Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 27 October 2022 ( )

Case C‑492/22 (PPU)

CJ

other party:

Openbaar Ministerie

(Request for a preliminary ruling from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands))

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 6(2) – Article 12 – Article 24(1) – Postponement of the surrender of the requested person – Keeping in detention – Requirement of intervention on the part of the executing judicial authority – Public prosecutor – Prosecution in the executing Member State – No waiver of the right to be present at the trial – Right to a fair trial)





I. Introduction

1. This request for a preliminary ruling, made by the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), concerns the interpretation of Article 6(2), Article 12 and Article 24(1) of Council Framework Decision 2002/584/JHA 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 Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’), and of Articles 6, 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2. The request has been made in the context of the execution, in the Netherlands, of a European arrest warrant issued on 31 August 2021 by the Sąd Okręgowy w Krakowie Wydział III Karny (Regional Court, Krakow (Criminal Division III), Poland) for the purposes of executing a custodial sentence imposed on CJ, a Polish national.

3. The questions referred concern, in essence, the conditions under which the surrender of a person may be postponed, under Article 24(1) of Framework Decision 2002/584, for the purposes of conducting a parallel criminal prosecution in the executing Member State while keeping that person in detention. In that context, it is necessary to clarify, inter alia, the scope of the concept of ‘executing judicial authority’ and the consequences of acts emanating from a non-judicial authority, including the conditions under which effective judicial review by an independent court is capable of regularising such an act.

II. Legal framework

A. European Union law

4. In accordance with recital 8 of Framework Decision 2002/584:

‘Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.’

5. Under Article 5 of that framework decision, the execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

‘…

3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.’

6. Article 6(2) of that framework decision provides:

‘The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.’

7. Article 12 of the same framework decision, entitled ‘Keeping the person in detention’, provides:

‘When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding.’

8. Under Article 23 of Framework Decision 2002/584, entitled ‘Time limits for surrender of the person’:

‘1. The requested person shall be surrendered as soon as possible on a date agreed between the authorities concerned.

2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.

3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.’

9. Article 24 of that framework decision, entitled ‘Postponed or conditional surrender’, provides:

‘1. The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant.

2. Instead of postponing the surrender, the executing judicial authority may temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities. The agreement shall be made in writing and the conditions shall be binding on all the authorities in the issuing Member State.’

10. Article 26(1) of that framework decision provides:

‘The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.’

B. Netherlands law

11. The Wet 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 (Law implementing 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) of 29 April 2004 (Stb. 2004, No 195), as subsequently amended (‘the Law on Surrender’), implements Framework Decision 2002/584.

12. In accordance with Article 1(e) of the Law on Surrender, the term ‘officier van justitie [public prosecutor]’ includes ‘any officier van justitie [public prosecutor] and, in the absence thereof, the officier van justitie bij het arrondissementsparket Amsterdam [public prosecutor for the Amsterdam judicial district, Netherlands]’.

13. Under Article 27(2) of the Law on Surrender:

‘Before the hearing is concluded, the court shall rule of its own motion on whether the requested person is to be kept in detention, if he or she has been placed in detention or in police custody.’

14. Articles 33 to 36 of the Law on Surrender provide:

‘Article 33

The deprivation of liberty ordered under Article 27 shall cease – except in the case of continued deprivation of liberty on other grounds – as soon as:

a. it is ordered by the court or officier van justitie [public prosecutor], of its own motion or at the request of the requested person or his or her counsel;

b. 10 days have elapsed since the date of the decision, unless the court, ruling on the indictment of the officier van justitie [public prosecutor], has in the meantime extended the detention.

Article 34

1. The deprivation of liberty referred to in Article 33(b) may be extended for a period not exceeding 10 days.

2. By way of derogation from paragraph 1, the deprivation of liberty may be extended for a period not exceeding 30 days where:

…

b. the surrender is authorised but the actual surrender could not take place within the prescribed time limit.

…

Article 35

1. The actual surrender of the requested person shall take place as soon as possible after the decision authorising the surrender in full or in part, and no later than 10 days after that decision. The officier van justitie [public prosecutor] shall determine the place and time [of the actual surrender] after consulting the issuing judicial authority.

2. Where, owing to special circumstances, the actual surrender cannot take place within the time limit set out in paragraph 1, a new date shall be fixed by mutual agreement. In that case, the actual surrender shall take place within 10 days of the agreed date.

