Provisional text

delivered on 5 June 2025 (1)

Case C‑215/24 [Fira] (i)

YX,

with the participation of:

Ministério Público

(Request for a preliminary ruling from the Tribunal Judicial da Comarca do Porto – Juízo Local Criminal de Vila Nova de Gaia (District Court, Oporto – Local Criminal Court, Vila Nova de Gaia, Portugal))

( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2008/909/JHA – Framework Decision 2002/584/JHA – The principle of mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty – European arrest warrant – Surrender procedures between Member States – Suspension of the prison sentence by the judicial authorities according to the national law of the executing State )

I.Introduction

1.In the EU area of freedom, security and justice, a person given a custodial sentence in one Member State can serve the term of that sentence in another Member State, especially if that would benefit the social rehabilitation of that person. (2)

2.The present case concerns a person who has been convicted of a crime in Portugal but now resides in Spain. On the basis of Framework Decision 2008/909/JHA, (3) the Spanish authorities have decided to recognise and enforce the custodial sentence imposed by the Tribunal Judicial da Comarca do Porto – Juízo Local Criminal de Vila Nova de Gaia (District Court, Oporto – Local Criminal Court, Vila Nova de Gaia, Portugal) (‘the Portuguese court’).

3.However, the Juzgado Central de lo Penal n.° 1 de Madrid (Central Criminal Court No 1, Madrid, Spain) (‘the Spanish court’) has modified the sentence imposed by suspending the execution of a six-month prison sentence for a period of two years.

4.The Portuguese court, which is the referring court, asks whether such a modification is allowed under Framework Decision 2008/909.

5.The essence of the disagreement between the parties is whether a decision to suspend a sentence can be part of the execution of a judgment, which is the position of the Spanish Government, or whether it modifies the nature of that judgment, which is the position of the Portuguese Government and the European Commission.

II.The facts in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

6.On 9 October 2018, YX was given a six-month custodial sentence in Portugal for having committed the offence of tax fraud, established and sanctioned under Decreto-Lei n.º 20-A/90 (Decree-Law No 20-A/90) of 15 January 1990. That sentence was replaced by an alternative sentence of 180 day-fines. (4)

7.However, YX did not pay that fine, nor did he submit any proof to demonstrate that non-payment of the fine was not his fault. For that reason, in accordance with the Código Penal (Portuguese Criminal Code), (5) the referring court revoked the alternative sentence and ordered the enforcement of the original custodial sentence. (6)

8.However, that custodial sentence could not be executed in Portugal because YX could not be found in order to be served the arrest warrant in that Member State. Therefore, he was declared a fugitive from justice for the purpose of the imposed sentence.

9.A few years later, YX was located in Spain. Thus, on 22 February 2022, the competent Portuguese authorities issued, on the basis of Framework Decision 2002/584/JHA, (7) a European arrest warrant (‘EAW’), requesting YX’s surrender for the purpose of serving the six-month custodial sentence.

10.Article 4(6) of Framework Decision 2002/584 provides an optional ground of refusal to execute an EAW when a person whose surrender is requested is legally resident in the executing State, and that person wishes to serve the sentence in that State. Relying on that ground, the Spanish authorities refused to execute the EAW and undertook the obligation to recognise the sentence of the Portuguese court and to enforce it in Spain.

11.On 11 October 2023, in accordance with Article 80 of the Spanish Código Penal (Spanish Criminal Code), (8) the Spanish court suspended, for a period of two years, the custodial sentence of six months imposed on YX and informed the Portuguese authorities of that decision.

12.The Ministério Público (Portuguese Public Prosecutor’s Office) could not agree with the decision of the Spanish court on suspension. It therefore brought the matter before the Tribunal Judicial da Comarca do Porto – Juízo Local Criminal de Vila Nova de Gaia (District Court, Oporto – Local Criminal Court, Vila Nova de Gaia), the referring court in this case. Within the framework of those proceedings, the Portuguese Public Prosecutor’s Office requested that a question be referred to the Court of Justice for a preliminary ruling.

13.The referring court considers that the court of the executing State cannot modify the decision of the court of the issuing State by substituting its own decision for that of the court that handed down the sentence. The referring court further states that accepting such modification of the sentence would run contrary to the principles of mutual recognition and mutual trust. In the view of that court, by refusing to execute the EAW, the Spanish judicial authorities declared a willingness to take on the enforcement of the sentence in its entirety, without the possibility of transforming the custodial sentence into an alternative measure.

