Positive harmonisation of national criminal law: Necessary or essential for mutual recognition?

Abstract

Positive harmonisation of criminal law should only be a subsidiary means of implementing the principle of mutual recognition. Regarding criminal procedural law, this is laid down in Art. 67 TFEU (‘if necessary’) and in Art. 82(2) TFEU (‘to the extent necessary’). However, the effectiveness of the principle of mutual trust depends on the harmonisation of the national laws of the Member States, especially in cases when the national law of the executing State does not regulate at all aspects that may affect the nature or aggravate the sentence which is to be recognised. In this context, we will try to show that, if the alternative execution modality of a custodial sentence is not at all regulated in the national law of the executing State, its recognition and enforcement, with the consequent continuous deprivation of liberty of the sentenced person, could be considered an aggravation of the sentence and thus a violation of Article 8(4) of FD 2008/909. The paper thus highlights not only the differences between the legal frameworks of some Member States, but also how the lack of regulation on alternative execution modalities to custodial sentences or probation measures and alternative sanctions could stand in the way of reaching the purposes of Framework Decisions 2008/909 and 2008/947. On the other hand, we will show that although the framework decisions cannot have a direct effect, when applying national law, the national authorities are therefore required to interpret it, to the greatest extent possible, in light of the text and the purpose of the framework decision in order to achieve the result sought by that decision.

Introduction

One of the questions raised in international cooperation case files concerns what national courts should do when the alternative execution modalities to a custodial sentence or the probation measure imposed by the authorities of the issuing State do not correspond with the national legislation of the executing State. A recognition and enforcement of such decisions risks violating the principle of nulla poena sine lege and, moreover, an adaptation to the sentences or measures provided by the national law of the executing State could aggravate the penalty, while the refusal to recognise the decision would ignore the principle of mutual trust and the scope of these procedures, that is, to facilitate the social rehabilitation of sentenced persons in the state where they have the best chance of social reintegration.

In the context of FD 2008/909, it is important to draw a distinction between the sentence, as a judicial decision and the sanction, as the penalty which is imposed by it, because the terms of nature and duration, as premises for an adaptation, are linked to the punishment itself, rather than to the judicial decision. According to article 1 (b) of the FD, the term sentence shall mean any custodial sentence or any measure involving deprivation of liberty imposed for a limited or unlimited period of time on account of a criminal offence on the basis of criminal proceedings, and thus seems to identify with the sanction itself.

One of the objectives of the FD is also to ensure, in accordance with the principle of mutual trust, that the sentence is enforced on the territory of the executing State as if it were one of its own national decisions and that the penalty is executed as far as possible in the same modality as it was imposed by the judicial authorities of the issuing State. This means, inter alia, that if the judicial authorities of the issuing State have considered that the sentenced person should be deprived of his or her liberty, the same modality of execution should be enforced by the judicial authorities of the executing State in accordance with the regulation of FD 2008/909 and, for the same reason, if the deprivation of liberty has been considered unnecessary, the probation measures and alternative sanctions should be adapted in accordance with the regulation of FD 2008/947.

To this end, in cases where custodial sentences have been imposed, the provisions of Article 8 of FD 2008/909 clearly provide instruments to achieve this objective, stating that if the nature or duration of the sentence is incompatible with the law of the executing State, it may be adapted to that national law, but must correspond as closely as possible to the sentence imposed in the issuing State.

It is to be noticed that the provisions mentioned refer to the sentence and not to the sanction, although the second and third paragraphs mention the incompatibility in respect to the duration – if the sentence exceeds the maximum penalty provided for similar offences or with the nature of the sanction, stating that it may be adapted to the punishment or measure provided for under the national law of the executing State for similar offences.

In our view, it is clear that the provisions of Article 8 of FD 2008/909 actually refer to the duration and nature of the penalty imposed by the sentence. As far as the duration is concerned, there is no doubt that it is limited solely to the maximum period provided for by the law of the executing State for the same offence, but as far as the nature of the penalty is concerned, the question arises as to whether this nature should be examined only in relation to the penalty itself, or whether we should also take into account the execution modality. In other words, is it sufficient for the recognition that the sanction is a custodial sentence, or is it also necessary to take account of the manner in which it is carried out, particularly if such a manner is not regulated at all by the national law of the executing State? Does the modality of execution influence the nature of the sanction and create the premises for adaptation to the penalties provided for by the national law of the executing State? We do not think so, although there is a grey area in which, despite the principle of mutual trust, some sanctions could not be enforced on the territory of another state because of the lack of harmonisation among the national legislations of the Member States regarding alternative execution modalities of a custodial sentence, either because it would violate the principle of nulla poena sine lege, or because it could be considered as aggravating the sanction imposed in the issuing State. In this context, utilising several Romanian case studies that reflect the limits of national regulations, which may also be of relevance for other states (1), considering the common aim of Framework Decision 2008/909 and Framework Decision 2008/947 (2), we aim to underscore the importance of harmonising national legislation in the context of the principle of mutual trust (3), and in turn, highlight the effects of the lack of harmonisation of national legislations regarding alternative means of enforcing sentences (4). We will also attempt to draw some general conclusions and propose some solutions to the problems encountered in this area (5).

