JUDGMENT OF THE COURT (Fifth Chamber)
29 April 2021 (*)
(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Grounds for optional non-execution – Article 4(5) – Requested person has been finally judged in a third State in respect of the same acts – Sentence has been served or may no longer be executed under the law of the sentencing country – Implementation – Margin of discretion of the executing judicial authority – Concept of ‘same acts’ – Remission of sentence granted by a non-judicial authority as part of a general leniency measure)
In Case C‑665/20 PPU,
REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), made by decision of 7 December 2020, received at the Court on 7 December 2020, in the proceedings concerning the execution of a European arrest warrant issued against
X
THE COURT (Fifth Chamber),
composed of E. Regan, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Fifth Chamber, M. Ilešič (Rapporteur), C. Lycourgos and I. Jarukaitis, Judges,
Advocate General: G. Hogan,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure and further to the hearing on 3 March 2021,
after considering the observations submitted on behalf of:
– X, by D.W.H.M. Wolters and S.W. Kuijpers, advocaten,
– the Openbaar Ministerie, by N. Bakkenes and K. van der Schaft,
– the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,
– the German Government, by J Möller, M. Hellmann and F. Halabi, acting as Agents,
– the European Commission, by M. Wasmeier and F. Wilman, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 15 April 2021,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 4(5) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘the Framework Decision’).
2 The request has been made in the context of the execution, in the Netherlands, of a European arrest warrant issued on 19 September 2019 by the Amtsgericht Tiergarten (Local Court, Tiergarten, Germany) for the purposes of criminal proceedings brought against X.
Legal framework
EU law
The CISA
3 Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, which was signed at Schengen (Luxembourg) on 19 June 1990 and entered into force on 26 March 1995 (OJ 2000 L 239, p. 19) (‘the CISA’), contained in Chapter 3, entitled ‘Application of the ne bis in idem principle’, of Title III of that convention, provides:
‘A person whose trial has been finally disposed of in one [c]ontracting [p]arty may not be prosecuted in another [c]ontracting [p]arty for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing [c]ontracting [p]arty.’
The Framework Decision
4 Recitals 5, 6, 10 and 12 of the Framework Decision state:
‘(5) The objective set for the [European] Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. …
(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.
…
(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [TEU], determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.
…
(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [TEU] and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. …’
5 In accordance with Article 1 of that Framework Decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’:
‘1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU].’
6 Article 3 of the Framework Decision, entitled ‘Grounds for mandatory non-execution of the European arrest warrant’, provides:
‘The judicial authority of the Member State of execution (hereinafter “executing judicial authority”) shall refuse to execute the European arrest warrant in the following cases:
1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law;
2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;
3. if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State.’
7 Article 4 of that Framework Decision, entitled ‘Grounds for mandatory non-execution of the European arrest warrant’, provides:
‘The executing judicial authority may refuse to execute the European arrest warrant:
…
5. if the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country;
…’
Netherlands law
8 The Framework Decision was transposed into Netherlands law by the Wet tot implementatie van het kaderbesluit van de Raad van de Europese Unie betreffende het Europees aanhoudingsbevel en de procedures van overlevering tussen de lidstaten van de Europese Unie (Law implementing the Framework Decision of the Council of the European Union on the European arrest warrant and the surrender procedures between the Member States of the European Union) of 29 April 2004 (Stb. 2004, No 195), as last amended by the Law of 22 February 2017 (Stb. 2017, No 82) (‘the OLW’).
9 Article 9(1)(d) and (e) of the OLW, which transposes Article 3(2) and Article 4(5) of the Framework Decision, states:
‘Surrender of the requested person shall not be authorised for an offence in respect of which:
…
d. he or she has been finally acquitted or discharged by the Netherlands court or has been the subject of a corresponding final judgment by a court of another Member State of the European Union or of a third country;
e. he or she has been finally sentenced, in cases where:
1. the penalty or measure imposed has already been executed;
2. the penalty or measure imposed is no longer capable of execution or further execution;
3. the sentence entails a finding of guilt without the imposition of a penalty or measure;
4. the penalty or measure imposed is executed in the Netherlands;
…’
10 In accordance with Article 28(2) of the OLW:
‘If the rechtbank [(District Court)] finds … that the surrender cannot be authorised …, it must refuse that surrender in its decision.’
