Tomas Vilkas

On 25 January 2017, the Court of Justice (Third Chamber) delivered its judgment on case C-640/15 on the interpretation of Article 23 of the EAW Framework Decision regarding the time frame for the effective surrender of a requested person.

The facts of the case were the following: on 9 July 2015, the High Court of Ireland issued two orders for the execution of two EAWs issued by Lithuanian authorities against Mr Vilkas. The latter was to be surrendered to the Lithuanian authorities in no later than 10 days. A first attempt to surrender Mr Vilkas to the Lithuanian authorities failed on account of Mr Vilkas’s resistance. The Irish Minister for Justice and Equality consequently applied to the High Court for authorisation for a third attempt of surrender, this time by sea and over land. The High Court held, however, that it lacked jurisdiction to hear this application and ordered Mr Vilkas’s release. The Irish Central Authority appealed this decision before the Court of Appeal. The latter raised doubts as to the possibility, in such circumstances, for the executing and issuing judicial authorities to agree on a new surrender date under Article 23(3) of the EAWFD. It asks the Court whether this provision allows the agreement of a new surrender date on more than one occasion and seeks the interpretation of ‘circumstances beyond the control of any of the Member States’.

The Court first specified that Article 23 of the EAW FD requires the authorities concerned to agree on a new surrender date where the surrender of the requested person within 10 days of a first new surrender date agreed pursuant to that provision is prevented by circumstances beyond one of the Member States’ control. In that case, the executing authority can decide to hold the requested person in custody, in accordance with Article 6 of the EU Charter of Fundamental Rights (paras 39 and 43).

With respect to the wording ‘circumstances beyond the control of any of the Member States’, the Court opined that it has its origin in Article 11(3) of the Convention on simplified extradition procedure. Such wording refers to the concept of force majeure, meaning a situation which could not have been foreseen and could not have been prevented (paras.48-50). The Court further specified that, in a situation where the requested person has already resisted a first surrender attempt, the fact that he also resists a second surrender attempt cannot normally be regarded as unforeseeable (paras. 59-60). However, it cannot be entirely ruled out that, on account of exceptional circumstances, it is objectively apparent that the resistance put up by the requested person to his surrender could not be foreseen by the authorities concerned, an issue that is thus for the referring court to ascertain (paras.64-65).

The Court went on to explain the obligations of the authorities concerned on account of the expiration of the time limits prescribed in Article 23 of the EAW FD in the event that the repeated resistance of the requested person in the main proceedings cannot be classified as a case of force majeure (para. 66). It specified that, whilst Article 23(5) of the EAW FD provides for the automatic release of the person at the expiry of the time limits referred to in Article 23(2) to (4), the mere expiration of such time limits cannot relieve the executing Member State of its obligation to carry on with the procedure for executing a European arrest warrant and to surrender the requested person. The authorities concerned must therefore agree on a new surrender date (paras 70-72).