Case studies

To illustrate the problems of recognition and enforcement of judgements imposing an alternative form of enforcement of a custodial sentence, not provided for in the national law of the executing State, we present three cases decided by the Romanian courts, which could also be relevant to relations between other states as well.

Case no. 1

The Italian judicial authorities have made a request, based on Framework Decision 2008/909, for the recognition of the criminal conviction and the transfer of the sentenced person to a prison in Romania in order to serve the sentence. The person concerned had been sentenced by the Italian judicial authorities to 363 days’ imprisonment for the offence of smuggling, as he had evaded customs control in respect of 1,580 cigarettes (17.58 kg of tobacco). Subsequently, the Public Prosecutor’s Office of the Ordinary Court of Rome, Criminal Enforcement Office, issued an ‘Order for the execution of a prison sentence under Art. 656 para. (1) C. proc. pen. (sentenced at liberty)’, requiring the sentenced person A. to serve his sentence under house arrest. which, according to the information provided by the authorities of the issuing State, is a custodial method of serving the prison sentence.

The Romanian authorities responsible for processing the request for recognition noted that the regime of house arrest applied by the Italian judicial authorities did not correspond to any of the methods of enforcement provided for by Romanian criminal law, which allows only one form of custodial enforcement, namely, detention. Accordingly, the Romanian judicial authorities found that they could not change the actual method of execution of the prison sentence (imprisonment in Italy under home detention regime) to a non-custodial method (suspension under supervision of the execution of the prison sentence in Romania), nor could they order that the remainder of the prison sentence be executed on Romanian territory, since it was clear that execution in a Romanian prison would aggravate the situation of the convicted person, contrary to Article 166(9) of Law No. 302/2004 on international cooperation in criminal matters, so the request for recognition of the foreign judgement was rejected.

Therefore, in light of the arguments put forward by the Romanian judicial authorities, the person sentenced in Italy, who was ordered to serve his sentence under home detention regime, was placed in a situation where he could not benefit either from the provisions of Framework Decision 2008/909, since the court considered that by continuous deprivation of liberty in a penitentiary the sentence would have been aggravated, or from those of Framework Decision 2008/947, due to the explicit prohibition in Article 1(3) so that the objective of social rehabilitation could not be achieved.

Case no. 2

A.M., a Romanian citizen, was sentenced by the Gdynia District Court (Poland) on 3 April 2018 to 1 year’s restricted liberty (file no. II K 161/18) with the obligation to perform 25 h of supervised work per month without remuneration and for community purposes. The Romanian court asked the issuing authority for additional information on the nature of the sentence, and it was informed that it was an alternative sanction involving the performance of supervised work only. The court rightfully considered that the most similar probation measure provided for by Romanian criminal law was a deferred sentence and adapted the sanction to the maximum of community service, namely, 60 days. It also stated that since the judgement did not contain a custodial sentence or measure involving deprivation of liberty to be enforced in the event of non-compliance with the obligations or instructions concerned, it would not assume the revocation of the deferred sentence and the imposition of a custodial sentence or a measure involving deprivation of liberty.

The sentenced person did not agree to perform community service before the court of the issuing State because Polish law, unlike Romanian law, does not require such an agreement. Does the sentenced person’s refusal to perform community service constitute an obstacle to the recognition and enforcement of the measure in Romania?

We believe that the answer can only be in the negative since the conditions under which the sentence was imposed are governed by the law of the issuing State. Additionally, the performance of unpaid community service does not constitute forced labour within the meaning of Art. 5(2) of the Charter of Fundamental Rights of the European Union.

According to Recital 5 of the Framework Decision 947, the Decision respects fundamental rights and adheres to the principles recognised in Article 6 of the Treaty on European Union. Article 5(2) of the Charter of Fundamental Rights of the European Union stipulates that no one shall be required to perform forced or compulsory labour. The right in Article 5(1) and (2) corresponds to Article 4(1) and (2) of the ECHR, which has the same wording. It therefore has the same meaning and scope as the ECHR Article, by virtue of Article 52(3) of the Charter. Consequently, ‘forced or compulsory labour’ must be understood in light of the ‘negative’ definitions contained in Article 4(3) a) of the ECHR: ‘For the purpose of this article the term “forced or compulsory labour” shall not include any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention’.

The term ‘forced or compulsory labour’ means, according to the Convention No. 29 of the International Labour Organisation concerning Forced or Compulsory Labour, ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. This definition is a starting point from which to interpret Article 4 of the ECHR. In the present case, the community service did not go beyond what is ‘ordinary’, in this context, as it was calculated to assist the sentenced person in reintegrating himself into society and had as its legal basis provisions that have an equivalent in many other Member States of both the European Union and the Council of Europe.

It should be noted that if the sentenced person’s lack of consent is considered an insurmountable obstacle to the recognition of the judgement and the supervision of the alternative sanction, due to the principle of the legality of any sanction, the competent authority of the executing State shall communicate by appropriate means with the competent authority of the issuing State, which may withdraw its request.

