delivered on 10 April 2025 (1)

Case C‑798/23 [Abbottly] (i)

Minister for Justice

SH

(Request for a preliminary ruling from the Supreme Court (Ireland))

( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Article 4a(1) – Grounds for non-execution of the European arrest warrant – Concept of ‘trial resulting in the decision’ – Conversion of an additional sentence of police supervision into a custodial sentence )

I.Introduction

This request for a preliminary ruling concerns the interpretation of Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009. (3)

The request has been made in proceedings concerning the execution, in Ireland, of a European arrest warrant issued against SH with a view to the execution, in Latvia, of a custodial sentence.

It follows from Article 4a(1) of Framework Decision 2002/584 that the executing judicial authority may refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person concerned did not appear in person at the trial resulting in the decision, unless certain circumstances listed in that provision are present.

The Supreme Court (Ireland) asks the Court, in essence, whether the concept of ‘trial resulting in the decision’ referred to in that provision covers proceedings in which a court may, owing to non-compliance with the conditions attached to a previously imposed additional sentence of police supervision, order that that sentence of police supervision be converted into a custodial sentence for a duration equal to half of the term of the sentence of police supervision that has not been served.

In this Opinion, I shall set out the reasons why I consider that that question should be answered in the affirmative.

II.The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

SH was convicted of two offences in 2014 by the Valmieras rajona tiesa (District Court, Valmiera, Latvia) and the Jēkabpils rajona tiesa (District Court, Jēkabpils, Latvia) resulting in each case in a term of imprisonment and a period of police supervision. On 27 October 2015, those sentences were combined into a custodial sentence of four years and nine months, and an additional sentence of police supervision for three years. In accordance with Latvian law, the execution of that additional sentence began from the moment that the custodial sentence was served by SH.

SH failed to comply with the obligation, required under the police supervision, to report to the police station within three working days of his release, even though he had been informed beforehand that, failing that, he risked an administrative penalty being imposed on him. Consequently, SH was found guilty of committing an administrative offence by the Zemgales rajona tiesa (District Court, Zemgale, Latvia) on 11 and 27 May 2020 and ordered to pay two fines on that basis.

If a person subject to police supervision is convicted for violating the rules of that supervision twice within one year, Latvian law provides that the competent court may replace the additional sentence which has not been executed with a deprivation of liberty, counting one day of deprivation of liberty for every two days of police supervision remaining. That conversion of the sentence is therefore done on the basis of a fixed and predetermined ratio.

In June 2020, the police station in Jēkabpils (Latvia) applied to the Zemgales rajona tiesa (District Court, Zemgale) to convert SH’s remaining period of police supervision into a deprivation of liberty.

On 25 June 2020, a court summons was sent by registered post to the notified place of residence of SH in Jēkabpils. That summons was not collected and was returned on 31 July 2020.

On 19 August 2020, a hearing took place before the Zemgales rajona tiesa (District Court, Zemgale) in the absence of SH. On the same day, that court handed down a decision ordering that the remaining term of SH’s sentence of police supervision, namely two years and two days, should be converted into a custodial sentence of one year and one day, in accordance with the ratio provided for in Article 45(5) of the Krimināllikums (Criminal Code) (‘the Latvian Criminal Code’). That decision was sent to SH, but was returned unclaimed. Nor did SH bring an appeal against that decision.

On 26 February 2021, a European arrest warrant was issued against SH with a view to executing the custodial sentence imposed on 19 August 2020 by the Zemgales rajona tiesa (District Court, Zemgale).

By judgment of 27 July 2022, the High Court (Ireland) refused the surrender of SH on the basis of the transposition into Irish law of Article 4a(1) of Framework Decision 2002/584.

As the High Court refused to grant the Minister for Justice and Equality (Ireland) (‘the Minister for Justice’) leave to appeal that judgment before the Court of Appeal (Ireland), that minister applied for leave to appeal the judgment before the Supreme Court, which was granted on 19 January 2023.

That court tends to consider that the Latvian procedure leading to the conversion of the additional sentence of police supervision into a deprivation of liberty is akin to the revocation of the suspension of the execution of a sentence which, as follows from the judgment of 22 December 2017, Ardic , (4) does not fall within the scope of Article 4a(1) of Framework Decision 2002/584. After all, the binding nature of police supervision can be equated with the conditions that are imposed as a matter of course in the context of the suspension of execution of a sentence.

In that regard, the referring court observes that it follows from that judgment that the concept of ‘decision’, within the meaning of that provision, does not cover a decision relating to the execution or application of a custodial sentence previously imposed, such as the revocation of the suspension of execution, except where the purpose or effect of that decision is to modify either the nature or quantum of that sentence and the authority which adopted it enjoyed some discretion in that regard. (5)

That court points out that, in this case, the period of police supervision began from the moment that the custodial sentence was served by SH. No new judicial decision modifying the nature and quantum of the custodial sentence previously imposed was taken, given that, in the event of non-compliance with the conditions of the police supervision, the duration of the deprivation of liberty likely to be imposed is determined by an arithmetical calculation provided for by Latvian law. It therefore fell solely to the Zemgales rajona tiesa (District Court, Zemgale) to decide whether or not to impose an additional custodial sentence, its duration being determined by law.

