Recognising foreign convictions during the sentencing phase: Turning a blind eye to equality?

Abstract

The international validity of convictions can hardly be called a new topic, certainly not within a European Union context. Within the EU, mutual recognition of foreign convictions has been accepted as a leading principle. Therefore, it already gained considerable attention, both of the EU legislator and of legal scholars. However, analysis reveals that mutual recognition of foreign convictions has only been anchored partially in the current EU legal framework. Whereas foreign convictions are relevant in different phases of the criminal procedure, mutual recognition in one particular phase lacks adequate anchoring. The recognition of a foreign convictions has been dealt with in relation to ‘the prosecution phase’ and ‘the executing phase’, but has been largely left to Member State discretion for ‘the sentencing phase’ that comes in between those phases. As a result, some Member States have opted for sentencing laws which partially or even completely disregard the existence of relevant foreign convictions, whereas other Member States have opted for sentencing laws which – in the spirit of mutual recognition – treat foreign convictions as if it were national convictions. This contribution will argue that an infringement of the equality principle is possibly at stake – not so much between these two types of Member States, but within Member States that partially or completely disregard foreign convictions during sentencing. It does so with specific reference to the case law of both the Court of Justice of the European Union and the European Court of Human Rights.