German law
11 Paragraph 51 of the Strafgesetzbuch (Criminal Code), entitled ‘Deduction’, provides, in subparagraph 3:
‘If the convicted person has been sentenced abroad for the same offence, the foreign sentence, to the extent it has been enforced, shall be deducted from the new sentence.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
12 On 19 September 2019, the Amtsgericht Berlin-Tiergarten (Local Court, Berlin-Tiergarten) issued a European arrest warrant against X, seeking his surrender for the purposes of criminal proceedings in respect of acts X allegedly committed in Berlin (Germany) on 30 October 2012.
13 On that date, X allegedly tied up Y, his partner at the material time, and Z, her 10-year-old daughter, and threatened them with a knife. He then allegedly raped Y before maiming her. Before leaving Y’s house, he allegedly barricaded the rooms in which Y and Z were respectively tied up with the intention of causing their deaths.
14 The offences for which surrender is requested are as follows:
– attempted murder of his partner;
– attempted murder of his partner’s minor daughter;
– rape of his partner;
– grievous bodily harm to his partner;
– intentional deprivation of his partner’s liberty, and
– intentional deprivation of his partner’s minor daughter’s liberty.
15 On the basis of that European arrest warrant, X was arrested in the Netherlands and brought before the referring court on 18 March 2020.
16 He informed that court that he did not consent to his surrender to the German judicial authorities and was remanded in custody pending a decision in that regard.
17 In support of the opposition to his surrender, X invoked the ne bis in idem principle, claiming, inter alia, that he had been finally judged in respect of the same acts in a third country, namely in Iran.
18 According to the findings of the referring court, X was prosecuted in Iran for the abovementioned acts, with the exception of the deprivation of Y’s liberty which, in its material elements, was nevertheless included in the classification of the ‘attempted murder of Y’.
19 X was convicted by final judgment in Iran of causing grievous bodily harm to Y and the attempted murders of Y and Z. By contrast, he was finally acquitted in respect of the accusations of the rape of Y and the intentional deprivation of Z’s liberty.
20 Under Iranian law, X had to serve only the most severe of the prison sentences imposed on him, namely a term of imprisonment of seven years and six months. He served the majority of that sentence and its remainder was remitted as part of a general leniency measure proclaimed by the Supreme Leader of Iran to mark the 40th anniversary of the Islamic revolution.
21 In respect of the grievous bodily harm he caused Y, X was also ordered to pay her a diya (sum of money). On account of his insolvency, X has been authorised to make the payment in instalments, with an initial payment of 200 000 000 Iranian rials (IRR) (approximately EUR 4 245) followed by monthly instalments of an amount equivalent to 2% of the diya. After he had paid the initial payment and the first instalment, X was released in Iran on 5 May 2019. On 7 September 2020, the Iranian authorities issued an arrest warrant against him for the failure to meet subsequent payment deadlines.
22 Before the referring court, X claims that he has been prosecuted and finally judged in Iran in respect of the same acts as those for which his surrender is requested pursuant to the European arrest warrant issued against him. He claims to have been finally acquitted in respect of some of the acts, whereas the other acts resulted in a prison sentence which X has served almost in full and the remainder of which is covered by the leniency measure referred to in paragraph 20 of the present judgment. X claims, in addition, that the diya is not a penalty or measure, but an obligation to pay compensation to the victim.
23 X infers from this that, in accordance with Article 9(1)(d) and (e)(1) of the OLW, his surrender to the German authorities pursuant to the European arrest warrant issued against him should be refused. He submits, in particular, that Article 9(1) of the OLW does not draw any distinction between a final judgment delivered in a Member State and a final judgment delivered in a third State. He claims that, as a result, the Netherlands legislature has made use of the power conferred on Member States by the Framework Decision to refuse surrender in the event of a final judgment and where the sentence has been served in full in a third State and, therefore, the Netherlands courts are obliged to comply with it.
24 The Openbaar Ministerie (Public Prosecutor’s Office, Netherlands) submits, principally, that the exception relied on by X, based on a previous conviction in Iran, cannot be upheld. In its view, in the case of a conviction handed down in a third State, it is for the referring court, as the executing judicial authority under Article 4(5) of the Framework Decision, to exclude the application of Article 9(1)(e) of the OLW in order to assess whether the conviction handed down in Iran is eligible for mutual recognition by virtue of mutual trust derived from treaties or custom. It states that, given the breakdown of diplomatic relations and the lack of judicial cooperation with the Islamic Republic of Iran, as well as the existence of significant differences between the legal systems of the Member States of the European Union and that of the Islamic Republic of Iran, such trust in the Iranian legal system is lacking. The Public Prosecutor’s Office concludes from this that the conviction handed down against X in Iran cannot constitute a valid ground for non-execution of the European arrest warrant issued against X.
