Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 3 June 2021( )

Case C‑919/19

Generálna prokuratura Slovenskej republiky

v

X.Y.

(Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic, Slovakia))

(Reference for a preliminary ruling – Mutual recognition of judgments in criminal matters – Framework Decision 2008/909/JHA – Social rehabilitation of the sentenced person – Execution of the sentence in the Member State of which the sentenced person is a national and where he or she lives)





I. Introduction

1. The appellant in the main proceedings is a Slovak national who was convicted in the Czech Republic for the aggravated crime of robbery. He was sentenced to an eight-year custodial sentence, which he is currently serving in that Member State.

2. The competent Czech court requested that the judgment against the appellant be recognised and that the sentence be served in Slovakia under Framework Decision 2008/909/JHA. ( ) The recognition of the judgment against the appellant was granted at first instance in Slovakia.

3. Nevertheless, seised by the appellant, the Najvyšší súd Slovenskej Republiky (Supreme Court of the Slovak Republic, Slovakia; the referring court), harbours doubts about several elements of interpretation of Framework Decision 2008/909. In particular, that court wonders what exactly the concept of sentenced person’s ‘living’ in the territory of the executing Member State, which is one of the conditions necessary for a transfer to take place, in fact entails, and what exactly are the roles assigned to the authorities of the issuing and executing States in assessing the possibility of social rehabilitation of the sentenced person.

II. Legal framework

A. EU law

4. Recital 9 of Framework Decision 2008/909 states that ‘enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State’.

5. Under recital 10 of Framework Decision 2008/909, ‘the opinion of the sentenced person referred to in Article 6(3) may be useful mainly in applying Article 4(4). The words “in particular” are intended to cover also cases where the opinion of the sentenced person would include information which might be of relevance in relation to the grounds for non-recognition and non-enforcement. Provisions of Articles 4(4) and 6(3) do not constitute a ground for refusal on social rehabilitation’.

6. In accordance with recital 17 of Framework Decision 2008/909, where in that framework decision ‘reference is made to the State in which the sentenced person “lives”, this indicates the place to which that person is attached based on habitual residence and on elements such as family, social or professional ties’.

7. Under Article 3(1) of Framework Decision 2008/909, ‘the purpose of [that instrument] is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence’.

8. Article 4 of Framework Decision 2008/909 is entitled ‘Criteria for forwarding a judgment and a certificate to another Member State’. Its paragraph 1 reads as follows:

‘Provided that the sentenced person is in the issuing State or in the executing State, and provided that this person has given his or her consent where required under Article 6, a judgment, together with the certificate for which the standard form is given in Annex I, may be forwarded to one of the following Member States:

(a) the Member State of nationality of the sentenced person in which he or she lives; or

(b) the Member State of nationality, to which, while not being the Member State where he or she lives, the sentenced person will be deported, once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure taken consequential to the judgment; or

(c) any Member State other than a Member State referred to in (a) or (b), the competent authority of which consents to the forwarding of the judgment and the certificate to that Member State.’

9. Pursuant to Article 4(2) of Framework Decision 2008/909, ‘the forwarding of the judgment and the certificate may take place where the competent authority of the issuing State, where appropriate after consultations between the competent authorities of the issuing and the executing States, is satisfied that the enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person’.

10. Article 4(3) of Framework Decision 2008/909 provides that ‘before forwarding the judgment and the certificate, the competent authority of the issuing State may consult, by any appropriate means, the competent authority of the executing State. Consultation shall be obligatory in the cases referred to in paragraph 1(c). In such cases the competent authority of the executing State shall promptly inform the issuing State of its decision whether or not to consent to the forwarding of the judgment’.

11. Pursuant to Article 4(4) of Framework Decision 2008/909, ‘during such consultation, the competent authority of the executing State may present the competent authority of the issuing State with a reasoned opinion, that enforcement of the sentence in the executing State would not serve the purpose of facilitating the social rehabilitation and successful reintegration of the sentenced person into society.

Where there has been no consultation, such an opinion may be presented without delay after the transmission of the judgment and the certificate. The competent authority of the issuing State shall consider such opinion and decide whether to withdraw the certificate or not’.

12. Article 6 of Framework Decision 2008/909 is entitled ‘Opinion and notification of the sentenced person’. Its first two paragraphs read as follows:

‘1. Without prejudice to paragraph 2, a judgment together with a certificate may be forwarded to the executing State for the purpose of its recognition and enforcement of the sentence only with the consent of the sentenced person in accordance with the law of the issuing State.

2. The consent of the sentenced person shall not be required where the judgment together with the certificate is forwarded:

(a) to the Member State of nationality in which the sentenced person lives;

…’

13. Under Article 6(3) of Framework Decision 2008/909, ‘in all cases where the sentenced person is still in the issuing State, he or she is to be given an opportunity to state his or her opinion orally or in writing. …The opinion of the sentenced person shall be taken into account when deciding the issue of forwarding the judgement together with the certificate. Where the person has availed him or herself of the opportunity provided in this paragraph, the opinion of the sentenced person shall be forwarded to the executing State, in particular with a view to Article 4(4). If the sentenced person stated his or her opinion orally, the issuing State shall ensure that the written record of such statement is available to executing State’.

14. Article 8(1) of Framework Decision 2008/909 provides that ‘the competent authority of the executing State shall recognise a judgment which has been forwarded in accordance with Article 4 and following the procedure under Article 5, and shall forthwith take all the necessary measures for the enforcement of the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided for in Article 9’.

15. Under Article 9(1)(b) of Framework Decision 2008/909, the competent authority of the executing State may refuse to recognise the judgment and enforce the sentence, if ‘the criteria set forth in Article 4(1) are not met’.

16. Pursuant to Article 9(3) of Framework Decision 2008/909, ‘in the cases referred to in paragraph 1(a), (b), (c), (i), (k) and (l), before deciding not to recognise the judgment and enforce the sentence, the competent authority of the executing State shall consult the competent authority of the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary additional information without delay’.

17. In accordance with the standard form certificate, set out in Annex I to Framework Decision 2008/909 (‘the Annex I Certificate’), it is necessary under section (d), point 4, to provide any ‘other relevant information about the sentenced person’s family, social or professional ties to the executing State’.

