Criminal proceedings against (C-391/24)

Contents

Judgment of the Court (Tenth Chamber)2 October 2025^note(Reference for a preliminary ruling — Area of freedom, security and justice — Judicial cooperation in criminal matters — Framework Decision 2008/947/JHA — Mutual recognition of judgments and probation decisions — Article 1 — Scope — Supervised release with an obligation to undergo inpatient medical treatment in a closed institution — Measure involving deprivation of liberty — Obligation of recognition and enforcement)In Case C‑391/24 [Nolgers],^noteREQUEST for a preliminary ruling under Article 267 TFEU from the strafuitvoeringsrechtbank van de Nederlandstalige rechtbank van eerste aanleg Brussel (Sentence Enforcement Court of the Court of First Instance (Dutch-speaking), Brussels, Belgium), made by decision of 3 June 2024, received at the Court on 4 June 2024, in the criminal proceedings againstTHE COURT (Tenth Chamber),composed of D. Gratsias, President of the Chamber, E. Regan (Rapporteur) and B. Smulders, Judges,Advocate General: M. Szpunar,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Belgian Government, by L. Jans, C. Pochet and M. Van Regemorter, acting as Agents,– the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,– the European Commission, by T. Franchoo, H. Leupold and J. Vondung, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ 2008 L 337, p. 102).

2The request has been made in proceedings relating to an application for supervised release made by LZ.

Legal context

European Union law

Framework Decision 2008/909/JHA

3Article 1 of Council Framework Decision 2008/909 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), entitled ‘Definitions’, provides:‘For the purposes of this Framework Decision:(a) “judgment” shall mean a final decision or order of a court of the issuing State imposing a sentence on a natural person;(b) “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;…’

4Article 3 of that framework decision, entitled ‘Purpose and scope’, states, in paragraph 1 thereof:‘The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence.’

5Article 8 of that framework decision, entitled ‘Recognition of the judgment and enforcement of the sentence’, provides, in paragraph 3 thereof:‘Where the sentence is incompatible with the law of the executing State in terms of its nature, the competent authority of the executing State may adapt it to the punishment or measure provided for under its own law for similar offences. Such a punishment or measure shall correspond as closely as possible to the sentence imposed in the issuing State and therefore the sentence shall not be converted into a pecuniary punishment.’

6Article 9 of that framework decision, entitled ‘Grounds for non-recognition and non-enforcement’, provides, in paragraph 1 thereof:‘The competent authority of the executing State may refuse to recognise the judgment and enforce the sentence, if:…(k) the sentence imposed includes a measure of psychiatric or health care or another measure involving deprivation of liberty, which, notwithstanding Article 8(3), cannot be executed by the executing State in accordance with its legal or health care system;…’

Framework Decision 2008/947

7Recital 3 of Framework Decision 2008/947 is worded as follows:‘[Framework Decision 2008/909] concerns the mutual recognition and enforcement of custodial sentences or measures involving deprivation of liberty. Further common rules are required, in particular where a non-custodial sentence involving the supervision of probation measures or alternative sanctions has been imposed in respect of a person who does not have his lawful and ordinary residence in the State of conviction.’

8Article 1 of Framework Decision 2008/947, entitled ‘Objectives and scope’, provides, in paragraphs 1 to 3 thereof:1. This Framework Decision aims at facilitating the social rehabilitation of sentenced persons, improving the protection of victims and of the general public, and facilitating the application of suitable probation measures and alternative sanctions, in case of offenders who do not live in the State of conviction. With a view to achieving these objectives, this Framework Decision lays down rules according to which a Member State, other than the Member State in which the person concerned has been sentenced, recognises judgments and, where applicable, probation decisions and supervises probation measures imposed on the basis of a judgment, or alternative sanctions contained in such a judgment, and takes all other decisions relating to that judgment, unless otherwise provided for in this Framework Decision.2.This Framework Decision shall apply only to:(a) the recognition of judgments and, where applicable, probation decisions;(b) the transfer of responsibility for the supervision of probation measures and alternative sanctions;(c) all other decisions related to those under (a) and (b);as described and provided for in this Framework Decision.3.This Framework Decision shall not apply to:(a) the execution of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty which fall within the scope of Framework Decision 2008/909/JHA;…’

