Order;Summary — ECLI:EU:C:2024:624
Date: 2024-07-17
Language of the case: Dutch
Court formation: First Chamber
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Preliminary reference – inadmissible
Origin: Netherlands

Summary  C-235/24 PPU – 1 
Case C-235/24 PPU [Niesker]i 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
2 April 2024 
Referring court:  
Gerechtshof Arnhem-Leeuwarden (Netherlands) 
Date of the decision to refer:  
29 March 2024 
Defendant:  
S.A.H. 
  
Subject matter of the main proceedings 
The main proceedings are proceedings relating to the recognition and enforcement 
in the Netherlands of a judgment in criminal matters delivered by a Swedish court. 
Subject matter and legal basis of the request 
The first point at issue within the context of this request under Article 267 TFEU 
is whether the Gerechtshof Arnhem-Leeuwarden (Arnhem-Leeuwarden Court of 
Appeal, Netherlands) can be regarded as a court or tribunal within the meaning of 
Article 267 TFEU and is therefore competent to refer questions for a preliminary 
ruling. If this question is answered in the affirmative, the Court of Appeal then 
asks whether Article 47 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’) applies to the main proceedings, in which it has to consider 
the legal questions addressed in Article 8(2) to (4) and Article 9 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 (‘Framework Decision 2008/909’), and, 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-235/24 PPU 
 
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if so, what consequences this will have. Lastly, the Court of Appeal asks questions 
concerning the interpretation of Article 8(4) of Framework Decision 2008/909. 
Furthermore, the Court of Appeal asks that this reference for a preliminary ruling 
be dealt with under the urgent procedure as referred to in the fourth paragraph of 
Article 267 TFEU and Article 107(1) of the Rules of Procedure. The Court of 
Appeal points out that the questions referred relate to the area of freedom, security 
and justice, and that the sentenced person has currently been deprived of his 
liberty. The answers given to the questions may render it necessary to terminate 
the deprivation of liberty in the Netherlands, as recognition of the foreign sentence 
has to be refused or the sentence has to be converted to one that does not involve 
deprivation of liberty. 
Questions referred for a preliminary ruling 
1. Should the term ‘court or tribunal’, as referred to in Article 267 TFEU in 
conjunction with Article 8(2) to (4) and Article 9 of Framework 
Decision 2008/909/JHA, be interpreted as meaning that it also covers a designated 
regular court, other than the competent authority referred to in Article 8(1) of the 
Framework Decision, that rules in written proceedings exclusively on the legal 
questions referred to in Article 8(2) to (4) and Article 9 of the Framework 
Decision, in principle without any submissions from the sentenced person? 
2. Should Article 47 of the Charter be interpreted as meaning that, when, in 
recognition proceedings under Framework Decision 2008/909/JHA, the 
assessment of the aspects referred to in Article 8(2) to (4) and Article 9 of that 
Framework Decision is entrusted to a specifically designated regular court in the 
executing State, in addition to the opportunity for the sentenced person to state his 
or her opinion in the issuing State on the basis of Article 6(3) of Framework 
Decision 2008/909/JHA, there should also be an effective remedy for the 
sentenced person in the executing State? 
In the event that this question is answered in the affirmative: 
3. In the light of Framework Decision 2008/909/JHA, should Article 47 of the 
Charter be interpreted as meaning that, as regards the effective remedy in the 
executing State, it is sufficient to give the sentenced person the opportunity to 
submit written observations, either prior to the court ruling and the recognition 
decision or after the recognition decision has been taken, in the form of a 
reassessment of the original ruling? 
And 
4. In the light of Framework Decision 2008/909/JHA, should Article 47 of the 
Charter be interpreted as meaning that a sentenced person who does not have 
sufficient financial resources and requires legal aid to ensure effective access to 
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justice should be provided with such legal aid in the executing State, even if this is 
not provided for by law? 
5. Should the criterion set out in Article 8(3) of Framework 
Decision 2008/909/JHA be interpreted as meaning that, if the punishment or 
measure is adapted because, in terms of its nature, it is incompatible with the law 
of the executing State, it is necessary to assess which measure would in all 
likelihood have been imposed by the court in the executing State if the trial had 
been conducted in the executing State, or should an assessment be carried out, 
requesting additional information as necessary, to examine how the measure is 
actually implemented in the issuing State? 