25 In the alternative, the Public Prosecutor’s Office submits that Article 9(1)(e) of the OLW does not preclude the execution of that arrest warrant since the sentence imposed in Iran has not yet been served in full and may be executed at a later date. The Public Prosecutor’s Office relies, in that regard, on the arrest warrant issued by the Iranian authorities against X for his failure to comply with the deadlines set for payment of the diya. Also in the alternative, the Public Prosecutor’s Office submits that as the Iranian courts have not ruled on the charges of the deprivation of Y’s liberty, X’s surrender should be authorised on that basis.
26 In those circumstances, the referring court has doubts, first of all, as to whether Article 4(5) of the Framework Decision has been correctly transposed into Netherlands law. In particular, it observes that that provision lists the grounds for optional non-execution of a European arrest warrant, whereas Article 9(1) of the OLW provides that, where such grounds are present, execution must be refused as the executing judicial authority has no discretion in that regard.
27 Next, the referring court considers that, in order to determine whether it is required to refuse, pursuant to Article 9(1)(e) of the OLW, X’s surrender for the intentional deprivation of Y’s liberty, it must ascertain whether that act, for which X is charged in Germany, and the attempted murder of Y, for which X was convicted in Iran, concern the ‘same acts’, in accordance with Article 9(1) of the OLW and within the meaning of Article 4(5) of the Framework Decision.
28 Lastly, as regards the acts for which X has been convicted by a final judgment in Iran, the referring court states that whether it must refuse, wholly or in part, to execute the European arrest warrant in question depends on the scope of the condition, laid down in Article 4(5) of the Framework Decision, that, where a sentence has been handed down by final judgment in a third State in respect of the same acts, the penalty imposed ‘has been served … or may no longer be executed under the law of the sentencing country’.
29 The referring court asks, in particular, whether a leniency measure, such as that which applied to X in Iran, must be taken into account for the purposes of applying Article 4(5) of the Framework Decision.
30 Taking the view that the answer to the question as to whether the European arrest warrant issued against X may be executed depends on the interpretation of Article 4(5) of the Framework Decision, the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Should Article 4(5) of [the Framework Decision] be interpreted as meaning that, where a Member State chooses to transpose that provision into domestic law, the executing judicial authority must have a certain discretion as to whether or not it is appropriate to refuse to execute the European arrest warrant?
(2) Should the concept of “the same acts” in Article 4(5) of [the Framework Decision] be interpreted in the same way as in Article 3(2) of Framework Decision 2002/584 and, if not, how should that concept be interpreted in the former provision?
(3) Should the condition laid down in Article 4(5) of [the Framework Decision] that the “sentence has been served … or may no longer be executed under the law of the sentencing country” be interpreted as covering a situation in which the requested person has been finally sentenced, for the same acts, to a custodial sentence that he or she has served in part in the sentencing country and the remainder of which has been remitted by a non-judicial authority of that country, as part of a general leniency measure that also applies to convicted persons who have committed serious acts, such as the requested person, and is not based on rational criminal policy considerations?’
Request for the urgent preliminary ruling procedure
31 The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107(1) of the Rules of Procedure of the Court of Justice.
32 In that regard, it should be noted, in the first place, that the reference for a preliminary ruling concerns the interpretation of the Framework Decision, which falls within the scope of the fields referred to in Title V of Part Three of the FEU Treaty, which relates to the area of freedom, security and justice. It therefore falls within the scope of the urgent procedure defined in Article 107 of the Rules of Procedure and, accordingly, may be dealt with under the urgent preliminary ruling procedure.
33 In the second place, it is necessary, according to the settled case-law of the Court, to take into account the fact that the person concerned in the case in the main proceedings is currently deprived of his liberty and that the question whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings (judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 28 and the case-law cited).
34 It is clear from the order for reference that the detention measure to which X is subject was ordered in the context of the execution of the European arrest warrant issued against him and that the maintenance of that measure depends on the Court’s answer to the questions referred for a preliminary ruling.
35 In those circumstances, the Fifth Chamber of the Court, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided, on 18 December 2020, to accede to the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure.
The questions referred for a preliminary ruling
The first question
36 By its first question, the referring court asks, in essence, whether Article 4(5) of the Framework Decision must be interpreted as meaning that, where a Member State chooses to transpose that provision into its domestic law, the executing judicial authority must have a margin of discretion in order to determine whether or not it is appropriate to refuse to execute a European arrest warrant on the ground referred to in that provision.
