OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 6 February 2020 (1)
Case C‑2/19
A. P.
v
Riigiprokuratuur
(Request for a preliminary ruling from the Riigikohus (Supreme Court, Estonia))
(Preliminary reference — Framework Decision 2008/947/JHA — Supervision of probation and alternative sanctions — Recognition and supervision of a judgment imposing a suspended sentence but not imposing any probation measure)
I.      Introduction
1.        Framework Decision 2008/947 (2) (‘FD 2008/947’) introduces a specific mutual recognition mechanism for judgments or probation decisions imposing probation measures or alternative sanctions. It allows for responsibility for the supervision of probation measures or alternative sanctions to shift from the Member State that issued the sentence and imposed such measures to the Member State in which the sentenced person resides. Article 1 of FD 2008/947 describes the aim of that mechanism as ‘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’.
2.        In the present case, the Latvian authorities requested that the Estonian authorities apply that mechanism to a judgment imposing a sentence of imprisonment of 3 years, the execution of which was conditionally suspended if the sentenced person did not commit a new intentional crime within a period of 3 years. However, no specific probation measure was attached to that judgment.
3.        It is within that context that the Court is called upon to decide on the (material) scope of application of the mutual recognition mechanism in FD 2008/947: should that mechanism also apply to a judgment that contains only a suspended sentence and does not impose any probation measure?
II.    Legal framework
A.      EU law
4.        Recital 8 of FD 2008/947 states that ‘the aim of mutual recognition and supervision of suspended sentences, conditional sentences, alternative sanctions and decisions on conditional release is to enhance the prospects of the sentenced person’s being reintegrated into society, by enabling that person to preserve family, linguistic, cultural and other ties, but also to improve monitoring of compliance with probation measures and alternative sanctions, with a view to preventing recidivism, thus paying due regard to the protection of victims and the general public’.
5.        Recital 9 states that ‘there are several types of probation measures and alternative sanctions which are common among the Member States and which all Member States are in principle willing to supervise. The supervision of these types of measures and sanctions should be obligatory, subject to certain exceptions provided for in this Framework Decision. Member States may declare that, in addition, they are willing to supervise other types of probation measures and/or other types of alternative sanctions’.
6.        Article 1 of FD 2008/947 defines the objectives and scope of that instrument:
‘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);
as described and provided for in this Framework Decision.
…’
7.        Article 2 defines the following terms:
‘…
1.      “judgment” shall mean a final decision or order of a court of the issuing State, establishing that a natural person has committed a criminal offence and imposing:
(a)      a custodial sentence or measure involving deprivation of liberty, if a conditional release has been granted on the basis of that judgment or by a subsequent probation decision;
(b)      a suspended sentence;
(c)      a conditional sentence;
(d)      an alternative sanction;
2.      “suspended sentence” shall mean a custodial sentence or measure involving deprivation of liberty, the execution of which is conditionally suspended, wholly or in part, when the sentence is passed by imposing one or more probation measures. Such probation measures may be included in the judgment itself or determined in a separate probation decision taken by a competent authority;
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;
…
5.      “probation decision” shall mean a judgment or a final decision of a competent authority of the issuing State taken on the basis of such judgment:
(a)      granting a conditional release; or
(b)      imposing probation measures;
…
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;
…’
8.        Article 4(1) of FD 2008/947 lists, in subparagraphs (a) to (k), different types of probation measures or alternative sanctions to which the framework decision applies. Pursuant to Article 4(2), each Member State shall notify the General Secretariat of the Council which probation measures and alternative sanctions, apart from those referred to in Article 4(1), it is prepared to supervise.
9.        Article 14 concerns ‘jurisdiction to take all subsequent decisions and governing law’:
‘1.      The competent authority of the executing State shall have jurisdiction to take all subsequent decisions relating to a suspended sentence, conditional release, conditional sentence and alternative sanction, in particular in case of non-compliance with a probation measure or alternative sanction or if the sentenced person commits a new criminal offence.
Such subsequent decisions include notably:
(a)      the modification of obligations or instructions contained in the probation measure or alternative sanction, or the modification of the duration of the probation period;
(b)      the revocation of the suspension of the execution of the judgment or the revocation of the decision on conditional release; and
(c)      the imposition of a custodial sentence or measure involving deprivation of liberty in case of an alternative sanction or conditional sentence.
2.      The law of the executing State shall apply to decisions taken pursuant to paragraph 1 and to all subsequent consequences of the judgment including, where applicable, the enforcement and, if necessary, the adaptation of the custodial sentence or measure involving deprivation of liberty.
…’
B.      Estonian law
10.      Pursuant to Paragraph 50857 of the Kriminaalmenetluse seadustik (Estonian Code of Criminal Procedure), recognition of judgments and the exercise of supervision ordered pursuant to that paragraph is permitted only with respect to a list of probation measures or alternative sanctions corresponding to the list contained in Article 4(1) of FD 2008/947.
