Jozef Grundza

On 11 January 2017, the Court of Justice (Fifth Chamber) delivered its judgment in case C-289/15, on the interpretation of Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.

Mr Grundza, a Slovak national, was sentenced by a Czech court to 15 months imprisonment for inter alia ‘obstructing the implementation of an official decision’. On the basis of Framework Decision 2008/909, the competent Czech judicial authority requested the judgment to be recognised and the sentence to be served in Slovakia. The Slovak court has doubts over whether the condition of double criminality is satisfied in the present case given that the decision obstructed had been issued by a Czech authority and not by a Slovak authority. It therefore referred a question to the CJEU on the interpretation of the condition of double criminality for the purposes of Art.7(3) and 9(1)(d) of Framework Decision 2008/909.

In line with the opinion of AG Bobek, theCourtfoundthatArticle7(3) of Framework Decision 2008/909 does not require an exact match between the constituent elements of the offence as defined in the laws of the issuing and the executing States, or between the name given to or the classification of the offence under the national law of the respective States (para. 35).

When assessing double criminality, the competent authority of the executing State is required to verify whether the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing State, would also, per se, be subject to a criminal penalty in the executing State if they were present in that State (para. 38). Therefore, for the purpose of determining whether the condition of double criminality was met in the proceedings before it, the referring court must ascertain whether, in the event that the relevant factual elements – such as the driving of a motor vehicle notwithstanding the existence of a ban imposed by an official decision – were present in the territory of the Member State to which that court belongs, they would be subject to a criminal penalty under the domestic law of that State. If that is the case, it must be concluded that the condition of double criminality is met (para. 53).