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 foreign 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
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 provided the option to limit the effect of the equivalence principle in their own jurisdictions; they are provided the option to decide that the equivalence principle would not apply if this “would limit the judge in imposing a sentence”. In other words, Member States are willing to take account of a foreign prior conviction as long as it does not limit the sentencing options of a judge.
The question arises, what type of situations would be affected by this decision. Which prior convictions would be left aside? Surely, when considering situations in which prior convictions are taken into account in the course of a new criminal proceeding, the first thing that comes to mind are the so-called repeat offenders: People who have been convicted in the past – hence the existence of a prior conviction – and commit new offences at a later stage. In those situations, the prior conviction could possibly inspire the judge to impose a sentence that exceeds the sentence he would have imposed without such a prior conviction. This means that the existence of a prior conviction could provide the judge with more sentencing options. Mutually recognising foreign prior convictions and taking them into account in this context does not seem to be a problem. Therefore, these are not the type of situations that are affected by this decision. However, there are also situations in which taking account of the prior conviction actually limits the sentencing options of a judge. Albeit not the first thing that may come to mind, this is exactly what happens in the situation of so-called multi-offender cases. 4 Those cases relate to offenders who have committed a multitude of offences; sometimes the same type of offences committed in a short space in time, sometimes a whole plethora of different offences committed over a longer space in time. These sets of offences can be labelled as a ‘concurrence’: they are not to be treated individually, but ought to be seen as co-existing. Within the EU Member States, several mechanisms have been developed, with a view to punishing such a concurrence as fairly as possible. The majority of the EU Member States does not simply add up the different penalties prescribed for the different offences of the concurrence, since this could result in a disproportionate, or even complete absurd, punishment. 5
To make matters even more complex, it is not uncommon for the co-existing offences within a concurrence to be prosecuted in separate proceedings, because – for example – not all offences had been discovered at the time of the first proceeding. Therefore, here too, the existence of a prior conviction can be highly relevant. Surely this is not the first thing that comes to mind, but it clearly is a situation in which having a prior conviction is highly relevant for the sentencing stage;
It is clear that this situation is exactly the situation that is affected by Article 3(5) FD Prior Convictions, for these are situations in which the sentencing options of the judge might be limited. Interestingly indeed, in most of the EU jurisdictions, sentencing laws stipulate – in one way or another – that the total punishment for all concurring offences will never exceed a certain maximum limit. The sentencing options for a judge are limited in that he is not allowed to add up all sentences available for each of the individual offences. This rule stands, regardless of the number of proceedings the prosecution of that concurrence is split up in. The sentencing rules introducing the sentencing limit, equally apply to the situation where all offences in the concurrence are jointly tried in a single proceeding, as well as to the situation where the offences in the concurrence are consecutively tried in two or even more succeeding proceedings. Therefore, the existence of a prior conviction related to the concurrence in most Member States significantly reduces the sentencing options of the judge. This is only logical as the number of criminal proceedings does not affect the seriousness of the offences nor the circumstances in which they were committed. For that reason, the number of proceedings should not have a bearing on the sentence. 6 Therefore, in such a case, the judge in a subsequent criminal procedure is required to take the previously imposed penalty into consideration.
Turning back to the rules of the FD Prior Conviction, this means that the wording of Article 3(5) opens the door to an implementation of the equivalence principle that does not equally apply to all offenders holding a foreign prior conviction. Pursuant to Article 3(5) FD Prior Convictions – it is apparently accepted that Member States decide that this limitation to the sentencing options of a judge, only comes into play when the prior conviction at stake is a national prior conviction. If the prior conviction is a foreign prior conviction, the EU allows Member States to shape their sentencing rules in such a way that these foreign prior convictions can be left aside when they would limit the sentencing options of a judge. Differently put, this means that a multi offender with a national prior conviction can benefit from the limiting effect of the maximum penalty, whereas the multi offender with a foreign prior conviction cannot. Multi-offenders are not guaranteed to be able to benefit from the general equivalence principle put forward when having a foreign prior conviction and are likely to fall victim to this remarkable limitation to the mutual recognition principle.
As odd as this may seem, it is left to Member States’ discretion to decide – when implementing Article 3 (5) FD Prior Convictions – whether or not their judges would also be required to take account of a foreign prior conviction, or whether their judges are allowed to disregard it. This remarkable provision demonstrates that mutual recognition is accepted and smoothly introduced as long as it does not limit judges in their competence to impose the sentences provided for in their national criminal codes. Beyond that, it is only an option. It is most unfortunate that only a minority of the EU Member States opted to mutually recognize foreign prior convictions, regardless of the limiting effect during the sentencing phase. Most Member States shamelessly use the exception provided for in the FD Prior Convictions and have shaped their national sentencing rules in a way that would allow the judge to use the full breath of sentencing options. In doing so, those Member States most unfortunately, denied the mutual recognition principle to extend to sentencing, regardless of whether it is required for judges to demonstrate that the foreign prior conviction was taken into account ‘in another way’.
