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Fiches Belges: France

Enforcement of a Custodial Sentence (903)

1. MEASURE IMPLEMENTATION

France

Is this measure possible in your Member State under International Judicial Cooperation?

This measure is applicable under French law. It concerns the recognition and enforcement of custodial sentences: • On the territory of another Member State of the EU in relation to sentences passed by a French court; • On French territory in relation to sentences passed by a court of one of the Member States of the EU. It concerns the transfer of convicted persons who have received custodial sentences: • To the territory of another State in relation to sentences passed by a French court; • To the French territory in relation to sentences passed by the court of another State.

2. LEGAL FRAMEWORK

France

International legal framework applicable for this measure in your Member State

European Union: Framework Decision of the Council of the European Union 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union Council of Europe or Member State of the EU which has not transposed FD 2008/909/JAI: • Convention on the Transfer of Sentenced Persons, Council of Europe, 21 March 1983 • Additional Protocol of 18 December 1997 to the Convention of 21 March 1983 Other situations: • bilateral conventions • Convention on the Implementation of the Schengen Agreement of 14 June 1985, articles 67 to 69

3. COMPETENT AUTHORITY TO:

France

* receive the request/decision for judicial cooperation

N/A

* execute/recognise the measure (if other than the receiving authority)

N/A

4. ACCEPTED LANGUAGES

France

Accepted languages for the request/decision

European Union: French Council of Europe or Member State of the EU which has not transposed FD 2008/909/JAI: France has not made any declaration on this question Other situations: According to bilateral conventions

5. EXECUTION DEADLINE

France

Deadlines for the execution of the request/decision (where applicable)

European Union: • recognition and enforcement of a French sentence on the territory of another Member State: the public prosecution service of the sentencing court: o transmission of the original and of a certified copy of the certificate of the judgment as soon as possible upon the request of the competent authority of the executing State; o when the sentenced person is in custody in France, transfer of the person within 30 days following the decision of acceptance of the issuing State. • recognition and enforcement in France of a sentence passed by a court of an EU Member State: o the public prosecutor, within a maximum of 8 days following the receipt of all of the information s/he considers necessary in order to make the decision; o the sentence shall be enforced as soon as the decision of the public prosecutor is final. Council of Europe or Member State of the EU which has not transposed FD 2008/909/JAI: no deadline. Other situations: According to bilateral conventions

6. CONCISE LEGAL PRACTICAL INFORMATION

France

a. Special requirements

European Union: Mandatory grounds for refusal: 1° The certificate has not been produced, is incomplete or manifestly does not correspond to the sentencing decision and has not been completed or corrected within the fixed deadline; 2° The sentenced person is located neither in France nor in the sentencing State; 3° The conditions provided under article 728-11 have not been met; 4° The sentencing decision relates to offences for which the convicted person has already been definitively convicted by the French courts or by the courts of a State other than the sentencing State, on condition that the sentence has been served, is in the process of being served or can no longer be executed according to the law of the sentencing State; 5° The sentence is based on conduct which does not constitute an offence under French law; 6° The sentenced person benefits in France from an immunity which constitutes a bar to the execution of the sentence; 7° The sentenced person did not appear in person at the trial which led to the decision, except in the cases specified in subparagraphs 1° to 3° of article 695-22-1 8° The limitation period [the period within which the sentence must be enforced] had expired under French law on the date on which the certificate was received; 9° The sentenced person was a minor aged under 13 years on the date of the offence(s); 10° The sentence passed includes an order for psychiatric or medical care or another type of detention order which cannot be executed under the rules of the French legal system or the French health care system; 11° It has been established that the person was convicted because of their sex, race, religion, ethnic origin, nationality, language, political opinions, sexual orientation or sexual identity, or that the person’s position could be prejudiced for any of those reasons. The ground for refusal provided under subparagraph 5 cannot be relied upon when the sentencing decision concerns an offence relating to taxes, duties, customs and foreign currency exchange on the basis that French law does not provide for the same type of taxes or duties or does not contain the same type of regulation in matters of tax, duties, customs or foreign currency exchange as the law of the sentencing State. Discretionary grounds for refusal: 1° The sentencing decision was made in respect of offences committed wholly, for the most part or in the main on French territory or in a place that is equivalent to French territory; 2° The length of the sentence that remains to be served is less than six months on the date the certificate is received; 3° The sentencing State has refused to give its consent for the sentenced person to be prosecuted, convicted or deprived of his liberty in France for an offence committed before his transfer, apart from the offence for which the person is currently being transferred. Council of Europe or Member State of the EU which has not transposed FD 2008/909/JAI: Conditions for a transfer request to be examined by the French authorities: • the person concerned is a French national • the conviction must be definitive (a final decision) • dual criminality • more than 6 months of the sentence must remain to be served at the moment the request is made. Other situations: According to bilateral conventions