III. Facts, proceedings and the question referred
11.      By judgment of 24 January 2017 of the Rīgas pilsētas Latgales priekšpilsētas tiesa (Riga City Court, Latgale District, Latvia), the appellant in the main proceedings was found guilty under Paragraph 20(4) and Paragraph 195(3) of the Krimināllikums (Latvian Criminal Code) of assisting in laundering illegally obtained money on a large scale (‘the judgment at issue’). The appellant was sentenced to 3 years of imprisonment, the enforcement of which was suspended on the condition that he did not commit a new intentional offence during a probation period of 3 years.
12.      The Latvian authorities requested that the authorities of the Republic of Estonia recognise and execute the judgment at issue in Estonia.
13.      By an order of the Harju Maakohus (Court of First Instance, Harju, Estonia) of 16 February 2018, the judgment at issue was declared enforceable in Estonia. The Riigiprokurör (Public Prosecutor, Estonia) was of the opinion that the judgment at issue could not be recognised in Estonia due to a lack of legal basis. However, the Harju Maakohus (Court of First Instance, Harju) took a different view, considering that the fact that no probation measure or alternative sanction was imposed did not prevent the judgment at issue from being recognised. It referred to Article 14 of FD 2008/947, according to which the competent authority of the executing State has jurisdiction to take all subsequent decisions relating to a suspended sentence, inter alia, where the sentenced person commits a new offence within the probation period. Although no probation measure or alternative sanction had been imposed on the sentenced person, the judgment at issue was linked to a probation period that was still running.
14.      By order of the Tallinna Ringkonnakohus (Court of Appeal, Tallinn, Estonia) of 21 March 2018, the first instance order was upheld.
15.      The appellant in the main proceedings appealed against that order to the Riigikohus (Supreme Court, Estonia), the referring court, seeking that both orders be set aside and the judgment at issue not be recognised. In his view, the judgment at issue does not impose any of the measures mentioned in Paragraph 50857 of the Kriminaalmenetluse seadustik (Estonian Code of Criminal Procedure), which is exhaustive. If a judgment of another Member State handing down a conviction imposes no probation measure or alternative sanction from that list, the judgment cannot be recognised.
16.      The Public Prosecutor again agreed with that position and restated that there is no legal basis for the recognition of the judgment at issue.
17.      In those circumstances, the Riigikohus (Supreme Court) suspended the proceedings and referred the following question to the Court:
‘Is the recognition and supervision of execution of a judgment of a Member State compatible with [FD 2008/947] even where [by that judgment, the person has been conditionally sentenced] (3) without any additional obligations being imposed, so that the person’s only obligation is to avoid committing a new intentional offence during the probation period (this being a suspended sentence within the meaning of Paragraph 73 of the Estonian Criminal Code)?’
18.      Written observations were submitted by the Estonian Government, the Latvian Government, the Hungarian Government and the European Commission. All those parties, as well as the appellant in the main proceedings and the Polish Government, took part in the hearing on 14 November 2019.
IV.    Assessment
19.      This Opinion is structured as follows. I shall start with the admissibility of the question posed (A). I will then address the requisite standard of information and communication between the respective authorities of the issuing and the executing Member States (B). Finally, I will turn to the key question of the present case, explaining why, in my view, the judgment at issue does not fall under the scope of FD 2008/947 (C).
A.      Admissibility
20.      The Latvian Government suggests that the present preliminary question be declared inadmissible because, in its view, it is based on a misunderstanding of the scope of the judgment at issue. That government stresses that Latvian law allows for probation to be revoked not only if a new intentional
criminal offence is committed, but if any new criminal offence is committed. Furthermore, Latvian law also automatically imposes further obligations upon persons on probation. Thus, it is incorrect to consider that the only obligation imposed upon the sentenced person concerned is not to commit a new criminal offence.
21.      I take note of the clarifications provided by the Latvian Government. However, the fact remains that, in its order for reference, the referring court clearly states that no probation measure has been imposed in the judgment at issue. The same follows from point (j)(4) of the certificate, the standard form of which is set out in Annex I to FD 2008/947 (‘the Annex I Certificate’), which was filled in by the Latvian authorities in the present case and which forms part of the case file.
22.      In such factually clear circumstances, far from rebutting anything stated by the referring court, the further explanations provided by the Latvian Government hint at a different issue, namely, what ought to be the standard of information and communication between the issuing and executing authorities within the framework of FD 2008/947? Must all the information be contained in the Annex I Certificate? Should the authorities of the executing Member State be tasked with ascertaining for themselves whether probation measures, which are not explicitly mentioned in the Annex I Certificate, might in fact be imposed by operation of the legislation of the issuing State?
23.      Irrespective of whether this case is framed as concerning simply the standard of information and communication to be provided by the issuing authorities (B), or whether it is understood as enquiring about the material scope of application of FD 2008/947 (C), there is no doubt to my mind that both scenarios concern the interpretation of FD 2008/947 and the question referred is therefore admissible.