It is for that reason that the referring court expressed the provisional view that surrender should not be refused, on the ground that the deprivation of liberty decided on 19 August 2020 did not constitute a new sentence. The terms and parameters of the deprivation of liberty that followed the breaches committed by SH were clear and ascertainable and did not involve a new decision or a variation in terms of the nature or quantum of the original sentence.

Nevertheless, that court has some doubts as to that solution.

It observes that the sentence at issue in the main proceedings differs from that at issue in the judgment in Ardic . Thus, although the prospect of further imprisonment was inherent in the sentence imposed in 2015, the order made by the Zemgales rajona tiesa (District Court, Zemgale) did not simply require the defendant ‘to serve, in part or in full, the custodial sentences that had been initially imposed’. (6)

The referring court notes, in that regard, that the custodial sentence initially imposed on the defendant was served by him. Therefore, it is legitimate to take the view that the sentence imposed on him by the Zemgales rajona tiesa (District Court, Zemgale) involved a modification of the nature or quantum of the sentence previously imposed, which consisted of converting a sentence of police supervision into a further sentence of imprisonment.

Furthermore, the Zemgales rajona tiesa (District Court, Zemgale) had some discretion as to whether to impose such a sentence on SH, even if it had no discretion as to its length. Consequently, the referring court states that it cannot conclude that the answer to the question as to the interpretation and application of Article 4a(1) of Framework Decision 2002/584, in the circumstances of the appeal before it, is so obvious as to leave no scope for any reasonable doubt.

In those circumstances, the Supreme Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Where the surrender of the requested person is sought for the purpose of serving a custodial sentence imposed on that person as a result of violating the terms of a sentence of police supervision previously imposed on him, in circumstances where the court that imposed that custodial sentence had a discretion whether to impose a custodial sentence (though no discretion as to the duration of the sentence if imposed), are the proceedings leading to the imposition of that custodial sentence part of the “trial resulting in the decision” for the purposes of Article 4a(l) of [Framework Decision 2002/584]?

(2)Was the decision to convert the sentence of police supervision into a custodial sentence in the circumstances set out in (1) above, one that had the purpose or effect of modifying the nature and/or quantum of the sentence previously imposed on the requested person and, in particular, the sentence of police supervision that formed part of his previous sentence, such as to come within the exception referred to in para. 77 of [the judgment in] Ardic ?’

The Minister for Justice, SH, the Romanian Government and the European Commission filed written observations and participated in the hearing held on 9 January 2025.

SH’s lawyer having informed the Registry of the Court of Justice that he was imprisoned in Latvia, the Court, by decision of the President of the Court of 26 April 2024, sent a request for information to the referring court, the purpose of which was to determine whether an answer from the Court to the request for a preliminary ruling would still be useful for the purpose of resolving the dispute in the main proceedings.

By response of 10 May 2024, the referring court confirmed that SH was imprisoned in Latvia and that he had been surrendered to the Latvian authorities in execution of a European arrest warrant dated 17 February 2021, but stated that, in so far as SH had not been surrendered in execution of the European arrest warrant at issue in the main proceedings and that it was, therefore, not ruled out that the Latvian authorities might apply the mechanism provided for in Article 27 of Framework Decision 2002/584 in order to secure the execution of the custodial sentence imposed on SH, an answer to the request for a preliminary ruling would still be useful for the purpose of resolving the dispute in the main proceedings.

III.Analysis

By its two questions referred for a preliminary ruling, which, in my view, should be considered together, the referring court asks the Court, in essence, to rule on whether Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that the concept of ‘trial resulting in the decision’ contained in that provision covers proceedings in which a court may, owing to non-compliance with the conditions attached to a previously imposed additional sentence of police supervision, order that that sentence of police supervision be converted into a custodial sentence for a duration equal to half of the term of the sentence of police supervision that has not been served.

While the Minister for Justice and the Romanian Government propose to answer that question in the negative, essentially developing a line of reasoning based on the judgment in Ardic , SH and the Commission suggest deviating from that judgment and answering that question in the affirmative.

I agree with the position advocated by SH and the Commission.

Before setting out the reasons why I consider that proceedings leading to a judicial decision which converts a sentence of police supervision into a custodial sentence constitute a ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, it is important to understand clearly what that first sentence consists of and under what conditions it may be imposed by the competent court.

In that regard, reference should be made to Article 45 of the Latvian Criminal Code, entitled ‘Placement under police supervision’, which was worded as follows: (7)

(1)‘(1) Placement under police supervision is an additional sentence, which a court may adjudge as a compulsory measure, in order to supervise the behaviour of the person released from a place of deprivation of liberty and so that that person may be subjected to the limitations prescribed by the police institution. …

(2)The sentence of police supervision shall be imposed only when adjudging a custodial sentence, in the cases set out by the special part of this Law, for a term of not less than one year and not exceeding three years.

