SF - Openbaar Ministerie (Mandat d’arrêt européen – Garantie de renvoi dans l’État d'exécution)

On 11 March 2020, the Fourth Chamber of the Court delivered its judgement in Case C-314/18, which concerns the interpretation of Article 1(3) and Article 5(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (hereinafter the “EAW FD”), as well as that of Articles 1(a) and (b), 3(3) and (4), 8(2) and 25 of Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or detention orders for the purpose of their enforcement in the European Union (hereinafter “FD 2008/909”).

In a case where the surrender of a Dutch citizen is sought by the UK for the purpose of criminal proceedings, the referring court is uncertain whether the issuing Member State, as the State in which the judgment will subsequently be delivered, can, under the guarantee provided for in Article 5(3) of the EAW FD, make the return of the person concerned to the executing Member State subject to the condition, not only that the decision imposing a custodial sentence or detention order has become final, but also that any other proceedings relating to the offence in respect of which surrender was requested have been definitely closed.

Therefore, the Court is invited to clarify the time frame in which the requested person must be returned to the executing state of his residence within the meaning of art. 5(3) of the EAW FD.

Moreover, as to a letter from UK authorities stating that “a transfer under [EAW FD] does not allow the Netherlands to alter the duration of any sentence imposed by a [United Kingdom] court”, the referring court raises the question whether the executing Member State, once it has surrendered the person concerned on the basis of the guarantee set out in Article 5(3) of the EAW FD, may, on the basis of Article 25 of FD 2008/909, adapt the custodial sentence or detention imposed on that person in the issuing Member State beyond what is allowed under Article 8(2) of FD 2008/909.

The Court first recalls that the EAW FD aims, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, at facilitating and accelerating judicial cooperation. To reach this goal, a high level of trust must exist between the Member States. Accordingly, while execution of the EAW constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly. However, to increase the chances of social reintegration of the national or resident of the executing Member State who is subject of an EAW, the EAW FD allows him to serve the custodial sentence or detention order in that State.

The Court further recalls that the return of the person concerned may occur only after the decision has become final, within the meaning of CJEU’s case-law. The Court, in the Van Vemde case, indeed, underlined the particular importance attached to the unchallengeable nature of that judgment, excluding decisions which are subject to appeal. Once that sentencing decision has become final, however, the return of the person should occur as soon as possible.

The Court then states that, in a situation where a final decision under FD 2008/909 has been issued but the person is still required to be present in the issuing State by reason of other procedural steps forming part of the criminal proceedings relating to the offence underlying the EAW, the objective of facilitating the social rehabilitation of the person concerned must be balanced with both the complete effectiveness of criminal proceedings and the safeguarding of the procedural rights – enshrined in Articles 47 and 48 CFREU – of the person concerned.

It follows that, when defining the time of the transfer of the person sought to the executing State after the custodial decision has been issued, the issuing judicial authority shall assess whether concrete grounds relating to the safeguarding of the rights of defence of the person concerned or the proper administration of justice make his presence essential in the issuing Member State, after the sentencing decision has become final and until such time as a final decision has been taken on any other procedural steps coming within the scope of the criminal proceedings relating to the offence underlying the EAW. However, this balancing exercise must not have the effect of systematically and automatically postponing the return of the person concerned. The ruling of the Court therefore differs from the opinion of AG Pikamae who had concluded that “having regard to the objective pursued by that provision, namely to facilitate the social reintegration of convicted persons, the competent authorities of the issuing Member State must however do everything within their power to ensure that such a return takes place within as short a time as possible” (point 91).

As to the second question referred, the Court recalls that Article 8 of the FD 2008/909 lays down strict conditions governing the adaptation, by the competent authority of the executing State, of the sentence imposed in the issuing State. Therefore, interpreting Article 25 of that Framework Decision as allowing – when a person is surrendered on the basis of the guarantee set out in Article 5(3) of the EAW FD – to go beyond these conditions would entirely undermine the principle of mutual recognition as consistently delimited by the Court’s case-law.

Accordingly, the executing State cannot refuse the surrender of the person concerned on the mere ground that the issuing Member State issues a reservation with regard to its possibility to adapt the sentence that may be imposed in the latter.