B.      The standard and clarity of information and communication
24.      Like other EU law instruments of judicial cooperation in criminal matters, the Annex I Certificate to FD 2008/947 contains no shortage of lines and boxes to be filled in by the issuing authorities. Amongst those is point (j), entitled ‘indications regarding the duration and nature of the probation measure(s) or alternative sanction(s)’. Point (j)(1) enquires as to the ‘total duration of the supervision of the probation measure(s) or alternative sanction(s)’. Point (j)(4) is concerned with the ‘nature of the probation measure(s) or alternative sanction(s)’, and contains a list of 12 possible boxes to be ticked, essentially reproducing the list in Article 4(1) of FD 2008/947 and adding a box reflecting Article 4(2). The competent authority of the issuing State is to tick one or more of the 12 boxes, depending on the type of probation measure or alternative sanction imposed (with the possibility of ticking multiple boxes being explicitly reserved).
25.      It follows from the case file of the present case that the competent authority of the issuing State did not check any box listed in point (j)(4) of the Annex I Certificate, while indicating in point (j)(1) that the duration of the supervision of the probation measure is 3 years.
26.      It was explained at the hearing by the Latvian Government that the way in which its competent authority proceeded in this case corresponds to the national practice according to which the probation measures imposed are indeed not included in the judgment but apply by operation of law. (4)
27.      The general question that arises in those circumstances is whether the given probation measure or alternative sanction can be defined elsewhere than in the judgment or probation decision. I would distinguish two layers to that issue.
28.      On the one hand, it is certainly for each Member State to structure its own system for the imposition of probation measures. At national level, those measures can be defined in the judgment itself, in a probation decision following the judgment, or even in a judgment that simply cross-refers to a specific provision of law that defines the probation measures applicable.
29.      On the other hand, for operational and practical reasons, that liberty is somewhat circumscribed if what is sought is the recognition and supervision of probation measures at European level. When recognition under FD 2008/947 is requested in another Member State, it must be clear from the documents transmitted (and especially from the Annex I Certificate) (5) what specific probation measures or alternative sanctions are to be supervised.
30.      I wish to stress that point unequivocally: all the necessary information must be contained in the Annex I Certificate. Judicial cooperation amongst the Member States is based on the idea of standardised and thus simplified communication. It is not the task of the authorities of the executing Member State to start investigating the operation of the national law of the issuing Member State, in order to identify or double-check the specific obligations that might have been imposed upon the sentenced person by operation of national law, but which the requesting authority omitted to mention.
31.      In that legal context, and while taking due account of the explanation provided by the Latvian Government about its legislation, it cannot be overlooked that the Estonian authorities have been left in something of an information vacuum when it comes to the question of what probation measure they are to supervise. As noted above, no specific box was ticked in point (j)(4) of the Annex I Certificate, which presumably corresponds to the fact that no specific probation measure has been imposed by the judgment at issue.
32.      In response to that issue, the Latvian Government refers to Article 15 of FD 2008/947, which states that ‘where and whenever it is felt appropriate, competent authorities of the issuing State and of the executing State may consult each other with a view to facilitating the smooth and efficient application of this Framework Decision’. The Latvian Government suggests that where the information on probation measures is lacking, the authorities of the executing State should make use of that provision. They should contact the authorities of the issuing State to enquire what supervision obligations should apply to the sentenced person.
33.      As with analogous provisions in other instruments of judicial cooperation in criminal matters, (6) the communication between the competent authorities is certainly crucial. (7) However, the applicable rules in individual instruments, and in particular the requisite level of information to be provided, should be interpreted in such a way as to minimise the need for any such additional communication. The need to trigger requests for additional information should remain the exception and not become the rule. (8)
34.      The authorities of the executing State should therefore be able to rely on the information provided in the Annex I Certificate to understand what measures need to be supervised. It is not their task to engage in elaborate discussion with the authorities of the issuing State in order to fill the (significant) gap in the information provided, (9) that information being in fact at the very heart of the operation of the framework decision.
35.      In the light of those elements, it may only be concluded that there are gaps in the approach taken by the Latvian authorities to the mutual recognition procedure and to the ‘completion’ of the Annex I Certificate in particular. It would appear that the Latvian Government acknowledged as much at the hearing.
36.      Thus, while, at a certain level, the present case could indeed be seen as one concerned with the adequate standard of information and communication within the context of FD 2008/947, the facts of the case remain as stated by the referring court. That court is faced with a request for recognition of a judgment imposing a suspended sentence without any probation measure having been defined in the documentation provided. Whether that court is, under those circumstances, still obliged to recognise the judgment at issue is the question to which I now turn.
C.      Is a suspended sentence a probation measure?
37.      The referring court asks, in essence, whether FD 2008/947 should apply to a judgment that imposes no specific measure of probation and where the only obligation that applies to the sentenced person is not to commit a new offence during the probation period of 3 years.
38.      In order to ascertain whether such a judgment, which I shall refer to as a simple suspended sentence for ease of reference, is to be recognised under FD 2008/947, I will examine the text (1), context (2) and purpose (3) of that instrument.
1.      Text
39.      To start with, the title of FD 2008/947 clearly indicates that that instrument introduces a recognition mechanism with a view to the supervision of probation measures and alternative sanctions. It is not a measure for the general recognition of any judgment.
40.      The various opening provisions of FD 2008/947 equally define the scope of its application in clear terms. They all link the judgment or probation decisions to be recognised to the fact that such a judgment or decision must impose a probation measure or an alternative sanction.
