Order;Summary — ECLI:EU:C:2019:808
Date: 2019-10-01
Language of the case: Slovak
Court formation: Fourth Chamber
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling - decision unnecessary
Origin: Slovakia

Anonymised version 
Translation C-495/18 – 1 
Case C-495/18 
Request for a preliminary ruling 
Date lodged:  
30 July 2018 
Referring court:  
Najvyšší súd Slovenskej republiky (the Slovak Republic) 
Date of the decision to refer:  
29 May 2018 
Applicant: YX 
  
Najvyšší súd 
Slovenskej republiky 
(The Supreme Court of the Slovak Republic) 
ORDER 
The Najvyšší súd Slovenskej republiky (the Supreme Court of the Slovak 
Republic) (‘the Najvyšší súd’) (Omissis) [composition of the bench] in criminal 
proceedings against YX, the sentenced person, convicted for the exceptionally 
serious crime of withholding tax, charges and similar compulsory payments under 
Paragraph 240(1) and (3) of the Czech Criminal Code (Trestní zákonník Českej 
republiky) has decided in closed session on 29 May 2018 in Bratislava, 
as follows: 
Under Paragraph 318(1) of the Slovak Code of Criminal Procedure (Trestný 
poriadok) in conjunction with Paragraph 244(4) of that Code of Criminal 
Procedure, the proceedings on the recognition and enforcement of the judgment 
of the Krajský soud v Ústí nad Labem (Regional Court, Ústí nad Labem, Czech 
Republic) dated 10 November 2014, ... [case number], together with the judgment 
of the Vrchní soud v Praze (High Court, Prague, Czech Republic) dated 27 
EN 
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February 2015, ... [case number], by which YX was convicted of the exceptionally 
serious crime of withholding tax, charges and other similar compulsory payments 
under Paragraph 240(1) and (3) of the Czech Criminal Code and sentenced to 
a five-year custodial sentence in a closed, low-security prison [väznice 
s dozorom] 1 are stayed and an order for reference is made to the Court of 
Justice of the European Union concerning the interpretation of Article 4(1)(a), 
Article 4(2) and Article 9(1)(b) 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 
(OJ 2008 L 327, p. 27), as amended by Council Framework Decision 
2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘the Framework 
Decision’). 
Grounds 
1 By a judgment of 6 December 2017, ... [case number], the Krajský súd v Trenčíne 
(Regional Court, Trenčín, Slovak Republic) (‘the Krajský súd’) decided, under 
Paragraph 17(1) of Law No 549/2011 on the recognition and enforcement of 
decisions imposing custodial sentences in the European Union, amending [Or. 2] 
and consolidating Law No 221/2006 on custodial sentences, as amended, (Zákon 
č. 549/2011 o uznávaní a výkone rozhodnutí, ktorými sa ukladá trestná sankcia 
spojená s odňatím slobody v Európskej únii a o zmene a doplnení zákona č. 
221/2006 o výkone väzby v znení neskorších predpisov) (‘Law No 549/2011’) to 
recognise and enforce the judgment of the Krajský soud v Ústí nad Labem 
(Regional Court, Ústí nad Labem) dated 10 November 2014, ... [case number], 
together with the judgment of the Vrchní soud v Praze (High Court, Prague) dated 
27 February 2015, ... [case number], by which YX, a Slovak citizen, was 
convicted of the exceptionally serious crime of withholding tax, charges and other 
similar compulsory payments under Paragraph 240(1) and (3) of the Czech 
Criminal Code and sentenced to a five-year custodial sentence. Under Paragraph 
48(2)(a) of the Slovak Criminal Code (Trestný zákon), in conjunction with 
Paragraph 17(2) of Law No 549/2011, that court ruled that the sentenced person 
was to carry out that custodial sentence in a closed, low-security prison. 
2 YX brought an appeal in due time against that judgment, in which he argues, inter 
alia, that the Krajský súd should have checked the reasons for refusing to 
recognise and enforce judgments. He points out that since 2015 he has lived in the 
Czech Republic at the address [anonymised data], with his partner, with whom he 
is planning to start a family. He therefore argues that the approach taken by the 
Krajský súd was unlawful in so far as it determined his place of habitual residence 
only on the basis of his place of permanent residence at his mother’s house, where 
he last habitually lived in 2004. He thus pointed out that, had he been properly 
 
1  Translator’s note: Both the Czech and Slovak prison systems have four types of detention 
centre, classified according to their degree of security. Věznice s dozorem (the Czech equivalent 
of the Slovak väznice s dozorom) corresponds to the second lowest degree of security 
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informed of the proceedings before the Krajský súd, he would have submitted 
evidence to it attesting to the truth of his claims and the place of his habitual 
residence would not have been determined as being in the Slovak Republic. He 
also pointed out that the objective of the recognition and the enforcement of 
custodial sentences in another Member State under Law No 549/2011 is to 
facilitate the social rehabilitation of the sentenced person, which will not be 
achieved if he carries out his sentence outside the Czech Republic, where his 
partner and all his friends live. 
