OPINION OF ADVOCATE GENERAL
HOGAN
delivered on 15 April 2021 (1)
Case C‑665/20 PPU
Openbaar Ministerie
v
X
(Request for a preliminary ruling
from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands))
(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Surrender of requested persons to issuing judicial authorities – Article 4(5) – Grounds for optional non-execution – Requested person has been finally judged by a third State in respect of the same acts – Ne bis in idem principle – Sentence has been served or may no longer be executed)
I. Introduction
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, (2) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (3) (‘Framework Decision 2002/584’).
2. While the Court’s case-law on the European arrest warrant may be described as extensive, the variety of situations in which that instrument is implemented constantly raises new questions as to the scope of the rules and principles that are prerequisites for its application. This request for a preliminary ruling is a further illustration of this.
3. It 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 for acts of exceptional violence allegedly committed in Berlin (Germany) but which may potentially have already been tried, in whole or in part, by the Tehran Criminal Court (Iran). Sentenced to a prison term of seven years and six months, X’s sentence was reduced by the final 338 days as part of a general amnesty measure proclaimed by the Supreme Leader of the Revolution to mark the 40th anniversary of the Iranian revolution.
4. In this particular context, the Court is asked to clarify its case-law on the discretion of judicial authorities faced with a ground for optional non-execution of a European arrest warrant in the specific case provided for in Article 4(5) of Framework Decision 2002/584. For the first time, the Court will also have to rule on the transnational applicability of the ne bis in idem principle inferred by Article 4(5) of Framework Decision 2002/584 and on the impact of a leniency measure when applying that provision.
II. Legal framework
A. EU law
5. Recitals 6, 10 and 12 of Framework Decision 2002/584 state:
‘(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. …’
6. 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].’
7. Article 3 of Framework Decision 2002/584, 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.’
8. Article 4 of Framework Decision 2002/584 concerns, according to its title, the ‘Grounds for optional non-execution of the European arrest warrant’. Under that article:
‘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;
…’
B. Netherlands law
9. Framework Decision 2002/584 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, (4) as amended by the Law of 22 February 2017 (5) (‘the OLW’).
10. On the date on which the request for a preliminary ruling was made, Article 9(1) of the OLW provided:
‘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;
…’
11. 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.’
III. The facts of the dispute in the main proceedings
12. On 19 September 2019, the Amtsgericht Tiergarten (Local Court, Tiergarten) issued a European arrest warrant against X, seeking his surrender for the purposes of criminal proceedings in respect of acts he allegedly committed in Berlin 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 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 daughter, who was a minor at the material time;
– rape of his partner;
– grievous bodily harm to his partner;
– intentional deprivation of his partner’s liberty;
– 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. 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. 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 Iran.
16. According to the findings of the referring court, X has been tried 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 her attempted murder. Following the proceedings in Iran, X was convicted by final judgment of causing grievous bodily harm to Y and the attempted murders of Y and Z. However, he was finally acquitted in respect of the accusations of the rape of Y and the intentional deprivation of Z’s liberty.
17. Under Iranian law, X had to serve only the most severe of the prison sentences imposed on him in that country in respect of the acts for which he had been finally sentenced, namely a prison term of seven years and six months. X has served the majority of that sentence. His sentence was reduced by its remainder as part of a general amnesty proclaimed by the Supreme Leader of the Revolution to mark the 40th anniversary of the Iranian revolution.
18. In respect of the grievous bodily harm he caused Y, X was also ordered to pay her a ‘diya’. 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.
19. 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 in full. X claims, in addition, that the ‘diya’ is not a penalty or measure, but an obligation to pay compensation to the victim.
20. 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, inter alia, 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 country. As a result, the Netherlands legislature is said to have made use of the power conferred on Member States by Framework Decision 2002/584 to refuse surrender in the event of a final judgment and where the sentence has been served in full in a third country. According to X, the Netherlands courts are therefore obliged to comply with it.