3. In exceptional circumstances, the actual surrender may be postponed for as long as it is precluded on serious humanitarian grounds, in particular for as long as the requested person’s state of health does not allow him or her to travel. The issuing judicial authority shall be informed without delay. The officier van justitie [public prosecutor] shall determine the place and time at which the actual surrender may take place, after consulting the issuing judicial authority. In that case, the actual surrender shall take place within 10 days of the agreed date.

4. The requested person shall be released on expiry of the time limits referred to in paragraphs 1 to 3.

Article 36

1. The decision on the date and place of the actual surrender may be reserved where and for as long as the requested person is the subject of a criminal prosecution in the Netherlands or a judgment in criminal proceedings delivered against him or her by a Netherlands court is still capable of being executed in whole or in part.

2. In the cases referred to in paragraph 1, the minister may, after consultation with the Public Prosecutor’s Office, decide that the requested person may already be temporarily made available to the issuing judicial authority for the purposes of his or her trial or the execution of a custodial sentence imposed on him or her by a final judicial decision, and lay down the conditions for such temporary availability.

3. The conditions laid down by the minister include, in the case of:

a. an ongoing criminal prosecution as referred to in paragraph 1: in any event, that the right of the requested person to be present at the criminal proceedings in the Netherlands shall be respected and that he or she will serve in the Netherlands the sentence imposed on him or her in the Netherlands.

…’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

15. On 31 August 2021, the Sąd Okręgowy w Krakowie Wydział III Karny (Regional Court, Krakow (Criminal Division III)) issued a European arrest warrant against CJ, a Polish national, with a view to his arrest and surrender for the purpose of executing a two-year custodial sentence, imposed on him in Poland for 13 offences falling under the category of ‘organised or armed robbery’, within the meaning of Article 2(2) of Framework Decision 2002/584. According to the order for reference, CJ must still serve almost the entirety of the sentence imposed for those offences.

16. For the purposes of executing the European arrest warrant, by decision of 2 June 2022, the referring court placed the person concerned in detention. By decision of 16 June 2022, which became final, that court authorised his surrender to the Polish authorities for the offences set out in that warrant.

17. It is apparent from the order for reference that CJ is the subject of an ongoing criminal prosecution in the Netherlands concerning an act other than those on which the European arrest warrant is based. Thus, on 15 December 2021, the Kantonrechter in de rechtbank Den Haag (District Court (Cantonal Sector), The Hague, Netherlands) had ordered the person concerned to pay a fine of EUR 360 or, in the alternative, to seven days’ detention, for having driven a motor vehicle without holding a valid driving licence. CJ lodged an appeal against that sentence – which was scheduled to be heard on 4 October 2022 – without waiving his right to be present at the criminal proceedings. The judgment to be delivered on appeal shall be open to an appeal on a point of law.

18. In those circumstances, on 17 June 2022, the public prosecutor for the Amsterdam judicial district (‘the public prosecutor’) decided, pursuant to Article 36(1) of the Law on Surrender, to postpone the surrender of the person concerned and requested, under Article 34(2)(b) of that law, read in conjunction with Article 35(2) thereof, that the referring court extend his detention for a period of 30 days on account of ‘special circumstances’.

19. On 22 June 2022, the referring court granted the public prosecutor’s request and extended the detention for a period of 30 days.

20. On 6 July 2022, the public prosecutor again requested an extension of the detention of the person concerned for a further period of 30 days on the ground that, ‘on account of special circumstances, the actual surrender cannot take place within the 10-day period’. He justified that request, in essence, by the fact that CJ does not wish to waive his right to be present at the hearing in the ongoing criminal proceedings. In addition, he stated that he wished to order the postponement of the surrender and periodically to request the extension of the detention for as long as those criminal proceedings are ongoing. On the same day, the referring court granted the public prosecutor’s request and extended the detention for a further period of 30 days, while reserving its decision on whether it must rule of its own motion on the lifting or the suspension of the detention.

21. In those circumstances, the rechtbank Amsterdam (District Court, Amsterdam) decided, by decision of 22 July 2022, received at the Court on the same day, to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Do Articles 12 and 24(1) of Framework Decision [2002/584], read in conjunction with Article 6 of the [Charter], preclude a requested person, whose surrender for the purpose of executing a custodial sentence was definitively authorised but has been postponed “so that he or she may be prosecuted in the executing Member State … for an act other than that referred to in the European arrest warrant”, from being detained for the duration of that criminal prosecution in order to execute the European arrest warrant?