The question arises whether this situation is merely unfortunate in light of its impact on the scope and functioning of the mutual recognition principle, or whether it is highly problematic in light of other binding legal principles. This contribution will argue why this could possibly be considered as turning a blind eye to the equality principle that also applies in criminal matters.
To avoid false expectations of the analysis, it must be stressed, that only differences in treatment between offenders that fall within the jurisdiction of one and the same legislator will be put to the test. This means that the analysis only looks into scenarios were the sentencing laws of one and the same Member State are applicable and compares the impact of the exception provided for in FD Prior Convictions in a national context. This means that the difference in treatment between offenders falling within the jurisdiction of different legislators will not be analysed, for it is clear that these difference can not amount to a violation of the equality principle. Even though offenders might feel treated unequally when comparing themselves to an offender in another jurisdiction, this falls outside of the scope of the equal treatment principle. Although felt as unequal, the mere fact that Finland requires foreign prior convictions to be given equivalent effect and Belgium does not, 7 does not constitute an inequality – in an EU law sense of that word. Inequality only comes into play if – within one jurisdiction – the application of one single set of sentencing laws amounts to an unequal treatment. After all, it is settled case-law that differential treatment only violates the equality principle if this differential treatment has been established by one and the same EU Member State. 8
For that reason, the following two specific scenarios will be put to the test, comparing the faith of offenders within one jurisdiction to each other. Firstly, the equality principle will be applied to two multi-offenders, one with a national and one with a foreign prior conviction. The analysis will uncover to what extent the equality principle requires that where the existence of a national prior conviction could mitigate a sentence, the existence of a foreign prior conviction should also be able to mitigate a sentence in an equivalent fashion. Secondly, the equality principle will be applied to two offenders with a foreign prior conviction, one being a repeat offender and one being a multi offender. The analysis will uncover to what extent the equality principle requires that where a prior foreign conviction can or must be taken into consideration to aggravate a sentence, a prior foreign conviction should also be taken into consideration to limit a sentence. To shed light on these scenarios, 80 cases of the Court of Justice of the European Union (hereafter: CJEU) and 668 cases of the European Court of Human Rights (hereafter: ECtHR) were analysed using NVivo.
Putting FD Prior Convictions to the test: Does non-equivalence in sentencing amount to unequal punishment?
Scrutinising (the effect of) the FD Prior Convictions in light of the equality principle, presupposes the existence and applicability of the equality principle to this specific context. For that reason, it is relevant to reiterate that both the European Union and the Council of Europe (hereafter: CoE) have recognised the equality principle. As regards the EU, the equality principle can be found in several different contexts. Not only has it been recognised as a general principle of EU law, 9 as echoed later on in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (hereafter: EU Charter), it has also been further elaborated on in specific fields (e.g. Gender Equality Directive and Racial Equality Directive). The CoE, in its turn, enshrined the equality principle in Articles 14 and 1P12 of the European Convention on Human Rights (hereafter: ECHR).
For this contribution, only cases with regard to Article 21 EU Charter and Article 14 ECHR were analysed. The other legal provisions were considered less relevant for an evaluation of the applicability thereof to our “transnational” multi-offenders. After all, whereas Article 21 EU Charter is considered to encompass Article 20 EU Charter and the other appearances of the EU equality principle, 10 Article 14 ECHR is particularly relevant due to Article 1P12 being ratified by only a very small number of countries. 11
Both European Courts have developed some similar criteria for the interpretation and application of the equality principle. 12 Essentially, the principle requires to treat equal groups of persons in an equal manner and different groups of persons in a different manner, unless doing otherwise is reasonably and objectively justified. 13 The most important difference between both Courts has to do with the scope of the equality principle (A). The other criteria that have been developed with regard to the comparability of differentially treated (groups of) persons (B) and the possible reasons for justifying a differential treatment (C), on the other hand, are to a large extent interpreted and applied in a similar manner by both European Courts. Unfortunately, this does not appear to be sufficient to prevent the equality principle from being subject to debate. After all, a detailed analysis of the case-law revealed that its implications are rather vague. Considering that the line between equality or inequality is, up to this point, impossible to draw, it seems better to refer to an equality ‘spectrum’ rather than to speak of an actual equality/inequality dichotomy (III).
The scope of the European equality principles: A small step for a multi-offender
Bringing a case in front of the European Courts is made dependant on a number of general conditions that need to be met. In addition thereto, bringing an equality case in front of the European Courts is made dependant on an extra set of conditions. Therefore, any analysis on the possible violation of the equality principle needs to start with an analysis of the extent to which the situation at hand can meet all those conditions; Therefore it is important to first uncover whether disregarding the equivalence principle for foreign prior convictions in multi offender cases, could possibly meet these conditions. Considering that the conditions to file an application (on the basis of the equality principle) are traditionally applied leniently, admissible is not likely to be a problem. It can be expected that the European Courts will declare multi-offender cases admissible. (1) Conditions to invoke Article 21 EU Charter
The first limb of Article 21 EU Charter stipulates that “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”. The second limb adds that “within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited”. No specific conditions to invoke the equality principle can be derived from these wordings.