6. How and to what extent should the executing State take into account 
developments and information subsequent to the recognition decision in the event 
of a possible reassessment of the prohibition on aggravating the sentence under 
Article 8(4) of Framework Decision 2008/909/JHA? 
Provisions of European Union law relied on 
Article 47 of the Charter 
Article 267 TFEU 
Articles 6, 8 and 9 of Framework Decision 2008/909 
Provisions of national law relied on 
Articles 2:11 and 2:13 of the Wet wederzijdse erkenning en tenuitvoerlegging 
vrijheidsbenemende en voorwaardelijke sancties (Law on the mutual recognition 
and enforcement of custodial and suspended sentences, ‘the WETVVS’) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The sentenced person is an Iraqi national. He has been living in the Netherlands 
since 1996 and was granted a permanent residence permit in 2001. 
2 In a judgment of 26 February 2015 the Göta Hovrätt (Court of Appeal, Sweden) 
convicted him of criminal offences committed in Sweden. To summarise, these 
concerned the illegal possession of weapons, illegal threats, harassment and 
grievous bodily harm. The Court of Appeal in Sweden ruled that the sentenced 
person could not be deemed responsible for the offences due to the limited 
development of his mental faculties or a mental disorder and imposed a measure 
involving deprivation of liberty, namely a forensic psychiatric treatment of 
unspecified duration with a special examination upon discharge from the clinic. 
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3 The sentenced person asked the Swedish authorities to transfer the imposed 
sentence to the Netherlands, upon which these authorities asked the Dutch 
Minister for Justice and Security (‘the Minister’) to recognise and enforce the 
Swedish judgment. 
4 In a ruling of 18 January 2019, after the Minister had forwarded the request, the 
Court of Appeal in the Netherlands found that the sentenced person had himself 
requested or consented to the forwarding of the judgment in which he had been 
convicted and held that there were no grounds for non-recognition and that the 
offences for which the sentence had been imposed are also punishable under 
Dutch law. The Court of Appeal subsequently ruled that there were grounds to 
adapt the imposed measure involving deprivation of liberty and converted it to a 
hospital order with treatment provided by the government, without setting a 
maximum duration. The Court of Appeal did not consider this to constitute an 
aggravation of the sentenced person’s penal position. 
5 As the competent authority within the meaning of Framework Decision 2008/909, 
on 18 February 2019 the Minister recognised the Swedish judgment, with due 
consideration for the Court of Appeal’s ruling, adapting the sentence to the Dutch 
hospital order with compulsory treatment (without any maximum duration). The 
sentenced person was placed in a Forensic Psychiatric Centre in the Netherlands 
and has been there ever since. Following recognition of the judgment, in a 
decision of 6 August 2020 in which the residence permit issued to persons granted 
asylum was revoked, the State Secretary for Justice and Security declared the 
sentenced person an undesirable alien. 
6 The sentenced person subsequently contested the lawfulness of the Minister’s 
recognition decision in civil proceedings. He argued, amongst other things, that 
the Court of Appeal’s ruling of 18 January 2019, on which the Minister’s decision 
was based, was reached in proceedings that did not satisfy the requirements of 
Article 47 of the Charter. In these civil proceedings the gerechtshof Den Haag 
(The Hague Court of Appeal, Netherlands) upheld the claim (on appeal) in its 
judgment of 5 September 2023 and ordered the Minister to reconsider his decision 
of 29 January 2019. 
7 In a letter of 15 September 2023 the Minister asked the Arnhem-Leeuwarden 
Court of Appeal to reassess its ruling, in proceedings that satisfied the 
requirements of Article 47 of the Charter. As part of this reassessment the Court 
of Appeal has decided, after consulting with the parties, to submit this request for 
a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
8 The sentenced person argues that the Court of Appeal should reassess its ruling in 
proceedings that comply with Article 47 of the Charter, which in this case means 
that: 
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- the proceedings must be conducted in a public sitting, which the sentenced 
person should be able to attend; 
- the case must be dealt with within a reasonable time; 
- the sentenced person must have the possibility of being assisted by a lawyer, 
if necessary paid for by means of government aid; 
- the arguments of both parties must be heard, and 
- the ruling must be delivered publicly. 
