Fiches Belges

It lets EU citizens awaiting trial in another EU country return home until their trial begins.Their home country supervises them using non-custodial (outside prison) measures. For example, asking them to report to a police station every day.This avoids lengthy pre-trial detention abroad. Summary of general requirements for a measure: • The recognition of decisions on alternative measures to pre-trial detention shall not be subject to double criminality control when it relates to acts classified as some of the offences listed in Article 20(1), provided that they are punishable in the issuing State by penalties or custodial measures for a maximum duration of at least three years. • A decision on alternative measures sent to Spain may only be recognized when, fulfilling the purposes required for its issuance, one of the following circumstances occurs: a) The accused has his legal and habitual residence in Spain, provided that he consents to return, after having informed him of the measures in question. b) The competent Spanish authorities consent to the transfer of the decision on alternative measures to pretrial detention for execution in Spain when the accused has requested it in the issuing State. • When the surveillance measures imposed are incompatible with the Spanish legal system, the Judge of Instruction or Violence against Women will adapt them, after hearing the Public Prosecutor's Office. The attestation of the criminal judgment on which the certificate is based shall be sent together with the certificate. The original of the decision or certificate shall be forwarded only at the request of the executing authority. The certificate or form shall be signed by the judicial authority competent to issue the decision to be documented. The certificate or form shall be translated into Spanish. The decision shall be translated only where required to do so by the executing judicial authority. Acording to Act 23/2014 art. 121. Execution will require one of these circumstances: a) The accused has his/her legal and habitual residence in Spain; he/she has been informed about the measures and wants to return to Spain. b) The Spanish competent authorities consent the transfer of the decision on supervision measures for executing them in Spain when the accused has applied for it in the issuing State. Grounds for refusal: • mandatory: a) When by virtue of his age, the accused cannot be considered criminally responsible for the facts on which the resolution is based, in accordance with Spanish criminal law. (b) When the conditions for the transmission of a decision on alternative measures to pre-trial detention are not met. (c) When, in the event that the accused fails to comply with the surveillance measures, the Investigating or Violence against Women Judge is obliged to refuse to surrender him in accordance with the provisions of this Law on the European Arrest Warrant and Surrender. (d) When a final, condemnatory or acquittal decision has been issued in Spain or in another State other than the one issuing a final decision against the same person and in respect of the same acts, and its execution violates the ne bis in idem principle in the terms provided for in the laws and in the international conventions and treaties to which Spain is a party and even if the convicted person has subsequently been pardoned. (e) When the order or decision relates to facts for the prosecution of which the Spanish authorities are competent and, if the conviction had been issued by a Spanish court, the crime or sanction imposed would have been time-barred in accordance with Spanish law. (f) Where the form or certificate to accompany the application for the adoption of measures is incomplete or manifestly incorrect or does not comply with the measure, or where the certificate is missing, without prejudice to Article 19. (cases of insufficiency of the form or certificate, when it is missing or does not manifestly correspond to the judicial decision in which it is possible to request a correction.) (g) When there is an immunity that prevents the execution of the decision. • optional In abovementioned cases a), d) y g) before refusing recognition and enforcement of the decision, the examining magistrate shall request the authority of the issuing State to clarify the situation and, where appropriate, to remedy the defect that was incurred.

FD 2009/829/JHA on supervision measures, Law 23/2014 on mutual recognition of judicial decisions in criminal matters in the European Union, Arts. 109 – 129

Receiving authority: The request should be sent to the Dean Central Judge´s Office or the Special Office to allocate cases, which are called: Oficina Decanato de los Juzgados / Servicio Común para su registro y reparto al Juzgado Central de lo Penal. Nevertheless, the wording of art.16.2 Act 23/2014 should be highlighted: "the decision that declares that the judicial authority that has received the order lacks jurisdiction to execute must also resolve its immediate submission to the judicial authority understood to have jurisdiction, notifying the Public Prosecutor and the judicial authority of the issuing State of that decision". -The authorities for issuing a decision on alternative measures to pretrial detention are the Judges or Courts that have issued the decision on the provisional release of the accused in the criminal proceedings. -The competent authorities to recognize and execute a decision on alternative measures to pretrial detention are the Investigating Judges or the Judges of Violence against Women of the place where the accused has established his residence, with respect to the crimes that fall within their competence.

Spanish

-There is not a deadline for the execution of rogatory letters. - The decision to recognise and execute should be the shortest time possible. The maximum period for this decision will be twenty working days, except in the case in which the competent Judge informs the issuing authority about the inability to respect this maximum period, communicating the reasons of the delay and the new period considered necessary.

-Law 23/2014 on mutual recognition of judicial decisions in criminal matters in the European Union, Arts. 109 – 12