However, it must be kept in mind that Article 51 EU Charter limits the field of application of all provisions in the EU Charter. As a consequence thereof, the equality principle can only be invoked when EU law is at stake. 14 Thus only in relation to (i) Union law itself or (ii) national rules that are the implementation of Union law.
The analysis can therefore be conducted on one of two levels. Either the analysis can focus on the conformity of Article 3(5) FD Prior Convictions itself with the EU Charter. Pursuant to Article 21 EU Charter, a provision in an EU instrument cannot hold a discrimination. Or, the analysis can focus on the conformity of the national sentencing law, implementing FD Prior Convictions as a whole, including Article 3 (5) thereof. For the latter level, it should be ascertained that those national sentencing laws are in fact the implementation of Union law. Whereas that my seem rather straight forward, a recent judgment of the CJEU had to clarify how to differentiate between national provisions that are or are not the implementation of Union law. It clarified that Article 51 EU Charter requires to analyse (i) whether the national rule aims to implement a Union provision, (ii) the nature of the legislation, (iii) the extent to which the national rule also pursues other objectives than Union objectives and (iv) whether specific Union rules cover or affect the matter. 15
What makes it difficult to analyse national provisions in this context, is that Union law does require Member States to differentiate between repeat offenders and multi-offenders; or between multi-offenders with either a national or a foreign prior conviction, but merely allows Member States to do so. The questions arises whether picking up on ‘the EUs acceptance’ to legislate in a certain way, constitutes an implementation of Union law as provided for in relation to determining the scope of Article 51 EU Charter. In academia, conflicting lines of argumentation are developed as to whether or not these so-called “optional derogation clauses” fall inside or outside the scope of Article 51 EU Charter. Linking in with the general trend towards broadening the scope of Article 51 EU Charter, 16 and as argued by others, 17 we submit that there is clearly a direct link between the national rules and the EU instrument. More importantly, even if one would disagree that the national sentencing provisions regarding the effect of foreign prior convictions in themselves need to be in conformity with the non-discrimination requirements of the EU Charter, still Article 3(5) FD Prior Convictions itself should be, and can be challenged if a violation would be demonstrated. For that reason, the analysis will look into the conformity of Article 3(5) FD Prior Convictions, using the national sentencing provisions to demonstrate what the impact thereof is, especially for multi-offenders.
The scope of Article 21 EU Charter therefore seems a hurdle that is rather easy to overcome for transnational multi-offenders who would want to put their differential treatment to the equality test.
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It is very unlikely that a case would not be admissible under Article 21 EU Charter. (2) Conditions to invoke Article 14 ECHR
Compared to Article 21 EU Charter, it is even less likely that the ECtHR would declare an Article 14 ECHR case inadmissible. 19
Article 14 ECHR states that “the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Article 14 ECHR can thus only be invoked when reference can also be made to another provision of the Convention. 20 However, it is not required that this other provision is also violated. There must be an inequality in the application of a right included in another provision, without the need for that right to also be violated. It is sufficient, yet vital, that the facts of the case are linked to the ambit of another provision. 21 This has been confirmed and elaborated on by the ECtHR. The ECtHR explained that Article 14 ECHR continues to apply when a Member State voluntarily broadens the scope of a ECHR provision. The rights included in the ECHR should be applied equally and any decision to broaden the scope thereof should be done in an equal manner. 22
Securing the application of Article 14 ECHR therefore requires a demonstration of how Article 3(5) FD Prior Convictions engages with other ECHR provisions. First of all, reference can be made to the proportionality principle in Article 3 ECHR. It has already been explicitly recognised that the proportionality principle applied in criminal matters entails that the sentence imposed should be proportionate in light of the offence committed. 23 It is generally accepted that the maximum limits introduced in sentencing laws in relation to multi-offenders find their ratio legis in the proportionality principle. Furthermore, also the right to protection of property (when a disproportionate sum of penal fines was imposed) 24 and the right to liberty and security (when an infinite or disproportionate period of deprivation of liberty was imposed) 25 could be invoked. Even the right to a fair trial 26 or the legality principle 27 could be linked to the case of “transnational” multi-offenders. It is important to bear in mind that our “transnational” multi-offenders need not demonstrate a violation of those rights by disregarding the foreign prior conviction, but can suffice by demonstrating that these rights are not guaranteed in an equal manner. Only the violation of the equality principle is at stake. 28
Differential treatment of persons in comparable situations: A somewhat bigger leap for a multi-offender
To benefit from the applicability of the right to equal treatment, the claimant has to demonstrate to find himself in a comparable situation to others (1) yet is treated differentially (2). (1) The comparability of the situation of the multi-offender to the situation of others
First, it is required for the claimant to establish the comparability between his situation and the situation of others. After all, the equality principle only prohibits a difference in treatment of people who are in equal or analogous situations. Especially in criminal law matters, this proof is rather delicate as the basis of all criminal law systems is the individualisation of punishment. 29 When imposing a penalty, a judge should always take the personal background of the defendant into consideration. Inequality is therefore more of a rule than an exception in criminal cases. Fortunately, the European Courts require the situations to be comparable, not to be equal. 30 The European Courts will generally assess what stakes are at matter, 31 implying that differences that are not or should not be criminally relevant will not affect the comparability of two defendants. It is still rather rare for the European Courts to dismiss a case merely because two situations are not sufficiently comparable. 32
Traditionally, the comparability of offenders is linked to the offences that have been committed or the rules that have been violated: people who have committed similar offences could find themselves in a similar situation, whereas vice versa, people who have committed completely different offences cannot find themselves in a similar situation. However, this interpretation of similarity is too narrow. For the purpose of this analysis the similarity of the multi-offender is linked to having a prior conviction. Two scenarios can be elaborated on where a multi-offender with a foreign prior conviction finds himself in a similar situation as another offender, regardless of the underlying offences committed.