21. By contrast, the Openbaar Ministerie (Public Prosecutor’s Office, Netherlands) submits that the exception relied on by X, based on a previous conviction in Iran, cannot be upheld. In the case of a conviction handed down in a third country, it is for the referring court, as the executing judicial authority under Article 4(5) of Framework Decision 2002/584, 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. 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 confidence in the Iranian legal system is said to be lacking. The Openbaar Ministerie (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 him.
22. Faced with those opposing arguments, the referring court has several doubts as to how Article 4(5) of Framework Decision 2002/584 should be interpreted and how it has been transposed into Netherlands law.
23. In that regard, it observes that Article 4 of Framework Decision 2002/584 lists the grounds for optional non-execution of a European arrest warrant, whereas the OLW provides that, where such grounds are present, execution must be refused as the executing judicial authority has no discretion in that regard. The referring court asks, in addition, whether the concept of ‘the same acts’ used in Article 4(5) of Framework Decision 2002/584 should be interpreted in the same way as the Court has interpreted Article 3(2) of that framework decision even though the first situation concerns the existence of a final judgment delivered in a third country, whereas the second concerns a final judgment delivered in another Member State. Finally, the referring court asks whether a leniency measure, such as that which applied to X in Iran, enables the view to be taken that the sentence imposed on him has been served or may no longer be executed under the law of the sentencing country within the meaning of Article 4(5) of Framework Decision 2002/584.
24. Taking the view that the answer to the question as to whether it may execute the European arrest warrant issued against X depends, ultimately, on the interpretation of Article 4(5) of Framework Decision 2002/584, the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) decided to stay the proceedings and to request a preliminary ruling from the Court.
IV. The questions referred for a preliminary ruling and the urgent procedure before the Court of Justice
25. By decision of 7 December 2020, received at the Court the same day, the rechtbank Amsterdam (District Court, Amsterdam) decided to refer the following questions to the Court for a preliminary ruling under Article 267 TFEU:
‘(1) Should Article 4(5) of Framework Decision 2002/584 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 Framework Decision 2002/584 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 Framework Decision 2002/584 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?’
26. The referring court also requested that the request for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.
27. In support of that request, it argued that the questions referred concern the interpretation of Framework Decision 2002/584, which comes under Title V of Part Three of TFEU. It also noted that X has been remanded in custody pending a decision on the action to be taken concerning his surrender to the German authorities. An urgent answer by the Court will therefore have a direct and decisive impact on the duration of the detention of the person concerned.
28. The Fifth Chamber of the Court decided on 17 December 2020 to grant that request.
29. Written observations were submitted by the Openbaar Ministerie (Public Prosecutor’s Office), X, the Netherlands and German Governments and the European Commission. With the exception of the German Government, they each presented oral argument at the hearing held on 3 March 2021.
V. Analysis
A. Preliminary observations
30. As I said in the introduction to this Opinion, the case-law on Framework Decision 2002/584 is extensive. The context in which the provisions of that framework decision must be interpreted is now known. (6)
31. As a preliminary point, it should therefore be noted 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. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the EU law that implements them will be respected. (7)
32. Both the principle of mutual trust between the Member States and the principle of mutual recognition are of even more fundamental importance in EU law since they allow an area without internal borders to be created and maintained. More specifically, 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. (8)
33. In that context, Framework Decision 2002/584 seeks to replace the system of multilateral extradition built upon the European Convention on Extradition, signed in Paris on 13 December 1957, with a simplified and more effective system for surrender between judicial authorities of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions. The European arrest warrant, the first concrete measure in the field of criminal law implementing the principle of mutual recognition, is based, necessarily, in the EU legislature’s own words, on a high level of confidence between Member States. (9)
34. The principle of mutual recognition, which, as is apparent, in particular, from recital 6 of Framework Decision 2002/584, constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, finds specific expression in Article 1(2) of that framework decision. That provision 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. Executing judicial authorities may therefore, in principle, refuse to execute such a warrant only on the grounds for non-execution exhaustively listed by Framework Decision 2002/584. Similarly, execution of the European arrest warrant may be made subject only to one of the conditions exhaustively laid down in Article 5 of that 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. (10)
35. Therefore, Framework Decision 2002/584 explicitly sets out the grounds for mandatory non-execution (Article 3) and optional non-execution (Articles 4 and 4a) of a European arrest warrant, as well as the guarantees to be given by the issuing Member State in particular cases (Article 5). (11)
36. However, the principles of mutual trust and recognition on which that framework decision is based must not in any way undermine the fundamental rights guaranteed to the persons concerned. (12) It follows logically from the foregoing that Framework Decision 2002/584 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. (13)
B. The first question referred for a preliminary ruling
37. By its first question, the referring court asks whether Article 4(5) of Framework Decision 2002/584 must be interpreted as meaning that, where a Member State chooses to transpose that provision into its domestic law, it must grant the executing judicial authority a margin of discretion for the purposes of determining whether or not it is appropriate to refuse to execute the European arrest warrant on the ground referred to in that provision.
