October 25
Trajan Shipley
24th September 2020
Institutional law Justice & Litigation

Court of Justice confirms legality of deprivation of liberty measure on the basis of a prior offence from the one leading to defendant’s surrender under a different EAW

The Court of Justice has delivered a judgment in Generalbundesanwalt beim Bundesgerichtshof v XC (C-195/20 PPU), finding that a measure involving deprivation of liberty against a person referred to in a first European Arrest Warrant (EAW), which was taken on the basis of a prior offence different from the one justifying his surrender under a second EAW is not contrary to EU law, only if that person’s departure from the Member State issuing the first EAW was voluntary and the judicial authority of the second EAW consented to the prosecution.

XC, the defendant, was surrendered by Portuguese authorities on the basis of an EAW issued by Germany for an offence committed in Portugal. Since the Portuguese authorities did not renounce the speciality rule of Article 27(2) of the EAW Framework Decision (2002/584), which precludes a person surrendered under an EAW from being prosecuted, sentenced or deprived of his or her liberty for an offence committed prior to the surrender other than the specific offence for which he or she was surrendered, the defendant was released, as the sentence for the criminal offence could not be executed. After leaving Germany for Italy, German authorities issued a second EAW in order to execute the sentence, and XC was surrendered by the Italian authorities, who also gave consent to prosecute XC for a third case.

The case is an important development in the interpretation of the EAW Framework Decision. The Court concluded that Article 27(2) does not preclude a deprivation of liberty measure taken against a defendant referred to in a first EAW, but on the basis of a different and prior offence to the one issued in that EAW. In order for such interpretation to stand, the defendant’s departure from the issuing Member State must be voluntary, and his surrender take place on the basis of a second EAW for the purposes of executing a custodial sentence, and only if under the second EAW, the executing judicial authority (in this case, the Italian) consented to the extension of the prosecution to the original offence giving raise to the deprivation of liberty.

The Court noted that the only relevant surrender in cases such as the present one is the one carried out on the basis of the second EAW, and thus the speciality rule of Article 27(2) only applies when there is the consent required under Article 27(3)(g), given by the relevant executing judicial authority. The Court reasoned that the need for the additional consent of the executing judicial authority under the first EAW (here, the Portuguese) would hinder the effectiveness of the procedure, thereby undermining the objective pursued by the Framework Decision. 

The judgment is available here (not available in English at the time of publication). Read this Long-Read of our Weekend Edition on the EAW by Leandro Marcano, here.


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