CELEX: 62016CJ0390
Reference for a preliminary ruling
Judicial cooperation in criminal matters
Framework Decision 2008/675/JHA
Taking account in new criminal proceedings of a previous conviction in another Member State
Special procedure for recognition of a conviction in another Member State
Review and legal reclassification of the earlier decision
Principle of mutual recognition
Article 82(1) TFEU

This request for a preliminary ruling concerns the interpretation of Articles 67 and 82 TFEU, Article 50 of the Charter of Fundamental Rights of the European Union, Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (
OJ 2000 L 239, p. 19
), signed on 19 June 1990 at Schengen (Luxembourg), and 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
).
The request has been made in proceedings brought before a Hungarian court for the recognition of a conviction handed down against Mr Dániel Bertold Lada in another Member State which has become final.
Legal context
EU law
Recitals 2, 5 to 7 and 13 of Framework Decision 2008/675 state:
‘(2)
On 29 November 2000 the Council, in accordance with the conclusions of the Tampere European Council, adopted the programme of measures to implement the principle of mutual recognition of decisions in criminal matters, which provides for the “adoption of one or more instruments establishing the principle that a court in one Member State must be able to take account of final criminal judgments rendered by the courts in other Member States for the purposes of assessing the offender’s criminal record and establishing whether he has reoffended, and in order to determine the type of sentence applicable and the arrangements for enforcing it”.
…
(5)
The principle that the Member States should attach to a conviction handed down in other Member States effects equivalent to those attached to a conviction handed down by their own courts in accordance with national law should be affirmed, whether those effects be regarded by national law as matters of fact or of procedural or substantive law. However, this Framework Decision does not seek to harmonise the consequences attached by the different national legislations to the existence of previous convictions, and the obligation to take into account previous convictions handed down in other Member States exists only to the extent that previous national convictions are taken into account under national law.
(6)
In contrast to other instruments, this Framework Decision does not aim at the execution in one Member State of judicial decisions taken in other Member States, but rather aims at enabling consequences to be attached to a previous conviction handed down in one Member State in the course of new criminal proceedings in another Member State to the extent that such consequences are attached to previous national convictions under the law of that other Member State.
Therefore this Framework Decision contains no obligation to take into account such previous convictions, for example, in cases where the information obtained under applicable instruments is not sufficient, where a national conviction would not have been possible regarding the act for which the previous conviction had been imposed or where the previously imposed sanction is unknown to the national legal system.
(7)
The effects of a conviction handed down in another Member State should be equivalent to the effects of a national decision at the pre-trial stage of criminal proceedings, at the trial stage and at the time of execution of the sentence.
…
(13)
This Framework Decision respects the variety of domestic solutions and procedures required for taking into account a previous conviction handed down in another Member State. The exclusion of a possibility to review a previous conviction should not prevent a Member State from issuing a decision, if necessary, in order to attach the equivalent legal effects to such previous conviction. However, the procedures involved in issuing such a decision should not, in view of the time and procedures or formalities required, render it impossible to attach equivalent effects to a previous conviction handed down in another Member State.’
Article 1(1) of the Framework Decision provides:
‘The purpose of this Framework Decision is to determine the conditions under which, in the course of criminal proceedings in a Member State against a person, previous convictions handed down against the same person for different facts in other Member States, are taken into account.’
Article 3 of the Framework Decision, headed ‘Taking into account, in the course of new criminal proceedings, a conviction handed down in another Member State’, provides:
‘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.
2.   Paragraph 1 shall apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules of procedure, including those relating to provisional detention, the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision.
3.   The taking into account of previous convictions handed down in other Member States, as provided for in paragraph 1, shall not have the effect of interfering with, revoking or reviewing previous convictions or any decision relating to their execution by the Member State conducting the new proceedings.
…’
Hungarian law
Paragraph 46 of the Nemzetközi bűnügyi jogsegélyről szóló 1996. évi XXXVIII. törvény (Law No XXXVIII of 1996 on international judicial assistance in criminal matters, ‘the Law on international judicial assistance in criminal matters’) reads as follows:
‘1.   The Minister for Justice shall receive notifications for the recognition of the validity of a foreign judgment as well as foreign applications for the transfer of enforcement of a custodial sentence or of a detention order … and … shall forward them to the court with jurisdiction. …
…
2.   The procedure for recognition of the judgments sent by the central authority designated for that purpose by another Member State of the European Union must be instituted before the date of deletion of the criminal record, as indicated in the information accompanying the judgment of the Member State.
