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INTERNATIONAL JUDICIAL COOPERATION IN CRIMINAL MATTERS Semi – final A

EU legislation and national legislative approach on taking account of handed down in

Member States in the course of new criminal proceedings

10 – 13 April 2017, Sofia,

Team Bulgaria Candidate junior : Georgi Balkov

Nora Manolova :

Teodora Todorova Desislava Petrova

INTRODUCTION

International cooperation between EU Member States in criminal matters concerns criminal offences with an international element, which are characterized with an extremely high level of danger posed to the public, due to the fact that they affect the national as well as the international legal order. Such mutual assistance between these countries is needed in order to prevent, intercept and properly penalize the abovementioned criminal offences. This work analyses one of the aspects of international cooperation between Member States of the European Union, namely taking account of convictions handed down in EU Member States in the course of new criminal proceedings and the exchange of information between Member States regarding previous convictions of persons in another Member State. The analysis outlines the legal framework of the subject matter; definition of the notion of taking into account the convictions handed down by other Member States and the prerequisites for that; a comparative analysis of the application of 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; analysis of its application in Bulgaria; and the exchange of information between the convicting State and other Member States through the European Criminal Records Information System (ECRIS) pursuant to Council Framework Decision 2009/315/JHA of 26 February 2009 on the organization and content of the exchange of information extracted from the criminal record between Member States. The purpose is to present comprehensively the issues pertaining to taking account of convictions handed down in another EU Member State and to propose guidelines for improving the rules currently in force.

CHAPTER I Taking into account of convictions handed down in Member States of the European Union in the course of new criminal proceedings

1. Legal regulation The idea to establish norms of an international ranking to regulate the recognition of judicial acts delivered in criminal cases in foreign states comes in response to the trend of growing international crime and is a step forward in attaining the objective of the European Union to maintain and develop an

1 area of freedom, security and justice. States need to counteract successfully this trend, which requires among others to allow for exceptions on international level from the classic concept of national sovereignty in the field of criminal justice, thus expanding the territorial scope of validity of foreign convictions. The first step for the countries in Europe regarding recognition of convictions delivered by a foreign court is the European Convention on the International Validity of Criminal Judgements drafted by the Expert Committee of the Council of Europe and opened for signature on 28 May 1970. In the context of taking into account convictions handed down in another Contracting State, Article 56 of this Convention envisages that “Each Contracting State shall legislate as it deems appropriate to enable its courts when rendering a judgement to take into consideration any previous European criminal judgement rendered for another offence after a hearing of the accused with a view to attaching to this judgement all or some of the effects which its law attaches to judgements rendered in its territory. It shall determine the conditions in which this judgement is taken into consideration.“ The Convention has been signed and ratified by 28 European Council Member States. It is ratified by the Republic of Bulgaria by a law of 28 January 2004, which was promulgated in the State Gazette and entered into force. In compliance with the duties laid down in Article 56 of the Convention, the provision of Article 8, paragraph 1 of the Bulgarian Criminal Code was amended as follows: “Any sentence of a foreign court for a crime for which the Bulgarian Criminal Code applies shall be taken into consideration in the cases established by an international agreement to which the Republic of Bulgaria is party.” In this way the Bulgarian State introduced the principle of equivalence of sentences delivered in Member States of the Council of Europe so that the criminal record of the convicted person be taken into account in new criminal proceedings. Although all EU Member States are also members of the Council of Europe, to ensure a well- functioning common area of justice and security on European level, 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 was introduced. Article 4 of the Framework Decision specifies that the Framework Decision shall replace Article 56 of the European Convention of 28 May 1970 on the International Validity of Criminal Judgements as between the Member States parties to that Convention, without prejudice to the application of that Article in relations between the Member States and third countries. The Framework Decision envisages that Member States introduce in their respective national laws legal provisions whereby they regulate that the fact that a certain person has committed a crime for the first time or has been convicted in another Member State is taken into account in all stages of the criminal proceedings. The possibility to make an assessment of the perpetrator’s criminal history is

2 particularly important to ensure lawful and fair new criminal proceedings. The Framework Decision aims to ensure that national convictions and convictions handed down in other Member States have the same legal effect. It strengthens mutual trust in the criminal laws and judgements in the European area of justice and promotes a judicial culture that previous convictions handed down in another Member State must be taken into account in new criminal proceedings. Bulgaria has transposed Framework Decision 2008/675/JHA through Article 8, paragraph 2 of the Bulgarian Criminal Code, in force as of 27 May 2011, pursuant to which „Any final issued in another EU Member State for an act which constitutes a crime under the Bulgarian Criminal Code shall be taken into consideration in every criminal proceedings against the same person conducted in the Republic of Bulgaria.“

2. Definition The term “taking into account of previous convictions handed down in another EU Member State” is defined in Article 3, § 1 of Framework Decision 2008/675/JHA: „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.” Therefore the rule “take into account” means that a conviction handed down by another Member State has the same legal effects as a conviction handed down by a national court, regardless of whether according to the national law these effects are considered a fact or procedural or substantial law.1 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 5 of Framework Decision 2008/675/JHA). In this way it is ensured that previous convictions of Member States have equivalent legal effects as the convictions handed down by the national courts.

