On 1 June 2016 the Court of Justice of the EU (‘CJEU’) in Luxembourg delivered an important judgment in respect of how European Arrest Warrants should be handled throughout the EU.
The European Arrest Warrant (‘EAW’) scheme was established by Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (‘the Framework Decision’).
The Framework Decision was subsequently implemented by each member state in domestic legislation. The EAW was designed to replace traditional extradition arrangements and replace them with a simple system of surrender. This system of surrender is based on mutual trust and recognition of judicial decisions of fellow member states.
Under the Framework Decision Member States must execute an EAW unless one of the grounds for non-execution specified in the Framework Decision is met. It is designed to be a speedy system with little room to resist surrender for the individual who is subject to the EAW.
The case in question was a request for a preliminary ruling concerning the interpretation of Article 8(1)(c) of the Framework Decision.
Article8 of the Framework Decision, headed ‘Content and form of the European arrest warrant’, states in paragraph1 thereof as follows:
‘The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
…
(c)evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles1 and 2;
…’
The reference was made in connection with the execution of an EAW in Romania that was issued on 23 March 2015 in Hungary against Mr Niculaie Aurel Bob-Dogi.
The EAW was issued in connection with criminal proceedings commenced against him in respect of offences committed in Hungary in 2013, which may be classified as ‘serious bodily harm’. They related to a road traffic accident on the public highway for which Mr Bob-Dogi was alleged to be responsible and which caused multiple injuries to Mr Katona, a Hungarian national, who was riding a moped when the accident occurred.
Mr Bob-Dogi was arrested pursuant to the EAW in Romania on 2 April 2015.
The executing Romanian court noted that at point (b) of the EAW at issue, headed ‘Decision on which the arrest warrant is based’, stated’public prosecutor’s office attached to Nyíregyházi járásbíróság (District Court, Nyíregyház, Hungary), K.11884/2013/4′, and point b(1) of that arrest warrant, which must be completed with the details of the arrest warrant or judicial decision of equivalent effect, stated’European arrest warrant No 1.B.256/2014/19-II, issued by the Mátészalkai járásbíróság (District Court, Mátészalka), also covering the territory of Hungary, thus constituting, at the same time, a national arrest warrant’.
In simple terms there did not appear to be any separate domestic arrest warrant for Mr Bob-Doji. The Hungarian Issuing Judicial Authority relied upon the EAW alone.
The Romanian court referred the matter to the CJEU for rulings on two questions:
‘1. For the purposes of the application of Article 8(1)(c) of the Framework Decision, must the expression “evidence of … an arrest warrant” be understood to refer to a national arrest warrant issued in accordance with the procedural rules of the issuing Member State, and therefore distinct from the European arrest warrant?
2. If the first question is answered in the affirmative, may the non-existence of a national arrest warrant constitute an implied reason for non-execution of the European arrest warrant?’
The reference came before the CJEU for hearing on 20 January 2016.
There was evidence before the court that under Hungarian law there is a simplified procedure that allowed for the issuance of an EAW without a separate domestic arrest warrant in circumstances where it could be shown that individual was already out of the country. In such cases the Hungarian Issuing Judicial Authority would simply refer on the EAW to the EAW itself and mention that the EAW is also valid on Hungarian territory.
The court considered whether that practice was compatible with the Framework Decision. In doing so it considered the wording of Article 8(1)(c) and the context of the Framework Decision as a whole.
The court stated a simplified system as adopted by the Hungarian authorities might interfere with the principles of mutual recognition and confidence that underpin the whole EAW system. If an executing judicial authority is faced with an EAW based on such a simplified procedure it is not in a position to verify whether the EAW complies with the requirements laid down in Article 8 of the Framework Decision.
The court stressed that the EAW system envisaged a dual level of judicial protection both at the time of the issuance of the domestic warrant and also of the EAW itself.
The court therefore held that the answer to the first question is that Article 8(1)(c) of the Framework Decision is to be interpreted as meaning that the term ‘arrest warrant’, as used in that provision, must be understood as referring to a national arrest warrant that is distinct from the EAW itself.
Turning to the second question the court observed that whilst the absence of any indication in the EAW of the existence of a national arrest warrant is not one of the grounds for non-execution listed in Articles 3, 4 and 4a of the Framework Decision and nor does it fall within the scope of Article 5 of that decision the fact nevertheless remains that those provisions are based on the premise that the EAW concerned will satisfy the requirements as to the lawfulness of that warrant laid down in Article 8(1) of the Framework Decision. A failure to satisfy those requirements would render the EAW invalid.
Therefore the answer to Question 2 is that Article 8(1)(c) of the Framework Decision is to be interpreted as meaning that, where a EAW based on the existence of an ‘arrest warrant’ within the meaning of that provision does not contain any reference to the existence of a national arrest warrant, the executing judicial authority must refuse to give effect to it if it concludes that the European arrest warrant is not valid because it was in fact issued in the absence of any national warrant separate from the European arrest warrant.
The case provides an important clarification to the EAW scheme. Before this reference it is clear that there was a divergence in the approach of the Romanian (and presumably other member states’) courts in dealing with this issue. In light of this judgment Hungary will clearly have to modify its procedures in the future and those representing individuals facing extradition under an EAW will need to be careful to check for an underlying domestic warrant.
Since opting back into a number of EU Criminal Justice measures in 2014 the UK is now under the jurisdiction of the CJEU in respect of the EAW. Gherson has extensive experience in advising individuals facing extradition both inside and outside of the EU and the EAW scheme. In addition we have experience in taking cases to the Courts of Justice of the EU in Luxembourg. If you wish to speak to a member of our team please contact us.