…

(4)If a convicted person, while serving the term of an additional sentence, has committed a new crime, a court shall replace the unserved term of the additional sentence with a deprivation of liberty and shall determine the final sentence in accordance with the provisions of Articles 51 and 52 of this Law.

(5)If a person for whom placement under police supervision has been determined by a judgment of the court violates the terms of that placement measure in bad faith, a court may, at the request of the police institution, replace the unserved term of an additional sentence with a deprivation of liberty, counting two days of police supervision as one day of deprivation of liberty.

(6)A violation of the terms of placement under police supervision is committed in bad faith if the person has received an administrative sentence twice within a one-year period for such a violation.’

In the context of the present case, it is Article 45(5) of the Latvian Criminal Code that is of particular relevance, in so far as it provides for the possibility for the competent court, at the request of the competent police authority, to convert a sentence of police supervision into a custodial sentence if the convicted person, acting in bad faith, fails to comply with the conditions attached to the first sentence. The remaining term of the sentence of police supervision is then converted on the basis of a fixed ratio, determined by law, of one day of deprivation of liberty for every two days of police supervision remaining.

In order to show that such a decision to convert a sentence falls within the scope of Article 4a(1) of Framework Decision 2002/584, it should be noted, at the outset, that it is settled case-law that that framework decision seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States. (8)

The principle of mutual recognition, which, according to recital 6 of Framework Decision 2002/584, is first implemented in the European arrest warrant, provided for in that framework decision, constitutes the ‘cornerstone’ of judicial cooperation in criminal matters. That principle is expressed in Article 1(2) thereof which lays down the rule that Member States are required to execute any European arrest warrant on the basis of that principle and in accordance with the provisions of the framework decision. (9)

It follows, first, that the executing judicial authorities may refuse to execute a European arrest warrant only on grounds stemming from Framework Decision 2002/584, as interpreted by the Court. Second, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly. (10)

In particular, Article 4a(1) of Framework Decision 2002/584 constitutes an exception to the rule requiring the executing judicial authority to surrender the requested person to the issuing Member State and must, therefore, be interpreted strictly. (11)

It is apparent from the very wording of Article 4a(1) of Framework Decision 2002/584 that the executing judicial authority is entitled to refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant indicates that the conditions set out, respectively, in subparagraphs (a) to (d) of that provision are met. (12)

38.In that respect, it should be noted that that provision thus restricts the possibility of refusing to execute the European arrest warrant by listing, in a precise and uniform manner, the conditions under which the recognition and enforcement of a decision rendered following a trial at which the person concerned did not appear in person may not be refused. (13)

39.Consequently, the executing judicial authority is obliged to execute a European arrest warrant, notwithstanding the absence of the person concerned at the trial resulting in the decision, where one of the situations referred to in Article 4a(1)(a), (b), (c) or (d) of Framework Decision 2002/584 is verified. (14)

40.In each of the situations referred to in Article 4a(1)(a) to (d) of Framework Decision 2002/584, the execution of the European arrest warrant does not infringe the rights of the defence of the person concerned or the right to an effective judicial remedy and to a fair trial, as enshrined in Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union. (15)

41.Before having to verify one of the situations referred to in Article 4a(1)(a), (b), (c) or (d) of Framework Decision 2002/584, the executing judicial authority must, however, determine whether it is faced with a situation in which the requested person did not appear in person at the ‘trial resulting in the decision’, within the meaning of that provision.

42.According to the Court’s settled case-law, the concept of ‘trial resulting in the decision’ referred to in that provision must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union, irrespective of classifications in the Member States. (16) That concept must be understood as referring to the proceedings that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a European arrest warrant. (17)

43.The Court stated that, in the event that proceedings have taken place at several instances which have given rise to successive decisions, at least one of which was given in absentia, the concept of ‘trial resulting in the decision’ refers to the instance which led to the last of those decisions, provided that the court concerned made a final ruling on the guilt of the person concerned and imposed a penalty on him or her, such as a custodial sentence, following an assessment, in fact and in law, of the incriminating and exculpatory evidence, including, where appropriate, the taking account of the individual situation of the person concerned. (18)

44.The Court also stated that, while they do not affect the finding of guilt set out in the previous decisions, proceedings giving rise to a judgment imposing a cumulative sentence, leading to a new determination of the level of custodial sentences previously imposed, must be regarded as relevant for the application of Article 4a(1) of Framework Decision 2002/584 where they entail a margin of discretion for the competent authority and give rise to a decision which finally determines the sentence. (19)

