Judgment of the Court Fifth Chamber of 29 April 2021, X Mandat d’arrêt européen - Ne bis in idem, C-665/20 PPU

• Date: 29 April 2021
• Year: 2021

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since only the issuing State may decide on applications for review of the judgment imposing the

sentences to be enforced, in another Member State, Framework Decision 2008/909 only permits the

delivery of an aggregate sentence, such as that at issue in the main proceedings, where it does not

result in review of those sentences.

In the second place, the Court examines whether the delivery of an aggregate sentence, such as that

at issue in the main proceedings, is permitted in the light of Framework Decision 2008/675, which

requires the taking into account, in the course of new criminal proceedings brought against a person,

of previous convictions handed down in another Member State against the same person for different

facts. That may not have the effect either of interfering with previous convictions or their enforcement

in the Member State in which the new criminal proceedings take place, or of revoking or reviewing

them.

In that regard, the Court finds that a cumulative sentence may interfere with a previous conviction or

its enforcement where that initial conviction has not yet been enforced or has not been forwarded to

the second Member State for the purpose of its enforcement. However, in the case in the main

proceedings, the conviction handed down by the German court was forwarded and recognised, in

accordance with Framework Decision 2008/909, for the purpose of its enforcement in Poland.

Therefore, the Court considers that the taking into account of that conviction with a view to the

delivery of the aggregate sentence does not have the effect of interfering with that conviction or its

enforcement, or of revoking or reviewing it, within the meaning of Framework Decision 2008/675,

provided that the aggregate sentence observes the conditions and limits laid down in Framework

Decision 2008/909. Subject to compliance with those conditions and limits, the court before which

new criminal proceedings, such as the aggregate sentencing proceedings at issue in the main

proceedings, are brought must take into account the previous conviction handed down in another

Member State in the same way as it would take into consideration a previ ous national conviction.

Judgment of the Court (Fifth Chamber) of 29 April 2021, X (Mandat d’arrêt européen - Ne

bis in idem), C-665/20 PPU

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 Sta te 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 ju dicial authority – Concept o f ‘same acts’ –

Remittance of sentence granted by a non-judicial authority as part of a general leniency meas ure

In September 2019, a European arrest warrant ( ‘EAW’) was issued by the German judicial authorities

against X, in order to conduct criminal proceedings for acts committed in 2012 against his partner and

her daughter. In March 2020, X was arrested in the Netherlands. He objected to his surrender to

those authorities, asserting that he had previously been prosecuted and finally judged in respect of

the same acts in Iran. More specifically, he had been acquitted in respect of some of those acts and

sentenced in respect of the other acts to a term of imprisonment which he had served almost in full

before the sentence was remitted. That remittance was the result of a general leniency measure

granted by a non-judicial authority, the Supreme Leader of Iran, to mark the 40th anniversary of the

Islamic Revolution. Thus, according to X, due to his prior conviction in Iran, the principle ne bis in idem,

as set out in Article 4(5) of the Framework Decision on the EAW,

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transposed into Dutch law,

precludes the execution of the EAW concerning him.

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Coun cil Framework Decision 2002/584/JHA of 13 June 2002 on the Europ ean arrest warrant and the surrender procedures betwe en Member

States – Statements made by certain Member States on the adop tion of the Framework Decision (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).