3. Factual preconditions for taking into account convictions handed down in Member States The obligation laid down in Article 3, § 1 of Framework Decision 2008/675/JHA for each Member State to 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 are taken into account

1Chinova, M., Panova, P. Taking into account convictions handed down in Member States of the European Union in the course of new criminal proceedings. // Norma, 2015, no. 7, p. 63. 3 is not unconditional. For a previous conviction of another Member State to be taken into account, a number of factual preconditions set forth in the Framework Decision - mandatory and optional, must be in place. 3.1. The first mandatory precondition is that there is a “previous conviction” handed down by an EU Member State (Article 3, § 1 of the Framework Decision). Pursuant to Article 2 of Framework Decision 2008/675/JHA, conviction means “any final decision of a criminal court establishing guilt of a criminal offence“. The notion of “conviction” within the meaning of Framework Decision 2008/675/JHA is identical to the definition laid down in Article 1, letter “a” of the European Convention on the International Validity of Criminal Judgements. The said provision specifies that for the purpose of the Convention “European criminal judgement” is “any final decision delivered by a criminal court of a Contracting State as a result of criminal proceedings”. 3.2. The second mandatory precondition to take into account convictions handed down in other Member States is laid down in Article 3, § 1 of Framework Decision 2008/675/JHA, and it requires that the conviction handed down in an EU Member State is against the same person but for different acts. It is important to specify that the act is different because the principle of nе bis in idem (not twice in the same [thing]), where two parallel proceedings are conducted against the same person for the same act does not fall within the scope of the Framework Decision and is not regulated therein. 3.3. The third precondition, which is optional, is the condition of double criminality as regards the act and the sanction. Framework Decision 2008/675/JHA contains no obligation for Member States to take into account the effects attached to a foreign conviction in accordance with the law of the convicting State in case where the act for which the person is convicted is not a crime under the national law or where the national law does not envisage a sanction of the type of the one imposed by the convicting State. The conclusion is correct and ensues directly from recital 6 of Framework Decision 2008/675/JHA which stipulates that Member States are not obliged to take into account such previous convictions that … “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”. This is why Member States may envisage in their national laws additional preconditions that require that the act is a crime under national law and/or the imposed sanction exists as a type of sanction in the national law. 3.4. The fourth precondition, which is also optional, is sufficient information obtained about the foreign conviction. Recital 6 of Framework Decision 2008/675/JHA specifies that Member States are not required to take into account such previous convictions in cases where the information obtained

4 under applicable instruments is not sufficient. This precondition could block the effects attached to a foreign conviction only insofar as it is envisaged in the national law of the respective Member State. In view of this and insofar as in the national law of a Member State the insufficient information is not established as a negative precondition for taking into account the effects attached to the conviction handed down in another Member State, the lack of sufficient information may not serve as a formal precondition for competent authorities to refuse to take into account the effects attached to a foreign conviction in the course of new criminal proceedings initiated before them. In those cases these authorities are required to obtain on their own motion the necessary information under the terms of international legal assistance. 3.5. The fifth and last precondition concerns the stage at which it is admissible to take into account the conviction handed down in an EU Member State. Pursuant to Article 3, § 2 of Framework Decision 2008/675/JHA, the effects attached to a previous conviction handed down in a Member State must be taken into account at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction alike.

CHAPTER II Comparative legal analysis

1. Introduction Since the acceptance of Framework Decision 2008/675/JHA, the European Commission has closely monitored its process of implementation in all European Union Member States. In 2014 the information gathered was summarized in a report, dating from 2 June 2014. The report states, that at the time being, 22 Member States had implemented this Framework Decision. There were, however, substantial differences in the implementation, when a comparison between different countries was made. Furthermore, 92 out of those 22 countries had not provided conclusive information on the transposition of the legal effects attached to previous foreign convictions in their national criminal justice system and at what stage of proceedings (pre-trial, trial stage, execution) these effects apply in their national criminal justice system (Art. 3 paragraph 2). Also 63 Member States still needed to implement these rules. , , and had informed the Commission of the process of preparing relevant transposition measures at national level. However, none of these Member States had adopted the measures or notified the Commission before April 2014.

2 These countries were Bulgaria, , Estonia, , , Luxemburg, Poland, and Slovakia. 3 Belgium, Spain, , Lithuania, Malta and 5

The report was issued with an annex, containing a table on the state of play of implementation of the Framework Decision, which shows precisely how every Member State had amended its laws by articles and paragraphs or had accepted a new law in accordance with the decision.

