# C_2022213EN.01002802.xml

| 30.5.2022 | EN | Official Journal of the European Union | C 213/28 |
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30.5.2022

EN

Official Journal of the European Union

C 213/28

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Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 4 March 2022 — Criminal proceedings against Juan

(Case C-164/22)

(2022/C 213/39)

Language of the case: Spanish

Referring court

Audiencia Nacional

Party to the main proceedings

Juan

Other party: Ministerio Fiscal

Questions referred

| 1. | Whether, in the present case, a situation of ‘bis in idem’ for the purposes of Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 54 of the Convention implementing the Schengen Agreement arises, on the grounds that, according to the scope ascribed to that concept by European case-law, the same acts are involved; or whether it is instead for this court to make the assessment, based on the principles set out in this decision, including the requirement to apply the totality principle and for the sentence to be capped in accordance with proportionality criteria, on the grounds that the case involves a single continuing offence. |
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1.

Whether, in the present case, a situation of ‘bis in idem’ for the purposes of Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 54 of the Convention implementing the Schengen Agreement arises, on the grounds that, according to the scope ascribed to that concept by European case-law, the same acts are involved; or whether it is instead for this court to make the assessment, based on the principles set out in this decision, including the requirement to apply the totality principle and for the sentence to be capped in accordance with proportionality criteria, on the grounds that the case involves a single continuing offence.

| 2. | If it is concluded that a situation of ‘bis in idem’ does not arise, on the grounds that, in accordance with the criteria put forward in this decision, the facts are not completely identical:






  (A) | Whether, in the light of the circumstances of the present case, the restrictions on the effects of judgments delivered in other EU Member States expressly established in Article 14(2) of the Ley Orgánica 7/2014 de 12 de noviembre, sobre intercambio de información de antecedentes penales y consideración de resoluciones judiciales penales en la Unión Europea (Organic Law 7/2014 of 12 November 2014 on exchanging information on criminal records and taking account of judicial decisions in criminal matters), which transposes European legislation, are compatible with Council Framework Decision 2008/675/JHA (1) of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings, and with Article 45 and Article 49(3) of the Charter and the principle of mutual recognition of judicial decisions within the European Union. |
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2.

If it is concluded that a situation of ‘bis in idem’ does not arise, on the grounds that, in accordance with the criteria put forward in this decision, the facts are not completely identical:

(A)

Whether, in the light of the circumstances of the present case, the restrictions on the effects of judgments delivered in other EU Member States expressly established in Article 14(2) of the Ley Orgánica 7/2014 de 12 de noviembre, sobre intercambio de información de antecedentes penales y consideración de resoluciones judiciales penales en la Unión Europea (Organic Law 7/2014 of 12 November 2014 on exchanging information on criminal records and taking account of judicial decisions in criminal matters), which transposes European legislation, are compatible with Council Framework Decision 2008/675/JHA (1) of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings, and with Article 45 and Article 49(3) of the Charter and the principle of mutual recognition of judicial decisions within the European Union.

| (B) | Whether the absence of a procedure or mechanism in Spanish law which provides for the recognition of judgments delivered in other European countries, for the application of the totality principle and for the adjustment or capping of sentences to ensure they are proportional, in situations where a sentence imposed by a foreign court is to be served in Spain and the sentence concerns acts which form a continuing offence or linked offences when taken in conjunction with other acts that have been tried and been the subject of a conviction in Spain, is contrary to Article 45 and Article 49(3) of the Charter, in conjunction with Article 4(6) of Framework Decision 2002/584/JHA (2) of 13 June 2002 and Article 8(1) and (2) of Council Framework Decision 2008/909/JHA (3) of 27. November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union and, in general, with the principle of mutual recognition of judicial decisions within the European Union. |
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(B)

Whether the absence of a procedure or mechanism in Spanish law which provides for the recognition of judgments delivered in other European countries, for the application of the totality principle and for the adjustment or capping of sentences to ensure they are proportional, in situations where a sentence imposed by a foreign court is to be served in Spain and the sentence concerns acts which form a continuing offence or linked offences when taken in conjunction with other acts that have been tried and been the subject of a conviction in Spain, is contrary to Article 45 and Article 49(3) of the Charter, in conjunction with Article 4(6) of Framework Decision 2002/584/JHA (2) of 13 June 2002 and Article 8(1) and (2) of Council Framework Decision 2008/909/JHA (3) of 27. November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union and, in general, with the principle of mutual recognition of judicial decisions within the European Union.

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(1)  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).

(2)  2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States — Statements made by certain Member States on the adoption of the Framework Decision (OJ 2002 L 190, p. 1).

(3)  Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27).

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