Unequal Treatment within the EU: Disproportionate Sentencing for Cross-border Crimes

1. Unequal treatment withintheEU The case of disproportionatesentencingfor cross-border crimes Wendy De Bondt, Nele Audenaert and Annika Suominen Stockholm 12 June 2019

2. Unequal treatment withintheEU Introductiontothe panel: Mind the EU gapby Wendy De Bondt 1

3. Mind the EU gap Multi-offenders Free movement

4. Mind the EU gap Multi-offenders Free movement • Well elaborated • EU cross-border effect of criminal records • Ne bis in idem • Execution • Recidivism Multi-offenders

5. Mind the EU gap Multi-offenders Free movement

6. Mind the EU gap Multi-offenders Free movement ? 2 1 2 ? Disconnected ? Inextricablylinked 1

7. Mind the EU gap Multi-offenders Free movement 2 Hit and Run Tax offence FalseBomb Airbag theft Airbag theft Airbag theft Illegalweapon Cartheft Bank robbery

8. Mind the EU gap Multi-offenders Free movement 2 ? ? ? ? ? ? ? Proportionality Ne bis in idem ?

9. Mind the EU gap Multi-offenders Free movement Three expectations from the EU policy maker EU guidance on themeaning of ne bis in idem Do offences of multi-offendersfallwithinthe scope of idem If idem, what does thelimitationentail? prosecution/sanction 2. EU requirements on simultaneousproceedings Whatiftwo member states are prosecutingthesameoffences? 3. EU requirements on consecutiveproceedings Whatif a new proceeding is startedafter a proceeding was concluded in another member state?

10. Mind the EU gap Multi-offenders Free movement  Guidance on themeaning of ne bis in idem Art. 4P7 ECHR – No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. Art. 54 CISA – A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Partyfor the same acts, provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party Art. 50 Charter – No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law

11. Mind the EU gap Multi-offenders Free movement 1 1 2 2 Consecutiveprosecutions Simultaneousprosecutions

12. Mind the EU gap Multi-offenders Free movement  Requirementsforsimultaneousproceedings COUNCIL FRAMEWORK DECISION 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (4) There should be direct consultations between competent authorities of the Member States […] aimed at avoiding the adverse consequences arising from parallel proceedings […] (11) No Member State should be obliged to waive or to exercise jurisdiction […]. As long as consensus on the concentration of criminal proceedings has not been reached, the competent authorities of the Member States should be able to continue criminal proceedings […]

13. Mind the EU gap Multi-offenders Free movement  Requirementsforconsecutiveproceedings 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 Article 3 5.   If the offence for which the new proceedings being conducted was committed before the previous conviction had been handed down or fully executed, paragraphs 1 and 2 shall not have the effect of requiring Member States to apply their national rules on imposing sentences, where the application of those rules to foreign convictions would limit the judge in imposing a sentence in the new proceedings. Multi-offence

14. Mind the EU gap Multi-offenders Free movement • Mind the EU gaps • No guidance on idem • No rules on concentration of prosecution • No requirementtotake account of prior convictions

15. Mind the EU gap Multi-offenders Free movement Mind the EU gaps ? Unequal treatment Disproportionatesentencing

16. Unequal treatment withintheEU The effects of prior (foreign) convictions in Belgium whensentencingby Nele Audenaert 2

17. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing

18. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing National convictions • Prior convictionswhenprosecutinga criminal suspect • Ne bis in idem • Pre-trial detention • Prior convictionswhensentencinga defendant • Repeatoffenders • Multi-offenders • Prior convictionswhenexecutingimposedpenalties • Parole (early release from prison) • Placement underthesupervision of theSentenceExecution Court • … Foreignconvictions

19. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing National convictions > 2014: (legally) no effectsattachedto prior foreignconvictions < 2014: implementation of FD 2008/675/JHA Article 3(1): “Each Member State shallensurethatin the course of criminalproceedingsagainst a person, previousconvictionshanded down againstthesame person for different factsin other Member States, in respect of which information has been obtainedunderapplicableinstruments on mutuallegal assistance or on the exchange of information extractedfromcriminal records, are taken into account totheextentpreviousnationalconvictions are taken into account, andthatequivalent legaleffectsare attachedtothem as topreviousnationalconvictions, in accordancewithnationallaw.” Article 3(5): “Iftheoffenceforwhichthe new proceedingsbeingconducted was committedbeforethepreviousconviction had been handed down or fullyexecuted, paragraphs 1 and 2 shallnot have the effect of requiring Member Statestoapplytheirnationalrules on imposingsentences, wheretheapplication of thoseruleswould limit thejudge in imposing a sentencein the new proceedings.” Foreignconvictions

20. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Definition Repeatoffenders = Offenderswho are beingprosecutedforanoffence, committedafteralreadyhavingoccurred a finalconvictionfor at leastoneotheroffence National convictions Foreignconvictions Finalconviction Prosecutionfor second offence Second offence Finaldisposal of theconviction Conviction First offence

21. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Definition • How topunishrepeatoffenders? • First Offender School • First offenders > Repeatoffenders • First conviction? More lenient penalty! • Recidivist Premium School • Repeatoffenders > First offenders • Second conviction? More severe penalty! • The Exclusionary School • Offence > Criminal record • Criminal record maynot affect the penalty National convictions Foreignconvictions Legallyforeseensentence Followingnational procedure Aggravatedsentence

22. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Definition Followingnational procedure National convictions Aggravatedsentence: 5 yearsimprisonment Foreignconvictions Legallyforeseensentence: 3 yearsimprisonment

23. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Definition National convictions Legallyforeseensentence Followingnational procedure Foreignconvictions Aggravatedsentence Legallyforeseensentence Followingnational procedure Aggravatedsentence

24. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Definition Multi-offenders = Offenderswho have committedseveraloffencesbeforebeingfinallyconvictedforone of them National convictions Prosecutionforalloffences at thesame time First offence Second offence Fourthoffence Foreignconvictions Thirdoffence Finalconviction Prosecutionfor second offence Second offence Finaldisposal of theconviction First offence Conviction 2 Conviction 1

25. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Offence A + B + C + D < OffenceM Assault Bank robbery Cartheft Drunkdriving + Murder Definition National convictions Foreignconvictions Outcomeperceived as disproportionate

26. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Offence A + B + C + D < OffenceM Assault Bank robbery Cartheft Drunkdriving + Murder Definition National convictions Foreignconvictions Solution: sentence is cut

27. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Offence A + B + C + D < Offence M Assault Bank robbery Drunkdriving + Procedure 2 CartheftNo additional penalty Murder Definition National convictions Foreignconvictions

28. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Offence A + B + C + D < Offence M Assault Bank robbery Drunkdriving + Procedure 2 Cartheft Murder Definition National convictions Foreignconvictions

29. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Offence A + B + C + D < OffenceM: before 2014 Assault Bank robbery Drunkdriving + Procedure 2 Cartheft+ Murder Definition National convictions Foreignconvictions

30. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Offence A + B + C + D < OffenceM: after 2014 Assault Bank robbery Drunkdriving + Procedure 2 Cartheft+ Murder Definition National convictions Foreignconvictions

31. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Is theequivalenceprinciplea neutralprinciple? Equivalence in disadvantage of a defendant (e.g. repeatoffenders) Equivalence in advantage of a defendant (e.g. multi-offenders) Conceptual Proportionality Equality Justification?

32. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Article49(3) CFR “The severity of penalties must not be disproportionate to the criminal offence.” Conceptual Proportionality Equality Justification?

33. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Article20 CFR “Everyone is equal before the law.” If case A = case B If case A ≠ case B Then result A = result B Then result A ≠ result B Twoburglaries (A + A) ≠ Twoburglaries (A + B)? Twoburglaries (A + A) = Twoburglaries (A + B)? Ifonlydifference: - number of prosecuting MS OR - nationality of previousconviction Conceptual Proportionality Equality Justification?

34. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Conceptual Proportionality Equality Justification?

35. Unequal treatment withintheEU The effects of prior (foreign) convictions in Sweden when sentencingby Dr. Annika Suominen 3

36. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing No Swedish implementation of framework decision 2008/675. Not necessary to amend existing legislation either, applying the relevant rules of the Penal Code as before the framework decision was considered sufficient.

37. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Existing legislation: Chapter 26, Section 3 of the Penal Code; Chapter 29, Section 4 of the Penal Code; Chapter 30, Sections 4, 5, 7 and 9–11 of the Penal Code; Chapter 31, Section 3 of the Penal Code; Chapter 32, Sections 1–3 of the Penal Code; Chapter 20, Section 7 of the Code of Judicial Procedure; Chapter 23, Section 4 a of the Code of Judicial Procedure; Chapter 24, Section 1 of the Code of Judicial Procedure; Sections 16 and 17 of the Young Offenders (Special Provisions) Act (1964:167); Section 3 of the Road Traffic Offences Act (1951:649); Section 1 of the Restraining Order Act (1988:688); Section 2 of the Act concerning the issue of banning orders for sports events (2005:321); Section 1 of the Act on pre-sentence investigation in criminal cases, etc. (1991:2041); Chapter 8, Section 8 of the Aliens Act (2005:716); Chapter 2, Section 4 of the Prisons Act (2010:610); Chapter 6, Section 7 of the Prisons Act (2010:610); Chapter 10, Sections 1 and 2 of the Prisons Act (2010:610); Chapter 11, Section 3 of the Prisons Act (2010:610); Section 4 of the Commutation of Life Sentences Act (2006:45).

38. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing The Swedish sentencing system: The penal value of the offence (straffvärde). The penal assessment value (straffmätningsvärde). Choice of sanction: a) if at the level of a fine; a fine will be imposed. b) if the penal value is imprisonment, section 30:4 of the Swedish Penal Code. Penal value, prior record and the character of the offence. 4. a) If the assumption is not rebutted, a non-custodial sanction is imposed. b) If the presumption is rebutted, special reasons may still be relevant. 5. A prior record may influence the length of the prison sentence. May influence the length of the sentence, if this has not been fully possible under the choice of sanction.

39. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Definition Followingnational procedure National convictions Aggravatedsentence: x yearsimprisonment Foreignconvictions Legallyforeseensentence: possibly x yearsimprisonment

40. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Multi-offenders Specificcalculation model (asperationsprincipen) 1st offence -- 2nd offence -- 3rd offence --- 4th offence -- 5th offence 1/1 1/2 1/3 1/4 1/5 = the joint penalvalue of theoffences (section 26:2 of thePenal Code)

41. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing

42. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing What about proportionality and equality then? Both for repeat offenders and multi-offenders; the cross-border element does not as such have an impact, the same meaning is/should be attached to cross-border convictions as national ones. Information ECRIS Application in lower courts

43. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Is themutualrecognitionprinciple a neutralprinciple? Mutual recognition in disadvantage of a defendant (e.g. repeatoffenders) Mutual recognition in advantage of a defendant (e.g. multi-offenders) Conceptual Proportionality Equality Justification?

44. Repeatoffenders Multi-offenders Discussion points Prior convictionswhensentencing Concluding A specific policy? The requirements of proportionalityandequality?

45. Questions and discussion