Firstly, it can be convincingly argued, that there is a similarity between on the one hand a multi-offender with a foreign prior conviction related to part of the set of concurring offences (the so-called “transnational” multi-offender) and on the other hand a multi-offender with a national prior conviction related to part of the set of concurring offences (the so-called “national” multi-offender). The relevant similarity between both multi-offenders relates to having a prior conviction related to part of the set of concurring offences and now being subject to a prosecution for the remaining part of the concurring offences. The difference that lies in the “nationality” of their prior convictions ought to be completely irrelevant. The first multi-offender happens to be convicted in another Member State than the Member State currently prosecuting him, resulting in his prior conviction to be labelled as a foreign prior conviction. Yet, the second multi-offender happens to be convicted in the same Member State than the Member State currently prosecuting him, resulting in his prior conviction to be labelled as a national prior conviction. Jurisdiction decisions deciding on the place where the offender is convicted are completely out of their hands and could have resulted in a completely different situation. Surely the first multi offender could also have been prosecuted again in the same Member State that handed down the first conviction, which would suddenly requalify it as national. Within an EU context though, the “nationality” of their prior convictions ought not to be used to qualify their situation as different. This would be contrary to the fact that the EU aims to establish a single judicial area, in which the mutual recognition principle effectively erases the relevance of the origin of a juridical decision, and pursuing its validity throughout the entirety of the European Union. Surely it is completely illogical to support that the difference in origin of the prior conviction would amount to these multi-offenders to find themselves in different situations. 33 Moreover, a differentiation based on nationality would violate fundamental EU principles such as free movement. 34 And even though it is not the nationality of the multi-offender as such that is used as a discriminatory criterion, but the nationality of the prior conviction, this does not take away that this would amount to an indirect discrimination based on nationality as persons with a foreign nationality are far more likely to have a foreign prior conviction compared to a Member States’ own nationals. Indirect discrimination occurs whenever an at first sight neutral rule implies a specific disadvantage for a particular group of persons. 35 The effect thus prevails over the wordings of the rule. 36 In any event, an argumentation substantiating that both multi-offenders find themselves in a different situation solely based on the origin of their prior conviction, would amount to a prohibited discrimination. The relevant similarity between both offenders relates to having committed a set of concurring offences (i.e. being a multi-offender), having been prosecuted and convicted for part of the set of concurring offences (i.e. having a prior conviction) and currently being prosecuted for the remaining part of the concurring offences (i.e. new criminal proceeding). Considering that no similar question has already been asked to one of the European Courts, it is extremely difficult to predict the answer, but surely both situations would be considered equal with respect to having a prior conviction, regardless of the origin thereof.
Secondly, it can be convincingly argued, that there is a similarity between a person with a foreign prior conviction, who is currently prosecuted for offences that concur with the offences underlying the prior conviction (i.e. the so-called transnational “multi”-offender) and a person with a foreign prior conviction, who is currently prosecuted for offences that have been committed after the prior conviction was executed (i.e. the so-called transnational “repeat”-offender). Whereas there are again a lot of differences between these situations,
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the relevant similarity relates to the existence of a foreign prior conviction. The extent to which the existence and content of a foreign prior conviction can or cannot be taken into account in the course of a new criminal proceeding, must be equal for both offenders. Considering that no similar question has already been asked to one of the European Courts, it is extremely difficult to predict the answer, but surely the equality principle seems to require that the prior conviction of both types of offenders is equally taken into account in the context of the new criminal procedures. It would amount to an inequality should one of the foreign convictions be disregarded solely based on its origin, whereas the other foreign conviction would be recognised and given an effect that is equivalent to a national prior conviction, regardless of its foreign origin. (2) The differential treatment of multi-offenders compared to the treatment of those others
As a baseline, it does not take much for two treatments to be ‘differential’ in the meaning of a prohibited differential treatment. Even the slightest difference has been accepted a problematic, even implicitly. 38 Both European Courts consider it irrelevant whether or not the differential treatment is a consequence of the law or follows from the reasoning of the judge; A different punishment in concreto have been accepted by both the CJEU and the ECtHR as a differential treatment. Furthermore, also indirect forms of differential treatment are prohibited. Therefore, this step will probably not be an important obstacle for our “transnational” and “multi”-offenders: 39 It could easily be argued that transnational multi-offenders are treated differentially in both described scenarios.