9Under Article 2 of Framework Decision 2008/947, entitled ‘Definitions’:‘For the purposes of this Framework Decision:1. “judgment” shall mean a final decision or order of a court of the issuing State, establishing that a natural person has committed a criminal offence and imposing:(a) a custodial sentence or measure involving deprivation of liberty, if a conditional release has been granted on the basis of that judgment or by a subsequent probation decision;(b) a suspended sentence;(c) a conditional sentence;(d) an alternative sanction;2. “suspended sentence” shall mean a custodial sentence or measure involving deprivation of liberty, the execution of which is conditionally suspended, wholly or in part, when the sentence is passed by imposing one or more probation measures. Such probation measures may be included in the judgment itself or determined in a separate probation decision taken by a competent authority;3. “conditional sentence” shall mean a judgment in which the imposition of a sentence has been conditionally deferred by imposing one or more probation measures or in which one or more probation measures are imposed instead of a custodial sentence or measure involving deprivation of liberty. Such probation measures may be included in the judgment itself or determined in a separate probation decision taken by a competent authority;4. “alternative sanction” shall mean a sanction, other than a custodial sentence, a measure involving deprivation of liberty or a financial penalty, imposing an obligation or instruction;5. “probation decision” shall mean a judgment or a final decision of a competent authority of the issuing State taken on the basis of such judgment:(a) granting a conditional release; or(b) imposing probation measures;6. “conditional release” shall mean a final decision of a competent authority or stemming from the national law on the early release of a sentenced person after part of the custodial sentence or measure involving deprivation of liberty has been served by imposing one or more probation measures;7. “probation measures” shall mean obligations and instructions imposed by a competent authority on a natural person, in accordance with the national law of the issuing State, in connection with a suspended sentence, a conditional sentence or a conditional release;…’

10Article 4 of that framework decision, entitled ‘Types of probation measures and alternative sanctions’, provides, in paragraph 1 thereof:‘This Framework Decision shall apply to the following probation measures or alternative sanctions:…(k) an obligation to undergo therapeutic treatment …’

11Article 9 of Framework Decision 2008/947, entitled ‘Adaptation of the probation measures or alternative sanctions’, provides in paragraphs 1 and 3:1. If the nature or duration of the relevant probation measure or alternative sanction, or the duration of the probation period, are incompatible with the law of the executing State, the competent authority of that State may adapt them in line with the nature and duration of the probation measures and alternative sanctions, or duration of the probation period, which apply, under the law of the executing State, to equivalent offences. The adapted probation measure, alternative sanction or duration of the probation period shall correspond as far as possible to that imposed in the issuing State.…3. The adapted probation measure, alternative sanction or probation period shall not be more severe or longer than the probation measure, alternative sanction or probation period which was originally imposed.’

12Article 11 of that framework decision, entitled ‘Grounds for refusing recognition and supervision’, provides, in paragraph 1 thereof:‘The competent authority of the executing State may refuse to recognise the judgment or, where applicable, the probation decision and to assume responsibility for supervising probation measures or alternative sanctions if:…(i) the judgment or, where applicable, the probation decision provides for medical/therapeutic treatment which, notwithstanding Article 9, the executing State is unable to supervise in view of its legal or health-care system;…’

Belgian law

13Article 34bis of the Strafwetboek (Penal Code) provides:‘The making available of a person to the sentence enforcement court is an additional penalty which must or may be imposed in the cases provided for by law in order to protect society from individuals who have committed serious offences undermining the integrity of persons. That additional penalty shall come into effect after the expiry of the period of the main prison sentence or period of detention.’

