Article 49 - Principles of legality and proportionality of criminal offences and penalties
Key facts of the case:
Reference for a preliminary ruling — Framework Decision 2008/947/JHA — Mutual recognition of judgments and probation decisions — Scope — Judgment imposing a suspended custodial sentence — Probation measure — Obligation not to commit a new criminal offence — Obligation prescribed by law.
Outcome of the case:
I suggest that the Court reply as follows to the question referred by the Riigikohus (Supreme Court, Estonia):
Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions does not apply to a judgment that imposes a suspended sentence without imposing any probation measure within the meaning of that framework decision and where the only obligation of the sentenced person is to avoid committing a new criminal offence during the probation period.
92) There is no denying, in this context, that a broad interpretation of the scope of application of FD 2008/947 is likely to worsen the situation of the sentenced person in the present case (who has not reoffended). I take due note of the helpful clarifications provided by the referring court, linked to the issue of the proportionality of sanctions, expressed, under EU law, in Article 49(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’). According to the explanation provided in the order for reference, the recognition of the judgment at issue would make it possible to aggregate the previously imposed sanction with any new sanction. Conversely, without recognition, no aggregation is possible. I understand that the sentenced person concerned would then have to serve two sentences successively: the one for the new offence committed hypothetically in Estonia and the one imposed previously in Latvia.
95) Having clarified that element, it might only be recalled that the interpretation of criminal law measures should be governed by the principle of legality, enshrined, under EU law, in Article 49(1) of the Charter. By that, I do not mean the narrow conception of legality of criminal sanctions (nullum crimen, nulla poena sine lege), but the broader issue of certainty and foreseeability of the consequences that follow from a criminal conviction. ( 30 ) In other words, it seems that if the judgment at issue is recognised as falling under the scope of FD 2008/947, the scope of criminal law will be stretched to the detriment of the sentenced person. That, in itself, is yet another argument against the extensive interpretation of FD 2008/947.