enforce the judgment.

Article 16

This article lays down what documents shall accompany the request ⁽⁵⁾.

Whereas other Conventions contain a detailed enumeration of the documents required, it has been preferred to draft the present article in wider terms by using the words "all other necessary documents". Indeed, it was not considered possible to state in precise terms what documents might be needed for the determination of the sanction to he imposed by the requested State. On the other hand, it will normally not be difficult for the requesting State to foresee what documents should be sent in each particular case.

If the requested State wishes further information in the form of the whole or part of the criminal file, such a request shall be complied with. Article 16 must be read in connection with Article 17, according to which a request may be made for such additional information as is considered necessary. In the last resort it is for the requested State to judge what information must be considered necessary in each particular case.

It may be taken for granted that a judgment will always contain a description of the fact which is regarded as established. It should be recognised, however, that such description of fact is made on the basis of the legal criteria decisive in the sentencing State, and that it is quite possible that the requested State may apply other legal criteria. It may therefore be of decisive importance to the requested State, partly for the decision as to whether the offence is punishable at all under the law of that State (see Article 4), partly for the determination of the sanction (see Article 42), that in addition to those facts appearing from the description in the judgment, other elements of facts be brought to its attention.

The competent authority of the requesting State shall certify the sanction enforceable so as to ensure that this condition laid down in Article 3 (1) is fulfilled. No special form is necessary for this purpose.

Article 17

Some comments on this article ⁽⁶⁾ have been included under those for the preceding article.

Reference should also be made to the observations on Article 42.

Article 18

This article ⁽⁷⁾ requires the authorities of the requested State to keep the requesting State informed of the action it takes on the request for enforcement and of the termination of the enforcement.

No particular form has been prescribed for the notification to be made under this article.

Article 19

This article ⁽⁸⁾ contains the rules concerning the use of languages for the purposes of applying this Convention.

It should be stressed that the choice of one of the official languages of the Council of Europe under paragraph 2 will rest with the requested State.

Article 20

This article ⁽⁹⁾ lays down that documents require no formal legalisation (authentication) ; it is sufficient for the competent authority of the sending State to ensure that the document has been certified in accordance with the general rules in force in that State.

SECTION 3 –Judgments rendered in absentia and "ordonnances pénales"

The term "judgments rendered in absentia" is used in the Convention, in a non-technical sense, covering all judgments passed in the absence of the accused, that is to say without his having been heard. Such judgments form a special category of criminal judgments. There is no doubt that they do not afford the same safeguards as judgments pronounced after hearing the accused.

For this reason national systems of law have certain procedures designed to avoid the rendering of judgments in absentia, or at least to limit as far as possible the hardships they cause.

In examining the possibility of including judgments rendered in absentia in the general rules on the enforcement of foreign judgments, it must be borne in mind that it must be a general condition of any system for the enforcement of such judgments that enforcement brings about neither a diminution of the accused rights of defence nor a lowering of the quality of prosecution. justice must not be sacrificed to considerations of expediency or efficiency ; furthermore it can be maintained - with good reason - that prosecution is only effective if in accordance with exacting standards of justice.

From the foregoing it is apparent that a system for the enforcement of foreign judgments must not lead to the rendering of judgments in absentia and the enforcement of such judgments in cases where they are not generally considered adequate by national standards ; in particular, the accused must not be deprived of the practical possibility of avoiding a judgment in absentia or of having such a judgment converted at a later stage into a judgment passed following a hearing of his case.

In order to ascertain whether these. conditions are fulfilled it is necessary to examine :

From consideration of these questions it appears that some national procedures - although they apply formally to persons resident abroad -do not give them the same practical safeguards as are enjoyed by persons living in the territory of the State in question. This situation would be further aggravated if it became generally possible to enforce foreign judgments. A large number of safeguards provided in the extradition system would thereby lose their value. A national of a State would be obliged to go to the State of judgment in order to avoid the effect of a judgment rendered in absentia which was enforceable there ; this would be tantamount to an obligation to extradite himself. Moreover, a person without ample financial means would be deprived of any practical possibility of defending himself in criminal proceedings conducted at a great distance from his own State of residence.

An additional difficulty lies in the fact that there are profound differences between the legal systems of the member States of the Council of Europe with regard to judgments in absentia. There are wide variations both in the extent to which such judgments are permitted and in the remedies available against them.

The conclusion must therefore be that it is not possible to place judgments passed in absentia on the same footing as other judgments in any general rules on the enforcement of foreign judgments. On the other hand, it must be remembered that many of the judgments which cannot be enforced in the countries where they were passed - in which case enforcement elsewhere is indicated - are judgments rendered in absentia. Any rules for the enforcement of foreign judgments which did not cover judgments rendered in absentia would lose most of their practical value. The only way out of this dilemma is to include such judgments in the general rules and at the same time to set up a special system among the Contracting Parties granting persons sentenced in absentia the right to be heard before the judgment is enforced.

Article 21

Where the Convention makes no special provision for judgments in absentia within the meaning of this article, their enforcement is subject to the same rules as those governing the enforcement of judgments rendered after a hearing of the accused. These rules differ according to the nature of the sanction imposed in the judgment (imprisonment, fine and confiscation, disqualification).

It appears from paragraph 1 that a distinction is made between judgments rendered in absentia and ordonnances pénales. Generally speaking, the ordonnance pénale is a decision rendered by application of a simplified procedure without a hearing and solely on the basis of the file, the accused person having had the possibility to defend himself by making a statement to the police. They are often issued by a judicial authority but not necessarily so. For example, in Denmark, the Federal Republic of Germany (in respect of Bussgeldbescheid), Italy (in respect of decisions rendered in accordance with Act No. 317 of 3 March 1967), Norway, Sweden, Turkey and certain Swiss cantons, the competence is vested in authorities which would not normally be described as "judicial", although appeal or referral to a judicial authority is possible. Appendix III to the Convention gives the list of ordonnances pénales in the various member States of the Council of Europe.

The judgments rendered in absentia are judgments rendered after a hearing in the absence of the accused person. The definition thus made in paragraph 2 is wider than the sense given to this term in many national legal systems. Many codes of criminal procedure permit indeed the accused, under certain conditions, to be represented by counsel. Moreover, it is sometimes open to courts to exempt an accused person from his duty to appear at the hearing if he so requests invoking illness or the distance between his residence and the seat of the court ; the court will then refer to the statement given by him prior to the trial before a judge at the place of his residence. But even in the cases where the accused person was able to defend himself through counsel at the hearing or made a statement before a judge prior to the trial and when he was in the latter case at his request exempted from his duty to appear, the judgment pronounced as a result of the trial cannot be considered as having been rendered after a hearing of the accused. The definition emphasises the need for a personal appearance by the accused person at the hearing of his case.