3.   Save as otherwise provided for in this law, the judicial procedure shall be governed by the general rules laid down in Title XXIX of the Büntetőeljárásról szóló 1998. évi XIX. törvény (Law No XIX establishing the Code of Criminal Procedure of 1998) relating to special procedures …’
Chapter 1 of Title IV of that law, headed ‘Recognition of the validity of a foreign judgment’, includes paragraphs 47 and 48.
In accordance with Paragraph 47 of that law:
‘1.   A judgment of a foreign court having the force of
res judicata
shall have the same effects as a judgment handed down by a Hungarian court provided that the foreign proceedings brought against the offender and the sentence imposed or measure applied are not contrary to Hungarian law.
…
3.   If the Hungarian court recognises the validity of the foreign judgment, the offence shall be regarded as having been ruled on by the Hungarian court in a judgment having the force of
res judicata
.
…’
Paragraph 48 of that law provides:
‘1.   The Hungarian court, when delivering its decision, shall be bound by the findings of fact of the foreign court.
2.   In the course of the procedure before it, the Hungarian court shall determine the legal consequences deriving from the conviction under Hungarian law. If the sentence or measure imposed by the judgment of the foreign court is not fully compatible with Hungarian law, the Hungarian court shall make a finding in its decision as to the sentence or measure applicable under Hungarian law, so that it corresponds as closely as possible to the sentence or measure imposed by the foreign court, and, where an application is made for enforcement, shall accordingly rule on the enforcement of the sentence or measure.
3.   When determining the applicable sentence or measure, reference shall be made to the law that applied at the time the offence was committed. If, under the Hungarian law applicable at the time the sentence or applicable measure is determined, the act in question no longer constitutes a criminal offence or is subject to a lesser punishment, that later law shall apply.
…
5.   If the custodial sentence imposed by the foreign court is not compatible with Hungarian law with respect to the means of enforcing it or its duration, the Hungarian court shall determine the sentence and its duration in accordance with Hungarian law, including the rules governing the means of enforcement of the sentence and the grant of conditional release, taking account of the sentences laid down in the Criminal Code for the offence resulting from the findings of fact on which the judgment was based as well as the rules on the determination of sentences. If the duration of the custodial sentence imposed by the foreign court is less than the corresponding duration under Hungarian law, taking into account also the rules of the Criminal Code on the mitigation of sentences, the duration of the custodial sentence handed down by the Hungarian court shall be the same as that imposed by the foreign court. The duration of the sentence imposed by the Hungarian court may not be greater than that of the sentence imposed by the foreign court.
…
7.   The Hungarian court shall inform the criminal records service of the recognition of the validity of the foreign judgment.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
On 8 January 2016 Mr Lada, a Hungarian national, was convicted by the Landesgericht Wiener Neustadt (Regional Court, Wiener Neustadt, Austria) and sentenced to 14 months’ imprisonment for attempted theft by force of high-value goods. The court ordered him to serve 11 months of that sentence and suspended the remaining 3 months’ imprisonment.
The court delivered its judgment at a public hearing at which the defendant, who was being held on remand, was present. He was defended by a lawyer and was able to express himself in his mother tongue through an interpreter.
The court sent the Hungarian Ministry of Justice inter alia the judgment convicting Mr Lada.
The Ministry of Justice forwarded the documents, which were in German, to the Szombathelyi Törvényszék (Szombathely Court, Hungary), the referring court, as the court with substantive and territorial jurisdiction to implement, under Paragraph 46 of the Law on international judicial assistance in criminal matters, the special procedure for recognition of the validity of a foreign judgment.
That court examined the documents sent to it and had them translated into Hungarian. In the course of the procedure, it appointed a lawyer to defend Mr Lada and established that his conviction by the Austrian court had not been entered in Hungarian criminal records, but had been entered in the European Criminal Records Information System (ECRIS). It also found that the term of imprisonment was in the process of being enforced.
The referring court states that, at the start of the special procedure for recognition, it is necessary to examine whether fundamental rights and the basic provisions of Hungarian legislation on criminal procedure were observed in the foreign proceedings.
The special procedure for recognition provides, next, that, to be able to recognise the validity in Hungary of a foreign judgment, in the present case that delivered by the Landesgericht Wiener Neustadt (Regional Court, Wiener Neustadt), the national court concerned must assess and if necessary reclassify, on the basis of the facts taken into account by the foreign court, the offence committed by the convicted person by reference to the relevant provisions of the Hungarian Criminal Code in force at the material time.
