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AP (Mesures de probation)

On 26 March 2020, the First Chamber of the Court of Justice delivered its judgment in case C-2/19, which concerns the interpretation of Framework Decision 2008/947/JHA (FD 2008/947). This Framework Decision introduces a specific mutual recognition mechanism for judgments or probation decisions imposing probation measures or alternative sanctions. In particular, the mechanism allows for shifting the responsibility for the execution and supervision of these measures or sanctions from the Member State that issued the sentence (issuing Member State) to the Member State in which the sentenced person resides (executing Member State).

The request for a preliminary ruling refers to the recognition in Estonia of a judgment of the City Court of Riga (Latvia) by which A. P. was sentenced to a suspended term of three years’ imprisonment. The issue at hand concerns whether the scope of application of FD 2008/947 covers a suspended sentence subject to the sole condition not to commit a new criminal offense during the probation period.

Before analyzing the case in its substance, the Court rejected the argument of the Latvian Government on the inadmissibility of the request because founded on an incorrect interpretation of Latvian law. The Court declares the request admissible recalling its past case law, according to which “questions relating to EU law enjoy a presumption of relevance” (para. 26), and considering the Latvian Government’s argument as not sufficient to rebut that presumption.

Moving to the substance of the case, the Court takes a different view from the opinion of the AG and determines that the obligation not to commit a new criminal offense during a probation period must be considered a probation measure within the meaning of FD 2008/947. The reasoning of the Court starts with recongnising this kind of obligation is not expressly mentioned among the propation measures and alternative sanctions listed in Art. 4(1) of FD 2008/947. Notwithstanding, the Court affirms that the category of measures referred to as “instructions relating to behavior”, mentioned in letter d) of the cited provision, must be read as encompassing the obligation not to commit a criminal offense.

The Court reaches this conclusion through a number of arguments stemming from the analysis of the text, legislative context, and purpose of the Framework Decision.

First, as a textual argument the Court states that the obligation not to commit new criminal offences may fall under the probation measure referred to in Art. 4(1)(d) of FD 2008/947 as “instructions relating to behavior”, in accordance with the use of these terms in everyday language.

Second, the Court deems such interpretation consistent with the legislative context of Art. 4(1)(d) of FD 2008/947. On the one hand, although the core of the mechanism established by the Framework Decision relates to the supervision of probation measures, including the obligation not to commit a new offense in the scope of the provision would not make it the only probation measure of Art. 4(1) of FD 2008/947 not to require periodical supervision by a specific authority. Indeed, several other measures referred to in the same article do not have to be specifically supervised, such as the obligations not to enter certain localities, places or defined areas, to avoid contact with specific persons, and to avoid contact with specific objects, as referred to in Article 4(1)(b), (f) and (g). On the other hand, Art. 14(1) of the Framework Decision provides the authorities of the executing Member State, which recognized the judgement or the probation decision, with jurisdiction over all decisions in the case of the commission of a new criminal offense, such as the modification of a probation measure, modification of the duration of the probation period, or revocation of the suspension. Excluding the obligation not to commit a new criminal offense from the list of Art. 4(1), and therefore not allowing for the recognition of a simple suspended sentence, would prevent the authorities of the Member State of residence from taking such decisions. The Court stresses that this restrictive interpretation leads to the following “paradoxical result” (para. 50). If the same obligation not to commit a new crime, imposed with a suspended sentence, were coupled with another obligation listed in Art. 4(1) FD such as to “inform a specific authority of any change of residence” (Art. 4(1)(a) of FD 2008/947), then the recognition of the judgment would be allowed and the authorities of the Member State of residence would be entrusted wih the subsequent jurisdiction and powers of supervision.

Third, the Court states that by including simple suspended sentences among the judgements covered by FD 2008/947 would contribute to attain the three objective that are the purpose of the Framework Decision, namely “facilitating the social rehabilitation of sentenced persons, improving the protection of victims and of the general public by preventing recidivism, and facilitating the application of suitable probation measures and alternative sanctions, in the case of offenders who do not live in the Member State of conviction” (para. 52).

As a closing remark, the Court stresses that Art. 2(2) of FD 2008/947 specifies that the probation measures imposed along with the suspended sentence must be included in the text of the judgment or the separate probation decision. The authority of the issuing Member State has to specify the conditions on which the suspension of the execution of the sentence depends, in order to allow the executing Member State to identify the imposed probation measures based on the judgement or the probation decision.

The Court therefore concludes that Art. 1(2) and Art. 4(1)(d) of FD 2008/947 must be interpreted as meaning that recognition of a judgment imposing a custodial sentence suspended upon the sole condition that the sentenced person comply with an obligation not to commit a new criminal offence during a probation period falls within the scope of the Framework Decision. It leaves then to the referring court to establish whether the mentioned obligation results from the judgement of the main proceedings.

Case Number C-2/19

Name of the parties A.P.

Date of the judgement 2020-03-26

Court Court of Justice of the European Union (CJEU)

Uploads CL_AP_2020 and CL_AG_AP_2020