Dániel Bertold Lada

On July 5th 2018, the Court (Second Chamber) delivered its judgment in case C‑390/16 on the interpretation of 2008/675/JHA Council Framework Decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings.

Mr Lada, a Hungarian national, was convicted by an Austrian court to a custodial sentence of 14 months. The Austrian court sent this judgment to the Hungarian Ministry of Justice, upon request of the latter. The Ministry forwarded the documents, drawn up in German, to the referring court (Szombathely Court, Hungary) to implement the procedure for the ‘recognition of the validity of foreign judgments’ provided for in Hungarian law. Hungarian Law on international judicial assistance in criminal matters indeed establishes a special procedure for prior recognition, by the Hungarian courts, of convictions not subject to appeal handed down by foreign courts (‘Hungarian special procedure’), with the aim of ensuring that the decision recognising those convictions has the effect of a conviction handed down by a Hungarian court. Hungarian courts have to examine, first, whether fundamental rights were observed in the foreign proceedings. Next, the Hungarian special procedure entails a review of the foreign conviction, which may lead to the reclassification of the criminal offence that led to the conviction as well as to an adjustment of the sentence imposed, if those aspects are not compatible with Hungarian criminal law.

The referring court thus enquires whether such special recognition procedure is consistent with EU law, having regard, in particular, to the principle of mutual recognition in criminal matters, on which judicial cooperation in criminal matters in the EU is based (Article 82 TFEU).

The Court of Justice first discusses the rationale of Framework Decision 2008/675/JHA, by referring to its previous judgment of 21 September 2017, Beshkov. This Framework Decision is directed in principle to situations in which new criminal proceedings have been brought against a person previously convicted in another Member State. In new criminal proceedings, previous convictions handed down in other Member States are taken into account to the extent that previous national convictions are taken into account under national law, and the legal effects attached to them are equivalent to those attached to previous national convictions, in accordance with national law.

The proceedings in Hungary against Mr Lada, i.e. the special procedure that has been initiated to recognise the Austrian judgment, cannot be considered as ‘new criminal proceedings’ for the purpose of the Framework Decision. Nonetheless, the Hungarian special procedure is inseparably linked to the implementation of Framework Decision 2008/675, as such a procedure is necessary for the taking into account of a person’s foreign criminal convictions in new criminal proceedings. Hence, it should be assessed whether the Hungarian special procedure renders the Framework Decision ineffective. The Court of Justice replies in the affirmative.

The Hungarian special procedure is liable, in the absence of exceptional circumstances, to call in question the principle of mutual trust and hence one of the objectives of Framework Decision 2008/675. The principle of mutual recognition precludes the taking into account, in the context of that Framework Decision, of a previous conviction by a court in another Member State being conditional on the implementation of a national procedure for prior recognition, and precludes that conviction being reviewed in that procedure.

In accordance with recital No 13 of Framework Decision 2008/675, the exclusion of a possibility to review a previous conviction should however not prevent a Member State from issuing a decision, if necessary, in order to attach the equivalent legal effects to such previous conviction. Nonetheless, the adoption of such a decision can never involve the implementation of a national special procedure for prior recognition such as that provided for by Hungarian law. The Court of Justice agrees with the Opinion of Advocate General Bot, who noted that the decision to which Recital No 13 of the Framework Decision refers requires an examination on a case-by-case basis, while the Hungarian special procedure is necessary for any foreign conviction to be taken into account in new Hungarian criminal proceedings, and may even lead to a reclassification of the sentence imposed and of the offence.

Finally, the Court emphasises that Framework Decision 2008/675 is inseparably linked to Framework Decision 2009/315 on the exchange of information extracted from the criminal record between Member States. Their common aim is to avoid national judicial authorities before which new criminal proceedings are brought against persons who have previously been convicted of other offences in other Member States giving judgment without being able to take those previous convictions into account. In Balogh, the Court had argued that Framework Decision 2009/315, together with Decision 2009/316 on the establishment of the European Criminal Records Information System (ECRIS), must be interpreted as precluding the implementation of a special recognition procedure in Hungary. It follows that national procedures liable to affect the diligent exchange of information on criminal convictions among competent authorities clash both with Framework Decision 2009/315, read in conjunction with Decision 2009/316, and with Framework Decision 2008/675.

The Court therefore concludes that Framework Decision 2008/675/JHA, read in the light of Article 82 TFEU, must be interpreted as precluding the taking into account in a Member State, in new criminal proceedings brought against a person, of a final judgment previously handed down by a court of another Member State convicting that person of other offences being conditional on a special procedure for prior recognition by the courts of the first Member State.