IK (Exécution d’une peine complémentaire)

On 6 December 2018, the Court of Justice delivered its judgment in case C-551/18 PPU on the interpretation of the Framework Decision on the European Arrest Warrant (EAW).

In 2013, IK had been convicted by Belgian courts to a three-year imprisonment sentence (‘main sentence’) and to an additional sentence of release conditional to placement at the disposal of the Court for the enforcement of custodial sentences for a 10-year period (‘additional sentence’). In accordance with Belgian law, the additional sentence can be served after the main sentence has been executed and upon decision of the Court for the enforcement of custodial sentences. As IK left Belgium in 2014, Belgian authorities issued an EAW, where they only mentioned the main sentence, without any reference to the additional sentence. Once surrendered by Dutch authorities, IK was deprived of liberty in execution of the main sentence. Before the expiry of the latter, the Court for the enforcement of custodial sentences sentenced IK to conditional release at its disposal, which would have taken place after the end of the deprivation of liberty deriving from the main sentence. IK argued that further deprivation of liberty could not be ordered against him, as the EAW did not mention the additional sentence. The Court for the enforcement of custodial sentences rejected his line of argument. He then lodged an appeal before the Court of Cassation, which referred three questions for preliminary ruling to the Court of Justice. In essence, the Belgian Court asked whether the omission of the additional sentence in the EAW would prevent Belgian authorities from enforcing that additional sentence. The Court of Justice replies in the negative, agreeing with the conclusions of Advocate General Sharpston.

After the usual excursus on the rationale of the EAW Framework Decision and the principles underpinning it, the Court of Justice argues that the execution of an EAW must, in principle, be refused when it is not drafted in accordance with Article 8 of the Framework Decision. Article 8(1)(f) provides that the EAW shall contain information on the penalty imposed, if there is a final judgment. However, the Court notes that such a provision is meant to allow the executing authority to check whether the thresholds of penalty laid down in Article 2(1) of the Framework Decision are respected. As the EAW issued by Belgian authorities mentioned the main sentence (three years), which exceeds the minimum threshold provided for by the Framework Decision (four months) for the execution of an EAW, Dutch authorities were right in surrendering IK to Belgium. Furthermore, the Court adds, the absence of any reference to the additional sentence does not prevent Belgian authorities from executing that sentence. Three arguments are marshalled by the Court to support this conclusion.

First, it is wrong to consider – as argued by IK and the Dutch Government – the Dutch decision on the execution of the EAW as a ground for deprivation of liberty in the issuing Member State. Such a ground is instead represented by the enforceable judgment pronounced in Belgium, while the Dutch decision on the execution of the EAW merely grants surrender of the person requested, in accordance with the provision of the EAW Framework Decision.

Second, there is no violation of the principle of speciality, which is enshrined in Article 27 of the EAW Framework Decision and which implies that a person surrendered may not be prosecuted or sentenced for an offence committed prior to his or her surrender other than that for which he or she was surrendered. The Court notes that, in the present case, the additional sentence neither concerns an offence ‘other’ than that on which the surrender was based nor it was added after the surrender of IK. On the contrary, it was pronounced for the same offence and by the same judicial decision as that of the main sentence of three years’ imprisonment.

Third, the European Commission argued that the principle of mutual trust requires the executing authority to be informed of the additional sentence, so that it is in a position of invoking, if necessary, one of the grounds for refusal listed in the Framework Decision or of subjecting the execution of the EAW to certain guarantees (Articles 3 to 5 of the Framework Decision). While acknowledging that the additional sentence should have been indicated in the EAW, the Court of Justice rebuts the argument of the Commission. It notes that the omission of the additional sentence in the EAW did not prevent the executing authority from exercising its jurisdiction in accordance with Articles 3 to 5 of the Framework Decision. Furthermore, IK did not mention that the additional sentence was missing in the EAW during the proceedings before the executing authority, and in any case he can challenge the lawfulness of his detention in the issuing Member State. Finally, the Court argues that informing the executing authority of the additional sentence and waiting for its decision on the possibility of enforcing that sentence in the issuing Member State would run counter to the objective of facilitating and accelerating the judicial cooperation sought by the EAW Framework Decision.

Against this background, the Court concludes that Article 8(1)(f) of the EAW Framework Decision must be interpreted as meaning that failure to indicate, in the EAW pursuant to which the person concerned has been surrendered, an additional sentence of conditional release which was imposed on that person for the same offence in the same judicial decision as that relating to the main custodial sentence does not, on the facts of the case in the main proceedings, preclude the enforcement of that additional sentence, on the expiry of the main sentence after an express decision to that effect is taken by the national court with jurisdiction for the enforcement of sentences, from resulting in deprivation of liberty.