b. Other useful information

European Union: Information regarding the sentenced person: A sentencing decision issued by a French court or a court of a Member State can be transmitted, as the case may be, by the competent French authority for the purpose of recognition and execution (enforcement) in the executing State or by the authority of that State for the purpose of recognition and enforcement in France if the sentenced person is located on French territory or on the territory of the other Member State and in the following cases: 1° The sentenced person is a national of the executing State and is habitually resident on the territory of that State or, when France is the executing State, is a French national; 2° The sentenced person is a national of the executing State or, when France is the executing State, is a French national and is the subject, by virtue of the sentencing decision or of any other judicial or administrative decision of a deportation order to the territory of the State of which he is a national, enforceable on his release; 3° The sentenced person, whatever his nationality, and also the competent authority of the executing (enforcing) State or, when France is the enforcing State, the competent French authority consent to the enforcement of the sentencing decision which is the subject of the transmission. In the case specified in subparagraph 3°, the consent of the sentenced person is not required if he took refuge on the territory of the executing State or, if France is the executing State, if he took refuge on French territory or if he returned there because of his conviction/sentence or because the investigations and prosecution had been completed there. In the case specified in subparagraph 3° and when France is the executing State, the competent authority can only consent to the execution of the sentence on French territory if the sentenced person has been living there regularly in an uninterrupted manner for at least five years. The principle of speciality A person who has been transferred onto French territory for the execution of a custodial sentence or a detention order imposed by a court of a Member State may not be investigated, prosecuted, convicted or detained for any offence which took place before his transfer other than the offence for which he is being transferred, unless one of the following exceptions applies: 1° Having had the opportunity to do so he did not leave the national territory within the 45 days following his definitive release, or he returned to it voluntarily after having left it; 2° The offence is not punishable by a custodial sentence or detention order; 3° No custodial measure or detention order or order restricting the person’s liberty is enforced during the procedure that is followed for the alleged offence; 4° The sentenced person is not liable to serve a custodial sentence or to have a detention order made against him as a result of the prosecution of this offence; 5° The person consented to his transfer; 6° The person, after his transfer, before the criminal court of the place where the sentence is being served and under the conditions provided in the last two paragraphs of article 695-19, expressly waived his right under the rule of speciality provided in the first paragraph of this article, such waiver being irrevocable; 7° The competent authority of the sentencing State expressly consents that the speciality rule be set aside. Procedure for the enforcement of the sentence on French territory: If the sentencing decision can be recognised as being enforceable in France, the public prosecutor shall assess whether it is appropriate to adapt the custodial sentence or detention order that has been imposed. When the length of the sentence or detention order that has been imposed is greater than that which could have lawfully been imposed by a French court for the same offence, the public prosecutor shall propose the reduction of the sentence to the maximum lawfully applicable under French law for the relevant offence. When the sentence comprises punishment for several offences the prosecutor will propose the maximum sentence lawfully applicable for the offence which corresponds to the most heavily punishable offence. When, by its nature, the custodial sentence or detention order is incompatible with French law, the prosecutor shall propose the substitution of the custodial sentence or detention order in accordance with French law, unless such substitution would make the sentence longer/heavier. If the presiding judge (“President”) of the regional court approves the proposal to adapt the sentence if that sentence is above the maximum lawfully applicable to the corresponding offence under French law, the sentence is served in France in accordance with the French law on the execution and enforcement of sentences. When the public prosecutor proposes the adaptation of the sentence s/he refers the matter without delay to the presiding judge of the regional court or to the judge appointed by the presiding judge for the approval of the proposal