X

On 29 April 2021, the Fifth Chamber of the Court rendered a decision in Case C-665/20, concerning the application of the ne bis in idem principle in the context of a European Arrest Warrant (EAW). A EAW was issued against X by the Berlin-Tiergarten Local Court, in the context of attempted murder, rape and deprivation of his partner and her daughter (except the rape) that occurred in Berlin. X was arrested in the Netherlands and brought before the District Court of Amsterdam on 18 March 2020. In opposition to his surrender to German authorities, he informed the Court that he had already been trialed for the same acts, save deprivation of the daughter liberty, in Iran. He was partly convicted and partly acquitted on the above-mentioned charges. He claimed that according the Dutch Law, his surrendering to German authorities should be refused since the latter law does not draw distinction between Member State judgement and third state judgements; whereas the public prosecutor office in Netherlands argued that the significant differences between Member States of the EU and the Republic of Iran point at a distrust in the latter legal system and thus cannot constitute a valid ground for non-execution of the EAW against X. The Amsterdam Court thus requested a preliminary ruling and asked the Court whether member states enjoy a discretion when transposing the Framework Decision 2002/584 into national law when it is appropriate to refuse to execute the EAW; whether the concept of “same acts” must be interpreted the same way in Article 4(5) as in Article 3(2) of Framework Decision 2002/584 and, if not, how should it be. The reffering court also seeks clarification concerning the interpretation of the condition laid down in Article 4(5) of the said Framework Decision, namely that the “sentence has been served…or may no longer be ewexuted under the law oth sentencing country”.

On the first question, the Court assessed that Member States do enjoy a margin of appreciation when transposing the Framework Decision 2002/584, especially regarding Article 4 and the optional non-execution list. Member States can limit the situations for the executing judicial authority to decide to refuse to execute a EAW (Judgement of 6 October 2009, Wolzenburg,C-123/08). It recalled first that the Framework Decision does not have a direct effect, thus Member States are not required on basis of EU law to cast aside national provisions that would be contrary to the latter, nevertheless it cannot serve as a basis for an interpretation of national law contra legem to the Framework Decision. The Court thus declared that the margin of appreciation must be enjoyed to Member states to decide whether it is appropriate or not to execute an EAW.

On the second question, drawing upon the uniform application of EU law and on its settled case-law in this matter especially regarding the principle of Legal certainty and since both provisions use the exact same terms and objectives, the Court held that the concept of ‘same acts’ must be interpreted in the same way in both Article 4(5) and 3(2) of the Framework decisions. The Court thus affirmed that the difference between judgement rendered within the EU and those delivered in third state cannot justify a different interpretation of the concept of “same acts”.

On the third question, the Court ruled that Article 4(5) of Framework Decision 2002/584 must be interpreted as meaning that the condition where the sentence has been served, is currently being served or may no longer be executed under the law of the sentencing country is satisfied when, for the same acts under which a EAW has been issued, the requested person has been sentenced which part has been served in this third state whilst the remainder has been remitted by a non-judicial authority as part of a general policy of leniency applying to persons convicted of serious acts. Nevertheless, in order to guarantee an Area of Freedom, security and Justice, the executing judicial authority must strike a balance between the impunity and combating crime and on the other guaranteeing legal certainty for the person concerned.