Paragraph 3 of this article states two exceptions to the general rule. It should be made clear that letter (a) deals with the application to re-open a judgment on the national level. If it is established that the accused has at national level made an opposition or lodged an appeal against the decision of the court of first instance and he has therefore had the possibility to bring about a hearing in his presence but that he did not appear, there is no need to provide any special remedy. In such cases, therefore, a judgment rendered in absentia may be treated as one given after a hearing of the accused. Under Article 29 this also applies to judgments in absentia or an ordonnance pénale against which the convicted person has not lodged an opposition as provided for in the Convention. Hence the reference to that article. The transformation of a judgment rendered in absentia to a decision rendered after a hearing is admitted only once.

The expression "sentencing State" in letter (a) of paragraph 3 will normally refer to the requesting State, but in respect of Article 26 it refers to the requested State which has replaced the judgment rendered in absentia by its own decision.

Article 22

Under Article 3, a criminal judgment can as a rule only be enforced in another State if it is enforceable in the State in which it was pronounced. In the case of judgments rendered in absentia, proceedings with a view to enforcement in another State open with personal notification of the judgment in the requested State. Thus it is not necessary to require the judgment to have become enforceable in the requesting State, for that would go so far as to make enforcement impossible in numerous cases. This article therefore provides that a request for notification and possible enforcement of a judgment rendered in absentia may be made and accepted as soon as judgment is rendered.

Ordonnances pénales shall be dealt with in the same way.

If the accused has already made an opposition or appeal the request for enforcement is no longer possible. The expression used in this article "appeal or opposition" refers to action taken in the requesting State in accordance with the legislation of that State.

Article 23

When a State receives a request under the provisions of the preceding article it considers first whether in principle it should accept the request. The real proceedings for enforcement of a judgment rendered in absentia will not begin in that State until it has answered the question in the affirmative. The acceptance, which it is recalled implies examination of the conditions laid down in Articles 4-6, may be decided by an administrative authority. The requested State then opens the proceedings by notifying the convicted person himself of the judgment. This notification must be given by personal service even if he has already in another way received notice of the judgment.

The notification required under this article is also necessary in order to determine the moment in time from which the person sentenced has recourse to the remedy against judgment in absentia allowed to him under the Convention.

In this context the second paragraph provides that at the time of notification the person sentenced shall be informed of the request for enforcement and of the remedy open to him. The requested State must explain to the sentenced person the consequences of his lodging an opposition or of his failure to do so, and inform him that he will in any event be heard by the court on the question of the transformation of the sanction. It shall in general give him all useful information on his legal position during the exequatur proceedings. It is also appropriate to give the sentenced person the essential elements of the judgment which is to be enforced in his own language.

Paragraph (3) provides that the authorities of the requesting State shall be informed of the notification.

Article 24

The notification dealt with in Article 23 has the effect of substituting the system laid down in the Convention for the remedies available against the judgment according to national rules. The convicted person may avail himself of the opposition, as provided in the Convention, only at the sacrifice of the remedies that might be open to him under national law. An opposition is admissible if the conditions laid down in the Convention are complied with.

The fact that national remedies are ruled out when enforcement of a judgment rendered in absentia is requested does not prevent exercise of national remedies against the judgment rendered following an opposition. It is evident that the article does not apply to the judgments covered by Article 21 (3) which shall be treated as judgments rendered after a hearing of the accused. Any national remedies available against them remain open, and enforcement of such judgments cannot be requested before they have in fact become enforceable.

The opposition need not necessarily contain reasons but should mention the decision against which it was directed.

A convicted person may, at his own discretion, have his opposition dealt with by the courts of either the requesting or the requested State. In each case, the opposition must be lodged with the competent authority in the requested State. If the matter is settled in that State, the competent authority must notify the fact without delay to the authority of the State which requested enforcement.

The competent authority of the requested State which has received the opposition transmits it after a preliminary examination to the court which, by the choice - or lack of choice - of the convicted person, is competent to deal with the case. This court decides on the admissibility of the opposition.

The object of stipulating 30 days as the time limit for making the opposition was to give the person concerned the opportunity to obtain legal opinion both in his State of residence and in the requesting State. The period is calculated in accordance with the law of the requested State. If the person sentenced fails to observe this time limit, the national legislation of re-instatement of the requested State shall be applicable (see Article 30).

Article 25

A convicted person who wishes his opposition to be dealt with in the requesting State must be summoned at least 21 days beforehand to appear at the hearing arranged for reconsideration of the case. The summons must be served personally.

As a reduction of the period of 21 days may be to the convicted person's benefit, for instance if he has been remanded in custody. the article makes provision for such reduction subject to his consent.

Judgment on the opposition in the requesting State must be given according to its own rules of procedure : its legislation on reinstatement shall apply in case of failure to appear at the hearing (Article 30).

It is recalled that the opposition procedure is a new procedure instituted by this Convention. National law might not therefore provide any special rules on this matter and competence will in that case be given to the authority which would normally be competent to deal with the case.

If the convicted person does not appear after making the opposition (or is not represented, in cases where the law of the requesting State so allows), or if the court in the requesting State declares the opposition inadmissible (as not introduced in complete observation of rules and regulations), the competent authority in the requested State must be informed, and the judgment rendered in absentia may be enforced as though it had been passed after a hearing of the accused. One of the procedures mentioned in Section 5 will then be followed, according to the nature of the sanction. The requesting State may merely inform the requested State that it maintains its original request.

If the opposition is admitted, a new judgment must be given, and the one covered by the original request for enforcement is thereupon annulled. It follows that the request is also annulled. In that case, the requesting State must consider whether it is desirable to request that the new judgment is enforced. Enforcement is of course, if requested, subject to the procedure for judgments passed after a hearing of the accused.

Article 26

If a decision is to be given in the requested State on an opposition, the convicted person is summoned to appear at a hearing. The form for the summons shall be as laid down in that State's law. The time limit corresponds to that provided for under Article 25.

If the convicted person does not appear (or is not represented, in cases in which the law of the requested State so allows), or if the opposition is declared inadmissible, enforcement is subject to the procedure for judgments rendered after a hearing of the accused.

If the person sentenced appears or is represented, and the opposition is declared admissible, the case is reheard in the requested State. It is not necessary to take an express decision on admissibility : the rendering of a decision on the opposition is implicit acceptance of admissibility. It is expressly stated that the court of the requested State shall not be entitled to examine the question of a possible preclusion of the proceedings by reason of lapse of time according to the law of the requested State. This question has been definitively settled during the proceedings in the requesting State prior to the making of the request for enforcement.

The act on which the judgment in absentia is based is heard in toto in the requested State, according to the rules applicable to a similar act committed in that State and on the basis of all the circumstances that give rise to the initial trial. The court may apply only its own law.

The preceding provisions may not be interpreted as prohibiting reformatio in pejus provided that this possibility is allowed under the law of the requested State.