(2) (a) Is the decision to exercise the power to postpone surrender provided for in Article 24(1) of Framework Decision [2002/584] a decision on the execution of the [European arrest warrant] which, pursuant to Article 6(2) of Framework Decision [2002/584], read in conjunction with recital 8 thereof, must be taken by the executing judicial authority?

(b) If so, does the fact that that decision was taken without the intervention of an executing judicial authority within the meaning of Article 6(2) of Framework Decision [2002/584] have the consequence that the requested person may no longer be detained for the purpose of executing the European arrest warrant issued against him?

(3) (a) Does Article 24(1) of Framework Decision [2002/584], read in conjunction with Articles 47 and 48 of the [Charter], preclude the surrender of the requested person for the purpose of a criminal prosecution in the executing Member State for the sole reason that, upon request, the requested person does not wish to waive his right to be present at that criminal prosecution?

(b) If so, which factors should the executing judicial authority then take into account when deciding whether to postpone the actual surrender?’

22. The referring court requested that the urgent preliminary ruling procedure be applied under Article 107 of the Rules of Procedure of the Court of Justice. That request was granted on 3 August 2022. The Netherlands Government, the Openbaar Ministerie (Public Prosecutor’s Office, Netherlands), CJ and the European Commission lodged pleadings in the context of the written procedure before the Court. A hearing was held on 21 September 2022 at which CJ, the Openbaar Ministerie, the Netherlands, French and Polish Governments as well as the Commission participated.

IV. Assessment

A. Preliminary observations

23. The order for reference is essentially concerned with two questions of law, the first of which is of an organisational and procedural nature, whereas the second relates to the substantive conditions for the application of Article 24(1) of Framework Decision 2002/584.

24. First, the referring court asks whether the decision to postpone the surrender of a requested person, pursuant to Article 24(1) of Framework Decision 2002/584, read in conjunction with Article 6(2) thereof, must be taken by the ‘executing judicial authority’ – and therefore by an independent judicial body – and about the consequences of any non-compliance with that condition, in particular whether it requires the person concerned to be released (second question). That question arises from the fact that, in the present case, the decision to postpone the surrender of the person concerned was taken by the public prosecutor alone, whom that court doubts constitutes such an independent judicial body. It was on the basis of that decision that the public prosecutor applied to that court to extend the detention of the person concerned for the duration of the postponement of his surrender.

25. Second, the referring court essentially seeks clarification of both the conditions (third question) and the consequences of a decision to postpone the surrender of the person concerned under Article 24(1) of Framework Decision 2002/584, in particular the possible need to release him (first question). In that regard, that court assumes that the decision to postpone the surrender is lawful, which is however not necessarily the case here, depending on the answer to be given to the second question.

26. It therefore seems appropriate, in the interests of procedural economy, and as the Commission proposes, to answer the second question first and then, together, the first and third questions.

B. The second question referred for a preliminary ruling

27. By the first part of its second question, the referring court asks, in essence, whether Article 24(1) of Framework Decision 2002/584, read in conjunction with Article 6(2) thereof, precludes a practice based on the rules of the Law on Surrender which confers on the public prosecutor the power to decide to postpone the surrender of a requested person.

1. The competence of the executing judicial authority within the meaning of Article 24(1) of Framework Decision 2002/584 (first part)

28. According to the clear wording of Article 24(1) of Framework Decision 2002/584, the decision to postpone the surrender of the requested person for the purposes of a parallel criminal prosecution against him or her in the executing Member State must be taken by the ‘executing judicial authority’. This is confirmed by recital 8 of that framework decision and is not called into question by any of the parties.

