Opinion of Advocate General Campos Sánchez-Bordona delivered on 15 December 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:995
• Date: 15 December 2022
• Celex Number: 62021CC0700
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 15 December 2022 (1)

Case C‑700/21

O.G.

intervener:

Presidente del Consiglio dei Ministri

(Request for a preliminary ruling from the Corte costituzionale (Constitutional Court, Italy))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Optional grounds for refusal to surrender – Respect for private and family life – Nationals of a third country staying or residing in the territory of a Member State)

1. The Corte costituzionale (Constitutional Court, Italy) seeks from the Court of Justice an interpretation of Article 4(6) of Framework Decision 2002/584/JHA, (2) the transposition of which into Italian law may be in breach of the Italian Constitution.

2. This reference provides the Court with an opportunity to expand upon its already extensive case-law concerning arrest and surrender warrants (‘EAWs’). In particular, it will be called upon to determine whether the discretion granted to Member States in Article 4(6) of Framework Decision 2002/584 allows them to avail themselves of a ground for optional non-execution of an EAW which will not apply to nationals of a third country.

I. Legislative framework

A. European Union law

1. Framework decision 2002/584

3. Recital 12 states:

‘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, [(3)] in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a[n] [EAW] has been issued when there are reasons to believe, on the basis of objective elements, that the said [EAW] has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.

This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.’

4. Article 1 (‘Definition of the [EAW] and obligation to execute it’) provides:

‘1. The [EAW] 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 [EAW] 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].’

5. Article 4 (‘Grounds for optional non-execution of the European arrest warrant’) provides:

‘The executing judicial authority may refuse to execute the [EAW]:

…

6. if the [EAW] has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law;

…’

6. Article 5 (‘Guarantees to be given by the issuing Member State in particular cases’) states:

‘The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

…

3. where a person who is the subject of a[n] [EAW] for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.’

2. Framework Decision 2008/909/JHA (4)

7. Recital 9 states:

‘Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State.’

8. According to recital 12:

‘This Framework Decision should also, mutatis mutandis, apply to the enforcement of sentences in the cases under Articles 4(6) and 5(3) of [Framework Decision 2002/584]. This means, inter alia, that, without prejudice to that Framework Decision, the executing State could verify the existence of grounds for non-recognition and non-enforcement as provided in Article 9 of this Framework Decision, including the checking of double criminality to the extent that the executing State makes a declaration under Article 7(4) of this Framework Decision, as a condition for recognising and enforcing the judgment with a view to considering whether to surrender the person or to enforce the sentence in cases pursuant to Article 4(6) of [Framework Decision 2002/584].’

9. Recital 16 states:

‘This Framework Decision should be applied in accordance with applicable Community legislation, including in particular … Directive 2003/86/EC [(5)] … [and] … Directive 2003/109/EC [(6)] …’

10. Article 3 (‘Purpose and scope’) states:

‘1. The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence.

2. This Framework Decision shall apply where the sentenced person is in the issuing State or in the executing State.

3. This Framework Decision shall apply only to the recognition of judgments and the enforcement of sentences within the meaning of this Framework Decision. …’

11. Article 25 (‘Enforcement of sentences following a[n] [EAW]’) states:

‘Without prejudice to Framework Decision [2002/584], provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible with provisions under that Framework Decision, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence in cases pursuant to Article 4(6) of that Framework Decision, or where, acting under Article 5(3) of that Framework Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State concerned, so as to avoid impunity of the person concerned.’

B. National law. Legge 22 aprile 2005, n. 69 (7)

12. According to Article 18bis(1)(c):

Surrender may be refused, ‘where the EAW has been issued for the purpose of executing a custodial sentence or detention order, if the requested person is an Italian national or a national of another Member State of the European Union who is lawfully and actually resident or staying in Italian territory, on condition that the appeal court orders that the custodial sentence or detention order is enforced in Italy in accordance with domestic law’.

13. In accordance with Article 19(1):

‘Execution of the EAW by the Italian judicial authority … is subject to the following conditions:

…

(b) if the EAW was issued for the purpose of bringing a criminal prosecution against a[n] [Italian] national or a resident of the Italian State, surrender shall be subject to the condition that the person concerned, after being heard, is returned to the executing Member State in order to serve there any custodial sentence or detention order that may be imposed on him or her in the issuing Member State.’ (8)

II. Facts, dispute and questions referred for a preliminary ruling

14. O. G., a Moldovan national, was finally convicted and sentenced in Romania to five years’ imprisonment. (9) The referring courts notes that, according to the court which itself referred the constitutional question to the referring court, O. G. ‘has stable family and occupational roots in Italy’. (10)

15. On 13 February 2012, the Judecătoria Brașov (Court of First Instance, Brașov, Romania) issued an EAW against O. G. for the purpose of enforcing the sentence.

16. On 7 July 2020, the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy) ordered that the requested person be surrendered to the issuing judicial authority.

17. On 16 September 2020, following the appeal brought by O. G., the Corte di cassazione (Court of Cassation, Italy) set aside the judgment of the appeal court, to which it referred the case back, asking it to consider whether an issue of constitutionality should be referred to the Corte costituzionale (Constitutional Court).

18. The appeal court raised the matter before the Corte costituzionale (Constitutional Court) and asked it whether Article 18bis(1)(c) of Law No 69 of 2005 was consistent with Articles 2, 3, 11, 27(3) and 117(1) of the Italian Constitution.

19. The appeal court’s doubts were based, in essence, on the fact that, in accordance with the provision incorporating into Italian law the ground for optional non-execution under Article 4(6) of Framework Decision 2002/584:

– the option not to execute the EAW is limited to Italian nationals and nationals of other Member States of the European Union, if they are lawfully and actually resident or staying in Italian territory. It therefore excludes nationals of a third country, who cannot serve in Italy a sentence imposed in the issuing Member State even if they are lawfully and actually resident or staying in Italian territory...