Firstly, it is clear that “transnational” multi-offenders could be punished more severely compared to “national” multi-offenders. For “national” multi-offenders, whose offences are all tried in the same EU Member State, judges are required to respect a predetermined maximum penalty for the whole set of concurring offences. “Transnational” multi-offenders, on the other hand, can often not enjoy such a penalty discount: convictions handed down by a foreign judge will not be taken into consideration for the calculation of the predetermined maximum. For example, according to Belgian sentencing law, in a mere Belgian case, a serial airbag thief cannot be punished with a prison sentence of more than 10 years, regardless of the number of committed thefts. However, if the case exceeds the Belgian orders in that the offender was already convicted abroad for a few of those thefts, the imposed penalty is not taken into consideration to check whether the maximum limit of 10 years imprisonment will be exceeded. This can possibly result in a total penalty that is much more severe than the total penalty for a “national” multi-offender of the same calibre.
Secondly, “transnational” multi-offenders are also treated differentially from “transnational” repeat offenders. Whereas multi-offenders are often granted a penalty discount in comparison to a single-crime offender, in the sense that the different penalties prescribed for the different offences are not simply added up without any limitation, repeat offenders are often punished more severely compared to first time single-crime offenders: Their previous conviction will often give rise to an aggravated sentence. This is also the case when this previous conviction was handed down by a foreign judge. After all, the exception of FD Prior Convictions only applies when recognising a foreign judicial decision would benefit the offender, and not when this would give rise to an aggravated sentence. Contrary to what applies for “transnational” multi-offenders, prior foreign convictions are thus always taken into consideration for “transnational” repeat offenders.
Justification of a differential treatment: A giant leap for (some of) the EU Member States
However, not every difference in treatment between persons in comparable situations will be considered a violation of the equality principle. In some (and probably even most) cases, it is allowed to make a distinction between two comparable groups of persons. First of all, there is no prohibited inequality when the differential treatment is based upon an allowed criterion of differentiation (1). Secondly, there is also no prohibited inequality when it can be proved that the differential treatment is objectively and reasonably justified (2). (1) In search of a justification amongst the allowed criteria of differentiation
A violation of Articles 21 EU Charter and 14 ECHR is only at issue when the differential treatment is based upon a prohibited ground. In this regard, both Articles sum up a few grounds, such as gender, nationality, race, religion and political beliefs, on the basis of which no distinction can ever be made. In none of these articles this list of prohibited grounds is exhaustive. This follows directly from their wordings: both Articles mention that any discrimination based “on any ground” “such as (…)” is prohibited. But what grounds are prohibited then? As regards Article 21 EU Charter, the answer to this question is not very clear. In general, for now, the CJEU has been rather reluctant to accept any grounds that are not mentioned in this Article. 40 Of course, this renders the Article a scope that is much more limited than originally aimed for. As regards Article 14 ECHR, to the contrary, the ECtHR did already explicitly state that there are several more prohibited grounds than those summed up. However, the prohibited grounds are still not unlimited in number. It is settled case-law that only grounds that are linked to (i) immutable, inherent characteristics of a person 41 or (ii) characteristics for which a person has chosen, but are nonetheless essentially linked to his/her personality, are prohibited. 42 Despite this explicit stance, these two criteria are not always interpreted in the same manner. The ECtHR sometimes even moves straight forward to the justification test by getting the question to the differentiation ground out of the way. Therefore, also for the ECtHR, it is rather difficult to predict the outcome of the prohibited ground-test.