2. Evaluation of the implementation by the Member States of the framework decision The Commission focused its assessment of the level of transposition particularly on the obligations under Article 3, namely that principle of equivalence was duly introduced and legal effects of previous convictions are attached to foreign previous convictions in the national criminal justice systems, in accordance with national law. Proper implementation of this principle means, that the Member States have the obligation of accepting the definition of "conviction" as "any final decision of a criminal court establishing guilt of a criminal offence." Several Member States4 had not provided an explicit definition of what they consider to be a "conviction" for the purposes of the Framework Decision. In spite of this fact, the aforementioned Member States have applied the general principles and definitions of their . For example, Latvia and Romania have merely referred to 'recidivism' instead of defining previous convictions explicitly. and the UK have included unconditional prison sentences, community service orders, fines or equivalent sanctions as a type of decision to be considered "conditions under which previous convictions are taken into account." , Finland, Croatia, Luxemburg, Latvia, and have not set any additional requirements for the taking into account of previous convictions. In those Member States, courts can simply give the same weight to convictions handed down in another Member State as they do to convictions handed down in their own state. In the report this approach has been considered 'mutual recognition friendly', since it reflects a solid trust in final convictions and criminal records systems in other Member States. On the other hand, Hungary submits foreign convictions to an extensive recognition procedure before they can be taken into account. In Sweden, previous legal proceedings exclude the imposition of a conditional sentence. Danish and Swedish law take into account that, for a previous conviction to be considered as an aggravating circumstance, the offence in respect of which the conviction was handed down should be relevant for the offence currently under consideration. The report gives no further information on the meaning of 'relevant' in regards to the aforementioned principle, but the comparison with a similar principle, adopted by Slovenia, explains its nature more precisely. Slovenian national law states that for the assessment of the severity of the sentence, the court shall in particular consider whether the earlier offence is of the same type as the new one, whether both offences were committed with the same motive, and how much time has elapsed since the previous conviction was served, remitted or statute-

4 , Bulgaria, Denmark, , France, , Luxemburg, Latvia, Romania, Sweden, Slovenia, Slovakia and the 6 barred. Given the fact, that the report exhibits these principles as similar, it would be safe to say that Sweden and Denmark attach basically the same consequences to conditions regarding previous convictions as does Slovenia. Slovenian law also takes previous convictions into account when courts issue an order that aims to ensure the presence of the accused or to eliminate the risk of re-offending, particularly in decisions to order detention or alternative measures to ensure the presence of the accused. In this regard the European Commission considers that „[…] when Member States take previous convictions into account as a factor in the decision on pre-trial detention, the link between the criteria in the Framework Decision and the criteria in national law which are applied in this decision on pre-trial detention should be strictly assessed in the light of relevant Council of Europe recommendations and the European Court of Human Rights case law. The reasons behind a decision on pre-trial detention should be clearly spelled out having regard to the case in question and cannot be based solely on the fact that a person has been previously convicted”. In , Croatia, the and Sweden previous convictions are taken into account during the execution of a sentence. It is possible that previous convictions are taken into account during the decision on probation (Germany, Sweden), or conditional early release (Germany), or when the suspension of a sentence or custodial measure is revoked (Austria, Germany). In some countries, courts also have to consider previous convictions when deciding, whether a person convicted is to be placed in a high security unit, which is the case in Sweden, or a facility for notorious recidivists, which is the case in the Netherlands. German and Swedish law states that courts shall revoke the suspension of a sentence or custodial measure if a person commits an offence during the operational period. Sweden also takes previous convictions into account in the decision to commute a life sentence into a fixed term imprisonment. Following this preliminary assessment, the implementation notification of Framework Decision 2008/675/JHA by 13 Member States5 showed that they have addressed all important elements of this Framework Decision.

3. Mutual exchange of information between Member States Availability of information on the national legal systems and the consequences that are attached to previous convictions is critical in order for the implementation of Framework Decision 2008/675/JHA by the Member States to actually improve the criminal judicial system of the European Union. Therefore the importance of intertwining every Member State's national criminal records register with each other cannot be stressed enough.

5 Austria, , Germany, Denmark, Finland, Greece, Croatia, Ireland, Latvia, Netherlands, Sweden, Slovenia and the United Kingdom 7

In their implementation notifications some Member States had also informed the Commission about domestic acts or internal rules on the organization of their national criminal registers, namely Estonia, Hungary and Latvia.

4. Conclusion The efforts made by the 22 Member States, that had transposed this Framework Decision at the time, were duly noted by the European Commission, despite the different methods they used. The national implementing provisions received from 13 Member States6 were found to be generally satisfactory by the Commission. This basically means that these Member States have all done a decent job of implementing the principles established by the Framework Decision. The remaining 9 Member States, that notified the Commission, had provided no conclusive information regarding the transposition of the legal effects attached to previous foreign convictions in their national criminal justice system. According to the report their level of compliance on this issue could not be assessed. The Commission stated, that it will continue to closely monitor the Member States' compliance with all requirements of the Framework Decision. The proper future application of the principle of equivalence by the Member States would be subjected to a thorough examination by the Commission. The most important conclusion made in the report was, that the Framework Decision has considerable added value in promoting mutual trust in penal laws and judicial decisions in the European area of justice as it encourages a judicial culture where previous convictions handed down in another Member State are in principle taken into account.

CHAPTER III Implementation of Framework Decision 2008/675/JHA in Bulgaria

1. Factual preconditions for taking into account convictions handed down in EU Member States As stated above, the first factual precondition is that there is a previous conviction. Article 8, paragraph 2 of the Criminal Code refers to a “final conviction”, which is equivalent to the wording “final decision of a criminal court” under Article 2 of Framework Decision 2008/675/JHA and the wording “final decision delivered by a criminal court” under Article 1, letter “a” of the European Convention on the International Validity of Criminal Judgements. This is why the conclusion that the notion “final conviction” within the meaning of the Bulgarian Criminal Code is identical to the

