Vermeulen, Gert

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Ghent University Academic Bibliography

Prof. Dr. Gert Vermeulent.  +32 9 264 69 43f.  +32 9 264 84 94Gert.Vermeulen@UGent.be Criminal records and taking account of convictions & disqualif icationsSummer Course on European Criminal JusticeERA | Trier | 26 June 2019research publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   acquis (pre-Amsterdam)relevant EU initiatives• context• overview – state of affairs• FD 2009/315/JHA • D 2009/316 (ECRIS + classification)• FD 2008/765/JHA taking account of convictions• EULOCS• further remaining questions and challenges• Third Country Nationals (TCN)• disqualificationsquestions & discussionStructure26 June 2019 | Criminal records and taking account of convictions & disqualifications2research publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   CoE treaties, chiefly• 1959 MLA (Articles 13 & 22)• 1960ies Road Traffic• 1970 Int’l Validity Criminal Judgements• =MR avant-la-lettreunsuccesful EPC-Convention 1991Schengen (road traffic)EU (Maastricht): 1996 driving licenses...Acquis (pre-A’dam)326 June 2019 | Criminal records and taking account of convictions & disqualificationsresearch publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   Mutual Recognition (MR) Plan November 2000• individualisation of sanctioning• take account of previous EU convictions in sentencing for newlycommitted offences• already earlier introduced for EUR fraud/counterfeiting• give effect to disqualifications in MS of residence (e.g. driving licensewithdrawal) or all MS (e.g. working with children)• mutual recognition of decisions to prosecute• link with avoiding ‘double prosecution’ (extended ne bis)• feasibility study requested re EU criminal records system and register of disqualifications• IRCP-initiated; co-financed by EC (Grotius)• Vermeulen et al (2002), Blueprint for an EU criminal records databaseContext EU init iatives (1)426 June 2019 | Criminal records and taking account of convictions & disqualificationsresearch publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   Fourniret case 2004 (B-F)• what? challenge (real, perceived)• recalling Dutroux case 1996 (B), having triggered studies (IRCP) & policy initiatives re EU data collection sexual offences against childreninitiative European Commission• White Paper 2005 (+ annex)• building strongly on proposals Vermeulen et al• searchable central index system• detailed (folio) info remains in individual MSJHA Council April 2005: political ‘dual track’ scenario• convictions against EU citizens• centralisation in MS of nationality• triggered by ‘interconnection’ pilot network (B-F-D-E) (expanded)• convictions against 3rd country nationals (TCN)?Context EU init iatives (2)26 June 2019 | Criminal records and taking account of convictions & disqualifications5research publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   Decision November 2005/876/JHA (abrogated from by)FD 2009/315/JHA organisation & content• centralisation info in MS of nationality• “develop standardised European format for criminal records infoex in a uniform, electronic & easily machine-translatable way”• Unisys & IRCP – led to D 2009/316/JHA (ECRIS+ classification)• improve application CoE 1959 MLA Convention• render Article 22 (more) performant• especially relevant for ministries/central authorities• facilitate/accelerate crimrec-related MLA requests Article 13• especially relevant for decentral, competent authoritiesFD 2008/765/JHA on taking account of earlier EU convictions• addresses decentral, competent judicial authoritiesstudy on disqualifications (IRCP 2012)Overview – State of affairs26 June 2019 | Criminal records and taking account of convictions & disqualifications6research publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   implementation deadline: April 2012 | ECRIS operational sinceframework for a computerised system of crim rec infoex to MS nationalityobligations convicting MS and MS of nationalityrequest for info on convictions + reply 10 days• updates Article 13 CoE 1959 MLA Conventioncritiques• no full generic EU data structure (infra)• applying to natural persons only• contrary to our suggestions, and denying• EU obligation of corporate liability for offences (administrative, civil or penal) & EU hard law acquis re MR confiscations/fines• breakthrough following EU study?