3 On the basis of the appeal, the Najvyšší súd reviewed the legality and the merits of 
the contested verdicts and whether the proceedings up to that point had been 
correctly conducted, and made the following findings. 
4 On 16 October 2017, the Krajský súd received from the Krajský soud v Ústí nad 
Labem the certificate issued in accordance with Article 4 of the Framework 
Decision together with the judgments mentioned above, by which YX was 
convicted of the exceptionally serious crime of withholding tax, charges and other 
similar compulsory payments under Paragraph 240(1) and (3) of the Czech 
Criminal Code and sentenced to a five-year custodial sentence in a closed, low-
security prison. Under section (g) of that certificate, the judgments and the 
certificate were forwarded to the Slovak Republic as the executing State because 
the issuing authority was satisfied that the enforcement of the sentence by the 
executing State would serve the purpose of facilitating [Or. 3] the social 
rehabilitation of the sentenced person and that the executing State is the State of 
nationality of the sentenced person in which he lives. The certificate also stated 
that the sentenced person was obliged to be present in the Slovak Republic, in 
which he has his place of permanent residence and parents, since he was permitted 
for health reasons to defer the start of his sentence until 1 January 2018. There is 
no knowledge of any other family links in the executing State. The opinion of the 
sentenced person on the forwarding of the judgments concerned and the certificate 
was not submitted to the Krajský súd, since it was not possible to hear the 
sentenced person as he was already obliged, at that point, to be in the executing 
State. It is not possible to ascertain from the documents submitted whether the 
‘Notification of the sentenced person’ in Annex II to the Framework Decision was 
served on YX, in so far as the Slovak Republic, as the executing State, had not 
been requested to serve that notification (Article 6(4) of the Framework Decision). 
5 The Najvyšší súd has ascertained, by checking the register of inhabitants of the 
Slovak Republic, that the sentenced person YX is a Slovak citizen and since 22 
October 1986 has been registered as permanently resident at [anonymised data], in 
the vicinity of Trenčín (Slovak Republic). 
6 Under Paragraph 4(1)(a) of Law No 549/2011, it is possible to recognise and 
enforce a decision in the Slovak Republic if the fact or deed on the basis of which 
the decision was issued also constitutes an offence under Slovak law, subject to 
the provisions of Paragraph 4(2) and (3), and if the sentenced person is a Slovak 
citizen who habitually resides in the Slovak Republic or has on its territory proven 
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family, social or professional links which may contribute to facilitating his 
rehabilitation in the course of the enforcement of the custodial sentence in the 
Slovak Republic. 
7 It is apparent from the above that the recognition and enforcement of a decision of 
the issuing State is conditional, under Slovak legislation, on the fact that the 
sentenced person, who is a Slovak citizen, must have in the Slovak Republic (i) 
either his place of habitual residence, (ii) or proven family, social or professional 
links which may contribute to facilitating his rehabilitation in the course of the 
enforcement of the custodial sentence in the Slovak Republic. 
8 Under Paragraph 3(g) of Law No 549/2011, for the purposes of that law ‘habitual 
residence’ means permanent residence or temporary residence. 
9 Under Paragraph 2(2) of Law No 253/1998 on declaring the residence of Slovak 
citizens and the register of Slovak citizens, as amended (Zákon č. 253/1998 Z. z. o 
hlásení pobytu občanov Slovenskej republiky a registri obyvateľov Slovenskej 
republiky) (‘the Law [Or. 4] on declaring residence’), ‘residence’, for the 
purposes of keeping records of citizens’ residence is interpreted as permanent 
residence and temporary residence. 
10 Under Paragraph 3(1) of the Law on declaring residence, ‘permanent residence’ 
means a citizen’s residence, as a rule at his permanent address in the Slovak 
Republic. A citizen has at only one place of permanent residence a given time. 
11 Under Paragraph 3(2) of the Law on declaring residence, a citizen may have his 
permanent residence only in a building or in a part of a building which is 
identified by a house number [súpisné číslo] or a house number and orientational 
number [orientačné číslo] 2 and which is intended as housing or accommodation 
or for private recreation, subject to contrary provision in that law. A flat is also 
considered to be part of a building. Pursuant to Paragraph 3(3), registration of a 
citizen’s permanent residence cannot be relied on to found any right to the 
building mentioned in Paragraph 3(2) or ownership thereof and is for the purposes 
of record-keeping. 