Case no. 3

G.A., a Romanian citizen, was sentenced on 28 April 2022 by the District Court of Limburg – Criminal Section (The Netherlands) to 18 months’ imprisonment, to be released on probation on 15.09.2022. During the probation period, the convicted person was obliged to report regularly to the probation service. The Romanian court rejected the request for recognition and enforcement of the above judgement because the remaining part of the conditional release sentence is less than 2 years, and therefore the condition laid down in Art. 200 of Law 302/2004 is not fulfilled.

It has to be stated, in this context, that the Romanian Criminal Code provides for supervision measures and obligations to the sentenced person only if the remaining part of the prison sentence, upon conditional release, is 2 years or more. Also, according to Art. 200 of Law no. 302/2004 on international judicial cooperation in criminal matters, for the purpose of this matter, court decision means any final decision whereby a court imposed against a natural person having committed an offence one of the following sanctions: suspension in serving the sentence on probation; deferred sentence; conditional release if the remaining part of the prison sentence, upon conditional release, is 2 years or more; an alternative sanction; (…). Art. 200 of Law 302/2004 was modified in 2017 and its statement of reasons stipulates that the piece of legislation needed to be modified in order to correspond to the Criminal Code.

The Romanian legislator considered that, since national law does not allow the imposition of supervision measures or obligations in the case of a probation period of less than 2 years, probation is incompatible with Romanian law if the remaining part of the conditional release sentence is less than 2 years, and no adaptation is possible.

However, according to the Court of Justice of the European Union’s judgement of 26 March 2020 in case C 2/19,

Article 1(2) of Council Framework Decision 2008/947/JHA of 27 November 2008, read in conjunction with Article 4(1)(d) thereof, must be interpreted as meaning that recognition of a judgment that has imposed a custodial sentence whose execution is suspended subject to the sole condition that a legal obligation not to commit a new criminal offence during a probation period be complied with falls within the scope of that framework decision, provided that that legal obligation results from that judgment or from a probation decision taken on the basis of that judgment, a matter which is for the referring court to establish.

The Court of Justice of the European Union considered that the obligation imposed on a sentenced person not to commit a new criminal offence during a probation period must, inasmuch as it constitutes an instruction intended to determine that person’s conduct, be considered to be an ‘instruction relating to behaviour’, in accordance with that term’s usual meaning in everyday language. The obligation not to commit a new criminal offence during a probation period may, in principle, constitute a probation measure, within the meaning of Article 2(7) of Framework Decision 2008/947, when it is a condition upon which suspension of the execution of a custodial sentence is contingent.

According to the Romanian legislation it is mandatory, within the probation sentence, to warn the convicted person about his/her/their future conduct and about the consequences he/she/they will be exposed to if he/she/they continue/s to perpetrate offences, we consider the above-mentioned condition – that the ‘legal obligation results from that judgement or from a probation decision taken on the basis of that judgement’ – is met.

Therefore, as the mere obligation not to commit new offences is an obligation whose observance can be supervised by the probation officer of the executing State, it follows that any conditional release, where the time remaining before the sentence is considered served is more than 6 months, falls within the scope of the Framework Decision. However, Article 200(2)(a)(iii) of Law No 302/2004 allows recognition and enforcement of a judgement of a Member State of the European Union ordering conditional release only if the remainder of the sentence not served at the date of release is 2 years or more.

The common aim of the framework decision 2008/909 and framework decision 2008/947

Essentially, the scope of the Council Framework Decision 2008/909 of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union concerns the conditions under which the Member States of the European Union recognise each other’s judgements and enforce their sentences, the stated purpose being to facilitate the social rehabilitation of sentenced persons in the state where they have the best chance of social reintegration.

Given the inherent differences between the national laws of the Member States referred to above, Article 8(3) of the Framework Decision provides, where the sentence is incompatible with the law of the executing State in terms of its nature, for the possibility to adapt it to the punishment or measure provided for under its own law for similar offences. However, such an adapted punishment or measure shall correspond as closely as possible to the sentence imposed in the issuing State, and therefore the sentence shall not be converted into a pecuniary punishment.

At the same time, the Framework Decision specifically requires that the adapted sentence should not aggravate, in its nature or duration, the sentence imposed in the issuing State.

The concept of ‘sentence’ is also defined, but only partially, by the provisions of Article 1 of the Framework Decision, which states that ‘sentence’, for the purposes of this Decision, means ‘any custodial sentence or any measure involving deprivation of liberty imposed for a limited or unlimited period of time on account of a criminal offence on the basis of criminal proceedings’. Beyond the fact that the definition seems to contain a circular argument, defining the concept by itself, we note that, in fact, the provisions referred to essentially adopt the criteria derived from the case law of the ECtHR ¹ to determine the punitive nature of a sanction, including, but not limited to, the deprivation of liberty and the procedures associated with its enforcement. Instead, the Framework Decision restricts the meaning of the term ‘sentence’, which may fall within its scope exclusively to sentences involving deprivation of liberty (detention), without making any reference to sentences involving alternative ways of enforcement, which, as we will show, in certain cases involve a combination of restriction of liberty and deprivation of liberty as such.

