1/ Decision to which this measure applies:
Article D48-6 of the Code of Criminal Procedure lists the decisions to which this measure applies, and the list includes, in particular, the payment of a sum of money required as part of a sentence when a person has been convicted of an offence, including customs or fiscal offences, but also the payment of compensation awarded to victims when they have not been able to formally join themselves into the action as “parties civiles”, ordered as part of the same decision by the criminal court, in the exercise of its jurisdiction, the payment of a sum of money relating to the costs of the judicial or administrative proceedings which led to the decision, the payment of a sum of money awarded to a public fund or a victim support organisation, ordered under the same decision (for example, an organisation similar to the Automobile Guarantee Fund or the Personal Injury Guarantee Fund). Excluded from this list are: confiscation decisions, customs transactions and civil fines.
2/ Authority which issued the decision:
These decisions may have been made by a court or by any other authority, as follows: a court of the issuing State as a result of a criminal offence under the law of the said State, an authority of the issuing State other than a court, as a result of a criminal offence under the law of the said State, on condition that the person concerned has had the opportunity to have the case tried before a competent court, in particular before a court with jurisdiction in criminal matters, an authority of the issuing State other than a court, as a result of conduct which is punishable under the law of the said State, even though the person concerned has had the opportunity to have the case tried before a competent court, in particular before a court with jurisdiction in criminal matters, or a competent court, in particular a court with jurisdiction in criminal matters, when the decision was issued in relation to a decision within the meaning of the preceding subparagraph.
3/ Other conditions relating to the decisions concerned:
- these decisions may concern a natural person as well as a legal person
- these penalties must be final and definitive (not subject to appeal)
- they may concern penalties issued “in absentia” (i.e. when the person concerned had not appeared in person in court at his/her trial), under certain conditions (see below).
The certificate must contain adequate information and must include the details which are essential to enable recovery, in particular the precise identity of the natural or legal person concerned, the habitual place of residence or registered office (headquarters) of the person or information making it possible to identify the assets or the income located in France which justifies the enforcement in France of the financial penalty.
The financial penalty must be enforced without a dual criminality requirement when the conduct/offence is within the categories of offences set out by articles D48-24 and 694-32 of the French criminal code of procedure, if the certificate relating to the financial penalty includes confirmation that the offence falls within one of the above-mentioned categories it is not necessary to check whether there is an equivalent offence under French law [i.e. whether the conduct would also be an offence under French law] and, unless there is an obvious error which would lead to the conclusion that the certificate “manifestly does not correspond to the financial penalty” (article D.48-22 1°), the public prosecutor must not examine the matter to see whether there is an equivalent offence under French law or under French regulations. When the conduct of the person concerned does not fall within one of the categories set out in the above-mentioned articles, France, in application of the stipulations in article 5 paragraph 3 of the Framework Decision, has chosen to make the recognition and enforcement of these financial penalties subject to the condition that the decision “concerns conduct which would constitute an offence under the law (of France) whatever the constituent elements of the offence are and whatever the legal classification of the offence is”. In such a case it will therefore be the responsibility of the public prosecutor to consider whether the conduct for which the penalty has been imposed constitutes a criminal offence under French law or not. If the offence is not an offence under French law the public prosecutor must refuse to enforce the penalty and must inform the competent authority which transmitted the financial penalty decision of this. When the conviction/judgment has been made in a foreign currency the financial penalty must be converted into euros based on the rate of exchange that applied on the date of the conviction/judgment.
4/ Discretionary and mandatory grounds for refusal
The discretionary grounds for refusal are as follows:
- the absence of a certificate, or an incomplete certificate;
- cases in which the financial penalty is less than 70 euros;
- the fact that the offence was committed, in whole or in part, on the territory of the Republic.
The mandatory grounds for refusal are as follows:
- if the financial penalty is based on a fact that does not constitute an offence under French law;
- the financial penalty was issued in relation to a person who was under 13 years of age on the date of the offence;
- the financial penalty relates to an offence committed outside the territory of the issuing State and French law does not authorise the prosecution of these offences when they have been committed outside of the territory of the Republic;
- the financial penalty relates to an offence which falls within the competence of the French courts and the enforcement of the penalty is statute-barred under French law;
- the financial penalty relates to offences for which the person concerned has already been definitively prosecuted by the French judicial authorities or by the judicial authorities of a State other than the issuing State, and the sentence has either been served, is in the process of being served or cannot be served under the law of the convicting State;
- in the case of a written procedure, it is apparent from the certificate that the person concerned was not informed in accordance with the legislation of the issuing State, either in person or via a competent representative in accordance with the law of that State, of his right to appeal and of the time period available to him in which to appeal;
- if, according to the certificate, the person concerned did not appear in court in person, except in the cases that fall within 1° to 3° of article 695-22-1 of the Code of Criminal Procedure, namely: “1° He was informed in a lawful, effective, unambiguous and timely manner, by means of a summons or by any other means, of the date and place fixed for the trial and of the possibility that a decision or order could be made against him if he did not appear in court; 2° Having been informed of the date and the place of the trial he was defended at trial by counsel, designated either by himself or at the request of the public authority, whom he had instructed for this purpose; 3° Having received notification of the decision and having been expressly informed of his right to appeal the decision in order to obtain a new examination of the merits of the case, in his presence, by a court which has the power to take a decision which annuls or substitutes the initial (original) decision, he expressly indicated that he did not contest the initial decision, or he did not exercise, within the deadline that was indicated to him, the right to appeal that was available to him”;
- it is established that the financial penalty decision was taken for the purpose of convicting a person because of their sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that the enforcement of the said penalty could prejudice that person’s position for any of those reasons; There is provision under French law for an immunity which makes it impossible to enforce a financial penalty. It goes without saying ;
- that immunities arising from validly ratified international conventions, which have supremacy over national law, are also applicable.