14.The referring court also considers that the Spanish judicial authorities should in any event have informed the issuing State in advance of the possibility that the custodial sentence might be suspended in order to allow the issuing State to respond.

15.In those circumstances, the Tribunal Judicial da Comarca do Porto – Juízo Local Criminal de Vila Nova de Gaia (District Court, Oporto – Local Criminal Court, Vila Nova de Gaia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) After having refused to execute [an EAW] pursuant to Article 4(6) of Framework Decision 2002/584 on the ground of the place of residence of the convicted individual, and after having recognised the sentencing judgment, may the executing State rely on the application of its domestic law and its jurisdiction as the executing State to suspend the actual custodial sentence imposed by the issuing State, when the procedure for enforcement of that judgment has already begun?

(2)May the judicial authority of the executing State amend the decision of the judicial authority of the issuing State where that decision has become res judicata, other than in the cases provided for in Article 8 and Article 17(1) and (2) of Framework Decision 2008/909?

(3)Should Article 17(1) of Framework Decision 2008/909 be interpreted as meaning that it allows the executing State to grant a suspension of the actual custodial sentence, by applying the conditions of its domestic law, where the competent authorities of the issuing State have not done so in accordance with their law?

In the event that the previous questions are answered in the affirmative:

(4)In view of the provisions of [Articles 12 and 13 and Article 17(3)] of Framework Decision 2008/909, should the Spanish judicial authorities (the executing State) have informed the issuing State in advance of their views on the possibility of suspending the custodial sentence imposed on the requested person?’

16.The Spanish and Portuguese Governments and the Commission submitted written observations to the Court.

17.A hearing was held on 19 March 2025 at which those parties presented oral argument.

III.Analysis

A.Setting the stage

18.A Member State can refuse to execute an EAW for serving a custodial sentence only if it commits to enforcing the sentence as it was handed down by the court of the issuing State.

19.If, for any reason, the executing State cannot enforce the custodial sentence as it was handed down by the court of the issuing State, then it must execute the EAW. (9)

20.The only exceptions which allow the executing State to depart from the sentence as handed down by the court in the issuing State are provided for in Article 8(2) and (3) of Framework Decision 2008/909. Those exceptions apply if a sentence as handed down in the issuing State is incompatible with the law of the executing State either because of its duration or because of its nature. In such a situation, the adapted sentence has to reflect – as closely as possible – the original sentence within the limits allowed by the law of the executing State. (10)

21.Therefore, the finding of guilt and the assessment of the proportionality of a sentence are undertaken in the issuing State and cannot be reconsidered by the executing State. (11)

22.For that reason, the Court considered, in the case giving rise to the judgment in Ognyanov that Article 8 of Framework Decision 2008/909 must be interpreted strictly and that it leaves only limited possibilities to the executing State to modify the nature or duration of the sentence as proclaimed by the issuing State’s court. (12)

23.Whereas sentencing (that is, establishing guilt and deciding on a proportional sentence) is a matter for the issuing State, the execution of the sentence is, as stated in Article 17(1) of Framework Decision 2008/909, a matter for the executing State.

24.Therefore, the principle of mutual recognition, as reflected in Framework Decision 2008/909, is applied in two ways: the executing State must, in principle, recognise sentencing by the courts of the issuing State, while the issuing State must, in principle, recognise the rules on execution of sentences as they exist in the executing State.

25.The crux of the matter in the present case lies in the fact that the Kingdom of Spain understands a decision on the suspension of a custodial sentence as a matter of its execution, whereas the Portuguese Republic, supported by the Commission, considers a decision on suspension as sentencing.

26.The answer to the question of whether suspension of a custodial sentence constitutes a modification or an execution of that sentence, which is the essence of the first three questions referred, depends on the interpretation of Framework Decision 2008/909, especially Articles 8 and 17 thereof. I will therefore analyse those three questions together under section C of the present Opinion.

