Opinion of the Advocate General — ECLI:EU:C:2021:851
Date: 2021-10-14
Language of the case: Dutch
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Netherlands

Translation C-428/21 PPU – 1 
Case C-428/21 PPU 
Request for a preliminary ruling 
Date lodged: 
14 July 2021 
Referring court: 
Rechtbank Amsterdam (Netherlands) 
Date of the decision to refer: 
14 July 2021 
European arrest warrant issued against: 
HM 
Other party to the proceedings: 
Openbaar Ministerie 
  
RECHTBANK AMSTERDAM 
(AMSTERDAM DISTRICT COURT) 
INTERNATIONALE RECHTSHULPKAMER 
(CHAMBER FOR INTERNATIONAL COOPERATION IN LEGAL 
MATTERS) 
[…] 
Date of judgment: 14 July 2021 
INTERIM 
JUDGMENT 
EN NL
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on the request for consent to extend the prosecution as referred to in 
Article 14(1)(f) of the Overleveringswet (Law on Surrender; ‘OLW’). This 
request was submitted by the Budapest Metropolitan Court (Hungary) on 13 April 
2021 and concerns the extension of the prosecution of:  
HM 
born in *** (***) on *** 
currently residing in Hungary 
hereinafter referred to as the surrendered person. 
1. Procedure 
The request was heard in chambers on 27 May 2021, in the presence of the 
officier van justitie (public prosecutor), C.L.E. McGivern. 
On 10 June 2021, the District Court delivered an interim judgment reopening the 
investigation and staying it indefinitely, as the District Court needed more time to 
deliberate on its decision. 
On 14 July 2021, the District Court in open court closed the investigation and 
delivered its judgment immediately thereafter. 
2. Assessment of the request; rights of defence of the surrendered person 
Applicable European Union law 
I. Framework Decision 2002/584/JHA (‘the Framework Decision’) of 13 June 
2002 on the European arrest warrant and the surrender procedures between 
Member States, OJ 2002 L 190, p.1, as amended by Framework Decision 
2009/299/JHA, OJ 2009 L 81, p. 24. 
Article 11(2) and Article 14 of that Framework Decision are contained in Chapter 
II (‘Surrender Procedure’) and read as follows:  
Article 11 
Rights of a requested person 
(…) 
2. A requested person who is arrested for the purpose of the execution of a 
European arrest warrant shall have a right to be assisted by a legal counsel 
and by an interpreter in accordance with the national law of the executing 
Member State.  
OPENBAAR MINISTERIE 
 
