Opinion of the Advocate General — ECLI:EU:C:2025:88
Date: 2025-02-13
Language of the case: English
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary, the Amendments have the 
following effect on the penalties which may be imposed in respect of each of the 
Offences. 
20. As regards Offence No. 1, membership of a proscribed organisation, prior to the 
Amendments those convicted of this offence were liable to a determinate sentence 
commensurate to the seriousness of the offence and the court imposing it was 
required to specify a period not exceeding one half of the term of the sentence at 
the end of which the offender would be released on licence. There was a duty on 
the State to release a prisoner who had served the relevant custodial period in 
accordance with Article 17 of the 2008 Order. Following the Amendments, this 
offence has been recategorised as a “specified terrorism offence.” A person 
convicted is liable to imprisonment for a period equal to the aggregate of the 
former appropriate custodial term plus a further period of one year in which the 
offender will be subject to licence. 
 
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21. As regards Offences No. 2 to 4 – directing the activities of a proscribed 
organisation concerned in the commission of acts of terrorism, conspiracy to direct 
the activities of an organisation concerned with the commission of acts of 
terrorism, and preparing to commit acts of terrorism, respectively, prior to the 
Amendments a person convicted of these offences was liable to be sentenced to a 
determinate custodial sentence or, if the sentencing court assessed the offender as 
dangerous, to life imprisonment, an indeterminate custodial sentence, or an 
extended custodial sentence. Those on whom a determinate period of 
imprisonment was imposed were to be released on licence after a period not 
exceeding one half of the term of their sentence and the State was under a duty so 
to release them. After the Amendments, where a person is convicted of these 
offences and a determinate period of imprisonment is imposed, they may be 
released on licence by direction of the Parole Commissioners, who must be 
satisfied that it is no longer necessary for the protection of the public that the 
prisoner should be confined, once two thirds of the sentence has been served. 
22. It is therefore clear that the Amendments constitute a series of measures which 
together certainly increase the length of the custodial sentence which the 
Respondent is likely to serve if he is surrendered and convicted of the Offences. 
The next issue to consider, in accordance with the judgment in Alchaster I, is 
whether that series of measures increases the “intrinsic seriousness” of the penalty 
imposed. 
Principles 
23. It is submitted that, in assessing whether a measure increases the “intrinsic 
seriousness” of a penalty for the purposes of the test laid down in Alchaster I, and 
thus whether that measure breaches the prohibition on retrospective penalisation 
under Article 49 of the Charter, the Court should consider whether that measure 
adds an additional punitive element, i.e. an additional or enhanced penalty, to that 
which was already provided for by law. It is submitted that the criteria laid down 
by the ECtHR in Welch v United Kingdom (1995) 20 EHRR 247 for identifying a 
“penalty” within the meaning of Article 7 ECHR are relevant in this context. 
24. It is appropriate to apply the Welch criteria in this context, in circumstances where 
Article 52(3) of the Charter indicates that it is necessary to interpret its provisions 
in the light of corresponding provisions of the ECHR, which obligation 
encompasses an obligation generally to follow the decisions of the ECtHR as to the 
proper interpretation of such corresponding provisions: Case C-279/09 DEB, §35; 
Case C-467/18 EP §42; Case C-704/17 DH, §32. In the case-law of the CJEU it 
has frequently been said that the Convention, as interpreted by the ECtHR, 
provides a floor beneath which the CJEU may not go in its interpretation of those 
provisions of the Charter which correspond to provisions of the Convention: see, 
C-528/15 Al Chodor, §37; C-235/17 Commission v Hungary, §72§56; C-519/2020 
K v Landkreis Gifhorn, §42 (referring to the Convention as establishing “the 
minimum threshold of protection”). 
25. There have been a number of occasions on which this Court has interpreted the 
provisions of the Charter as going beyond the minimum threshold of protection 
provided by the Convention. In Case C-524/15 Menci, the issue before the Court 
 