41.      Article 1(1) states that it ‘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 …’. (10)
42.      The same is confirmed by the text of Articles 2 and 4 of FD 2008/947.
43.      The definitions of ‘suspended’ and ‘conditional’ sentences under Article 2(2) and 2(3) of FD 2008/947 both presuppose the simultaneous adoption of one or several probation measures ‘included in the judgment itself or determined in a separate probation decision taken by a competent authority’.
44.      Pursuant to Article 2(7), the term ‘probation measures’ means 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.
45.      Furthermore, Article 4(1) contains a list of probation measures to which FD 2008/947 applies. The list in Article 4(1) may be extended by operation of Article 4(2), under which the Member States have to notify the General Secretariat of the Council of the probation measures and alternative sanctions, apart from those referred to in Article 4(1), they are prepared to supervise. (11) However, since Estonia made no such notification, the analysis in the present case focuses on the list in Article 4(1).
46.      The wording of all the abovementioned provisions makes one thing very clear: for FD 2008/947 to apply, there must be either a judgment or
a probation decision, imposing, at the same time, a probation measure or alternative sanction. Whereas the logical relationship within the first set (judgment or probation decision) and the second set (probation measure or alternative sanction) is or (disjunction), the overall relationship between the two sets is and (conjunction): for the overall statement to be true, both individual propositions must be true. Thus, based on the text of FD 2008/947, it is clearly not applicable to a judgment imposing a simple suspended sentence, since such a judgment contains neither a probation measure nor an alternative sanction.
47.      That interim conclusion opens up the next question: could the obligation not to commit a new criminal offence in itself be considered as a ‘probation measure’ within the meaning of FD 2008/947, as notably argued by the Commission?
48.      I consider that proposition hard to accept for at least three reasons.
49.      First, the obligation not to commit a new criminal offence is not included in the list in Article 4(1) of FD 2008/947. Yet, imposing a simple suspended sentence is a rather common phenomenon in a number of Member States, in particular in cases of less serious crimes committed by first time offenders. At the same time, it can be understood from recital 9 of FD 2008/947 that the types of probation measures and alternative sanctions listed in Article 4(1) are precisely ‘common among the Member States’ and that ‘all Member States are in principle willing to supervise [them]’. That is already striking: if the condition not to commit another crime within a given period were indeed considered a probation measure ‘common among the Member States’, is it possible that the EU legislature would have overlooked its existence, and would not have included it on the list in Article 4(1)?
50.      Second, the Commission suggests that the situation at hand could fall under subparagraph (d) of Article 4(1), which concerns ‘instructions relating to behaviour, residence, education and training, leisure activities, or containing limitations on or modalities of carrying out a professional activity’. (12)
51.      I find that suggestion unconvincing. An obligation as general and generic as not to commit a new criminal offence contrasts with the rather specific and concrete nature of the potential obligations listed in subparagraph (d) of Article 4(1) (residence, activities, training, and so on). That contrast is further underlined by recital 10 of FD 2008/947, which states that ‘the probation measures and alternative sanctions that are, in principle, obligatory to supervise include, inter alia, orders relating to behaviour (such as an obligation to stop the consumption of alcohol), residence (such as an obligation to change residence for reasons of domestic violence), education and training (such as an obligation to follow a “safe-driving course”), leisure activities (such as an obligation to cease playing or attending a certain sport) and limitations on or modalities of carrying out a professional activity (such as an obligation to seek a professional activity in a different working environment)’. (13)
52.      Moreover, I find the overall logic of the Commission’s argument problematic. Of course, at a certain level, the obligation not to commit a new criminal offence refers, in general terms, to certain behaviour. But by that logic, anything could be subsumed under any word appearing in Article 4(1), chopped out from that provision and its context. Why not then pick the word ‘obligation’, and subsume the ‘obligation not to commit a new crime within a given period’ under any subparagraph of Article 4(1) containing the word ‘obligation’?
53.      Third, I note that under Article 14(1) of FD 2008/947, ‘the competent authority of the executing State shall have jurisdiction to take all subsequent decisions relating to a suspended sentence, conditional release, conditional sentence and alternative sanction, in particular in case of non-compliance with a probation measure or alternative sanction or if the sentenced person commits a new criminal offence’. (14)
54.      That provision thus makes a clear distinction between failure to respect a probation measure, on the one hand, and committing a new criminal offence, on the other. That wording clearly presents an additional alternative different from the failure to respect a probation measure. In other words, if the obligation not to commit a new offence were, per se, a probation measure, then the distinction between non-compliance with a probation measure and the commission of a new offence would be superfluous.
55.      In the light of the textual elements discussed above, I am bound to conclude that FD 2008/947 does not apply to a judgment that imposes a simple suspended sentence but no probation measure. The obligation not to reoffend during the period of the suspension is, per se, not a probation measure.
56.      That conclusion is further confirmed by an examination of the internal and external context and logic of the instrument at issue.
