C-306/09 – European Court of Justice ruling on Article 4(6) and 5(3) European Arrest Warrant

Last year the Belgian Constitutional Court referred the following questions to the Court:

‘(1)      Is a European arrest warrant issued for the purposes of the execution of a sentence imposed in absentia, without the convicted person having been informed of the date and place of the hearing, and against which that person still has a remedy, to be considered to be, not an arrest warrant  issued for the purposes of the execution of a custodial sentence or detention order within the meaning of Article 4(6) of  Framework Decision [2002/584], but an arrest warrant for the purposes of prosecution within the meaning of Article 5(3) of the  Framework Decision?

(2)      If the reply to the first question is in the negative, are Article 4(6) and Article 5(3) of the  Framework Decision to be interpreted as not permitting the Member States to make the surrender to  the judicial authorities of the issuing State of a person residing on their territory who is the subject, in the circumstances  described in the first question, of an arrest warrant for the purposes of the execution of a custodial sentence or detention  order, subject to a condition that that person be returned to the executing State in order to serve there the custodial  sentence or detention order imposed by a final judgment against that person in the issuing State?

(3)      If the reply to the  second question is in the affirmative, do the articles in question  contravene Article 6(2) [EU] and, in particular, the principles of equality and non-discrimination?

(4)      If the reply to the first question is in the negative, are Articles 3 and 4 of the Framework  Decision to be interpreted as preventing the judicial authorities of a Member State from  refusing the execution of a European arrest warrant if there are valid grounds for believing that its execution would have the  effect of infringing the fundamental rights of the person concerned, as enshrined by Article 6(2) [EU]?’

On the 21st of October the Court replied here.

61.The answer to the first and second questions is that Article 4(6) and 5(3) of Framework Decision 2002/584 must be interpreted as meaning that, where the executing Member State has implemented Article 5(1) and Article 5(3) of that framework decision in its domestic legal system, the execution of a European arrest warrant issued for the purposes of execution of a sentence imposed in absentia within the meaning of Article 5(1) of the framework decision, may be subject to the condition that the person concerned, who is a national or resident of the executing Member State, should be returned to the executing State in order, as the case may be, to serve there the sentence passed against him, following a new trial organised in his presence in the issuing Member State.

62      The third  and fourth questions in fact require a reply only if the answer given to the first and second questions does not, in circumstances such as those in the main proceedings, allow  the executing judicial authority to make the surrender of the person concerned subject to the condition that he should be  returned to the executing Member State.

63      Since the Court has, in its answer to the first and second questions,  accepted that it is possible to make the surrender subject to the guarantee provided for in Article 5(3) of Framework  Decision 2002/584, it is not necessary to reply to the third and fourth questions.

Facebook | Mathias Vermeulen is starting the day with a caffeine and cigarette overdose. As a wise man once said: “that, my friend, is the breakfast of champs”

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