14Article 56 of the wet betreffende de externe rechtspositie van de veroordeelden tot een vrijheidsstraf en de aan het slachtoffer toegekende rechten in het raam van de strafuitvoeringsmodaliteiten (Law on the external legal status of persons sentenced to a custodial sentence and the rights granted to the victim in the framework of the modalities for the serving of sentences) of 17 May 2006 (Belgisch Staatsblad, 15 June 2006, p. 30455), in the version applicable to the dispute in the main proceedings (‘the WERV’), provides:§ 1. The sentence enforcement court may subject the convicted person to special individualised conditions which enable the social rehabilitation plan to be implemented, which enable the counter-indications referred to in Article 47(1) to be met, or which prove necessary in the interests of the victims.…’

15Article 95/2 of the WERV provides as follows:‘§ 1. The making available of a person to the sentence enforcement court in accordance with Articles 34bis to 34quater of the Penal Code shall commence after the expiry of the main sentence.§ 2. The sentence enforcement court shall decide, before the expiry of the main sentence pursuant to Part 2, either to deprive the convicted person of his or her liberty or to release that person under supervision.After the review by the sentence enforcement court provided for in paragraph 1, a convicted person who was granted conditional release at the end of his or her probation period shall be released under supervision, subject, where appropriate, to the conditions laid down in paragraph 2 of Article 95/7.§ 3. The person who has been made available to the sentence enforcement court shall be deprived of his or her liberty if there is a risk of that person committing serious offences that undermine the physical or psychological integrity of third parties which, in the context of supervised release, cannot be offset through the imposition of special conditions.’

16Under Article 95/7 of the WERV:‘…§ 2. If the sentence enforcement court grants supervised release, it shall establish that the convicted person who has been made available to that court is subject to the general conditions laid down in Article 55.The sentence enforcement court may make the convicted person who has been made available to that court subject to special individualised conditions which mitigate the risk of committing serious crimes liable to undermine the physical or psychological integrity of persons or which prove necessary in the interests of the victims.Where the convicted person has been made available to the sentence enforcement court for one of the acts referred to in Articles 371/1, 371/2, 372, 373(2) and (3), 375, 376(2) and (3), or 377(1), (2), (4) and (6) of the Penal Code, the sentence enforcement court may make the supervised release subject to the condition of undergoing counselling or treatment with a service specialising in the counselling or treatment of sex offenders. The sentence enforcement court shall determine the length of the period during which the convicted person will have to undergo this counselling or treatment.…’

17Article 95/21 of the WERV provides:‘After being deprived of liberty for one year, based exclusively on the decision following the making available of the person to the sentence enforcement court, that court shall examine of its own motion the possibility of granting supervised release. The deprivation of liberty of the convicted person who has been made available to the sentence enforcement court shall be maintained if there is a risk of that person committing serious offences that undermine the physical or psychological integrity of third parties which, in the context of supervised release, cannot be offset through the imposition of special conditions.The Director shall deliver an opinion four months before the deadline referred to in paragraph 1. Paragraph 2 of Article 95/3 shall apply.’

The dispute in the main proceedings and the question referred for a preliminary ruling

18On 2 December 2011, the rechtbank van eerste aanleg van Antwerpen (Court of First Instance, Antwerp, Belgium) imposed on LZ, a Netherlands national, a custodial sentence of eight years for the forcible rape of his daughter, who was a minor under the age of 14 at the material time, with the aggravating circumstance that he was a direct relative in the ascending line, as well as for the indecent assault of his minor daughter and one of her friends, for possession and distribution of child pornography and for having made threats. He was ordered to be made available to the sentence enforcement court for a period of 10 years, in accordance with, inter alia, Article 34bis of the Penal Code.

19On 26 November 2013, LZ applied to be transferred to a prison in the Netherlands in order to continue to serve his sentence there. The Netherlands authorities rejected his application on the ground that LZ did not have sufficient links with the Netherlands and that he was not on the basic municipal register of that Member State.

20On 27 August 2015, LZ made the same application, adding that he wished to ensure his reintegration in the Netherlands. In their reply, the Netherlands authorities stated that they were prepared to recognise the custodial sentence, but not that of being made available to a sentence enforcement court, on the ground that that measure has no equivalent under Netherlands law. In practice, a transfer to the Netherlands would have resulted in LZ being released at the end of his custodial sentence, with the result that such a transfer could not take place.

21On 3 July 2019, LZ’s eight year custodial sentence came to an end and the penalty of being made available to the sentence enforcement court began.

