Opinion of the Advocate General — ECLI:EU:C:2020:80
Date: 2020-02-06
Language of the case: Estonian
Subject matter: Justice and home affairs;Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Estonia

summary, the following. 
4 The Public Prosecutor could not be agreed with in saying that there was no basis 
for recognising the judgment of the Latvian court. The recognition and execution 
of a judgment given in a Member State of the European Union imposing a 
conditional sentence was not excluded even where no probation measure or 
alternative sanction at all within the meaning of Paragraph 50857 of the 
Kriminaalmenetluse seadustik (Code of Criminal Procedure, ‘KrMS’) had been 
applied in relation to the person. Under Article 14 of Council Framework 
Decision 2008/947/JHA of 27 November 2008, the competent authority of the 
executing State had jurisdiction to take all subsequent decisions relating to a 
suspended sentence, inter alia where the sentenced person committed a new 
offence within the probation period. It also followed from Paragraph 50854 of the 
KrMS that a certificate of a Member State of the European Union of probation and 
supervision of probation measures and alternative sanctions was a request by the 
competent judicial authority of a Member State to another Member State of the 
European Union to recognise a judgment concerning the granting of probation or 
also the application of probation measures or alternative sanctions and to 
supervise probation measures and alternative sanctions. 
5 Although obligations had not been imposed on A.P. in connection with the 
conditional sentence, the probation period imposed on him had not ended. 
Consequently, the procedure could not be terminated. Nor had any circumstances 
been established limiting or preventing recognition and execution of a foreign 
judgment under Paragraph 50858 of the KrMS. 
Appeal 
6 A.P.’s defence lawyer M.L. appealed against the order of the Harju Maakohus, 
seeking for the order to be quashed, the foreign judgment not to be recognised, 
and the remuneration paid to the chosen defence counsel to be approved. 
Order of the Ringkonnakohus 
7 By order of the Tallinna Ringkonnakohus (Court of Appeal, Tallinn) of 21 March 
2018, the order of the Maakohus was upheld in substance, although a clarification 
was made, namely that a sentence of three years’ imprisonment, conditionally 
suspended if the sentenced person did not commit a new intentional offence 
during the probation period [Or. 3] of three years, had been imposed on A.P. by 
judgment of the Riga City Court (Latgale District), Republic of Latvia, and was to 
be enforced in Estonia. The defence’s appeal was dismissed. The Ringkonnakohus 
found as follows. 
8 Although no probation measure or alternative sanction at all under 
Paragraph 50857 of the KrMS had been applied in relation to A.P., that did not 
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exclude recognition of the judgment delivered concerning him. The aim of the list 
set out in Paragraph 50857 of the KrMS was to determine the obligations that were 
not too onerous to be recognised. Paragraph 55 of the Latvian Criminal Code 
allowed, in the same way as Paragraph 73(1) of the Estonian Karistusseadustik 
(Criminal Code, KarS), the imposition on a person of a conditional sentence 
without the application of supervisory measures. The sentence imposed thus 
corresponded to Estonian criminal law and there were no circumstances 
preventing recognition of the judgment. The Public Prosecutor had claimed that 
A.P. had not been obliged by the judgment to avoid committing a new offence and 
that the present case was not therefore within the scope of the Framework 
Decision, but an obligation laid down by law did not have to be set out separately 
in the judgment. 
POSITIONS OF THE PARTIES TO THE APPEAL 
The appeal 
9 A.P.’s defence lawyer M.L. appealed against the order of the Tallinna 
Ringkonnakohus, seeking for the orders both of the Maakohus and of the 
Ringkonnakohus to be set aside, the Latvian judgment not to be recognised, the 
costs of the proceedings to be borne by the State, and the remuneration paid to the 
chosen defence counsel to be approved. The defence’s main points are as follows. 
10 The Framework Decision concerning the mutual recognition and execution of a 
judgment relating to conditional suspension of imprisonment and supervision of 
probation measures and alternative sanctions has been transposed into Estonian 
law. The aim of the Framework Decision is to facilitate the social rehabilitation of 
sentenced persons, improve the protection of victims and the public, and facilitate 
the application of suitable probation measures and alternative sanctions in the case 
of offenders who do not live in the State of conviction. 
