AV

On 13 April 2021, the Fourth Chamber of the Court rendered a decision in Case C-221/19 in the context of an aggregate sentence composed of two criminal decisions from two different member states. AV, a polish national brought an application before the Regional Court of Gdansk, seeking an aggregating sentence between two prison sentences imposed on him by this Court and the Lüneberg Court in Germany, the latter being recognized for the purpose of enforcement in Poland. AV was required to serve from 1 September 2016 to 29 November 2021 by the German Court and from 29 November 2021 to 30 March 2030. AV argued that since the judgement delivered by the German Court was recognized for purposes of enforcement in Poland, the conditions for delivering an aggregate sentence are satisfied under Polish law. However, according to Polish law Article 85(4) of the Criminal code, read in conjunction with Article 114a of that code, the aggregation of sentences covering convictions handed down in Poland and in another Member State recognized for the purpose of enforcement in Poland is prohibited. In accordance with Framework Decision 2008/909 the delivery of an aggregate sentence with convictions handed down in another Member State would ensure equal treatment of persons and strengthen mutual trust between States. Thus the regional court of Gdansk decided to refer two questions to the Court as part of the preliminary ruling procedures: whether the meaning of interference found in Article 3(3) of the Framework decision 2008/675 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings encompasses not only the inclusion of a judgement delivered in a Member State but also the inclusion of a conviction taken over for execution on another Member State, together with a conviction handed down in the latter State in the framework of aggregate sentence; and whether according to Framework decision 2008/909, is it possible to pass an aggregate sentence that would include a sentence imposed by a Member State that was taken over for execution in another Member State, together with a conviction handed down in the latter State?

First hand, the Court recalled the principle under which, even though criminal law and procedures fall within the competence of Member States, such exercise must be done according to EU law. The Court thus further clarified the notion of aggregate sentence and distinguished it from the methods of executing custodial sentence by assessing that such procedure aims at commuting several sentences into one leading to a more favourable outcome for the person concerned.

The Court decided to address the second question first, since the recognition of the judgement is governed by Framework Decision 2008/909. The Court explained that the said Framework Decision must be interpreted as permitting the issue of such an aggregate sentence when the decisions creating such sentence are covering decisions taken in the Member State where such aggregation take place, but also one or more sentences handed down against the person in another Member State. Nevertheless, the Court set limit to such aggregation, stating that such sentence may not: lead to an adaptation of the duration or nature of those sentences that would go beyond the limit of Article 8(2) to (4) of Framework Decision 2008/909; may not lead to a breach of the obligation as found in Article 17(2) of the same Framework Decision meaning to deduct the full period of deprivation of liberty already served; and may not lead to a review of the sentences imposed on him in another Member State according to Article 19(2) of the same document.

Then, regarding the first question, the Court decided that Framework Decision 2008/675 read in the light of recital 14 must be interpreted as authorizing the delivery of an aggregate sentence based upon previous convictions handed down against the person in the Member State where such sentence is deemed to be served, but also on or more convictions rendered in another Member State as long as such aggregation observes the limits arising from the above-mentioned provisions of Framework decision 2008/909.