29. Moreover, contrary to the doubts expressed by the referring court, and as the Commission notes, the fact that Article 24(1) of Framework Decision 2002/584 mentions the ‘executing judicial authority’ as the body competent to adopt a decision to postpone the surrender shows that such adoption forms an integral part of the ‘execution’ of the European arrest warrant, within the meaning of Article 6(2) of that framework decision, as interpreted, admittedly, in conjunction with Article 23(3) of that framework decision, in the judgment of 28 April 2022, C and CD (Legal obstacles to the execution of a decision on surrender). ( ) In that judgment, the Court held that the assessment of whether there is a situation of force majeure, for the purposes of that provision, and, where appropriate, the setting of a new surrender date constitute decisions on the execution of the European arrest warrant, which is a matter for the executing judicial authority, which go beyond the mere ‘practical and administrative assistance’ within the meaning of Article 7 of that framework decision, read in the light of recital 9 thereof. ( )

30. As the Commission submits, given that the situations referred to in Article 23(3) and Article 24(1) of Framework Decision 2002/584 entail, respectively, the postponement of the surrender of the requested person in the context of executing the European arrest warrant, there is no convincing reason to justify interpreting differently the scope of the autonomous concept of ‘executing judicial authority’ ( ) when applying Article 24(1) of that framework decision, read in conjunction with Article 6(2) thereof.

31. In accordance with Article 6(2) of Framework Decision 2002/584, it is for the law of the executing Member State to designate the executing judicial authority responsible for adopting a decision to postpone surrender under Article 24(1) of that framework decision, a designation which must be compatible with the general principles of EU law, and in particular with the principle of the independence of that authority. To that end, the Member States are, in principle, free to designate, in addition to a judge or court, any authority involved in the administration of their criminal justice, including public prosecutors’ offices. However, that authority must act on the basis of the statutory rules and institutional framework capable of guaranteeing that it is not exposed to any risk of being subject, inter alia, to an instruction in a specific case from the executive. Moreover, in such a case, those States must ensure that the decisions of that authority are subject to judicial review which meets the requirements inherent in effective judicial protection. ( )

32. In the present case, it is common ground that the decision to postpone the surrender was adopted by the public prosecutor, autonomously and without the involvement of a court. In that regard, the Court has already held that, in view of the domestic rules of organisation and procedure in force in the Netherlands, a public prosecutor for the Amsterdam judicial district could not be classified as an ‘executing judicial authority’ within the meaning of the requirements of Article 6(2) of Framework Decision 2002/584 on account of the influence that the executive may exert over that body, in particular by means of instructions in specific cases and, therefore, on account of its lack of independence. ( )

33. Moreover, it is precisely to take account of that case-law and the need to confer the competence to adopt a decision to postpone the surrender to an ‘executing judicial authority’ that the Netherlands Government and the Openbaar Ministerie stated, in particular at the hearing, that an amendment to the Law on Surrender was being prepared that would designate the court as the competent body in the matter.

34. I therefore propose that the answer to the first part of the second question referred for a preliminary ruling be that the decision to postpone the surrender of a requested person under Article 24(1) of Framework Decision 2002/584, read in conjunction with Article 6(2) and recital 8 thereof, constitutes a measure ‘executing’ the European arrest warrant and, accordingly, must be taken by the ‘executing judicial authority’.

2. The consequences of an infringement of Article 24(1) of Framework Decision 2002/584 (second part)

35. As regards the consequences of an infringement of Article 24(1) of Framework Decision 2002/584, on the ground that the decision to postpone surrender has been adopted by a non-judicial authority – the public prosecutor, in this case – the positions taken by the parties are fundamentally different. Both the Commission and CJ consider that the infringement of such a formal requirement, like those provided for in Article 23(2) to (4) of that framework decision, requires that the person concerned be released. However, both the Netherlands Government and the Openbaar Ministerie, while acknowledging the existence of such an infringement, consider that it has no bearing on the separate decision of the court, within the meaning of Article 12 of that framework decision, to extend the detention of the person concerned. At the hearing, the French and Polish Governments made it clear, albeit only in response to the first question referred, that, irrespective of whether the conditions laid down in Article 24(1) of the same framework decision are satisfied in the present case, Article 12 thereof constituted a sufficient legal basis for keeping the said person concerned in detention during the postponement of his surrender.

36. As CJ and the Commission note, the requirement of conferring the power to take decisions, under Article 24(1) of Framework Decision 2002/584, to an ‘executing judicial authority’ which is independent or subject to effective judicial review ( ) constitutes a rule of jurisdiction from which, in principle, the Member States cannot derogate. This is emphasised by the case-law which has insisted on that independence, as well as on the existence of a judicial remedy which meets in full the requirements inherent in effective judicial protection, where that judicial authority is not itself a court and the postponement of surrender leads to the arrest or the keeping of the requested person in detention. ( )

37. However, in the present case, it must be pointed out that, first, the public prosecutor in question does not constitute an independent judicial authority in that sense and, second, having regard, in particular, to the divergent and ambiguous positions taken by the Netherlands Government and the Openbaar Ministerie at the hearing, it would appear that his decision to defer the surrender of the requested person is not subject to an effective judicial remedy.

