How was the ‘Council Framework Decision 2008/909 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

Jessica Miller

I6070568

2.12.2015

European Criminal Justice Area

Word count: 1425

How was the ‘Council Framework Decision 2008/909 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

Country’ implemented in Austria?

The Council Framework Decision 2008/909 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 (transfer of prisoners)  (hereinafter ‘Framework Decision’) was adopted on the 27 November 2008.^[1] The main aim of the Framework Decision is facilitating the transfer of convicted prisoners back to the state of which they are either nationals or have close ties to in order to let the person serve their prison sentence there. The intention of this is to aid with the reintegration into society of these detained persons. ^[2] 

Austria was one of the three countries who initiated the Framework Decision. Thus, this essay will examine briefly whether and how Austria has implemented this Council Framework Decision and conclude whether the Austrian national law is in compliance with the Framework Decision

The implementation deadline of the Framework Decision on the transfer of prisoners was on 5 December 2011.^[3]  However, most member states did not implement the Framework Decision on time. Austria was one of them as they only implemented the Decision on 1 Jan 2012.^[4] 

The implementation process in Austria included the adaption of the EU-JZG-ÄndG (Bundesgesetz über die justizielle Zusammenarbeit in Strafsachen mit den Mitgliedstaaten der Europäischen Union) 2011, BGBl I Nr. 134/2011 by extending the third part of the EU-JZG. These conditions can be found in §§ 39 - 42g EU-JZG).^[5]

Before this Framework Decision, the transfer of non-nationals with close ties to Austria was not granted under Austrian ARHG.^[6] These inner-state requirements were then extended with the implementation of the Framework Decision (ABl L 2008/327, 27). ^[7] 

Now, consent of the execution state and of the person convicted is not necessary in order to transfer a prisoner to executing state if the convicted person has the nationality of the executing state and has residence in that state or will be deported to the executing state following the judgment and finishing his prison sentence.^[8]

Due to word constraints, this essay will not go into too much detail of §§ 39 - 42g EU-JZG but will focus on the main aspects of the Framework Decision and whether they have been implemented into the Austrian law correctly.

Art. 2 of the Framework Decision deals with the issue determining the competent authorities. Austria has covered this §41(b) EU-JZG where it is specified who will decide about execution of the sentence. According to this, the regional courts are responsible for the incoming requests while the Federal Ministry of Justice  will deal with outgoing requests.^[9]:)

Art 4 of the Framework Decision deals with the conditions of forwarding the judgment which is one of the main provisions as this determines whether the prisoner will be transferred and brings about the changes mentioned before. In the German provision this can be found in §39 EU-JZG. It can be found again that Austria has implemented the conditions of the Framework Decision as it grants the transfer of prisoners without their consent to the same requirement. Furthermore, it is important to mention art. 4(6) of the Framework Decision which explicitly mentions that the social rehabilitation of the sentences person must  always be taken into account. This is also stated in §39(3) EU-JZG.

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