Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Netherlands) lodged on 2 April 2024 – Criminal proceedings against S.A.H.
(Case C-235/24, Niesker 1 )
Language of the case: Dutch
Referring court
Gerechtshof Arnhem-Leeuwarden
Parties to the main proceedings
S.A.H.
Other party to the proceedings: Openbaar Ministe
Questions referred
Should the term ‘court or tribunal’, as referred to in Article 267 TFEU in conjunction with Article 8(2) to (4) and Article 9 of Framework Decision 2008/909/JHA, 1 be interpreted as meaning that it also covers a designated regular court, other than the competent authority referred to in Article 8(1) of the Framework Decision, that rules in written proceedings exclusively on the legal questions referred to in Article 8(2) to (4) and Article 9 of the Framework Decision, in principle without any submissions from the sentenced person?
Should Article 47 of the Charter be interpreted as meaning that, when, in recognition proceedings under Framework Decision 2008/909/JHA, the assessment of the aspects referred to in Article 8(2) to (4) and Article 9 of that Framework Decision is entrusted to a specifically designated regular court in the executing State, in addition to the opportunity for the sentenced person to state his or her opinion in the issuing State on the basis of Article 6(3) of Framework Decision 2008/909/JHA, there should also be an effective remedy for the sentenced person in the executing State?
In the event that this question is answered in the affirmative:
In the light of Framework Decision 2008/909/JHA, should Article 47 of the Charter be interpreted as meaning that, as regards the effective remedy in the executing State, it is sufficient to give the sentenced person the opportunity to submit written observations, either prior to the court ruling and the recognition decision or after the recognition decision has been taken, in the form of a reassessment of the original ruling?
And
In the light of Framework Decision 2008/909/JHA, should Article 47 of the Charter be interpreted as meaning that a sentenced person who does not have sufficient financial resources and requires legal aid to ensure effective access to justice should be provided with such legal aid in the executing State, even if this is not provided for by law?
Should the criterion set out in Article 8(3) of Framework Decision 2008/909/JHA be interpreted as meaning that, if the punishment or measure is adapted because, in terms of its nature, it is incompatible with the law of the executing State, it is necessary to assess which measure would in all likelihood have been imposed by the court in the executing State if the trial had been conducted in the executing State, or should an assessment be carried out, requesting additional information as necessary, to examine how the measure is actually implemented in the issuing State?
How and to what extent should the executing State take into account developments and information subsequent to the recognition decision in the event of a possible reassessment of the prohibition on aggravating the sentence under Article 8(4) of Framework Decision 2008/909/JHA?
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1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
1 Council Framework Decision 2008/909/JHA of 27 November 2008 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 (OJ 2008 L 327, p. 27).