38. As Advocate General Bot has already summarised in his Opinion in the case which gave rise to the judgment of the Court of 29 June 2017, Popławski (C‑579/15, EU:C:2017:503), the question is, in what sense is the European arrest warrant ‘optional’? Is that option aimed at Member States, which, when transposing Framework Decision 2002/584 into their domestic law, can decide whether or not to adopt the grounds for optional non-execution, or is it conferred on the executing judicial authority, which would have some discretion in deciding whether or not to adopt those grounds on the basis of the specific circumstances of each case? (14)
39. In that regard, the freedom of the Member States to transpose the grounds for optional non-execution of the European arrest warrant has, unquestionably, been confirmed by the Court on several occasions. (15) However, since then, the Court has also had the opportunity to rule on different situations in respect of the grounds for optional non-execution of the arrest warrant. On each occasion, it has adopted the interpretation that the judicial authority necessarily has to be granted discretion. (16) In the present case, the conclusion I have reached following a textual, contextual and teleological analysis of Article 4(5) of Framework Decision 2002/584 is identical.
40. In the first place, I would point out that it was by referring expressly to point 30 of the Opinion of Advocate General Bot in Popławski (C‑579/15, EU:C:2017:116) that the Court held that it was clear from the wording of Article 4(6) of Framework Decision 2002/584 that, where a Member State chose to transpose that provision into domestic law, the executing judicial authority must, nevertheless, have a margin of discretion as to whether or not it is appropriate to refuse to execute the European arrest warrant. (17)
41. However, in that point of his Opinion, Advocate General Bot did not confine his analysis to the text of Article 4(6) of Framework Decision 2002/584. That point concerned, first, the title of Article 4 of that framework decision and, secondly, the first paragraph of that article, which contains a single sentence introducing, without distinction, all of the different grounds for optional non-execution numbered from 1 to 7.
42. It may, therefore, usefully be recalled that the adjective ‘optional’ which appears in the title of Article 4 of Framework Decision 2002/584 refers to the ‘non-execution’ of the European arrest warrant and not to the ‘grounds’ which may justify it. Therefore, it is indeed the refusal to execute the warrant which is optional, as opposed to the mandatory refusals provided for in Article 3 of that framework decision. (18) Since it is optional, any refusal decision will necessarily reflect a deliberate choice on the part of the authority which adopted it and, consequently, the outcome of its assessment.