6 As listed in footnote 5 8 definition in Article 2 of Framework Decision 2008/675/JHA and Article 1, letter “a” of the European Convention on the International Validity of Criminal Judgements is correct. In this regard the Bulgarian criminal law is in full compliance with the two international treaties cited above. The second factual precondition, that the conviction is against the same person but for a different act, is also in place. The rule of ne bis in idem is introduced in Article 24, paragraph 1, item 6 of the Bulgarian Code, which stipulates that it is inadmissible to conduct criminal proceedings in case where “Against the same individual and for the same criminal offence there are pending criminal proceedings, a verdict in force, a prosecutorial decree or a court ruling or order in force whereby the case is terminated“. The third factual precondition for Bulgarian authorities to take into account a conviction handed down in an EU Member State is the required double criminality in relation to the act. The Bulgarian Criminal Code provides for double criminality only in relation to the act but not in relation to the sanction. Therefore, in order to take into account the legal effects attached to a foreign conviction, it is necessary and sufficient that it is delivered for an act, which constitutes a criminal offence under the Bulgarian Criminal Code. This is the only condition required under the Bulgarian law for taking into account convictions handed down in EU Member States. Bulgaria has not provided sufficiency of the information obtained as an additional precondition in its law. It would be inadmissible to rely on Framework Decision 2008/675/JHA as framework decisions are not directly applicable and have no direct effect. Thus a Bulgarian court may not refuse to take into account a conviction handed down in another Member State on grounds that it does not possess sufficient information about it, but must obtain it on its own motion through the applicable international instruments on mutual legal assistance. Furthermore, Bulgaria has not provided for an additional precondition that the conviction of the foreign court has undergone an exequatur procedure. This issue is considered differently in the Bulgarian case law and this is why it will be reviewed in detail in the next paragraphs.

2. Opinions regarding exequatur as a requisite factual precondition in the case law of the Bulgarian courts Recital 5 of Framework Decision 2008/675/JHA specifies 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, whether those effects be regarded by national law as matters of fact or of procedural or substantive law. Thus the leading principle of equivalence of foreign and national convictions in new criminal proceedings is introduced, which means that previous convictions handed down in other Member States have the same legal effects as previous convictions delivered by the national courts. 9

To ensure correct qualification of the act, issuing of detention orders, rehabilitation of convicted persons or enforcing suspended sentences, previous final convictions handed down in other Member States must be taken into account by the Bulgarian courts. Consequences that previous convictions may have are establishing undisrupted crime7 or whether the conditions for determining a combined punishment for several offences committed prior to convicting the person for any of them are met. The implementation of Framework Decision 2008/675/JHA and Article 8, paragraph 2 of the Bulgarian Criminal Code have led to some controversies. Some judges find it inadmissible to take into account a conviction handed down in an EU Member State within the meaning of Article 8, paragraph 2 of the Criminal Code unless that conviction has been recognized following the due process for recognition and enforcement of foreign judgements.8 In their reasons these judges hold that Article 8, paragraph 2 Criminal Code has no direct effect and may be applied only after the foreign court judgement has been recognized. Arguments in support of this position rely on Article 4, paragraph 2 of the Bulgarian Criminal Procedure Code, which stipulates that “[A] sentence in force issued by a court in another state, which has not been recognized under the terms of the Bulgarian law, shall not be subject to enforcement by the authorities of the Republic of Bulgaria”. It is held that despite Article 8, paragraph 2 Criminal Code, the legislator has not ignored the imperatively required recognition of a foreign sentence as a condition for taking it into account in the course of criminal proceedings conducted in Bulgaria. Other judges find it admissible to take into account foreign convictions without a prior exequatur procedure in order to take account of their effects in qualifying the act and determining the punishment.9 They hold that it is contrary to the logic of the law not to be able to take account of a conviction delivered by a foreign court unless that conviction has undergone the formal process of recognition, considered that the Bulgarian legislator has provided the Bulgarian court with express powers to take account of the fact that a person has been convicted, even though that conviction has not undergone exequatur procedure.

7 Art. 26 Bulgarian Criminal Code: "... a series of two or more acts, which, taken separately, would qualify under the same or under different sub headings of a specific crime, are committed over short periods of time, in similar surrounding circumstances, and are characterized with a homogenous form of guilt, the subsequent acts appearing, both objectively and subjectively - as regards guilt - a continuation of the preceding ones. 8 Ruling no. 305 of 29 May 2013 in privately actionable criminal case no. 488/2013 of Varna District Court. In the same sense judgment no. 48 of 8 July 2013 in appellate privately actionable criminal case no. 97/2013 of Silistra District Court; judgment no. 2632 of 4 July 2013 in appellate publicly actionable criminal case no. 210/2013 of Blagoevgrad District Court; ruling no. 77 of 25 April 2012 in privately actionable criminal case no. 84/2012 of Plovdiv Appellate Court. 9 Judgment no. 507 of 20 May 2014 in appellate publicly actionable criminal case no. 1203/2014 of the Sofia City Court; ruling no. 560 of 18 September 2013 in privately actionable criminal case no. 1128/2013 of Varna District Court; ruling no. 3571 of 4 December 2013 in privately actionable criminal case 2502/2013 of Ruse Regional Court. 10