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Article 14 
Hearing of the requested person  
Where the arrested person does not consent to his or her surrender as 
referred to in Article 13, he or she shall be entitled to be heard by the 
executing judicial authority, in accordance with the law of the executing 
Member State.  
Article 27(2), (3) and (4) of the Framework Decision is contained in Chapter 3 
(‘Effects of the surrender’) and, in so far as is relevant here, reads as follows: 
Article 27 
Possible prosecution for other offences  
(…) 
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered 
may not be prosecuted, sentenced or otherwise deprived of his or her liberty 
for an offence committed prior to his or her surrender other than that for 
which he or she was surrendered.  
3. Paragraph 2 does not apply in the following cases: 
(…) 
f) when the person, after his/her surrender, has expressly renounced 
entitlement to the speciality rule with regard to specific offences preceding 
his/her surrender. Renunciation shall be given before the competent judicial 
authorities of the issuing Member State and shall be recorded in accordance 
with that State’s domestic law. The renunciation shall be drawn up in such a 
way as to make clear that the person has given it voluntarily and in full 
awareness of the consequences. To that end, the person shall have the right 
to legal counsel;  
g) where the executing judicial authority which surrendered the person gives 
its consent in accordance with paragraph 4.  
4. A request for consent shall be submitted to the executing judicial 
authority, accompanied by the information mentioned in Article 8(1) and a 
translation as referred to in Article 8(2). Consent shall be given when the 
offence for which it is requested is itself subject to surrender in accordance 
with the provisions of this Framework Decision. Consent shall be refused on 
the grounds referred to in Article 3 and otherwise may be refused only on 
the grounds referred to in Article 4. The decision shall be taken no later than 
30 days after receipt of the request.  
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For the situations mentioned in Article 5 the issuing Member State must give 
the guarantees provided for therein. 
Applicable national law 
II. The Wet van 29 april 2004 tot implementatie van het kaderbesluit van de 
Raad van de Europese Unie betreffende het Europees aanhoudingsbevel en de 
procedures van overlevering tussen de lidstaten van de Europese Unie 
(Overleveringswet) (Law of 29 April 2004 implementing the Framework Decision 
of the Council of the European Union on the European arrest warrant and the 
surrender procedures between Member States of the European Union (‘Law on 
Surrender’)), Stb. 2004, 195, as last amended by the wet van 17 maart 2021 (Law 
of 17 March 2021), Stb. 2021, 155 (‘the OLW’) transposes the provisions of the 
Framework Decision. 
Article 1(g) of the OLW reads as follows: 
Article 1 
For the purposes of the present law: 
(…) 
g. rechtbank (District Court) shall mean the rechtbank Amsterdam 
(Amsterdam District Court); 
(…). 
Article 14(1) and (3) of the OLW is contained in Chapter II (‘Surrender by the 
Netherlands’), Section 1 (‘Conditions of surrender’), transposes Article 27(2), (3) 
and (4) of the Framework Decision and, in so far as is relevant here, reads as 
follows:  
Article 14 
1. Surrender shall only be granted subject to the general condition that 
the person sought shall not be prosecuted, punished or otherwise 
restricted in his or her personal liberty for offences committed prior to 
the time of his or her surrender and for which he or she has not been 
surrendered, unless:  
(…) 
f. prior consent to do so has been sought and obtained from the District 
Court. 
(…) 
OPENBAAR MINISTERIE 
 