12 Pursuant to the sentence before the semicolon in Paragraph 3(7) of the Law on 
declaring residence, every citizen is required to declare their place of permanent 
residence unless they are living abroad on a permanent basis. 
13 Under Paragraph 6(1) of the Law on declaring residence, a citizen who is 
preparing to travel abroad with the intention of living there permanently is 
required before leaving the country to declare the termination of his permanent 
residence to the records office which holds the data on his permanent residence; in 
 
2  Translator’s note: In the Slovak Republic each building is identified, by reference to its position 
in a municipality, by a house number [súpisné číslo]. In some municipalities or parts of 
municipalities this is supplemented by an orientational number [orientačné číslo] which, 
together with the house number and name of the street, defines the precise address. 
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the declaration he must give the State and place of residence to which he has 
decided to travel and the date on which his residence abroad will commence, 
which is also the date on which his permanent residence [in the Slovak Republic] 
terminates. Pursuant to Paragraph 6(3), a citizen who is resident abroad and who 
decides during that period of residence to terminate his permanent residence in the 
Slovak Republic may declare such termination through the authority representing 
the Slovak Republic [in his State of residence] or through a person duly authorised 
to act on his behalf in the Slovak Republic. The authority representing the Slovak 
Republic or the duly authorised person must ensure delivery to the records office 
holding the data on the citizen’s permanent residence of the document notifying 
termination of permanent residence, with the certified signature of the citizen 
concerned, in which the State and place of his current residence abroad must be 
given. The date on which that document is received by the record office is the date 
on which the permanent residence is deemed to terminate. 
14 Under Paragraph 8(1) of the Law on declaring residence, temporary residence 
means a citizen’s residence outside his place of permanent residence, [in a place] 
where the citizen lives temporarily, provided that such residence is of a duration 
of longer than 90 days; temporary residence also means the residence in the 
Slovak Republic of a citizen who is permanently living abroad, provided it is of 
a duration of longer than 90 days. [Or. 5] 
15 Under Paragraph 9 of the Law on declaring residence, a citizen who is 
permanently resident in the Slovak Republic and who is preparing to travel abroad 
for a period longer than 90 days has the right to declare that fact to the records 
office in the place of his permanent or temporary residence; in the declaration he 
must give the State and place of his residence and the envisaged period of 
residence. 
16 It is apparent from the abovementioned legal provisions that any finding of either 
the permanent or the temporary residence of a Slovak citizen in the Slovak 
Republic, which for the purposes of Law No 549/2011 constitute habitual 
residence, is merely for record-keeping purposes (Paragraph 2(2) and Paragraph 
3(3) of the Law on declaring residence) and such findings are not conditional 
upon the fact that the citizen must actually live in those places and thus have 
family, social, professional or other links to them. In the case of permanent 
residence, although the Law imposes on every citizen who is not permanently 
resident abroad the obligation to declare their permanent residence (the phrase 
before the semi-colon in Paragraph 3(7) of the Law on declaring residence), 
together with the obligation to declare its termination if they are preparing to 
travel abroad with the intention of living there permanently (Paragraph 6(1) of the 
Law on declaring residence), there is no penalty set out therein for any failure to 
fulfil those requirements. 
17 Under Paragraph 4(1)(a) of Law No 549/2011, decisions of the issuing State on 
the imposition of a custodial sentence may therefore be recognised and enforced 
(where the condition as to double criminality is satisfied, subject to the law 
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providing otherwise) also where the sentenced Slovak citizen does not in fact live 
in the Slovak Republic (but lives in the issuing State), yet has in the Slovak 
Republic a recorded permanent or temporary residence. Paradoxically, this applies 
equally in the situation in which a Slovak citizen permanently living abroad is 
registered merely as temporarily resident in the Slovak Republic. The condition as 
to the existence of proven family, social or professional links which might 
facilitate the social rehabilitation of the sentenced person is thus laid down in the 
alternative and, under Slovak law, must be satisfied only if the Slovak citizen does 
not have his habitual, that is to say, permanent or temporary, residence in the 
Slovak Republic. 
18 From this perspective, the appellant’s objections, based on the fact that he does 
not live in the Slovak Republic and that any family or social links which might 
facilitate his social rehabilitation are in the issuing State, seem prima facie to be 
unfounded. 