According to the doctrine, the case law that holds that a due process of recognition of the conviction is required for that conviction to be taken into account is not correct.10 The arguments are premised on the fact that international acts and instruments distinguish between on the one hand recognition and enforcement of a conviction handed down by a foreign court, and on the other hand taking into account the effects of such a conviction. We find the second opinion supported by the Bulgarian doctrine to be the actually correct one, for the following reasons. Firstly, international acts and instruments distinguish between recognition and enforcement of convictions rendered by foreign courts and taking account of the effects of such convictions. The regulation of the recognition and enforcement of European criminal judgements is laid down in Part II of the European Convention on the International Validity of Criminal Judgement. For EU Member States, Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union applies. At present Bulgaria has not yet transposed Framework Decision 2008/909/JHA, despite the deadline for compliance of 5 December 2011. The European Convention and Framework Decision 2008/909/JHA provide for a lengthy and complex procedure for the recognition and enforcement of foreign sentences. These different regimes are premised on the principle that the execution of punishment is an element of the contents of the conviction, while the fact of a previous conviction is a secondary legal effect of the conviction, which is taken into account in every new criminal proceedings. It should be pointed out that the lack of a procedure for taking into account foreign convictions within the meaning of Article 8, paragraph 2 Criminal Code is not in conflict with Article 56 of the European Convention on the International Validity of Criminal Judgements or with Council Framework Decision 2008/675/JHA. Recital 13 of Framework Decision 2008/675/JHA allows Member States to endorse “a variety of domestic solutions and procedures required for taking into account a previous conviction handed down in another Member State”. 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”. This applies only to those Member States that have an express procedure for taking account of previous convictions handed down in other Member States. No such procedure however is envisaged under the Bulgarian law, hence previous convictions issued by a foreign court are taken into account, just as the effects of a previous conviction issued by a Bulgarian court are taken into account.

10 Chinova, M., Panova, P., Cited Collection, pp. 64-65. 11

Secondly, Article 4, paragraph 2 of the Bulgarian Criminal Procedure Code cited above apparently requires recognition of foreign court convictions only for the purposes of their enforcement, but not for the purpose of taking account of their secondary effects. Besides, this requirement is not absolute as it is derogated, i.e. not applied “if provided for otherwise by an international treaty to which the Republic of Bulgaria is a party and which has been ratified, promulgated and has entered in force” (Article 4, paragraph 3 Criminal Procedure Code). This conclusion follows from the reading and interpretation of Article 4, paragraph 3 and Article 463 of the Bulgarian Criminal Procedure Code. For Bulgaria this international treaty is Part II of the European Convention on the International Validity of Criminal Judgements. More importantly, it must be underlined that convictions are recognized under this procedure but only for the purpose of their enforcement and not for the purpose of taking account of their legal effects.

3. Opinions in the domestic case law as regards the effects of foreign convictions for the implementation of some institutes of the substantial criminal law 3.1 In determining a cumulative punishment for several offences and joining other punishments to the cumulative punishment (including the punishment in another sanction) Articles 23 to 25 of the Bulgarian Criminal Code establish an institute whereby in case a person commits several offences before a conviction is issued for any of them, the court determines individual punishments for each offence but imposes a single punishment, namely the most severe among the individual punishments. It is further possible to join some of the lighter punishments to the most severe punishment. The Criminal Code further provides that the punishment for a repeated offence may be joined to the punishment imposed for another offence, even if these punishments have been determined following the rules of Articles 23 to 25 Criminal Code. Some judges hold that regardless of whether the punishment imposed by a foreign court has been enforced or not, it may not be added to the sanction under a Bulgarian conviction and may not be deducted from the determined cumulative punishment.11 Their considerations rely on the fact that Article 8, paragraph 2 Criminal Code has no direct effect and is not directly applicable without a procedure for the recognition of the foreign conviction regardless of the fact whether it has been enforced or not.12

11 Judgment no. 2632 of 4 July 2013 in appellate publicly actionable criminal case no. 210/2013 of Blagoevgrad District Court; ruling of 27 November 2014 in privately actionable criminal case no. 418/2014 of Sliven District Court. 12 Ruling no. 305 of 29 May 2013 in privately actionable criminal case no. 488/2013 of Varna District Court. 12

Other judges hold the opposite – that when the punishment imposed under the foreign conviction has been served, it may be added to the aggregate of punishments under the Bulgarian convictions; then the punishment served will be deducted from the cumulative punishment even if the foreign conviction has not been recognized under the terms set forth in the Bulgarian procedural law. They in turn rely on that Article 8, paragraph 2 Criminal Code has direct effect and is directly applicable without an exequatur procedure in case where the Bulgarian State does not have to enforce the conviction.13 In our opinion it is correct to hold that serving the punishment is an element of the conviction and not a matter of its secondary legal effects. This is why it is inadmissible that the punishment under a foreign conviction that has not been served yet is added to the aggregate of punishments under Bulgarian convictions without undergoing an exequatur procedure. In case this punishment has been served, there is no obstacle to add it to the aggregate of punishments, regardless of the fact that the foreign conviction has not undergone exequatur procedure. This conclusion is further supported by Article 3, § 3 of Framework Decision 2008/675/JHA, pursuant to which “The taking into account of previous convictions handed down in other Member States […] 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“. Besides, recital 14 of Framework Decision 2008/675/JHA instructs that in taking account of convictions handed down in other EU Member States, interference with a judgement or its execution is inadmissible where it covers inter alia “situations where, according to the national law of the second Member State, the sanction imposed in a previous judgement is to be absorbed by or included in another sanction, which is then to be effectively executed, to the extent that the first sentence has not already been executed or its execution has not been transferred to the second Member State”. 3.2 Reference for a preliminary ruling To overcome controversies in the Bulgarian case law on the implementation of Framework Decision 2008/675/JHA, note should be taken of the reference for a preliminary ruling made by a judge in the Sofia Regional Court to the Court of Justice of the European Union raising the following issues: 1. How must the expression ‘new criminal proceedings’ used in Council Framework Decision 2008/675/JHA be interpreted, and must that expression necessarily be connected with a finding of guilt in respect of an offence committed or can it also relate to other types of proceedings in criminal matters? 2. Shall Article 3 paragraph 1, read in conjunction with recital 13 of Council Framework Decision 2008/675/JHA be interpreted as permitting national rules which provide that proceedings

