Judges J-C Bonichot, E Regan (Rapporteur), CG Fernlund, S Rodin,
Advocate General E Sharpston
The applicant, a Belgian national, was sentenced by a Belgian court to three years’ imprisonment (“the primary sentence”) and, for the same offence and by the same judicial decision, an additional sentence of conditional release for a ten-year period (“the additional sentence”). In accordance with Belgian law, that sentence took effect after the expiry of the main sentence and the judicial authority was to decide, before the expiry of the main sentence, either in favour of deprivation of liberty or in favour of conditional release. Before serving any part of the sentence, the applicant fled to the Netherlands and the Belgian authorities issued a European arrest warrant against him for enforcement of the main sentence, but no mention was made of the additional sentence in the warrant. Following his arrest the applicant was surrendered to Belgium and deprived of his liberty, based both on the main sentence as well as the additional sentence. Just before the expiry of his main sentence, the Belgian authorities sentenced him to conditional release at its disposal. The applicant claimed that it was not lawful for the surrender by Dutch authorities to have been based on the additional sentence, and that the court could not order deprivation of liberty pursuant to that sentence, given that the European arrest warrant issued by the Belgian authorities did not mention it. The Belgian authorities sent the Dutch authorities a request for additional authorisation in respect of the additional sentence pursuant to article 27 of Council Framework Decision 2002/584/JHA, which provided, by paragraph 2, that a person surrendered could not be prosecuted, sentenced or otherwise deprived of his liberty for an offence committed prior to his surrender other than that for which he was surrendered. The contents of the European arrest warrant were specified by article 8(1) of the Framework Decision, and included under (c), evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, and under (f), the penalty imposed. Under article 15(3), the issuing judicial authority could forward any additional useful information to the executing judicial authority. After the Dutch authorities had refused the Belgian request, the Belgian judicial authorities rejected the applicant’s application against his continued deprivation of liberty. On the applicant’s appeal, the Court of Cassation, Belgium stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether article 8(1)(f) of Framework Decision 2002/584 meant that a failure to indicate, in a European arrest warrant, an additional sentence of conditional release which was imposed on the person for the same offence in the same judicial decision as that relating to the main sentence, precluded the enforcement of that additional sentence from resulting in deprivation of liberty, on the expiry of the main sentence after an express decision to that effect was taken by the national court with jurisdiction.
On the reference—
Held, it could not be ruled out from the outset that the imposition of an additional sentence which had not been indicated in a European arrest warrant could amount to one of the grounds capable of justifying refusal to execute such a warrant. The requirement as to lawfulness set out in article 8(1)(f) of Council Framework Decision 2002/584/JHA was intended to enable the executing judicial authority to satisfy itself that the European arrest warrant fell within the scope of that Framework Decision and, in particular, to ascertain whether it had been issued for the execution of a custodial sentence or detention order, the length of which exceeded the threshold of four months. Since, in the present case, the main sentence exceeded that threshold, an indication of that sentence was sufficient for the purposes of ensuring that the warrant satisfied the article 8(1)(f) lawfulness requirement. Thus, the executing judicial authority had to surrender the applicant so that the sentence imposed was served. Accordingly, article 8(1)(f) of Framework Decision 2002/584 meant that failure to indicate in an European arrest warrant an additional sentence of conditional release, which had been imposed on the surrendered person for the same offence in the same judicial decision as that relating to the main custodial sentence, did not, on the facts of the present case, preclude the enforcement of that additional sentence from resulting in deprivation of liberty, on the expiry of the main sentence after an express decision to that effect had been taken by the national court with jurisdiction for the enforcement of sentences (judgment, paras 44, 50–56, 59–62, 67, 68, 70, operative part).
P Bekaert for the applicant.
C Van Lul, C Pochet and J-C Halleux, agents, and J Maggio, expert, for the Belgian Government.
G Mullan (instructed by G Hodge, agent) for Ireland.
JM Hoogveld and J Langer, agents, for the Netherlands Government.
J Sawicka, agent, for the Polish Government.
R Troosters, agent, for the European Commission.