43. Moreover, as Advocate General Bot also noted in the same point of his Opinion, it follows from the first paragraph of Article 4 of Framework Decision 2002/584 that the option to refuse to execute the European arrest warrant is conferred directly on the national executing judicial authorities. Where the first paragraph of Article 3 of Framework Decision 2002/584 states that the executing judicial authority ‘shall refuse to execute the European arrest warrant’ (19) in the cases listed in that provision, the first paragraph of Article 4 states that the same authority ‘may refuse to execute the European arrest warrant’. (20) As the Court has previously found, it is clear from the choice of the word ‘may’, that, where a Member State chooses to transpose that provision into domestic law, the executing judicial authority must have a margin of discretion as to whether or not it is appropriate to refuse to execute the European arrest warrant. (21)
44. In the second place, that interpretation of Article 4(5) of Framework Decision 2002/584 is borne out by the context in which it arises. I recalled in my preliminary observations that the execution of the European arrest warrant constitutes the rule and refusal to execute it is an exception which, as such, must be interpreted strictly. (22) To allow a transposition of Article 4 of Framework Decision 2002/584 which would require the executing judicial authority to refuse to execute a European arrest warrant in the situations listed in that provision would make it impossible for that authority, because of that provision’s automatic nature, to take into account any circumstances specific to the individual case that might lead it to consider that the conditions for refusing surrender have not been satisfied. Therefore, by transforming a mere option of refusal into a full obligation, a provision to that effect also transforms the refusal to surrender from an exception into a general rule. (23)
45. Moreover, in the contextual interpretation of Article 4(5) of Framework Decision 2002/584, the Court cannot disregard the situation envisaged in Article 3(2) of that framework decision. The situations set out are identical, subject only to the fact that the first situation concerns the existence of a final judgment delivered by a third country, whereas the second concerns a final judgment delivered by a Member State. As the German Government rightly points out in its written observations, if Member States could choose to change the situation referred to in Article 4(5) of Framework Decision 2002/584 into a ground for mandatory refusal, the difference between the two provisions would then be rendered meaningless.
46. In the third place, the objective pursued by the introduction of the European arrest warrant also seems to me to confirm the interpretation which supports the margin of discretion of judicial authorities. In accordance with Article 1(1) of Framework Decision 2002/584, the aim of the mechanism of the European arrest warrant is to enable the arrest and surrender of a requested person, in the light of the objective pursued by the framework decision, so that the crime committed does not go unpunished and that that person is prosecuted or serves the custodial sentence ordered against him. (24)
47. To interpret Article 4(5) of Framework Decision 2002/584 as meaning that it would allow Member States to require judicial authorities to refuse, in any event, to execute a European arrest warrant where 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), without those authorities having any margin of discretion even though the legal systems and applicable procedures in third countries may be significantly different from those with which Member States are familiar, could create a risk of impunity of the requested person. Such an interpretation cannot, therefore, be regarded as compatible with Framework Decision 2002/584. (25)
48. In that context, just as the executing judicial authorities must, under Article 4a of Framework Decision 2002/584, be able to take into account all the circumstances that enable them to ensure that the surrender of a person who is the subject of a European arrest warrant does not entail a breach of his rights of defence since that provision provides – in the same way as Article 4(5) of Framework Decision 2002/584 – for a case of optional non-execution, (26) the competent judicial authorities must also be able to take into account all of the circumstances that enable them to ensure that the refusal to surrender does not lead to the impunity of the requested person.
49. Such discretion is all the more important in connection with the application of Article 4(5) of Framework Decision 2002/584 since that provision extends the ne bis in idem principle to judgments delivered by the courts of third countries. Unlike the situation between Member States, the principles of mutual trust and mutual recognition, on which the European arrest warrant mechanism is based, cannot immediately be transferred to third States. (27) This specific feature is central to the second question referred for a preliminary ruling and I shall therefore examine it in my analysis of that question.
50. That said, in the light of the foregoing considerations, to me, it follows from the textual, contextual and teleological interpretation of Article 4(5) of Framework Decision 2002/584 that that decision must be interpreted as meaning that, where a Member State chooses to transpose that provision into its domestic law, it must grant the executing judicial authority a margin of discretion for the purposes of determining whether or not it is appropriate to refuse to execute the European arrest warrant on the ground referred to in that provision.