13 Protocol no. 1355 of 29 April 2014 in publicly actionable criminal case no. 709/2007 of Gotse Delchev Regional Court; ruling no. 3571 of 4 December 2013 in privately actionable criminal case no. 2502/2013 of Ruse Regional Court. 13

in which an earlier judgement delivered in another Member State must be taken into account, may not be initiated by the sentenced person but only by the Member State in which the earlier judgement was delivered or by the Member State in which the new criminal proceedings are taking place? 3. Shall Article 3 paragraph 3 of Council Framework Decision 2008/675/JHA be interpreted as meaning that the Member State in which the new criminal proceedings are taking place may not change the manner of execution of the penalty imposed by the Member State which issued the earlier sentence, including in the event that, under the national law of the second Member State, the penalty imposed by the earlier judgement must absorb another sanction or be included in it or must be enforced separately? The case which prompted the Bulgarian judge to refer to the ECJ concerns precisely a final conviction handed down in an EU Member State, which has not been recognized in Bulgaria under the due process. The case has been initiated against a Bulgarian national who has been repetitively convicted and who committed yet another offence in 2008, hooliganism and inflicting minor bodily injury. Prior to being convicted, however, he left for Austria where in December 2010 he was convicted by an Austrian court for constructive theft to 18 months of imprisonment – six months effectively and 12 months suspended over a three-year probation period. At present the reference for a preliminary ruling is still pending. 3.3 Suggestions regarding the preliminary ruling In our opinion the judgements concerning the aforementioned questions should be in the following manner: 1. The expression "new criminal proceedings" used in Council Framework Decision 2008/675/JHA must be interpreted as a general one, because the taking into account of previous convictions as a legal institute should not only be understood as concerning procedures committed to establishing guilt, but also as such related to various different types of criminal proceedings, for example preliminary detention cases. By adopting this interpretation, the aim of the Framework Decision would be better achieved, thus eliminating future controversies in this matter. 2. Judgement on the second question should be in the light of protecting the rights of the sentenced person to the fullest, in accordance with European Court of Human Rights case law. Therefore, the latter must be given the right to initiate the abovementioned procedures. This would guarantee avoidance of unjust sentences and a correct interpretation of the principle which prohibits worsening of the perpetrator's position. 3. Considering the fact that Article 3 paragraph 3 of the Framework Decision states that "the taking into account of previous convictions handed down in other Member States [...] shall not have the

14 effect of interfering with, revoking or reviewing previous convictions or any decision relating to their execution by the Member State conducting the new proceedings", clearly the judgement should be that the Member State in which the new criminal proceedings are taking place may not change the manner of execution of the penalty imposed by the Member State which issued the earlier sentence, even in the event that, under the national law of the second Member State, the penalty imposed by the earlier judgement must absorb another sanction or be included in it or must be enforced separately, because this requires a separate recognition procedure of the previous conviction, which is subject to Framework Decision 2008/909/JHA.

CHAPTER IV Exchange of information on criminal records of European nationals between EU Member States through the ECRIS system

1. Legal regulation To allow that Member States effectively comply with their obligation to take into account previous convictions handed down by a foreign court in the framework of the EU, an effective mechanism for the exchange of information generated from the criminal records among the competent authorities of the Member States must be in place. Judicial cooperation in the EU regarding information on convictions handed down in other Member States was first regulated by Articles 13 and 22 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959.14 Pursuant to Article 13 of the said Convention, a requested Party shall communicate extracts from and information relating to judicial records, requested from it by the judicial authorities of a Contracting Party and needed in a criminal matter, to the same extent that these may be made available to its own judicial authorities in like case. In any case other than that the request shall be complied with in accordance with the conditions provided for by the law, regulations or practice of the requested Party. Article 22 of the Convention regulates the exchange of information and requires that each Contracting Party shall inform any other Party of all criminal convictions and subsequent measures in respect of nationals of the latter Party, entered in the judicial records. Ministries of Justice shall communicate such information to one another at least once a year. Where the person concerned is considered a national of two or more other Contracting Parties, the information shall be given to each of these Parties, unless the person is a national of the Party in the territory of which he was convicted.

