# C_2008272EN.01001302.xml

| 25.10.2008 | EN | Official Journal of the European Union | C 272/13 |
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25.10.2008

EN

Official Journal of the European Union

C 272/13

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Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 5 September 2008 — Criminal proceedings against Artur Leymann, Aleksei Pustovarov

(Case C-388/08)

(2008/C 272/23)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Artur Leymann, Aleksei Pustovarov

Questions referred

| 1. | How must the expression ‘offence ... other than that for which he or she was surrendered’ used in Article 27(2) of the Framework Decision (1) be interpreted; more specifically, what criteria are decisive in assessing whether the description of the offence on which prosecution in based differs so much from the description of the offence on which the surrender was based that it must be regarded as an ‘other offence’ within the meaning of Article 27(2), so that any prosecution requires the consent referred to in Article 27(3)(g) and Article 27(4)? |
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1.

How must the expression ‘offence ... other than that for which he or she was surrendered’ used in Article 27(2) of the Framework Decision (1) be interpreted; more specifically, what criteria are decisive in assessing whether the description of the offence on which prosecution in based differs so much from the description of the offence on which the surrender was based that it must be regarded as an ‘other offence’ within the meaning of Article 27(2), so that any prosecution requires the consent referred to in Article 27(3)(g) and Article 27(4)?

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| 2. | Must Article 27(2) of the Framework Decision be interpreted as meaning that the consent procedure referred to in Article 27(3)(g) and Article 27(4) is to be applied in a situation where the basis of both the arrest warrant and the final prosecution was an (aggravated) narcotics offence but the description of the offence in the indictment was subsequently altered so that the prosecution related to a different narcotic from that referred to in the arrest warrant? |
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2.

Must Article 27(2) of the Framework Decision be interpreted as meaning that the consent procedure referred to in Article 27(3)(g) and Article 27(4) is to be applied in a situation where the basis of both the arrest warrant and the final prosecution was an (aggravated) narcotics offence but the description of the offence in the indictment was subsequently altered so that the prosecution related to a different narcotic from that referred to in the arrest warrant?

| 3. | How must Article 27(2) of the Framework Decision be interpreted in so far as, under that provision, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for another offence, especially in relation to the consent procedure referred to in Article 27(4) and having regard to the provision in Article 27(3)(c) under which the speciality rule does not apply if the criminal proceedings do not give rise to the application of a measure restricting personal liberty?






  (a) | In cases which fall within the scope of the consent procedure, must the abovementioned provisions be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for the offence in question prior to receipt of consent, provided that the suspect is not deprived of liberty or has his or her liberty restricted as a result of being suspected of the offence in question? |
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3.

How must Article 27(2) of the Framework Decision be interpreted in so far as, under that provision, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for another offence, especially in relation to the consent procedure referred to in Article 27(4) and having regard to the provision in Article 27(3)(c) under which the speciality rule does not apply if the criminal proceedings do not give rise to the application of a measure restricting personal liberty?

(a)

In cases which fall within the scope of the consent procedure, must the abovementioned provisions be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for the offence in question prior to receipt of consent, provided that the suspect is not deprived of liberty or has his or her liberty restricted as a result of being suspected of the offence in question?

| (b) | Of what relevance is it that the criminal proceedings associated with the restriction on liberty relate to more than one offence, one of which falls within the scope of the consent procedure? Must the abovementioned provisions then be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for an offence subject to the consent procedure prior to receipt of consent, despite the fact that the suspect has been subject to a restriction on his or her personal liberty in connection with the proceedings, where there is a lawful basis for that restriction on liberty on grounds of other pending charges? |
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(b)

Of what relevance is it that the criminal proceedings associated with the restriction on liberty relate to more than one offence, one of which falls within the scope of the consent procedure? Must the abovementioned provisions then be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for an offence subject to the consent procedure prior to receipt of consent, despite the fact that the suspect has been subject to a restriction on his or her personal liberty in connection with the proceedings, where there is a lawful basis for that restriction on liberty on grounds of other pending charges?

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(1)  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).

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