45.On the other hand, as the Court emphasised in its judgment in Ardic, a decision relating to the execution or application of a custodial sentence previously imposed does not constitute a ‘decision’ within the meaning of Article 4a(1), except where it affects the finding of guilt or where its purpose or effect is to modify either the nature or quantum of that sentence and the authority which adopted it enjoyed some discretion in that regard. (20)

46.It follows that a decision revoking the suspension of a custodial sentence on account of the breach by the person concerned of an objective condition attached to that suspension, such as the commission of a new offence during the probation period, does not fall within the scope of Article 4a(1), since it leaves that sentence unchanged with regard to both its nature and its quantum. (21)

47.Moreover, the Court stated that, since the authority responsible for deciding on such a revocation is not called upon to re-examine the merits of the case that gave rise to the criminal conviction, the fact that that authority enjoys a margin of discretion is not relevant, as long as that margin of discretion does not allow it to modify either the quantum or the nature of the custodial sentence, as determined by the decision finally convicting the requested person. (22)

48.The Court thus adopted a strict interpretation of the concept of ‘trial resulting in the decision’ within the meaning of Article 4a(1) of Framework Decision 2002/584. It noted that such an interpretation of that article is consistent with the case-law of the European Court of Human Rights. (23) According to that case-law, first, proceedings concerning the manner of execution of sentences do not fall within the scope of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (24) and, second, measures adopted by a court after the final sentence has been imposed or while it is being served can be regarded as ‘sentences’ for the purposes of that convention only if they may result in the redefinition or modification of the scope of the penalty initially imposed. (25)

49.Both the Minister for Justice and the Romanian Government have taken the view that the situation at issue in the main proceedings should be likened to that at issue in the case giving rise to the judgment in Ardic. To adopt a different approach would, in their view, be tantamount to giving precedence to form over substance, in so far as the decision to revoke the suspension of a custodial sentence and the decision to convert a sentence of police supervision into a custodial sentence have the same effect.

50.I do not share that view. I believe, in fact, like SH and the Commission, that the situation at issue in the main proceedings must be distinguished from that which gave rise to the judgment in Ardic, for the following reasons.

51.In the first place, as regards the protection of a fundamental right such as the right to a fair trial, it is appropriate to approach with caution the arguments in favour of extending by analogy the strict interpretation which the Court has been able to apply to measures which, while having certain comparable effects, are different in nature.

52.Indeed, it seems important to me to emphasise that the strict interpretation that should be given to Article 4a(1) of Framework Decision 2002/584 cannot hide the fact that the right of an accused person to be present at the trial is an essential element of the rights of the defence and, more generally, is of crucial importance in compliance with the right to a fair criminal trial, enshrined in the second and third paragraphs of Article 47 and in Article 48 of the Charter. (26)

53.In that regard, as the Court has emphasised, the ECtHR has held that a conviction in absentia of a person who has not been shown to have waived his or her right to appear and to defend himself or herself or to have sought to escape trial, without being given an opportunity, after having been heard, to obtain a fresh determination of the merits of the charge against him or her, in respect of both law and fact, constitutes a flagrant denial of justice. (27)

54.Moreover, as regards the origins and objectives of Article 4a of Framework Decision 2002/584, the Court has held that that provision seeks to guarantee a high level of protection and to allow the executing authority to surrender the person concerned despite that person’s failure to attend the trial which led to his or her conviction, while fully respecting his or her rights of defence. More specifically, as is expressly stated in Article 1 of Framework Decision 2009/299, read in the light of recitals 1, 4, 8 and 15 thereof, that Article 4a was inserted into Framework Decision 2002/584 in order to protect the right of the accused person to appear in person at the trial, while improving mutual recognition of judicial decisions between Member States. (28) As the Court has noted, the EU legislature thus decided to attach specific importance to that right. (29)

55.The effectiveness of the European arrest warrant mechanism must not therefore sideline the need to strengthen the procedural rights of persons subject to criminal proceedings.

56.From that perspective, Article 4a of Framework Decision 2002/584 must be interpreted and applied in a manner consistent with the second and third paragraphs of Article 47 and with Article 48 of the Charter, which, as stated in the Explanations relating to the Charter of Fundamental Rights, (30) correspond to Article 6 ECHR. The Court must, accordingly, ensure that its interpretation of the second and third paragraphs of Article 47 and of Article 48 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the ECtHR. (31)

57.Unlike questions relating to the manner of execution or application of a sentence, however, a judicial decision convicting the person concerned falls within the criminal limb of Article 6 ECHR. (32)

58.In that regard, it is apparent from the case-law of the ECtHR that the guarantees laid down in Article 6 ECHR apply not only to the finding of guilt, but also to the determination of the sentence. Thus, compliance with the requirement of a fair trial entails the right of the person concerned to be present at the hearing because of the significant consequences which it may have on the quantum of the sentence to be imposed. (33)

59.In the light of that case-law, it is important to ascertain whether a decision which could, at first sight, be regarded as a decision relating to the execution or application of a sentence cannot, in reality, be treated in the same way as a decision making a finding of guilt or as the determination of the sentence, to which the guarantees of Article 6 ECHR should be applied.