9 In addition, the sentenced person believes that in this case the sentence has been 
aggravated and – with effective legal protection in mind – he considers it 
necessary that he should be able to present further evidence in this respect. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
Admissibility of the reference for a preliminary ruling 
10 To date, the Court of Appeal has assumed that the question as to whether it is a 
court or tribunal within the meaning of Article 267 TFEU, and therefore whether 
it is competent to refer questions to the Court of Justice for a preliminary ruling, 
should be answered in the negative. That is because the task that the Court of 
Appeal performs within the context of proceedings concerning the recognition of 
court judgments from other EU Member States differs significantly from the 
ordinary tasks and procedures of a court. For example, there is no public hearing. 
Moreover, under the legislation, the Court of Appeal does not rule on the person’s 
interest in the area of social rehabilitation, which is accorded a central role under 
Framework Decision 2008/909, nor does it rule on the grounds for refusal that are 
designated as optional in the WETVVS or on the interpretation of the grounds for 
refusal that are compulsory by law, against the background of the judgment of the 
Court of Justice of 29 April 2021, X (Mandat d’arrêt européen – Ne bis in idem) 
(C-665/20 PPU, EU:C:2021:339). The Court of Appeal is also unable to rule on 
cases in which the Minister refuses the request to take over the enforcement of a 
sentence without referring it to the Court of Appeal. 
11 However, it can be concluded from the Dutch legislative history that the legislator 
explicitly wanted a court to rule on the legal questions addressed in Article 8(2) 
to (4) and Article 9 of Framework Decision 2008/909 and that a court has been 
designated for this purpose that, by law, delivers a binding ruling. 
12 In accordance with the settled case-law of the Court of Justice, to assess whether a 
referring body is a ‘court or tribunal’ within the meaning of Article 267 TFEU, 
and therefore to assess whether the request for a preliminary ruling is admissible, 
a number of factors must be taken into account, such as: whether the body in 
question is established by law, whether it is permanent, whether its jurisdiction is 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-235/24 PPU 
 
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compulsory, whether its procedure is inter partes, whether it applies rules of law 
and whether it is independent (judgment of 29 March 2022, Getin Noble 
Bank, C-132/20-REC, EU:C:2022:235, paragraph 66 and the case-law cited). 
13 The Court of Appeal’s provisional opinion is that it is a body established by law, 
that it is permanent, that its rulings within the context of decisions based on the 
WETVVS are limited to a number of points, but are nevertheless compulsory, that 
although the legal procedure does not include the possibility for the sentenced 
person to be heard, any arguments of the sentenced person are taken into account, 
in so far as they are submitted within the context of an opinion or a subsequent 
reassessment, that the Court of Appeal applies rules of law and that it is 
independent. In the Court of Appeal’s provisional opinion, the question as to 
whether it must be regarded as a court or tribunal therefore depends on whether its 
procedure can be considered to be inter partes. 
14 It is in view of the above considerations that the Court of Appeal is referring the 
first question for a preliminary ruling. The answer to this question may, however, 
depend on the answer to the second question referred, which relates to the 
applicability of Article 47 of the Charter. 
Article 47 of the Charter 
15 According to Article 47 of the Charter, everyone whose rights and freedoms 
guaranteed by the law of the Union are violated has the right to an effective 
remedy before a tribunal. 
16 The Court of Appeal is faced with the question as to whether, with its ruling on 
the basis of Article 2:11 of the WETVVS, it has violated rights and freedoms 
guaranteed by the law of the Union. Within this context it is wondering whether 
the ruling ‘falls within the scope of European Union law’ (judgment 
of 26 February 2013, Åkerberg Fransson, C-617/10, EU:C:2013:105), or whether 
it is a question of ‘a situation governed by EU law’ (judgment of 16 May 2017, 
Berlioz Investment Fund, C-682/15, EU:C:2017:373). It is clear that, in the case of 
this ruling, Article 8(2) to (4) and Article 9 of Framework Decision 2008/909 are 
applied, given that they were transposed into Articles 2:11 and 2:13 of the 
WETVVS. On the other hand, if the sentenced person is in the issuing State, he or 
she is given an opportunity to state his or her opinion orally or in writing, while 
Framework Decision 2008/909 emphatically does not include the possibility of an 
effective remedy for a sentenced person in the executing State, which means that 
it could also be argued that a legal situation applies that falls outside the scope of 
European Union law. As there is doubt about this point, the Court of Appeal is 
referring the second question for a preliminary ruling. 