B. National law

18. Under Paragraph 4(1)(a) of Zákon č. 549/2011 Z.z. o uznávaní a výkone rozhodnutí, ktorými sa ukladá trestná sankcia spojená s odňatím slobody v Európskej únii a o zmene a doplnení zákona č. 221/2006 Z.z. o výkone väzby (Law No 549/2011 on the recognition and execution of judgments imposing custodial sentence in the European Union amending and consolidating Law No 221/2006 on custodial sentences) (‘Law No 549/2011’), it is possible to recognise and enforce a decision in Slovakia if the fact or deed on the basis of which the decision was issued also constitutes an offence under Slovak law, subject to the provisions of Paragraph 4(2) and (3), and if the sentenced person is a Slovak citizen who habitually resides in Slovakia or has in its territory proven family, social or professional links which may contribute to facilitating his or her rehabilitation in the course of the enforcement of the custodial sentence in Slovakia.

19. Paragraph 3(g) of Law No 549/2011 states that ‘habitual residence’ means permanent residence or temporary residence.

20. Pursuant to Paragraph 2(2) of Zákon č. 253/1998 Z. z. o hlásení pobytu občanov Slovenskej republiky a registri obyvateľov Slovenskej republiky (Law No 253/1998 on declaring the residence of Slovak citizens and the register of Slovak citizens) (‘the Law on declaring residence’), ‘residence’ for the purposes of keeping records of citizens’ residence is interpreted as permanent residence and temporary residence.

21. According to the referring court, any finding of either the permanent or the temporary residence of a Slovak citizen in Slovakia, which for the purposes of Law No 549/2011 constitute habitual residence, is merely for record-keeping purposes. Neither permanent nor temporary residence is conditional upon the fact that the citizen must actually live in Slovakia and thus have family, social, professional or other links to that State.

22. The referring court explains that, although the law imposes on every citizen who is not permanently residing abroad the obligation to declare their permanent residence, together with the obligation to declare its termination if they are preparing to travel abroad with the intention of living there permanently, there is no penalty set out therein for failure to fulfil those requirements.

23. The referring court also explains that, under Paragraph 4(1)(a) of Law No 549/2011, decisions of the issuing State on the imposition of a custodial sentence may therefore be recognised and enforced also where the sentenced Slovak citizen does not in fact live in Slovakia (but lives in the issuing State), and yet has a recorded permanent or temporary residence in Slovakia.

24. The referring court notes that the condition as to the existence of proven family, social or professional links which might facilitate the social rehabilitation of the sentenced person is thus laid down in the alternative and, under Slovak law, must be satisfied only if the Slovak citizen does not have his or her habitual, that is to say permanent or temporary, residence in Slovakia.

25. Finally, the referring court added that there would be, as from 1 January 2020, a change to Slovak national legislation which would make it possible, in accordance with the new wording of Paragraph 4(1)(a) of Law No 549/2011, to recognise in Slovakia the judgment imposing the custodial sentence where the sentenced person is a national thereof and has his or her place of habitual residence in its territory, which will no longer be defined as his or her permanent or temporary place of residence. However, under Paragraph 32 of that law, proceedings initiated before 1 January 2020 will be completed pursuant to that law in the version in force until 31 December 2019.

III. Facts, national proceedings and the questions referred

26. The appellant in the main proceedings is a Slovak national who was convicted in the Czech Republic for the aggravated crime of robbery. By judgment of 18 July 2017, the Krajský soud v Plzni (Regional Court, Plzeň, Czech Republic) sentenced him to a ten-year custodial sentence. That sentence was amended by judgment of 20 September 2017 of the Vrchní soud v Praze (High Court, Prague, Czech Republic) to an eight-year custodial sentence. At present, the appellant is serving that sentence in the Czech Republic.

27. On 12 February 2018, the Krajský sud v Košiciach (Regional Court, Košice, Slovakia) received the Annex I Certificate issued by the Krajský soud v Plzni (Regional Court, Plzeň). That certificate was sent, together with the abovementioned judgments, to Slovakia as the executing State because the competent authority of the issuing State was satisfied that the enforcement of the custodial sentence in that Member State would serve the purpose of facilitating the appellant’s social rehabilitation. The competent authority of the issuing State was also of the view that Slovakia is the State of which the appellant is a national and in which he lives.

28. The Annex I Certificate states, in its section (d), point 4, that the appellant arrived in the Czech Republic with his wife five months prior to committing the crime at issue. After having worked briefly in Plzeň, his employment was terminated. He was thus unemployed at the point in time when the crime was committed. He initially stayed in a hostel before renting a flat with his family. The Krajský soud v Plzni (Regional Court, Plzeň) also notes that the social rehabilitation of the appellant will be better achieved in Slovakia since he is a national of that Member State, has lived in Slovakia his entire life, and his place of permanent residence is registered there.

29. Moreover, section (l) of the Annex I Certificate states that the appellant has no place of habitual residence in the Czech Republic. Before committing the crime at issue, he lived there for a very short time only during which he established no professional, cultural or social links. The fact that the appellant’s children reside in the territory of the Czech Republic does not affect the finding that the appellant’s habitual residence is not in the Czech Republic. The children are also Slovak nationals and may return to Slovakia at any time.

30. By judgment of 17 May 2018, on the basis of the Annex I Certificate, the Krajský súd v Košiciach (Regional Court, Košice) decided to recognise and enforce the judgment.

31. The appellant brought an appeal against that decision before the Najvyšší súd Slovenskej Republiky (Supreme Court of the Slovak Republic), the referring court. He stated that his entire family (spouse, two daughters, son-in-law and grandchild) lives in Plzeň, and that the family members visit him every month while he is serving his sentence. He has no contact with his son or stepbrother who live in Slovakia. He maintains that he has no family ties or close friends in Slovakia and, if he were to be transferred to that Member State, he would lose contact with his family. The appellant thus wishes to serve his sentence in the Czech Republic.