The referring court explains that, in a case such as that pending before it, it may also be necessary to reformulate the foreign judgment in accordance with the Hungarian Criminal Code, with respect inter alia to the type and level of the sentence, provided that the sentence is not more severe that that imposed in the foreign judgment.
According to the referring court, the special procedure for recognition of the validity of foreign judgments in Hungary thus in practice involves, first, a reclassification of the offences already ruled on by the foreign courts and set out in their judgments and, second, the adaptation of the sentences imposed by the foreign courts in accordance with the applicable Hungarian law. It therefore considers that the special procedure for recognition appears to operate as if it were new criminal proceedings against the defendant for the same offences.
Following the special procedure for recognition, the convictions handed down by those courts are entered in the Hungarian criminal records of the person concerned, so that those convictions can be taken into account in any future criminal proceedings brought in Hungary against the same person for other offences. The judgments thus recognised may then, for example, be grounds in future for regarding that person as reoffending.
The referring court is uncertain whether a special procedure for recognition of foreign judgments, such as that laid down by Paragraphs 46 to 48 of the Law on international judicial assistance in criminal matters, is compatible with EU law, having regard in particular to the principle of mutual recognition in the field of judicial cooperation in criminal matters and to the
ne bis in idem
principle, as laid down in EU primary law.
Because of the similarity between the questions put by the referring court and the question put in the case in which judgment was given on 9 June 2016, Balogh (
C‑25/15
,
EU:C:2016:423
), the referring court was notified of that judgment by letter of 14 September 2016. In that judgment the Court interpreted Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (
OJ 2009 L 93, p. 23
) and Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315 (
OJ 2009 L 93, p. 33
) as precluding the implementation of national legislation establishing a special procedure for the recognition by the court of a Member State of a final judicial decision handed down by the court of another Member State convicting a person of an offence.
By letter received at the Court on 12 October 2016, the referring court decided to maintain its request for a preliminary ruling, stating that the facts behind the judgment of 9 June 2016, Balogh (
C‑25/15
,
EU:C:2016:423
), related solely to the costs of interpretation and translation of the judgment of an Austrian court charged, in the Hungarian special procedure for recognition of the validity of that judgment in Hungary, to the person who had been convicted in Austria, in order for him to be able to use his native language in that special procedure for recognition.
In addition, the Szombathelyi Törvényszék (Szombathely Court) states that following that judgment, the Hungarian courts adopted divergent practices. Some courts continued to apply the special procedure for recognition, while others discontinued the proceedings concerned or are waiting for the legislation on the special procedure for recognition to be amended.
The referring court observes, finally, that in the judgment of 9 June 2016, Balogh (
C‑25/15
,
EU:C:2016:423
), the Court did not rule on Framework Decision 2008/675, whereas that decision is relevant for the proceedings pending before that court because in Hungary, when criminal proceedings are brought against a person, the taking into account of previous convictions of that person in other Member States for other offences is subject to prior recognition in national law of the validity of the foreign judgments handing down the convictions, without which recognition those judgments have no legal effect.
In those circumstances, the Szombathelyi Törvényszék (Szombathely Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Must Articles 67 and 82 TFEU be interpreted as precluding a criminal procedure or other national procedure, governed by national legislation, the purpose of which is the “recognition” or application in a Member State of the validity of a foreign judgment (resulting in the foreign judgment being regarded as having been delivered by a national court), in relation to a defendant in a criminal case in which a final and definitive judgment has already been given by a national court of another Member State of the European Union?
(2)
Is a procedure of a Member State of the European Union, specifically that provided for in Paragraphs 46 to 48 of [the Law on international judicial assistance in criminal matters] “for recognition of the validity” in Hungary [of foreign convictions], relating to criminal proceedings brought in another Member State and culminating there in a final decision (in relation to the same person and to the same acts), compatible with the principle of “
ne bis in idem
” laid down in Article 50 of the Charter of Fundamental Rights of the European Union and Article 54 of the Convention implementing the Schengen Agreement (in the light of [Framework Decision 2008/675]), even if in reality that procedure has the purpose not of enforcing such a decision, but of establishing a basis for that decision to be taken into account in criminal proceedings to be brought in the future?’
Consideration of the questions referred
Question 1
By its first question, the referring court asks essentially whether Framework Decision 2008/675, 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, such as that at issue in the main proceedings, by the courts of the first Member State.
