International Law Recognition of Foreign Penal Judgments
Pedro Caeiro, Carolina Carvalho
  • LAST REVIEWED: 27 June 2018
  • LAST MODIFIED: 27 June 2018
  • DOI: 10.1093/obo/9780199796953-0165


The expression “recognition of foreign penal judgments” (RFPJ) can be used in a broad or in a strict sense. In the broad sense, it encompasses, generally, the effects that a penal judgment passed by a given state might produce in the legal order of other states, both negative (e.g., ne bis in idem) and positive (e.g., for the purpose of establishing recidivism). In the strict sense, RFPJ is one of the tools used in international judicial cooperation in criminal matters (IJC), whereby a state requests another state to enforce a judgment passed by its courts. Traditionally, the RFPJ is contrasted with judgments in civil matters. The recognition of the latter started to be deemed as unproblematic in the early 20th century (or, in certain countries and instances, even before), whereas the former still meets several objections, essentially drawn from state sovereignty and from the gravity of the effects they might have on individual rights. In more recent times, the issue got fragmented for reasons of a different nature, which are, in part, interrelated. First, the limbs of the RFPJ seem to have followed separate ways: international ne bis in idem became an autonomous topic in its own right, driven by human rights considerations, and the material effects of a foreign conviction (e.g., execution of imprisonment or financial penalties, disqualifications, confiscation) are now the object of dedicated laws and international covenants. Second, the emergence of nonstate entities with (some kind of) jurisdiction in criminal matters fundamentally changed the landscape of the RFPJ. The European Union (EU) established mutual recognition of penal decisions as the “cornerstone” of a common area of freedom, security and justice, which had a number of consequences for the RFPJ. In particular, the EU has broadened the scope and contents of ne bis in idem and has implemented a system of mandatory recognition of penal judgments to certain effects (enforcement of custodial sentences, recidivism, probation, etc.) through instruments binding on the Member States. Additionally, there are the international criminal tribunals, in particular the International Criminal Court (ICC), the statutes of which claim the recognition of their judgments by the states on which they are binding. Hence, one might argue that the RFPJ is changing at the pace of the more general modifications of the conceptions of sovereignty, cooperation, and jurisdiction over criminal matters.

The Classic Framework

A distinction should be made between the classic framework of the RFPJ, on one side, and the special regimes applicable under EU law and the statute of the ICC, on the other. In the context of the former, there seems to be a gap between the (international and domestic) law in force, which is traditionally reluctant to recognize foreign penal judgments, and the legal literature, which points out the reasons why the RFPJ is beneficial to the states and the individuals and to the idea of justice at large. In contrast, those arguments seem to have a better fate in particular political contexts, such as the EU or the ensemble of the states-parties to the Rome Statute of the ICC, owing, respectively, to the idea of mutual trust and to the binomial complementarity/preeminence on which the jurisdiction of the ICC is built. It is also convenient to draw a distinction between the general theory of the RFPJ and the views prevailing in three specific regions.

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