11 By a certificate of supervision within the meaning of Paragraph 50854 of the 
KrMS, a request may be made for recognition of the judgment and exercise of 
supervision of the probation measures and alternative sanctions applied. A request 
cannot be made under Paragraph 50854 et seq of the KrMS solely for recognition 
of a judgment or solely for supervision. The contrary view would not be 
compatible with the aim of the Framework Decision. If by a judgment of another 
Member State pronouncing a conviction no probation measure or alternative 
sanction at all mentioned in Paragraph 50857 of the KrMS (an exhaustive list) is 
applied in relation to the person, recognition of the judgment or exercise of 
supervision is not possible. Since the Latvian court’s judgment did not apply any 
of the measures or sanctions mentioned in Paragraph 50857 of the KrMS to A.P., 
the conditions for recognising the judgment are not met and it cannot be enforced 
in Estonia. 
A.P. 
 
5 
Response to the appeal 
12 Public Prosecutor P.P. agrees with the defence appeal, holds to the view 
previously expressed, and submits that there is no basis for recognising the foreign 
judgment. 
Referral of the examination of the case to the full Criminal Chamber 
13 [Or. 4] By order of the Criminal Chamber of the Riigikohus of 19 October 2018, 
the criminal case was referred for examination to the full composition of the 
Criminal Chamber under Paragraph 354(1) of the KrMS, since in the three-
member composition the members of the court adopted fundamentally different 
views of the law. 
RELEVANT PROVISIONS OF LAW 
14 Council Framework Decision 2008/947/JHA of 27 November 2008 on the 
application of the principle of mutual recognition to judgments and 
probation decisions with a view to the supervision of probation measures and 
alternative sanctions 
(OJ 2008 L 337, p. 102) 
‘Article 1 
Objectives and scope 
1. This Framework Decision aims at facilitating the social rehabilitation of 
sentenced persons, improving the protection of victims and of the general public, 
and facilitating the application of suitable probation measures and alternative 
sanctions, in case of offenders who do not live in the State of conviction. With a 
view to achieving these objectives, this Framework Decision lays down rules 
according to which a Member State, other than the Member State in which the 
person concerned has been sentenced, recognises judgments and, where 
applicable, probation decisions and supervises probation measures imposed on the 
basis of a judgment, or alternative sanctions contained in such a judgment, and 
takes all other decisions relating to that judgment, unless otherwise provided for in 
this Framework Decision. 
2. This Framework Decision shall apply only to: 
(a) the recognition of judgments and, where applicable, probation decisions; 
(b) the transfer of responsibility for the supervision of probation measures and 
alternative sanctions; 
(c) all other decisions related to those under (a) and (b); 
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as described and provided for in this Framework Decision. 
… 
Article 2 
[Or. 5] Definitions 
For the purposes of this Framework Decision: 
… 
3. “conditional sentence” shall mean a judgment in which the imposition of a 
sentence has been conditionally deferred by imposing one or more probation 
measures or in which one or more probation measures are imposed instead 
of a custodial sentence or measure involving deprivation of liberty. Such 
probation measures may be included in the judgment itself or determined in 
a separate probation decision taken by a competent authority; 
… 
7. “probation measures” shall mean obligations and instructions imposed by a 
competent authority on a natural person, in accordance with the national law 
of the issuing State, in connection with a suspended sentence, a conditional 
sentence or a conditional release; 
… 
Article 4 
Types of probation measures and alternative sanctions 
1. This Framework Decision shall apply to the following probation measures or 
alternative sanctions: 
(a) an obligation for the sentenced person to inform a specific authority of any 
change of residence or working place; 
(b) an obligation not to enter certain localities, places or defined areas in the 
issuing or executing State; 
(c) an obligation containing limitations on leaving the territory of the executing 
State; 
(d) instructions relating to behaviour, residence, education and training, leisure 
activities, or containing limitations on or modalities of carrying out a 
professional activity; 
(e) an obligation to report at specified times to a specific authority; 
A.P. 
