I.B.

A Romanian national was sentenced, at the latest stage, in absentia in Romania which, after accession to the EU, issued a European arrest warrant. On its basis the person concerned was put into custody in Belgium where he had become a resident for some years. In order to avoid his return to Romania he applied for asylum in Belgium; at the date of issue of the CJ judgement, these proceedings had not yet led to a final decision. But the competent criminal court raised doubts whether its interpretation of the Framework Decision – that in the circumstances of this case Article 5 (1) of the FD seemed not to allow the convicted person to serve his sentence in the Member State of his residence – did infringe fundamental rights, in particular the prohibition of discrimination and referred to CJ.

The Court ruled that Articles 4(6) and 5(3) of Council Framework Decision on the European arrest warrant and the surrender procedures between Member States must be interpreted as meaning that, where the executing Member State has implemented Articles 5(1) and Article 5(3) of that framework decision in its domestic legal system, the execution of a European arrest warrant issued for the purposes of execution of a sentence imposed in absentia within the meaning of Article 5(1) of the framework decision, may be subject to the condition that the person concerned, a national or resident of the executing Member State, should be returned to the executing State in order, as the case may be, to serve there the sentence passed against him, following a new trial organised in his presence in the issuing Member State.