CJ (Décision de remise différée en raison de poursuites pénales)

On 8 December 2022, the First Chamber of the Court of Justice delivered a preliminary ruling relating to the execution of a European arrest warrant issued against Mr. CJ. This request concerns the interpretation of Article 6(2), Article 12 and Article 24(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’), and of Articles 6, 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’). On 31 August 2021, the Regional Court of Poland, Krakow Criminal Division III, issued a European arrest warrant against CJ, a Polish national, for the purpose of executing in Poland a two-year custodial sentence imposed for 13 offences falling within the category of organised or armed robbery within the meaning of Article 2(2) of Framework Decision 2002/584. It is apparent from the information provided by the referring court, the District Court of Amsterdam, that CJ must still serve almost the entirety of the sentence imposed for those offences. At the same time as those proceedings, CJ was the subject of an ongoing criminal prosecution in the Netherlands for an act other than those on which the European arrest warrant was based. On 15 December 2021, the District Court, Cantonal Sector, The Hague, Netherlands ordered CJ to pay a fine of EUR 360 or, in the alternative, to seven days’ detention, for having driven a motor vehicle without holding a driving licence. However, that conviction is not final, as the person concerned has appealed against that judgment. The hearing before the appeal court was scheduled for November 2022 and an appeal on a point of law may still be brought against the judgment delivered on appeal. The referring court also states that CJ has not waived his right to appear in person at the hearings which will be held in those criminal proceedings. As consequence, on 17 June 2022 the Prosecutor asked for maintaining the custody of CJ for 30 days, to make him attenfing the hearing; on this, according to the Dutch criminal law, the referring court is not competent to discuss the Prosecutor’s decision. On 6 July 2022, the custody was extended for a further period of thirty due special circumstances. The Prosecutor would have asked for the extension of the custody until the trial. The referring judge asked if the extension of the custody respects article 6 of the Charter. As consequence, the questions arise are as follow: (1) Do Articles 12 and 24(1) of Framework Decision [2002/584], read in conjunction with Article 6 of the [Charter], preclude a requested person, whose surrender for the purpose of executing a custodial sentence was definitively authorised but has been postponed “so that he or she may be prosecuted in the executing Member State … for an act other than that referred to in the European arrest warrant”, from being detained for the duration of that criminal prosecution in order to execute the European arrest warrant? (2) (a) Must the decision to exercise the power to postpone be taken by the executing judicial authority? And if so (2) (b), can this affect the detention of the accused, since he cannot be detained for the purpose of executing the EAW issued against him? (3) (b) Does the article 24(1) preclude the surrender of the requested person for the only reason to respect his/her right to attend the trial? If so (3) (b) which reasons can the executing judicial authority take into account to postpone the actual surrender? According to the Court, the decision to postpone a surrender referred to in that provision constitutes a decision on the execution of the European arrest warrant which, pursuant to Article 6(2) of that framework decision, must be taken by the executing judicial authority. Where such a decision has not been taken by that authority and the time limits referred to in Article 23(2) to (4) of that framework decision have expired, the person who is the subject of a European arrest warrant must be released, in accordance with Article 23(5) of that same framework decision. The articles do not preclude a person who is the subject of a European arrest warrant, whose surrender to the authorities of the issuing Member State has been postponed for the purposes of a criminal prosecution instituted against him or her in the executing Member State, from being kept in detention on the basis of the European arrest warrant whilst the criminal prosecution is being conducted. Last, it is possible to postpone the surrender of a person for the purposes of a criminal prosecution instituted against that person in the executing Member State, solely on the ground of the right to appear in person before the courts.