22In that context, the strafuitvoeringsrechtbank van de Nederlandstalige rechtbank van eerste aanleg Brussel (Sentence Enforcement Court of the Court of First Instance (Dutch-speaking), Brussels, Belgium), which is the referring court, must decide whether LZ should be granted ‘supervised release’ or continue to be deprived of his liberty, in accordance with Articles 95/2 to 95/30 of the WERV.

23That court states that, in accordance with Article 95/21 of the WERV, the deprivation of liberty of the convicted person who has been made available to the sentence enforcement court is to be maintained if there is a risk of that person committing serious offences that undermine the physical or psychological integrity of third parties which, in the context of supervised release, cannot be offset through the imposition of special conditions.

24In the present case, taking into account, inter alia, a report drawn up by the psychosocial service of the prison in which LZ is being held, that court concluded that there is a high risk that LZ may commit serious offences that undermine the physical or psychological integrity of third parties and that long-term ‘inpatient treatment’ for his psychological disorders is absolutely necessary in order to prevent such a risk.

25The referring court notes that it was not possible to proceed with that ‘inpatient treatment’ in Belgium, on the ground that LZ, a Netherlands national, does not have a right of residence there and is not covered by health insurance even though he has always resided in Belgium where he was born.

26In the course of exchanges with the Netherlands authorities to consider the possibility, in accordance with LZ’s wishes, of having him undergo that ‘inpatient treatment’ in the Netherlands, in a closed institution, those authorities indicated on 29 January 2024 that that measure constituted a custodial sentence which could not be recognised and enforced under Framework Decision 2008/947.

27Therefore, the referring court is uncertain whether it is possible, on the basis of Framework Decision 2008/947, to request the recognition and enforcement of a judgment ordering supervised release, subject to a special condition requiring the person concerned to undergo long-term ‘inpatient treatment’ in a closed institution. That court states, however, in that regard, that it does not question the scope of Framework Decision 2008/909, which, in its view, is irrelevant.

28Since the supervised release applied for by LZ could not be implemented at the time when that court had to give judgment, the latter rejected that application, but decided that it will be reviewed once the Court of Justice has provided an answer to its questions.

29In those circumstances, the strafuitvoeringsrechtbank van de Nederlandstalige rechtbank van eerste aanleg Brussel (Sentence Enforcement Court of the Court of First Instance (Dutch-speaking), Brussels) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Is Framework Decision [2008/947] to be interpreted as meaning that if, in the context of the ‘making available’ of a convicted person to the [sentence enforcement court] (terbeschikkingstelling), [the Kingdom of] Belgium delivers a judgment granting the convicted person supervised release with special conditions, and that judgment is forwarded by the competent Belgian authority, together with the certificate referred to in [that framework decision], to the competent authority in the [Kingdom of the] Netherlands, the Netherlands must recognise and enforce that judgment by, inter alia, monitoring compliance with the special conditions, while taking into account the fact that the convicted person holds Netherlands nationality and wishes to return to the Netherlands?Does this also apply when a special condition is imposed requiring the convicted person to undergo inpatient treatment in the Netherlands for his sexual problems and to be transferred from prison to a closed institution in the Netherlands?’

Procedure before the Court

30The referring court requested that the present case be dealt with under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 107 of the Rules of Procedure of the Court.

31On 18 June 2024, the Court decided, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, not to grant that request, since the conditions of urgency laid down in Article 107 were not satisfied.

Admissibility of the request for a preliminary ruling

32Without formally raising an objection of inadmissibility, the Netherlands Government expresses doubts as to the existence of a relationship between the interpretation of EU law sought in the question referred for a preliminary ruling and the actual facts or subject matter of the main proceedings. It is apparent from the order for reference that the application for supervised release made by LZ before the referring court was rejected. As a result, there are no longer any proceedings currently pending before that court concerning the application before it, since that court has referred its question to the Court of Justice for a preliminary ruling in anticipation of a subsequent examination of that application.

33As is apparent from settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it (judgment of 8 May 2025, Zimir, C‑662/23, EU:C:2025:326, paragraph 25 and the case-law cited).

34The Court has thus repeatedly held that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (see, to that effect, judgment of 8 May 2025, Zimir, C‑662/23, EU:C:2025:326, paragraph 26 and the case-law cited).