37 As a preliminary point, it should be recalled that the Framework Decision seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States (judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 38 and the case-law cited).
38 In the field governed by the Framework Decision, the principle of mutual recognition, which, as is apparent, in particular, from recital 6 thereof, constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is put into practice in Article 1(2) of that Framework Decision, which lays down the rule that Member States are to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that Framework Decision (judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 39 and the case-law cited).
39 It follows that executing judicial authorities may, in principle, refuse to execute such a warrant only on the grounds for non-execution exhaustively listed by the Framework Decision. Accordingly, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception, which must be interpreted strictly (judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 37 and the case-law cited).
40 The Framework Decision explicitly sets out, in Article 3, grounds for mandatory non-execution of a European arrest warrant and, in Articles 4 and 4a, grounds for optional non-execution of such a warrant (see, to that effect, judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 40 and the case-law cited).
41 As regards the grounds for optional non-execution listed in Article 4 of the Framework Decision, it is clear from the case-law of the Court that, when transposing the Framework Decision, the Member States have a margin of discretion. Therefore, they are free to transpose those grounds into their domestic law or not to do so. They may also choose to limit the situations in which the executing judicial authority may refuse to execute a European arrest warrant, thereby facilitating the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of that Framework Decision (see, to that effect, judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraphs 58, 59 and 61).
42 Moreover, it should be observed that, according to Article 4 of the Framework Decision, the executing judicial authority ‘may refuse’ to execute a European arrest warrant on the grounds listed in paragraphs 1 to 7 of that article which include, inter alia, that authority being informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been a sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country.
43 It is therefore clear from the wording of Article 4 of the Framework Decision – in particular from the use of the verb ‘may’ together with the infinitive of the verb ‘refuse’, the subject of which is the executing judicial authority – that that authority must, itself, have a margin of discretion as to whether or not it is appropriate to refuse to execute the European arrest warrant on the grounds referred to in Article 4 (see, to that effect, judgment of 13 December 2018, Sut, C‑514/17, EU:C:2018:1016, paragraph 33 and the case-law cited).
44 It follows that, when they do opt to transpose one or more of the grounds for optional non-execution provided for in Article 4 of the Framework Decision, Member States cannot provide that judicial authorities are required to refuse to execute any European arrest warrant formally falling within the scope of those grounds, without those authorities having the opportunity to take into account the circumstances specific to each case.
45 That interpretation of Article 4 of the Framework Decision is borne out by the context in which that article arises.
46 First, as the Court has repeatedly held, execution of the European arrest warrant constitutes the rule, whereas refusal to execute is intended to be an exception which must be interpreted strictly (see, to that effect, judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 39).
47 As the Advocate General noted in point 44 of his Opinion, a national provision which would make it impossible for the executing judicial authority to take into account any circumstances specific to the individual case which might lead it to consider that the conditions for refusing surrender have not been satisfied fundamentally would have the effect of substituting the mere option, provided for in Article 4 of the Framework Decision, with a genuine obligation, thus transforming the refusal to surrender from an exception into a general rule.
48 Second, the wording of Article 4 of the Framework Decision must be compared with that of Article 3 thereof, which, in accordance with its title, sets out grounds for ‘mandatory non-execution’, pursuant to which the executing judicial authority ‘shall refuse’ to execute the European arrest warrant. Therefore, the executing judicial authority has no margin of discretion under Article 3 of the Framework Decision.
49 Furthermore, the wording of Article 4(5) of the Framework Decision is almost identical to that of Article 3(2) thereof, except that the former concerns the case of a person who has been finally judged in respect of the same acts ‘by a third State’, whereas the latter covers the case of a person who has been finally judged in respect of the same acts ‘by a Member State’.
50 The executing judicial authority’s lack of discretion when applying the ground for non-execution provided for in Article 3(2) of the Framework Decision follows from the requirement to respect the ne bis in idem principle enshrined in Article 50 of the Charter of Fundamental Rights of the European Union.
51 That principle, as guaranteed in Article 50 of the Charter of Fundamental Rights, means that a person may not be tried in criminal proceedings in a Member State for an offence for which he or she has already been acquitted or convicted ‘within the Union’.
52 In that regard, it should be recalled that EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in Article 2 TEU (judgment of 24 September 2020, Generalbundesanwalt beim Bundesgerichtshof (Speciality rule), C‑195/20 PPU, EU:C:2020:749, paragraph 30). That premiss implies and justifies the existence of mutual trust between the Member States, in particular in their respective criminal justice systems.