It should be, however, noted that the principle of double incrimination (Article 4) is valid also in the cases dealt with under Article 26 (3) where the opposition procedure takes place in the requested State. If it appears, for instance, that the act committed is not punishable under the law of the requesting State, the person concerned must be acquitted, even if the act would have been an offence under the law of the requested State.

Paragraph 4 provides that any step with a view to prosecution or a preliminary enquiry taken in the course of the proceedings in the requesting State shall have the same validity in the requested State as if it had been taken by the authorities of that State. However the text of the article adds that this assimilation cannot have the effect of giving such steps a greater evidential weight in the requested State than they had in the requesting State.

Article 27

The national provisions on legal assistance are also to be applied in the cases referred to in this article. The assistance is granted by the competent authorities of the requested State when opposition proceedings are being brought in this State. It must also be granted if national law so permits for the purpose of judging the desirability of lodging an opposition, even if the person sentenced envisages having the opposition examined in the requesting State.

If the convicted person chooses in pursuance of Article 24, paragraph 1, second sentence, to have the opposition heard in that State, the legal assistance during the opposition proceedings must be granted by its competent authorities in accordance with its law.

This article does not exclude partial payment of fees.

Article 28

The proceedings carried out in the requested State on the basis of an opposition by the convicted person are in every respect national proceedings and solely subject to the national law. The judgment in absentia or the ordonnance pénale pronounced in the requesting State is rendered null and void as a result of the enforceable decision pronounced by the judge in the requested State. The enforcement of the judgment rendered in the requested State belongs exclusively to that State. The requesting State has no possibility of influencing the enforcement procedure. In particular, it is precluded from exercising any right of pardon or from examining any request for a reconsideration of the trial which originally took place before its courts.

Article 29

Where there has been no appeal against a judgment passed in absentia or an ordonnance pénale, they must be enforced, once the time limit for submitting an opposition has expired, as if they had been passed after a hearing of the accused. This article refers to the opposition at national level and to that instituted by this Convention.

Article 30

This article renders national legislation on reinstatement applicable in cases where a person, for reasons beyond his control, has failed to observe the time limits laid down in Section 3 or to appear at the hearing of his opposition.

SECTION 4 – Provisional measures

All codes of criminal procedure include provisional measures designed to prevent the accused or convicted person from evading the consequences of the judgment. Similar provisions also exist in extradition law. A request for provisional arrest may precede the request for extradition. An accused person whose extradition has been requested may be detained until a decision has been taken on the request. It was essential to include a similar provision in this Convention.

In addition to measures to detain convicted persons it is necessary to provide for the detention of goods liable to confiscation. Seizure of goods is a counterpart to provisional detention with a view to enforcement of a prison sentence.

Article 31

This article allows for the arrest of the sentenced person if that step is necessary to ensure enforcement in the requested State. In other words the arrest is permitted as it is considered in this situation as a preliminary to a transfer only and not as part of the enforcement.

This article does not therefore derogate from the general principle contained in Article 11 which provides that after requesting enforcement, the sentencing State may not itself begin the enforcement of the sanction.

It is understood that the requesting State can under the present article arrest the person concerned only if objective reasons so require.

After examination of the content of Article 3 of the fourth Protocol to the Convention on Human Rights, it was concluded that the transfer of a person from his State of nationality to another State for the purpose of enforcement did not constitute expulsion as understood in that Article.

Article 32

This article deals with the situations in which a foreign judgment may entail remand in custody. There are two such situations :

The first occurs when a request for enforcement, accompanied by the related documents, is already in the possession of the requested State. Paragraph 1 deals with this.

The second arises when the State in which judgment was delivered has decided to request enforcement but has not yet completed all the necessary formalities. This is dealt with in paragraph 2.

Article 32 must be seen in connection with Article 3. Whereas Article 3 provides a competence in the requested State to enforce a foreign judgment, Article 32 creates a competence in the requested State to arrest the person concerned.

If the request for enforcement has already reached its destination, the requested State may on its own initiative arrest the person sentenced. The situation is somewhat different where all the formalities necessary to the request for enforcement have not yet been fulfilled. The requested State can then arrest only at the express request of the requesting State, without, however, being obliged to act on such a request ; it has entire discretion to judge whether such action is desirable.

Paragraph 2 is inspired by Article 16 (2) of the European Convention on Extradition. It states in detail the information which should be contained in the request for provisional arrest.

Article 33

Provisional detention under Article 32 is governed solely by the law of the requested State, which may terminate it at any time. This freedom is restricted in the two cases mentioned in paragraph 2. The requested State is obliged to terminate detention:

The first rule is based on the consideration that any prolongation of the provisional arrest is unnecessary and even unjustified as the sanction has in fact already been enforced. The second rule underlines the provisional nature of the arrest where the requesting State has made only its request for arrest and not yet its request for enforcement. It obliges that State to clarify its intentions with regard to enforcement as soon as possible. If the request for enforcement arrives before the eighteenth day of the arrest, the legal basis for the detention changes and is no longer the second paragraph of Article 32, but the first paragraph of that article. The requested State is therefore entitled to prolong detention if authorised under its own law.

Moreover, release shall not prejudice re-arrest, so soon as the necessary conditions are fulfilled.

Article 34

If the person sentenced in absentia wishes to reopen the proceedings before the courts of the requesting State (see Article 25) and he is deprived of his liberty in the requested State, he shall be transferred to the territory of the requesting State for the purpose of the hearing in these proceedings. The sole aim of this transfer is to ensure the presence of that person at the hearing.

If the proceedings no longer necessitate his presence the sentenced person must be released or returned to the requested State. The transfer does not confer any right to enforce a sentence of imprisonment, not even of the sanction which may have been imposed as a result of the rehearing of the case. Enforcement in the requesting State can only take place if the requested State agrees (Article 11 (2) (c)).

The rules concerning transit through a third State are laid down in Article 13.

Article 35

This article corresponds to Article 12 (2) and (3) of the European Convention on Mutual Assistance in Criminal

Matters. It renders applicable a rule of speciality to persons summoned to appear before a court in the requesting State (see Article 9).

Article 36

When enforcement of a confiscation is requested, the possibility must be provided of taking immediate steps to detain the goods, so that the sanction can in fact be enforced. The most suitable measure is seizure. This article enables the requested State to effect such seizure if it considers this desirable and if its legislation provides for seizure in case of similar offences. Such seizure is governed solely by the law of the requested State.

SECTION 5 – Enforcement of sanctions

The Convention is based on the notion that it is for each Contracting State to establish an exequatur procedure for European criminal judgments similar to that applicable to civil judgments. It therefore confines itself to laying down three principles considered necessary to secure the degree of uniformity which is essential for its application and to determining the material conditions to be fulfilled for the grant of exequatur. The procedural principles in question are : intervention by a court of the requested State, or an administrative authority if the sanction to be enforced is only a fine or a confiscation ; application of the convicted person's right to be heard in exequatur proceedings ; and the provision of a remedy against decisions taken in the course of such proceedings. The other provisions in this Section confer on the court the right to adapt the sanction laid down in the foreign judgment to its own legal system and stipulate limits and conditions for such adaptation.

