I.B.

• Jurisdiction: European Union
• Celex Number: 62009CJ0306
• ECLI: ECLI:EU:C:2010:626
• Date: 21 October 2010
• Docket Number: C-306/09
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Case C-306/09

I. B.

(Reference for a preliminary ruling from the

Cour constitutionnelle (Belgium))

(Police and judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant and the surrender procedures between Member States – Article 4 – Grounds for optional non-execution – Article 4(6) – Arrest warrant issued for the purposes of execution of a sentence – Article 5 – Guarantees to be provided by the issuing Member State – Article 5(1) – Sentence imposed in absentia – Article 5(3) – Arrest warrant issued for the purposes of criminal prosecution – Surrender subject to the condition that the requested person be returned to the Member State of execution – Joint application of Article 5(1) and Article 5(3) – Compatibility)

Summary of the Judgment

European Union – Police and judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant

(Council Framework Decision 2002/584, Arts 4(6) and 5(1) and (3))

Article 4(6) and 5(3) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States must be interpreted as meaning that, when the executing Member State concerned 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 made 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 Member State in order, as the case may be, to serve there the sentence passed against him, following a new trial arranged in his presence in the issuing Member State.

Given that the situation of a person who was sentenced in absentia and to whom it is still open to apply for a retrial is comparable to that of a person who is the subject of a European arrest warrant for the purposes of prosecution, there is no objective reason precluding an executing judicial authority which has applied Article 5(1) of Framework Decision 2002/584 from applying the condition contained in Article 5(3) of that framework decision.

(see paras 57, 61, operative part)

JUDGMENT OF THE COURT (Fourth Chamber)

21 October 2010 (*)

(Police and judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant and the surrender procedures between Member States – Article 4 – Grounds for optional non-execution – Article 4(6) – Arrest warrant issued for the purposes of execution of a sentence – Article 5 – Guarantees to be provided by the issuing Member State – Article 5(1) – Sentence imposed in absentia – Article 5(3) – Arrest warrant issued for the purposes of criminal prosecution – Surrender subject to the condition that the requested person be returned to the Member State of execution – Joint application of Article 5(1) and Article 5(3) – Compatibility )

In Case C-306/09,

REFERENCE for a preliminary ruling under Article 35 EU from the Cour constitutionnelle (Belgium), made by decision of 24 July 2009, received at the Court on 31 July 2009, in the proceedings concerning the execution of a European arrest warrant issued against

I.B.,

THE COURT (Fourth Chamber),

composed of J.‑C. Bonichot, President of the Chamber, K. Schiemann, L. Bay Larsen (Rapporteur), C. Toader and M. Berger, Judges,

Advocate General: P. Cruz Villalón,

Registrar: M.-A. Gaudissart, Head of Unit,

having regard to the written procedure and further to the hearing on 11 May 2010,

after considering the observations submitted on behalf of:

– I.B., by P. Huget, avocat,

– the Belgian Government, by T. Materne, acting as Agent, assisted by J. Bourtembourg and F. Belleflamme, avocats,

– the German Government, by J. Möller and J. Kemper, acting as Agents,

– the Austrian Government, by E. Riedl, acting as Agent,

– the Polish Government, by M. Dowgielewicz, acting as Agent,

– the Swedish Government, by A. Falk and C. Meyer-Seitz, acting as Agents,

– the United Kingdom Government, by I. Rao, acting as Agent,

– the Council of the European Union, by O. Petersen and I. Gurov, acting as Agents,

– the European Commission, by R. Troosters and S. Grünheid, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 6 July 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 3, 4(6), 5(1) and 5(3) of Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), and the validity of Articles 4(6) and 5(3) of that framework decision.

2 The reference has been made in proceedings concerning the execution, by the Tribunal de première instance de Nivelles (Court of First Instance, Nivelles) (Belgium) (‘the executing judicial authority’), of a European arrest warrant issued on 13 December 2007 by the Tribunalul București (Regional Court of Bucharest) (Romania) (‘the Romanian issuing judicial authority’) in respect of I.B., a Romanian national residing in Belgium, for the purposes of execution of a four-year custodial sentence imposed by a judicial decision rendered in absentia.

Legal framework

European Union Law

3 It is apparent from the information concerning the date of entry into force of the Treaty of Amsterdam, published in the Official Journal of the European Communities of 1 May 1999 (OJ 1999 L 114, p. 56), that the Kingdom of Belgium made a declaration on the basis of Article 35(2) EU by which it accepted the jurisdiction of the Court to give preliminary rulings in accordance with the arrangements laid down in Article 35(3)(b) EU.

4 In accordance with Article 10(1) of Protocol No 36 on transitional provisions, annexed to the TFEU, the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union concerning acts of the Union which were adopted before the entry into force of the Treaty of Lisbon are to remain the same, including where they have been accepted under Article 35(2) EU.

Framework Decision 2002/584

5 Recitals 1, 5, 10 and 12 in the preamble to Framework Decision 2002/584 state as follows:

‘(1) According to the Conclusions of the Tampere European Council of 15 and 16 October 1999 …, the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence.

...

(5) The objective set for the 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. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.

…

(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) [EU], determined by the Council pursuant to Article 7(1) [EU] with the consequences set out in Article 7(2) [EU].

...

(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [EU] and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof …

…’

6 Article 1 of Framework Decision 2002/584 states:

‘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 [EU].’

7 Article 2(1) of Framework Decision 2002/584, under the heading ‘Scope of the European Arrest Warrant’ provides:

‘A European arrest warrant may be issued for acts punishable by the law of the issuing Member State … or, where a sentence has been passed or a detention order has been made, for...