35Therefore, the Court may verify of its own motion that the dispute in the main proceedings is continuing (see, to that effect, judgment of 8 May 2025, Zimir, C‑662/23, EU:C:2025:326, paragraph 27 and the case-law cited).

36In that regard, it is apparent from the request for a preliminary ruling that, although the referring court rejected LZ’s application for supervised release, it also decided that that application will be reviewed once it has received an answer to the question which it has referred to the Court for a preliminary ruling.

37Consequently, it must be found that the main proceedings are still pending before that court and that an answer from the Court of Justice to the question referred may be taken into consideration for the purposes of the adoption of a decision in those proceedings.

38In those circumstances, the request for a preliminary ruling is admissible.

Consideration of the question referred

39By its question, the referring court asks, in essence, whether Framework Decision 2008/947 must be interpreted as meaning that the competent authority of the executing State is required, on the basis of that framework decision, to recognise and enforce a judgment which is forwarded to it by the competent authority of the issuing State ordering the supervised release of a person serving a custodial sentence, subject to a special condition requiring that person to undergo ‘inpatient treatment’ for his or her psychological problems in a closed institution.

40In order to answer that question, it is necessary to ascertain whether such a judgment falls within the scope of that framework decision.

41Article 1 of Framework Decision 2008/947 concerns, in accordance with its title, the objectives and scope of that framework decision. As is apparent from Article 1(1), that framework decision lays down rules according to which a Member State, other than the Member State in which the person concerned has been sentenced, recognises judgments and, where applicable, probation decisions and supervises probation measures imposed on the basis of a judgment, or alternative sanctions contained in such a judgment.

42Under Article 1(2) thereof, that framework decision applies only to the recognition of judgments and, where applicable, probation decisions, provided for in point (a) of that article, to the transfer of responsibility for the supervision of probation measures and alternative sanctions, referred to in point (b) of that article, and, according to point (c) of that article, to all other decisions related to those under Article 1(2)(a) and (b), as described and provided for in that framework decision.

43Article 2 of Framework Decision 2008/947 defines, inter alia, for the purposes of that framework decision, the concept of ‘judgment’, in point 1(a) thereof, which refers to the final decision or order of a court of the issuing State, establishing that a natural person has committed a criminal offence and imposing, first, a custodial sentence or measure involving deprivation of liberty, if a conditional release has been granted on the basis of that judgment or by a subsequent probation decision; second, a suspended sentence; third, a conditional sentence; or, fourth, an alternative sanction. According to point 5 of Article 2, ‘probation decision’ means a judgment or final decision of a competent authority of the issuing State taken on the basis of such judgment granting a conditional release or imposing probation measures, the latter, in accordance with point 7 of that article, consisting of obligations and instructions imposed by a competent authority on a natural person, in accordance with the national law of the issuing State, in connection with a suspended sentence, a conditional sentence or a conditional release. Furthermore, having regard to the circumstances at issue in the main proceedings, it must be pointed out that, in accordance with point 6 of that article, the expression ‘conditional release’ refers to a final decision of a competent authority or stemming from the national law on the early release of a sentenced person after part of the custodial sentence or measure involving deprivation of liberty has been served by imposing one or more probation measures.

44It is apparent from the definitions set out in the preceding paragraph, and those relating to the concepts of ‘suspended sentence’, ‘conditional sentence’ and ‘alternative sanction’, referred to respectively in points 2, 3 and 4 of Article 2 of Framework Decision 2008/947, that the scope of that framework decision, pursuant to Article 1(2) thereof, covers the recognition and execution of judgments which subject persons found to have committed a criminal offence to the enforcement of sanctions or measures which do not deprive them of their liberty.

45Such an interpretation is confirmed by Article 1(3)(a), which states that Framework Decision 2008/947 is not to apply to the enforcement of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty which fall within the scope of Framework Decision 2008/909. As the Court has held, as is apparent from that provision, the scope of those two framework decisions is mutually exclusive (see, to that effect, judgment of 5 October 2023, QS (Revocation of suspension), C‑219/22, EU:C:2023:732, paragraph 41 and the case-law cited).