It must be noted, to begin with, that Article 1(1) of Framework Decision 2008/675 provides that the purpose of the framework decision is to determine the conditions under which previous convictions handed down in one Member State against a person are taken into account in the course of new criminal proceedings brought in another Member State against the same person for different facts (judgment of 21 September 2017, Beshkov,
C‑171/16
,
EU:C:2017:710
, paragraph
).
To that end, Article 3(1) of Framework Decision 2008/675, read in the light of recital 5, obliges Member States to ensure that, when such criminal proceedings are brought, previous convictions handed down 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 that previous national convictions are taken into account under national law, and that the legal effects attached to them are equivalent to those attached to previous national convictions, in accordance with national law, whether in relation to questions of fact or questions of substantive or procedural law (judgment of 21 September 2017, Beshkov,
C‑171/16
,
EU:C:2017:710
, paragraph
).
Article 3(2) of the framework decision states that that obligation is to apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules of procedure, including the rules relating to the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision. Thus recitals 2 and 7 of the framework decision state that a national court must be able to take account of convictions handed down in other Member States, including for the purpose of determining what arrangements for enforcement may be implemented, and that the effects of those convictions should be equivalent to the effects of national decisions at each of those procedural stages (judgment of 21 September 2017, Beshkov,
C‑171/16
,
EU:C:2017:710
, paragraph
).
It follows from the above, in particular, that the 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. That concept of ‘new criminal proceedings’ covers the pre-trial stage, the trial stage itself and the execution of the conviction.
In the main proceedings, according to the documents before the Court, Mr Lada is not the subject of new criminal proceedings in Hungary in the sense described in the preceding paragraph, in which the question could arise for the national court concerned of taking into account the decision of the Austrian court.
However, as the Advocate General, too, observes in point 73 of his Opinion, it appears from the order for reference that, for the Hungarian authorities, the special procedure for recognition of a foreign judgment, laid down in Paragraphs 46 to 48 of the Law on international judicial assistance in criminal matters, forms a necessary preliminary stage to the taking into account in new criminal proceedings brought against a person in Hungary of a previous conviction of that person for other offences by a court of another Member State. Thus, since the special procedure for recognition is necessary for the taking into account of a person’s foreign criminal convictions in the event of new criminal proceedings being brought against that person, the special procedure for recognition appears to be inseparably linked to the implementation of Framework Decision 2008/675.
Consequently, in order to provide the referring court with an answer of use to it, the interpretation of Framework Decision 2008/675 is relevant for ascertaining whether or not a special procedure for recognition of a foreign judgment, such as that at issue in the main proceedings, renders that framework decision ineffective.
According to the order for reference and the documents before the Court, Paragraphs 46 to 48 of the Law on international judicial assistance in criminal matters establish a special preliminary procedure for recognition by the competent Hungarian courts of final convictions handed down by foreign courts, with the object of conferring on the decision recognising those convictions the effect of a criminal conviction by a Hungarian court.
That procedure, according to the referring court, involves an examination of the foreign conviction in order to ascertain, in a first stage, in particular whether fundamental rights have been observed in the foreign proceedings. Next, as noted in paragraph 18 above, the competent court must, if necessary, reclassify the offence in accordance with the Hungarian Criminal Code in force at the time of the offence and alter the type or level of the sentence or measure imposed by the court of the other Member State if it is not entirely compatible with that provided for in Hungarian law.
As the Advocate General observes in point 75 of his Opinion, Framework Decision 2008/675 contributes to strengthening mutual trust within the European area of justice, in that it encourages a judicial culture in which previous convictions handed down in another Member State are in principle taken into account.
In this respect, it must be noted that a special procedure for recognition laid down by a Member State, such as that at issue in the main proceedings, which, with respect to a previous conviction handed down by a court of another Member State, imposes an obligation to ascertain whether that court observed the fundamental rights of the person concerned 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 (see, to that effect, Opinion 2/13 (Accession of the EU to the ECHR) of 18 December 2014,
EU:C:2014:2454
, paragraph
, and judgment of 5 April 2016, Aranyosi and Căldăraru,
C‑404/15 and C‑659/15 PPU
,
EU:C:2016:198
, paragraph
).