32. The referring court observes that, according to the register of inhabitants of the Slovak Republic, the appellant is a Slovak citizen. Since 1998, he has been registered as a permanent resident in a municipality in Slovakia. However, according to the report of 5 March 2018, established by the competent police authority of the executing Member State, the appellant has not been seen in the municipality, has had no contact with anyone there, and is believed to have been with his family in France for about five years. The report of the mayor of the municipality states that only the appellant’s son resides at the appellant’s registered address, together with his grandmother. The grandmother stated that she believes the appellant’s family to live in the Czech Republic, but does not know where since they are not in contact.

33. The referring court considers that the purpose of the social rehabilitation pursued by Framework Decision 2008/909, and thus the criteria set out in its Article 4(1)(a), will be satisfied only when the sentenced person possesses in the Member State of which he or she is a national such family, linguistic, cultural, social, economic or professional links which make it reasonable to assume that the carrying out of the sentence in that State will indeed improve the chances of achieving that purpose. That court thus considers that Paragraph 4(1)(a) of Law No 549/2011, pursuant to which a foreign judgment imposing a custodial sentence on a Slovak citizen may be recognised and enforced based on a mere formally recorded permanent or temporary residence, without concurrent family, social, professional or other links, does not ensure the full effectiveness of Framework Decision 2008/909.

34. In those circumstances, the Najvyšší súd Slovenskej Republiky (Supreme Court of the Slovak Republic) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘[(1)] Is Article 4(1)(a) of [Framework Decision 2008/909] to be interpreted to the effect that the criteria set out therein are satisfied only when the sentenced person has, in the Member State of his nationality, such family, social, professional or other links that it is possible to reasonably assume from those links that enforcement in that State of the sentence may facilitate his social rehabilitation, and as therefore precluding national legislation such as Paragraph 4(1)(a) of [Law No 549/2011] (in the version in force until 31 December 2019) which, in such cases, enables a judgment to be recognised and enforced in the event of merely formally recorded habitual residence in the executing State, regardless of whether the sentenced person has concrete links in that State which could enhance his social rehabilitation?

[(2)] If that question is answered in the affirmative, is Article 4(2) of [Framework Decision 2008/909] to be interpreted to the effect that the competent authority of the issuing State is required also in the situation provided for in Article 4(1)(a) of [Framework Decision 2008/909] to satisfy itself, even before forwarding the judgment and certificate, that enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person and is, furthermore, required to provide the information gathered for that purpose in section (d), point 4, of the certificate specifically, where the sentenced person claims in the statement of his opinion provided for in Article 6(3) of [Framework Decision 2008/909] that he has concrete family, social or professional links in the issuing State?

[(3)] If question 1 is answered in the affirmative, must Article 9(1)(b) of the [Framework Decision 2008/909] be interpreted to the effect that where, in the situation set out in Article 4(1)(a) of [Framework Decision 2008/909], despite the consultation under Article 4(1)(3) of [Framework Decision 2008/909] and any provision of other necessary information, it is not proven that there are such family, social or professional links from which it could reasonably be assumed that the enforcement in the executing State of the sentence may facilitate the social rehabilitation of the sentenced person, there is still a ground for refusing to recognise and enforce the judgment?’

35. Written observations were submitted by the Czech, Spanish, Hungarian and Polish Governments, as well as by the European Commission. The Czech and Spanish Governments, as well as the Commission, also responded to written questions put to the interested parties by the Court in application of Article 61(1) of the Rules of Procedure of the Court of Justice.

IV. Assessment

36. This Opinion is structured as follows. I shall start by responding to the first question raised by the referring court. I suggest that the assessment of whether a sentenced person lives in a given Member State for the purpose of the application of Framework Decision 2008/909 cannot be limited to merely having the formally declared residence address therein. I then go on to suggest what further criteria ought to be relevant as part of that assessment (A). In response to the second question raised, I shall point out that the competent authority of the issuing State has the duty to satisfy itself that the transfer of the sentenced person to his State of nationality will enhance his social rehabilitation. That authority is also required to provide the executing authority with all relevant information gathered concerning the probability for social rehabilitation of the sentenced person (B). Finally, I shall clarify which of the relevant criteria conditioning the transfer of the sentenced person may be subject to an assessment by the competent authority of the executing State that may lead to the refusal to recognise and enforce the judgment (C).

A. First question: where does the sentenced person live?

37. The transfer of the sentenced person under Article 4(1)(a) of Framework Decision 2008/909 is possible, where that person does not agree to that transfer, only if that person is a national of the executing Member State and lives there.

38. For the purposes of the present proceedings, the condition of nationality is apparently satisfied and is not a matter of contention. The first question raised in the present case concerns solely the scope of the concept of the sentenced person’s living within the meaning of Article 4(1)(a) of Framework Decision 2008/909.

39. Framework Decision 2008/909 sheds some light on that concept in its recital 17, stating that the reference ‘made to the State in which the sentenced person “lives” … indicates the place to which that person is attached based on habitual residence and on elements such as family, social or professional ties’. ( )

40. The national provision at issue, namely Paragraph 4(1)(a) of Law No 549/2011, states that it is possible to recognise and enforce a decision in the Slovak Republic when the sentenced person is a Slovak citizen who habitually resides in the Slovak Republic or has in its territory proven family, social or professional links which may contribute to facilitating his or her rehabilitation in the course of the enforcement of the custodial sentence in the Slovak Republic.

41. That provision thus reflects, in principle, the wording of recital 17. However, the ‘and’ is replaced with an ‘or’. It would thus appear that ‘habitual residence’, on the one hand, and ‘proven family, social or professional links’, on the other hand, are two alternative grounds for recognition in the situation falling under Article 4(1)(a) of the Framework Decision 2008/909. Moreover, the concept of habitual residence, for the purposes of the first scenario, is understood, in the applicable version of the national law, as referring to permanent or temporary residence. The referring court explains that both permanent and temporary residence are the addresses of formal residence recorded for administrative purposes.

42. I note that the use, in recital 17 of Framework Decision 2008/909, of the conjunction ‘and’ that links ‘habitual residence’ with ‘family, social or professional ties’, makes it clear that something more than a formally recorded address is needed in order for it to be considered that a sentenced person ‘lives’ in the executing State for the purposes of Article 4(1)(a) of Framework Decision 2008/909.

