Marin-Simion Sut

On 13 December 2018, the First Chamber of the Court of Justice delivered its judgement in Case C-514/17, which concerns the interpretation of the Framework Decision on the European Arrest Warrant (EAW).

Mr Sut is a Romanian national who has been convicted by Romanian authorities to a custodial sentence of one year and two months for having driven a vehicle without valid licence plates and without a valid driving licence and for having caused an accident. As he left the country and went to Belgium, where he has been working and living with his spouse since February 2015, Romanian authorities issued an EAW for the purpose of enforcing that sentence. In Belgium, the crimes covered by the EAW are punishable by fines only. Article 6(4) of the Belgian law on the European arrest warrant transposes Article 4(6) of the EAW Framework Decision and, along the lines of this Article, it provides that execution may be refused ‘if the European arrest warrant has been issued for the purposes of enforcement of a sentence or order, where the requested person is Belgian or is resident in Belgium and the competent Belgian authorities undertake to enforce the sentence or order in accordance with Belgian law’. Moreover, the Belgian law transposing Framework Decision 2008/909 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences provides that a sentence issued abroad may be adapted if it is incompatible with Belgian law in terms of its duration or nature. However, it expressly excludes that a custodial sentence may be converted into a fine. The referring court, i.e. the Court of Appeal of Liège, thus inquires whether Belgian legislation is compatible with Article 4(6) of the EAW Framework Decision. If it is not possible to convert the custodial sentence, it is not possible to enforce the Romanian sentence and Mr Sut should thus be surrendered to Romania, although his chances of reintegrating into society would be higher in Belgium rather than in Romania.

The Court of Justice notes that the application of the ground for optional non-execution enshrined in Article 4(6) of that Framework Decision requires two conditions to be satisfied: i) the requested person shall be staying in, or be a national or a resident of the executing Member State; ii) that State shall undertake to enforce the sentence or detention order in accordance with its domestic law. If both these conditions are met, the executing judicial authority should then ascertain whether there is a legitimate interest which would justify the sentence imposed in the issuing Member State being enforced on the territory of the executing Member State.

In the case of Mr Sut, while the executing authority found that he is residing in Belgium, it believes that the sentence issued by Romanian authorities cannot be enforced because the offences covered by the EAW are only punishable by fines in Belgium. The Court of Justice however clarifies that, first, Article 4(6) of the EAW Framework Decision does not give any indication from which the condition sub ii) could be interpreted as automatically precluding a judicial authority of the executing Member State from refusing to execute an EAW where the law of that Member State provides only for a fine in response to the crimes covered by the EAW. Second, Member States have some margin of discretion in implementing the EAW Framework Decision and, if they decide to limit the situations in which the surrender can be refused, this would simply reinforce the system of surrender to the advantage of an area of freedom, security and justice. Third, Article 4(6) of the EAW Framework Decision makes it clear that the surrender can be refused only upon the executing Member State’s undertaking to order that the custodial sentence imposed on the person requested actually be enforced. Finally, no provisions of Framework Decision 2008/909 can affect the scope of the ground for optional non-execution stated in Article 4(6) of the EAW Framework Decision.

Against this backdrop, the Court thus concludes that Article 4(6) of the EAW Framework Decision must be interpreted as meaning that, where a person who is the subject of an EAW issued for the purposes of enforcing a custodial sentence resides in the executing Member State and has family, social and working ties in that Member State, the executing judicial authority may, for reasons related to the social rehabilitation of that person, refuse to execute that warrant. The executing authority may refuse to surrender the concerned person despite the fact that the offence which provides the basis for that warrant is, under that national law of the executing Member State, punishable by fine only, provided that, in accordance with its national law, that fact does not prevent the custodial sentence imposed on the person requested from actually being enforced in that Member State, which is for the referring court to ascertain.