 
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(f) an obligation to avoid contact with specific persons; 
(g) an obligation to avoid contact with specific objects, which have been used or 
are likely to be used by the sentenced person with a view to committing a 
criminal offence; 
(h) an obligation to compensate financially for the prejudice caused by the 
offence and/or an obligation to provide proof of compliance with such an 
obligation; 
(i) [Or. 6] an obligation to carry out community service; 
(j) an obligation to cooperate with a probation officer or with a representative 
of a social service having responsibilities in respect of sentenced persons; 
(k) an obligation to undergo therapeutic treatment or treatment for addiction. 
2. Each Member State shall notify the General Secretariat of the Council, when 
implementing this Framework Decision, which probation measures and alternative 
sanctions, apart from those referred to in paragraph 1, it is prepared to supervise. 
The General Secretariat of the Council shall make the information received 
available to all Member States and to the Commission.’ 
15 Kriminaalmenetluse seadustik (Code of Criminal Procedure) 
(RT 1 2003, 27, 166; RT 1, 31.05.2018, 22) 
‘Paragraph 50854. Certificate of supervision 
A certificate of a Member State of the European Union of probation and 
supervision over probation measures and alternative sanctions (“certificate of 
supervision”) is a request made by a competent judicial authority of a Member 
State to another Member State of the European Union to recognise a judgment 
relating to probation or the application of probation measures and alternative 
sanctions, and to exercise supervision over probation measures and alternative 
sanctions. 
Paragraph 50855. General conditions 
(1) Recognition of a judgment and the supervision prescribed by the judgment 
pursuant to the provisions of this section is permitted where the act which is 
the basis for the judgment is a criminal offence pursuant to the law of the 
executing State, regardless of the elements of the act. 
… 
(3) Recognition of a judgment and the supervision prescribed by the judgment 
pursuant to the provisions of this section is permitted only in the case of 
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such probation measures or alternative sanctions as are specified in 
Paragraph 50857 of the present code. 
… 
Paragraph 50857. Types of probation measures and alternative sanctions 
Recognition of judgments and exercise of supervision ordered, pursuant to this 
section, is permitted only with respect to the following probation measures or 
alternative sanctions: 
1) an obligation for the sentenced person to inform a specific authority of any 
change of residence or workplace; 
2) an obligation not to enter certain places or defined areas in the issuing State 
or Estonia; 
3) [Or. 7] an obligation containing limitations on leaving the territory of 
Estonia; 
4) instructions relating to behaviour, residence, education and training, and 
leisure activities, or containing limitations on or modalities of carrying out a 
professional activity; 
5) an obligation to report at specified times to a specific authority; 
6) an obligation to avoid contacts with specific persons; 
7) an obligation to avoid contact with specific objects which have been used or 
are likely to be used by the sentenced person with a view to committing a 
criminal offence; 
8) an obligation to compensate financially for the prejudice caused by the 
offence and an obligation to provide proof of compliance with such an 
obligation; 
9) an obligation to carry out community service; 
10) an obligation to cooperate with a probation officer or with a representative 
of a social service having responsibilities in respect of sentenced persons; 
11) an obligation to undergo therapeutic treatment or treatment for addiction. 
Paragraph 50858. Circumstances excluding and limiting recognition of a 
judgment and exercise of the supervision ordered 
Recognition of a judgment or exercise of the supervision ordered may be refused 
if: 
A.P. 
 
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1) the act which is the basis for the judgment of conviction is not a criminal 
offence under the Estonian Criminal Code, except in the case provided for in 
Paragraph 4896(1) of the present code; 
2) the request was not submitted using the format of a certificate of 
supervision, it is incomplete, it does not correspond to the judgment of the 
issuing State which is the basis for it or the judgment of the issuing State or 
a copy thereof is not appended to it, and defects which appear are not 
remedied within a reasonable period of time; 
3) the sentenced person is not a person specified in Paragraph 50856(1) or (2) of 
the present code; 
4) the limitation period for enforcement of the punishment has expired pursuant 
to the Estonian Criminal Code and is related to an act which is within the 
jurisdiction of Estonia in accordance with its national legislation; 
5) the sentenced person enjoys immunity in the Republic of Estonia or 
privileges prescribed by an international agreement which do not permit 
exercise of the supervision determined in Paragraph 50854; 
6) the sentenced person is less than 14 years old; 
7) the judgment was given in absentia, except in the cases provided for in 
Paragraph 4897 of the present code; 
8) [Or. 8] the punishment imposed includes treatment which cannot be 
provided in Estonia, regardless of Paragraph 50862 of the present code, in 
accordance with current law or on the basis of the organisation of the 
Estonian health care system; 
9) the judgment relates to a criminal offence which under the Estonian 
Criminal Code is considered to be a criminal offence which was committed 
completely or to a large or essential extent in the territory of Estonia or in a 
place equivalent to the territory of Estonia; or 
10) the duration of a probation measure or alternative sanction is less than six 
months; 
11) another judgment or an order terminating criminal proceedings has come 
into effect with respect to the person in connection with the offence which is 
the basis of the conviction.’ 
