ECJ on Aggregate Sentences for Prison Terms

Mar 10, 2023 Benn-Ibler Rechtsanwälte

A criminal offence committed in another European country does not need to be treated the same as a criminal offence in a fictitious aggregate sentence before a national (in this case: German) court. According to the European Court of Justice (hereinafter ECJ), this procedure must not be followed in cases where the principle of equal treatment would prevent an enforceable sentence from being imposed.

A man committed a criminal offence in Germany in 2003. Previously and afterwards he also committed crimes in France. For the crimes committed in France, he was sentenced by French courts to 17 years imprisonment, which he partially served until he was extradited to Germany in 2021. He was then sentenced to six years' imprisonment by the Regional Court in the German city of Freiberg. Due to the lack of option to form an aggregate sentence including foreign sentences, the seven years' imprisonment deemed reasonable by the judges was reduced by one year. The appellate court consequently referred the case to the ECJ for a preliminary ruling.

In principle, the purpose of Framework Decision 2008/675 is to ensure that previous criminal convictions handed down in another Member State have the same legal effects as previous convictions handed down in a sentenced person’s own country under national law. According to the ECJ, a previous conviction in another Member State is required to be taken into account in the same way as a domestic conviction. In the present case, the application of the principle of equal treatment would result in the sentence imposed not being enforceable. This is because Section 54(2) of the German Criminal Code sets an upper limit for terms of imprisonment of 15 years. Since the man had already been sentenced to 17 years’ imprisonment in France, the setting up of an aggregate sentence would make this unenforceable.

The ECJ emphasised that in such cases the exceptions to the Framework Decision set out in Article 3(5) apply. Accordingly, Section 54 (2) of the German Criminal Code does not require application. Courts are free to decide how to take foreign convictions into account in their sentencing.

ECJ, C-583/22 (12.01.2023)