• IRCP 2011: JUST/2010/JPEN/PR/1009 Study on the liability of legal persons for offences in the MS’ national legal systemsFD 2009/315/JHA 726 June 2019 | Criminal records and taking account of convictions & disqualificationsresearch publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   implementation deadline/operational since: April 2012ECRIS classification, partially transposing Unisys/IRCP study• generic EU data structure/single interface/”criminal justice Esperanto”• offender-related fields• offence-related fields • encompassing EAW categories, pilot network families and  classifications Europol IS & Eurojust CMS, etc• idea of EU classification of offences officially supported • DG JLS/D3 (crim records) + Unisys/IRCP (crime statistics)• EULOCS (enhancing internal coherence EU criminal policy)• decision-related fields• sanction/measure-related fields• making most of info machine-translatable• providing end-user useful interpretative info• not enough: cfr EULOCSD 2009/316 (ECRIS + classif ication)826 June 2019 | Criminal records and taking account of convictions & disqualificationsresearch publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   implementation deadline: August 2010In the course of new proceedings, MS must take account of previousconvictions of the same person in other MS for different facts …• info on previous convictions in EU MS through MLA or crim rec infoex instruments(systematic)• applicability to legal persons? (Y but)• not only for typical 32 MR offences, but for any… in that they must attach “equivalent” legal effects to them as to previousnational convictions, in accordance with national law• dual criminality required? (Y)• loads of problems, both for general and specific reoffending (examples)• need for full generic EU data structure, with enhanced offence interpretability (andlimitation applicability to jointly identified offences throughout EU (EULOCS) andEU sanction scales• ideally through double legal qualification (national + EU) (extra work)FD 2008/765/JHA taking account of convict ions926 June 2019 | Criminal records and taking account of convictions & disqualificationsresearch publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   bench-mark for enhanced internal coherence of the EU's criminal policy• including in the area of criminal records infoeximproved ECRIS classification• exclusive categories• incorporating/centered around EU approximation acquis• clustering of common denominator underneath “jointly identified partsof offences”• i.e. much wider acquis than 32 MR list, for which dual criminality test can be omitted• i.e. joint acquis = trust-building• = also tool for delineating Europol/Eurojust access (mandated offencesincorporated) • including definitions (usually from binding EU acquis) for interpretability in application FD 2008/675/JHAThe EU Level Offence Classif ication System1026 June 2019 | Criminal records and taking account of convictions & disqualificationsresearch publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   EULOCS - i l lustrated110906 00 MONEY LAUNDERING0906 01 Offences jointly identified as Money Laundering0906 01 01 The conversion or transfer of property0906 01 02 The illicit concealment or disguise of property related information0906 01 03 The illicit acquisition, possession or use of laundered property0906 02 Other forms of Money Laundering0201 00OFFENCES JOINTLY IDENTIFIED AS PARTICIPATION IN A CRIMINAL ORGANISATION0201 01 Directing a criminal organisationArticle 2 (b) , Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crimeConduct by any person consisting in an agreement with one or morepersons that an activity should be pursued which, if carried out,would amount to the commission of offences, even if that persondoes not take part in the actual execution of the activity.26 June 2019 | Criminal records and taking account of convictions & disqualificationsresearch publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   limited/no involvement end users (judicial & police authorities |explain)use common format (generic structure?) also for• direct exchange under Article 13 1959 Conventionmaximize investigative/prosecutorial value criminal records infoex system• make offence-/other fields searchable• currently searchable on name/id fields, in case of known EU nationality• link in with Europol information system• establishment ne bis in idem situation (+ Eurojust access/CMS) role Eurojust in hosting index-system (a.o. for 3rd states’ access)?additional EU legislation based on MR concept• regarding legal effect inclusion following notification• currenly no added value for Fourniret-like cases • limited introduction EU-certificates non-prior conviction (see infra)extension to legal persons (open access hereafter)Remaining questions and challenges1226 June 2019 | Criminal records and taking account of convictions & disqualificationsresearch publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   26 June 2019 | Criminal records and taking account of convictions & disqualifications13research publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   Vermeulen et al (2002), Blueprint for an EU Criminal Records Database• centralized searchable index (for EU nationals and TCN), hit/no hit basedworking doc COM(2006)359 | Unisys study ECRIS-TCNCOM(2016) 7 final (January 2016): Proposal