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was whether the imposition of both administrative and criminal penalties for tax 
offences breached the ne bis in idem, or double jeopardy, principle. That principle 
was enshrined in both Article 50 of the Charter and Article 4 of Protocol No. 7 of 
the Convention. In its decision in A and B v Norway (ECtHR, judgment of 
15 November 2016), the ECtHR had held that where tax penalties are criminal in 
nature a duplication of tax and criminal proceedings and penalties punishing the 
same violation of tax law did not infringe the ne bis in idem principle. In choosing 
to depart from the decision of the ECtHR, the CJEU in Menci stated (at §2[2]) that 
the Convention “does not constitute, as long as the EU has not acceded to it, a 
legal instrument which has been formally incorporated into EU law.” The court 
then proceeded to find that a duplication of tax and criminal penalties constituted a 
limitation on the ne bis in idem principle and proceeded to consider the limitation 
imposed by reference to the permitted limitation on fundamental rights under 
Article 52(1) of the Charter. 
26. In Case C-924/19 FMS & Ors v Országos Idegenrendészeti Főigazgatóság Dél-
alföldi Regionális Igazgatóság & Anor, the issue was whether asylum seekers who 
were held in the Roszke transit zone in Hungary, which they could not leave 
without forfeiting their asylum claims, had been deprived of their liberty. 
27. In Ilias and Ahmed v Hungary (App. No. 47287), the ECtHR had found that this 
arrangement did not constitute detention, given the theoretical possibility that an 
asylum seeker could leave, thereby forfeiting their claim to asylum. Therefore, the 
court found that it did not violate the aylum seekers’ right to liberty under Article 5 
of the ECHR. However, in FMS the CJEU reached the opposite conclusion in 
relation to the same transit zone, holding that the Respondent[s] had been detained. 
28. Advocate General Pikamäe expressed the view that the Charter could be 
interpreted as providing a higher level of protection that the ECHR (at §149), as 
follows: 
“149. It is apparent therefore that the Court of Justice has power to interpret 
the provisions of the Charter autonomously, and that it is those provisions alone 
that apply in the sphere of EU law. The Court can therefore leave aside the 
case-law of the European Court of Human Rights and examine the questions 
referred in the light of the Charter, provided its interpretation of the rights it 
contains that are similar in content to those in the ECHR leads to a higher level 
of protection than that guaranteed by the ECHR.” 
29. The CJEU itself likewise found that the stay of the Respondent in the transit zone 
amounted to detention (§§152 – 156). In reaching this conclusion, the Court relied 
on the definition of detention contained in Reception Conditions Directive 
(Directive 2013/33). 
30. In any event, the Respondent submits that while this Court may, if it chooses, go 
beyond the minimum standard of protection afforded by Article 7 [ECHR], it is 
submitted in any event that the case-law of the ECtHR on the meaning of a penalty 
for the purposes of that provision supports the position of the Respondent herein 
that the Amendments increase the “intrinsic seriousness” of the penalties which 
may be imposed on the Respondent if convicted of the Offences. 
 
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31. In Welch, the ECtHR developed an autonomous interpretation of the term 
“penalty” and stated that the question of whether a particular measure amounted to 
a penalty or not would depend on whether it satisfied the following criteria: 
(1) whether the measure in question was imposed following conviction for a 
criminal offence; 
(2) the nature and purpose of the measure in question; 
(3) its characterisation under national law; 
(4) the procedures involved in the making and implementation of the measure; 
and 
(5) its severity. 
Application 
32. It is submitted that the Amendments satisfy each of the Welch criteria. Under the 
terms of the 2008 Order as originally promulgated, and in particular Articles 7 and 
8 thereof, the trial judge at the point of sentencing a convicted person specified: the 
determinate sentence to be imposed on that person; the period which the person 
would serve in custody; and the licence period during which the person would be 
released from custody subject to a variety of conditions: see, Morgan v Ministry of 
Justice (SC(NI)) [2024] AC 130 (§§13 – 15). Accordingly, it is clear that prior to 
the Amendments, the custodial period of the sentence of a convicted person was 
imposed following conviction of a criminal offence and, specifically, at the 
sentencing stage of the proceedings, thus satisfying the first of the criteria outlined 
in Welch. 
33. Second, it is submitted that the nature and purpose of the Amendments was 
likewise to retroactively increase the penalties imposed on those convicted of 
terrorist offences. It is clear that the purpose of the Amendments was to increase 
the sentences served by terrorist offenders. In the Queen’s Speech of 2019, which 
announces the legislative programme of the Government for the following year, 
the Government said it would introduce new laws to “ensure the most serious 
violent offences, including terrorists, serve longer in custody.” 
34. The background briefing notes to the Queen’s Speech describe the purpose of the 
Counter Terrorism (Sentencing and Release) Bill, which introduced the 
Amendments, as being inter alia “[t]o give the public greater confidence that the 
sentences served by terrorists reflect the severity of their offending …” 
35. These extracts indicate unequivocally that the purpose of the Amendments was in 
fact to increase the sentences served by those convicted of terrorist offences. The 
Amendments are therefore of a targeted nature and touch just one class of offender, 
thus differentiating this case from all of the ECtHR decisions on early release, 
which all concerned general measures which were not aimed at one particular class 
of offender. 
36. The purpose of the Amendments is sometimes expressed as being preventive in 
nature. For instance, the briefing notes refer to the “risk” posed to the public by 
terrorist offenders. Likewise, Article 8 of the 2008 Order, which governs the 
 
