Secretariat‐General Head of Unit - C2

 

Dear Mr X,

On 19 October 2023, the European Ombudsman received a query from the Office of the Public Defender of Rights of the Slovak Republic.

In essence, the query concerns Council Framework Decision 2008/909/JHA on mutual recognition of judgments in criminal matters. The Slovak Public Defender of Rights  has dealt with a complaint from a Slovak citizen who has been deprived of liberty following criminal proceedings in Czechia, but whose transfer was refused by the Slovak courts. The reason given by the Slovak courts is that Framework Decision 2008/909/JHA applies only to people found guilty in criminal proceeding by a final judgement of conviction. This is not the case for this citizen, who, because of mental health issues, was declared not criminally responsible for his crimes. Nonetheless, he is still deprived of liberty under a decision of a criminal court and as a result of a criminal offence.

Based on this query, we would like to ask the Commission to reply to the following questions:

(1) Could the Commission clarify if Article (9(1)(k) of Council Framework Decision 2008/909/JHA[1] should be interpreted as covering cases where the person sentenced has not been found guilty of a criminal offence, but where the competent authority in the issuing Member State has nonetheless applied measures involving the deprivation of liberty as a consequence of a criminal offence based on criminal proceedings?

(2) Where the Commission replies in the affirmative to the first question, in what circumstances and on what grounds can a competent authority in an executing Member State refuse the transfer of a sentenced person where that individual is subject to a measure depriving them of their liberty in a psychiatric institution?

(3) The Commission, in its 2014 report on the implementation of Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA,[2] took the view that the list of grounds for transfer refusals provided by Article 9(1) should be understood as optional, and that the competent authority may decide on a case by case basis whether or not to apply a ground for refusal. Could the Commission provide us with an update on that matter, if there is any to report? More precisely, should Article 9(1) of Council Framework Decision 2008/909/JHA be interpreted as obligatory or optional grounds for refusal? Can a Member State decide if the grounds for refusal shall be obligatory or optional?

I would appreciate it if the Commission could respond to this query and the questions above by 6 December 2023 if possible, so that we can forward the information to the Slovak Public Defender of Rights.

A copy of this letter, and of the Commission’s reply, will be made available on the Ombudsman’s website.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 07/11/2023

 

[1] In light of the circumstances of the present case, please see in particular Recital 20 of Council Framework Decision 2008/909/JHA: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32008F0909.

[2] COM(2014) 57 final, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC0057&from=es