Regarding the concept of detention, the Court of Justice of the European Union has come dangerously close to the risk of extending the concept of custodial penalties to include also the execution modalities, which only restrict the liberty of a person. In the case of JZ, ² in response to a question raised by the Polish judicial authorities concerning the inclusion in the length of the sentence of the restrictive measures to which the person was subject in the United Kingdom following the execution of a European arrest warrant, the Court of Justice ruled that the concept of ‘detention’, which features in Article 26(1) of Framework Decision 2002/584, is ‘an autonomous concept of EU law that must be given an autonomous and uniform interpretation throughout the European Union’. ³ The Court held that the terms ‘detention’ and ‘deprivation of liberty’ are similar concepts, the ordinary meaning of which evokes a situation of confinement or imprisonment, and not merely a restriction of the freedom of movement, but ‘the deprivation of liberty, which is a constituent of detention, can characterise both imprisonment and, in exceptional cases, other measures which, while not constituting imprisonment in the strict sense, are nevertheless so restrictive as to require them to be treated in the same way as imprisonment’, such as measures that are, on account of the type, duration, effects and manner of implementation of the measures in question, of such a severity as to deprive the individual in question of his liberty in a way that is comparable to imprisonment. ⁴

Therefore, we believe that if it is accepted that restrictive measures could also be considered as deprivation of liberty in relation to criteria concerning the nature, duration, effects and methods of execution, the reasoning could be extended to penalties imposed by final judgement for the commission of criminal offences which, although not involving detention in the strict sense, should be considered as deprivation of liberty in relation to the same criteria and, consequently, fall within the scope of Framework Decision 2008/909. According to this reasoning, the sentence, which involves the home detention regime, would be equivalent to the custodial sentence, which involves a continuous deprivation of liberty in a penitentiary and would not have the effect of aggravating the initial sentence.

In turn, the scope of the Council Framework Decision 2008/947 of 27 November 2008 on the application of the principle of mutual recognition to judgements and probation decisions with a view to the supervision of probation measures and alternative sanctions aims at mutual recognition and supervision of suspended sentences, deferred sentences, alternative sanctions and conditional release decisions, the stated purpose of which (paragraph 8 of the Preamble and Article 1) is to increase the chances of social reintegration of the sentenced person, enabling him or her to maintain familial, linguistic, cultural and other links, and to improve the monitoring of compliance with probation measures and alternative sanctions in order to prevent recidivism, thus paying due attention to the protection of victims and the general public. At the same time, Art. (1), the Framework Decision, defines its scope by reference to judicial decisions applying: (a) a custodial sentence pr measure involving deprivation of liberty if a conditional release has been granted on the basis of that judgement or by a subsequent probation decision; (b) a suspended sentence; (c) a suspended sentence; and (d) an alternative sanction.

By contrast, this Framework Decision explicitly excludes from its scope the enforcement of judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty, which would fall within the scope of Framework Decision 2008/909, that is, judgements imposing a custodial sentence or measure involving deprivation of liberty as described above.

The conclusion to be drawn from the examination of the scope of each of the two Framework Decisions is that, where a custodial sentence has been imposed by a judgement of the issuing State and an alternative modality of execution that does not involve deprivation of liberty (continuous or not) in a penitentiary has been ordered, the same judgement cannot be recognised and enforced in the territory of the Member State of which the sentenced person is a national, if the law of the latter state does not itself provide a similar or compatible modality of execution of custodial sentences and the sentence is to be executed by continuous deprivation of liberty in a penitentiary. In particular, recognition and enforcement of the sentence in the territory of the executing State will not be possible under Framework Decision 2008/909, as it would be contrary to the prohibition to aggravate the sentence imposed in the issuing State by keeping the sentenced person in custody, and recognition and enforcement by adapting the probation measures under Framework Decision 2008/947 will not be possible, as a custodial sentence involving deprivation of liberty is expressly excluded from the scope of the latter Framework Decision.

The situation is also reflected in the perspective of the lack of harmonisation of national legislation regarding probation measures, which, as we will show, has as a consequence the impossibility of recognising and enforcing some court decisions in consideration of Decision – framework 2008/947, or at least, raises real adaptation issues.

In this way, the principle of mutual recognition becomes purely theoretical with regard to the sentenced person, who is denied access to justice under both Framework Decision 2008/909 and Framework Decision 2008/947 and is placed in the situation of having to serve his sentence, in the alternative manner determined by the court of the issuing State, in the territory of the state with which he may have no social, family or other links, contrary to the purpose of the Framework Decisions, which is to have the sentence served in the territory of the State with the best chance of social reintegration.

The importance of harmonising national legislation in the context of the principle of mutual trust

The principle of mutual recognition is covered by Art. 82 para. (1) TFEU, according to which, ⁵ ‘Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgements and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83’.