for a directive amending FD 2009/315/JHA, as regards the exchange of information on TCN and as regards ECRIS, and replacing Council Decision 2009/316/JHA (decentralized automated storage and exchange of both fingerprints and alphanumeric data of convicted TCN)Directive (EU) of 17 April 2019 amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third-country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA [link]• transposition: due end of June 2022• continued declarations-based application with (only) Denmark of D 2009/316Third Country Nationals (TCN) | 126 June 2019 | Criminal records and taking account of convictions & disqualifications14research publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   April 2016: additional study on the feasibility and costs of a centralised automated system for fingerprints combined with decentralized automated system for alphanumeric data May 2016: yet another study on a  centralized automated system for both fingerprints and alphanumeric data | JHA Council 9-10 June 2016: choice for such centralized systemFebruary 2017: debate on crime categories for which fingerprints can be exchangedCOM(2017) 344 final (29 June 2017): Proposal for a regulationlengthy trialogueRegulation (EU) 2019/816 of 17 April 2019 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and amending Regulation (EU) 2018/1726 (link)• centralized ECRIS-TCN system to identify which MS holds information of TCN, with actual exchange of TCN information through ECRIS (FDecision 2009/315/JHA as amended by theDirective)• managed by eu-LISA and supervised by EDPS• part of the Interoperability proposals (linked to a European search portal, a shared biometric matching service and a common identity repository) and ETIAS• with access for Europol and Eurojust, the latter also acting as central contact point for 3rd states, as well as for EPPO• also facial images• dual EU-non-EU nationality included in ECRIS-TCNThird Country Nationals (TCN) | 226 June 2019 | Criminal records and taking account of convictions & disqualifications15research publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   no breakthrough notwithstanding EU study• IRCP 2012: JUST/2010/JPEN/PR/1010 Study on disqualifications as a sanctioning measure in the national systems of the Member Statespreliminary EC/IRCP approach• policy focus on children, road traffic, procurement - global approach• extension to legal persons important• distinction between• disqualifying effect of certain convictions• disqualifications expressly pronounced• effect of convictions/disqualifications in that they bar certificate(s) non-prior conviction, required for certain (professional, leisure, …) settings• transborder/EU effect• no more negative impact than in sentencing MS (lex mitior)• equality before the law in internal market• EU vertical (harmonised minimum) approach in tender procedures etcDisqualif ications1626 June 2019 | Criminal records and taking account of convictions & disqualificationsDisqualifications (2)1726 June 2019 | Criminal records and taking account of convictions & disqualificationsresearch publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   flexible systemapproximating legislation• certain behaviour (approximated) may be required to prompt a certaindisqualification in all MS• can be made trackable in ECRIS/EULOCSexecuting requests• MS to where a person moves, may be required to recognize a disqualificationimposed in a MS where it is no longer felt by the person concerned, if the latterMS requires so• = mutual recognition as in FD probation orders and alternative sanctionsensuring equivalence• quite comparable with FD taking account of prior convictions• in that MS would be required to give at least equivalent disqualifying effects toforeign convictions and disqualifications• being allowed to go further if they choose to do so in their domestic legislation(examples)• by requiring certificates of non prior conviction or disqualification in bothpublic and private (employment) settingsDisqualif ications | The triad26 June 2019 | Criminal records and taking account of convictions & disqualifications18research publications consultancy conferenceswww.ircp.orgProf. Dr. Gert Vermeulen+32 9 264 69 43Gert.Vermeulen@UGent.be   Questions and discussion1926 June 2019 | Criminal records and taking account of convictions & disqualificationswww.ircp.orgContactProf. Dr. Gert Vermeulent. +32 9 264 69 43f. +32 9 264 84 94Gert.Vermeulen@UGent.behttp://www. linkedin.com/in/gert-vermeulen-42b00068IRCPGhent UniversityUniversiteitstraat 4B – 9000 Ghent

Criminal Records and taking account of convictions & disqualifications

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Criminal Records and taking account of convictions & disqualifications

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Ghent University Academic Bibliography