Atanas Ognyanov

Request was made for a preliminary ruling lodged on 3 December 2014 on the Atanas Ognyanov case.

The Sofiyski gradski sad (Sofia City Court, Bulgaria) asked, in essence, the Court of Justice whether the national rule which permits the executing Member State (in this case, Bulgaria) to grant to the sentenced person a reduction in sentence because of work carried out by him in the period of his detention in the issuing Member State (in this case, Denmark), although the competent authorities in Denmark did not, in accordance with their national law, grant such a reduction in sentence, is compatible with EU law.

In today’s judgment, the Court examines the context and objectives pursued by the EU law concerning the transfer of prisoners and holds that, with respect to the part of the custodial sentence served by the prisoner on the territory of the issuing Member State until his transfer to the executing Member State, only the law of the issuing Member State is applicable, not least on the question of any grant of a reduction in sentence. The law of the executing State can apply only to the part of the sentence that remains to be served by that person, after that transfer.

According to the Court, it falls to the issuing State to determine the reductions in sentence that pertain to the period of detention served on its territory. The issuing State alone is competent to grant a reduction in sentence for work carried out before the transfer. Consequently, the executing State cannot, retroactively, substitute its own rules (and, in particular, its rules on reductions in sentence) for those of the issuing State with respect to that part of the sentence which has already been served by the prisoner on the territory of the issuing Member State.

In this case, the Danish authorities expressly stated that Danish legislation did not permit any reduction in a custodial sentence by reason of work carried out in the period of detention. Consequently, the Bulgarian authorities cannot grant a reduction in sentence with respect to the part of the sentence already served in Denmark. An interpretation to the contrary would be likely to undermine the objectives pursued by EU law (including the principle of mutual recognition) and would jeopardise the mutual confidence of Member States in their respective legal systems.

The Court concludes that EU law precludes a national rule that permits the executing Member State to grant to the sentenced person a reduction in sentence by reason of work carried out in the period of his detention in the issuing Member State, although no such reduction in sentence was granted by the competent authorities of the issuing State, in accordance with the law of that State.

In relation to this case, the Court was also asked about the legal effects of framework decisions.

In that regard, the Court states that the framework decision applicable in this case was adopted on the basis of the former third pillar of the European Union, in particular, under Article 34(2)(b) EU. Under that provision, read in the light of the Protocol on transitional provisions adopted on the entry into force of the Treaty of Lisbon, framework decisions have no direct effect until they are repealed, annulled or amended in implementation of the Treaty of Lisbon. The framework decision applicable in this case has not been subject to any such repeal, annulment or amendment. Consequently, it has no direct effect.

The Court also states that national courts called on to interpret domestic law are bound to do so, so far as possible, in the light of the wording and the purpose of the framework decision in order to achieve the result sought by it. Further, that requirement to interpret national law in conformity with EU law includes the obligation, on national courts, including those ruling as courts of last instance, to alter, where necessary, settled case-law if that case-law is based on an interpretation of national law that is incompatible with the objectives of a framework decision.

In the light of those principles, the Court concludes that it is for the referring court to ensure that the Framework Decision is given full effect, and if necessary to disapply, on its own authority, the interpretation adopted by the Varhoven kasatsionen sad (Supreme Court of Appeal), since that interpretation is not compatible with EU law.

Source: Court of Justice of the European Union, Press release No 117/16, Luxembourg, 8 November 2016