Positive harmonisation of national criminal law: Necessary or essential for mutual recognition?
| Published date | 30 April 2024 |
| DOI | http://doi.org/10.1177/20662203241249598 |
| Author | Andrei Claudiu Rus,Claudia Jderu |
| Date | 30 April 2024 |
| Subject Matter | Practice Brief |
Practice Brief
European Journal of Probation
2024, Vol. 16(1) 74–92
© The Author(s) 2024
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DOI: 10.1177/20662203241249598
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Positive harmonisation of
national criminal law:
Necessary or essential for
mutual recognition?
Andrei Claudiu Rus
Judge, High Court of Cassation and Justice, Romania
Claudia Jderu
Judge, Court of Appeal Bucharest, Romania
Abstract
Positive harmonisation of criminal law should only be a subsidiary means of implementing
the principle of mutual recognition. Regarding criminal procedural law, this is laid down in
Art. 67 TFEU (‘if necessary’) and in Art. 82(2) TFEU (‘to the extent necessary’). However,
the effectiveness of the principle of mutual trust depends on the harmonisation of the
national laws of the Member States, especially in cases when the national law of the
executing State does not regulate at all aspects that may affect the nature or aggravate the
sentence which is to be recognised. In this context, we will try to show that, if the
alternative execution modality of a custodial sentence is not at all regulated in the national
law of the executing State, its recognition and enforcement, with the consequent
continuous deprivation of liberty of the sentenced person, could be considered an ag-
gravation of the sentence and thus a violation of Article 8(4) of FD 2008/909. The paper
thus highlights not only the differences between the legal frameworks of some Member
States, but also how the lack of regulation on alternative execution modalities to custodial
sentences or probation measures and alternative sanctions could stand in the way of
reaching the purposes of Framework Decisions 2008/909 and 2008/947. On the other
hand, we will show that although the framework decisions cannot have a dir ect effect,
when applying national law, the national authorities are therefore required to interpret it,
to the greatest extent possible, in light of the text and the purpose of the framework
decision in order to achieve the result sought by that decision.
Corresponding author:
Andrei Claudiu Rus, Judge, High Court of Cassation and Justice, bld. Octavian Goga n.2, Bucurest 020934,
Romania.
Email: andreiclaudiurus@gmail.com
Keywords
European criminal law, harmonisation of national legislation, alternative measures to the
serving of short-term custodial sentences, probation measures
Introduction
One of the questions raised in international cooperation case files concerns what national
courts should do when the alternative execution modalities to a custodial sentence or the
probation measure imposed by the authorities of the issuing State do not correspond with
the national legislation of the executing State. A recognition and enforcement of such
decisions risks violating the principle of nulla poena sine lege and, moreover, an ad-
aptation to the sentences or measures provided by the national law of the executing State
could aggravate the penalty, while the refusal to recognise the decision would ignore the
principle of mutual trust and the scope of these procedures, that is, to facilitate the social
rehabilitation of sentenced persons in the state where they have the best chance of social
reintegration.
In the context of FD 2008/909, it is important to draw a distinction between the
sentence, as a judicial decision and the sanction, as the penalty which is imposed by it,
because the terms of nature and duration, as premises for an adaptation, are linked to the
punishment itself, rather than to the judicial decision. According to article 1 (b) of the FD,
the term sentence shall mean any custodial sentence or any measure involving deprivation
of liberty imposed for a limited or unlimited period of time on account of a criminal
offence on the basis of criminal proceedings, and thus seems to identify with the sanction
itself.
One of the objectives of the FD is also to ensure, in accordance with the principle of
mutual trust, that the sentence is enforced on the territory of the executing State as if it
were one of its own national decisions and that the penalty is executed as far as possible in
the same modality as it was imposed by the judicial authorities of the issuing State. This
means, inter alia, that if the judicial authorities of the issuing State have considered that the
sentenced person should be deprived of his or her liberty, the same modality of execution
should be enforced by the judicial authorities of the executing State in accordance with the
regulation of FD 2008/909 and, for the same reason, if the deprivation of liberty has been
considered unnecessary, the probation measures and alternative sanctions should be
adapted in accordance with the regulation of FD 2008/947.
To this end, in cases where custodial sentences have been imposed, the provisions of
Article 8 of FD 2008/909 clearly provide instruments to achieve this objective, stating that
if the nature or duration of the sentence is incompatible with the law of the executing
State, it may be adapted to that national law, but must correspond as closely as possible to
the sentence imposed in the issuing State.
It is to be noticed that the provisions mentioned refer to the sentence and not to the
sanction, although the second and third paragraphs mention the incompatibility in respect
to the duration –if the sentence exceeds the maximum penalty provided for similar
offences or with the nature of the sanction, stating that it may be adapted to the
Rus and Jderu 75
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