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3. At the latest on the third day after receipt of a request from the issuing 
judicial authority for the consent referred to in paragraph 1(f) or 
paragraph 2(c), the public prosecutor shall request in writing that the 
District Court consider the request. To that end, the public prosecutor 
shall submit the request to the District Court with an accompanying 
translation. The District Court shall give the consent referred to in 
paragraph 1(f) or paragraph 2(c) in respect of offences for which 
surrender could have been granted under this law. The decision on a 
claim shall in any event be taken within twenty-seven days of its 
receipt. The public prosecutor shall notify the issuing judicial authority 
of the District Court’s decision without delay. 
Article 25(1) and (3) of the OLW is contained in Chapter II, Section 2 (‘Surrender 
Procedure’), Paragraph C (‘Decision on surrender’) and reads as follows: 
Article 25 
1. The hearing of the person sought shall take place in public, unless the 
latter requests that the case be heard in camera or the District Court orders 
that the proceedings take place behind closed doors for important reasons to 
be stated in the record of the hearing.  
(…) 
3. At the hearing, the person sought may be assisted by his or her legal 
counsel. 
(…) 
Questions referred for a preliminary ruling 
2.1 The person concerned is a national of Nigeria. On 25 May 2020, the 
Amsterdam District Court granted his surrender to Hungary for the purpose of 
prosecution for, in brief, ‘the laundering of the proceeds of crime'. The person 
concerned was actually surrendered to Hungary on 25 June 2020 and has been in 
detention there ever since.  
2.2 On 13 April 2021, a Hungarian judicial authority requested consent to 
extend the offences as referred to in Article 27(3)(g) and (4) of the Framework 
Decision. That request was received by the District Court on 4 May 2021. The 
request relates to other offences constituting ‘the laundering of the proceeds of 
crime’ and that are alleged to have been committed prior to the actual surrender to 
Hungary. The request contained the information referred to in Article 8(1) of the 
Framework Decision. The request was accompanied by a record of the hearing of 
the surrendered person before a Hungarian judicial authority. At that hearing, the 
surrendered person, who was assisted by a lawyer, stated that he did not wish to 
renounce his entitlement to the speciality rule as referred to in Article 27(3)(f) of 
the Framework Decision.  
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2.3 On 1 April 2021, the wet van 3 maart 2021 tot herimplementatie van 
onderdelen van het kaderbesluit van de Raad van de Europese Unie betreffende 
het Europees aanhoudingsbevel en de procedures van overlevering tussen de 
lidstaten van de Europese Unie (wijziging van de Overleveringswet) (The Law of 
3 March 2021 on the reimplementation of parts of the Framework Decision of the 
Council of the European Union on the European arrest warrant and the surrender 
procedures between the Member States of the European Union (amendment of the 
Law on surrender))1 entered into force. 
2.4 Prior to that date, the competence to decide on a request for consent as 
referred to in Article 27(3)(g) and (4) of the Framework Decision rested with the 
Amsterdam District Public Prosecutor’s Office (officier van justitie bij het 
arrondissementsparket Amsterdam) (Article 14(1)(f) and (3) of the (old) OLW). 
However, that authority cannot be regarded as an ‘executive judicial authority’ 
within the meaning of Article 6(2) of the Framework Decision because, in 
exercising its decision-making power, it may receive an instruction in a specific 
case from the Minister van Justitie en Veiligheid (Minister for Justice and 
Security). Following the judgment in Openbaar Ministerie (Valsheid in 
geschrifte), 2 the currently applicable OLW delegates the competence to the 
Amsterdam District Court (Article 14(1)(f) and (3) (new) of the OLW).  
2.5 Apart from rules on the information to be provided, the translation and the 
time limit for taking a decision, neither Article 27 of the Framework Decision nor 
any other provision of that Framework Decision lays down any rules on the 
procedure to be followed by the executing judicial authority when deciding on the 
request. 3 
2.6 The same applies to the provisions of the OLW. The provisions on the 
processing of a European arrest warrant (EAW) by the Amsterdam District Court 
ensure the right of the person sought to be heard and to be assisted by legal 
counsel at a hearing before the District Court takes a decision on the execution of 
the EAW, but those provisions, contained in Section 2 (‘Surrender procedure’) of 
Chapter II of the OLW (‘Surrender by the Netherlands’), have not been made 
applicable mutatis mutandis to Article 14(3) (new) of the OLW, contained in 
Section 1 (‘Conditions of surrender’) of Chapter II of the OLW. 
2.7 A decision by which the executing judicial authority gives the consent as 
referred to in Article 27(3)(g) and (4) of the Framework Decision is liable to 
prejudice the liberty of the person surrendered, ‘given that it concerns an offence 
 
1 Stb. 2021, 125. 
2 CtJEU 24 November 2020, C-510/19, ECLI:EUC:2020:953 (Openbaar Ministerie (Valsheid in 
geschrifte)). 
3 Opinion of Advocate General M. Campos Sánchez-Bordona of 25 June 2020, C-510/19, 
ECLI:EU:C:2020:494 (Openbaar Ministerie (Valsheid in geschrifte)), point 86. 
OPENBAAR MINISTERIE 
 
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other than that for which he or she was surrendered and it is liable to lead to a 
heavier sentence for that person’. 4  
2.8 Since the Framework Decision is founded on the principle that decisions 
relating to European arrest warrants ‘are attended by all the guarantees appropriate 
for decisions of such a kind, inter alia those resulting from the fundamental rights 
and fundamental legal principles’ and since this means that the decisions must be 
taken ‘by a judicial authority that meets the requirements inherent in effective 
judicial protection’, 5 the District Court assumes that the procedure by which the 
executing judicial authority decides on a request as referred to in Article 27(3)(g) 
and (4) of the Framework Decision must also meet the requirements for effective 
judicial protection.  
2.9 The right to be heard is one of the rights of defence inherent in the right to 
obtain effective judicial protection. 6 
2.10 The present request is the first to be decided by the District Court under the 
currently applicable OLW. 
2.11 As previously mentioned, the person concerned is now in detention in 
Hungary. He was not summoned and was not present when the Amsterdam 
District Court dealt with the request. The same applies to the lawyer who assisted 
the person concerned in the earlier surrender proceedings. No other lawyer has 
appeared on behalf of the person concerned.  
2.12 Against this background, the question arises in which Member State and in 
what manner the surrendered person must be able to exercise his/her right to be 
heard in relation to a request for consent as referred to in Article 27(3)(g) and (4) 
of the Framework Decision. 
2.13 One possible interpretation could be that it is sufficient for the surrendered 
person to be able to exercise his/her right to be heard in the Member State to 
which he/she has been surrendered – in this case, Hungary – and to put forward 
any objections he/she may have to the extension of the offences in the procedure 
in which a judicial authority of that Member State hears him/her on the subject of 
a possible renunciation of entitlement to the speciality rule as referred to in 
Article 27(3)(f) of the Framework Decision. This interpretation appears to be in 
line with one of the two possibilities suggested by Advocate General M. Campos 
Sánchez-Bordona for respecting the right to be heard, namely, that ‘a person who 
has already been surrendered could be given the opportunity to raise an objection 
 
