The Polish court made a reference to the Court of Justice of the European Union (CJEU) asking a question as to whether time spent on curfew combined with electronic monitoring in one Member State could amount to a period of detention to be deducted from the overall detention period to be served in another.

Rebecca Niblock examines the issues that arose in this case.

What were the facts of the case?

The case relates to a Mr “JZ” who received a custodial sentence of three years and two months in March 2008 from the District Court of Lodz in Poland. Mr JZ absconded; a European Arrest Warrant was issued and he was duly arrested in June 2014 by the UK authorities.

The judgment details that from 19 June 2014 to 14 May 2015, Mr JZ, who was released on bail of £2,000, was required to stay at the address which he had provided between the hours of 10 p.m. and 7 a.m., and his compliance with that requirement was subject to electronic monitoring. In addition, Mr JZ was required to appear regularly at a police station, not to apply for foreign travel documents and to keep his mobile telephone switched on and charged at all times.

On 14 May 2015 he was surrendered to the Polish authorities.

Taking into account periods of detention

The European Arrest Warrant regime makes provisions for the issuing Member State to deduct all periods of detention arising from the execution of that warrant in another Member State from the total period of detention to be served in the former. It does this so that a person is not required to serve a period of detention more than the total imposed upon him by the courts in the original judgment in the Issuing Member State

So, Mr JZ requested that the period where he was subject to a curfew and electronic monitoring in the UK counted towards the custodial sentence imposed on him in Poland.

Can a curfew amount to detention?

The Polish Court sought advice from the CJEU as to whether the term “detention” also covers measures applied by the executing Member State, in this case the UK, that included electronic monitoring and a curfew.

The CJEU considered a number of issues during its deliberations. Stating that “the concept of ‘detention… is an autonomous concept of EU law that must be interpreted uniformly throughout the EU”, it went on to consider the obligation to deduct a period of detention spent in one Member State from the full custodial term imposed in another.

The Court considered that the obligation to deduct a period of detention served in the executing Member State from the total period of detention to be served in the Issuing Member State is designed to meet the “general objective of respecting fundamental rights, by preserving the right to liberty of the person concerned and the practical effect of the principle of proportionality in the application of penalties”.

It confirmed that the Framework Decision cannot be interpreted as “merely requiring” the issuing Member State to deduct only periods of imprisonment in the executing Member State, excluding periods where other measures were applied that involve deprivation of liberty where these measures had effects “comparable to those of imprisonment.”

The judicial authority in the issuing Member State is required to consider whether the measures taken against the person concerned in the executing Member State must be treated in the same way as a deprivation of liberty and constitute “detention”. If the measures do constitute detention they should be deducted from the period of detention.

With that in mind, the Court held that a “nine hour daily curfew monitored by means of an electronic tag does not, in principle, have that effect”. It concluded that the “measures taken against Mr JZ in the UK certainly restrict his freedom of movement, they are not, in principle, so restrictive as to have the effect of depriving him of his liberty and thus to be characterised as ‘detention’ within the meaning of the Framework Decision.”

However passing the baton back to the Polish Court, the CJEU further stated, emphasising that the Framework Decision only offers a minimum level of procedural guarantees, that the judicial authority of the issuing Member State is not precluded from deducting from the total period of detention “all or part of the period during which that person was subject, in the executing Member State, to measures involving not a deprivation of liberty but a restriction of it”. This would be determined under national law.

Conclusion

It is of note that, whilst the Advocate-General’s Opinion in this case makes brief reference to mutual recognition, the term does not appear once in the Judgment of the court. Provisions of UK law do not appear to have been fully considered by the Advocate-General, nor by the Court itself. In particular, section 240A of the Criminal Justice Act 2003 is entitled “Crediting periods of remand on bail: terms of imprisonment and detention” and requires a court to direct that time spent subject to a nine hour electronic curfew is to count as half a day of time served unless it is in the opinion of the court just in all the circumstances not to give such a direction. Whilst some discretion is given to the sentencing Judge to consider whether it is “just in all the circumstances” not to direct that time spent subject to a curfew is not credited, the starting position is a requirement that the time spent subject to an electronically monitored curfew is to count. UK courts are, by this section, required to recognise time spent subject to a curfew as equivalent to time spent in detention and it follows from this that such time is, effectively, considered by the sentencing court to be a “deprivation of liberty”.

The Judgment of the court rather understates the UK law in this regard, stating that “it is possible under United Kingdom law to deduct curfew periods in conjunction with the electronic monitoring of the place of residence from the sentence passed […]” In conclusion, neither the Advocate-General’s Opinion nor the Judgment of the court considered that a nine hour curfew was so restrictive as to give rise to a “deprivation of liberty”, even though, in these particular circumstances, the effect of the curfew was to prevent the requested person from maintaining his employment.

The failure by the Court to properly take heed of the provisions of UK law is, however, not so surprising when seen in the context of the UK Government’s representations to the court on the matter, which appear to be inconsistent with the relevant provisions of the Criminal Justice Act 2003, stating that the concept of ‘detention’ within the meaning of Article 26(1) of the Framework Decision “covers, in principle, only measures concerning deprivation of liberty stricto sensu.” The reasoning behind this is unclear, and also somewhat at odds with decisions in the UK High Court (see, for example, Skowron v District Court of Czestochowa, Poland [2014] EWHC 3203 (Admin)).

Nevertheless, this judgment will have a very real impact on the lives of large number of requested persons, particularly where, as in the UK, electronically monitored curfews are widely used.