60.In the second place, it must be pointed out that the decision at issue in the present case concerns an additional sentence and does not constitute a decision relating to the execution or application of a custodial sentence previously imposed, unlike the decision at issue in the case which gave rise to the judgment in Ardic. Thus, the situation at issue in the main proceedings is not that of a manner of execution of a custodial sentence allowing the convicted person to serve such a sentence outside of prison, with the obligation to comply with a series of conditions.

61.In the third place, proceedings in which the police authority refers the matter to the competent court pursuant to Article 45(5) of the Latvian Criminal Code form part of the execution phase of the additional sentence of police supervision, that phase beginning after the custodial sentence has been served.

62.By those proceedings, the competent court is called upon to decide whether, owing to a failure by the convicted person to comply with the conditions attached to the sentence of police supervision, the unserved term of that sentence must be replaced with a custodial sentence, counting one day of deprivation of liberty for every two days of police supervision remaining.

63.Contrary to the conclusion reached by the Court in its judgment in Ardic, such a decision cannot, in my view, be regarded merely as a decision relating to the execution or application of the sentence of police supervision which, if that were the case, would then be excluded from the scope of Article 4a(1) of Framework Decision 2002/584.

64.After all, the proceedings by which the competent court may decide to replace the sentence of police supervision with a custodial sentence equate to the imposition of a new sentence different in nature from that which had been initially set.

65.That new sentence may be imposed by that court if it considers that the convicted person’s failure to comply with the conditions attached to the sentence of police supervision justifies it. The purpose of the custodial sentence which may be imposed, therefore, is to punish not the initial criminal offence which led to the imposition of the sentence of police supervision as an additional sentence, but the specific breaches of the conditions attached to that sentence. That court must therefore decide, after examining the person’s situation, whether or not those breaches justify converting mere police supervision into a deprivation of liberty.

66.Accordingly, I consider that the decision to convert a sentence at issue in the main proceedings falls more squarely within the category of decisions making a finding of guilt or determining a sentence than within the category of decisions relating to the manner of execution of a sentence. Such a decision should therefore fall within the scope of Article 4a(1) of Framework Decision 2002/584.

67.Consequently, it is necessary, in my view, to find that the proceedings that led the competent court to convert, pursuant to Article 45(5) of the Latvian Criminal Code, the sentence of police supervision into a custodial sentence must be treated in the same way as the proceedings that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a European arrest warrant. (34) It follows that the concept of ‘trial resulting in the decision’, contained in Article 4a(1) of Framework Decision 2002/584, covers proceedings such as those that led to the decision to convert the sentence at issue in the main proceedings.

68.It is true that, as the ECtHR has stated on several occasions, the distinction between a measure that constitutes a sentence and a measure relating to the execution or application of the sentence may not always be clear cut. (35) The situation at issue in the main proceedings is a good illustration of this since, as I indicated earlier, the decision of the competent court is taken in the context of the execution phase of an additional sentence of police supervision.

69.That being so, even if one evaluates the decision to convert the sentence at issue in the main proceedings, on account of its hybrid nature, as a manner of executing the sentence of police supervision, it must be held, first, that that decision has the effect of modifying the very nature of that sentence and, second, that the court which adopted it enjoyed some discretion in deciding on that modification. In accordance with the case-law of the Court, if those two conditions are met, it can be concluded that the executing judicial authority is faced with a ‘decision’ within the meaning of Article 4a(1) of Framework Decision 2002/584. (36) That holding, in my view, reinforces the idea that an application by analogy of the conclusion reached by the Court in its judgment in Ardic should, in any event, be excluded.

70.In that regard, it must be emphasised that, while non-compliance with certain conditions results in a return to prison both in the situation at issue in that judgment and in that at issue in the main proceedings, there are nevertheless a number of differences between the two situations.

71.Thus, in the situation at issue in the case that gave rise to the judgment in Ardic, it is the custodial sentence initially imposed which must be executed on account of the revocation of suspension, (37) both the nature and the level of that sentence remaining unchanged. (38) That revocation therefore reactivates a sentence which was finally determined at the time of the conviction, even if it was subsequently suspended subject to certain conditions. (39) By contrast, in the situation at issue in the main proceedings, non-compliance with the conditions attached to the additional sentence of police supervision gives rise, if the competent court so decides, to the imposition of a new custodial sentence which replaces the additional sentence initially imposed. It is not, therefore, the initial prison sentence, which has been served in full, that is reactivated. The basis for the deprivation of liberty is not the initial offence, but the repeated non-compliance with the conditions of police supervision, which, under Latvian law, constitutes an administrative offence.

72.It is indisputable that the additional sentence originally imposed then changes in nature. In particular, it seems important to me to stress that converting a sentence of police supervision into a custodial sentence transforms a measure whose purpose appears to be primarily preventive (40) into a measure with a punitive purpose. Police supervision after release from prison does not pursue such a purpose, but is intended to avoid the risk of reoffending and to promote the reintegration of the person released by ensuring that he or she behaves correctly.