4 CtJEU 24 November 2020, C-510/19, ECLI:EU:C:2020:953 (Openbaar Ministerie (Valsheid in 
geschrifte)), paragraph 62. 
5 CtJEU 24 November 2020, C-510/19, ECLI:EU:C:2020:953 (Openbaar Ministerie (Valsheid in 
geschrifte)), paragraph 49. 
6 Opinion of Advocate General M. Campos Sánchez-Bordona of 25 June 2020, C-510/19, 
ECLI:EU:C:2020:494 (Openbaar Ministerie (Valsheid in geschrifte)), point 87. 
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to the extension with the issuing authority, as a step that must be taken before the 
issuing authority sends the request to the executing authority.’7 It could be argued 
against this interpretation that the judicial authority does not check in these 
proceedings whether an extension of the offences is permitted. After all, if the 
person surrendered does not renounce the entitlement to the speciality rule – as in 
the present case – that assessment is made by the executing judicial authority.  
2.14 Another interpretation could be that the surrendered person must be able to 
exercise his/her right to be heard in the Member State which surrendered 
him/her – in this case, the Netherlands – in the proceedings in which the executing 
judicial authority which surrendered him/her decides whether or not to grant the 
requested consent and that, if the executing judicial authority is able to take 
account of the official record of the hearing referred to in the preceding paragraph, 
the surrendered person has been able to exercise that right satisfactorily. It could 
be argued against this interpretation that the purpose of such a hearing is not to 
assess a request for an extension of the offences, but to decide whether or not to 
renounce the entitlement to the speciality rule, so that the right of the surrendered 
person to be heard is not sufficiently guaranteed by taking account of such an 
official record.  
2.15 Finally, a further interpretation could be that the surrendered person must be 
able to exercise his/her right to be heard in the Member State which surrendered 
him/her, at a hearing to be organised by the executing judicial authority which 
surrendered him/her, in the course of the proceedings in which that authority 
decides whether to grant the requested consent. That is the other possibility 
proposed by Advocate General M. Campos Sánchez-Bordona for respecting the 
right to be heard. 8 This interpretation raises practical problems. The person 
concerned is in fact not in the Member State that surrendered him earlier. Neither 
the Framework Decision nor any other provision of EU law provides a legal basis 
for hearing the person concerned by video conference or telephone conference. 
The experience of the public prosecutor at the Amsterdam District Public 
Prosecutor’s Office – who, before 1 April 2021, was competent to take the 
decision on the request – has shown that the lawyer who assisted the person 
sought in the surrender procedure generally no longer considers himself to be that 
person’s counsel, whether authorised or not, after the actual surrender. 
Summoning this lawyer to deal with the request is therefore of little use. The 
official appointment of a lawyer to represent the absent surrendered person is 
problematic from the point of view of the possibilities for consultation between 
that lawyer and the person concerned, who is in detention abroad. In those 
circumstances, the interpretation that the person concerned must be able to 
exercise his/her right to be heard at a hearing in the Member State which 
 