43. It is rather clear to me that by allowing the recognition of the judgment and the transfer of the sentenced person based on the mere recorded permanent or temporary address, Paragraph 4(1)(a) of the Law No 549/2011 falls short of the requirement of Article 4(1)(a) of Framework Decision 2008/909.

44. From a certain minimalist angle, the answer to be given to the first question raised by the referring court could effectively stop there. However, the idea that the requirement that the sentenced person live in the executing State cannot be satisfied by a formally registered address (as agreed upon in essence by all the interested parties having submitted observations in the present case) is as much a minimalist answer as it is the articulation of the genuine question raised by the present case: if a formally registered residence address is not enough, what is?

45. The facts of the present case illustrate this very well. Beyond the citizenship and the formally registered address, the appellant clearly has some links to Slovakia. Nevertheless, there appears to be a disagreement on whether such type, quality, or depth of links are sufficient in order to trigger the mechanism of transfer pursuant to Article 4(1)(a) of Framework Decision 2008/909.

46. Naturally, it is not the role of this Court, nor a fortiori of the present Opinion, to make any specific pronouncements on whether the criteria under Article 4(1)(a) of Framework Decision 2008/909 are met in the case in the main proceedings. Those issues are factual ones and for the competent national authorities of the executing and the issuing Member States to settle.

47. However, the present case and the facts presented therein make it necessary to consider two general issues of interpretation and operation of Framework Decision 2008/909 that arise therefrom. First, what is the content of the requirements of Article 4(1)(a) of Framework Decision 2008/909, specific to the concept of ‘living’, in connection to the concepts of ‘habitual residence’ and ‘family, social or professional ties’? (1) Second, how and by whom should those elements be assessed? (2)

1. ‘Sentenced person’s living’: habitual residence and family, social or professional ties

48. Where a sentenced person ‘lives’ for the purposes of Framework Decision 2008/909, in particular its Article 4(1)(a), is further clarified by recital 17. It is ‘the place to which that person is attached based on habitual residence and on elements such as family, social or professional ties’. None of the concepts, including that of ‘habitual residence’, are defined in Framework Decision 2008/909.

49. In the absence of any reference to national law, the meaning and scope of an EU law concept must be given an autonomous and uniform interpretation throughout the Union, having regard to the context of the provision and the objective pursued by Framework Decision 2008/909. ( )

50. In suggesting to the Court other instruments of EU law that could possibly help with the interpretation of those concepts, some of the interested parties suggest drawing inspiration from other areas of EU law where the concept of ‘habitual residence’ or ‘residence’ also appear, such as Regulation (EC) No 2201/2003, ( ) Regulation (EEC) No 1408/71 ( ) or Regulation No 31 (EEC), 11 (EAEC) laying down the Staff Regulations. ( ) The case-law relating to those instruments places emphasis on the factual reality as opposed to the merely declared residence, ( ) which, arguably, ought to also be the guiding principle in the present case.

51. In my view, those examples are of limited relevance for the purposes of drawing any analogy in the present case. The regulatory and systemic context of those instruments is simply too remote and different from the system and purpose of Framework Decision 2008/909.

52. I find more useful guidance in the case-law on the ground for optional non-execution of a European Arrest Warrant (‘EAW’) under Article 4(6) of Framework Decision 2002/584/JHA, ( ) recalled by the Czech and Spanish Governments, as well as by the Commission. That ground allows for the refusal to execute an EAW ‘where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law’. ( )

53. The Court has explained that those terms cover the situations in which ‘the person who is the subject of [an EAW] has either established his actual place of residence in the executing Member State or has acquired, following a stable period of presence in that State, certain connections with that State which are of a similar degree to those resulting from residence’. ( ) Furthermore, the Court added that the examination of ‘staying’ must rely on ‘an overall assessment of various objective factors characterising the situation of that person, which include, in particular, the length, nature and conditions of his presence and the family and economic connections which he has with the executing Member State’, ( ) ‘a single factor characterising the person concerned cannot, in principle, have a conclusive effect of itself’. ( )

54. In view of the fact that Article 4(6) of the EAW Framework Decision ( ) and of Framework Decision 2008/909 ( )share a common objective as regards social rehabilitation, I believe that a similar logic should apply in the present context. ( )

55. Apart from the condition of nationality, which is not disputed in the case in the main proceedings, recital 17 of Framework Decision 2008/909 mentions what appear to be prima facie two different elements: ‘habitual residence’, on the one hand, and ‘elements such as family, social or professional ties’, on the other hand. However, to the extent that both of these elements are tied to the objective of social rehabilitation, they ultimately constitute two sides of the same coin. In that regard, I do not think that they are, in fact, two separate conditions.

56. Indeed, I must admit that I am not able to pick those two concepts apart and assess them in isolation. With the exception of hermits, the fact that one has habitual residence somewhere normally implies that that person develops all sorts of ties to the given community, its members, and the place itself. Conversely, habitual residence is likely to be established, if any choice in that regard may in fact be exercised, because of some sort of ties to a given place: family, professional, social, cultural or other.

57. Certainly, the two are not exactly the same. A hermit might habitually reside somewhere, and thus technically speaking live there, but may not have many social or other ties worth mentioning due to the fact he leads a completely secluded and isolated life. By contrast, but also by the same token, a highly mobile expat might live in a number of different places, with her family living in one Member State, her cultural and linguistic ties in another, and her professional ties to a third or even to a fourth Member State, but no real habitual residence anywhere worth mentioning.

58. However, to me, both ‘habitual residence’ and ‘existence of some ties’ are a proxy for attachment, which in turn is a stepping-stone on the way to determining the chances of social rehabilitation. Other than that general guidance, identifying the Member State in which a sentenced person ‘lives’ for the purposes of Article 4(1)(a) of Framework Decision 2008/909 is bound to be a rather factual and, as a consequence, case-dependent exercise. There are nonetheless two other general elements worth mentioning.

59. First, the facts that are to be singled out and assessed should be seen through the lens of the objective of social rehabilitation pursued by Framework Decision 2008/909, as expressed in particular in its Article 3(1). ( ) Indeed, determining whether the sentenced person lives in a Member State, that is to say whether he or she habitually resides and has ties there, is not simply an abstract assessment, but is in fact carried out for the purpose of assessing the sentenced person’s chances of social rehabilitation.