46In that regard, Article 3 of Framework Decision 2008/909, which, in accordance with its title, defines its purpose and scope, states, in paragraph 1 thereof, that that framework decision seeks to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence, the concepts of ‘judgment’ and ‘sentence’ being defined, respectively, in Article 1(a) and (b) of that framework decision as, first, a final decision or order of a court of the issuing State imposing a sentence on a natural person and, second, as 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.

47Thus, in accordance with Article 1(1) of Framework Decision 2008/947, read in conjunction with Article 1(3)(a) and in the light of recital 3 thereof, that framework decision concerns the mutual recognition and enforcement of non-custodial sentences or measures not involving deprivation of liberty, whereas mutual recognition and enforcement of custodial sentences or measures involving deprivation of liberty fall within the scope of Framework Decision 2008/909.

48That interpretation relating to the respective scopes of Framework Decisions 2008/909 and 2008/947 is supported by the provisions of those framework decisions relating, more specifically, to measures involving health care.

49As regards Framework Decision 2008/947, Article 4(1)(k) thereof states that that framework decision applies, inter alia, to probation measures and alternative sanctions consisting of the obligation to undergo therapeutic treatment. Furthermore, as part of the grounds for refusal of recognition or supervision which the competent authority of the executing State may invoke, Article 11(1)(i) of that framework decision refers to the judgment or, where applicable, the probation decision providing for medical/therapeutic treatment which, notwithstanding Article 9 of that framework decision, the executing State is unable to supervise in view of its legal or health care system.

50As regards Framework Decision 2008/909, the grounds for non-recognition and non-enforcement, referred to in Article 9 thereof, refer, in accordance with Article 9(1)(k), to the situation in which the sentence imposed includes a measure of psychiatric or health care or another measure involving deprivation of liberty, which, notwithstanding Article 8(3) of that framework decision, cannot be executed by the executing State in accordance with its legal or health care system. It follows that the treatment envisaged in that provision consists of measures involving deprivation of liberty.

51It follows from those provisions that judgments imposing a measure involving health care fall either within the scope of Framework Decision 2008/947, where it does not involve deprivation of liberty, or within the scope of Framework Decision 2008/909, where it does involve deprivation of liberty.

52Consequently, a judgment imposing, in accordance with the law of the issuing Member State, supervised release may be the subject of a request for recognition and enforcement under Framework Decision 2008/947, provided that the condition accompanying that judgment does not constitute a measure involving deprivation of liberty, such a judgment falling, in which case, within the scope of Framework Decision 2008/909.

53In the present case, it should be noted that, in the light of the information provided by the referring court regarding the proposed measure and the considerations set out in paragraph 46 of the present judgment, a measure involving the supervised release of a person serving a custodial sentence, adopted in the context of a penalty imposed on that person of being made available to the sentence enforcement court, where it is accompanied by a special condition requiring that person to undergo ‘inpatient treatment’ for his psychological problems in a closed institution, constitutes a measure imposed on account of a criminal offence which, owing to the nature of that condition, has the consequence of depriving that person of his liberty.

54Consequently, the recognition and enforcement of a judgment imposing such a measure does not fall within the scope of Framework Decision 2008/947, but within that of Framework Decision 2008/909.

55In the light of the foregoing considerations, the answer to the question referred is that Framework Decision 2008/947 must be interpreted as meaning that the recognition and enforcement of a judgment ordering the supervised release of a person serving a custodial sentence, coupled with a special condition requiring that person to undergo ‘inpatient treatment’ for his or her psychological problems in a closed institution, does not fall within the scope of that framework decision, with the result that the competent authority of the executing State cannot be required to recognise and enforce such a judgment on the basis of that framework decision.

Costs

56Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Tenth Chamber) hereby rules: Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctionsmust be interpreted as meaning that the recognition and enforcement of a judgment ordering the supervised release of a person serving a custodial sentence, coupled with a special condition requiring that person to undergo ‘inpatient treatment’ for his or her psychological problems in a closed institution, does not fall within the scope of that framework decision, with the result that the competent authority of the executing State cannot be required to recognise and enforce such a judgment on the basis of that framework decision.