In light of the vague guidelines provided for in the European case-law, the difference in treatment between “national” and “transnational” multi-offenders already poses quite some challenges. First of all, it must be highlighted once more that the case-law according to which differences in treatment following the application of different regional legislations are not prohibited 43 , is not relevant in this context. After all, the differences in treatment are established by one and the same jurisdiction and legislator. 44 However, is a differentiation based upon having received a prior foreign conviction instead of having received a prior national conviction based upon a prohibited ground? The “nationality” of a conviction is anyway nowhere mentioned in Article 21 EU Charter nor in Article 14 ECHR. Considering its general reluctance, this will probably not in itself be accepted as a prohibited ground by the CJEU. The same does not necessarily apply to the ECtHR. Perhaps the nationality of a prior conviction can be considered an immutable characteristic? Although the nationality is in this case a characteristic of a conviction, and not of a person, 45 it can be argued that this ground is indeed immutable. After all, it is not up to the offender to decide which and how many EU Member States initiate a criminal procedure for a part of the committed offences. 46 Even if all offences are committed on the territory of one and the same EU Member State, it is possible that other EU Member States will prosecute the multi-offender on the basis of an extraterritorial competence, such as the nationality of a victim. The question arises to what extent an offender could really avoid to be put in this adverse situation. 47 After all, even the decision to confess all committed offences in order not to lose the benefit of the maximum sanction levels, is not a guarantee that all offences will be tried at once. Moreover, this consideration as a solution to the equal treatment should be criticized as being an implicit obligation or pressure to do so, which could violate the principle against self-incrimination. Furthermore, in the case of Cînta, the ECtHR already ruled that certain factors, that as such do not raise an issue in light of the equality principle, may amount to discrimination when these are used as the decisive element in all stages of the decision-making process, even though there was no obvious reason to do so. 48 On the other hand, in the past, the ECtHR ruled that the place of prosecution is not a prohibited ground. 49 Will the ECtHR rule in the same fashion concerning the place of conviction? This is hard to tell. The main difference between both grounds is their result: the place of prosecution will have an impact upon the applicable rules, whereas this is not the case for the place of conviction. 50 It can therefore not be excluded that the ECtHR would label this ground as prohibited. However, it must be kept in mind that also forms of discrimination that are only indirectly based upon such a prohibited ground can possibly violate the equality principle. It thus seems much safer to claim the existence of an indirect form of discrimination with regard to this first difference in treatment. After all, it is not inconceivable that persons with a foreign nationality, a foreign place of residence 51 or with an immigration status will be more likely to have been handed down a foreign conviction and will thus be more likely to experience the negative consequences of the (neutral) exception of Article 3(5) FD Prior Convictions. At the same time, it must be added that this likeliness is yet to be substantiated in a scientifically sound manner. So far, no official statistics are available with regard to the link between nationality/place of residence/immigration status and the nationality of prior convictions. Nonetheless, once again, it cannot be excluded that this differential treatment would fail the prohibited ground-test. Again especially based on the number of cases dismissed due this test, 52 it is probably not entirely impossible for a multi-offender to prove that the difference in treatment was established on the basis of a prohibited ground.
The odds seem to be less in favour of the claimant who would want to challenge the differences in treatment between multi-offenders and repeat offenders. Although it is rather difficult to justify why recognising a prior foreign conviction is only possible to the disadvantage of an offender,
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it is not very likely that this ground (either or not having a criminal record before committing new offences) would be considered prohibited. It is impossible to claim that this is a characteristic that is completely out of the offender’s hands. Moreover, differentiating between first time- and repeat offenders is generally accepted in all EU Member States. On the other hand, the criterion of either or not having been convicted before has already been accepted in previous cases of the ECtHR.
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Furthermore, this does not mean that this difference in treatment is not at all relevant. It can at least well be used by a claimant to argue that the first difference in treatment cannot be reasonably and objectively justified. (2) In search of an objective and reasonable justification
Out of the two described scenarios of differential treatment, probably only one will make it to the final step of the equality test. In this step, it is up to the decision-maker to prove that the differential treatment is objectively and reasonably justified. With this aim in mind, the European Courts will check (i) whether the difference in treatment pursues a legitimate aim and (ii) to what extent the used means are proportionate to that aim. These criteria are not always given the same interpretation. The margin of appreciation that is given to the EU and/or the EU Member States differs according to the subject-matter of the case. In sensitive cases, in which for example a differential treatment on the basis of gender, sexual orientation or nationality is at hand, it will be a lot more difficult to claim that such a treatment is objectively and reasonably justified. To the contrary, differences that have been established on the basis of less personal and less sensitive grounds are rather easy to justify. Considering that the difference between “national” and “transnational” multi-offenders will probably not be labelled as sensitive, it can be expected that the margin of appreciation left to the decision-maker is rather generous. Moreover, EU Member States are usually granted a generous margin of appreciation in criminal law matters in general.
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As a result, only a manifestly unreasonable differential treatment will not pass the equality test.
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Again, the outcome of the case law analysis clearly indicates how difficult it will be to challenge a differential treatment: at least 92 cases of the ECtHR were dismissed because the differential treatment was considered to be justified. As regards the CJEU, the figures are less worrisome (only 10 differences in treatment were considered justifiable), but this is rather due to the strict application of previous criteria. The following assessment should be read against this background. (i) Pursuing a legitimate aim
Firstly, it must be established that the differential treatment pursues a legitimate aim and is appropriate to effectively reach that aim. Article 52 EU Charter clarifies that this is the case whenever the differential treatment genuinely meets objectives of general interest or the need to protect the rights and freedoms of others. However, the CJEU does not always explicitly refer to this Article. 57 Both European Courts will generally assess to what extent the legitimate aim is related to the differential treatment and is compensated by additional and efficient guarantees. 58 But what does this mean for Article 3(5) FD Prior Convictions?
First of all, it was probably not the intention of the European legislature to discriminate between “national” and “transnational” multi-offenders. However, to what extent is a lack of discriminatory intent sufficient to meet the legitimate aim-criterion? The answer to this question is still subject to debate. In a few cases of the ECtHR, this issue was specifically addressed. From these cases, it can be derived that, in general, a lack of a discriminatory intent does not necessarily imply the existence of a legitimate aim. 59 It can at best be considered an indication for the existence of legitimate goals in the mind of the legislator. It should thus still be assessed to what extent the non-discriminatory aim of the exception to the equivalence principle are legitimate.