16 Karistusseadustik (Criminal Code) 
(RT 1 2001, 61, 364; RT 1, 29.06.2018, 66) 
‘Paragraph 73. Probation 
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(1) If the court, taking into consideration the circumstances of the commission 
of the criminal offence and the person of the offender, finds that service of 
the imprisonment imposed for a specified term or payment of the pecuniary 
penalty by the offender is unreasonable, it may order the sentence to be 
suspended on probation in full or in part with respect to the offender. The 
sentence may be suspended in full, unless otherwise provided for in the 
Special Part of the present code. If suspension of the sentence is ordered, the 
punishment imposed shall not be enforced in full or in part if the offender 
does not commit a new intentional offence within the probation period 
determined by the court, unless otherwise provided for in subparagraphs 4 
and 5 of the present paragraph. 
… 
(3) Probation shall be ordered for a period of one to five years. 
(4) If the offender commits a new criminal offence during the probation period 
for which he is sentenced to imprisonment, an aggregate penalty shall be 
imposed in accordance with the provisions of Paragraph 65(2) of this Code. 
If the new criminal offence was committed recklessly, the court may again 
suspend the aggregate penalty on probation. If the new criminal offence was 
committed intentionally, the court may again suspend the aggregate penalty 
on probation together with monitoring of behaviour by subjecting the 
offender to electronic surveillance as laid down in Paragraph 75(2)(9) or 
75(2)(10) of the present code. In the case of enforcement of the sentence of 
imprisonment, the court may replace imprisonment by community service as 
laid down in Paragraph 69 of the present code. 
(5) If the offender commits a new criminal offence during the probation period 
for which he is sentenced to a fine, an aggregate penalty shall be imposed in 
accordance with the provisions of Paragraph 65(2) of the present code. In 
such a case the court may decide not to enforce the penalty imposed for the 
previous criminal offence and to order separate enforcement of the fine 
imposed for the new offence.’ 
POSITION OF THE CHAMBER 
17 [Or. 9] Council Framework Decision 2008/947/JHA of 27 November 2008 
governs the application of the principle of mutual recognition to judgments and 
probation decisions with a view to the supervision of probation measures and 
alternative sanctions. The Framework Decision has been transposed into Estonian 
law. The relevant national provisions may be found in Section 7 of Part 8 of Title 
19 of the KrMS, that is to say, Paragraphs 50854 to 50868 of the KrMS. 
18 Doubt has arisen in the present criminal case as to whether the judgment of the 
court of the Republic of Latvia concerning A.P. may be recognised and execution 
of the judgment be supervised in accordance with Paragraphs 50854 to 50868 of the 
A.P. 
 
11 
KrMS and consistently with the aim of the Framework Decision. Both the 
Maakohus and the Ringkonnakohus answered that question in the affirmative, 
since there are no circumstances in accordance with Paragraph 50858 of the KrMS 
excluding or limiting recognition of the judgment, the sentenced person’s State of 
residence (as to which there is no doubt in A.P.’s case) is competent to react to a 
new offence committed during the probation period, and the list in 
Paragraph 50857 of the KrMS does not exclude supervision even in the case of a 
probation period with no monitoring of behaviour. In the opinion of the parties to 
the appeal proceedings, however, that cannot be done, because the Latvian court 
did not determine in its judgment any probation measures or alternative sanctions 
in accordance with Paragraph 50857 of the KrMS. The only condition of the 
probation order for A.P. is the requirement in Paragraph 55 of the Latvian 
Criminal Code that the sentenced person does not commit a new intentional 
offence during the three-year probation period. In Estonian law Paragraph 73(1) of 
the KarS makes it possible to order probation for a sentenced person in the same 
way. In such a case the person is not made subject to monitoring of behaviour and 
no other measures or alternative sanctions set out in the list in points 1 to 11 of 
Paragraph 50857 of the KrMS are applied to him. 
