13/01/2017 - - General
CJEU ruling on the assessment of the double criminality condition in the context of the Framework Decision 2008/909/JHA

On 11 January 2017, the Court of Justice of the European Union has delivered its judgment in Case C-289/15 Grundza.

In this case, the CJEU was asked to interpret Article 7(3) and Article 9(1)(d) of Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (“FD on mutual recognition of custodial sentences”), namely  on how the double criminality condition needs to be assessed.

The Court replied ruled that the wording of the provisions (paras 33-38), the context of the provisions in the FD (paras 39-49) and the purpose of the FD (50-53) must be considered and they all support a flexible approach by the competent authorities when assessing the condition of double criminality:

  • There does not have to be an exact match between the constituent elements of the offence, as defined in the law of the issuing State and the executing State, respectively, or between the name given to or the classification of the offence under the national law of the respective States (para 35);
  • The relevant factor when assessing double criminality, for the purposes of Article 7(3) of FD2008/909, are that (i) the factual elements underlying the offence, as reflected in the judgment handed down in the issuing State, and (ii) how the offence is defined under the law of the executing State, should be congruent (para 37);
  • When assessing double criminality, the competent authority of the executing State is required to verify whether the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing State, would also, per se, be subject to a criminal penalty in the executing State if they were present in that State (paras 38);
  • Since the condition of double criminality is an exception to the general rule of recognition of judgments and enforcement of sentences […] it must be interpreted strictly (para 46);
  • In assessing double criminality, the competent authority of the executing State must ascertain, not whether an interest protected by the issuing State has been infringed, but whether, in the event that the offence at issue were committed in the territory of the executing State, it would be found that a similar interest, protected under the national law of that State, had been infringed (para 49).

The CJEU concluded that the condition of double criminality must be considered to be met in a situation such as that in the main proceedings, where the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing State, would also, per se, be subject to a criminal sanction in the territory of the executing State if they were present in that State (para 54).

The judgment is available in the website of the Court of Justice in English, as well as in Bulgarian, Spanish, Czech, Danish, German, Estonian, Greek, French, Croatian, Italian, Latvian, Lithuanian, Hungarian, Maltese, Dutch, Polish, Portuguese, Romanian, Slovak, Slovene, Finnish and Swedish languages.

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