14 The Convention is signed and ratified by 50 states, among which 3 are not members of the Council of Europe, namely , Israel and Korea. 15

The next stage in the development of international cooperation between EU Member States in the area of exchange of information about criminal records of European nationals is the of 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 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/JHA. In recital 8 of Framework Decision 2009/315/JHA it is pointed out that the above cited Articles 13 and 22 of the 1959 European Convention are not sufficient to meet the present requirements of judicial cooperation in an area such as the European Union. This Framework Decision should replace Article 22 of the 1959 European Convention but should be without prejudice to the possibility of judicial authorities’ directly requesting and transmitting information from criminal records pursuant to Article 13 in conjunction with Article 15(3), of the European Convention on Mutual Assistance in Criminal Matters and without prejudice to Article 6(1) of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, established by Council Act of 29 May 2000.15

2. Information in criminal records and exchange of data 2.1. Framework Decision 2009/315/JHA lays down an obligation for the Member State handing down a conviction (referred to in the Framework Decision as the convicting Member State) against a national of another Member State, to inform through its central authority the Member State of the person’s nationality. This notification must contain the information set forth in Article 11 of Framework Decision 2009/315/JHA. Notification is further required in case changes in the legal effects of the act of conviction have appeared. As regards the Member State of the person’s nationality, Framework Decision 2009/315/JHA provides for an obligation that it stores all transmitted information and provides upon request full and up-to-date data about criminal records of its nationals, regardless where in the EU the convictions have been handed down. An obligation is introduced for Member States to maintain national criminal registers and enter convictions handed down by the national courts of the Member State of the person’s

15 This Convention is mandatory for all EU Member States. It is ratified by Bulgaria, promulgated in the State Gazette and has entered into force. Pursuant to Article 6(1) of this Convention, requests for mutual assistance and spontaneous exchanges of information referred to in Article 7 shall be made in writing, or by any means capable of producing a written record under conditions allowing the receiving Member State to establish authenticity. Such requests shall be made directly between judicial authorities with territorial competence for initiating and executing them, and shall be returned through the same channels unless otherwise specified in this Article. Any information laid by a Member State with a view to proceedings before the courts of another Member State within the meaning of Article 21 of the European Mutual Assistance Convention and Article 42 of the Benelux Treaty may be the subject of direct communications between the competent judicial authorities.“ 16 nationality, convictions handed down in other Member States as well as in third countries when the information about the latter has been transmitted to the Member State of the person’s nationality. Pursuant to Article 11 of Framework Decision 2009/315/JHA, the information from the national criminal records is of three categories – obligatory concerning the convicted person, the nature of the conviction, the offence giving rise to the conviction, and the contents of the conviction; optional, containing supplementing data about the convicted person, the offence and the imposed punishment; and additional, concerning specific individual data about the person, different form the one under the other two categories. Distinguishing between these three categories of information is important in the context of the procedure for transmitting information from the criminal records upon request from another Member State. Obligatory information is always transmitted, unless such information is not known to the central authority; optional information is transmitted if entered in the criminal record; and additional information is transmitted if available to the central authority. 2.2. Exchange of data from the criminal records of the Member States is done electronically through the European Criminal Records Information System (ECRIS), established under Framework Decision 2009/316/JHA to implement Article 11 of Framework Decision 2009/315/JHA. Pursuant to Article 3, § 1 and recital 11 of Framework Decision 2009/316/JHA, the European Criminal Records System (ECRIS) is a decentralised information technology system based on the criminal records databases in each Member State. ECRIS is not aimed at establishing any centralised criminal records database of EU nationals. Each Member State stores criminal records data about its nationals in databases operated and updated by the respective Member State. ECRIS does not envisage direct online access to national criminal records databases but only transmitting electronically and in a uniform manner information about the criminal record of an individual within the EU (Article 3, § 3 and recital 11 of Framework Decision 2009/316/JHA). Information is transmitted through ECRIS by the convicting Member State to the Member State of the person’s nationality in a table format by indicating the codes corresponding to the specific offence and penalty as set forth in common tables of offences categories and penalties (Annex A to Framework Decision 2009/316/JHA), as well as related circumstances such as level of completion, level of participation, and full or partial exemption from criminal responsibility. These standardized electronic formats allow Member States to obtain in due course information about the criminal records of their nationals. The terms for making requests for information from the national criminal records of another Member State is also unified. The requesting Member State sends its request to the Member State of the person’s nationality in a specific form set out in the Annex to Framework Decision 2009/315/JHA,

17 which should be filled in the official language of the requested State. The reply is also in a specific form accompanied by a reference to the criminal record of the person in question drawn up in accordance with the national law of the requested State. It is drawn up in the official language of the requested State or an official language of the EU acceptable to both States. The deadline for transmitting replies to requests is 10 working days. When the requested Member State requires further information to identify the person involved in the request, the deadline may be extended by another ten days (Article 8, § 1 of Framework Decision 2009/315/JHA).