53 The principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 35 and the case-law cited).
54 Such mutual trust also exists between the States party to the CISA, Article 54 of which precludes a person whose trial has been finally disposed of in one contracting State from being ‘prosecuted’ in another contracting State (judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraph 50 and the case-law cited).
55 However, trust in the criminal justice system of third States which are not party to that agreement or of those States which do not have other privileged relations with the European Union cannot, in principle, be presumed, which means that the executing judicial authority must, in accordance with Article 4(5) of the Framework Decision, be granted a margin of discretion in order to determine whether, in the light of all of the circumstances specific to each case, in particular the circumstances in which the requested person has been tried and, where appropriate, the sentence imposed on him or her has been executed, it is appropriate to refuse to execute the European arrest warrant.
56 That interpretation is, moreover, consistent with the objective of Article 4(5) of the Framework Decision which, as is apparent from the wording of that provision and in accordance with Article 67(1) TFEU, is intended to enable the executing judicial authority to ensure legal certainty for the requested person by taking into account the fact that he or she has been finally judged in a third State in respect of the same acts, provided that, where there has been a sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country (see, by analogy, with regard to Article 54 of the CISA, judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraph 44).
57 In that regard, it should be noted that the condition that the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country, in so far as it has the effect, if not satisfied, of requiring the surrender of the requested person in order for that person to be prosecuted or to serve the custodial sentence ordered against him or her, contributes to the attainment of the objective of the European arrest warrant mechanism of preventing, within the area of freedom, security and justice, offences going unpunished (see, to that effect, judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 47, and, by analogy, judgment of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 77).
58 In that context, it should be recalled that the Framework Decision must be interpreted in such a way as to ensure compliance with the requirements of respect for the fundamental rights of the persons concerned, without, however, calling into question the effectiveness of the system of judicial cooperation between the Member States of which the European arrest warrant, as provided for by the EU legislature, is one of the key elements (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 63).
59 In so far as, as is clear from paragraph 55 of the present judgment, the principles of mutual trust and mutual recognition, which form the basis of the European arrest warrant mechanism, cannot automatically be transferred to judgments given by the courts of third States, attainment of the objective, set out in Article 3(2) TEU, of preventing and combating crime within the area of freedom, security and justice could be jeopardised if the executing judicial authority were required, irrespective of the circumstances of each case, to refuse to surrender the requested person on the ground set out in Article 4(5) of the Framework Decision.
60 It follows that the specific application of the ground for non-execution provided for in Article 4(5) of the Framework Decision must be left to the discretion of the executing judicial authority which, to that end, must have a margin of discretion, allowing it to carry out an examination on a case-by-case basis, taking into consideration all of the relevant circumstances and, in particular, the circumstances in which the requested person was tried in the third State, in order to determine whether the failure to surrender that person would be such as to undermine the legitimate interest of all of the Member States in preventing crime within the area of freedom, security and justice.
61 In the present case, it is clear from the request for a preliminary ruling that the referring court, unless it resorts to an interpretation contra legem, seems to rule out the possibility that the OLW may be applied in such a way as to allow the executing judicial authority such a margin of discretion.
62 In that regard, it should be recalled, first, that since the Framework Decision does not have direct effect, a court of a Member State is not required, solely on the basis of EU law, to disapply a provision of its national law which is contrary to the Framework Decision (see, to that effect, judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 71 and the case-law cited).
63 Second, while the binding character of a framework decision places on national authorities an obligation to interpret national law, to the greatest extent possible, in the light of the text and the purpose of the framework decision in order to achieve the result sought by that decision, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem (see, to that effect, judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 72, 73 and 76 and the case-law cited).
64 That being so, the principle that national law must be interpreted in conformity with EU law requires that the whole body of domestic law be taken into consideration and that the interpretative methods recognised by domestic law be applied, with a view to ensuring that the framework decision is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 77 and the case-law cited).
65 In the present case, the Netherlands Government stated at the hearing before the Court that a proposal for a law to amend Article 9 of the OLW, in order to bring it into line with the Framework Decision, was in the process of being adopted.
66 In those circumstances, it is for the referring court to assess in particular whether, in the light of that potential legislative amendment, Netherlands law may be applied in a way that leads to a result compatible with that envisaged by the Framework Decision.