2.      The internal and external context and logic
57.      FD 2008/947 replaced the corresponding provisions of the Council of Europe Convention of 30 November 1964 on the Supervision of Conditionally Sentenced or Conditionally Released Offenders. (15) The precise link between the two instruments is not further explained beyond the statements that, first, the earlier convention ‘ha[d] been ratified by only 12 Member States, with, in some cases, numerous reservations’ and, second, FD 2008/947 ‘provides for a more effective instrument because it is based on the principle of mutual recognition and all Member States participate’. (16)
58.      Thus, little can be drawn from the earlier convention and its scope in order to interpret the scope of FD 2008/947. Therefore, the relevant guidance should rather be sought from the internal logic of FD 2008/947 itself (a), and from the external context, namely the other legislative instruments of the European Union in the field of cooperation in criminal matters (b).
(a)    Internal logic
59.      As suggested, in essence, by the Polish Government, FD 2008/947 relies on the idea that by refraining from imposing a custodial sentence or measure involving deprivation of liberty, and by imposing, instead, a suspended (or conditional) sentence accompanied by a probation measure (or an alternative sanction), the sentenced person will have a better chance of reintegrating into society (which in turn contributes to the prevention of recidivism and the protection of society against criminal activity). That person will also have an opportunity to move to another Member State, while respect for the conditions attached to the conviction will be ensured by that State. That State will be the Member State of residence or, under further conditions, another Member State, such as if he or she is granted an employment contract in that Member State, if he or she is a family member of a lawful and ordinary resident person of that Member State, or if he or she intends to pursue study or training in that Member State. (17)
60.      In a nutshell, it would appear that the logic is to allow a person to move even if there are some strings attached. In such a case, the strings are supposed to move with the person. But if there are no specific strings, what is there to move? If there is no specific probation measure to move to another Member State, then making the person fall within FD 2008/947 in the executing Member State would mean that previously non-existent strings are created.
61.      That point is linked with a further structural argument. In the context of the application of FD 2008/947, communication and supervision are ensured by the authorities designated by the Member States under Article 3 of that framework decision. Those specifically designated authorities not only communicate with each other, but also ensure the connection to specialised and dedicated structures of institutions in the Member State that have the capacity and expertise to monitor compliance with the (exhaustive list of) probation measures defined in Article 4(1) of FD 2008/947 (or notified under Article 4(2)).
62.      By contrast, who would supervise the absence of the commission of new offence by a sentenced person, and how? Such a task normally pertains to all law enforcement authorities in charge of preventing, investigating and prosecuting criminal activity in a Member State. Thus, the ‘supervision’ of any such measure would be, by its very nature, diffuse and general, incumbent on all law enforcement authorities of the Member State, and not necessarily or only on a dedicated network of probation authorities.
63.      That institutional contrast further underlines the difference between the nature and logic of a specific probation measure, on the one hand, and a generic prohibition on committing a new crime attached to a suspended sentence, on the other.
(b)    External context
64.      The principle of mutual recognition, the ‘cornerstone’ of judicial cooperation in criminal matters within the European Union, (18) has been implemented at EU level in respect of selected aspects of enforcement of criminal law. Two further instruments are of relevance for the interpretation of FD 2008/947 in the context of the present case: Framework Decision 2008/675 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings (19) (‘FD 2008/675’) and Framework Decision 2008/909 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 (20) (‘FD 2008/909’).
65.      FD 2008/909 and FD 2008/947 aim at making the principle of mutual recognition applicable, on the one hand, to criminal judgments imposing a custodial sentence and, on the other hand, to judgments imposing probation measures or alternative sanctions. While the first instrument thus concerns situations in which sentenced persons are deprived of liberty, the second concerns situations in which they are not, but they are subject to further measures, be they probation measures or alternative sanctions.
66.      FD 2008/675 represents yet another tool which, however, differs from the others as to its nature and function, as the Commission noted at the hearing. It does not institute a mechanism of recognition similar to the one put in place by the two other framework decisions. It does not transfer any jurisdiction over the person concerned or conviction from one Member State to another. The key provision of FD 2008/675, Article 3(1), requires the Member States to draw the equivalent consequences from previous convictions pronounced in other Member States as those drawn from previous domestic convictions. For that purpose, that instrument does not distinguish between sentences involving or not involving deprivation of liberty, or between sentences the execution of which has or has not been suspended. All criminal convictions are covered.
67.      In contrast to the latter framework decision, FD 2008/947 transfers the jurisdiction
over the execution of a sentence pronounced in a different Member State. FD 2008/947 makes it possible, especially under the conditions in Article 14 thereof, for the authorities of the executing Member State to change the modalities of the sentence: a Member State becomes entitled to alter or adapt a final criminal conviction of another Member State. That, however, constitutes an exception to the overall and general default position of the territoriality of criminal laws. That appears to be confirmed by a comparison with Article 3(3) of FD 2008/675, under which ‘the taking into account of previous convictions handed down in other Member States … shall not have the effect of interfering with, revoking or reviewing previous convictions or any decision relating to their execution by the Member State conducting the new proceedings’.