C. The second question referred for a preliminary ruling
51. By its second question, the referring court asks, in essence, whether the concept of ‘the same acts’ in Article 4(5) of Framework Decision 2002/584 must be interpreted in the same way as the identically worded concept used in Article 3(2) of that framework decision. Should this not be the case, the referring court thus asks as to the meaning which should be attached to it.
52. It should be noted, as a preliminary point, that, like Article 3(2) of Framework Decision 2002/584, Article 4(5) of that decision does not refer to the law of the Member States in respect of the concept of ‘the same acts’. In view of the need for uniform application of EU law, that concept cannot therefore be left to the discretion of the judicial authorities of each Member State on their basis of their national law. It is an autonomous concept of EU law. (28)
53. With regard to the concept of ‘the same acts’ in Article 3(2) of Framework Decision 2002/584, the Court has held that it had to be given the same definition as that given to the concept of ‘the same acts’ in 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, (29) signed in Schengen (Luxembourg) on 19 June 1990 (‘the CISA’). (30) It is therefore interpreted 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. (31)
54. The Court justified that identity of concepts by relying on the shared objective of Article 54 of the CISA and Article 3(2) of Framework Decision 2002/584 which is to ensure that a person is not prosecuted or tried more than once in respect of the same acts. (32) I do not see what other objective could be behind Article 4(5) of Framework Decision 2002/584 since, as I have previously stated, that provision is similar in every respect to Article 3(2) of that framework decision, without prejudice to the State which delivered the earlier judgment, ruling on the same acts.
55. In those circumstances, having regard to that shared objective and the need, recognised by the Court, to ensure consistency between the interpretations of the various provisions of Framework Decision 2002/584, (33) I consider that the concept of ‘the same acts’ used in Article 4(5) of that framework decision must be interpreted in the same way as in Article 3(2).
56. I would add that, although the ne bis in idem principle was not formally mentioned by the EU legislature in Framework Decision 2002/584, there is little doubt that it is that principle which is implemented by Article 3(2) and Article 4(5) of Framework Decision 2002/584. This is demonstrated by, first, the title of the chapter which contains Article 54 of the CISA – ‘Application of the ne bis in idem principle’ – and, secondly, the identical interpretation given to Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which formalises that principle in the Charter. (34)
57. More than just internal consistency within Framework Decision 2002/584, it is therefore a matter of ensuring consistency across EU law. Since it is a fundamental principle of EU law, which is also enshrined in Article 50 of the Charter, (35) and is now given the same interpretation in areas as diverse as value added tax (VAT), (36) the fight against money laundering (37) or the European arrest warrant, its definition cannot vary depending on the legal instrument in question and, a fortiori, within a single instrument. Such a difference would be all the more dissonant, or even anachronistic, since the European Court of Human Rights has also ultimately adopted an interpretation of the ne bis in idem principle which focuses on the requirement that the facts are identical or substantially the same. (38)
58. It is true that, like other international instruments, (39) Article 4 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Strasbourg on 22 November 1984, confines the application of the ne bis in idem principle to judgments delivered in a single country. (40) Likewise, Article 50 of the Charter stipulates that no one is liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been acquitted or convicted ‘within the Union’. The reason for that limited transnational application of the ne bis in idem principle is that, within the European Union legal order, by virtue of the principle of mutual trust, each of the Member States are required to consider, save in exceptional circumstances, that all the other Member States are complying with EU law and, in particular, the fundamental rights recognised by that law. (41) I am also well aware of the fact that, in the context of the CISA, the Court has emphasised the necessary link between the ne bis in idem principle enshrined in Article 54 of that convention and the mutual trust of the Member States in their respective criminal justice systems. (42)
59. However, although no principle of public international law requires the transnational application of the ne bis in idem principle, (43) to my knowledge, no rule prohibits it. (44) By choosing to establish a ground for refusal to execute a European arrest warrant in respect of judgments delivered in a third country using identical wording to that in Article 3(2) of Framework Decision 2002/584, the fact remains that the EU legislature made that choice.
