AZ

On 24 November 2020, the Grand Chamber of the Court of Justice delivered its judgment in case C-510/19, concerning the interpretation of Article 6(2) and Articles 14, 19 and 27 of Framework Decision 2002/584 on the European arrest warrant. The request for a preliminary ruling was made by a Belgian court in the course of criminal proceedings initiated in Belgium against AZ, a Belgian national, accused of forgery of documents, use of forged documents and fraud and surrendered by the Netherlands authorities in execution of a European arrest warrant (EAW).

AZ was arrested in December 2017 and surrendered to Belgium, following a decision of the District Court of Amsterdam. In January 2018, the Belgian authorities issued an additional EAW concerning other conducts of AZ and requested the competent Netherlands authorities to disapply the rule of speciality provided for in Article 27(2), 27(3)(g) and 27(4) of the EAW Framework Decision. According to this rule, a person surrendered in execution of a EAW cannot be prosecuted, sentenced or deprived of his or her liberty for a different offence committed prior to the surrender, unless the executing judicial authority gives its consent. In February 2018, a public prosecutor from the Amsterdam Public Prosecutor’s Office agreed to broaden the scope of the AZ’s prosecution in Belgium, which led to an overall sentence to a three-year prison term.

AZ appealed the conviction before the Court of Appeal of Brussels. The applicant raised the issue of whether the Public Prosecutor for the Amsterdam District may be considered an “executing judicial authority” according to Article 6(2) of the Framework Decision on the EAW, and therefore whether that authority had the power to give the consent to extend the scope of the Belgian criminal proceedings. It is in this context that the Court of Appeal filed a reference for a preliminary ruling to the Court of Justice of the EU, asking for an interpretation of the concept of “executing judicial authority”, in the light of the possibility for the Netherlands Minister of Justice to issue instructions in specific cases to Dutch prosecutors.

The Court refers in its reasoning to its recent case law on the concept of “issuing judicial authority” according to the EAW Framework Decision, whose principles the Grand Chamber applied to the case at hand. As first, the Court states that the concept of “executing judicial authority” is an autonomous concept not restricted to judges or courts, as it covers all judicial authorities participating in the administration of criminal justice, including prosecutors. However, this authority, like the “issuing judicial authority”, must act independently, in particular in relation to the executive, and must follow procedures that comply with the requirements of an effective judicial protection. The application of the same criteria applied to the concept of “issuing judicial authorities” is justified by the same status and nature of these two judicial authorities, despite their separate functions. Among other arguments, the Court finds that both the execution and issue of an EAW can prejudice the liberty of the requested person as they aim at his or her arrest and following surrender. In addition, the Court stresses that, unlike the issue of an EAW, the procedure for the execution of an EAW does not have a dual level of protection of fundamental rights, but the decision of the executing judicial authority is the sole occasion to ensure a protection of the requested person’s fundamental rights.

Then, the Court specifies that it is not relevant whether the judicial authority giving its consent on the disapplication of the rule of speciality is the same as that which executed the EAW. However, that consent cannot be given by the public prosecutor of a Member State whose decision-making power may be subject to an instruction in a specific case from the executive, as such an authority does not satisfy the necessary conditions to be considered as an “executing judicial authority”. The Court stresses the fact that, although the person has already been surrendered to the issuing Member State, the consent to broaden the scope of the criminal proceedings may prejudice the liberty of the person concerned, as it may lead to a heavier sentence.

The Court observes that, whereas the decision to execute an EAW is taken by a court, under the Netherlands law the consent to additional prosecution is given exclusively by a public prosecutor. Since Dutch prosecutors may receive instructions in specific cases from the Minister of Justice, the Court concludes that they cannot constitute an “executing judicial authority” according to Article 6(2) of the EAW Framework Decision.