Opinion of the Advocate General — ECLI:EU:C:2016:319
Date: 2016-05-03
Language of the case: Bulgarian
Subject matter: Justice and home affairs
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Bulgaria

Summary of the division of jurisdiction between the judicial authorities of the issuing State and those of the executing State established by the Framework Decision 1. The law which governs the enforcement of a custodial sentence prior to the transfer of the sentenced person 143. Where, in a situation such as that at issue in the main proceedings, the individual is initially imprisoned in the issuing State, the law applicable to the enforcement of the sentence is clearly the law of that State. All the measures affecting the enforcement of the sentence in the territory of that State, whether they are measures relating to the implementation of the custodial sentence, such as the order remanding the person to prison, or measures relating to sentence organisation, such as placement in the community, fall within the scope of the law of the issuing State. 144. As I have said, it also falls to the issuing State to consider whether there are grounds for arranging the transfer of the prisoner to his or her Member State of origin or residence. (50) 145. A transfer is certainly a measure of enforcement of a sentence and, specifically, a measure tailored to the individual, the objective of which is to ensure that the person concerned may serve his sentence as close as possible to his family environment and to the social environment within which he must be rehabilitated. (51) 146. As it falls to the issuing State to carry out that assessment, so too does it fall to that State to consider whether, in accordance with national legislation and in the light of the efforts made by the prisoner, he or she should benefit from other measures relating to sentence organisation, including measures relating to remission. 147. That division of jurisdiction obliges the issuing State to rule on all matters relating to remission of the sentence prior to the transfer of the sentenced person. (52) 148. I would reiterate, moreover, that that is the very purpose of part (i), section 2.3, of the standard certificate provided in Annex I to the Framework Decision. 149. Indeed, the transfer of the sentenced person must not render nugatory any remission of sentence to which the individual may be entitled under the law of the issuing State or in accordance with decisions adopted by competent courts. (53) The judicial authorities of the issuing State must therefore be in a position to issue a certificate stating not only the length of the sentence and the period of detention served, stricto sensu, but also the number of days deducted, by way of remission of the sentence in accordance with national legislation. They should also be in a position to provide some information on any assessment of the efforts which the individual has made toward his rehabilitation. 150. The executing State therefore cannot substitute its own laws on the enforcement of sentences for those of the issuing State, even if its own legislation is more favourable to the person concerned, for that would not only infringe the provisions of Article 17 of the Framework Decision, but would also seriously impinge on the sovereignty of the issuing State and thereby seriously undermine the principle of mutual recognition. 2. The request for information preceding a transfer 151. If a sentenced person is transferred to an executing State, it is perfectly logical that the judicial authorities of the issuing State should inform themselves about the applicable provisions on possible early or conditional release, as is provided for in Article 17(3) of the Framework Decision. Again, it is important to bear in mind that it is the public order of the issuing State that has been offended by the criminal conduct in question. The issuing State must therefore be sure that enforcement of the sentence in the territory of the executing State will provide a satisfactory solution to the disturbance to public order caused on its own territory. Accordingly, the issuing State will evaluate whether, in the light of these new provisions, the sentence will generally retain the coherence it had when it was imposed. If the issuing State fears that a transfer might lead to what it regards as too early a release from prison or if it considers that the sentence would cease to be proportionate to the offence, it may decide against transferring the sentenced person and withdraw the certificate. 152. The request for information must be made before the individual is transferred, since, once the transfer has been effected, the issuing State will no longer be able to impose its own conception of enforcement measures and will not be able to retract its decision on the transfer. 3. The law governing enforcement of the sentence after the transfer of the person concerned 153. The transfer of the individual automatically and necessarily entails a concomitant transfer to the executing State of powers with regard to the enforcement of the sentence, for the same reasons as I have just mentioned: first, because the enforcement of the sentence will henceforth take place in the territory and under the jurisdiction of that State, and secondly because, from the time of the transfer onwards, the judicial authorities of the executing State will alone be in a position to determine the conditions under which the sentence is to be enforced, in the light of the efforts which the person has made with a view to rehabilitation and the person’s physical, family and social circumstances. 