To uncover this aim, recourse should be sought to the preparatory documents. Originally, these preparatory works did not mention an exception to the equivalence principle: no Article 3(5) was introduced. Especially The Netherlands argued in favour of its introduction in a later phase of the legislative procedure. 60 Mainly the concern for a de facto impunity inspired this argumentation. More specifically, The Netherlands argued that due account should be taken of the possibility that some countries seem very punitive imposing harsh penalties, but are in fact very lenient in the execution thereof. They were concerned of being confronted with a harsh yet unexecuted penalty that would still effectively hinder a judge in The Netherlands to impose an additional penalty for the remaining part of the concurrence. From that perspective it is argued that Article 3(5) FD Prior Conviction aims to avoid these situations of de facto impunity that could arise from the differences that exist amongst the sentence execution laws of the EU Member States. Two years ago, the Belgian Constitutional Court was already asked to assess the legitimacy of this aim. Without wasting too many words to the issue, it came to the conclusion that this aim was indeed legitimate. 61
But would the European Courts also come to this conclusion? They probably would. After all, up until now, there is no full European consensus on the recognition and equalisation of prior foreign convictions for multi-offenders. Although only a minority made use of the exception of Article 3(5) FD Prior Convictions, 62 this assessment will probably affect the evaluation of both the CJEU and the ECtHR. 63 Also the generous margin of appreciation would probably encourage the European Courts to accept the legitimacy of the pursued aim. Last but not least, preventing the risk of impunity has in the past already been explicitly accepted as a legitimate aim. 64 On the other hand, it could also be argued that the introduction of the equivalence principle itself precisely aimed to compensate for the lack of consensus between the EU Member States. Can an exception to this principle then be justified by making reference to this lack of consensus? Furthermore, this goal seems to drastically challenge the concepts of free movement and mutual trust. It can thus be questioned whether such an aim is sufficiently contemporary. On top of that, it can also be questioned whether a de facto impunity will occur often in reality. Is it truly justified to treat all “transnational” multi-offenders more severely compared to “national” multi-offenders for the very small chance that a few countries could say one thing, but do another? In previous case-law, for example, the ECtHR already emphasised the importance of “in casu necessity”. This implies that the legitimacy of a pursued aim in general does not affect the requirement of the legitimacy of a pursued aim in casu. It must always be substantiated that it was necessary to pursue that (general) aim in the context of the present case. 65 This seems to indicate that it will always be necessary to demonstrate that there is a genuine risk of de facto impunity in the case at issue. If not, the European Courts, or at least the ECtHR, could very well evaluate the differential treatment of a “transnational” multi-offender as illegitimate.
Also other concerns could motivate the decision to not assimilate prior foreign and national convictions. The Belgian legislature, for example, argued that it would be very difficult to take into consideration a prior foreign conviction from a practical point of view.
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This is a rather strange argument, considering that prior foreign convictions are taken into consideration in other situations, more specifically in disadvantage of a defendant. Moreover, it is settled case-law of the ECtHR that mere practical and procedural difficulties are insufficient to justify a differential treatment.
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(ii) The proportionality of the differential treatment of “transnational” multi-offenders
Finally, it must also be substantiated that the differential treatment is proportionate to the pursued aim. In this regard, the European Courts will analyse whether the difference in treatment does not lead to unreasonably severe consequences. Especially serious consequences caused by a differential treatment will be targeted by the European Courts. 68 Furthermore, the existence of less intrusive (and less unequal) alternatives for reaching that aim will be assessed. 69 However, in this context, again, only a manifest disproportionality will not pass the test: 70 in previous case-law, the ECtHR already confirmed that “matters of appropriate sentencing fall outside the scope of the Convention unless a sentencing policy affects individuals in a discriminatory manner”. 71
It is beyond dispute that not attaching equivalent legal effects to foreign prior convictions compared to national prior convictions, could have some important adverse consequences for a multi-offender. After all, this approach could very well result in a much more severe – and much less proportionate – penalty. 72 Interesting in this regard is the case-law according to which a sufficient amount of safeguards should be put in place to compensate for these negative consequences. 73 It appears that especially the additional requirement that a prior foreign conviction does still otherwise have to be taken into consideration will play in favour of the EU legislature. After all, on the basis of this requirement, the severe consequences of not attaching to prior foreign convictions equivalent legal effects as to prior national convictions must be mitigated. But does the EU with this requirement not pass the responsibility too much to the EU Member States? In Belgium, for instance, this requirement was not implemented: it is up to the judges to decide to what extent prior foreign conviction are otherwise taken into consideration. Although a lot of judges are aware of the importance of punishing “transnational” multi-offenders in an equivalent fashion to “national” multi-offenders, it can be doubted whether this fulfils the requirement of putting in place a sufficient amount of “safeguards”. 74 It will in any case be possible to challenge a judicial decision that did not “otherwise” take into consideration the existence of the prior foreign conviction. 75
Furthermore, the question arises whether the EU legislator could not have dealt with the concerns voiced by The Netherlands in another, more proportionate, less unequal and less far-reaching fashion. At least some of the EU Member States did manage to do so. 76 Without intending to develop fully-fledged solutions, the EU could, for instance, have chosen to have its Member States take into consideration prior foreign convictions to the extent their penalty will be or has been executed. Another possibility could have been to allow EU Member States to only take into consideration a certain maximum penalty, which corresponds to the maximum penalty that could have been imposed by a national judge. It is not clear whether the European Courts would accept the current Article 3(5) FD Prior Conviction as proportionate, considering the possibility of lesser intrusive solutions to reach the (legitimate?) aim. 77 Also the fact that there are apparently no objections to take into consideration a foreign conviction in case this would result in a harsher penalty could play a role in this decision. The assessment that taking into consideration a prior foreign conviction is possible in other, more disadvantageous, situations could very well raise some eyebrows. 78
The equality spectrum: How equal is equal?