38. As the referring court itself states, according to established practice, the public prosecutor’s decision to postpone surrender as such is not subject to review by the court when it rules on that prosecutor’s application for an extension of the requested person’s detention under Article 27(2) of the Law on Surrender, read in conjunction with Article 34(2)(b) thereof. That assessment is corroborated by the written observations of the Netherlands Government and the Openbaar Ministerie which emphasise that the decision to postpone surrender, taken by the public prosecutor, on the one hand, and the decision to keep the requested person in detention, taken by the court following the application by the same prosecutor, on the other, are separate in nature.

39. It follows that, in accordance with that practice, the court is empowered only to rule on the keeping of the requested person in detention under Article 27(2) of the Law on Surrender, read in conjunction with Article 34(2)(b) thereof, for a maximum period of 30 days. However, the decision to postpone surrender, adopted by the public prosecutor under Article 36(1) of that law, which constitutes the legal basis for his application to have the deprivation of that person’s liberty extended, appears to be ipso facto enforceable, without it being subject, as such, to effective judicial review, either beforehand or subsequently, by the court.

40. The fact remains that neither Article 36(1) of the Law on Surrender, on which the public prosecutor’s decision to postpone the surrender in the present case is based, nor Article 1(e) of that law explicitly specifies the body competent to adopt a decision to postpone the surrender of the requested person, within the meaning of Article 24(1) of Framework Decision 2002/584, let alone the conditions under which or the manner in which that decision could be subject to effective judicial review. Nor do those rules indicate whether the court seised of an application to have the detention extended has or does not have jurisdiction – and, if so, to what extent – to review the lawfulness of a decision of the public prosecutor to postpone surrender.

41. In that regard, the Netherlands Government explained at the hearing that Article 36(1) of the Law on Surrender was open to interpretation in accordance with Article 24(1) of Framework Decision 2002/584, such that the court could substitute the public prosecutor and remedy the defect referred to in point 37 above. It therefore cannot be ruled out that, at least on that occasion, under Article 27(2) of the Law on Surrender, read in conjunction with Article 33(a) thereof, that court may review the lawfulness of the decision by the public prosecutor to postpone surrender in order either to invalidate it and then order the release of the requested person, or to substitute that prosecutor in order to continue the postponement of surrender and keep that person in detention.

42. The requirement that the decision to postpone the surrender of the requested person must be taken by an ‘executing judicial authority’ which is independent or subject to effective judicial review presupposes that, at the latest when examining whether the conditions authorising the keeping of that person in detention are satisfied, the competent court is able to carry out such a review of the lawfulness of that decision. ( ) In so doing, that court could, where appropriate, be led to invalidate that decision in the event of non-observance of the conditions for the application of Article 24(1) of Framework Decision 2002/584 and order the release of that person, without prejudice to other measures that the competent judicial authority is entitled to take to prevent him or her absconding, in accordance with Article 12 of that framework decision.

43. It is for the referring court to assess whether, in the present case, such an approach in accordance with the requirements of Article 24(1) of Framework Decision 2002/584 is possible, which the Netherlands Government and the Openbaar Ministerie argued at the hearing. To that end, it must, however, ensure that any ex post judicial review on its part, as described in point 42 above, is sufficiently effective and capable of fully remedying the breach of the rule of jurisdiction which consists in the adoption by the public prosecutor alone of the decision to postpone surrender.

44. Thus, in view of the fact that, in the present case, the public prosecutor’s decision to postpone surrender resulted in the keeping of the person concerned in detention in the Netherlands, the referring court must ensure that that decision does not remain provisionally in force until that court has taken a new decision, as the Netherlands Government and the Openbaar Ministerie nevertheless observed at the hearing. Similarly, that court is supposed to verify whether it is able to substitute, retroactively, the public prosecutor in order to adopt a new decision to postpone the surrender of the requested person and to authorise, if necessary, his being kept in detention.