154. Once the transfer has been effected, the executing State clearly cannot be required to seek the authorisation of the issuing State before adopting measures tailored to the individual in the form of a reduction of the sentence or early or conditional release, for example. As I have said, issues surrounding the existence of a release scheme, the procedures for implementing such a scheme and the grounds for such release fall within the scope of the powers of the States to decide their own criminal law policy. In such circumstances, any authorisation on the part of an issuing State would amount to an intrusion upon the sovereignty of the executing State and interference with the independence of its judicial system. 155. The executing State must enforce the sentence as if the judgment imposing it had been handed down by its own judicial authorities. As for the issuing State, in accordance with the principle of mutual confidence, it has no choice but to accept the application of the laws in force in the executing State, even if, to quote again the Court’s judgment of 11 February 2003 in Gözütok and Brügge (54) ‘the outcome would be different if its own national law were applied’.(55) 156. The Member States were perfectly well aware, when the Council adopted the Framework Decision, of the differences between their respective legal systems with regard to the enforcement of criminal judgments. In so far as concerns the rules which apply to early or conditional release, for example, in certain Member States a sentenced person may be released after serving one third of the sentence, while in others early release is only possible after two thirds of the sentence has been served. The Member States were thus perfectly conscious of the fact that the transfer of a sentenced person could have an effect on the actual length of the period of deprivation of liberty, by comparison with the length of the sentence initially imposed, and thus on the date on which the prisoner may be released. (56) Moreover, it is for that reason, and in particular to prevent instances of early release that an issuing State would regard as ‘premature’ in the light of the criminal act perpetrated on its territory, that the EU legislature provided for the ‘reservation’ stipulated in Article 17(3) of the Framework Decision. (57) 157. It is true that, where an executing State applies more stringent rules, the transfer of a sentenced person to that State could, as a matter of fact, entail a longer term of imprisonment than would have been served in the issuing State. 158. The European Court of Human Rights sees no objection to that from the perspective of the right to liberty and security enshrined in Article 5 of the ECHR, provided that the sentence to be served does not exceed the sentence imposed in the original criminal proceedings. Nevertheless, the European Court of Human Rights does not exclude the possibility that a markedly longer de facto term of imprisonment in the executing State could give rise to an issue under Article 5 and hence engage the responsibility of the issuing State under that provision, to the extent of the consequences that were foreseeable at the time when the transfer decision was taken. (58) VII – Conclusion 159. In the light of the foregoing, I propose that the Court answer the questions submitted by the Sofiyski gradski sad (Sofia City Court, Bulgaria) as follows: (1) In the light of the principles underlying 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, namely the principle of mutual confidence among the Member States, the principle of territoriality in criminal law and the principle that penalties must be tailored to the individual, the provisions of Article 17(1) and (2) of that framework decision are to be interpreted as precluding a national rule, such as that at issue in the main proceedings, in accordance with which the judicial authorities of the Member State to which a judgment is forwarded for the purpose of its recognition and enforcement may grant a sentenced person remission on account of work done by that person while detained in the Member State in which that judgment was delivered. (2) The Sofiyski gradski sad (Sofia City Court) is required, in accordance with its obligation to interpret national law in conformity with EU law, to disregard the interpretation adopted by the Varhoven kasatsionen sad (Supreme Court of Appeal, Bulgaria) of Article 41(3) of the Nakazatelen Kodeks (Bulgarian Criminal Code) and to disapply that provision to the period of detention served by the individual in question in the Kingdom of Denmark. 1 Original language: French. 2 Council Framework Decision 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, ‘the Framework Decision’). 3 Hereafter ‘the issuing State’. Pursuant to Article 1(c) of the Framework Decision, this is the Member State in which the judgment is delivered. 