(a) General clauses

Article 37

Article 37 requires, as a main rule, a decision by a court in the requested State for any enforcement of a sanction pronounced in another Contracting State. This principle is justified by the nature of the material conditions for the grant of exequatur and by the important fact that it is a matter of applying measures which affect individual liberty.

The second sentence contains an exception to this rule by allowing the Contracting State to use a more expedient administrative system in respect of fines and confiscations only. It is a condition that any decision by such administrative authority may be reviewed by a court. If a judgment provides for a fine or confiscation and deprivation of liberty, it must consequently be examined by a court and not by an administrative authority.

Article 38

This article lays down that the requested State is required to bring a case before a court or before an administrative authority, as the case may be, without specifying the authority responsible for deciding in this matter. This question has been left for national law to decide. The competent authorities, which under national law have been granted the necessary competence, have the right to examine if the conditions required for the enforcement of a foreign decision are complied with. If they find that these conditions have not been fulfilled, for instance, because the act on which the decision is based is considered to be of a political nature (see Article 6 sub-paragraph (b)), they can reject it without having recourse to a judge. These authorities may also avail themselves of Article 17 and ask for additional information, if the information given is considered inadequate. If, having examined the file, the authorities of the requested State are of the opinion that the request should be complied with, they are obliged to transmit the request to a judge or, in the case of a fine or a confiscation, to the appropriate authority, for decision. This transmission of the request to a judge or administrative authority does not imply a recognition of the decision, nor an obligation on the part of the competent authorities to enforce the decision. Their decision that the request should be complied with relates solely to the opening of exequatur proceedings by the transmission of the decision and the file to the judge or administrative authority. The further examination of the case is exclusively a matter for the judge or administrative authority.

Article 39

Paragraph 1 of this article gives the sentenced person the right to be heard during the exequatur proceedings if these take place before a court. No reference is made to the authorities empowered under Article 37 to take decisions on the enforcement of fines or confiscations in the article.

The sentenced person may be heard in person or by letters rogatory. He may decide himself that he wishes to be personally present at the hearing and the court is bound to accede to such a wish. If no such wish is expressed the court may choose the method to be adopted.

This absolute rule applies only to decisions on the actual enforcement of the sanction. It does not apply to decisions concerning the acceptance of the request where such decisions are taken on a request made directly to the court by the competent authority in the requesting State in application of an agreement under Article 15 (1) of this Convention. These latter decisions may be taken in the absence of the sentenced person if he is detained in the requesting State.

The question of the substitution of the sanction may, however. not be decided in his absence but shall be adjourned until he has been transferred to the requested State.

Article 40

This article lays down the legal conditions on which the court or authority must satisfy itself before it can order enforcement of the judgment.

Sub-paragraph (a) must be interpreted in the light of the definition given in Article 1 (a). Only sanctions imposed in a judgment passed in the course of criminal proceedings by a court in another Contracting State, and enforceable under the law of that State, can be enforced. An ordonnance pénale must be considered equivalent in certain circumstances to a judgment passed after a hearing of the accused. Insofar as such ordonnances pénales and assimilated decisions (see Appendix III) are deemed to have been given after a hearing of the accused in accordance with Section 3, the sanctions imposed under them therefore comply with the conditions stated in subparagraph (a).

Sub-paragraph (b) covers the conditions of dual criminal liability in concreto and the punishability of the offender, (see commentary on Article 4).

Sub-paragraph (c) is concerned with the compatibility of enforcement of the judgment in question with the fundamental principles of the legal system of the requested State including statutory limitation. (See commentary on Article 6 (a)). The use of the word "should" refers to the objective evaluation by the court in the requested State of the conditions for enforcement.

As a result of the reference in Article 7 to Section 1 of Part 111 of the Convention, the condition in sub-paragraph (d) means that there should be no other European criminal judgment with the effect of res judicata as recognised in Articles 53-55 of the Convention.

Sub-paragraph (e) applies only if the judgment, the enforcement of which is requested, was originally rendered in absentia or by ordonnance pénale. The judgment must then be deemed to have been passed after a hearing of the accused, in accordance with Articles 21 (2), 25 (2), 26 (2) or 29 of the Convention.

Finally, other conditions may be verified by the court if the law of the requested State so provides.

Article 41

This article provides that the exequatur decision taken by the court or by the administrative authority must allow for appeal. The details relating to this legal remedy are a matter for national law. If the enforcement of a fine or a confiscation has been decided first by an administrative authority, there is in accordance with Article 37, second sentence, a right of appeal to a court ; the decision by the court is, in its turn, also appealable under the provisions of Article 41.

Article 42

This article lays down that the court or the administrative authority of the requested State is bound by the facts.

The court has therefore no freedom to evaluate differently the "factual" aspect on which the judgment of the requesting State is based. The findings in this judgment may be explicit or implicit. They may relate to "objective" or 11 subjective" facts. "Objective" facts relate to the commission of the act and its results. "Subjective" facts relate to design, premeditation, the "voluntary" nature of an act and the convicted person's mental state etc.

There is no problem with regard to the facts explicitly found in the judgment. The court or authority in the requested State knows where it stands. More difficult is the case of facts found by implication in the judgment, for instance the absence of justifying or exonerating facts. Such findings bind the court or authority in the requested State insofar as it can deduce them from the judgment.

If there is a difference between the legal systems to the effect that a certain fact constitutes a legitimate defence in the requested but not in the requesting State, the requested State must refuse enforcement if it finds that such a fact was present.

Thus it may be necessary for the court or authority in the requested State to conduct a supplementary investigation into he facts, not determined by the judgment of the requesting State. However, the court of the requested State is not allowed to proceed to the hearing of new evidence in respect of facts contained in the judgment of the requesting State. This need will arrive if under the law of the requested State certain facts must be examined which it was not necessary to take into account under the law of the requested State. It follows from the above that the court of the requested State cannot make any independent assessment of evidence bearing upon the guilt of the person convicted and contained in the judgment of the requesting State. However, in accordance with generally recognised principles of law, the request may be dismissed if the offence cannot with certainty be regarded as punishable under the law of the requested State.

When a court or administrative authority in the requested State examines a request for enforcement of a criminal judgment it must take account of its various aspects : one of these is the condition of dual criminal liability in concreto (Article 4 (M).

The criminal liability of the act according to the law of the requesting State must be considered beyond dispute as the examination relates to an enforce-able decision by a court of that State. The examination of the question of dual criminal liability by the requested State concerns only the verification that the convicted person could have been convicted also by the courts of the requested State on the facts underlying the decision of the requesting State if a similar act had been committed in the territory of that requested State.