19 On the other hand, it cannot be disregarded that the Framework Decision was 
implemented into the Slovak legal order by Law No 549/2011. It is therefore true 
that European Union law must be interpreted as meaning that the national court is 
required to take all provisions [Or. 6] of national law into account and interpret 
them, as far as is possible, in accordance with the Framework Decision in order to 
achieve the result sought by it and to ensure its full effectiveness (see for example 
judgments of the Court of Justice of 5 September 2012, Lopes Da Silva Jorge, C-
42/11, EU:C:2012:517, and 8 November 2016, Ognyanov, C-554/14, 
EU:C:2016:835). 
20 Recital 9 of the Framework Decision states that enforcement of the sentence in the 
executing State should enhance the possibility of social rehabilitation of the 
sentenced person. In the context of satisfying itself that the enforcement of the 
sentence by the executing State will serve the purpose of facilitating the social 
rehabilitation of the sentenced person, the competent authority of the issuing State 
should take into account such elements as, for example, the person’s attachment to 
the executing State, whether he or she considers it the place of family, linguistic, 
cultural, social or economic and other links to the executing State. 
21 In accordance with recital 15 of the Framework Decision, that Framework 
Decision should be applied in accordance with the right of citizens of the Union to 
move and reside freely within the territory of the Member States conferred by 
Article 18 of the Treaty establishing European Community. 
22 In accordance with recital 17 of the Framework Decision, where in that 
Framework Decision reference is made to the State in which the sentenced person 
‘lives’, that indicates the place to which that person is attached based on habitual 
residence and on elements such as family, social or professional ties. 
23 Under Article 3(1) of the Framework Decision, the purpose of that Framework 
Decision is to establish the rules under which a Member State, with a view to 
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facilitating the social rehabilitation of the sentenced person, is to recognise a 
judgment and enforce the sentence. 
24 Under Article 4(1)(a) of the Framework Decision, provided that the sentenced 
person is in the issuing State or in the executing State, and provided that that 
person has given his or her consent where required under Article 6, a judgment, 
together with the certificate for which the standard form is given in Annex I, may 
be forwarded to … the … Member State… of nationality of the sentenced person 
in which he or she lives. 
25 Under Article 4(2) of the Framework Decision, the forwarding of the judgment 
and the certificate may take place where the competent authority of the issuing 
State, where appropriate after consultations between the competent authorities of 
the issuing and the executing States, is satisfied that the enforcement of the 
sentence [Or. 7] by the executing State would serve the purpose of facilitating the 
social rehabilitation of the sentenced person. 
26 Under the first sentence of Article 4(3) of the Framework Decision, before 
forwarding the judgment and the certificate, the competent authority of the issuing 
State may consult, by any appropriate means, the competent authority of the 
executing State. 
27 Under Article 4(4) of the Framework Decision, during such consultation, the 
competent authority of the executing State may present the competent authority of 
the issuing State with a reasoned opinion, that enforcement of the sentence in the 
executing State would not serve the purpose of facilitating the social rehabilitation 
and successful reintegration of the sentenced person into society. Where there has 
been no consultation, such an opinion may be presented without delay after the 
transmission of the judgment and the certificate. The competent authority of the 
issuing State is to consider such opinion and decide whether to withdraw the 
certificate or not. 
28 Under Article 6(3) of the Framework Decision, in all cases where the sentenced 
person is still in the issuing State, he or she is to be given an opportunity to state 
his or her opinion orally or in writing. … The opinion of the sentenced person is 
to be taken into account when deciding the issue of forwarding the judgement 
together with the certificate. Where the person has availed him or herself of the 
opportunity provided in that paragraph, the opinion of the sentenced person is to 
be forwarded to the executing State, in particular with a view to Article 4(4)… 
29 Under Article 8(1) of the Framework Decision, the competent authority of the 
executing State is to recognise a judgment which has been forwarded in 
accordance with Article 4 and following the procedure under Article 5, and is to 
forthwith take all the necessary measures for the enforcement of the sentence, 
unless it decides to invoke one of the grounds for non-recognition and non-
enforcement provided for in Article 9. 
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30 Under Article 9(1)(b) of the Framework Decision, the competent authority of the 
executing State may refuse to recognise the judgment and enforce the sentence, if 
the criteria set forth in Article 4(1) are not met. 
31 Under Article 9(3) of the Framework Decision, in the cases referred to in 
paragraph 1(a), (b), (c), (i), (k) and (l), before deciding not to recognise the 
judgment and enforce the sentence, the competent authority of the executing State 
is to consult the competent authority of the issuing State, by any appropriate 
means, and, where appropriate, is to ask it to supply any necessary additional 
information without delay. [Or. 8] 
32 According to the standard form certificate, which is set out in Annex I to the 
Framework Decision, it is necessary under section (d), point 4, to provide any 
other relevant information about the sentenced person’s family, social or 
professional ties to the executing State, if such information is available and 
appropriate. 
