Mutual Recognition of Financial Penalties between the EU Member States. Critical Observations

• Author: Minodora Ioana Rusu
• Position: Judicial advisor
• Pages: 220-238

Page 220

1. Introductive Considerations

Within the international judicial cooperation in criminal matters, the mutual recognition of criminal decisions has represented a constant concern in all states with recognized democratic regimes and especially the European ones.Page 221

When analyzing the complex institution of recognizing the foreign criminal decisions and judicial acts, they have to comprise both the criminal decisions that stem from the Romanian judicial authorities and the ones stemming from the competent judicial authorities of other states (Boroi & Rusu, 2008, p. 347).

One of the most important normative acts issued in this context at the Europe Council's level is the European convention on the international value of repressive decisions, adopted in The Hague, on May 28, 1970¹.

"The European Convention on the international value of repressive decisions was elaborated by a sub-committee of experts of the Europe's Council, under the coordination of the European Committee in criminal matters and opened for signature on May 28, 1970² on the occasion of the 6^th Conference of European Justice Ministers. The fundamental principle on which the Convention is based is the assimilation of a foreign decision through a national one. This principle is applied under three different aspects, namely:

- the execution of a decision;

- the ne bis in idem effect;

- taking into consideration the foreign decisions" (Radu, 2008, p. 95).

The European Council's reunion in Tampere in October 15 and 16 October 1999 approved the mutual recognition principle, that has been said to become the basis of the judicial cooperation both in civil as well as in criminal matter within the EU.

Subsequently, according to the Tampere conclusions, the 29 November 2000 Council adopted a measures program in order to apply the principle of mutual recognition of decisions in criminal matters, prioritizing the adoption of an application instrument for the principle of mutual recognition on financial penalties.

Aiming at transposing the principle of mutual recognition of criminal decisions into practice, a series of normative acts have been adopted at the EU level, such as: the Council's Decision Frame 2002/584/JAI on June 13, 2002 on the EuropeanPage 222arrest warrant and the procedures of delivery between member states³, the Council's Decision Frame 2003/577/JAI on June 22, 2003 on the execution of the unavailability orders on goods or evidence within the EU⁴, the Council's Decision Frame 2005/214/JAI on February 24, 2005 on the application of the principle of mutual recognition of financial penalties⁵, the Council's Decision Frame 2006/783/JAI on October 6, 2006 on the application of the principle of mutual recognition on confiscation decisions⁶, the Council's Decision Frame 2008/909/JAI on November 27, 2008 on the application of the principle of mutual recognition of injunction in criminal matters that imply custodial punishments or measures, with the purpose of executing them within the EU⁷, the Council's Decision Frame 2008/947/JAI on November 2008 on the application of the principle of mutual recognition of injunctions and taking of evidence decisions in order to supervise the taking of evidence measures and alternative sanctions and penalties.⁸

In 2009, a part of the European normative acts abovementioned have been modified and completed by the Council's Decision Frame 2009/299/JAI on February 26, 2009, modifying the Decision Frame 2002/585/JAI, 2005/214/JAI, 2006/783/JAI, 2008/909/JAI and 2008/947/JAI, consolidating the procedural human rights and encouraging the application of the principle of mutual recognition on the decisions taken in the absence of the person in question from the trial.⁹

The principle of mutual recognition must be applied to financial penalties imposed by the judicial or administrative authorities, in order to facilitate the application of these penalties in another member state than the one in which the penalties were imposed.

The European normative act that regulates this cooperation activity is the Council's Decision Frame 2005/214/JAI on February 24, 2005 on the application of the principle of mutual recognition of financial penalties, that completes the European normative acts that do not impede a member state from applying its constitutionalPage 223norms on respecting the legality, freedom of association, freedom of the press and the freedom of expression within the media.

Consequently to the obligation assumed as a member state of the EU, Romania transposed the provisions of the European normative act in its internal legislation by adopting Law no.222/2008, amending and completing Law no.302/2004 on international judicial cooperation in criminal matters.¹⁰

Thus, Law no.302/2004 on international judicial cooperation in criminal matters, with its subsequent completions and amendments¹¹ provisions in Title VII- Judicial assistance in criminal matters, Chapter 2- Dispositions on judicial assistance applicable in the relation with EU member states, section 4, a series of norms that refer to the cooperation between the Romanian judicial authorities and similar institutions within the member states in what concerns the application of the principle of mutual recognition of financial penalties.

Note that although the European legislator uses the term "financial penalty", in particular our law used the term "financial penalty".

2. Definition of some Terms

In order to avoid some unilateral interpretations that cannot be in accordance with the European legislator's will, within the Decision Frame, a series of terms used in executing the European normative act have been defined.

Thus, the term decision defines a definitive decision that imposes the payment of financial penalties to a private or judicial person, when the decision was taken by:

- a judicial instance of the issuer state for a criminal act in accordance with the law of the issuer state;

- an authority of the issuer state, other than the judicial instance, for a criminal act in accordance with the law of the issuer state, on condition thatPage 224the person in question has had the possibility to have his/her cause trialed by a judicial instance with special competence in criminal matters;

- an authority of the issuer state, other than the judicial instance, for acts incriminated by the internal law of the issuer state, constituting violations of norms of law, on the condition that the person in question has had his/her cause trialed by a judicial instance with special competence in criminal matters;

- a judicial instance with special competence in criminal matter, when the decision was taken in what concerns the abovementioned.

Financial penalty refers to the obligation to pay:

- a sum of money when condemned for a breach, determined by a decision;

- a compensation imposed within the same decision benefitting the victims, when the victim cannot be a civil part in the procedures and the judicial instance acts in accordance with its criminal competence;

- a sum of money for the judicial or administrative expenses, related to the decision;

- a sum of money for the public fund or an organization for victims' support, imposed in the same decision.¹²

Assuming the abovementioned dispositions, provisioned by the European normative act, in our special law the two terms are defined as follows:

1. The decision is a definitive decision that led to the application of a financial penalty that has to be executed towards a private or judicial person, if the decision was taken by:

   - a judicial instance from the issuer state, on a breach provisioned by the criminal law of the issuer state;
   - an authority of the issuer state, other than an instance, on a breach provisioned by the criminal law of the issuer state, on the condition that the person in question has had the possibility to solicit the cause to be trialed by a competent instance in judicial matters;
   - a competent instance in judicial matters, if the decision was taken related to an abovementioned decision.

2. Financial penalty defines the obligation to pay:Page 225

   - a sum of money as conviction for a breach established through a decision;
   - a compensation established by the same decision in the benefit of the victims, if the victim cannot be constituted as a civil part in the trial and the judicial instance acts according to its competence in judicial matters;
   - a sum of money related to the expenses of the judicial or administrative procedure that led to the decision;
   - a sum of money to the public fund or an organization for victims' support, established within the same decision.¹³

   It is observed that, regarding the provisions in the European normative act, within our internal legislation the term decision is replaced by the term judgment and financial penalty by pecuniary penalty.

   Given the complex casuistry in this context within the EU member states, as well as the necessity of avoiding abuse from the state organisms in this field, the European normative act provisions the situations that are not included in the financial penalty collocation.

   Thus, according to the abovementioned, the following are not included in the financial penalties to which the provisions of the European normative act apply:

   - the orders to confiscate the instruments or products of the breach;
   - the orders that have civil nature and derive from a compensation or restoration request and are enforced according to the Council's Regulation (CE) no.44/2001, on December 22...