Recognising foreign convictions during the sentencing phase: Turning a blind eye to equality?
| Author | Nele Audenaert,Wendy De Bondt |
| DOI | http://doi.org/10.1177/20322844221122200 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Article |
Article
New Journal of European Criminal Law
2022, Vol. 13(3) 294–313
© The Author(s) 2022
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DOI: 10.1177/20322844221122200
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Recognising foreign convictions
during the sentencing phase:
Turning a blind eye to equality?
Nele Audenaert and Wendy De Bondt
Ghent University, Gent, Belgium
Abstract
The international validity of convictions can hardly be called a new topic, certainly not within
a European Union context. Within the EU, mutual recognition of foreign convictions has been
accepted as a leading principle. Therefore, it already gained considerable attention, both of the EU
legislator and of legal scholars. However, analysis reveals that mutual recognition of foreig n
convictions has only been anchored partially in the current EU legal framework. Whereas foreign
convictions are relevant in different phases of the criminal procedure, mutual recognition in one
particular phase lacks adequate anchoring. The recognition of a foreign convictions has been dealt
with in relation to ‘the prosecution phase’and ‘the executing phase’, but has been largely left to
Member State discretion for ‘the sentencing phase’that comes in between those phases. As a result,
some Member States have opted for sentencing laws which partially or even completely disregard
the existence of relevant foreign convictions, whereas other Member States have opted for
sentencing laws which –in the spirit of mutual recognition –treat foreign convictions as if it were
national convictions. This contribution will argue that an infringement of the equality principle is
possibly at stake –not so much between these two types of Member States, but within Member
States that partially or completely disregard foreign convictions during sentencing. It does so with
specific reference to the case law of both the Court of Justice of the European Union and the
European Court of Human Rights.
Keywords
Mutual recognition, foreign prior conviction, sentencing, equality, multi offenders, case law analysi s
Corresponding authors:
Wendy De Bondt, Ghent University, Universiteitstraat 4, Gent, 9000, Belgium.
Email: Wendy.DeBondt@Ugent.be
Nele Audenaert, Ghent University, Universiteitstraat 4, 9000 Ghent, Nele.
Email: Audenaert@Ugent.be
Introduction: The gap in the mutual recognition framework
The introduction of the free movement principle encouraged people to move around within the
European Union. It also meant that people who had been convicted in one Member State could
travel and could be caught and prosecuted elsewhere in the European Union for other crimes
committed. In doing so, questions arose with respect to the position of foreign prior convictions in
the course of a new criminal proceeding. It exposed the necessity to elaborate on the EU’s position
with respect to the international validity of foreign convictions. Before the formal introduction of
mutual recognition as an overarching leading principle, the issue was already addressed, be it
fragmentarily. The development of this EU policy line really got airborne with the European
recognition of the ne bis in idem-principle. Art. 54 CISA anchored the rule that a person whose trial
has been finally disposed of in one Contracting Party, may not be prosecuted in another Contracting
Party for the same acts.
1
In doing so, the impact of foreign prior convictions found its way into the
EU legislative framework.
Upon the introduction of mutual recognition as an overarching leading principle –shaping
judicial cooperation in the EU –a helicopter view was taken on the impact of foreign prior
convictions and the effect of that view could be felt throughout the criminal procedure. From that
point forward, gradually, mutual recognition of foreign convictions broadened in scope. Instrument
upon instrument was adopted in which Member States committed themselves to recognising foreign
convictions during both ‘the prosecution phase’and ‘the execution phase’of a criminal procedure.
2
With every new instrument adopted, the lack of attention for ‘the sentencing phase’became more
and more apparent, notwithstanding it being clear that prior convictions may also have significant
bearing on sentencing.
Finally, in 2008, the EU adopted the Council Framework Decision 2008/675/JHA entitled
“taking account of convictions in the Member States of the European Union in the course of new
criminal proceedings”
3
(hereafter: FD Prior Convictions). This Framework Decision stipulates that
–as a principle requirement –foreign prior convictions –provided of course they are handed down
in another EU Member State –should be taken into account in the entire course of a new criminal
procedure. To clarify the meaning thereof, the Framework Decision explains that this requires EU
Member States to attach the same or at least equivalent legal effects to a foreign conviction when
compared to a national conviction. In doing so, the Framework Decision effectively introduces the
so-called “equivalence principle”. Within an EU context, a foreign prior conviction should have an
effect that is equivalent to the effect a national prior conviction would have. Differently put, the
origin –or “nationality”if you want –of the conviction ought to become obsolete. In doing so the
general equality principle had been “translated”and had been made applicable in a “cross-border”
sentencing context, i.e. a sentencing context in which foreign prior convictions are involved.
Of course, the political compromise enshrined in the text of the Framework Decision included
some exceptions to this requirement. Apparently, not all Member States felt comfortable with the
potential impact of implementing this equivalence principle without any exception. To that end
Article 3(5) FD Prior Convictions was introduced. Pursuant to this Article, EU Member States are
1. Art 54 CISA further reads: “… provided that, if a penalty has been imposed, it has been enforced, is actually in the process
of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party”.
2. Nele Audenaert and Wendy De Bondt, ‘Setting the Scene: Why Study Multi-Offenders?’in Nele Audenaert and Wendy
De Bondt (eds), Prosecuting and Punishing Multi-Offenders in the EU (Gompel&Svacina 2021).
3. Council Framework Decision 2008/675/JHA on taking account of convictions in the Member States of the European
Union in the course of new criminal proceedings [2008] OJ L220/32.
Audenaert and De Bondt 295
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