Trayan Beshkov

On 17 May 2017, Advocate General Bot delivered his opinion in case C-171/16 on 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, which the Court is called upon to interpret for the first time.

In 2010, Mr. Beshkov, a Bulgarian national, was convicted by an Austrian court for an offence committed in Austria and sentenced to a term of imprisonment of 18 months, six months being served and 12 months being suspended, with a probation period of three years. In 2013, he was convicted by a Bulgarian court for different facts committed in Bulgaria and was sentenced to a term of imprisonment of one year. This sentence was however not enforced, as his whereabouts were not known to the Bulgarian authorities. In 2015, Mr. Beshkov requested the referring court, for the purposes of the enforcement of that sentence, the imposition upon him of a single total custodial sentence corresponding to the highest of the penalties imposed by the Austrian and Bulgarian courts, in accordance with Articles 23(1) and 25(1) of the Bulgarian Code of Criminal Code. In so far as one of the penalties was imposed by a foreign court, the referring court is unsure whether it must first recognize the decision of the Austrian court or whether, on the basis of Framework Decision 2008/675, it can or even must grant Mr. Beshkov’s request. It therefore seeks guidance from the Court on the interpretation of this Framework Decision, in particular on the concept of “new criminal proceedings” within the meaning of its Article 3.

In his opinion, AG Bot found that, for the purposes of taking into account a decision of a court of a Member State belonging to the AFSJ in the course of new criminal proceedings in another Member State, pursuant to the provisions of Framework Decision 2008/675, that decision does not need to be recognised in advance by means of a special procedure, such as that provided for in the Bulgarian Code of Criminal Procedure.

He concluded that Article 3(1) of Framework Decision 2008/675 must be interpreted as meaning that proceedings for the enforcement of a sentence imposed by a court of a Member State with respect to which a previous conviction handed down by a court of another Member State must be taken into account constitute “criminal proceedings”, and that the request to take into account a previous conviction handed down by the court of another Member State may be made directly by the sentenced person.

He further found that Article 3(1) and (3) of Framework Decision 2008/675 must be interpreted as meaning that it precludes national legislation, such as that at issue in the main proceedings, which provides that a national court must review, in the course of new criminal proceedings, the sentence imposed by the court of another Member State, and already executed, for the purposes of imposing a total custodial sentence including the sentence imposed by that other Member State.

Finally, he held that, in order to ensure the effectiveness of Framework Decision 2008/675, the national court must, where appropriate, and subject to the conditions and the provisos laid down therein, apply the provisions contained in Article 3(1), (3) and (5) of that Framework Decision, read in the light of recitals 8 and 9 thereof.