Dual liability implies therefore a dual legal qualification of the act ; first, by the court of the requesting State, then, by the court of the requested State. Each court qualifies the act legally according to its own law. Although bound by the findings of the facts, the court or administrative authority of the requested State is free to qualify these legally. There are differences between the qualifications used in the various States. What is theft in one country may be breach of trust in a second, while in a third it may not be punishable.

As already stated in respect of Article 4, the penal codes of member States differ on the grounds justifying the act (such as legitimate defence and consent by the victim) grounds for exemption from responsibility (such as mental deficiency) and grounds for non-infliction of punishment (i.e. relationship to the injured party in certain offences). The judge or authority in the requested State must therefore examine in each case whether the law of the requesting State recognises the same grounds justifying the act and the same grounds for exemption from responsibility and for non-infliction of punishment as the law of the requested State. It is consequently according to its own legal system that the court judges all the facts underlying the foreign judgment in respect of the unlawfulness of the act and the punishability of the offender as well as of the determination of the penalty. It is bound on only two points : firstly, it must accept that the act is contrary to criminal law of the requesting State, and the offender punishable under that law and, secondly, it cannot, when fixing the sanction, make the penal situation of the sentenced person harsher than that laid down in the judgment whose enforcement is requested (Article 44 (2)).

(b) Clauses relating specifically to enforcement on sanctions involving deprivation of liberty

Article 43

This article provides for the transfer of the person whose sentence is to be enforced from the requesting State to the requested State. If transit through a third State is necessary, Article 13 applies. The phrase "unless the law of that State otherwise provides" refers, for instance, to the situation where the sentenced person is discovered, after the request for enforcement has been made, to be a national of the requesting State and where the Constitution of that State does not permit the extradition of nationals. It also refers to the situation where the person in question has, according to the law of the requesting State, the right to request an examination in that State of the conditions for the enforcement.

Article 44

Paragraphs 1 and 2

This article which is of capital importance for the smooth and efficient functioning of the Convention gives the requested State the right to adapt the sanction imposed in the requesting State to its own legal system. It should be read in conjunction with Article 42. Whereas the requested State is bound as to the facts on which the European criminal judgment is based, it is as a main rule free to replace the sanction imposed in the foreign judgment by a sanction known in its own law.

It is an attempt to solve the extremely difficult and delicate problems raised by the considerable diversity of penal systems between the States of the Council of Europe. The law in some of those States is based on a threefold division of penalties entailing deprivation of freedom (penal servitude, imprisonment and detention). Other States have only a twofold division ; still other States have only one. While enforcement of a particular judgment in a State which has the same division of sanctions as the sentencing State usually raises no difficulties of adaptation, this is not so where the two States concerned have different systems.

Moreover, the legal framework in which a sanction may be imposed for a particular offence varies appreciably from one State to another ; this is also true of the legal minimum and maximum length for a particular kind of sanction. It follows that a sanction imposed in the requesting State may, for example :

Lastly, some laws attach to certain judgments automatic effects which are unknown or merely optional in the legal systems of other States.

When one of these cases occurs, the question of adaptation arises first as a matter of admissibility in principle and subsequently, if this is accepted, in connection with the extent of such adaptation and the criterion applicable to it.

Adaptation was considered admissible. This applies to the nature of the sanction as well as to its duration. Adaptations may take many forms ; the Convention only refers to the principle embodied in an express stipulation (paragraph 2) that the penal situation of the person sentenced should not be aggravated. This prohibition does not refer solely to prolongation of the restrictions placed on his freedom or to application of a harsher kind of sanction than that ordered in the judgment to be enforced. Such aggravation would also occur if enforcement of part of a composite sanction were to be deferred because there was no dual liability in respect of part of the facts underlying the judgment whose enforcement was requested, thus making enforcement by the requested State impossible. On the other hand, it would not be contrary to this principle for an administrative authority to attach a disqualification or forfeiture to the sanction, whether or not they were inflicted in the judgment to be enforced.

Another rule is that the court in the requested State must abide within the limits of its own law as far as enforcement is concerned, This means that the court cannot enforce a sanction which exceeds the maximum laid down in its own law for the offence in question (see (a) above). On the other hand it is allowed to reduce the sanction in the light of any circumstances which authorise it to do so under its own law. It is also expressly allowed not to respect a minimum laid down in its own law if the sanction imposed abroad is less than that minimum (see (b) above). The court is also allowed to suspend the sanction. In lieu of a sanction imposed in the foreign judgment, some other measure provided by the law of the requested State may be enforced (see (c) and (d) above).

The legal situation in respect of changes of the nature and of the duration of the sanction was examined in detail and in the light of these principles.

1. As to the nature of the sanction the following questions were discussed :

On the first and the third questions ((a) and (c) above) it was agreed that normally paragraph 2 would prevent such substitution, but account should be taken of the particular circumstances of each case. The court of the requested State should appreciate whether the rule in paragraph 2 would be complied with. It should not be bound by any objective criteria but should be given the liberty necessary to appreciate the practical and legal consequences of the adaptation of the sanction.

On the second question ((b) above) an affirmative answer was given. The requested State's right to impose a milder sanction than that imposed in the requesting State corresponds to developments in modem criminal law. It is undoubtedly important to support in the present Convention trends to individualise sanctions and take account not only of the convicted person's personality and situation, but also of the practice prevailing and the criminal policy followed in the requested State. The use of probation for example, in that State should thus not be excluded on the sole ground that the requesting State does not use probation.

The same or similar considerations led to a positive reply to the fourth question ((d) above).

2. On the duration of the sanction, the following questions were discussed :

An affirmative answer was given to the first question ((a) above) and the third sentence of the first paragraph reflects this opinion.

On the second question it was agreed that the court in the requested State should be bound by the maximum laid down in the law of that State (see, however, paragraph 4).

It was agreed that the court was allowed to take into consideration extenuating circumstances admitted under its own system, though unknown in the requesting State. Thus, the duration of the sanction could be accordingly diminished. In addition, the court had the right to diminish the duration in accordance with court practice in the requested State.

It should be made clear that an adaptation of sanction does not affect the validity of the original judgment. The requesting State does not have the right to enforce the original sanction (for example a "reclusion") even respecting the sanction substituted (an imprisonment) and enforced in the requested State. The substitution by a sanction of a different nature or duration does not imply any modification of the judgment but should be considered as part of the ordinary and normal enforcement of the sanction. It does not differ from the frequent changes made during the national enforcement with a view to improved rehabilitation of the convicted person.

Paragraph 3

Paragraph 3 creates an obligation for any part of the sanction served subsequent to the judgment in the same case to be deducted from the sanction imposed in the requested State, whether it is the part of the sanction served in the requesting State or provisional detention in accordance with Section 4. Moreover, deduction must be made of the period of remand in custody served by the convicted person prior to conviction in the requesting State if this period has been deducted by the judgment or any other decision by a court in the requesting State or should have been deducted according to the law of that State. It is clear that the deduction must also be made if the law of the requested State so requires.

