The Rule of Law & Mutual Recognition Can the EU live up to its own expectations? Nele Audenaert 05/09/2018

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions RULE OF LAW Formal and procedural requirements Eg. Ne bis in idem-principle Substantive requirements? Eg. Proportionality, Equality before the law

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions European principle of mutual recognition European Area of Freedom, Security and Justice Mutual recognition: a) when executing a foreign sentence b) when taking into account a foreign sentence in a new criminal proceedings FD 2008/675/JHA of 24/07/2008: principle of mutual recognition of criminal sentences in a new criminal procedure Principle Exception

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions FD 2008/675/JHA – Article 3(1) “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.” Principle Exception

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Offence 1 National Conviction 1 Offence 2 Principle Recidivism in a pure domestic sphere: Recidivism in a transnational sphere: Exception Aggravated sentence Offence 1 Foreign Conviction 1 Offence 2 Aggravated sentence

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions FD 2008/675/JHA – Article 3(5) “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 requirng 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.” Principle Exception

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Assault Bank robbery Car theft Drunk driving Principle Exception

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Offence 1 Offence 2 National conviction 1 National Conviction 2 Principle Concurring offences in a pure domestic sphere: Concurring offences in a transnational sphere: Exception More lenient penalty Offence 1 Offence 2 Foreign Conviction 1 National Conviction 2 No mitigation

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Is the mutual recognition principle a neutral principle? Mutual recognition in disadvantage of a defendant (e.g. recidivism) Mutual recognition in advantage of a defendant (e.g. concurring offences) Principle Exception

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Article 50 CFR “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.” Article 54 CISA “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 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.” Article 4 Protocol 7 ECHR “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.” Ne bis in idem Proportionality Equality

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions FD 2008/675/JHA – Article 3(1) “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.” The same facts Different facts Ne bis in idem Proportionality Equality

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Are concurring offences sometimes to be under-stood as “idem” (as interpreted by the CJEU and the ECtHR)? CJEU - C 436/04 – Van Esbroeck “Identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected.” ECtHR – 1493/03 – Zolotukhin “When the committed offences arise from identical facts or facts which are substantially the same and which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space.” Concurring offences: inextricably linked together? Ne bis in idem Proportionality Equality

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Are concurring offences sometimes to be under-stood as “idem” (as interpreted by the CJEU and the ECtHR)? CJEU - C 367/05 – Kraaijenbrink: are concurring offences committed with a unity of intent inextricably linked together? “Different acts should not be regarded as ‘the same acts’ within the meaning of that article merely because the competent national court finds that those acts are linked together by the same criminal intent.” Ne bis in idem Proportionality Equality

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Are concurring offences sometimes to be under-stood as “idem” (as interpreted by the CJEU and the ECtHR)? CJEU: Kretzinger & Gasparini ECtHR: Igor Tarasov vs. Ukraine Concurring offences committed with a premeditated intent can be qualified as the “same”, when they are also inextricably linked together in time and space. Ne bis in idem Proportionality Equality

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Are concurring offences sometimes to be under-stood as “idem” (as interpreted by the CJEU and the ECtHR)? Concurring offences committed with a premeditated intent can be qualified as the “same”, when they are also inextricably linked together in time and space. - Obligated application of the ne bis in idem-principle - No application of (the exception on) the mutual recognition principle Ne bis in idem Proportionality Equality

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Article 49(3) CFR “The severity of penalties must not be disproportionate to the criminal offence.” Ne bis in idem Proportionality Equality

Outcome perceived as disproportionate Rule of Law Mutual Recognition Fundamental human rights Conclusions Offence A + B + C + D < Offence M Assault Bank robbery Car theft Drunk driving + Murder Ne bis in idem Proportionality Equality Outcome perceived as disproportionate

Solution: sentence is cut Rule of Law Mutual Recognition Fundamental human rights Conclusions Offence A + B + C + D < Offence M Assault Bank robbery Car theft Drunk driving + Murder Ne bis in idem Proportionality Equality Solution: sentence is cut

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Offence A + B + C + D < Offence M Procedure 1 (national procedure) Assault Bank robbery Drunk driving + Procedure 2 Car theft No additional penalty Murder Ne bis in idem Proportionality Equality

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Offence A + B + C + D < Offence M Procedure 1 (foreign procedure) Assault Bank robbery Drunk driving + Procedure 2 Car theft + Murder Ne bis in idem Proportionality Equality

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions FD 2008/675/JHA – recital 9 “Article 3(5) should be interpreted, inter alia, in line with recital 8, in such a manner that if the national court in the new criminal proceedings, when taking into account a previously imposed sentence handed down in another Member State, is of the opinion that imposing a certain level of sentence within the limits of national law would be disproportionately harsh on the offender, considering his or her circumstances, and if the purpose of the punishment can be achieved by a lower sentence, it may reduce the level of sentence accordingly, if doing so would have been possible in purely domestic cases.” The number of prosecuting Member States cannot justify a different, disproportionate penalty. Ne bis in idem Proportionality Equality

Fundamental human rights Conclusions Rule of Law Mutual Recognition Fundamental human rights Conclusions Article 20 CFR “Everyone is equal before the law.” If case A = case B If case A ≠ case B Then result A = result B Then result A ≠ result B Two burglaries (A + A) ≠ Two burglaries (A + B)? Two burglaries (A + A) = Two burglaries (A + B)? If only difference: - number of prosecuting MS OR - nationality of previous conviction Ne bis in idem Proportionality Equality

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Legal uncertainty: does the necessary respect for fundamental human rights require the taking into account of previous foreign convictions when ruling on concurring offences? Responsibility questions: who is responsible for a possible infringement of a fundamental human right/the rule of law, when the EU explicitly allows to make this infringement (although not in those terms)? Tackling cross-border crime > the human rights of a defendant

Fundamental human rights Rule of Law Mutual Recognition Fundamental human rights Conclusions Possible discussion points Implementation of FD 2008/675/JHA within the different MS Compatibility of article 3(5) with ne bis in idem Compatibility of article 3(5) with proportionality Compatibility of article 3(5) with equality before the law The possible responsibility of the EU for infringements of the rule of law