67 In the light of all the foregoing considerations, the answer to the first question is that Article 4(5) of the Framework Decision must be interpreted as meaning that, where a Member State chooses to transpose that provision into its domestic law, the executing judicial authority must have a margin of discretion in order to determine whether or not it is appropriate to refuse to execute a European arrest warrant on the ground referred to in that provision.
The second question
68 By its second question, the referring court asks, in essence, whether Article 3(2) and Article 4(5) of the Framework Decision must be interpreted as meaning that the concept of ‘same acts’, contained in both provisions, must be interpreted uniformly.
69 According to settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard not only to its wording but also to the context of the provision and the objective pursued by the legislation in question (judgment of 25 June 2020, Ministerio Fiscal (Authority likely to receive an application for international protection), C‑36/20 PPU, EU:C:2020:495, paragraph 53 and the case-law cited).
70 As regards, in particular, the concept of ‘same acts’ in Article 3(2) of the Framework Decision, the Court held that, since that provision made no reference to the law of the Member States with regard to that concept, the latter had to be given an autonomous and uniform interpretation throughout the European Union (see, to that effect, judgment of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraph 38).
71 The Court also noted that the concept of ‘same acts’ also appeared in Article 54 of the CISA and, in view of the shared objective of that article and Article 3(2) of the Framework Decision, which is to ensure that a person is not prosecuted or tried more than once in respect of the same acts, it held that those two concepts had to be interpreted in the same way, as referring only to the nature of the acts, encompassing a set of concrete circumstances which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected (judgment of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraphs 39 and 40 and the case-law cited).
72 Like Article 3(2) of the Framework Decision, Article 4(5) thereof makes no express reference to the law of the Member States, and therefore, in accordance with the case-law recalled in paragraph 69 of this judgment, the meaning and scope of the concept of ‘same acts’, contained in that provision, must also be given an autonomous and uniform interpretation throughout the European Union, having regard not only to its wording but also to the context of the provision and the objective pursued by the legislation in question.
73 In that regard, it should be noted, first of all, that that concept is worded in exactly the same terms as that contained in Article 3(2) of the Framework Decision.
74 As regards, next, the context of those two concepts, it should be observed that the wording of Article 4(5) of the Framework Decision is comparable in every respect to that of Article 3(2) of the Framework Decision, except that the latter provision, which lays down one of the ‘grounds for mandatory non-execution’ of the European arrest warrant, concerns a judgment delivered ‘by a Member State’, whereas Article 4(5) of that Framework Decision, which sets out one of the ‘grounds for optional non-execution’, refers to a judgment delivered ‘by a third State’.
75 In those circumstances, reasons of consistency and legal certainty dictate that the concepts which are worded identically in each of those two provisions, and in Article 54 of the CISA, should be given the same scope (see, to that effect, judgment of 10 November 2016, Özçelik, C‑453/16 PPU, EU:C:2016:860, paragraph 33).
76 The fact that Article 3(2) of that Framework Decision concerns judgments delivered in the European Union whereas Article 4(5) concerns those delivered in a third State cannot, as such, justify a different scope being conferred on that concept.
77 It is true that the application of the ne bis in idem principle necessarily presupposes the existence of trust in the criminal justice system of the country in which the judgment was delivered (see, to that effect, judgment of 9 March 2006, Van Esbroeck, C‑436/04, EU:C:2006:165, paragraph 30 and the case-law cited). As is clear from paragraph 55 of this judgment, the high level of trust that exists between the Member States cannot be presumed as regards third States and, in particular, their criminal justice systems.
78 However, it must be pointed out, first, that it is precisely because of that uncertainty that the EU legislature has listed in the grounds for optional non-execution rather than in the grounds for mandatory non-execution the fact that the requested person has been finally judged in a third State.
79 In doing so, it allows Member States to limit the situations in which the executing judicial authority may refuse to execute a European arrest warrant on that ground, thereby facilitating the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of the Framework Decision (judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraphs 58 and 59).
80 Moreover, since, as is clear from the answer to the first question, the executing judicial authority must enjoy a margin of discretion when applying the ground for optional non-execution provided for in Article 4(5) of the Framework Decision, that authority is able to take into account, in order to determine whether or not it is appropriate to refuse to surrender the requested person, the trust which it may legitimately place in the criminal justice system of the third State concerned.
81 Second, to confer on Article 4(5) of the Framework Decision and, in particular, the concept of ‘same acts’ within the meaning of that provision, a narrower scope than that accorded to Article 3(2) of that Framework Decision and Article 54 of the CISA would be difficult to reconcile with the latter provision, since that convention is applicable not only to Member States but also to certain third countries which have acceded to it.