19 On the basis of the circumstances set out in the preceding paragraph, the Criminal 
Chamber of the Riigikohus entertains doubts as to whether, in the event of 
probation being ordered within the meaning of Paragraph 73(1) of the KarS, one 
may speak of a probation measure within the meaning of the Framework 
Decision. The sentenced person’s obligation under that provision of the Criminal 
Code — to avoid committing a new intentional offence during the probation 
period — does not correspond to any of the probation measures or alternative 
sanctions mentioned in Article 4(1)(a) to (k) of the Framework Decision. The list 
of probation measures in that article of the Framework Decision has been fully 
transposed into Estonian law. The State of Estonia has not given notice in 
accordance with Article 4(2) that it will introduce additional measures or other 
alternative sanctions (see http://data.consilium.europa.eu/doc/document/ST-6664-
2016-INIT/en/pdf). The obligation of the sentenced person under Paragraph 73(1) 
of the KarS is not reflected in national law, that is, in the list of probation 
measures and alterative sanctions defined in points 1 to 11 of Paragraph 50857 of 
the KrMS. At the same time the obligation derives from Paragraph 50855(3) of the 
KrMS that recognition and supervision of a judgment is permitted only in the case 
of the probation measures and alternative sanctions specified in Paragraph 50857 
of the KrMS. 
20 Having regard to the objectives stated in Article 1(1) of the Framework Decision, 
including social rehabilitation, it appears from the corresponding provisions of the 
Framework Decision and the Criminal Procedure Code that recognition of a 
judgment entails an obligation of the executing State to exercise supervision of 
probation measures or alternative sanctions (for instance, Article 7(1) and 
Article 8(1) of the Framework Decision; Paragraph 50855(3) and Paragraph 50857 
of the KrMS). It must be noted that the State does not carry out active supervision 
of the execution of the sentenced person’s obligation under Paragraph 73(1) of the 
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KarS. The sentenced person must guarantee performance of the obligation by 
behaving lawfully and avoiding commission of new unlawful acts. The State’s 
reaction to a breach of the obligation under that provision can only be to ensure 
that a penalty is imposed on offender in accordance with the law [Or. 10] in 
criminal proceedings in respect of the new offence. The court hearing the criminal 
case must, in accordance with the provisions of Paragraph 73(4) or (5) of the 
KarS, when passing sentence, sentence the person to an aggregate penalty for the 
combination of the new offence and the unserved sentence imposed in the earlier 
judgment. 
21 Not recognising the judgment entails a situation in which, in the event of the 
commission of a new intentional offence during the probation period, an aggregate 
penalty cannot be imposed on the offender under Estonian law, because one of the 
components is lacking, namely a recognised judgment of a Member State laying 
down the unserved sentence. That would infringe the objectives of sentencing, 
since no consequences would follow from a breach of the obligation laid down as 
a condition of the probation period. It is also questionable whether the situation 
described would be consistent with the objective of the Framework Decision. The 
Chamber therefore finds it necessary to clarify whether recognition of a judgment 
of a Member State and supervision of its execution are consistent with the 
Framework Decision if in that judgment the sentenced person has received a 
conditional sentence but no probation measures or alternative sanctions have been 
applied in relation to him, and instead the person’s only obligation under the law 
is to avoid committing a new intentional offence during the probation period. It 
depends on the answer to the request for a preliminary ruling whether the 
judgment delivered by the Latvian court on 24 January 2017 concerning A.P. may 
be recognised and its execution supervised. There is no position of the Court of 
Justice on the question under discussion. 
22 On the basis of the above, the Criminal Chamber of the Riigikohus considers it 
justified to ask the Court of Justice for a preliminary ruling under the second and 
third paragraphs of Article 267 of the Treaty on the Functioning of the European 
Union. […] 
[…] [stay of proceedings and signatures]