April 01
Anjum Shabbir
26th March 2020
Justice & Litigation

CJEU rules on scope of ‘probation measures’ under Framework Decision 2008/947

The ruling in A.P. (C‑2/19) has been handed down by the Court of Justice today, in which it finds that a certain type of custodial sentence, the execution of which has been conditionally suspended, does fall within the scope of Framework Decision 2008/947 (with a proviso). Specifically, the condition under which the execution of the custodial sentence would remain suspended was that the individual in question must not commit a new criminal offence during a probation period.

The referring court had referred to Article 1(2) of the Framework Decision, which applies to ‘judgments’, ‘probation decisions’, ‘the transfer of responsibility for the supervision of probation measures and alternative sanctions’, and ‘all other decisions related to’ the foregoing – it was not sure if that included a suspended custodial sentence such as that in this case, and whether the contingent obligation not to commit a new criminal offence during a probation period is a ‘probation measure’.

The Court of Justice agrees that this type of ‘probation measure’ is covered by the Framework Decision. In its reasoning, it notes that under Article 2(7) of the Framework Decision, probation measures are constituted by ‘obligations and instructions imposed by a competent authority on a natural person’, the first step to finding that this type of legal obligation could be included. It further supported this in observing that Article 4(1)(d) of the Framework Decision refers to the wider category of ‘instructions relating to behaviour’, which it interpreted by taking into account the meaning of that expression in everyday language and the context of that provision, concluding that the obligation not to commit a new criminal offence during a probation period was included. And, it also took into account the fact that competent authorities of the executing Member States must be able to take subsequent decisions relating to a suspended sentence, it being paradoxical if a failure to comply with the obligation not to commit a new criminal offence could not be dealt with. Allowing the executing Member State to act upon any breach was considered as contributing to the attainment of the Framework Decision’s objective to protect victims, the general public, and overall in the intention to defer reoffending.

However, this was provided that ‘that legal obligation results from that judgment or from a probation decision taken on the basis of that judgment’, which the Court finds is for the referring court to establish.

Read the ruling here.


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