68.      In Beshkov, the Court acknowledged that fact, stating that ‘that provision … excludes any review of those [previous] convictions, which must therefore be taken into account in the terms in which they were handed down’. (21) FD 2008/675 thus precludes a Member State, when taking into account previous convictions, from changing the modalities of execution of the sentence imposed in another Member State. (22)
69.      I draw two inferences from that legislative context.
70.      First, if it were concluded that FD 2008/947 does not apply to a simple suspended sentence, that would of course not mean that such a judicial decision cannot be taken into account in another Member State. It would simply happen under a different instrument than FD 2008/947. Like the Commission, the Hungarian and Polish Governments note, in essence, that the present scenario remains captured by FD 2008/675. In other words, should the person concerned commit a new criminal offence in another Member State (in the appellant’s case, in a State other than Latvia), his previous conviction pronounced by the judgment at issue could be taken into account by the respective authorities under the conditions defined in FD 2008/675.
71.      Second, it follows from the legislative context in this area of law that the system of FD 2008/947, in particular Article 14 thereof, provides for the exception to the otherwise applicable rules. But then, as with any exception, should the scope of the exception not be interpreted restrictively? Should such transfers of jurisdiction in criminal matters not happen only in cases that are clearly and unequivocally provided for by the EU legislature? The mutual relationship between FD 2008/675 and FD 2008/947 constitutes, in my view, yet another reason to interpret the latter instrument with caution and in a restrictive manner.
72.      I naturally admit that the consequences flowing from FD 2008/675 are potentially of a lesser ‘normative intensity’ than those arising under FD 2008/947. Indeed, and as the Court essentially observed in Beshkov, the ‘taking into account’ of a previous conviction cannot affect and alter the modalities of the execution of the sanction previously imposed in a different Member State. (23) I also admit that the conclusion as to the non-applicability of FD 2008/947 to a simple suspended sentence means that no jurisdiction can be transferred to the State of residence of the person concerned by that sentence as regards its execution. But such a consequence clearly follows from the currently applicable legislative regime of the EU, at least as far as, in my view, the text and the context of those measures are concerned. The last remaining element is that of purpose: would an extensive interpretation of the scope of FD 2008/947 make it possible for its purpose to be advanced in some way?
3.      Purpose
73.      Pursuant to Article 1(1), FD 2008/947 aims at (i) ‘facilitating the social rehabilitation of sentenced persons’, (ii) ‘improving the protection of victims and of the general public’, and (iii) ‘facilitating the application of suitable probation measures and alternative sanctions, in case of offenders who do not live in the State of conviction’.
74.      Recital 8 develops objective (i) by adding that FD 2008/947 ‘enhance[s] the prospects of the sentenced person’s being reintegrated into society, by enabling that person to preserve family, linguistic, cultural and other ties’.
75.      Concerning objective (ii), the same recital observes, in principle, that by ‘improv[ing] monitoring of compliance with probation measures and alternative sanctions, with a view to preventing recidivism, [it] thus [also pays] due regard to the protection of victims and the general public’.
76.      As regards objective (iii), according to the Commission implementation report, ‘proper implementation of [FD 2008/947] will encourage judges, who can be confident that a person will be properly supervised in another Member State, to impose an alternative sanction to be executed abroad instead of a prison sentence’. (24) In the longer term, ‘as Member States have to provide for at least the probation measures and alternative sanctions as mentioned in Article 4(1) of [FD 2008/947], a positive side effect will be the promotion and approximation of alternatives to detention in the different Member States’. (25)
77.      Considering the three objectives identified above, could they be advanced in any way by an extensive interpretation of the scope of FD 2008/947, as suggested by the Commission and by the Estonian Government?
78.      That could hardly be the case as regards the first objective, concerning the social reintegration of convicted persons. The recognition of the judgment at issue would create no active obligation of supervision of the appellant, as the Estonian Government admits and as is equally noted in the order for reference. (26) The resulting situation would in no way contribute to the social reintegration of the appellant. His situation in this respect would be exactly the same as if the judgment at issue were not recognised, as it does not follow from the case file that the judgment at issue would limit his ability to leave Latvia in any way.
79.      An extensive interpretation of FD 2008/947 also does not seem to contribute to the third objective, concerning ‘facilitating the application of suitable probation measures and alternative sanctions’, as no such measures were imposed in the present case. Should a simple suspended sentence be considered a ‘probation measure’, I fail to see how a judge would be more encouraged to impose a simple suspended sentence rather than a custodial sentence in a situation in which he or she had no intention to impose any further limitations on the convicted person’s conduct in the form of specific probation measures anyway.
80.      The situation is arguably less straightforward as regards the second objective, concerning ‘improving the protection of victims and of the general public’. It could indeed be suggested that the recognition of the judgment at issue would make it possible for the Estonian authorities to revoke the suspension imposed by the judgment at issue should the appellant commit a new criminal offence, and then to immediately aggregate the previous sentence with the one to be imposed for the new criminal offence. That could arguably be seen as a measure protecting victims and the general public as the appellant would be deprived of liberty, and likely for a longer time than if the imposition of an aggregated sentence were not possible.
81.      Certainly, there are differing views on the role of criminal punishment in society and on how society as a whole can best be protected from criminal activity. However, the idea of simply deploying harsher sanctions, without taking into account the interest in enhancing the social reintegration of the persons concerned, clearly accentuates the aspect of retribution that brings about immediate consequences for the convicted person as well as immediate (yet somewhat short-term) protection of society, at the expense of social reintegration that favours the long-term effects for both the convicted person and other members of society. (27)
82.      The Commission seems to interpret Article 14(1) of FD 2008/947 through that logic favouring enforcement, stating that it would be unreasonable if the fact of committing a new offence did not lead to revocation of the suspension.