Paragraph 4

This paragraph opens the possibility for Contracting States, by means of a declaration deposited with the Secretary General of the Council of Europe, to enforce a sanction of the duration longer than the maximum laid down in their national legislation. This possibility is, however, conditional on the existence of provisions permitting the imposition of sanctions of a more severe nature. To give an example, a State, which provides a sanction of "reclusion" of up to ten years for a certain offence, is permitted to enforce a foreign sanction of four years' imprisonment, even if according to its law the maximum imprisonment is two years.

The sanction imposed may be served in a penal establishment intended for the enforcement of sanctions of another nature.

(e) Clauses relating specifically to enforcement of fines and confiscations

Article 45

This article is the counterpart to Article 44 but adapted to cover the enforcement of fines and confiscations. Many of the questions arising in respect of Article 45 have already been dealt with under Article 44.

Article 45 authorises the requested State to adapt pecuniary sanctions. Normally this will be done by a conversion of the amount from the currency of the requesting State to that of the requested State at the exchange rate prevailing at the moment the decision is taken. When adapting it the requested

State shall be bound by the maximum laid down in its own law for the same offence. As it was realised that several member States do not provide a maximum sum for pecuniary sanctions in their legislations, it was recognised that, in this situation, the maximum limit should be that fixed by practice.

In accordance with paragraph 2, such a maximum need not be respected if the law of the requested State for the same offence provides other sanctions of a more severe nature. In that case the requested State may even enforce a fine, though it is not provided for at all in its own law.

The present article applies to fines and confiscations of sums of money (for other confiscations, see Article 46) whether imposed by a European criminal judgment or an ordonnance pénale.

A "more severe" sanction under paragraph 2 would normally mean a sanction involving deprivation of liberty. It might also mean, for instance, the withdrawal of a driving licence for a professional driver or the loss of a right to exercise a profession.

In accordance with paragraph 3, the sentenced person shall be entitled to benefit in the requested State from any payment facilities granted in the requesting State. This is a natural consequence of the principle laid down in Article 44 (2) that his penal situation shall not be aggravated.

Article 46

This article renders the main principles of Article 45 applicable to confiscations of specific objects.

Article 47

The first paragraph of this article governs the requested State's right, subject to the rights of third parties, to the proceeds of enforcement of the sanction mentioned in Subsection (c). This is the counterpart of Article 14 and follows logically from the desire to avoid, in the interests of economy in relations between the Contracting States, all book-keeping transactions.

Paragraph 2 provides that certain property confiscated may be remitted to the requesting State if it so requires. This relates to property which may be of historical, criminological or other special interest.

Article 48

This article deals with the conversion of fines which cannot be exacted. The words "may impose" make it clear that this conversion is optional. It is in any event conditional upon the legislation of both States concerned providing such possibility and on the requesting State not excluding the conversion in its request for enforcement.

The detailed rules are given in sub-paragraphs (a) and (b). They are derived from the provisions of Article 44 concerning the adaptation of sanction. The court of the requested State shall be bound by its own law in converting the fine. Nevertheless it may disregard the minimum limit for the sanctions in question if the sanction imposed in the requesting State is lower than that limit. The penal situation of the person sentenced shall not be aggravated by the conversion.

(d) Clauses relating specifically to enforcement of disqualification

Article 49

This article states the principle that a disqualification, if it is to be enforced in another Contracting State, must be known to the law of that State, a principle which might be described as "double recognition".

It is recalled that the disqualifications dealt with in this sub-section are imposed by the judgment itself. Disqualifications derived from the judgment by other means are the subject of Articles 56-57. Sub-section (d) is applicable only when a request for enforcement has been made.

Paragraph 1 requires the double recognition to be in concreto, that is to say the disqualification must be prescribed for the same offence by the law of the State of enforcement.

The second paragraph makes clear that a disqualification shall not be enforced in another Contracting State unless the court in that State, having regard to all the circumstances of the case, in particular the interest of the community and of the sentenced person, considers it expedient.

If the foreign judgment provides for a sanction involving deprivation of liberty and for a disqualification, the requested State may accept enforcement of the sanction but refuse enforcement of the disqualification. It follows from Article 7, sub-paragraph (m).

If the judge is not willing to execute the foreign disqualifications, Part III of the present Convention may be applied.

This article is not intended to interfere with national systems providing for the automatic and obligatory enforcement of foreign disqualifications.

Article 50

This article deals with any adaptation, which may be necessary, of disqualifications to the legislation of the State of enforcement. It requires that the adaptation shall always be made by a judge.

The adaptation may be seen from two points of view: duration and rights forfeited. As to duration, the Convention adopted a system according to which the disqualification shall be enforced for a period falling within the limits prescribed by the law of the State of enforcement. The judge who, in accordance with Article 44 (2) may not aggravate the sanction, cannot extend the duration beyond the limits laid down in the European criminal judgment. As to rights forfeited, adaptation may consist in restricting forfeiture to a part of the rights in respect of which it was imposed.

Article 51

This article makes disqualification an exception to the rule that acceptance of a request for enforcement by the requested State shall debar the requesting State from exercising its right of enforcement (Article 11).

Enforcement of a disqualification differs from enforcement of a prison sentence or a fine. Whereas these latter sanctions are enforced once and for all by a positive act, disqualifications call for no positive act and are enforced separately for the whole of their duration. Hence enforcement of a disqualification in another Contracting State should not prevent its enforcement in the State where the sentence was passed.

Article 52

This article relates to reinstatement. Obviously the State in which sentence was passed retains the competence to grant reinstatement. Since disqualifications must be enforced, according to the law of the State of enforcement, it is however logical also for that State to be able to grant reinstatement in application of its own law.

It results from the words "in accordance with a decision taken in application of this Section" that the reinstatement granted by the State of enforcement shall not be effective in the State where the sentence was passed.

PART III – International effects of European criminal judgments

SECTION 1 – Ne bis in idem

General remarks

The term ne bis in idem, which is generally used in legal literature and is used also in other European Conventions, means that a person who has once been the subject of a final judgment in a criminal case cannot be prosecuted again on the basis of the same fact.

Insofar as this principle is concerned, a distinction has to he made between its application at the national level and its application at the international level.

At the national level the principle is generally recognised in the laws of member States, for a final judgment delivered in a particular State has the effect of debarring the authorities of that State from taking once more proceedings against the same person on the basis of the same body of facts.

At the international level, on the other hand, the principle of ne bis in idem is not generally recognised. By way of example, no State in which a punishable act has been committed is debarred from prosecuting the offence only because the same offence has already been prosecuted in another State.

It is not difficult to understand the considerations underlying this legal position. Traditionally, the right to prosecute offences has been considered part of sovereignty. To this must be added, however, that the State of the offence more often than not will be the State in which the commission of the act by the accused can best be proved ; it would therefore seem unjustified for that State normally to be bound by decisions delivered in other States, where the absence of certain elements of evidence may have led to acquittal or the imposition of less severe penalties.