3. Implementation of Framework Decision 2009/315/JHA and Framework Decision 2009/316/JHA in Bulgaria Framework Decision 2009/315/JHA and Framework Decision 2009/316/JHA have been transposed in Bulgaria by amendments to existing legal acts. In 2013 Regulation no. 8 of 26 February 2008 on the functions and organization of the work of the criminal records bureaus was amended and supplemented. Pursuant to Article 1 of the Regulation a Central Criminal Records Bureau is established with the Ministry of Justice; it is the Bulgarian central authority for the purposes of the said framework decisions. In view of the status of the Central Bureau for Criminal Records, it is the competent Bulgarian authority to provide information to the Bulgarian judicial authorities about the criminal record of a person, including that person’s convictions in other Member States, if any, so that they may be taken into account pursuant to Article 8, paragraph 2 Criminal Code. Central authorities of other Member States should address the Central Criminal Records Bureau in case they need data about criminal records of Bulgarian nationals. In case of a request transmitted to the Central Bureau of Criminal Records, it must reply within ten days if the request is made by a central authority of another Member State or a judicial authority and is for the purpose of criminal, administrative or civil proceedings in the respective EU Member State. If additional information is required, the time limit starts running from the date the additional information has been received. In case the request is made by a national of an EU Member State sent through the central authority of that Member State, or by a Bulgarian national who is permanently residing in an EU Member State sent through the central authority of that Member State, the reply must be sent within 20 days (Article 49 of the Regulation).

4. Significance of ECRIS Indeed the exchange of information through ECRIS establishes a working and efficient mechanism that allows the authorities of one Member State to acquire in the framework of pending criminal proceedings timely and comprehensive information about the criminal record of the defendant regardless of the place in the EU where the convictions have been handed down. This rules out the

18 possibility that by leaving the territory of the Member State where a person has been convicted, he or she practically deletes the conviction, which is particularly important in the context of the growing transnational crime and acts of terrorism. The positive evaluation of the establishment and functioning of ECRIS has put forward the issue of expanding the scope of national registers information from which is exchanged through the system. In this sense on 19 January 2016 the Commission adopted a Proposal for a Directive of the European Parliament and of the Council amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA. Practical problems are pointed out in the proposal regarding obtaining information about third-country nationals, which category comprises both nationals of countries outside the European Union and stateless persons and persons of unknown nationality. Under the current regulation, in order to obtain comprehensive information about the criminal record of such persons within the EU, a Member State must send blanket requests to all convicting Member States as it is usually not known in which State the person has been convicted. This requires huge administrative and financial resources and States rarely make recourse to this mechanism, relying solely on the information about the criminal record of that person in their own criminal records databases. For reference, only in 2014 a total of 558,000 convictions were handed down in the EU against third-country nationals, and only 23,000 requests concerning such nationals were made in ECRIS. However, the State convicting a person must provide information about the conviction to the state whose national that person is. The proposal aims to introduce a technical mechanism for optimizing the exchange of information from the criminal records registers in relation to third-country nationals in the framework of ECRIS. Most importantly, it proposes an obligation for the Member States through their central authorities to establish in case a third-country national is convicted the so called index-filter containing anonymised identity data of the convicted third-country national, including fingerprints. Such an identity-filter shall be established both in relation to convictions handed down prior to the transposition of the Directive and afterwards. Once this index-filter is established, the convicting State must send it to all other Member States that will be able to compare the information contained therein with the information in their own registers. Currently the proposal has been approved by the Commission and was submitted for review by the European Parliament on 27 June 2016. 5. Ideas regarding the improvement of the exchange of information As far as the improvement of ECRIS is a vital element in the European Security Programme due to which the European Commission is committed to guarantee its effective application, it is our opinion that the aforementioned proposal is a step forward to a more efficient information exchange system

19 between the Member States. However, it should be mentioned that further improvement is required in order to shorten the timeframe in which information on convictions and convicted persons is being gathered and distributed between Member States. Our solution to this problem is for a more direct communication between national jurisdictions and other Member States' Central Criminal Records Authorities. This can be achieved simply by changing the specific regulations regarding this mechanism on a multinational level.

CONCLUSION

The adoption of Framework Decisions 2008/675/JHA, 2009/315/JHA and 2009/316/JHA has certainly made a positive contribution to the effectiveness of the European policies in criminal matters. The many differences in transposing of these Framework Decisions by the Member States have created difficulties, but they have not led to unsolvable problems in implementing the principles of these acts. Every EU Member State, which has transposed the decisions, has done so in the most thorough and effective manner, according to its national legislation. Not only have these rules not interfered with national sovereignty in regards to policing and convicting criminals, but they have had an invaluable role in promoting mutual trust and increased cooperation between the Member States for the better functioning of the European Union. Therefore, the general evaluation of the results should be positive, only with the remark that a look to the future be always present.

BIBLIOGRAPHY: 1. Bassiouni, M. C.International Criminal law – Volume II: Multilateral and bilateral enforcement mechanisms.2008. 2. Boister, N.An introduction to transnational criminal law.Oxford University Press, 2012. 3. Chinova, M., Panova, P. Taking into account convictions handed down in Member States of the European Union in the course of new criminal proceedings. // Norma, 2015, N 7. 4. Kelsen, H. The concept of the legal order.//American Journal of Jurisprudence: Vol. 27, 1982. 5. Panova, P.,Amendments in the Criminal Procedure Code regarding international acts of the Council of Europre in the area of the International Cooperation in criminal cases.//Human rights, 2004, N. 4 6. Readings on Criminal justice, criminal law and policing.Maklu, 2009. 7. Vermenlen, G.Essential texts on international and European criminal law.Maklu, 2017

Online sources: http://www.coe.int/en/ (09.03.2017) http://europa.eu/rapid/press-release_IP-14-624_en.htm (09.03.2017) https://www.ejn-crimjust.europa.eu/ejn/libdocumentproperties.aspx?Id=939 (09.03.2017)

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