to adapt the sentence. The prosecutor sends all of the case papers to the presiding judge of the regional court or to the judge to whom the presiding judge has delegated the matter. Within five days of the referral, the presiding judge of the regional court or the judge to whom he has delegated the matter decides, on the basis of the evidence that has been sent to him, whether it is appropriate to approve the public prosecutor’s proposal to adapt the sentence. Provisional arrest: When the sentenced person is located on French territory and the competent authority of the sentencing State asks for the provisional arrest of the sentenced person or for any other measure to ensure that the sentenced person remains on French territory whilst the decision on the recognition and enforcement of the sentencing decision is awaited, the public prosecutor, if he considers that the person has not given sufficient assurances that he will appear in court, shall require that the person be apprehended and brought before him within 24 hours. During this period the articles of the Code of Criminal Procedure on the rights of a person in custody shall apply. In the event that the request mentioned in the first paragraph of this article has been made by the competent authority of the sentencing State before that State has transmitted the sentencing decision and the certificate, the person can only be apprehended under the first paragraph of this article if the competent authority of the sentencing State has provided the following information to the public prosecutor: 1° The name of the sentencing State and of the court which issued the sentencing decision; 2° The identity of the person in respect of whom the sentencing decision has been issued, his last known home address(es), and information that indicates that he is located in the sentencing State or in the executing State; 3° The date of the sentencing decision and the date on which that decision became final; 4° The grounds for transmitting the sentencing decision in relation to the sentenced person; 5° The date, place and circumstances in which the offence(s) were committed and the nature, the legal definition and a complete description of the offences (the facts of the case); 6° The details of the custodial sentence or detention order that is to be executed, its total duration, the amount of the sentence that has already been served and the date on which the sentence will have been fully executed. Council of Europe or Member State of the EU which has not transposed FD 2008/909/JAI and Other situations: There is no principle of speciality except under the 1997 Additional Protocol or under the Schengen Agreement. Application of the ne bis in idem principle (the rule against double jeopardy): A sentenced person who is serving, in France, on the basis of a convention or an international agreement, a sentence passed by a foreign court, cannot be prosecuted (a criminal prosecution cannot be commenced or continued against him), nor can he be convicted or sentenced for an offence based on the same conduct/facts. The principle of executing the foreign sentence on French territory: 1° Exception to the procedure of converting the sentence: the sentence passed in the foreign State is, by virtue of the international convention or agreement, directly and immediately enforceable on the national territory as regards the part of the sentence that remained to be served in the foreign State; 2° Adaptation of the sentence: when the sentence passed is, by its nature or in terms of its length, more rigorous than the sentence provided under French law for the same offence(s), the criminal court of the place where the person is detained, having had the case referred to it by the public prosecutor or by the sentenced person, shall substitute the foreign sentence with a sentence that most closely corresponds to the sentence applicable under French law or shall reduce the sentence to the maximum legally applicable. Consequently he shall determine, as appropriate, the nature of the sentence to be served and also the length of the sentence, within the limit of the amount of the sentence that remained to be served in the foreign State. The court shall issue its judgment, in a public hearing, having heard the prosecution, the sentenced person and, where appropriate, the defence counsel chosen by the sentenced person or the court-appointed defence counsel representing him on his request. The judgment shall be immediately enforceable, notwithstanding (regardless of) any possible appeal. 3° Legal basis of the enforcement of the sentence: when, by virtue of a convention or an international agreement, a person who is detained in the execution of a sentence passed by a foreign court is transferred to the French territory to complete the part of the sentence that remains to be served, the enforcement of the sentence is conducted in accordance with the provisions of the Code of Criminal Procedure.

Last reviewed on 6 July 2016 by EJN Secretariat

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