45. It is in the light of those criteria that the referring court must examine whether it is possible to interpret Article 27(2) of the Law on Surrender, read in conjunction with Articles 33 and 34 thereof, in conformity with the requirements of Article 24(1) of Framework Decision 2002/584, read in conjunction with Article 6(2) thereof. However, where this is not the case, in the absence of a legal basis in national law justifying the keeping of the person concerned in detention on other grounds, as authorised by Article 12 of Framework Decision 2002/584, he must be released.

46. Consequently, I propose that the answer to the second part of the second question referred for a preliminary ruling be that infringement of Article 24(1) of Framework Decision 2002/584, read in conjunction with Article 6(2) thereof, by virtue of which the decision to postpone the surrender of the requested person must be taken by an executing judicial authority, requires that that person be released, without prejudice to the possibility for such an authority to remedy that infringement by means of, inter alia, an interpretation of the relevant rules of national law in conformity with Article 24(1) of that framework decision or the existence of a legal basis in national law justifying keeping him or her in detention on other grounds.

C. The first and third questions referred for a preliminary ruling

1. Preliminary observation

47. The first and third questions are based on the assumption, made by the referring court, that the decision to postpone the surrender of the person concerned was adopted by an ‘executing judicial authority’ and is subject to effective judicial review.

48. With regard to the third question, the criteria for the application of Article 24(1) of Framework Decision 2002/584 must be interpreted in the light of Articles 47 and 48 of the Charter, namely the right to a fair trial and the rights of the defence, on which CJ relies in the ongoing criminal prosecution in the Netherlands.

2. The criteria for the application of Article 24(1) of Framework Decision 2002/584 read in the light of Articles 47 and 48 of the Charter (third question referred for a preliminary ruling)

49. The first part of the third question is aimed, in essence, at ascertaining whether Article 24(1) of Framework Decision 2002/584 precludes a decision to postpone the surrender of the requested person on the sole ground that he or she insists on exercising his or her fundamental rights protected by Articles 47 and 48 of the Charter.

50. As the Commission points out, under Article 24(1) of Framework Decision 2002/584, after having decided to execute the European arrest warrant, the executing judicial authority has discretion (‘may’) as regards the adoption of a decision to postpone the surrender of the requested person for the purposes of prosecution (‘so that he or she may be prosecuted’) in the executing Member State. Even in the absence of additional or more precise criteria governing the exercise of that discretion, it must be guided, in particular, by the fundamental rights of the Charter that the national authorities must respect in the context of executing the European arrest warrant (see Article 1(3) of that framework decision). ( )

51. It follows from settled case-law that the executing judicial authority is obliged to take account of the fundamental procedural safeguards enjoyed by the person concerned, under Articles 47 and 48 of the Charter, including the right to a fair trial and the right of defence, as interpreted by the Court. ( ) That obligation applies not only to the procedure for executing the European arrest warrant as such, but also, mutatis mutandis, to any parallel criminal proceedings invoked as grounds for postponing the surrender, within the meaning of Article 24(1) of Framework Decision 2002/584, and which are therefore inseparable from it. This is supported by Article 8 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, ( ) which clarifies the right of a suspect or an accused person to be present at the trial in criminal proceedings at national level.

52. The right of the accused to appear in person at his or her trial, which is at issue in the present case, is an essential component of the right to a fair trial, within the meaning of Article 47 of the Charter and the right of defence guaranteed by Article 48(2) thereof. ( ) Similarly, in accordance with Article 8 of Directive 2016/343, the Member States must allow inter alia accused persons to be present at their trial. ( ) Although Article 8(2) of that directive, read in the light of recital 35 thereof, authorises the Member States to provide, under certain conditions, for trials to be held in the absence of the accused person, in particular where that person has waived his or her right to be present at the trial, ( ) it is otherwise where, as in the present case, that person insists on exercising that right.

53. In view of the inalienable nature of the fundamental right of the accused to appear in person at the trial, ( ) the criminal prosecution of CJ in the Netherlands for having driven a vehicle without a valid driving licence, punishable by a fine of EUR 360 or, in the alternative, seven days’ detention, is sufficient, in principle, for the person concerned to be able to rely on his right to a fair trial and his rights of defence, notwithstanding the more serious nature of the offence in respect of which he had been convicted in Poland and which is the subject of the warrant.