74.In that regard, I note that the ECtHR has held that special police supervision ‘is not comparable to a criminal sanction because it is designed to prevent the commission of offences. It follows that proceedings concerning it did not involve “the determination … of a criminal charge”’, within the meaning of Article 6(1) ECHR. (41)

75.In addition, the ECtHR has held, in relation to a measure placing a person under administrative supervision, in connection with and following a criminal conviction, that such a measure did not constitute a ‘penalty’ within the meaning of Article 7(1) ECHR, in so far as the main purpose of that measure was to prevent reoffending, which gave it a preventive rather than a punitive character. (42)

76.I would add that, although placement under police supervision is described as an ‘additional sentence’ in Latvian law, that in no way excludes the possibility that it may be considered to constitute a preventive measure. In that regard, the ECtHR has stated that ‘the same type of measure may be qualified as an additional penalty in one State and as a preventive measure in another’. (43)

77.Furthermore, it is important to emphasise that, in the present case, the competent court, in judicial proceedings separate from those which gave rise to the initial conviction, has some discretion as to whether or not to convert the sentence of police supervision into a custodial sentence. Unlike the case that gave rise to the judgment in Ardic, in which the judicial authority’s power to revoke the suspension related not to the determination of the sentence but to its execution, (44) the margin of discretion enjoyed by the competent court in the present case relates to whether non-compliance with the conditions attached to the sentence of police supervision is sufficiently serious to justify converting that sentence into a deprivation of liberty. That is tantamount to determining whether a new sentence of a different nature must be imposed. In particular, that margin of discretion may allow that court to take account of the situation or personality of the person concerned, or of the circumstances which may explain that person’s non-compliance with the conditions attached to the sentence of police supervision. (45)

78.Admittedly, that possibility of converting a sentence is provided for by law, which sets the quantum of the custodial sentence that the competent court may impose, on the basis of a fixed ratio, determined by law, of one day’s deprivation of liberty for every two days of police supervision remaining. Nevertheless, that court has a margin of discretion as to the actual decision to order that conversion.

79.Still from the perspective of the margin of discretion enjoyed by the competent court, I note that the Court held, in its judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia), that the concept of ‘trial resulting in the decision’, in Article 4a(1) of Framework Decision 2002/584, encompasses a judgment imposing a cumulative sentence where the proceedings which gave rise to that judgment entail a margin of discretion in the determination of the level of that cumulative sentence. (46) As SH rightly emphasised at the hearing, it would be paradoxical to adopt a different solution where, as in the present case, the margin of discretion enjoyed by the competent court relates to the very nature of the sentence which the person concerned will have to serve at the end of the proceedings in question, namely either the maintenance of police supervision for the remaining term of the sentence, or the conversion of that sentence of supervision into a new custodial sentence on the basis of the quantum defined by law.

80.A final factor distinguishes the situation at issue in the main proceedings from that at issue in the case which gave rise to the judgment in Ardic. In that judgment, it is the initial convicting judgment that constitutes the enforceable judgment on which the European arrest warrant is based. Thus, the revocation of suspension does not entail a new decision relating to the determination of the sentence which forms the basis for the European arrest warrant. (47) That is different from the situation at issue in the main proceedings, where it is the new decision imposing a custodial sentence instead of the sentence of police supervision which was decisive for the issue of the European arrest warrant and which forms the basis for it. (48)

81.In the light of all of those factors, I consider that, from the moment when a judicial decision is not limited to the execution or application of a sentence previously imposed, but modifies the nature or quantum of that sentence, the competent court having enjoyed a margin of discretion in that regard, it is important to bring such a decision within the scope of Article 4a(1) of Framework Decision 2002/584 so that the executing judicial authority may verify one of the situations referred to in points (a), (b), (c) or (d) of that provision. In the present case, the ‘trial resulting in the decision’, within the meaning of that Article 4a(1), which imposed the custodial sentence, is therefore the trial that led to the decision to convert the sentence of 19 August 2020.

82.Consequently, the person concerned must, at the stage of the procedure intended to rule on the possible conversion of a sentence of police supervision into a custodial sentence, be able to fully exercise his or her rights of defence in order to assert his or her point of view in an effective manner and thereby to influence the final decision which could lead to the loss of his or her personal freedom. (49) In particular, that person must be able to put forward all matters of law or of fact which might lead the competent court to decide not to carry out such a sentence conversion.

83.The fact that, under Article 45(5) and (6) of the Latvian Criminal Code, a decision to convert a sentence is foreseeable as from the imposition of the additional sentence of police supervision, in the event of non-compliance with the conditions attached to that sentence, is, in my view, irrelevant for the purposes of classification as a ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584. Such foreseeability is consistent with the principle of the legality of criminal offences and penalties. It is the characteristic of any penalty resting on a legal basis to be foreseeable in the event of the commission of an offence. Nevertheless, the person liable to receive such a sentence must be able to influence the court’s decision by appearing in person at his or her trial.

