A First Cruise in Judicially Uncharted Waters – Mutual Recognition of Probation Measures at the CJEU

The second case filed at the CJEU in 2019 was not one to make headlines. Although “A.P.” (C-02/19,) takes place in the field of criminal law, it does not concern blood and thunder. Although Mr A.P. is convicted, he is not in prison. On the contrary: the case only arose because A.P. is not imprisoned.

Notwithstanding all of this, the A.P. case may have notable practical impact. The reason for this is that it concerns the Framework Decision 2008/947/JHA on the mutual recognition of probation measures and alternative sanctions (FDPAS). The FDPAS is one of the lesser used mutual recognition instruments in European criminal law. Therefore, a CJEU judgment could per se raise some awareness of the instrument among practitioners. Moreover, no case regarding the FDPAS has ever reached the CJEU before, making it an area of judicially uncharted waters with much space for clarifications by the CJEU. Just over a year after the case has been filed, AG Bobek has now issued his opinion on the matter.

  1. The Framework Decision on Probation and Alternative Sanctions

Let us imagine a German and a Dutchman getting in a fight (needless to say about football!) during their vacations in Mallorca. Things get physical and the police has to intervene. Eventually, they find themselves before a Spanish criminal court. After finding the two of them guilty, the responsible judge is faced with the task of determining a sanction. In a problematically high number of cross-border cases, judges opt for prison sentences in order to avoid impunity and to ensure that the sentence is actually served. As this would be disproportionate, the trial judge is faced with two options: either imposing an alternative sanction, or imposing certain obligations on the convicts, the infringement of which (or the commitment of new crimes) would trigger detention in prison (conditional sentence or conditionally suspended sentence). The judge eventually decides to impose the duty to serve a certain number of hours of community work upon the two football fans.

Were it not for instruments like the FDPAS, the two of them would now have to go back to Spain, for instance to sweep the streets of Palma, something that could have an immense impact on their social live. In particular, their absence could endanger their jobs and thus their reintegration in society – a key objective of criminal law. Under the FDPAS, however, the Spanish court can send the judgments to its colleagues in Germany and the Netherlands. Provided that a number of conditions are met, the receiving authorities must recognise the judgments as if they had rendered them themselves and enforce and supervise the sentence of community work accordingly. The two football fans can therefore sweep, for instance, the streets of Amsterdam and Berlin.

The FDPAS works as follows: Depending on national criminal law, criminal courts can issue four types of judgments that fall in the scope of application of the FDPAS (Art. 2). The first variant is a conditional release in the context of a regular prison sentence. The second variant is a prison sentence, the execution of which is conditionally suspended from the outset (“suspended sentence”). The third one is a conditional sentence, which is a sentence that only imposes probation measures, the breach of which automatically triggers a custodial sentence. The difference between numbers two and three is that the latter sentence only “becomes” a custodial sentence once probation conditions have been breached. In all these cases, breaching the specific probation conditions or committing new crimes can lead to the convicted person being imprisoned. In contrast, alternative sanctions – the fourth variant – consist in non-custodial sanctions, the breach of which does not necessarily result in imprisonment. Probation measures can be laid down either in the judgment itself or in a subsequent probation decision based on the judgment. The FDPAS generally applies only to a limited number of probation measures that are common to all Member States (see list in Art. 4 (1) FDPAS). However, Member States may communicate additional measures which they are able to supervise to the Council at any time (Art. 4 (2) FDPAS).

If a person sanctioned with one of the aforementioned measures resides or moves abroad, the responsible authority can send a request for recognition to the responsible authority in the other Member State. There is an exhaustive list of reasons under which the receiving authority may (optionally) refuse the recognition and supervision of the judgment (Art. 11 FDPAS). In all other cases, the requested Member State must supervise the probation decision as long as the convicted person is residing in its territory (Art. 8 (1) FDPAS).

  1. The A.P. Case

The case at hand that gave rise to the first FDPAS case to ever make it to the CJEU concerns A.P., an Estonian resident who was found guilty of assistance in money laundering by a Latvian Court. He was sentenced to three years’ imprisonment, conditionally suspended if he did not commit any new crime. Further probation measures were not imposed by the judgment. The Latvian Ministry of Justice applied for the recognition and supervision of the sentence in Estonia. An Estonian court subsequently granted this request. A.P. appealed against this order first at an Estonian Court of Appeal, arguing that the mere obligation no to commit a new crime was not a probation measure of its own in the sense of Article 4 FDPAS. The Court of Appeal nevertheless upheld the first decision and A.P. challenged this ruling before the Estonian Supreme Court. The latter sent a request for preliminary ruling to the CJEU, asking whether it is compatible with the FDPAS to recognise a conditional judgment with the only obligation to avoid committing further crimes during the probation period.

III. Legal Reasoning and Assessment of AG Bobek’s Opinion

In his recent opinion, AG Bobek essentially follows A.P.’s argument and suggests that the FDPAS is not applicable to cases like his. In the following, I will analyse the core of his reasoning and explain why I disagree with this conclusion.

The core argument AG Bobek makes in his opinion is that the obligation not to commit a crime cannot be regarded as a “probation measure” under the FDPAS.

Probation measures are defined in Article 2 (7) FDPAS as “obligations or instructions imposed by a competent authority on a natural person”. As such, the field of application of the FDPAS in this first step is defined very widely: “obligations or instructions” are not specified further and could entail anything. This includes, of course, an obligation not to commit crimes, as in the case of A.P.