In its 1998 Cardiff conclusions (see European Council, Presidency Conclusions, 1998) the European Council stated that the Council should ‘identify the scope for greater mutual recognition between Member States of decisions of each other’s courts’. In essence, this principle would seek to facilitate ‘the recognition by each Member State of decisions of the courts of other Member States with a minimum of procedure and formality’. Relying on the principle of mutual recognition was thus seen as the right way to overcome the reluctance of some Member States to harmonise substantive aspects of their criminal law, as this principle would strike the right balance between ‘unity and diversity’. The next year, the European Council held a special meeting on 15 and 16 October 1999 in Tampere on the creation of an area of freedom, security and justice in the European Union. At the start of proceedings an exchange of views was conducted with the President of the European Parliament, Mrs Nicole Fontaine, on the main topics of discussion, the latter pointing out that

“judicial cooperation is running into genuine problems, prejudices or ingrained ideas of sovereignty which I do not underestimate, but which must be overcome in the higher interests of Union citizens. Rather than continuing the Sisyphean task of seeking to harmonise national criminal laws on the basis of a lowest common denominator, would it not be better to follow the approach employed in connection with the mutual recognition of diplomas. Initially regarded as revolutionary, it has cleared the way for the free movement of workers and freedom of establishment in the internal market. Do you, as Heads of State and Government, regard the mutual recognition of judicial decisions as an appropriate way forward?”

The EU leaders agreed, and under point 33 of the Conclusions of the European Council in Tampere, after having affirmed that cooperation between authorities and the judicial protection of individual rights would be facilitated by enhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation, the European Council endorsed the principle of mutual recognition as ‘the cornerstone of judicial cooperation in both civil and criminal matters within the Union’, which should apply both to judgements and to other decisions of judicial authorities.

After the Tampere meeting, the European Commission mentioned that mutual recognition is a principle that is widely understood as being based on the thought that while another state may not deal with a certain matter in the same or even a similar way as one’s own state, the results will be such that they are accepted as equivalent to decisions by one’s own state (see Communication from the Commission to the Council and The European Parliament – Mutual Recognition of Final Decisions in Criminal Matters, 2000).

Moreover, a decision taken by an authority in one state might be recognised as such in another state, even though a comparable authority might not even exist in that state, might not have been able to take such decisions, or might have taken a completely different decision in a comparable case. It was also noted that mutual recognition is based on mutual trust, not only trust in the adequacy of each other’s rules, but also trust that these rules are correctly applied. For its part, the Court of Justice of the European Union has had the opportunity to rule on the principle of mutual trust and mutual recognition in related cases C-562/21 PPU and C-563/21 PPU, ⁶ where it recalled that

both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security, and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’. ⁷

In countering this principle, the literature has shown, through an extremely thorough analysis, that mutual trust must not be confused with blind trust [mutual (yet not blind) trust] (Lanaerts, 2017), and although the Member States should be considered equally committed to upholding the rule of law within the borders of the European Union, on exceptional circumstances, the national courts are entitled to check if this in abstracto presumption is also valid in concreto, in order to guarantee effective judicial protection of the fundamental rights recognised by European law.

It has also been pointed out in the legal literature (Marguery, 2018) that the purpose of simplified transfer procedures, which are based on the principle of mutual recognition, which is in turn based on mutual trust between the Member States of the European Union, is to ensure the inevitability of punishment and the fulfilment of all its functions in cross-border cases. However, it has been shown that mutual trust is a legal fiction, as on the one hand it fails to ensure adequate protection of fundamental rights (the external limits of the sanction), especially where conditions of detention are not appropriate, and on the other hand it has a disruptive effect on the retributive, preventive and rehabilitative functions of punishment (the internal limits of the sanction). Consequently, a failure of the principle of mutual trust may undermine the area of freedom, security and justice, which the European Union is designed to ensure, a consequence that can only be avoided if there is real harmonisation of Member States’ criminal law policies, based on concern for the individual and his, her or their fundamental rights.

It follows that the effectiveness of the principle of mutual trust is linked to the harmonisation of the national laws of the Member States, without which, as we shall show below, the legal instruments designed to ensure the implementation of the principles of mutual trust and mutual recognition become almost illusory.

Art. 67 para. 3 and Art. 82 para. 2 of the Treaty on the Functioning of the European Union (TFEU) state that the harmonisation of national criminal law must be deemed ‘necessary’ and must respect the ‘legal systems and traditions of the Member States’.

Some criminal law scholars (Hecker, 2015) consider this reference a genuine legal principle under Union law, based on respect for the sovereignty of Member States and deference to democratic decision-making in these states. Others (Schroeder, 2020) view the references in Articles 67 and 82 of the TFEU as emphasising the significance of the principles of subsidiarity and proportionality in EU criminal law. According to the subsidiarity principle outlined in Article 5(3) of the EU Treaty, EU harmonisation measures in criminal law must provide added value for Europe. Otherwise, the objectives cannot be achieved sufficiently by the Member States. Furthermore, in accordance with the proportionality principle outlined in Article 5, paragraph 4 of the Treaty on European Union, such measures must not exceed what is necessary. This implies that the more invasive harmonisation measures interfere with national criminal law systems, the more crucial they must be in achieving the Union’s goals.