60. Nevertheless, it must not be forgotten that Article 4(5) of Framework Decision 2002/584 must be interpreted in the light of Article 1(3) of that decision, which requires full respect for fundamental rights and fundamental legal principles enshrined in Article 6 of the TEU when exercising the European arrest warrant mechanism. The transnational application of the ne bis in idem principle, therefore, must not in any way undermine the fundamental rights guaranteed to the persons concerned. (45)
61. It therefore follows from a combined reading of those two provisions that, although the executing judicial authority must take into account the final judgment delivered by a court of a third country, this is on the condition that that judgment is the result of proceedings which, inter alia, have complied with the standards of a fair trial shared by the Member States and are capable of guaranteeing the rights of all parties to the proceedings. (46)
62. The fact that Article 4(5) of Framework Decision 2002/584 sets out a ground for optional refusal of execution, whereas Article 3(2) of that framework decision lays down a ground for mandatory refusal of execution, also has two other consequences which are also guarantees that may compensate for the lack of mutual trust vis-à-vis third States.
63. First, it is, ultimately, for each Member State to decide whether it wishes to transpose Article 4(5) of Framework Decision 2002/584 and to extend the ne bis in idem principle to transnational situations outside the Union. (47) Secondly, as I demonstrated in my analysis of the first question referred by the national court, the practical application of the exception referred to in Article 4(5) of Framework Decision 2002/584 must be left to the discretion of the executing judicial authority.
64. It is therefore for the competent judicial authority to determine, in addition to the fairness of the proceedings conducted in the third State, whether the material acts at issue constitute a set of facts which are inextricably linked together in time, in space and by their subject matter. (48)
65. In its assessment, the judicial authority will, finally, take into account the objective pursued by Framework Decision 2002/584, which is that the crime committed must not go unpunished and the person must be prosecuted or serve the custodial service ordered against him. (49) As already stated, the provisions of Framework Decision 2002/584 must be interpreted in such a way as, admittedly, to ensure compliance with the requirements of respect for the fundamental rights of the persons concerned – including the ne bis in idem principle – without, however, calling into question the effectiveness of the system of judicial cooperation between the Member States of which the European arrest warrant is one of the key elements. (50)
66. In the light of the foregoing considerations, I conclude that the concept of ‘the same acts’ in Article 4(5) of Framework Decision 2002/584 must be interpreted in the same way as that used in Article 3(2) of that framework decision. That concept must therefore be interpreted 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.
D. The third question referred for a preliminary ruling
67. By its third question, the referring court asks, in essence, whether the condition laid down in Article 4(5) of Framework Decision 2002/584 concerning the execution of the sentence must be interpreted as meaning that it is satisfied where the requested person has been finally sentenced, for the same acts, to a custodial sentence, of which part has been served in the sentencing country whilst the remainder has been remitted by a non-judicial authority of that country, 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.
68. The meaning to be given to that condition is significant in that it may preclude a refusal to execute the European arrest warrant. If the sentence has not been executed within the meaning of Article 4(5) of Framework Decision 2002/584, that provision imposes a return to the principle, that is to say the surrender of the person concerned.
69. As a preliminary point, I should point out that I will deal with the legal phenomenon of leniency as it has been defined by the referring court: namely as a measure granted by a non-judicial authority to a group of persons convicted of serious offences which is not based on objective criminal policy considerations. This neutral and general way of defining the problem seems to me to be particularly relevant in view of the multitude of existing leniency measures (51) and the variations in their definitions in the legal traditions of the Member States. (52)
70. Now that the analytical framework has been defined, it may be observed that the wording of the condition regarding enforcement is identical in Article 3(2) and Article 4(5) of Framework Decision 2002/584, but also in Article 54 of the CISA. The Court has specified in relation to the latter that the condition regarding enforcement was satisfied when it is established that, at the time when the second criminal proceedings were instituted against the same person in respect of the same acts as those which led to a conviction in the first contracting State, the penalty imposed in that first State can no longer be enforced according to the laws of that State. (53)
71. However, that finding alone, based on the wording of Article 54 of the CISA, cannot be the sole basis for interpreting Article 4(5) of Framework Decision 2002/584 and, in doing so, disregarding its context and the objectives pursued by the EU legislature. After all, while ‘the wording of a provision … is invariably the starting point of, and at the same time the limit attaching to, any interpretation’, (54) the other interpretative methods become optional only where the text in question is absolutely clear and unambiguous. (55) In the present case, it must be noted that the wording of the article in question does not, of itself, enable the scope of the condition regarding enforcement to be determined.