Consequently, AG Bobek does not argue that this obligation could not be subsumed under the definition of “probation measure”, but rather invokes the limitations set by Article 4 FDPAS, namely the list of measures that all Member States supervise.

AG Bobek’s arguments are, first of all, that the condition not to commit further crimes is not literally mentioned in the list of measures in Article 4 (1) FDPAS, which cannot be disputed, and second, that the said condition is not an “obligation relating to behaviour” as mentioned in Article 4 (1)(d) FDPAS. Of course, this is not correct in a literal sense – not to commit a crime is an obligation relating to behaviour. However, Bobek explains his argument by pointing out that in another FDPAS provision (Art. 14), a distinction is made between “non-compliance with a probation measure […] or if the sentenced person commits a new criminal offence”. Bobek deduces from this that the obligation not to commit crimes is not meant to be a probation measure but a distinct feature of a probation decision. Therefore, he concludes, the FDPAS cannot be applied to cases like A.P.’s.

It is true that the FDPAS clearly implies that the obligation not to commit a crime does not have to be named as a single probation measure. The question, however, is whether this also means that such an obligation cannot be named as a probation measure. In this context, Bobek argues that, as usual in criminal law measures, Article 4 has to be interpreted narrowly to protect the interests of convicts. Where the FDPAS speaks of “obligation[s] relating to behaviour”, it would, therefore, be too wide an interpretation to consider that an obligation not to commit further crimes is included.

This is where I tend to disagree for two reasons. The first one is related to the purpose of Article 4 FDPAS. Article 4 does not define what probation measures are in the context of the FDPAS, but which kind of probation measures trigger the obligation for a national authority to recognise a probation decision from another Member State. Thus, if Article 4 limits the number of possible probation measures, this is not primarily to protect the convict, but to keep the requested authority from the burden of supervising a probation measure that it is not familiar with. Therefore, the interpretation of Article 4 FDPAS does not necessarily require the strict criminal law standards of interpretation. Otherwise, it would hardly be admissible that Article 4 (2) opens the FDPAS for an indefinite number of additional measures that individual Member States can add at will – such an approach could hardly be justified under the principle of legal certainty.

The second reason is that the FDPAS is not merely a sanctioning instrument, but it is designed to work in the interest of the convict. This can be seen not only in the fact that its first and foremost aim is to facilitate social rehabilitation (Art. 1 (1) FDPAS), but also in the possibility for the convict to actively request an application for the recognition abroad (Art. 5 (2) FDPAS). Such a right to initiative is unusual in the context of criminal sanctions. Moreover, the supervision of the obligation not to commit a crime is not at all a measure that authorities are unfamiliar with: As authorities have to check whether the convict commits new crimes in the supervision of every single probation measure, it is, in fact, the smallest conceivable effort for an authority supervising probation measures to control this and nothing else. It is for these reasons that I argue that the obligation not to commit further crimes can indeed be considered an “obligation relating to behaviour”, thus falling within the scope of FDPAS.

This finding is supported by the potential alternative: As a result of declaring recognition requests such as A.P.’s inadmissible under the FDPAS, criminal courts could instead impose other alternative sanctions or probation measures whenever the defendant is residing abroad. As the obligation not to commit further crimes is the least severe probation measure possible, this would inevitably mean harsher punishments for citizens residing in other Member States. Not only is this a problem of equal treatment of Union citizens, but it also raises questions of proportionality. Not recognising probation decisions such as the one in question would therefore be opposed to the interest of concerned convicts in the long run.

Given all the above, I remain hopeful that the CJEU recognises the relevance of the case and comes to a different conclusion than the Advocate-General. In the interest of convicts and their rehabilitation, the use of probation measures, whatever their nature, should be supported wherever possible. This includes making it possible to execute them in a cross-border context if necessary.

This post could well end here. However, the A.P. case comes with a rather amusing…


  1. … Final Curiosity

It emerges from AG Bobek’s opinion that Latvia was surprised to hear about the case’s appearance before the CJEU. In the oral hearing, it therefore argued that the case was inadmissible, since in Latvia certain probation measures are applied by law to conditionally suspended sentences, i.e. in all cases without the need for the judge to specify them. In fact, Paragraph 155 of the Latvijas Sodu izpildes kodekss (Sentence Execution Code of Latvia) foresees a number of probation measures, some of which apply by law (e.g. the obligation to register with a probation service and notify any changes of residence, etc.), some other requiring a decision by the probation services. The correct approach by Latvian authorities, therefore, would have been to pass the case on to the probation services, have them determine all probation measures needed in the case at hand and then pass both the judgment and the probation decision on to Estonia for recognition. However, even without such a probation decision, the  measures applied to all suspended sentences by law would have easily sufficed to be named as probation measures under Article 4 FDPAS. Hence, the CJEU is faced with a factual non-problem. However, as AG Bobek very rightly points out, it is not for the receiving authority to figure out whether there are any probation measures applied by law in the requesting Member State’s legal system, which the requesting authority did not mention. And as the Estonian Supreme Court is faced with a blank form in terms of probation measures, so is the CJEU, and the preliminary question remains valid. In light of the fact that in several Member States it is indeed common to impose probation sentences without further obligations (see AG Bobek’s opinion, para. 49), it gives the CJEU the possibility to answer a question that, until today, is indeed open for discussion.