President of Court, acting as Judge of Fourth Chamber, K Lenaerts,
Judges D Šváby, K Jürimäe, N Piçarra (Rapporteur)
Advocate General P Pikamäe
By the introduction of the European arrest warrant, Council Framework Decision 2002/584/JHA established a simplified and more effective system in the EU for the surrender of persons convicted or suspected of having infringed criminal law. Article 5(3) of that Decision provided that surrender of a person, who was a national or resident of the executing member state, could be subject to the guarantee that he would be returned to the executing state in order to serve there the custodial sentence or detention order passed against him in the issuing member state. Pursuant to article 25 of Council Framework Decision 2008/909/JHA, that latter Decision applied mutatis mutandis to the enforcement of sentences, in particular when an executing state imposed the article 5(3) guarantee. Article 1(a) of Decision 2008/909 defined “judgment” as a final sentencing decision of a court of the issuing state. Article 8(2) of that Decision provided that where the duration of the sentence was incompatible with the law of the executing state, the authorities of that state could adapt the sentence only where it exceeded the maximum penalty provided for similar offences under its national law.
A Crown Court judge issued a European arrest warrant against the defendant, a Netherlands national, seeking his surrender by a Dutch court for the purposes of criminal proceedings in the United Kingdom. The Netherlands authorities requested the Home Office to supply the guarantee under article 5(3) of Framework Decision 2002/584. The Home Office answered that, should the defendant receive a custodial sentence in the United Kingdom, he would be returned to The Netherlands as soon as practicable after the conclusion of the sentencing process and of “any other proceedings” in respect of the offence. The Home Office stated that a transfer under Framework Decision 2002/584 did not allow The Netherlands to alter the duration of any sentence imposed by a United Kingdom court. The defendant argued that the Home Office’s guarantee to return him to The Netherlands did not satisfy the conditions under both Framework Decisions and that, consequently, the Dutch court should refuse to surrender him to the United Kingdom authorities. The Dutch court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling, the questions, in essence, whether, in the circumstances of the present case: (i) article 5(3) of Framework Decision 2002/584, read in combination with articles 1(a) and 25 of Framework Decision 2008/909, inter alia, meant that the issuing state was obliged to return the defendant from the moment at which not only the sentencing had become final, but also any other procedural step coming within the scope of the criminal proceedings relating to the offence underlying the European arrest warrant, had been definitively closed; and (ii) article 25 of Framework Decision 2008/909 meant that, in order to enforce the sentence imposed in the issuing state, the executing state could, by way of derogation from article 8(2) of Decision 2008/909, adapt the duration of that sentence to make it correspond to the sentence that would have been imposed for the offence in question in the executing state.
On the reference—
Held, (1) it followed from the objective of article 5(3) of Council Framework Decision 2002/584/JHA, namely facilitating the social rehabilitation of surrendered persons, together with articles 1(a) and 25 of Council Framework Decision 2008/909/JHA, that, where the executing judicial authority, acting under article 5(3), had imposed the condition that the defendant, who was a national or resident of the executing member state, be returned to that state in order to serve there the custodial sentence imposed on him in the issuing member state, the defendant had to be returned as soon as possible after the sentencing decision had become final. However, if the defendant had to be in the issuing state pending the taking of other procedural steps forming part of the criminal proceedings relating to the offence underlying the warrant, such as the determination of a penalty, the objective of article 5(3) had to be balanced against both the effectiveness of the criminal prosecution and the safeguarding of the defendant’s procedural rights. When conducting that balancing exercise, the issuing judicial authority had to assess whether concrete grounds, relating to the safeguarding of the rights of defence or the proper administration of justice, made his presence essential in the issuing state, after the final sentencing decision. By contrast, under the article 5(3) guarantee, the issuing judicial authority could not systematically and automatically postpone the return of the defendant to the executing state until the other procedural steps had been definitively closed (judgment, paras 53, 54, 56, 59–62, operative part, para 1).
(2) In the case of a person who had been surrendered to the issuing member state in return for a guarantee that he would be returned, article 25 of Framework Decision 2008/909 did not allow an adaptation of the sentence by the executing member state outside of the situations contemplated under article 8 of that Decision. Accordingly, article 25 meant that, in order to enforce a custodial sentence or a detention order imposed in the issuing state, when the execution of a European arrest warrant issued for the purposes of criminal proceedings was subject to the condition under article 5(3) of Framework Decision 2002/584, the executing state could adapt the duration of that sentence or detention only within the strict conditions set out in article 8(2) of Framework Decision 2008/909, (judgment, paras 65, 66, 68, operative part, para 2).
Criminal proceedings against Ognyanov (Sofiyska gradska prokuratura intervening) (Case C 554/14) EU:C:2016:835; [2017] QB 732, ECJ considered.
TE Korff and TOM Dieben for the defendant.
K van der Schaft, L Lunshof and N Bakkenes, agents, for the Openbaar Ministerie (the Dutch Public Prosecution Service).
M Bulterman, CS Schillemans and AM de Ree, agents, for the Netherlands Government.
David Blundell (instructed by The Treasury Solicitor) for the United Kingdom Government.
L Dempsey (instructed by G Hodge and A Joyce, agents, for Ireland.
S Faraci (instructed by G Palmieri, agent) for the Italian Government.
J Schmoll, agent, for the Austrian Government.
B Majczyna, agent, for the Polish Government.
R Troosters and S Grünheid, agents, for the European Commission.