Against this view may be that which considers that the offender will be subjected to a manifestly inequitable treatment if he is again prosecuted and may even be subjected to the enforcement of several judgments for the same offence.

It might be argued that the need for a reasonable protection of the offender might be dealt with through a protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was deemed preferable, however, to include the provisions in a convention regulating the co-operation between the States in penal matters.

Two reasons justify this solution.

The recognition of a foreign judgment presupposes a certain degree of confidence in foreign justice. Such confidence exists among the member States of the Council of Europe but is, at the present time, hardly equally apparent in wider international relations between States. For this reason it is urged that it is possible to give more substance to the principle of ne bis in idem at the European level than at the wider international level. But the insertion of this principle in the European Convention for the Protection of Human Rights and Fundamental Freedoms would have an effect erga omnes, and would thereby be liable to be deprived of most of its content and hence its usefulness.

It is also claimed that such an insertion in the Human Rights Convention would result in a more advanced degree of unification than an insertion in the Convention on the International Validity of Criminal judgments. But at the present moment such a degree of unification appears to be difficult to obtain in view of the pronounced differences between the technical rules of criminal procedure.

Accordingly, it was decided to insert a number of provisions regulating the question in Articles 53 to 55 of the Convention dealt with here.

It will be necessary to view these provisions as a whole.

First, it should be pointed out that the provisions are in the nature of minimum rules, each State being free to maintain or adopt rules which to a wider extent give the effect of ne bis in idem to foreign judgments. This is apparent from the provisions of Article 55.

Article 53 indicates the extent to which foreign criminal judgments shall be given an actual effect of ne bis in idem.

The system adopted in the Convention is that, where a State has itself requested another State to take proceedings, the requesting State shall always recognise the judgment delivered as a result of these proceedings. A part from this, European criminal judgments never have the effect of ne bis in idem in relation to the State in which the offence was committed (paragraph (3)), or – in the case of specified offences directed against the particular interests of a State – in relation to that State (paragraph (2)).

Where none of these special situations exists - that is, notably, in cases where judgment was delivered in the State where the offence was committed - the judgment has the effect of ne bis in idem in relation to other States in the event of an acquittal or a conviction where the sanction imposed is enforced in the normal manner or of the court having convicted the offender without imposing a sanction (paragraph (1)).

For those cases where the principle of ne bis in idem does not apply in accordance with this Convention a supplementary rule has been laid down. According to this rule any period of deprivation of liberty already served in one Contracting State as part of the enforcement of a sanction shall be deducted from the sanction which may be imposed in another Contracting State (Article 54).

Mention should be made that there is according to Appendix I, sub-paragraph (f) a possibility to make a reservation of this Section.

Article 53

Paragraph 1

"European criminal judgment" is defined in Article 1 (a) as "any final decision delivered by a criminal court of a Contracting State as a result of criminal proceedings ".

The requirement that the decision shall be final has been made with a particular view to Part II of the Convention (Enforcement of European criminal judgments). It is evident that it will normally be contrary to the factual considerations underlying the provision of paragraph (1) if another State should commence prosecution in the period of time between the pronouncement of the first judgment and the expiration of the time allowed for appeal. Under certain legal systems, however, there may be cases where a decision will never be final. In such cases it is inconceivable that a non-final sentence should prevent any subsequent prosecution being instituted by another State.

Sub-paragraph (a) relates to acquittals.

The question has arisen whether an acquittal, which is not due to the absence of evidence showing that the prosecuted act was committed by the accused, but to the fact that the particular act is not punishable under the penal legislation of the State of judgment, should also debar other States in which the act would be punishable, from prosecuting. In view of the fact that the rule of ne bis in idem will normally be relevant only if the judgment is delivered in the State in which the offence was committed, it will accord best with the general principle of dual criminal liability (see the comment to Article 4, paragraph (1)) that an acquittal based on the fact that the act is not punishable in that State should also be covered by the provision of paragraph (1).

Sub-paragraph (b) relates to judgments imposing a sanction.

For the meaning of the term "sanction", reference is made to Article 1 (d).

The general application of the principle of ne bis in idem would in respect of these judgments lead to the unacceptable result that the mere fact that a State happened to take criminal proceedings first would debar other States from prosecuting the offence. The interest of the States in the effective reduction of crime has to be weighed against the general consideration requiring that a person should not be prosecuted several times for the same act.

In the member States whose legislation contains special provisions on the subject, such weighing of conflicting considerations has normally led to the result that a foreign conviction is given the effect of res judicata only if the sanction has been served or has been remitted or is time-barred under the law of the State of judgment.

That solution reasonably meets the legitimate interest of the convicted person not to be prosecuted several times for the same act, since -normally, in any case - new proceedings will be taken only where he has rendered himself liable thereto by evading the enforcement of the sanction in the State of the first judgment. On the other hand, as long as the enforcement of a judgment follows a normal course, new proceedings ought not to be instituted.

Sub-paragraph (b) has been drafted accordingly. Res judicata effect is given to a sanction which (i) has been completely enforced or is being enforced, (ii) has been wholly, or with respect to the part not enforced, the subject of a pardon or an amnesty, or (iii) can no longer be enforced because of lapse of time.

The term "sanction" also covers special conditions which may be imposed in a suspended sentence. Thus the principle ne bis in idem applies as long as the sentenced person complies with the conditions imposed in the suspended sentence.

Having regard to the drafting of the provision, the fact that only a minor part of a sanction, or possibly a measure imposed under the judgment, has not been served in the normal way will imply that another State will be free to open new proceedings. It has not been considered possible to distinguish whether the convicted person has evaded a larger or smaller part of the sanction ; it must be stressed, however, that in accordance with the view underlying this provision, States should hesitate to open new proceedings where only a small part of the sanction has not been served. This applies irrespective of the question whether the other State would, in its determination of sanction, have to take account of the sanction already served ; the mere fact that the person already sentenced might be subject to a new prosecution may imply an inequitable aggravation of his situation.

Sub-paragraph (c) relates to judgments where the court convicted the offender without imposing a sanction. By that provision and the provision of sub-paragraph (b) (i), any form of suspension or exclusion of sanctions is covered.

Paragraph 2

This provision relates to certain special cases where a particular State has a quite special interest in being able to prosecute the offence, since it cannot be supposed that other States will adopt the same strict view of the offence.

The cases concerned are those where the offence is directed against either a person or an institution or any thing having public status in that State, or where the offender had himself a public status in that State.

Consideration was given to whether a more general term could be applied in that provision, such as "acts directed against the interests of a State", but the term was thought too comprehensive and vague. Such a term would, for example, include offences against a large number of the trade regulations provided for in special national legislation.

