A legal instrument aimed at the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, which can be transmitted to another Member State different from that one who sentences the responsibility to monitor compliance by the condemned of the probation measures or alternative sanctions previously imposed in the former.
Spanish Act 23/2014, 22014, of 20 November 2014, on mutual recognition of judicial decision in criminal matters in the European Union, refers to this measure in its Title IV (article 93 to 108).
The probation decision shall be accompanied by the certificate, with specific reference to measures whose implementation is transmitted, whether they are those provided for in general or specific nature that the implementation state had accepted in the declaration made at the General Secretariat of the Council of the European Union.
Along with the certificate shall be sent the judgment and, if appropriate, the final judicial decision.
Requirements:
Act 23/2014. Article 101.2: 2. Judgments of probation can only be recognised: a) When the sentenced person is lawfully and habitually resident in Spain and when there is reliable evidence that he/she has returned to our country or has indicated its will to do so before the issuing authority. b) When, despite not having the sentenced person lawfully and ordinarily residence in Spain, their parents, children or siblings, or their spouse or attached thereto for connection of a similar nature do have it, for at least five years, provided that the sentenced person has obtained an employment contract or requested the compliance in Spain of the probation decision.
Art. 104 Spanish Act 23/2014. Adaptation of the probation decision.
1. In the case that the measure contained in the probation decision, for its duration, is incompatible with the Spanish legal system to overcome the ceiling under our law, the Central Criminal Judge shall adapt the sentence. The adaptation will be to limit the duration of the probation measure as far as possible of provisions in our legislation for equivalent offences that correspond with those imposed in the issuing State.
2. In the case that the probation decision, for its nature, is incompatible with the Spanish legal system, the Central Criminal Judge shall adapt the measure to that described in our legislation to similar cases. The adapted measure must correspond as much as possible with the measures imposed in the judgment or decision of the issuing Member State.
3. In neither of those cases the adaptation may aggravate or extend the measure imposed in the issuing State.
Refusal of the recognition. Act 23/2014:
• mandatory
Article 105.1. In addition to the cases of Articles 32 and 33, in the following cases: a) Where by reason of age, the sentenced person would not have been held criminally responsible for the facts on which the judgment is based according to Spanish criminal law, b) When the duration of the probation measure or alternative sanction is less than six months, c) When the judgment or, where applicable, the probation decision includes medical or therapeutic measures, according to Spanish law, the Central Criminal Judge cannot monitor, d) When the conditions for the transmission of a probation decision are not met.
Art.32 grounds for refusal: 1. a) When it was ordered in Spain or in another State different form the issuing one a final, denunciatory or acquittal decision, against the same person and in respect of the same facts, and its implementation would contravene the principle of non bis in idem in the terms provided by law and international conventions and treaties to which Spain is a party and even if the sentenced person had been subsequently pardoned; b) When the order or decision relates to acts for whose prosecution Spanish authorities are competent and, sentencing by a Spanish judicial authority had been issued, the penalty imposed had prescribed in accordance with Spanish law; c) When the form or certificate which must accompany the application for the adoption of measures is incomplete or manifestly wrong or does not correspond to the measure, or if the certificate is missing, notwithstanding the provisions of Article 19; d) When there is an immunity that prevents the implementation of the decision.
Art.33. Decision rendered in the absence of the person concerned.
1. The Spanish judicial authority shall also refuse the implementation of the order or decision that have been transmitted when the defendant did not appear at the trial resulting decision unless the same record, in accordance with the other requirements of the procedural law of the issuing State, any of the following circumstances:
a) That, in sufficient time, the defendant was summoned in person and informed of the date and place fixed for the trial to which that decision is derived, or he/she received such official information by other means that record their actual knowledge and besides, he/she was informed that a decision may be handed down in the case of default.
b) That, being aware of the date and place fixed for the trial, the defendant appointed lawyer for his/her defence at trial, and was indeed defended by him/her in the celebrated trial.
c) That, after being served with the decision and being expressly informed of his/her right to a retrial or appeal with the possibility that this new process, which would be entitled to appear, a decision contrary to the initial was dictate, the person expressly stated that he/she did not impugn the decision, or request the opening of a retrial or appeal within the time provided therefore.
• optional
In case in which any of the grounds for refusal of recognition and enforcement provided in letters a) and c) of subparagraph 1 or 3 in the article 32, subparagraph 1 in the article 33 or in letters b), c) and d) of the prior subparagraph concurs, before denying the recognition and enforcement of the decision or ruling of probation, the Central Criminal judge shall consult the authority of the issuing State to clarify the situation and, if necessary, remedy the defect that they had incurred.