60. It is that very purpose which determines what is relevant in an individual case and ought to be taken into account. Without wishing to initiate a complex debate on the numerous factors that the process of social rehabilitation should involve, ( ) as a rule of thumb, it is perhaps safe to assume that family and social ties are particularly helpful in providing assistance to a sentenced person upon his or her release, and in offering that person a chance to reconnect with society.

61. However, it is also clear that the list of relevant ties laid down in recital 17 is non-exhaustive, as indicated by the wording ‘elements such as’. That is borne out by recital 9 which instructs the issuing authority to verify the possibility of social rehabilitation by considering whether the sentenced person is attached to the executing State and whether he or she considers the executing State to be ‘the place of family, linguistic, cultural, social or economic and other links’. There is, in my view, nothing which prevents, for example, cultural or linguistic links in the context of Article 4(1)(a) of Framework Decision 2008/909 from being taken into consideration if those are genuinely found to be useful for the social rehabilitation of an individual.

62. Second, it is also rather clear that neither the habitual residence nor the examination of the ties that a person may have can be considered solely against the immediate period preceding the criminal conviction. Instead, and rather naturally, a broader perspective of the sentenced person’s life must be embraced, taking equally into account ties and attachments perhaps already formed some time ago, in previous periods of one’s life, but which are still potentially able to contribute to the sentenced person’s capacity to reconnect with the community after the carrying out of their sentence.

63. Beyond that general guidance, the examination is bound to be case specific, conducted in the light of the individual circumstances, the previous social and professional path of each sentenced person, and always with the purpose of social rehabilitation in mind. In any case, as the Court has stated, a single factor cannot be conclusive in itself. ( ) The residence, as a consideration, should never be isolated. Instead, it should go hand in hand with the examination of the family, social or other ties. The bottom line is that the very existence of such ties cannot simply be assumed, based exclusively on the sentenced person’s nationality or on the basis of the formally registered place of residence.

2. Assessment of the condition for transfer of the sentenced person

64. Clarification as to the substantive content of the requirements under Article 4(1)(a) of Framework Decision 2008/909 does not, however, fully answer the question of exactly how those requirements should be assessed. Three points are noteworthy in that regard.

65. First, the assessment of the conditions of Article 4(1)(a) of Framework Decision 2008/909, as well as the likelihood of social rehabilitation imposed upon the issuing authority under Article 4(2) of the same framework decision are to be individualised so as to allow for the specific circumstances of the sentenced person to be taken into account.

66. I point out that Framework Decision 2008/909 foresees the assessment of such individual circumstances by laying down, in Article 6(3), the right of the sentenced person to give his or her opinion (when that person is still in the issuing State). ( ) That provision also states that that opinion must be forwarded to the executing State, in particular with a view to Article 4(4), based on which the executing authority can communicate to the issuing authority its reasoned opinion on why the objective of social rehabilitation would not be met in a given case. That possibility exists independently of whether the consultations have been engaged by the issuing authority or not. On the whole, the issuing authority may only activate the system of cooperation laid down by Framework Decision 2008/909 when it has established that the transfer of the sentenced person would facilitate his or her social rehabilitation.

67. Second, the issuing authority should assess and be satisfied with the existence of the (positive) likelihood of social rehabilitation in the executing Member State. The decision to transfer cannot be based on the mere (negative) finding that such a perspective does not appear to exist in the issuing State.

68. This point flows both from the text and the logic of Article 4(2) of Framework Decision 2008/909. It deserves to be expressly emphasised, since it may appear, from the point of view of the issuing Member State, somewhat unusual to, in essence, be required to assess the factual situation in another Member State. Still, put simply, from the point of view of the issuing Member State, what has to be plausibly established is not the absence of any ties ‘here’ (in the issuing Member State), but the existence of some ties ‘there’ (in the executing Member State).

69. Certainly, such a logic means that sentenced persons without any habitual residence and without any family, social, or other ties, cannot be transferred to their Member State (of nationality and/or origin) under Framework Decision 2008/909. In extreme circumstances, there may simply be no Member State where it could reasonably be concluded that the enforcement of the sentence therein would facilitate the social rehabilitation of the sentenced person.

70. Third, unfortunate as such a scenario might be, it does not represent an issue within the system of Framework Decision 2008/909. In this context, it is necessary to recall the rule and the exception – or, more accurately, the exception to the exception.

71. When it comes to the carrying out of a custodial sentence, the default rule is that it is to be executed by and normally in the (Member) State which imposed the sentence. The transfer of sentenced persons to another (Member) State for the execution of a custodial sentence is the exception, in principle only possible when it is permitted by a special regime, such as that presently under Framework Decision 2008/909, or previously by the Convention on the Transfer of Sentenced Persons. ( )

72. Framework Decision 2008/909 is drafted in a manner that clearly pursues the interests of the sentenced person. The transfers of sentenced persons are only possible when it can be assumed that their chances of social rehabilitation will be enhanced by that transfer. By contrast, that framework decision has not been drafted so as to serve the (potential) interests of the Member States in re-allocating or even re-patriating sentenced persons across the Union, for the execution of the sentence, based on the nationality of those individuals. ( )

73. Within the special regime of Framework Decision 2008/909, the transfer of a sentenced person without their consent, a scenario envisioned under Article 4(1)(a) of Framework Decision 2008/909 and relevant in the present case, is an exception. It follows from Article 6(1) of that instrument that transfers should, as the main and indeed the traditional rule, be based on the sentenced person’s consent.

74. The extent to which an involuntary transfer is compatible with the viability of social rehabilitation is a matter open to debate ( ) since that rehabilitation is, in those cases, likely to take place in a location to which the sentenced person did not wish to be transferred. With this in mind, it indeed appears possible to speculate about the fact that some of the Member States’ interests were thereby allowed to re-enter a scheme primarily drafted for the benefit of sentenced persons through a side door. That being said, it is also clear that Framework Decision 2008/909 expresses the will of the EU legislature to make the transfers of the sentenced persons in some situations possible despite their opposition, when social rehabilitation can, and therefore also should, be pursued under those circumstances.