54. Nevertheless, the executing judicial authority’s discretion, under Article 24(1) of Framework Decision 2002/584, to rule on the postponement of the surrender of the requested person cannot be transformed into a circumscribed power on the sole ground that that person avails himself or herself of fundamental procedural safeguards during criminal proceedings conducted in the executing Member State. Thus, in the present case, as the referring court and the Commission note, a decision to postpone surrender cannot be imposed unilaterally by the person concerned who insists on the immediate exercise and observance of his right to a fair trial and his rights of defence in the ongoing criminal proceedings in the Netherlands.

55. In that regard, it is necessary to ascertain whether the objectives of general interest pursued by Article 24 of Framework Decision 2002/584 justify a limitation, within the meaning of Article 52(1) of the Charter, on the exercise by the person concerned of his right to a fair trial and his rights of defence. As has been recognised by settled case-law, those rights are not unfettered prerogatives but may be restricted, provided that the restrictions in fact correspond to objectives of public interest pursued by the measure in question and do not involve, in the light of the objectives pursued, a disproportionate and intolerable interference which impairs the very substance of the rights thus guaranteed. ( )

56. In the exercise of its discretion concerning the implementation of the powers provided for in Article 24 of Framework Decision 2002/584, the executing judicial authority is therefore expected to take into account both the interest of the executing Member State in bringing to a successful conclusion ongoing criminal proceedings against the requested person and that of the issuing Member State in having the surrender of that person carried out as soon as possible, and weigh up those interests in order to determine whether and to what extent a limitation on the exercise of the right to a fair trial and of the rights of the defence is possible. That duty follows also from the duty of sincere cooperation, under the first subparagraph of Article 4(3) TEU, which informs the dialogue between the executing judicial authorities and the issuing ones in order to ensure the effective operation of the system of judicial cooperation between the Member States, of which the European arrest warrant is one of the key elements. ( )

57. In the first place, the executing judicial authority is called upon to take account of the legitimate interest of the executing Member State, protected by Article 24(1) of Framework Decision 2002/584, in bringing to a successful conclusion the ongoing criminal proceedings before surrendering the requested person to the issuing Member State. That interest is less significant where the seriousness of the offence being prosecuted and the scale of the penalty envisaged are, as in the present case, significantly lower than those which gave rise to the adoption of the European arrest warrant. Thus, under its duty of sincere cooperation, the executing judicial authority may have to suspend the ongoing criminal proceedings and carry out a ‘conditional’ temporary surrender of the requested person, within the meaning of Article 24(2) of that framework decision, while providing, in mutual agreement with the issuing judicial authority, for the return of that person, after the service of his or her sentence in the issuing Member State, for the purpose of continuing the criminal proceedings in the executing Member State. That would result in a limitation of the right to a fair trial and of the rights of defence of the said person, which consists in postponing their exercise.

58. In the present case, it is for the referring court to assess, first, whether such an approach is practicable, which was questioned by the parties at the hearing, and, second, whether, following the resumption of the proceedings after the possible return of the person concerned to the Netherlands, his procedural rights, including the right to be tried within a reasonable time, ( ) could be fully respected. In any event, the postponement as such of the exercise of those rights in the event of a temporary surrender of that person cannot be classified as a ‘disproportionate and intolerable interference’ impairing the very substance of those rights.

59. In the second place, the executing judicial authority must take into account the legitimate interest of the issuing Member State in having the requested person surrendered and imprisoned as soon as possible in its territory. That interest is, however, put into perspective by the possibility, provided for in Article 12 of Framework Decision 2002/584, of placing that person in detention for the purpose of executing the European arrest warrant. The equivalence of that detention is implicitly recognised by Article 26(1) of that framework decision, by virtue of which the issuing Member State must deduct all periods of detention from the total period of detention to be served by the requested person in the executing Member State. Similarly, in a case such as the present one, the objective of social reintegration after the completion of the sentences may be a reason against detention in the issuing Member State, when the requested person has already been staying for some time in the executing Member State or is socially well integrated there. ( ) It is for the executing judicial authority to determine which of those two options, according to the circumstances, best corresponds to that objective and whether the legitimate interest of the issuing Member State, the taking into account of which might lead to a temporary restriction of the procedural guarantees enjoyed by the person concerned, is capable of overriding that of the executing Member State, as is described in point 57 above.