17 If this question must be answered in the affirmative, the question arises as to 
whether the requirements of Article 47 of the Charter are satisfied by means of the 
possibility of stating an opinion in the issuing State, in accordance with Article 6 
of Framework Decision 2008/909. On the basis of Article 6(3) of that Decision, 
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this opinion is then available to the executing State in written form, which seems 
to suggest that the EU legislature is expecting the matter to be subsequently dealt 
with in writing in the executing State. 
18 If this possibility does not satisfy the requirements of Article 47 of the Charter or 
does not extend to situations in which the sentenced person is not (or is no longer) 
in the issuing State and therefore cannot provide an opinion, the Court of Appeal 
wonders whether, in such a situation, Article 47 of the Charter requires the 
sentenced person to be heard in a public sitting in the executing State, with the 
possibility of accessing legal aid, and when this hearing should take place. More 
specifically, the question arises as to whether the fact that the convicted person 
can request a reassessment satisfies the requirements of Article 47. 
19 Within this context the Court of Appeal notes that the assessment prescribed by 
Article 2:11 of the WETVVS is of a technical legal nature and relatively limited in 
scope. In many cases the interests of States tally with those of the sentenced 
person, namely social rehabilitation in the country with which this person has the 
closest ties. In this case it was necessary to adapt the foreign measure, but in most 
cases the measure involving deprivation of liberty takes the form of a prison 
sentence, which means that the (nature of the) sentence will not need to be 
adapted. If the consequence of applying Article 47 of the Charter is that every 
sentenced person has to be heard in a public sitting in the executing State, this will 
have practical complications. For example, there is the question of how the 
hearing in the executing State should be achieved if the sentenced person is still in 
the issuing State. Based on the case-law of the Court of Appeal, the sentenced 
person has the option of submitting a written opinion, which the Court of Appeal 
takes into account. This can be done either prior to the ruling and the recognition 
decision or afterwards in the form of a reassessment request. The sentenced 
person is free to obtain legal assistance in this regard, but is not able to receive 
financial support for this. 
20 It is in view of the above considerations that the Court of Appeal is referring the 
third and fourth questions for a preliminary ruling. 
Adaptation of the sentence 
21 Article 8(3) of Framework Decision 2008/909 – and by extension Article 2:11(5) 
of the WETVVS – stipulates that if the sentence is incompatible with the law of 
the executing State in terms of its nature, it will be converted to a punishment or 
measure that corresponds as closely as possible to the sentence imposed in the 
issuing State. The Court of Appeal interpreted this criterion as meaning that the 
sentence must be converted to a measure that would in all likelihood have been 
imposed on the sentenced person if the trial had been conducted in the 
Netherlands. For this reason it opted to convert the sentence to a hospital order 
with compulsory treatment, the end of which, as in the case of the Swedish 
measure, is not predetermined and depends on the progress of the treatment. 
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22 The sentenced person argues that the Swedish measure involving deprivation of 
liberty is less far-reaching in nature than the Dutch measure. In the case of the 
Swedish measure, the need to terminate the measure is assessed after six months 
and the average duration is around four years, whereas under the Dutch measure it 
is assessed in principle every two years, the average duration is much longer and, 
moreover, the person concerned has been declared an undesirable alien. 
23 In the light of these arguments the Court of Appeal is referring the fifth question 
for a preliminary ruling. 
Assessment of information dating from after the recognition decision 
24 Lastly, the Court of Appeal is wondering to what extent it needs to take account of 
information that only became available after the ruling or of developments that 
only occurred at a later point, where this information or these developments could 
be relevant to the assessment within the context of the ban on aggravating the 
sentence under Article 8(4) of Framework Decision 2008/909. In this case the 
sentenced person referred in particular to the development whereby he had been 
declared an undesirable alien after the recognition decision. The Court of Appeal 
considers that this could be a relevant factor when assessing whether the sentence 
or measure involving deprivation of liberty has been aggravated. However, it 
concerns information and developments dating from after the recognition 
decision. As the Court of Appeal has doubts about whether it can take this 
information into account, it is referring the sixth question for a preliminary ruling.