75. What follows, nonetheless, from the third point made is that the approach to or the interpretation of Article 4(1)(a) of Framework Decision 2008/909 cannot be too broad. After all, transfers of sentenced persons against their will remain, in the structure outlined above, an exception to an exception to the default rule on the execution of custodial sentences.

76. In the light of the foregoing, I would thus suggest that Article 4(1)(a) of Framework Decision 2008/909 is to be interpreted as meaning that a sentenced person lives in a given Member State when that person had been or is habitually resident in that State and when that person has established family, social or professional ties in that State so as to make it reasonable to assume that that person has formed an attachment to that State which will facilitate their capacity to reintegrate into society after the carrying out of their sentence. Article 4(1)(a) of Framework Decision 2008/909 thus precludes national legislation that allows for the recognition and execution of a judgment based solely on the sentenced person’s permanent or temporary address which has been recorded merely for administrative purposes, without a simultaneous individual examination into the existence of relevant ties that may give rise to the conclusion that those ties will facilitate the sentenced person’s capacity to reintegrate into society after the carrying out of their sentence.

B. Second question: obligation of the issuing authority to determine the possibility of social rehabilitation

77. By its second question, the referring court wonders whether the issuing authority, acting in a situation falling under Article 4(1)(a) of Framework Decision 2008/909, has an obligation to verify, before forwarding the judgment and the Annex I Certificate, that the enforcement of the sentence in the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person. The referring court also asks whether the issuing authority is furthermore required to provide the information gathered for that purpose in section (d), point 4, of the Annex I Certificate where the sentenced person claims that his family, social or professional ties are in the issuing State.

78. The Czech Government raises doubts as to the admissibility of the second question. It maintains that the assessment under Article 4(2) of Framework Decision 2008/909 has already occurred in the case in the main proceedings and that the referring court does not explain why this type of information is necessary.

79. I disagree.

80. I acknowledge that it follows from the order for reference that the operation of the mechanism set by Framework Decision 2008/9009 has already moved to a phase under the responsibility of the executing State. The process has moved beyond the facultative consultations referred to in Article 4(2) and detailed in Article 4(3). ( ) However, the executing authority can still, pursuant to Article 4(4), present the issuing authority with a reasoned opinion stating ‘that enforcement of the sentence … would not serve the purpose of facilitating the social rehabilitation and successful reintegration of the sentenced person into society’. When consultations have not taken place, that opinion may also be presented after the transmission of the judgment and the Annex I Certificate.

81. The order for reference does not specify whether any consultations between the executing and the issuing authorities have taken place. If that has not been the case, it is thus still possible for the executing authority to provide the issuing authority with a reasoned opinion on the possibility of social rehabilitation of the appellant.

82. Clarification of the scope of the obligations of the authority of the issuing State is thus possibly still necessary so that the executing authority can usefully exercise its powers and provide the issuing authority with its reasoned opinion.

83. Moreover, I consider that the second question raised by the referring court is naturally linked to the third question concerning the possibility for the executing authority to refuse the recognition based on the ground contained in Article 9(1)(b) of Framework Decision 2008/909 where the criteria set forth in Article 4(1) are not met.

84. That being said, Article 4(1)(a) of Framework Decision 2008/909 relates to the condition of ‘living’ and thus to the existence of the sentenced person’s relevant ties to the executing State. The considerations under Article 4(1)(a) of that framework decision are therefore intertwined with the considerations related to the possibility of social rehabilitation. Framework Decision 2008/909 seems to divide the exercise of the powers of the issuing and executing authorities under Article 4(2) on the one hand, and under Article 9(1)(b) (and, by renvoi, Article 4(1)(a)), on the other. That division calls for clarification, and the examination of the obligation of the issuing authority is the necessary step in such clarification. That is another reason for which I believe the second question to be admissible.

85. On its merits, I consider a reply to the second question in the affirmative to be relatively straightforward and to reflect the position of all interested parties having submitted observations to that question.

86. It follows clearly from the wording of Article 4(2) of Framework Decision 2008/909 that the authority of the issuing State does indeed have an obligation to reach a positive conclusion on the possibility of social rehabilitation in the executing Member State. If that conclusion is not reached, the mechanism of recognition established under Framework Decision 2008/909 cannot be triggered.

87. The Czech Republic and the Commission suggest that a positive conclusion in this regard must be reached at the level of certainty. I would be much more hesitant there. One does not have to be Niels Bohr to agree that any ‘prediction is very difficult, especially if it’s about the future’. Since most national judges are unlikely to have crystal balls in their cupboards, I suggest that their task is to arrive at a reasonable assumption rather than at a certainty. That prediction must still be made on the basis of the specific situation of the individual and to the best of their information and knowledge, but it is bound to remain at the level of a reasonable assumption.

88. Furthermore, the issuing authority is also required to provide the information gathered for that purpose in section (d), point 4, of the Annex I Certificate. The information to be provided is mandatory, save when its optional nature is specified such as in section (l) entitled ‘Other circumstances relevant to the case (optional information)’. ( )

89. However, in contrast to what appears to be the premiss of the second question raised, I do not believe that the obligation of the issuing authority is limited to situations in which the sentenced person availed himself of the possibility to state his opinion, as provided for in Article 6(3) of Framework Decision 2008/909.

90. The latter provision states that it must be forwarded to the executing authority in circumstances where that opinion was given. That being said, it does not follow from this additional requirement that, where the sentenced person did not state his opinion, the issuing authority would not have the obligation to provide the information gathered in support of the view of the issuing authority that social rehabilitation would be enhanced if the imposed sentence were executed in the executing State. That obligation applies, in my view, irrespective of whether the sentenced person stated his or her opinion within the meaning of Article 6(3) of Framework Decision 2008/909.

91. It is crucial that information supporting the view of the issuing authority vis-à-vis the possibility of social rehabilitation of the sentenced person is provided for the effective exercise of the option given to the executing authority to oppose that conclusion by a reasoned opinion expressing its view that the social rehabilitation would not be facilitated in the given case. I recall that the executing authority can present such an opinion, irrespective of whether the issuing authority has engaged in consultations or not.