82 As regards, lastly, the purpose of that provision, it should be recalled that, like Article 3(2) of the Framework Decision, Article 4(5) thereof is intended to enable the executing judicial authority to ensure legal certainty for the requested person by taking into account, within the margin of discretion it has, the fact that the requested person has been finally judged in another State in respect of the same acts, which also supports a consistent interpretation of the concept of ‘same acts’ contained in those provisions.
83 In the light of all of the foregoing considerations, the answer to the second question is that Article 3(2) and Article 4(5) of the Framework Decision must be interpreted as meaning that the concept of ‘same acts’, contained in both provisions, must be interpreted uniformly.
The third question
84 By its third question, the referring court asks, in essence, whether Article 4(5) of the Framework Decision, which makes the application of the ground for optional non-execution laid down in that provision subject to the condition that, where there has been a sentence, the sentence has been served, is currently being served or may no longer be executed under the law of the sentencing country, must be interpreted as meaning that that condition is satisfied where the requested person has been finally sentenced, for the same acts, to a term of imprisonment, of which part has been served in the third State in which the sentence was handed down, whilst the remainder of that sentence has been remitted by a non-judicial authority of that State, as part of a general leniency measure that also applies to persons convicted of serious acts and is not based on objective criminal policy considerations.
85 According to Article 4(5) of the Framework Decision, the executing judicial authority may refuse to execute the European arrest warrant if it is informed that the requested person has been finally judged by a third State in respect of the same acts ‘provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country’ (‘the condition regarding execution’).
86 In that regard, it should be observed that Article 4(5) of the Framework Decision refers, in a general manner, to the ‘law of the sentencing country’, without further defining the reason why it is impossible to execute the sentence.
87 It is therefore necessary, in principle, to recognise all leniency measures provided for by the law of the sentencing country which have the effect that the penalty imposed may no longer be executed, irrespective, in particular, of the seriousness of the acts, the authority which granted the measure and the considerations in which it is rooted.
88 It follows that remission of a sentence, granted in accordance with the law of the sentencing country, cannot a priori be excluded from the scope of Article 4(5) of the Framework Decision, including where it has been granted by a non-judicial authority as part of a general leniency measure that also applies to persons convicted of serious acts and is not based on objective criminal policy considerations.
89 That interpretation, based on the wording of Article 4(5) of the Framework Decision, is supported by the context of that provision and by its purpose and, more generally, by the objective of the Framework Decision.
90 As regards, in the first place, the context of Article 4(5) of the Framework Decision, first, it should be noted that the condition regarding execution provided for in that provision is worded in almost identical terms to the condition in Article 3(2) of that Framework Decision. Article 54 of the CISA also contains such a condition which is worded in a very similar way.
91 Consequently, for the same reasons as those set out in paragraphs 74 to 81 of this judgment, that condition must be given an identical scope.
92 Second, it should be observed that, according to Article 3(1) of the Framework Decision, the executing judicial authority must refuse to execute the European arrest warrant ‘if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law’.
93 In so far as amnesty is generally intended to decriminalise the acts which it covers, with the consequence that the offence can no longer be prosecuted and, if a sentence has already been handed down, its execution will be brought to an end, amnesty therefore implies that, in principle, the penalty imposed may no longer be executed, within the meaning of Article 3(2) and Article 4(5) of the Framework Decision.
94 It cannot, however, be considered that, because it specifically envisaged the possibility of amnesty in the executing Member State in Article 3(1) of that Framework Decision, the EU legislature intended to exclude amnesty in the sentencing Member State, or even other leniency measures adopted by a non-judicial authority in that State, from the scope of Article 3(2) and Article 4(5) of the Framework Decision.
95 As is clear from its wording, Article 3(1) of the Framework Decision covers the specific situation in which the offence committed by the requested person cannot give rise to criminal proceedings being brought in the executing Member State on account of the fact that it is covered by amnesty in that Member State, whereas the condition regarding execution provided for in Article 4(5) and Article 3(2) of the Framework Decision covers the – fundamentally different – situation in which the requested person has been convicted in a third State or in a Member State other than the executing Member State.
96 In the second place, as regards the purpose of the condition regarding execution provided for in Article 4(5) of the Framework Decision, it is clear from paragraph 57 of the present judgment that that condition regarding execution is aimed at preventing, within the area of freedom, security and justice, offences going unpunished.
