Gerrit van Vemde

On 25 January 2017, the Court of Justice (Fifth Chamber), delivered its judgment on case C-587/15 on the transitional application of the provisions on the transfer of sentenced persons which were replaced by the corresponding provisions of Framework Decision on the interpretation of Article 28 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, from 5 December 2011.

The facts were the following: on 28 February 2011, a Belgian Court of Appeal sentenced Mr van Vemde to a custodial sentence of three years. This decision became final on 6 December 2011, when the Belgian Court of Cassation dismissed the appeal in cassation on that decision. On 23 July 2013, the Belgian authorities requested the Netherlands to take over the enforcement of the custodial sentence imposed by the judgment of the Court of Appeal. By application of 10 October 2013, a Belgian Public Prosecutor requested a Dutch Court to authorise the enforcement of the custodial sentence. The Dutch Court has doubts as to whether the national provisions implementing Framework Decision 2008/909 are applicable to the case in the main proceedings, since the Netherlands made a declaration in accordance to Article 28 (2) to continue to apply the legal instruments on the transfer of sentenced persons applicable prior to this Framework Decision to cases where the final judgment has been issued within three years following the date on which the Framework Decision enters into force. The referring court therefore asks the Court whether such a declaration may relate only to judgments which became final before 5December 2011.

The Court first highlighted that, in light of Article 1(a) and 3 (1) and (3) of Framework Decision2008/909, the substantive scope of this Framework Decision is limited to judgments which have become final, to the exclusion of decisions subject to appeal, such as the judgment in the main proceedings of the Antwerp Court of Appeal of 28 February 2011, which became final only after the latter court dismissed the appeal on 6 December 2011 (paras. 23-24). It further held that the concepts of ‘judgment’ and ‘issue’ of that judgment, in Article 28(2) of Framework Decision 2008/909, must be given an independent and uniform interpretation in the EU (paras. 26-28). In light of the scheme and the objectives pursued by this Framework Decision, the Court concluded that Article28(2) only covers judgments which became final by 5 December 2011 at the latest (paras. 30-31).

Given the aforementioned reply, the CJEU did not consider it necessary to deal with another question on the validity of the declaration made by the Netherlands pursuant to Article 28(2) of Framework Decision 2008/909.AG Bot thoroughly analysed this issue, opining that such declaration is not capable of producing legal effects as it was made after the adoption of this Framework Decision, contrary to the requirements of Article 28(2).