Opinion of Advocate General Hogan delivered on 15 April 2021.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2021:303
• Date: 15 April 2021

Provisional text

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...