4 Hereafter ‘the executing State’. Pursuant to Article 1(d) of the Framework Decision, this is the Member State to which a judgment is forwarded for the purpose of its recognition and enforcement. 5 ‘The NK’. 6 In the order for reference in Ognyanov (C‑614/14), pending before the Court, in which I have also delivered an Opinion, the Public Prosecutor at the Sofiyska gradska prokuratura (Public Prosecutor’s Office, Sofia, Bulgaria) takes issue with the calculation of the referring court for not deducting days on which Mr Ognyanov was not working. 7 ‘The Charter’. 8 Recitals 1, 2 and 5 of the Framework Decision. 9 See, on this point, the Conclusions of the European Council meeting in Tampere on 15 and 16 October 1999. 10 Pursuant to Article 1(a) of the Framework Decision, a ‘judgment’ is ‘a final decision or order of a court of the issuing State imposing a sentence on a natural person’. 11 Pursuant to Article 1(b) of the Framework Decision, a ‘sentence’ is ‘any custodial sentence or any measure involving deprivation of liberty imposed for a limited or unlimited period of time on account of a criminal offence on the basis of criminal proceedings’. 12 Hereafter ‘the Convention on transfers’. The convention is available of the website of the European Council. It was ratified by 64 States and entered into force on 1 July 1985. All the Member States, except the Republic of Croatia and the Republic of Finland, are signatories to the convention. 13 ‘The NPK’. 14 DV No 25 of 3 April 2009. 15 Contrary to what the Varhoven kasatsionen sad (Supreme Court of Appeal) states, this is, to my mind, not a case of ‘commutation of the sentence, but of the reduction of a sentence. 16 My italics. 17 Judgment of 26 February 2013 in Melloni (C‑399/11, EU:C:2013:107, paragraph 28 and the case-law cited). 18 Judgment of 26 February 2013 in Melloni (C‑399/11, EU:C:2013:107, paragraph 29 and the case-law cited). 19 C‑441/14, EU:C:2016:278. 20 Paragraph 33 and the case-law cited. 21 C‑105/03, EU:C:2005:386. 22 Paragraph 42. 23 Paragraph 34. 24 See, inter alia, judgment of 24 January 2012 in Dominguez (C‑282/10, EU:C:2012:33, paragraph 24 and the case-law cited). 25 Judgment of 16 June 2005 in Pupino (C‑105/03, EU:C:2005:386, paragraph 45). It is clear from that judgment that ‘the obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law is limited by general principles of law, particularly those of legal certainty and non-retroactivity’ (paragraph 44). 26 In the English-language version of the Framework Decision, the same word, ‘sentence’, is used to cover both ‘peine’ and ‘condamnation’ in the French. 27 According to the case-law of the European Court of Human Rights, ‘the starting-point in any assessment of the existence of a penalty (or “peine” in the French version of the judgment) is whether the measure in question is imposed following conviction for a “criminal offence”. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity … The severity of the order is not in itself decisive, however, since many non-penal measures of a preventive nature may have a substantial impact on the person concerned’ (see, in that regard, ECtHR, 21 October 2013, Del Río Prada v. Spain, CE:ECHR:2013:1021JUD004275009, § 82 and the case-law cited). 28 Hereafter ‘the ECHR’. In the ECHR and the Charter, the word ‘penalty’ is used to convey the French ‘peine’, used in the Framework Decision to mean ‘sentence’ or ‘custodial sentence’. 29 ECtHR, 29 November 2005, Uttley v. United Kingdom, CE:ECHR:2005:1129DEC003694603, and 21 October 2013, Del Río Prada v. Spain, CE:ECHR:2013:1021JUD004275009. 30 ECtHR, 21 October 2013, Del Río Prada v. Spain, CE:ECHR:2013:1021JUD004275009, §§ 59, 83, 85 and the case-law cited and § 89. In that judgment, the European Court of Human Rights held that recourse to the new approach to the application of remissions of sentence for work done in detention could not be regarded as a measure relating solely to the execution of the penalty imposed. Since it led to the extension of the term of imprisonment by almost nine years, that new approach, according to the European Court of Human Rights, led to the redefinition of the scope of the ‘penalty’ imposed and therefore had to be assessed in the light of the guarantee laid down in the last sentence of Article 7(1) of the ECHR (§§ 109 and 110). 31 Nevertheless, in certain cases, the convicted person may already be present in the territory of the executing State. 32 In accordance with the principle of the legality of criminal offences and penalties, criminal law cannot apply retroactively. The principle of retroactivity in mitius constitutes an exception to that rule in insisting that the provisions of criminal law that are most favourable to the convicted person are those that should be applied. 