At the European Union level, there has been a long-standing and constant concern to adopt uniform rules both on the nature and type of sanctions applied by the judicial authorities of the Member States and on the arrangements for individualising the way in which sanctions are enforced, leading to a genuine European criminal law designed to ensure the effectiveness of international judicial cooperation mechanisms.

Regarding the first component, there has been a positive evolution towards a quasi-uniformity in the nature and type of custodial penalties provided for in the legislation of Member States. Any differences are mainly due to the terminology used or the penalty limits laid down in the various legislations for the same offences.

The second component referred to has been the subject of much debate and attention. The Member States of the European Union have been unable to standardise alternative methods of individualising the way in which sentences are executed. The reason for this failure has to do with the way in which each state’s legislation connects to the protection of moral and social values through criminal law, and to the retributive, utilitarian or mixed character attributed to custodial sentences, reflected in whether alternative execution modalities are regulated (Rus, 2023).

While in the case of the last two practical cases, the lack of harmonisation of national legislation was either not such as to produce effects with regard to the application of Framework Decision 947, or merely led to the need for national legislative intervention in order to bring the legislation in question into line with the text of EU law as interpreted by the CJEU. In the first case, the lack of harmonisation regarding the methods of enforcement of custodial sentences made it impossible to apply the two Framework Decisions. In this situation, we wonder whether, given that Article 83 TFEU concerns the definition of offences and penalties, the method of execution not being taken into account, the Member States should not follow more closely the recommendations of the European Parliament on the matter.

For example, as early as 1998 (see Resolution of the European Parliament, 1998), the European Parliament expressed concern about overcrowding and poor conditions in prisons and other detention facilities, and urged Member States to do their utmost to provide alternatives to the serving of short-term custodial sentences (while still ensuring public safety against dangerous offences), and to promote in particular those arrangements which have proved effective in some countries, such as community service or the electronic monitoring. The same concern was echoed in 2017 (see Resolution of the European Parliament, 2017), the point being made that there is no necessary correlation between the severity of sentences and a decrease in the crime rate. It was argued that deprivation of liberty should only be used in well-justified cases of serious crime and that the use of sanctions as an alternative to prison – such as house arrest or other measures – should be prioritised for prisoners who do not pose a serious threat to society.

The consequences of the lack of harmonisation of national legislations regarding alternative means of enforcing custodial sentences

From the perspective of the aim of harmonisation of the national legislation, the Member States are the ones which should determine the categories of offences and the penalties for which alternative means of enforcement were justified.

However, to illustrate the lack of harmonisation of legislation on alternative sanctions to imprisonment, we first take the example of certain Member States of the European Union, which have introduced alternative sanctions to imprisonment that have proven over time to be effective in achieving the objective of rehabilitating offenders. For example, according to the French Criminal Code, the semi-release regime for custodial sentences is ordered by the judge and means that a person sentenced to imprisonment, under certain conditions, may leave the prison in order to pursue professional activities, vocational training, seek employment, treatment or even participate in family life, with the obligation to return to the prison under the conditions laid down by the judge responsible for supervising the enforcement of sentences. The sentenced person will, however, be obliged to remain in the prison on days when, for whatever reason, his or her obligations outside the prison are interrupted. Under the same conditions, the judge may also decide that the sentence shall be served in whole or in part under electronic supervision or, if there is a medical, familial, professional or social reason, may decide to serve the sentence in instalments, no less than 2 days. In this case, the sentence may be served in instalments, by days, at weekends or on public holidays.

In the Grand Duchy of Luxembourg, the law of 20 July 2018 reforming the prison administration introduced Title IX on the enforcement of sentences into the Code of Criminal Procedure, which provides in Article 670 that the enforcement of custodial sentences is aimed, while respecting the interests of society and the rights of victims, at reintegrating the convicted person and preventing recidivism. This Title establishes the responsibility of the State Prosecutor for the enforcement of sentences passed by the courts, stipulating that the enforcement of sentences must begin within 6 months if the sentence is for a term of more than 1 year, and within 1 year if the custodial sentence is less than or equal to that term. The State Prosecutor has extremely broad powers in this area, with the possibility of deciding that the execution of a custodial sentence of 6 months or less should be carried out by means of unpaid work in the general interest (community service), while also deciding on other ways of executing sentences, taking into account the convicted person’s personality, state of health, behaviour, reintegration efforts and attitude towards the victim, as well as preventing the risk of escape and recidivism. In addition to imprisonment, the Code of Criminal Procedure provides for the possibility of serving sentences of up to 1 year in instalments, or sentences of more than 1 year, served in part and with at least 1 year remaining to be served, in instalments of at least 1 month each. In the case of sentences of less than 3 months’ imprisonment, the sentence may be served in instalments on weekends, public holidays or even during the sentenced person’s leave. Convicted offenders may also serve their custodial sentence in a semi-release regime, which grants them the right to leave prison regularly for professional activities, vocational training, medical or therapeutic treatment, or other activities recognised by law.