33 It is apparent from the abovementioned provisions of the Framework Decision 
that its objective is to facilitate the social rehabilitation of the sentenced person. 
The Najvyšší súd therefore considers that the criteria set out in Article 4(1)(a) of 
the Framework Decision will be satisfied only when the sentenced person has in 
the Member State of nationality such family, linguistic, cultural, social or 
economic and or professional links that it is possible to reasonably assume from 
those links that enforcement of the sentence in that State will enhance the 
possibility of his social rehabilitation. From that perspective, therefore, the Slovak 
national legislation, under which a decision imposing a custodial sentence on a 
Slovak citizen may be recognised and enforced also where such a citizen has in 
the Slovak Republic merely his formally-recorded permanent or temporary 
residence, without concurrent family, social, professional or other links which 
could facilitate his social rehabilitation, it not being meanwhile a situation in 
which the sentenced person is to be deported to the Slovak Republic after 
enforcement of the penal sentence (Article 4(1)(b) of the Framework Decision), 
does not ensure the full effectiveness of the Framework Decision in the sense that 
the recognition and enforcement of decisions in such cases contributes (may 
contribute) to enhancing the possibility of the social rehabilitation of the 
sentenced person. 
34 Having regard to the above, and also to the duty of a national court which is called 
upon within the exercise of its jurisdiction to apply provisions of European Union 
law to give full effect to those provisions, if necessary refusing of its own motion 
to apply any conflicting provision of national legislation, without it being 
necessary for that court to request or await the prior setting aside of such a 
provision by legislative or other constitutional means (see in particular judgments 
of the Court of Justice of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, 
paragraphs 21 and 24; of 19 November 2009, Filipiak, C-314/08, EU:C:2009:719, 
paragraph 81; of 22 June 2010, Melki and Abdeli, C-188/10 and C-189/10, 
EU:C:2010:363 , paragraph 43; [of 26 February 2013,] Åkerberg Fransson, 
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C-617/10, EU:C:2013:105, paragraph 45), the Najvyšší súd has concluded that an 
interpretation of European Union law is essential for a decision in this case and 
has therefore decided to stay proceedings and to refer the following questions to 
the Court of Justice for a preliminary ruling: 
1. Is Article 4(1)(a) of the Framework Decision to be interpreted to the 
effect that the criteria set out therein are satisfied only when the sentenced 
person has, in the Member [Or. 9] State of his nationality, such family, social, 
professional or other links that it is possible to reasonably assume from those 
links that enforcement in that State of the sentence may facilitate his social 
rehabilitation, and as therefore precluding national legislation such as 
Paragraph 4(1)(a) of Law No 549/2011 [Zákon č. 549/2011 o uznávaní a 
výkone rozhodnutí, ktorými sa ukladá trestná sankcia spojená s odňatím 
slobody v Európskej únii a o zmene a doplnení zákona č. 221/2006 o výkone 
väzby v znení neskorších predpisov] which, in such cases, enables a judgment 
to be recognised and enforced in the event of merely formally-recorded 
habitual residence in the executing State, regardless of whether the sentenced 
person has concrete links in that State which could enhance his social 
rehabilitation. 
2. If that question is answered in the affirmative, is Article 4(2) of the 
Framework Decision to be interpreted to the effect that the competent 
authority of the issuing State is required also in the situation provided for in 
Article 4(1)(a) of the Framework Decision to satisfy itself, even before 
forwarding the judgment and certificate, that enforcement of the sentence by 
the executing State would serve the purpose of facilitating the social 
rehabilitation of the sentenced person and is, furthermore, required to 
provide the information gathered for that purpose in section (d), point 4, of 
the certificate specifically, where the sentenced person claims in the 
statement of his opinion provided for in Article 6(3) of the Framework 
Decision that he has concrete family, social or professional links in the issuing 
State. 
3. If question 1 is answered in the affirmative, must Article 9(1)(b) of the 
Framework Decision be interpreted to the effect that where, in the situation 
set out in Article 4(1)(a) of the Framework Decision, despite the consultation 
under Article 4(1)(3) of that Decision and any provision of other necessary 
information, it is not proven that there are such family, social or professional 
links from which it could reasonably be assumed that the enforcement in the 
executing State of the sentence may facilitate the social rehabilitation of the 
sentenced person, there is still a ground for refusing to recognise and enforce 
the judgment. 
(Omissis) [information on the possibility of appeal] 
Bratislava, 29 May 2018. 
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JUDr. František M o z n e r 
President of the Bench