More particularly, that framework decision, as recital 2 states, aims to implement the principle of mutual recognition of judgments and judicial decisions in criminal matters, enshrined in Article 82(1) TFEU, which replaced Article 31 TEU, on the basis of which the framework decision was adopted. That principle 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 (see, to that effect, judgment of 21 September 2017, Beshkov,
C‑171/16
,
EU:C:2017:710
, paragraph
and the case-law cited).
Article 3(3) of Framework Decision 2008/675 thus expressly proscribes any review such as that at issue in the main proceedings, since previous convictions in other Member States must be taken into account in the terms in which they were handed down (see, by analogy, judgment of 21 September 2017, Beshkov,
C‑171/16
,
EU:C:2017:710
, paragraph
).
That being so, even though Framework Decision 2008/675 precludes a review such as that at issue in the main proceedings that may lead to a reclassification of the criminal offence and an alteration of the sentence imposed in another Member State, it must be stated that the framework decision does not prevent the Member State in which the new criminal proceedings take place from being able to lay down rules for taking into account previous convictions handed down in that other Member State, since the sole purpose of laying down such rules is to determine whether it is possible to attach to those convictions legal effects equivalent to those that attach to previous national convictions in accordance with national law.
That conclusion is borne out by recital 13 of the framework decision, which states that the fact that it is not possible to review a previous conviction should not prevent a Member State from issuing a decision, if necessary, in order to attach the equivalent legal effects to that previous conviction.
As appears from recital 5 of the framework decision, it ‘does not seek to harmonise the consequences attached by the different national legislations to the existence of previous convictions, and the obligation to take into account previous convictions handed down in other Member States exists only to the extent that previous national convictions are taken into account under national law’.
Recital 6 of the framework decision states in this respect that it ‘contains no obligation to take into account such previous convictions, for example, in cases where the information obtained under applicable instruments is not sufficient, where a national conviction would not have been possible regarding the act for which the previous conviction had been imposed or where the previously imposed sanction is unknown to the national legal system’.
So, although the framework decision does not prevent a Member State from taking a decision, if necessary, in order to attach equivalent legal effects to a previous conviction handed down in another Member State, the adoption of such a decision cannot, however, in any event involve the implementation of a national special procedure for prior recognition such as that at issue in the main proceedings (see, by analogy, judgment of 21 September 2017, Beshkov,
C‑171/16
,
EU:C:2017:710
, paragraph
).
Furthermore, as the Advocate General observes, in substance, in point 86 of his Opinion, the adoption of a decision enabling equivalent legal effects to be attached to a previous conviction in another Member State, such as that mentioned in recital 13 of Framework Decision 2008/675, requires an examination on a case-by-case basis in the light of a specific situation. That possibility cannot justify the implementation of a special procedure for recognition with respect to convictions handed down in another Member State which, first, is necessary for those convictions to be taken into account in new criminal proceedings and, second, is liable to lead to a reclassification of the offence committed and the sentence imposed.
Moreover, in the judgment of 9 June 2016, Balogh (
C‑25/15
,
EU:C:2016:423
, paragraphs
and
), the Court previously held that Framework Decision 2009/315 and Decision 2009/316 must be interpreted as precluding the implementation of national legislation establishing a special procedure for recognition of foreign judgments, such as that provided for by Paragraphs 46 to 48 of the Hungarian Law on international judicial assistance in criminal matters, on the grounds in particular that such a procedure prior to the entry of those convictions in the criminal record, which, moreover, requires the transmission and translation of those judgments, is likely to delay that entry considerably, complicate the exchange of information between Member States, deprive the automatic translation system established by Decision 2009/316 of any effectiveness, and thus jeopardise the attainment of the objectives pursued by Framework Decision 2009/315 and Decision 2009/316.
It should be observed here that Framework Decision 2009/315 and Framework Decision 2008/675 are inseparably linked. The competent authorities of the Member States must cooperate diligently and uniformly in exchanging information on criminal convictions, in order to avoid national judicial authorities before which new criminal proceedings are brought against persons who have previously been convicted of other offences by the courts of other Member States giving judgment without being able to take those previous convictions into account. National procedures liable to affect that diligent exchange of information thus clash both with Framework Decision 2009/315, read in conjunction with Decision 2009/316, and with Framework Decision 2008/675.
It follows that Framework Decision 2008/675, 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, such as that at issue in the main proceedings, by the courts of the first Member State.
Question 2
In the light of the answer given to Question 1, there is no need to answer Question 2.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

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, 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, such as that at issue in the main proceedings, by the courts of the first Member State.

[Signatures]
(
*1
)	Language of the case: Hungarian.