Legislation in the Republic of Italy also allows custodial sentences of up to 18 months to be served under a home detention regime, subject to certain conditions relating to the offence committed and the offender’s criminal record. The time spent in this regime is considered equivalent to incarceration.

On the other hand, given the particularities of the law-making process, public opinion or, in general, society’s reaction to legislative initiatives, aimed at ensuring alternative ways of enforcing criminal sanctions, has been negative, and in some cases, even vehement, linking the reasons for such proposals to the interest of the political factor in ensuring the impunity of persons accused of committing criminal offences. As a result, several legislative initiatives aimed at implementing the aforementioned principles have been abandoned, one example being that of Romania.

Therefore, in this country, there are no regulations for alternative means of executing custodial sentences. As a result, regardless of their duration, final custodial sentences will always require the incarceration of sentenced individuals in a detention unit and their execution in accordance with the law. In accordance with the national legislation (Law no. 254/2013), custodial sentences are executed under four regimes: maximum security, closed, semi-closed and open. Based on progressive and regressive systems, these regimes differ in the degree of restriction of freedom of movement within the detention unit, the granting of rights, the activities and the conditions of detention.

However, it is important to note that legislative measures with a particularly important impact on the execution of punishments in Romania were initiated by two draft laws on alternative measures for the execution of custodial sentences, which provided for the possibility of replacing the measure of execution of the main penalty with imprisonment in the detention regime with the measure of home detention, either with or without an electronic bracelet or with the measure of split execution of custodial sentences up to 4 years’ imprisonment. Unfortunately, none of the draft laws entered into force, either as a result of their rejection in Parliament, or as a result of objections of unconstitutionality admitted by the Constitutional Court of Romania.

The Romanian legislator’s hesitations have put Romania in an extremely delicate position regarding the recognition of court decisions related to Decisions – framework 2008/909 and 2008/947. More precisely, the absence of comparable regulation of alternative methods of enforcing custodial sentences in Romanian law means that foreign judgements cannot be recognised, and sentences cannot be enforced on Romanian territory. This denies the sentenced person access to justice under both Framework Decision 2008/909 and Framework Decision 2008/947.

As we have shown in case no. 1, the absence of a provision in the Romanian legislation on alternative execution modalities of custodial sentences had led to the refusal of the judicial authorities of the executing State to recognise the sentence passed by the judicial authorities of the issuing State. In our opinion, this was not a consequence of a misapplication of EU law by the Romanian judicial authorities, but a consequence of respect for the principle of legality of penalties and the rule laid down in Article 8 (4) of FD 909.

It is clear that FD 2008/909 refers only to penalties involving deprivation of liberty, as can be inferred from Article 1(b) of the FD, but it should also be borne in mind that other non-custodial penalties are covered by Framework Decision 2008/947.

Article 8(3) of FD 2008/909 provides for the possibility of adapting the sentence if it is incompatible with the law of the executing State in terms of its duration or nature, stating that such an adapted sentence must correspond as closely as possible to the sentence imposed in the issuing State.

With regard to the nature of the sanction, the provision explicitly sets two limits to this adaptation. The first is that a penalty involving deprivation of liberty may not be converted into a fine, since this would radically change the nature of the penalty. The second is provided for in Article 8(4), which states that the adapted sentence (penalty) may in no case be more severe than the sentence imposed in the issuing State in terms of its nature and duration.

These two limits are subordinated to another, which is not explicitly stated by the FD, but which is undeniable in view of the principle of the legality of penalties, as it is stated in Article 49 of the EU Charter of Fundamental Rights, which provides that a penalty must be regulated by law at the time it is imposed and also for the entire period of its execution.

The first problem to be solved by the judicial authorities is therefore to identify in the national law of the executing State a penalty of a similar nature and duration applicable to the same offence. If the national legislation does not provide for a similar penalty, the judicial authorities of the executing State will have to identify a penalty which, firstly, is compatible in terms of its nature with that imposed by the judgement of the issuing State, while being subject to the limitation provided for in Article 8(4) of FD 909, and, secondly, will have to compare its maximum duration with that of the penalty.

If a similar penalty is provided for by national law, the second problem to be addressed is whether the way of enforcement imposed by the issuing State affects this compatibility in terms of the nature of the penalty, because there is no provision for a similar execution modality. In other words, the question is whether a sanction such as imprisonment, which can be executed in one state under a semi-release or home detention regime, can be considered equivalent or compatible with a sanction of imprisonment, which can only be executed in the other state under a permanent deprivation of liberty regime.

In the case in point, the court considered that a sanction consisting of deprivation of liberty, for which the issuing State had decided that it would be carried out in the form of home detention, was compatible with a sanction also consisting of deprivation of liberty, which could only be carried out in a penitentiary, as provided for by Romanian national law, but refused recognition on the grounds that the adaptation would increase the severity of the sentence.