83.      I acknowledge that, on its face, the mechanism in Article 14 conferring jurisdiction upon the executing State seems to lend itself to the situation at hand. In other words, should it be concluded that the obligation not to commit a new criminal offence qualifies as a probation measure, then the mechanism in Article 14 provides the authorities of the executing State with the necessary tool to respond, should that obligation be contravened.
84.      However, that argument is a peculiar example of backward reasoning, putting the overall purpose and logic of FD 2008/947 off balance.
85.      First, it might be pointed out that such reasoning proceeds from a potential negative consequence that has not yet materialised in the present case: if the sentenced person reoffends. There is no evidence in the case file that the appellant has reoffended. Moreover, in general, the entire argument builds on the assumption that, once sentenced, such persons are likely to become recidivists. I shall leave aside the degree of moral encouragement and support that such an argument lends to those with suspended or conditional sentences and note instead that, by the same token, not much trust is expressed in the ability of the EU acts in question to contribute effectively to the aim of social rehabilitation and reintegration.
86.      Second, the scope of application of an EU act should normally be determined by the relevant provision defining that scope, and not by the fact that part of the mechanism created by that instrument could also be used for something else.
87.      Third, the commission of a new criminal offence is likely to have repercussions for persons on probation even if a specific probation measure, such as not to consume alcohol, has not been contravened. Sentenced persons on probation, to whom a specific probation measure has been applied, are likely to be under the obligation not to commit a new criminal offence, in the Member State in question as well as abroad. If they do, their suspension period may be revoked, depending on the respective legal system and the individual circumstances of the case.
88.      Fourth, the extensive interpretation of FD 2008/947 suggested by the Commission could arguably further the ‘retributive’ objective of criminal punishment. But that ignores the other aspects that are specifically weighed against one another through the threefold purpose of FD 2008/947 set out in Article 1(1) and in point 73 of this Opinion. The framework decision is designed to promote the application of probation measures or alternative sanctions as they help to avoid imposing custodial sentences, thereby improving the chances of convicted persons reintegrating into society.
89.      The three objectives pursued by FD 2008/947, as expressed in Article 1(1), thus come together. FD 2008/947 is intended to strike a balance between them. I do not see any convincing reason why more weight should be given to just one of those objectives, or rather to just one element pertaining to one of them, to arrive at a broad interpretation of an instrument of EU law that pursues all of them.
90.      In sum, I see little reason for proposing an unduly extensive interpretation of the scope of FD 2008/947, which goes against the clear text, logic and system of that instrument, while seeking to advance just one very particular element of one of its objectives, at the expense (or even to the detriment) of its other objectives.
91.      As a closing remark, I have tried repeatedly to suggest that, even in EU law, where the text under examination is clear, there is less need to engage in an assessment of the objectives of the act under consideration. (28) I might only add that the same should be true, a fortiori, in cases pertaining to the area of criminal law broadly defined, in which the broad or narrow interpretation of the instrument in question will have criminal law repercussions on the situation of the individuals concerned.
92.      There is no denying, in this context, that a broad interpretation of the scope of application of FD 2008/947 is likely to worsen the situation of the sentenced person in the present case (who has not reoffended). I take due note of the helpful clarifications provided by the referring court, linked to the issue of the proportionality of sanctions, expressed, under EU law, in Article 49(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’). According to the explanation provided in the order for reference, the recognition of the judgment at issue would make it possible to aggregate the previously imposed sanction with any new sanction. Conversely, without recognition, no aggregation is possible. I understand that the sentenced person concerned would then have to serve two sentences successively: the one for the new offence committed hypothetically in Estonia and the one imposed previously in Latvia.
93.      The problem with this argument, like the one advanced by the Commission, (29) is its hypothetical nature in the context of the present case. Again, the appellant has not reoffended. The laudable wish to prevent the imposition of what would be considered by the given State as excessive, cannot, in my view, change and extend the scope of FD 2008/947, the objectives of which do not concern the issue of sentencing in cases of recidivism.
94.      Therefore, it cannot be suggested that the position of a person who has not reoffended should be altered based on the fact that a person who had reoffended would perhaps be better off if Article 14 of FD 2008/947 applied to his or her situation. The sentenced person in this case, who has not reoffended, could be said to be made worse off by the mere fact of the suspended sentence being recognised in Estonia, thus bringing him into a regime that normally would not be applicable to him. He would thus potentially be subjected to any obligations that might apply in that State and would have a criminal record in that State, which would otherwise not be the case. That is why, I would assume, the appellant in the present case has contested the inclusion of his simple suspended sentence under the mechanism of FD 2008/947 before three instances of the Estonian courts.