92. Similarly to what I stated in my Opinion in A. P., ( ) I note that judicial cooperation amongst the Member States is based on the idea of simplified communication which often takes place via standardised forms. For such communication to be efficient, it is necessary that the issuing authority provide all information necessary on which it relied when it came to the conclusion that the social rehabilitation is likely to be achieved in the executing Member State. Providing those elements also allows the executing authority to exercise its responsibilities in a timely fashion.

93. Like many other instruments in this area, Framework Decision 2008/909 clearly allows for consultations. However, such consultations should complement, but not replace the standard and main elements of communication that must be provided upfront by the issuing authority. The need to ask for additional information or to consult, although clearly possible, should thus remain the exception and not become the rule. ( ) Moreover, Framework Decision 2008/909 sets time limits in which the final decision on the recognition of the judgment and the enforcement of the sentence must be in principle adopted, ( ) which places boundaries on factual verifications that may be undertaken and supplemented after the judgment has been transferred for recognition.

94. In the light of the foregoing, my second conclusion is that Article 4(2) of Framework Decision 2008/909 shall be interpreted as requiring that the competent authority of the issuing State, in the situation provided for in Article 4(1)(a) of that framework decision, must reach a positive conclusion, based on an individualised assessment of the sentenced person’s situation, that the enforcement of the sentence in the executing State is likely to facilitate that person’s social rehabilitation before forwarding the judgment and the Annex I Certificate. That authority is required to provide any information gathered for that purpose in section (d), point 4, of the Annex I Certificate, irrespective of whether the sentenced person has availed himself or herself of the possibility provided under Article 6(3) of Framework Decision 2008/909 to state his or her opinion on that matter.

C. Third question: the possibility for the executing authority to refuse recognition and enforcement of the judgment

95. By the third question, the referring court asks whether Article 9(1)(b) of Framework Decision 2008/909 shall be interpreted as meaning that the executing authority can refuse recognition of the judgment and enforcement of the sentence at issue where, in the situation set out in Article 4(1)(a) of that framework decision, and despite the consultation under Article 4(3), it is not proven that there are such family, social or professional links from which it could reasonably be assumed that the enforcement of the sentence in the executing State may facilitate the sentenced person’s social rehabilitation.

96. I recall that Article 8(1) of Framework Decision 2008/909 lays down the obligation to recognise a judgment unless the executing authority invokes one of the grounds for non-recognition and non-enforcement provided for in Article 9.

97. Under Article 9(1)(b) of Framework Decision 2008/909, the executing authority may refuse to recognise the judgment and enforce the sentence if the criteria laid down in Article 4(1) are not met. That includes the situation specifically covered by Article 4(1)(a) which refers to the condition of the sentenced person’s living in the executing State and thus, in that regard, to his habitual residence and the relevant ties to the executing State.

98. While it is for the executing authority to assess whether those conditions are satisfied, Article 4(2) of Framework Decision 2008/909 imposes on the issuing authority a requirement to verify that the sentenced person’s transfer would facilitate that person’s social rehabilitation.

99. I understand that the obligation to verify the possibility of the social rehabilitation expressly addressed to the issuing State prompted the referring court to raise that third question, since the executing authority seems to be limited, for what is relevant here, to the verification of the conditions set out in Article 4(1)(a) of Framework Decision 2008/909.

100. A response to the third question raised thus requires clarification of the relationship between Article 4(1)(a), Article 4(2) and Article 9(1)(b) of Framework Decision 2008/909.

101. The Czech and Hungarian Governments, and the Commission, suggest distinguishing between the criteria under Article 4(1)(a), on the one hand, and under Article 4(2), on the other hand, with only the first one being open to examination by the executing authority.

102. On the face of it, I agree that both the issuing and executing authorities only appear to have an equal assessment power when it comes to the criteria of Article 4(1)(a) of Framework Decision 2008/909, while application of Article 4(2) is entrusted to the exclusive assessment of the issuing authority. I thus also agree that, when relying on the ground of refusal under Article 9(1)(b) of Framework Decision 2008/909, the executing authority is entitled to examine only the assessment made by the issuing authority under Article 4(1)(a). That follows from the wording of Article 9(1)(b) which refers to Article 4(1)(a), but not to Article 4(2).

103. However, having made that formal distinction, for the reasons set out above in points 55 to 63 in reply to the first question raised by the referring court, my impression is that for all practical purposes, the two types of assessment are likely to overlap to a fair degree. Indeed, assessing the extent to which the transfer is capable of facilitating the social rehabilitation of the sentenced person under Article 4(2) of Framework Decision 2008/909 involves the prior consideration of the relevant ties under Article 4(1)(a), as essentially argued by the Spanish and Polish Governments.

104. Thus, even if one were to categorically affirm that it appertains only to the issuing authority to make an assessment under Article 4(2) of Framework Decision 2008/909 as to the prospects of the social rehabilitation of the sentenced person, that would still not deprive the executing authority of the power to make its own assessment under Article 4(1)(a), clearly bestowed upon the latter by Framework Decision 2008/909. In this way, the authorities of the executing Member State are allowed to contradict and effectively remove the very foundation (the finding of habitual residence and relevant ties) on which the conclusion as to the social rehabilitation must necessarily be based.

105. I certainly acknowledge the importance of mutual recognition as the ‘cornerstone’ of judicial cooperation in criminal matters, ( ) as the Hungarian Government correctly recalls. However, the combined reading of Article 4(1)(a), Article 4(2) and Article 9(1)(b) leads me to consider that those provisions put, in fine, the issuing and executing authorities on a rather equal footing when it comes to the verification of the requirements conditioning the transfer of the sentenced person in the scenario falling under Article 4(1)(a) of Framework Decision 2008/909.

106. One can only speculate as to where exactly the ‘equilibrium’ intended by the EU legislature was supposed to lie. Be that as it may, the manner in which Framework Decision 2008/909 is currently drafted means that the EU legislature has endowed the issuing authority with the responsibility to acquire an informed opinion on the possibility of social rehabilitation of the sentenced person under Article 4(2). That said, the executing authority is still able to effectively oppose that conclusion, by articulating its own view on the reality of the sentenced person’s living in the executing State, on whether habitual residence and the relevant ties exist therein under Article 4(1)(a).