27.If suspension of a custodial sentence constitutes a modification of the nature of the original custodial sentence, it follows that Article 8 of Framework Decision 2008/909 applies and prohibits the Spanish executing authorities from adapting the custodial sentence by turning it into a suspended custodial sentence. If, however, suspending the custodial sentence is a modality of executing such a sentence, Article 8 of Framework Decision 2008/909 would not be applicable. Rather, the executing State would be able to decide to suspend a custodial sentence as part of its execution under Article 17 of that decision.

28.Before undertaking that analysis, I will briefly consider the plea of inadmissibility raised by the Kingdom of Spain (B).

29.The fourth question is conditioned by a positive answer to the first three questions. As I will propose that the Court answer those questions negatively, there is no need to answer the fourth question.

B.Admissibility

30.The Spanish Government challenged the admissibility of the reference. In its view, it is neither possible to understand what kind of proceedings are taking place before the referring court nor to understand why the Court’s answers are relevant for the main proceedings.

31.It is established case-law that the Court can reply to questions referred in preliminary ruling procedures only if the answer will be of use to the national court to enable it to determine the case before it. (13)

32.At the same time, it is also established case-law that questions of interpretation of EU law referred by national judges enjoy a presumption of relevance. The Court may refuse to rule on such questions only where it is quite obvious that the interpretation of EU law has no relation to the subject of the case pending before the referring court. (14)

33.In the procedure regulated by Framework Decision 2008/909, the authorities of the issuing State have to agree that the custodial sentence is enforced by the executing State by issuing a certificate. (15) Such a certificate may be revoked as long as the enforcement of the sentence in the executing State has not begun. (16)

34.Thus, even if, regrettably, the referring court in the present case has not explained in the order for reference what exactly the purpose of the procedure initiated before it by the Portuguese Public Prosecutor’s Office is, the presumption of admissibility has not been rebutted. The answer given by the Court could help the referring court decide whether the certificate should be issued or revoked (if already issued). (17)

35.Therefore, it is not obvious that the answers to the questions referred are not necessary for the referring court to decide the case pending before it. I therefore propose that the Court answer the questions referred.

C.The suspension of the custodial sentence is a modification of that sentence

36.I am of the view that a decision to suspend a custodial sentence modifies its nature.

37.Therefore, I side in that respect with the arguments of the Portuguese Government and the Commission, which claimed that the custodial sentence and the suspended custodial sentence are two different types of sentence.

38.A decision to suspend a custodial sentence is thus not a matter of execution but, rather, constitutes a modification of such a sentence. Therefore, it does not fall within the scope of Article 17 of Framework Decision 2008/909. Rather, Article 8 thereof precludes the Kingdom of Spain from suspending the execution of a custodial sentence handed down by the Portuguese court.

39.I will substantiate my position by looking into the wording of the relevant provisions of Framework Decision 2008/909 and their context and purpose, answering the arguments of the parties to these proceedings at the same time.

1.Arguments based on Article 8 of Framework Decision 2008/909

40.The discussion about the ‘nature’ of the sentence results from Article 8 of Framework Decision 2008/909. According to paragraph 1 thereof, the executing State must, in principle, recognise and enforce the sentence as proclaimed by the court of the issuing State. Only if its legal system does not recognise custodial sentences of a certain duration (Article 8(2) of Framework Decision 2008/909), or of a certain nature (Article 8(3) thereof), may the executing State ‘adapt’ the sentence (see point 20 of the present Opinion).

41.A six-month custodial sentence is in principle recognised by Spanish criminal law. Therefore, suspension, which alters the nature of such a sentence, cannot be justified under Article 8(3) of Framework Decision 2008/909.

42.Furthermore, if the executing State considers it necessary to adapt the sentence as allowed by Article 8 of Framework Decision 2008/909, on the basis of Article 12(1) thereof, it must inform the issuing State of its decision as quickly as possible. In so doing, it enables the issuing State to decide to withdraw the certificate if it does not agree with such adaptations.

43.In the present case, the Spanish authorities have not provided such information to the Portuguese authorities on the basis of Article 12 of Framework Decision 2008/909, as they did not consider that they had altered the nature of the recognised sentence within the meaning of Article 8 thereof. Nevertheless, they informed the Portuguese authorities that they had suspended enforcement of the custodial sentence in its execution.

44.Distinguishing between a measure that constitutes sentencing and a measure relating to the execution or application of a sentence is not always clear-cut. (18)