95.      Having clarified that element, it might only be recalled that the interpretation of criminal law measures should be governed by the principle of legality, enshrined, under EU law, in Article 49(1) of the Charter. By that, I do not mean the narrow conception of legality of criminal sanctions (nullum crimen, nulla poena sine lege), but the broader issue of certainty and foreseeability of the consequences that follow from a criminal conviction. (30) In other words, it seems that if the judgment at issue is recognised as falling under the scope of FD 2008/947, the scope of criminal law will be stretched to the detriment of the sentenced person. That, in itself, is yet another argument against the extensive interpretation of FD 2008/947.
96.      I conclude that the contextual and purposive analysis conducted above does not affect the conclusion that I had already reached based on an examination of the text, logic and system of FD 2008/947. That instrument does not apply to a judgment that imposes a simple suspended sentence without defining any probation measure within the meaning of FD 2008/947 and where the only obligation of the sentenced person concerned is to avoid committing a new criminal offence during the probation period.
V.      Conclusion
97.      I suggest that the Court reply as follows to the question referred by the Riigikohus (Supreme Court, Estonia):
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 does not apply to a judgment that imposes a suspended sentence without imposing any probation measure within the meaning of that framework decision and where the only obligation of the sentenced person is to avoid committing a new criminal offence during the probation period.
1      Original language: English.
2      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), as amended.
3      My correction of the English translation of the question referred that was published in the Official Journal (OJ 2019 C 93, p. 34).
4      The Latvian Government refers in this respect to subparagraphs 1, 2 and 9 of Paragraph 55 of the Krimināllikums (Latvian Criminal Code), as well as to Paragraph 155 of the Latvijas Sodu izpildes kodekss (Sentence Execution Code of Latvia).
5      Under Article 6(1) of FD 2008/947, where the competent authority of the issuing State decides to make use of the mechanism put in place by that framework decision, it is to forward to the competent authority of the executing State the judgment or probation decision concerned, together with the Annex I Certificate.
6      Notably Article 15(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24).
7      See, on the empowerment of executing judicial authorities in this regard, judgments of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628, paragraph 91), and of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629, paragraph 103).
8      See by analogy, judgment of 23 January 2018, Piotrowski (C‑367/16, EU:C:2018:27, paragraph 61), and also my Opinion in X (European arrest warrant against a singer) (C‑717/18, EU:C:2019:1011, point 80).
9      On a side note, it might be added that the national law provisions invoked by the Latvian Government (referred to above in footnote 4), from which the probation measures are supposed to clearly flow by operation of national legislation, add somewhat to that uncertainty. Paragraph 155 of the Latvijas Sodu izpildes kodekss (Sentence Execution Code of Latvia) lists six different probation measures. A number of them are, however, rather open-ended and general. In order for them to apply to a sentenced person, a decision of a judge or probation officer would be required in order to tailor them to the specific case. However, absent any such decision concerning the nature and potentially the length of the measure and its supervision, is a judge in the executing Member State supposed to simply pick and choose from that list?
10      Emphasis on the logical connectors added.
11      Article 6(4) of FD 2008/947 states that ‘apart from the measures and sanctions referred to in Article 4(1), the certificate referred to in paragraph 1 of this Article shall include only such measures or sanctions as notified by the executing State in accordance with Article 4(2)’.
12      Emphasis added.
13      Emphasis added.
14      Emphasis added.
15      See Article 23(1) of FD 2008/947.
16      Recital 4 of FD 2008/947.
17      See recital 14 and Article 5(2) of FD 2008/947.
18      See, for instance, recital 2 of FD 2008/947, and judgment of 11 January 2017, Grundza (C‑289/15, EU:C:2017:4, paragraph 41 and the case-law cited).
19      Council Framework Decision 2008/675/JHA of 24 July 2008 (OJ 2008 L 220, p. 32).
20      Council Framework Decision 2008/909/JHA of 27 November 2008 (OJ 2008  L 327, p. 27).
21      See judgment of 21 September 2017, Beshkov (C‑171/16, EU:C:2017:710, paragraph 44).
22      That said, it remains open to discussion to what extent the conclusions reached by the Court in that judgment were premised on the specific factual circumstance that the first-in-time sentence in question had been served in its entirety before the sentenced person concerned applied for its aggregation with a second sentence. See judgment of 21 September 2017, Beshkov (C‑171/16, EU:C:2017:710, in particular comparing paragraphs 46 and 47).
23      See above, points 67 and 68.
24      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), p. 5.
25      Ibidem, pp. 8 and 9.
26      The referring court explains that the Estonian authorities do not carry out active supervision of the execution of the obligation on the sentenced person under Paragraph 73(1) of the Karistusseadustik (Estonian Criminal Code), which concerns the imposition of a conditional sentence without the application of supervisory measures. The State’s response to non-compliance with the obligation not to commit a new criminal offence can only be to ensure that a penalty is imposed in respect of the new offence.
27      See, on sentencing law more generally, Opinion of Advocate General Bot in Beshkov (C‑171/16, EU:C:2017:386, point 46 et seq.).
28      See, to that effect, for example, my Opinion in Commission v Germany (C‑220/15, EU:C:2016:534, point 35).
29      Above, points 82 to 90 of this Opinion.
30      See, on that issue, my Opinion in X (European arrest warrant against a singer) (C‑717/18, EU:C:2019:1011, points 92 to 94 and the case-law cited).