97 In that regard, it should be recalled that, as can be seen from Article 67(3) TFEU, in order to achieve its objective of constituting an area of freedom, security and justice, the European Union endeavours to ensure a high level of security through measures to prevent and combat crime, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws (judgment of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 62).
98 In that context, the condition regarding execution is of particular importance since, if it is not satisfied, it has the effect of preventing the application of the ne bis in idem principle and, accordingly, of requiring the surrender of the requested person in order for that person to be prosecuted or to serve the custodial sentence ordered against him or her.
99 However, the ne bis in idem principle set out in both Article 4(5) of the Framework Decision and Article 3(2) thereof and in Article 54 of the CISA is intended not only to prevent, in the area of freedom, security and justice, the impunity of persons definitively convicted and sentenced; it also seeks to ensure legal certainty through respect for decisions of public bodies which have become final (see, to that effect, judgment of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 77).
100 Legal certainty for persons who have been finally judged can be effectively guaranteed only if they can be sure that, once they have been convicted and when the penalty imposed on them can no longer be enforced under the laws of the sentencing country, they may travel within the European Union without fear of further prosecution for the same acts (see, to that effect, judgment of 11 December 2008, Bourquain, C‑297/07, EU:C:2008:708, paragraphs 49 to 50), including where their sentence has been remitted by a non-judicial authority as part of a general leniency measure which is not based on objective criminal policy considerations.
101 It should, however, be noted that, unlike the ground for mandatory non-execution provided for in Article 3(2) of the Framework Decision, in the application of which the executing judicial authority has no margin of discretion, that authority must, as stated in paragraph 60 of the present judgment, enjoy a margin of discretion when applying the ground for optional non-execution provided for in Article 4(5) of the Framework Decision, allowing it to carry out an examination on a case-by-case basis, taking into consideration all of the relevant circumstances. These include, inter alia, the fact that the requested person has been the subject of a general leniency measure, the scope of that measure and the circumstances in which that measure was taken.
102 That examination of the relevant circumstances must be carried out in the light of the objectives, recalled in paragraph 99 of the present judgment, pursued in Article 4(5) of the Framework Decision and, more generally, the objective, set out in Article 3(2) TEU, of preventing and combating crime within the area of freedom, security and justice.
103 In particular, when exercising the discretion it enjoys, the executing judicial authority must strike a balance between, on the one hand, preventing impunity and combating crime and, on the other, ensuring legal certainty for the person concerned, in order to attain the European Union’s objective of becoming an area of freedom, security and justice, in accordance with Article 67(1) and (3) TFEU.
104 In the light of the foregoing considerations, the answer to the third question is that Article 4(5) of the Framework Decision, which makes the application of the ground for optional non-execution laid down in that provision subject to the condition that, where there has been a sentence, the sentence has been served, is currently being served or may no longer be executed under the law of the sentencing country, must be interpreted as meaning that that condition is satisfied where the requested person has been finally sentenced, for the same acts, to a term of imprisonment, of which part has been served in the third State in which the sentence was handed down, whilst the remainder of that sentence has been remitted by a non-judicial authority of that State, as part of a general leniency measure that also applies to persons convicted of serious acts and is not based on objective criminal policy considerations. It is for the executing judicial authority, when exercising the discretion it enjoys, to strike a balance between, on the one hand, preventing impunity and combating crime and, on the other, ensuring legal certainty for the person concerned.
Costs
105 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
1. Article 4(5) of 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, must be interpreted as meaning that, where a Member State chooses to transpose that provision into its domestic law, the executing judicial authority must have a margin of discretion in order to determine whether or not it is appropriate to refuse to execute a European arrest warrant on the ground referred to in that provision.
2. Article 3(2) and Article 4(5) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that the concept of ‘same acts’, contained in both provisions, must be interpreted uniformly.
3. Article 4(5) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, which makes the application of the ground for optional non-execution laid down in that provision subject to the condition that, where there has been a sentence, the sentence has been served, is currently being served or may no longer be executed under the law of the sentencing country, must be interpreted as meaning that that condition is satisfied where the requested person has been finally sentenced, for the same acts, to a term of imprisonment, of which part has been served in the third State in which the sentence was handed down, whilst the remainder of that sentence has been remitted by a non-judicial authority of that State, as part of a general leniency measure that also applies to persons convicted of serious acts and is not based on objective criminal policy considerations. It is for the executing judicial authority, when exercising the discretion it enjoys, to strike a balance between, on the one hand, preventing impunity and combating crime and, on the other, ensuring legal certainty for the person concerned.
[Signatures]