Case C‑583/22 PPU

MV

(Request for a preliminary ruling from the Bundesgerichtshof)

 Judgment of the Court (Second Chamber), 12 January 2023

(Reference for a preliminary ruling – Area of freedom, security and justice – Police and judicial cooperation in criminal matters – Framework Decision 2008/675/JHA – Article 3(1) – Principle of assimilation of earlier convictions handed down in another Member State – Obligation to ensure that the effects attached to those convictions are equivalent to those attached to previous national convictions – National rules concerning subsequent formation of a cumulative sentence – Multiple offences – Determination of an aggregate sentence – Maximum of 15 years for non-life custodial sentences – Article 3(5) – Exception – Offence committed before the handing down or execution of sentences in another Member State)

1.        Questions referred for a preliminary ruling – Urgent preliminary ruling procedure – Conditions – Examination by the Court of its own motion – Person deprived of liberty – Outcome of the dispute liable to have an effect on that deprivation of liberty

(Statute of the Court of Justice, Art. 23a; Rules of Procedure of the Court of Justice, Art. 107)

(see paragraphs 38 to 48)

2.        Judicial cooperation in criminal matters – Taking account of convictions in the Member States of the European Union in the course of new criminal proceedings – Framework Decision 2008/675 – Principle that previous convictions handed down in another Member State should be treated in the same way as previous national convictions – Exception – Conditions – Offence for which the new proceedings are being conducted committed before the previous convictions have been handed down in another Member State – Taking into account of those convictions preventing the national court from imposing a sentence that can be executed

(Council Framework Decision 2008/675, recitals 3 and 5 to 8 and Art. 3(1), (2) and (5))

(see paragraphs 50, 51, 55, 58 to 64, 66 to 68, 71, 72, operative part 1)

3.        Judicial cooperation in criminal matters – Taking account of convictions in the Member States of the European Union in the course of new criminal proceedings – Framework Decision 2008/675 – Principle that previous convictions handed down in another Member State should be treated in the same way as previous national convictions – Exception – Taking into account of previous convictions handed down in other Member States – Obligation of the national court to establish and give specific reasons for the disadvantage resulting from the impossibility of imposing a subsequent cumulative sentence laid down for earlier national convictions – None

(Council Framework Decision 2008/675, Article 3(5) second subpara.)

(see paragraphs 74-78, 81, operative part 2)

Résumé

On 10 October 2003, MV, a French national, abducted a female student from a university campus in Germany and raped her. Although he had never previously been convicted of a criminal offence in Germany, MV had, however, been sentenced on several occasions in France, in particular to a period of 15 years’ imprisonment. All those convictions were handed down by French courts after the said date and related to acts committed before October 2003.

After being imprisoned in France for 17 years and 9 months, MV was surrendered to the German authorities in July 2021. In February 2022, the Landgericht Freiburg im Breisgau (Regional Court, Freiburg im Breisgau, Germany) tried MV for the offences committed in Germany in October 2003, convicted him of aggravated rape and sentenced him to six years’ imprisonment. That court held that the sentence ‘actually commensurate’ with the offences committed by MV in Germany was seven years’ imprisonment. Nevertheless, since it was not possible to form a subsequent cumulative sentence which included the sentences imposed in France, that court reduced that sentence by one year ‘on a compensatory basis’.

The referring court, hearing an appeal on a point of law against that judgment, is uncertain, in essence, as to whether it is compatible with the provisions of Framework Decision 2008/675 (1) which lay down, first, the principle of equal treatment of criminal convictions handed down in other Member States (2) and, secondly, the exception to that principle (3).

In that context, that court states that the convictions handed down in France against MV could in principle be cumulated if they were treated in the same way as sentences handed down in Germany. However, in the context of the formation of a subsequent cumulative sentence, account must be taken of the maximum custodial sentence of 15 years, in accordance with the rules of German law. Were there to be equal treatment of convictions handed down in France against MV, that maximum would already have been reached with the custodial sentence of 15 years imposed on the person concerned in that Member State. Consequently, the sentence imposed on him in Germany could not, in practice, be executed.

The referring court therefore asks the Court of Justice whether the abovementioned principle is applicable in the present case. If that principle was not applicable, the referring court also seeks to ascertain whether, when determining the penalty imposed for an offence committed on national territory, the disadvantage resulting from the impossibility of imposing a subsequent cumulative sentence must necessarily be specifically demonstrated and justified.