33 See also the declaration of the Council of the European Union on the objective of rehabilitation pursued by the Framework Decision, in which it stated that, ‘bearing in mind that the successful rehabilitation of the sentenced person in a State with which he or she has the closest links is the fundamental purpose of this Framework Decision … and agreeing that the mutual trust between the Member States does not necessitate the introduction of the additional ground for refusal based on the [incompatibility] of the recognition of the judgment with the rehabilitation purpose, the Council underlines that this purpose should be a factor of primary importance for the issuing State each time [a] decision on the need [to forward a] judgment and the certificate to the executing State is … made’ (see Annex II, Part I of Council document 6070/1/09 REV 1), and also point 4.1 of the Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention (COM(2014) 57 final). 34 See the Communication from the Commission to the Council and the European Parliament entitled ‘Mutual Recognition of Final Decisions in Criminal Matters’ (COM(2000) 495 final), in which the Commission stated that ‘decisions relevant [to enforcement], which are based on the behaviour of the prisoner, should fall within the competence of the executing Member State … it is the authorities of the executing Member State who are in direct contact with the prisoner and thus best placed to form an opinion on his or her behaviour’ (point 9.1). 35 Indeed, this explains why the deduction of any days worked is ‘a positive, mandatory consequence, based on the very fact that the convicted person carried out work that is in the general interest while serving his sentence and while in detention’ (my italics). 36 See, inter alia, point 3.2.1.5 of the Green Paper on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union (COM(2004) 334 final). 37 My italics. 38 My italics. 39 My italics. 40 See Article 4(1) of the Framework Decision. 41 See, on this point, ECtHR, 27 June 2006, Szabó v. Sweden, CE:ECHR:2006:0627DEC002857803, p. 12. 42 The EU legislature followed the approach of using a certificate stipulated in Article 54 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). 43 Article 5(2) of the Framework Decision. 44 The executing State must satisfy itself that the decision to be enforced emanates from a competent authority in accordance with the law of the issuing State and falls within the scope of the Framework Decision. 45 C‑187/01 and C‑385/01, EU:C:2003:87. 46 Paragraph 33. 47 See, on this point, ECtHR, 21 October 2013, Del Río Prada v. Spain, CE:ECHR:2013:1021JUD004275009, § 84. 48 C‑614/14, EU:C:2016:111. 49 Judgment of 5 October 2010 in Elchinov (C‑173/09, EU:C:2010:581, paragraph 29 and the case-law cited). 50 See Article 4(1) of the Framework Decision. 51 ECtHR, 27 June 2006, Szabó v. Sweden, CE:ECHR:2006:0627DEC002857803, p. 14. 52 Because of the division of jurisdiction, remission is granted in respect not of the full length of the sentence, but in respect of each of the periods of detention served in the issuing State and in the executing State successively. 53 See, on this point, ECtHR, 21 October 2013, Del Río Prada v. Spain, CE:ECHR:2013:1021JUD004275009, § 107. 54 C‑187/01 and C‑385/01, EU:C:2003:87. 55 Paragraph 33. 56 See the study by the Institute for International Research on Criminal Policy, Ghent University, entitled ‘Material detention condition, execution of custodial sentences and prisoner transfer in the EU Member States’, 2011. See also point 4.1.8 of the Commission’s Green Paper, cited in footnote 36 to this Opinion, in which the Commission noted that ‘the differences in the Member States’ legislation regarding the minimum term of imprisonment to be served … have created difficulties of application and in some cases even refusals to transfer as they can entail lighter penalties and even immediate release’. Such difficulties arose in the same fashion with the application of the Convention on transfers. 57 Pursuant to that provision, ‘the competent authority of the executing State shall, upon request, inform the competent authority of the issuing State of the applicable provisions on possible early or conditional release. The issuing State may agree to the application of such provisions or it may withdraw the certificate’. 58 ECtHR, 27 June 2006, Szabó v. Sweden, CE:ECHR:2006:0627DEC002857803, p. 9. In the case that gave rise to that judgment, the individual in question could reasonably have expected to be released, in Sweden, after serving two thirds of his 10-year prison sentence, that is to say, after 6 years and 8 months. As a result of his transfer to Hungary, he could not expect conditional release until he had served four fifths of the sentence, that is, after eight years in prison. Whilst, in law, his sentence had not been increased, as a matter of fact he could expect to serve a term of imprisonment in Hungary one year and four months longer than the term he would have served in Sweden. The European Court of Human Rights was therefore called on to consider whether the transfer to Hungary and the de factoincrease in the period of detention were capable of constituting an infringement of Article 5 of the ECHR. The court found that the additional period in detention which Mr Szabó could expect to serve in Hungary equated to 20% of the time he could have expected to serve in Sweden. After noting that the difference of one year and four months was not negligible, the court nevertheless held that the period of imprisonment which Mr Szabó would serve remained within the limits of the sentence initially imposed.