In order to support the Court’s statement, we consider that, for example, a custodial sentence for which the judicial authority of the issuing State has imposed an alternative execution modality, such as house arrest, is, from the point of view of FD 2008/909, a custodial sentence and entails a deprivation of liberty. However, if such a measure is not provided for in the national legislation of the executing State, its judicial authorities would be obliged to find a similar or compatible measure in order not to aggravate the sentence. Given that the penalty itself is deprivation of liberty and that it is also provided for in the national law of the executing State for similar offences, there would be no need to find another penalty. Although the modality of execution (house arrest) is not regulated at all in the national law of the executing State and the only modality of execution of a sentence of imprisonment is deprivation of liberty in a prison, the judicial authority, if it recognised and executed the sentence, could violate the provisions of Article 8(4) of FD 2008/909 because it could aggravate the sentence by imposing execution in a prison instead of house arrest. Furthermore, the judicial authority could not recognise and enforce the sentence by imposing the execution by home detention, as this would violate the principle of legality of punishment, since such a method of execution is not provided for by its own national legislation.

Conclusions

As we have shown before, the lack of harmonisation among the national legislations of the Member States can lead to two issues: on the one hand, to the refusal of recognising the foreign judgement by the national authorities of the executing State, and on the other hand, to real difficulties in adapting the measures and enforcing them in the executing State.

In the first case file that we have presented, under the regulation of FD 2008/909, in our opinion, it would be desirable for the national legislator that, responding to the recommendations of the European Parliament, to regulate alternative ways of enforcing custodial sentences which ensure more consistent prospects for the social reintegration of sentenced persons.

Unfortunately, in the absence of legislative modification, in order to proceed to the recognition and enforcement of the sentence, national courts can only interpret the provision of art. 8 paragraph 4 of FD 2008/909 in such a manner that the recognition of the sentence and execution of the sanction involving deprivation of liberty in a penitentiary would not aggravate the sentence of the issuing State as the aim of the FD is not to ensure the convicted person’s right to benefit from the most lenient sentence execution system among the involved States. Therefore, considering that the scope of FD 2008/909 is to facilitate social rehabilitation and the convicted person has expressed a valid and informed consent for transfer to the executing State territory, serving the sentence in a penitentiary instead of the alternative modality of home detention or a semi-release regime should not be considered an aggravation of the sentence. Therefore, the fact that a similar modality for execution is not regulated at all by the national law of the executing State should not be ground for refusing to recognise the sentence.

It could be objected to that according to the ECHR jurisprudence, some of the criteria for defining a penalty include the deprivation of liberty effect and the proceeding related to the execution itself. Therefore, converting a sentence executed under a semi-release or home detention regime that involves a continuous deprivation of liberty in a penitentiary could be considered an alteration of the nature of the penalty itself, and so, an aggravation of the sentence, which might result in a violation the article 8 paragraph 4 of FD 2008/909. On the other hand, we need to draw attention on the statement from the aforementioned JZ case, in which CJEU considers that a measure of only restriction of liberty may be assimilated to detention and so, changing a non or partial custodial sentence with one which involves deprivation of liberty would not be considered an aggravation of the sanction.

Regarding how to interpret the prohibition of aggravating the sentence, we consider it could be appropriate for national courts to ask the Court of Justice of the European Union for a preliminary ruling under Article 267 TFEU on the interpretation of Article 8(4) of Framework Decision 2008/909, that is, to what extent the adaptation of the way in which the sentence is enforced to one of the supervision measures provided for by the legislation of the executing State must be regarded as aggravating the penalty initially imposed by the judgement of the judicial authorities of the issuing State.

Regarding the other case files that we have presented, even if the national courts could be criticised for not properly applying the principles derived from the jurisprudence of the Court of Justice of the European Union, it turns out that it is necessary to adapt national legislations to avoid situations where procedures associated with the execution of a sentence hinder the effective implementation of the principle of mutual recognition.

In accordance with the Court’s settled case-law, the binding character of a framework decision places on national authorities, including national courts, an obligation to interpret national law in conformity with EU law. When the courts apply domestic law, they are therefore bound to interpret it, so far as possible, in the light of the wording and the purpose of the framework decision concerned to achieve the result sought by it. However, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem. ⁸

Consequently, without the abolishment of the requirement that the probationary period in the case of conditional release be longer than 2 years, probation decisions granting conditional release subject to the sole condition not to commit a new criminal offence during a probation period cannot be recognised and executed if the remainder of the sentence not served at the date of release is more than 6 months but less than 2 years.

However, even if the national legislator intervention is proven so necessary, we are aware that the particularities of the legislative process and the reaction of civil society in each Member State may make it impossible or delay the adoption of legislative initiatives in this area.

In summary, as long as FD2008/909 and FD 2008/947 provide the legal instrument to ensure the efficiency of the mutual trust, the harmonisation among the national legislations seems to be subsidiary for the mutual recognition of the judicial decisions. However, considering the differences between the national legislations of the State members, a harmonisation among the provisions of alternative execution modalities of the custodial sentences could be necessary to avoid different judicial application of the legal instruments and the refusal to recognise such sentences in cases where is it reasonable to consider that it could aggravate the penalty because of the modality of execution provided by the national law of the executing State.