72. First of all, as regards the context of Article 4(5) of Framework Decision 2002/584, it is absolutely clear from Article 3(1) of that framework decision that the EU legislature was not unaware of the potential interference from leniency measures in the application of the European arrest warrant.
73. Under that provision, the executing judicial authority must refuse to execute a European arrest warrant where the offence on which the arrest warrant is based is covered by amnesty in the executing Member State and that State had jurisdiction to prosecute the offence under its own criminal law. The EU legislature, nevertheless, limited that situation to an amnesty in force in the executing Member State and envisaged it only as a ground for mandatory non-execution. Article 4(5) of Framework Decision 2002/584 cannot therefore be interpreted as allowing a general leniency measure to be taken into account when it is clear from the settled case-law of the Court that Framework Decision 2002/584 sets out the grounds for non-execution of the European arrest warrant exhaustively (56) and refusal to execute is intended to be an exception which must be interpreted strictly. (57)
74. Next, if we turn to the objectives pursued by the EU legislature, it may be recalled that the European arrest warrant mechanism is the first concrete measure in the field of criminal law implementing the principle of mutual recognition. Framework Decision 2002/584 seeks, therefore, to replace the previous system of multilateral extradition with a simplified and more effective system for surrender between judicial authorities. (58) It is therefore a method of bringing extradition within the jurisdiction of the courts: while extradition is a sovereign act, the European arrest warrant is a judicial act. (59)
75. This is why Framework Decision 2002/584 has created a mechanism for cooperation between the judicial authorities of the Member States, (60) which must be understood in the context of that framework decision as the authorities which – independently – (61) administer criminal justice. (62)
76. The leniency measure as defined by the referring court was, first, granted by a non-judicial authority and, secondly, does not in any way form part of a criminal policy perspective. It would appear, therefore, that taking such a measure into consideration when applying Article 4(5) of Framework Decision 2002/584 would be at odds with the philosophy of a system which makes the European arrest warrant a criminal justice instrument and places the judicial authorities of the Member States at the heart of its operation.
77. Moreover, such an interpretation would also be incompatible with the ne bis in idem principle since that principle is based on the logic of mutual trust and mutual trust can operate only in the sphere of the judicial application of the law. (63) The judicial authorities are best placed, following a specific and individual analysis, to reconcile the fundamental rights of the persons concerned and the effectiveness of the system of judicial cooperation between the Member States.
78. In the light of the foregoing considerations, the condition regarding execution imposed in Article 4(5) of Framework Decision 2002/584 must therefore, in my view, be interpreted as meaning that it does not cover the remission of the sentence, granted by a non-judicial authority in the third country in which the final sentence was pronounced, 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.
VI. Conclusion
79. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) as follows:
(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, it must grant the executing judicial authority a margin of discretion for the purposes of determining whether or not it is appropriate to refuse to execute the European arrest warrant on the ground referred to in that provision.
(2) The concept of ‘the same acts’ in Article 4(5) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted in the same way as that used in Article 3(2) of that framework decision. That concept refers only to the nature of the acts. It encompasses a set of concrete circumstances which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected.
(3) The condition regarding execution imposed in Article 4(5) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that it does not cover the remission of the sentence, granted by a non-judicial authority in the third country in which the final sentence was pronounced, 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.