In the context of the urgent preliminary ruling procedure, the Court defines the scope of the exception to the principle of equal treatment of criminal convictions handed down in other Member States and the obligations of the Member States when implementing that principle.

Findings of the Court

In the first place, the Court states that, under Framework Decision 2008/675, (4) a Member State is not required, in criminal proceedings brought against a person, to attach to previous convictions handed down in another Member State, against that person and in respect of different facts, effects equivalent to those attached to previous national convictions in accordance with the rules of national law relating to the formation of a cumulative sentence where, first, the offence giving rise to those previous proceedings was committed before the previous convictions were handed down and, secondly, taking account of the previous convictions in accordance with those rules would prevent the national court hearing the proceedings from imposing a sentence that could be executed against the person concerned.

In reaching that conclusion, the Court points out, first of all, that that framework decision (5) requires the Member States, in principle, to take into account, in criminal proceedings brought against a person, previous convictions handed down in another Member State against that person in respect of different facts. However, under the exception to that principle, (6) if the offence for which the new proceedings being conducted was committed before the previous conviction had been handed down or fully executed, Member States are not obliged to apply their national sentencing rules where the application of those rules to foreign convictions would limit the judge in imposing a sentence in the new proceedings.

The Court then states that, since the time-related condition laid down by that exception is satisfied in the circumstances of the dispute in the main proceedings, those circumstances may fall within that exception. In that regard, the Court states, first, that the rules of German law relating to the cumulation of sentences constitute ‘national rules on imposing sentences’ and, secondly, that the application of those rules with regard to previous convictions handed down in France would prevent the national court from handing down a sentence that could be executed. Accordingly, in the present case, attaching to previous convictions handed down in France effects equivalent to those attached to previous national convictions would ‘limit the judge in imposing a sentence in the new proceedings’. Consequently, that exception is applicable in the circumstances of the present case and has the effect of releasing the national court from the obligation to attach to previous convictions handed down in France effects equivalent to those attaching to national convictions in accordance with the rules on the formation of cumulative sentences.

In the second place, the Court ruled that the taking into account of previous convictions handed down in another Member State, within the meaning of Framework Decision 2008/675, (7) does not require the national court to establish and give specific reasons for the disadvantage resulting from the impossibility of imposing a subsequent cumulative sentence which is laid down for earlier national convictions.

The Court points out in that regard that, in any criminal proceedings covered by the abovementioned exception, the Member States must ensure that ‘their courts can otherwise take into account previous convictions handed down in other Member States’. However, no obligation can be inferred from the provision laying down that exception as regards the specific substantive or procedural arrangements which should be observed, in that regard, by the national courts. Thus, it cannot be inferred from that provision that the court ruling on the substance of the case is under an obligation, in the circumstances of the case, to calculate the disadvantage resulting from the fact that it is impossible to apply the national rules on cumulative sentences laid down for national convictions and subsequently to grant a reduction in sentence based on that calculation.

1      Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings (OJ 2008 L 220, p. 32).

2      This principle is set out in Article 3(1) of Framework Decision 2008/675, according to which ‘each Member State shall ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts in other Member States, in respect of which information has been obtained under applicable instruments on mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent previous national convictions are taken into account, and that equivalent legal effects are attached to them as to previous national convictions, in accordance with national law’.

3      That exception is provided for in the first subparagraph of Article 3(5) of Framework Decision 2008/675, according to which ‘if the offence for which the new proceedings being conducted was committed before the previous conviction had been handed down or fully executed, paragraphs 1 and 2 shall not have the effect of requiring Member States to apply their national rules on imposing sentences, where the application of those rules to foreign convictions would limit the judge in imposing a sentence in the new proceedings’.

4      This concerns, in particular, Article 3(1) and (5) of Framework Decision 2008/675.

5      See Article 3(1) of Framework Decision 2008/675.

6      See Article 3(5) of Framework Decision 2008/675.

7      The Court refers to the second subparagraph of Article 3(5) of Framework Decision 2008/675, which provides that ‘however, the Member States shall ensure that in such cases their courts can otherwise take into account previous convictions handed down in other Member States.’