7 Opinion of Advocate General M. Campos Sánchez-Bordona of 25 June 2020, C-510/19, 
ECLI:EU:C:2020:494 (Openbaar Ministerie (Valsheid in geschrifte)), point 90. 
8 Opinion of Advocate General M. Campos Sánchez-Bordona of 25 June 2020, C-510/19, 
ECLI:EU:C:2020:494 (Openbaar Ministerie (Valsheid in geschrifte)), point 90. 
OPENBAAR MINISTERIE 
 
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previously surrendered him/her could lead to complications and delays, whereas 
the rules of Article 27 of the Framework Decision cannot be interpreted in a way 
which ‘would frustrate the objective pursued by that Framework Decision, which 
is to facilitate and accelerate surrenders between the judicial authorities of the 
Member States in the light of the mutual confidence which must exist between 
them.’9 In addition, pursuant to Article 27(4) of the Framework Decision, the 
decision on the request to extend the offences must be taken within 30 days of 
receipt of the request.  
2.16 The question raised under 12 above is neither ‘clair’ nor ‘éclairé. 
2.17 The District Court will therefore refer the questions [formulated in 
paragraph 4] to the Court of Justice[.]  
[text of questions] […] 
Request for the application of the urgent preliminary ruling procedure 
2.18 The District Court requests the Court of Justice to deal with this request for a 
preliminary ruling under the urgent procedure referred to in the fourth paragraph 
of Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’) 
and Article 107 of the Rules of Procedure. 
2.19 The questions referred for a preliminary ruling concern an area covered by 
Title V of Part Three of the TFEU. The person sought is currently in detention in 
Hungary. The District Court cannot take a decision on the request for an extension 
of the offences referred to in Article 27(4) of the Framework Decision for so long 
as it remains unclear in which Member State and in what manner the person 
concerned should be able to exercise his right to be heard in relation to that 
request. The decision on the request may prejudice the right to liberty of the 
person sought. If the District Court were to consent to an extension of the 
offences, the surrendered person could be placed in pre-trial detention for the 
additional offences – which could lead to a longer period of pre-trial detention – 
and, in the event of a conviction, to a heavier sentence being imposed. If the 
District Court were to refuse the request, the issuing Member State would – in 
principle – not be entitled to place him in pre-trial detention for the offences to 
which the request relates and, in the event of a conviction, would – in principle – 
not be able to execute a custodial sentence imposed for those offences. 10 
Consequently, the promptness with which the Court of Justice answers the 
questions referred for a preliminary ruling will have a direct and decisive 
influence on the duration of the detention of the person concerned in Hungary.  
 
9 CtJEU 28 June 2012, C-192/12 PPU, ECLI:EU:C:2012:404 (West), paragraph 77. 
10 CtJEU 1 December 2008, C-388/08 PPU, ECLI:EU:C:2008:669 (Leymann and Pustovarov), 
paragraph 73. 
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3. Conclusion  
In view of the foregoing, the District Court takes the following decision. 
4. Decision  
REOPENS and STAYS the hearing indefinitely; 
REQUESTS the Court of Justice to answer the following questions:  
I. Must Article 27(3)(g) and (4) of Framework Decision 2002/584/JHA, read 
in the light of the right to effective judicial protection, be interpreted as meaning 
that: 
- a surrendered person must be able to exercise his or her right to be 
heard in relation to a request for an extension of the offences in the 
issuing Member State when a judicial authority of that Member State 
grants him or her a hearing relating to the possible renunciation of the 
entitlement to the speciality rule as referred to in Article 27(3)(f) of the 
Framework Decision, or  
- must that person be able to exercise his or her right to be heard in the 
Member State which previously surrendered him or her to the 
executing judicial authority in the proceedings relating to the request 
for consent to extend the offences?  
II. If a surrendered person must be able to exercise his or her right to be heard 
in relation to the decision on a request for consent to extend the offences, as 
referred to in Article 27(4) of Framework Decision 2002/584/JHA, in the Member 
State which previously surrendered him or her, in what way must that Member 
State enable him or her to do so?  
[composition of chamber] […]