107. The executing authority can put forward its own view first, by reasoned opinion in the context of consultations under Article 4(4), or even in their absence. While that provision per se does not constitute a ground for refusal, as recital 10 of Framework Decision 2008/909 recalls, it is likely that, if a potential disagreement on that matter is not removed through consultation and discussion, a divergence of views can later be translated as a refusal of the recognition under the conditions of Article 9(1)(b) by the executing authority.

108. Finally, there remains, nonetheless, the issue of information and evidence on which the executing authority may rely when invoking the ground of refusal under Article 9(1)(b). Shall the executing authority limit its examination and assessment to a review of the factual situation, as established by the issuing authority? Or is the executing authority supposed to launch its own investigation, examining de novo all the elements of the sentenced person’s living in the executing State?

109. In my view, to the extent that it can independently refuse the recognition and execution under Article 9(1)(b), the executing authority can also independently verify the conditions of Article 4(1)(a) of Framework Decision 2008/909. Put differently rather, there is nothing in the text of Framework Decision 2008/909 that would preclude such an independent examination, even if there are some limits as regards its scope.

110. First, the recognition and the enforcement of the sentence should happen within the deadlines set out for that purpose in Article 12 of Framework Decision 2008/909. In particular, pursuant to Article 12(2) of that framework decision, the final decision on the recognition of the judgment and the enforcement of the sentence should be, in principle, taken within the period of 90 days.

111. Second, as the Czech Government correctly recalls, when the executing authority decides to make use of the possibility to refuse the recognition and enforcement based on Article 9(1)(b) of Framework Decision 2008/909, that refusal is made conditional upon the mandatory consultations that have to be had under Article 9(3).

112. Third, when it comes to the verification of the conditions of Article 4(1)(a) of Framework Decision 2008/909, the scope of review by the executing authority shall remain within the limits of sincere cooperation enshrined in Article 4(3) TEU. That means, in practical terms, that the executing authority should primarily rely on the information already gathered and forwarded by the issuing authority and its assessment. That is, after all, also why the issuing authorities are obliged to set out their findings in full in the Annex I Certificate, irrespective of whether or not the sentenced person provided any further information in his or her opinion. ( )

113. Certainly, the executing authority may not only verify the accuracy of the information provided, if it wishes to do so, but may also seek additional elements, if it deems them necessary. However, such a fact-finding and evidence collection exercise ought to be reasonable as to its specific nature and with the view of potentially verifying certain punctual elements with regard to which the executing authority still entertains doubts. Such a verification is not supposed to turn into a full-fledged, in-depth assessment, examining all the elements under Article 4(1)(a) of Framework Decision 2008/909 from scratch.

114. Such an examination would not only go against the spirit and purpose of Framework Decision 2008/909 and the principle of sincere cooperation applicable therein, but would also, in practical terms, place the issuing authorities in an impossible position, indirectly setting the evidentiary requirement of what must be verified in order to trigger the framework decision mechanism too high. By definition, the authorities of the issuing Member State not only should not, but also cannot verify, by collecting evidence, hearing witnesses, or asking for reports, the detailed factual situation in the executing Member State. In simple terms, one can hardly expect the authorities of the issuing Member State, in order to be allowed to trigger the Framework Decision 2008/909 mechanism, to first enquire in detail, for instance, how frequently the sentenced person visits his family in the executing Member State; whether he has been seen in the local pub in the last five years; or whether his second cousin has just offered him a job in the village where he was born should he decide to return.

115. In the light of the foregoing, I suggest that the Court answer the third question raised by the referring court in the following way: Article 9(1)(b) of Framework Decision 2008/909 is to be interpreted as entitling the authority of the executing State to refuse to recognise and enforce the judgement where it concludes that the criteria under Article 4(1)(a) of that framework decision are not satisfied. That includes the possibility for the executing authority to refuse to recognise and execute a judgment when that authority considers that there are no family, social, professional or other relevant links in that State that would make it reasonable to assume that the enforcement of the sentence in that State may facilitate the sentenced person’s social rehabilitation.

V. Conclusion

116. I propose that the Court answer the questions referred for a preliminary ruling by the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic, Slovakia) as follows:

1. Article 4(1)(a) of 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 is to be interpreted as meaning that a sentenced person lives in a given Member State when that person had been or is habitually resident in that State and when that person has established family, social or professional ties in that State so as to make it reasonable to assume that that person has formed an attachment to that State which will facilitate their capacity to reintegrate into society after the carrying out of their sentence.

Article 4(1)(a) of Framework Decision 2008/909 thus precludes national legislation that allows for the recognition and execution of a judgment based solely on the sentenced person’s permanent or temporary address which has been recorded merely for administrative purposes, without a simultaneous individual examination into the existence of relevant ties that may give rise to the conclusion that those ties will facilitate the sentenced person’s capacity to reintegrate into society after the carrying out of their sentence.

2. Article 4(2) of the Framework Decision 2008/909 is to be interpreted as requiring that the competent authority of the issuing State, in the situation provided for in Article 4(1)(a) of that framework decision, must reach a positive conclusion, based on an individualised assessment of the sentenced person’s situation, that the enforcement of the sentence in the executing State is likely to facilitate that person’s social rehabilitation before forwarding the judgment and the Annex I Certificate. That authority is required to provide any information gathered for that purpose in section (d), point 4, of the Annex I Certificate, irrespective of whether the sentenced person has availed himself or herself of the possibility provided under Article 6(3) of Framework Decision 2008/909 to state his or her opinion on that matter.

3. Article 9(1)(b) of Framework Decision 2008/909 is to be interpreted as entitling the authority of the executing State to refuse to recognise and enforce the judgement where it concludes that the criteria under Article 4(1)(a) of that framework decision are not satisfied. That includes the possibility for the executing authority to refuse to recognise and execute a judgment when that authority considers that there are no family, social, professional or other relevant links in that State that would make it reasonable to assume that the enforcement of the sentence in that State may facilitate the sentenced person’s social rehabilitation.