84.What is important, with a view to that classification, is that the proceedings relating to the conversion of the sentence be capable of leading to a deprivation of liberty which, while foreseeable in the event of non-compliance with the conditions attached to the sentence of police supervision, was not, as such, part of the initial conviction and therefore requires the handing down of a new conviction substituting for the first.

IV.Conclusion

85.In the light of all of the foregoing considerations, I propose that the Court answer the questions referred by the Supreme Court (Ireland) for a preliminary ruling as follows:

Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that the concept of ‘trial resulting in the decision’ contained in that provision covers proceedings in which a court may, owing to non-compliance with the conditions attached to a previously imposed additional sentence of police supervision, order that that sentence of police supervision be converted into a custodial sentence for a duration equal to half of the term of the sentence of police supervision that has not been served.

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1Original language: French.

iThe name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2OJ 2002 L 190, p. 1.

3OJ 2009 L 81, p. 24; ‘Framework Decision 2002/584’.

4C‑571/17 PPU, ‘the judgment in Ardic’, EU:C:2017:1026.

5See the judgment in Ardic (paragraph 77).

6See the judgment in Ardic (paragraph 80).

7That article was repealed by a law of 8 July 2011, taking effect, in accordance with the transitional provisions of that law, on 1 January 2015. The sentence of police supervision has been replaced by that of supervision under probation.

8See, inter alia, judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:1017, paragraph 35 and the case-law cited).

9See, inter alia, judgments of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:1017, paragraph 36 and the case-law cited), and of 21 December 2023, G. K. and Others (European Public Prosecutor’s Office) (C‑281/22, EU:C:2023:1018, paragraph 59 and the case-law cited).

10See, inter alia, judgments of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:1017, paragraph 37 and the case-law cited), and of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia) (C‑396/22, ‘the judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia)’, EU:C:2023:1029, paragraph 36 and the case-law cited).

11See judgment of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension) (C‑514/21 and C‑515/21, ‘the judgment in Minister for Justice and Equality (Lifting of the suspension)’, EU:C:2023:235, paragraph 55), and order of 20 September 2024, Anacco (C‑504/24 PPU, ‘the order in Anacco’, EU:C:2024:779, paragraph 42).

12See, inter alia, the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 48 and the case-law cited), and the order in Anacco (paragraph 43).

13See, inter alia, the judgments in Minister for Justice and Equality (Lifting of the suspension) (paragraphs 49 and 71 and the case-law cited) and in Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 37 and the case-law cited), and the order in Anacco (paragraph 44).

14See, inter alia, judgments of 17 December 2020, Generalstaatsanwaltschaft Hamburg (C‑416/20 PPU, EU:C:2020:1042, paragraph 41), and in Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 40 and the case-law cited), and the order in Anacco (paragraph 45).

15‘The Charter’. See, inter alia, the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 73 and the case-law cited). The Court held that the adoption of Framework Decision 2009/299, which inserted Article 4a(1) into Framework Decision 2002/584, was intended to remedy the difficulties associated with the mutual recognition of decisions rendered in the absence of the person concerned at his or her trial arising from the differences as among the Member States in the protection of fundamental rights. That framework decision effects a harmonisation of the conditions of execution of a European arrest warrant in the event of a conviction rendered in absentia, which reflects the consensus reached by all the Member States regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant: see, inter alia, judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 62), and the order in Anacco (paragraph 58).

16See, inter alia, the judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 26 and the case-law cited), and judgment of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia) (C‑397/22, ‘the judgment in LM’, EU:C:2023:1030, paragraph 43 and the case-law cited).

17See, inter alia, the judgments in Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 27 and the case-law cited) and in LM (paragraph 44 and the case-law cited).

18See, inter alia, the judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 28 and the case-law cited).

19See, inter alia, the judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia)

(paragraphs 29 and 32 and the case-law cited).

20See the judgment in Ardic (paragraphs 77 and 88). See also the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 53).

21See, inter alia, the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 53 and the case-law cited). In that judgment, the Court stated that, where the suspension of a custodial sentence is revoked, on account of a new criminal conviction, and a European arrest warrant, for the purpose of executing that sentence, is issued, that criminal conviction, handed down in absentia, constitutes a ‘decision’ within the meaning of that provision. That is not the case for the decision revoking the suspension of that sentence (paragraph 68).

22See, inter alia, the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 54 and the case-law cited).

23‘The ECtHR’.

24Signed in Rome on 4 November 1950; ‘the ECHR’.

25See the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 58 and the case-law of the ECtHR cited).

26See, inter alia, the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 60 and the case-law cited).

27See the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 61 and the case-law of the ECtHR cited).

