Exclusion from the principle of equivalence of European convictions in matters of legal cumulation of sentences

Abstract

The transposition of Framework Decision 2008/675/JHA should have meant equivalent effects to a previous conviction handed down in another Member State also in the legal cumulation of convictions and the fixing of the maximum term of execution. This is not the case because a circumstantial issue (to avoid the release of persons imprisoned for terrorism) led to the modification of the transposition bills during their passage through the Senate. This frustration of the aim of the Framework Decision was endorsed by the Supreme Court and even applied retroactively to cases prior to the entry into force of Organic Law 7/2014. The Court of Human Rights has denied that there was a violation of the prohibition of unfavorable retroactivity. Consequently, the legal cumulation of convictions imposed in the European Union, fully executed or not, with convictions imposed in Spain that meet the temporal requirement of art. 76.2 CP is for the moment closed in the Spanish jurisdiction, although it could be reopened either by the Spanish legislator, by the European Court of Human Rights or by the supervisory action of the European institutions.