As examples of offences that will be covered by the provision of paragraph (2), mention may be made of assaults on public servants ("a person... having public status"), espionage ("an institution.. having public status"), counterfeiting ("any thing having public status") and the taking of bribes ("had himself a public status").

Paragraph 3

This provision arises out of the notion that in most cases the State of offence has a special interest in judging the offender by its own courts, which can more easily collect all the evidence. Such criminal procedure may also be of value in respect of civil proceedings for the purpose of compensating an injured party.

In view of the differences between the laws of member States on the criteria determining the place of the offence, it has been considered advisable to provide that the question whether an offence was committed on this territory of a particular State shall be decided in accordance with the domestic law of that State.

Article 54

Reference is made to the general remarks at the beginning of this Part.

Consideration has been given to whether it would be possible to provide a wider protection of offenders so that not only enforced sanctions involving deprivation of liberty but all enforced sanctions, e.g. also fines, should have the effect of reducing the new sanction. It is evident, however, that the need for a rule of protection is particularly urgent in regard to sanctions involving deprivation of liberty. Besides, providing for a possible reduction where the sanctions to be compared are of different types presents special difficulties. Since the cases where a State wishes to prosecute an offence for the second time which has already been decided and enforced in another State are likely to be the more serious ones where the new judgment will generally imply a sanction involving deprivation of liberty, a provision to the effect that foreign sanctions of fine should also cause a reduction would typically lead to difficult comparisons in practice between sanctions of different types. Furthermore, taking into consideration that the provisions concerned are minimum rules so that each State is free to provide a wider protection, it was considered that, at the present time, no steps should be taken to insert a wider rule in the Convention. For the same reason also deduction of any period during which the sentenced person was detained pending trial was left to national legislation.

Article 55

Reference is made to the general remarks at the beginning of this Part.

SECTION 2 – Taking into consideration of European criminal judgments

General remarks

Section 2 of Part Ill deals with the taking into consideration of a European criminal judgment. This is to be distinguished from its enforcement. It does not mean enforcing the sanctions ordered in the European criminal judgment (for instance, disqualification as a sanction falls under Articles 49) but attaching to it, through a subsequent decision by the authorities in another State, certain indirect effects which are provided for in the law of this State in respect of its national judgments.

Individualisation of the sanction requires knowledge of the offender's personality and this in its turn requires knowledge of his previous convictions no matter in which State they were passed. The criminal record is relevant to the offender's history and should not be influenced by the national or foreign origin of his convictions.

On these grounds it was decided to insert in the Convention provisions dealing with the taking into consideration of European criminal judgments for the purpose of attaching to them the indirect effects as is done in respect of national judgments.

The Convention obliges the Contracting Parties to provide the legislative basis for this taking into consideration but leaves them free to decide on the nature of the indirect effects which could or should be attached to European criminal judgments.

Taking into consideration does not require that there should be a new offence (Article 57) although this may often be the case (Article 56).

Mention should be made that there is according to Appendix I, sub-paragraph (f) a possibility to make a reservation in respect of this section.

Article 56

The previous judgment is considered by the judge examining the new offence for the purpose of determining the sanction to be imposed in respect of that new offence. In this context it is indeed important to have all information necessary to enable the court to decide whether it should establish recidivism, qualify a person as a habitual offender, or an offender by profession or inclination, grant a suspended sentence or probation etc.

Although the importance of considering the elements necessary for attaching effects to a European criminal judgment was never in dispute, it was however decided not to render such attachment obligatory. This arose through the insufficient harmonisation of criminal policy of member States of the Council of Europe and because an obligation would run counter to the national evolution of criminal law and deprive the judge of his discretionary powers to decide whether to attach such effects. In view of the general desirability of creating links between the various national systems it was nevertheless decided that the words "all or some of the effects" should be interpreted to mean that a complete refusal by a State to agree to the principle of taking into consideration was excluded ; on the other hand, to provide a possibility in internal legislation for the courts to attach only one effect, for instance, recidivism to a previous European criminal judgment would suffice.

The conditions in which such effect is given to a European criminal judgment are determined by the national legislation.

The text specified that the first judgment must have been rendered after a hearing of the accused. The taking into consideration of judgments rendered in absentia is therefore outside the scope of this Convention.

Article 57

Other indirect effects of a European criminal judgment imposed without the occurrence of a new offence are dealt with in this article. They are called additional effects because they are attached as a supplement to the original judgment. The obligation in this article to take legislative measures does not concern all the supplementary effects but only those which are termed disqualification, loss and suspension of rights (see Article 1 (e) and comments thereto).

For the same reasons as those given above (Article 56), a judge or an administrative authority is not obliged under Article 57 to attach effects to a European criminal judgment in a particular case unless national legislation itself confers on them a compulsory character with respect to a European criminal judgment.

PART IV – Final provisions

Articles 58 – 68 are, for the most part, based on the model final clauses of Agreements and Conventions which were approved by the Committee of Ministers of the Council of Europe, sitting at Deputy level during its 113th meeting. Most of these articles do not call for specific comments ; Articles 62, 63 and 65 have been inserted by express decision.

Article 62 relates to Appendices II and III which set out, respectively, the list of offences other than offences under criminal law (for instance in the Federal Republic of Germany Ordnungswidrigkeiten) and the list of ordonnances pénales. It was considered necessary that these Appendices should, at any given time, reflect the actual legislative situation in those member States which have become Contracting Parties to the Convention. This article gives the States a right to insert in the Appendices any provision of their legal systems relating to the imposition of sanctions for "depenalised" offences or to ordonnances pénales (for comments see above Article 1, sub-paragraphs (b) and (g) respectively ; see also Article 21).

If they have availed themselves of this possibility they are obliged to keep the Secretary General of the Council of Europe informed of any amendments or additions made to these provisions whenever modifications of the latter render the information contained in the Appendices inexact. It follows that changes which affect aspects of these systems but which have not been communicated originally to the Secretary General, need not be notified. It is stipulated that the changes shall have effect one month after communication to the other Contracting States by the Secretary General in accordance with Article 67, sub-paragraph (h).

In accordance with Article 63 (1), each Contracting State shall supply information to the Secretary General on the system of sanctions applicable in that State and their enforcement. This information should be given in respect of each sanction applicable in the requesting State. It was decided to recommend that this information be obtained following a definite scheme ⁽¹⁰⁾. This scheme may be reviewed by the ECCP in collaboration with the Secretariat in the light of experience in accordance with Article 65. The Secretary General shall, under Article 67 sub-paragraph (i), notify other member States of the information thus received. The purpose of this information is to assist the courts in the requested State in adapting the foreign judgment to their own legal system and to avoid an aggravation of the penal situation of the accused person (see Article 44 (2)).

Any subsequent change of this information shall be notified to the Secretary General. It is clear that this provision is applicable to Contracting States only.

Article 65 provides that the European Committee on Crime Problems shall assist the Contracting States, if necessary, in the application of this Convention.