If anything, the case-study of “transnational” multi-offenders demonstrates that the line between equality and inequality is rather thin. The equality principle seems pretty straight-forward by simply requiring that (groups of) persons in equal or similar circumstances are treated in an equal or similar manner, unless there are reasonable and objective reasons not to do so. Considering that it has been anchored in many international human rights instruments, the Declaration of fundamental human and citizen rights of 1789 being the first, and even more national Constitutions, 79 it could be expected that its precise scope has sufficiently been delineated by now. However, it is most unfortunate that the equality principle still remains a concept that is subject to profound academic and jurisprudential debates, rendering it the status of a so-called “essentially contested concept”. 80 No unanimity exists as regards its precise implications.
Therefore, it seems much more appropriate to speak of an equality spectrum or scale, rather than of a clear-cut equality/inequality divide. Some cases are much more unequal than others. It is only when a certain threshold is passed, that a factual inequality will also be labelled as a legal inequality. However, this threshold is far from clear. Only clear-cut almost textbook cases are currently accepted as violating the equality principle. 81 Although the general reluctance of the European Courts to interfere with national criminal policy could encourage them to dismiss a multi-offender case, it appears that there are actually no convincing arguments to justify such a decision. Moreover the weight that is given to a lack of consensus among the different Member States is striking. After all, FD Prior Convictions was developed specifically because there is a lack of consensus on how to deal with multiple offences and to compensate for the inequality and the negative consequences that are inherent to being prosecuted consecutively in different Member States. In the original proposal for FD Prior Convictions, for instance, the preamble explicitly stated that equal treatment of all European citizens must be secured to remedy the situation in which some Member States attach effects to prior foreign convictions, whereas others only take account of prior national convictions. The question thus arises why it would nonetheless probably be deemed necessary to not tamper with criminal law issues.
Perhaps it is feared that this would possibly open Pandora’s box. Perhaps it is feared that if Article 3(5) FD Prior Convictions violates the equality principle, this automatically implies that the EU should create its own criminal law. This fear seems rather unnecessary. There is still a difference between being treated differently because different Member States apply different rules and being treated differently because one and the same Member State applies different rules for offenders with a transnational history.
Or perhaps this is due to the fact that equality in criminal matters actually requires to carefully take into account the personal situation of each defendant. Not punishing all offenders in the same fashion by taking into consideration their background, financial resources and criminal history is much fairer than punishing all offenders who have committed the same offences equally severe. It will result in equal effects, rather than equal penalties. 82 Individualisation of punishment is generally necessary because the committed offences, the amount of guilt and the personal background of the offenders are never the same. However, this concern is not relevant in transnational multi-offender cases. After all, one and the same offender can be treated differently by one and the same EU Member States, merely on the basis of the number of Member States who have initiated a criminal procedure for a part of the concurrence. Also the hypothesis in which two offenders with an identical background have committed the exact same offences in the exact same circumstances causes some problems: they could be treated differently, even though in such a case the equality principle would not require a differential treatment.
In any event, it seems to be only a matter of time before a likewise case will be filed to one of the European Courts. After all, as previously mentioned, in Belgium, the issue already gave rise to a judgment of the Belgian Constitutional Court. The Constitutional Court ruled that the Belgian counterpart of Article 3(5) FD Prior Conviction does not constitute a violation of the equality principle. Luckily, Belgian judges try as much as possible to mitigate the penalty nonetheless. 83 Unfortunately, this does not provide sufficient guarantees to “transnational” multi-offenders, considering that the outcome of a criminal procedure cannot be predicted beforehand. Furthermore, the impact of the inequality remains rather large. Claiming that not recognising a prior foreign conviction was the best solution to meet the concerns expressed by some EU Member States would therefore be turning a blind eye for both equality and legal certainty. For these reasons, the time is right to take at least a politically, but possibly also legally, inspired decision to treat “transnational” and “national” multi-offenders in an equivalent manner.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