28See, inter alia, the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 50 and the case-law cited), and the order in Anacco (paragraph 48).

29See the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 64).

30OJ 2007 C 303, p. 17.

31See, inter alia, the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 51 and the case-law cited), and the order in Anacco (paragraph 56).

32See, inter alia, the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 59 and the case-law cited).

33See judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629, paragraph 87 and the case-law of the ECtHR cited).

34See, inter alia, the judgments in Generalstaatsanwaltschaft Berlin (Conviction in absentia) paragraph 27 and the case-law cited) and in LM (paragraph 44 and the case-law cited).

35See, inter alia, judgment of the ECtHR of 10 November 2022, Kupinskyy v. Ukraine (CE:ECHR:2022:1110JUD000508418, § 49 and the case-law cited). I refer also to the judgment of 3 April 2025, Alchaster II (C‑743/24, EU:C:2025:230), in which the Court indicated, on the subject of changes to a conditional release regime made after the alleged commission of the offence for which the person sought is prosecuted and in order to interpret the second sentence of Article 49(1) of the Charter, that it is necessary, in order to determine whether a measure concerns only the manner of execution of the sentence or, on the contrary, affects its scope, to ascertain in each case what the ‘penalty’ imposed or incurred actually entailed under domestic law in force at the material time or, in other words, what its intrinsic seriousness was (paragraph 26 and the case-law cited).

36See, inter alia, the judgments in Ardic (paragraph 77) and in Minister for Justice and Equality (Lifting of the suspension) (paragraph 53).

37See the judgment in Ardic, in which the Court stated that the only effect of suspension revocation decisions is that the person concerned must at most serve the remainder of the sentence initially imposed. Where the suspension is revoked in its entirety, the sentence once again produces all its effects and the determination of the quantum of the sentence still remaining to be served is derived from a purely arithmetic operation, with the number of days already served in custody being simply deducted from the total sentence imposed by the final criminal conviction (paragraph 81).

38See the judgment in Ardic (paragraph 82).

39See Opinion of Advocate General Bobek in Ardic (C‑571/17 PPU, EU:C:2017:1013, point 71). Thus, in that situation, a custodial sentence had already been imposed and then the remaining term of the sentence was suspended, such that the revocation of that suspension merely reinstated a custodial sentence previously imposed.

40That preventive dimension of police supervision was highlighted by SH and by the Commission at the hearing.

41See judgment of the ECtHR of 22 February 1994, Raimondo v. Italy (CE:ECHR:1994:0222JUD001295487, § 43). See also judgment of the ECtHR of 23 February 2017, De Tommaso v. Italy (CE:ECHR:2017:0223JUD004339509, § 143).

42See judgment of the ECtHR of 19 January 2021, Timofeyev and Postupkin v. Russia (CE:ECHR:2021:0119JUD004543114, §§ 70 to 82).

43See judgments of the ECtHR of 17 December 2009, M. v. Germany (CE:ECHR:2009:1217JUD001935904, § 74), and of 19 January 2021, Timofeyev and Postupkin v. Russia (CE:ECHR:2021:0119JUD004543114, § 75). As the ECtHR pointed out in those two judgments, ‘the supervision of a person’s conduct after release, for example, is an additional penalty under Articles 131-36-1 et seq. of the French Criminal Code and a preventive measure under Articles 215 and 228 of the Italian Criminal Code’.

44See the judgment in Ardic, in which the Court indicated that the competent court had only to determine whether the circumstance that the convicted person had not complied with the conditions attached to the suspension of the execution of custodial sentences justified requiring the convicted person to serve, in part or in full, the custodial sentences that had been initially imposed and the execution of which, subsequently, had been partially suspended. Consequently, while that court enjoyed a margin of discretion in that regard, that margin did not concern the level or the nature of the sentences imposed on the person concerned, but only whether the suspensions should be revoked or could be maintained, with additional conditions if necessary (paragraph 80).

45See, by analogy, the judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 31 and the case-law cited). See also, as regards Article 6 ECHR, judgment of the ECtHR of 28 November 2013, Aleksandr Dementyev v. Russia (CE:ECHR:2013:1128JUD004309505, § 26), and, concerning Article 7 ECHR, judgment of the ECtHR of 19 January 2021, Timofeyev and Postupkin v. Russia (CE:ECHR:2021:0119JUD004543114, § 79).

46See paragraphs 33 and 34 of that judgment.

47See the judgment in Ardic, in which the Court pointed out that decisions to revoke the suspension of the execution of previously imposed custodial sentences, such as those at issue in the case giving rise to that judgment, did not affect the nature or the quantum of custodial sentences imposed by final conviction judgments of the person concerned, which formed the basis of the European arrest warrant which the German authorities were seeking to execute in the Netherlands (paragraph 78).

48See the judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 67).

49See, in particular, the judgment in LM (paragraph 46 and the case-law cited). The Court stated that the outcome of that procedure is irrelevant in that context.