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setting of the custodial period to be served by a terrorist offender, sets out the 
criteria for determining the respective lengths of the custodial period and the 
licence period, which are “the effect of the offender’s supervision by a probation 
officer on release from custody – (a) in protecting the public from harm from the 
offender; and (b) in preventing the commission by the offender of further 
offences.” 
37. However, the fact that a preventive purpose is sometimes expressed does not 
detract from the punitive nature of determining the period which a person will 
serve in custody. In M v Germany (Application No. 19359/04), the ECtHR stated 
(at §130) that “the aim of prevention can also be consistent with a punitive 
purpose and may be seen as a constituent element of the very notion of 
punishment.” 
38. In short, it is submitted that the evident purpose of the Amendments was to 
retrospectively increase the penalties imposed on those convicted of terrorism 
related offences. 
39. The third of the criteria identified in Welch for determining whether a measure is a 
penalty or not is the characterisation of the measure in national law. 
40. In Morgan, the UK Supreme Court stated (at §107) that the penalty imposed on an 
offender under the 2008 Order prior to the Amendments, under both domestic law 
and the ECHR, was “the determinate custodial sentence imposed on the 
respondents” and said that the Amendments brought about a change to “the 
manner of execution of the determinate custodial sentences” imposed by offenders 
thereunder (§114). 
41. In view of the decision in Morgan, the Amendments do not satisfy the third of the 
Welch criteria, in that the relevant national law, in this case UK law, does not 
characterise the changes brought about by the Amendments as being punitive in 
nature. The third of the criteria should be seen as a potentially- helpful indicator, 
which may assist in understanding the actual effect of a measure. But if a measure, 
contrary to its designation under national law, clearly amounts to a harsher penalty 
by reference to the other Welch criteria, then its domestic classification is of little 
consequence. 
42. As regards the procedures involved in making and implementing the measure in 
question here, namely the delineation of the respective scopes of the custodial 
period and the licence period of the Appellant’s sentence, prior to the […] 
Amendments this was clearly a function undertaken by the trial judge. 
43. In M v Germany, the court took into account (at §131) the fact that it was the 
criminal courts themselves which imposed preventive detention on the Respondent 
in support of its conclusion that the retroactive imposition of an additional period 
of preventive detention, beyond that which would have been legally permissible on 
the date on which sentence had been handed down, constituted a breach of 
Article 7 of the ECHR. 
44. In considering the severity of the measure of preventive detention, the court in M v 
Germany noted that the period of preventive detention to be served by the 
Respondent no longer had a maximum duration, having previously been limited to 
 
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a period of ten years, and therefore that the measure “appears to be among the 
most severe – if not the most severe – which may be imposed under the German 
Criminal Code.” 
45. Likewise, in this case the effect of the Amendments, in reducing the period of 
release on licence from one half to a maximum of one third of sentence, has 
increased the custodial period of the sentence which will be served by the 
Appellant if convicted by between 33% and 100%, which is undoubtedly very 
severe, thus satisfying the final Welch criterion. 
Conclusion 
46. For these reasons, it is submitted that the Amendments are contrary to Article 49 of 
the Charter, as they repeal the possibility of release on licence during a 
considerable portion of the Respondent sentence and also increase the intrinsic 
seriousness of the penalties which may be imposed on the Respondent in the event 
of his being convicted of the Offences. 
Mr Mark Lynam SC 
 
[…] 
Filed By Mulholland Law 
Solicitor for the 
Respondent 16 Earl 
Street 
Dundalk 
Co.Louth 
Mr Stephen Brittan BL