The ECJ loosens the mandatory nature of the information listed in Article 8 of the 2002 Framework Decision

© Photo by Juan Gallo on Flickr

The ECJ loosens the mandatory nature of the information listed in Article 8 of the 2002 Framework Decision

Giulia Borgna

18 May 2019

© Photo by Juan Gallo on Flickr

The ECJ loosens the mandatory nature of the information listed in Article 8 of the 2002 Framework Decision: no refusal of surrender if the EAW fails to mention also an additional sentence.

On 6 December 2018 the Court of Justice of the EU delivered an important ruling in the case 551/18/PPU in respect of how EAWs should be handled throughout the EU and, in particular, in relation to what information must be furnished in an EAW pursuant to Article 8 of Framework Decision 2002/584.

The reference was made in connection with an EAW issued by Belgium against I.K., sentenced to a primary custodial sentence of 3 years (“the primary sentence”). In the same judgment and for the same offence, he was also subject to an additional sentence of conditional release for a 10-year period (“the additional sentence”). According to Belgian law, the latter sentence takes effect after the expire of the main sentence and is dependent upon a subsequent decision of the domestic courts.

Following I.K.’s arrest in the Netherlands in 2014, the District Court of Amsterdam ordered his surrender to Belgium for the purposes of serving the primary custodial sentence. No mention was given, at the time, in the EAW issued by Belgium of the additional sentence.
When, in 2018, the Belgian courts decided to impose the additional sentence of conditional release, I.K. claimed that the deprivation of liberty ensuing therefrom was not lawful since the EAW for which his surrender was ordered did not mention it. His argument rested upon a literal interpretation of Article 8(1)(f) of the Framework Decision 2002/584, according to which an EAW must contain, among other things, “the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State”.

The Belgian court referred the matter to the CJEU on three, deeply intertwined, questions, all boiling down, in essence, to this fundamental question: must Article 8(1)(f) of Framework Decision 2002/584 be interpreted as meaning that failure to indicate in the EAW an additional sentence of conditional release (which was imposed on that person for the same offence in the same judicial decision as that relating to the main custodial sentence) precludes the enforcement of that additional sentence?

The Advocate General and the European Commission had diverging views on the subject-matter. While the former argued that failure to indicate the additional sentence could not affect the execution of that sentence following surrender, the latter praised for a restrictive interpretation of the requirements laid down in Article 8.

Eventually, the CJEU sided with the Advocate General.

Even though the CJEU did not rule out that failure to mention an additional sentence may, in certain circumstances, amount to a ground for refusal to execute an EAW, it held that none of those circumstances were present in the case at hand.

First, the main sentence of imprisonment imposed upon I.K. exceeded, alone, the threshold of gravity laid down by Article 2 of FD 2002/584. Second, despite having a chance of making this argument before the Dutch courts, I.K. did not challenge the EAW on grounds of insufficient information (however, in light of the CJEU’s overall reasoning, any challenge to this effect would most likely not have any prospect of success).

But it’s the CJEU’s third argument that seems ultimately tranchant: the principle of specialty envisaged by Article 27 of the FD concerns only offences other than those on which the surrender was based. In other words, it would not be possible to seek an extension of surrender in respect of additional sentences – such as that of the present case – pronounced for the same offence and by the same judicial decision as that of the main sentence of imprisonment.

In conclusion, once again, the aim of facilitating and accelerating judicial cooperation trumps the obligation to provide exhaustive information grounding the EAW. Failure to mention an additional sentence imposed with the same judgment for which surrender is sought does not give rise, ex ante, to a mandatory ground for refusal, nor does it trigger, ex post facto, the principle of specialty.