60. In those circumstances, I propose that the answer to the first part of the third question referred for a preliminary ruling be that Article 24(1) of Framework Decision 2002/584, read in conjunction with Articles 47 and 48 of the Charter, does not, in principle, preclude the surrender of the requested person from being postponed for the purpose of a criminal prosecution in the executing Member State on the ground that that person does not wish to waive his or her right to be present at that criminal prosecution. In the exercise of its discretion under Article 24 of that framework decision, the executing judicial authority is, however, required to examine whether a limitation on the exercise by that person of his or her fundamental procedural safeguards may be justified in the light of the potentially divergent legitimate interests of the issuing and executing Member States.

61. In view of this essentially negative answer to the first part of the third question, there is no need to answer the second part of that question, which is asked only in the event of an affirmative answer to the first part.

3. The keeping of the requested person in detention following a lawful postponement of his surrender (first question referred for a preliminary ruling)

62. By the first question, the referring court wishes to ascertain whether, in the event that the surrender of the requested person is lawfully postponed, within the meaning of Article 24(1) of Framework Decision 2002/584, that person may be kept in detention throughout the period of that postponement and until that surrender is effected.

63. Article 24 of the framework decision does not address that issue. However, under the general rule laid down in Article 12 of that framework decision, the question whether the requested person may be placed or kept in detention must be decided in accordance with national law. Under Article 34(2) of the Law on Surrender, an extension of the detention for a period not exceeding 30 days is possible and has already been decided on two occasions by the referring court in the present case. ( ) Thus, in principle, neither Article 12 nor Article 24 of the same framework decision precludes as such the detention from being extended for the purposes of executing the European arrest warrant, as the postponement of the surrender forms an integral part of that execution, ( ) even if that extension may exceed a certain duration.

64. Contrary to what the Commission submits, that assessment is not called into question by the general scheme of the system of judicial cooperation which is intended for the execution of the European arrest warrant, by the strict time limits for the surrender of the requested person referred to in Article 23(2) to (4) of Framework Decision 2002/584, or by the requirements stemming from Article 6 of the Charter.

65. It is true that the Court has already held that the possibility of extending those time limits where there is a situation of force majeure provided for in Article 23(3) of Framework Decision 2002/584 must be interpreted strictly, as an exception to the rule laid down in Article 23(2) of that framework decision. ( ) It has specified in that regard that legal obstacles which arise from legal actions brought by the requested person are foreseeable and cannot therefore constitute a situation of force majeure in that sense. ( )

66. However, Article 24(1) of Framework Decision 2002/584 constitutes a special rule in relation to the general rules on the strict time limits for surrender, as provided for in Article 23(1) and (2) of that framework decision, in that it concerns a specific case in which the surrender of the requested person is postponed, which is intended, inter alia, to protect the legitimate interest of the executing Member State in bringing to a successful conclusion an ongoing criminal prosecution. ( ) That specific case of postponement must therefore be clearly distinguished from that of an exceptional postponement of surrender, under Article 23(3) or (4) of that framework decision, in relation to the general rules laid down in Article 23(1) and (2) thereof.

67. That assessment is confirmed by the fact that the EU legislature refrained from including precise time limits in Article 24(1) of Framework Decision 2002/584 or, at the very least, a reference to the time limits provided for in Article 23 of that framework decision. It follows a contrario that, in accordance with the principle set out in the first sentence of Article 12 of that framework decision, it gave the Member States some discretion to determine the length of time that the requested person may remain in detention during the lawful postponement of his surrender pursuant to Article 24(1) of that framework decision.

68. Moreover, in the present case, the person concerned insists on the immediate exercise of his fundamental procedural safeguards in the criminal prosecution in the Netherlands, which is the essential ground of the postponement of his surrender decided by the public prosecutor under Article 36(1) of the Law on Surrender. However, that factor is not akin to a ‘legal obstacle’ within the meaning of the case-law recalled in point 65 above, since that case-law refers only to the application of Article 23 of Framework Decision 2002/584 and not to the application of Article 24(1) thereof, as in the present case.

69. Finally, it is true that the decision, based on Article 24(1) of Framework Decision 2002/584, to keep the requested person in detention in the executing Member State instead of surrendering him or her to the issuing Member State for the purposes of executing the European arrest warrant constitutes, like the sentence imposed by the issuing Member State, a measure which falls within the scope of Article 6 of the Charter and which must be limited in time. ( ) However, any corresponding restriction on the freedom of the requested person is fully compensated by the obligation on the issuing Member State to deduct any period of detention in the executing Member State from the total period of detention to be served in the issuing Member State. In such circumstances, keeping that person in detention cannot be classified as an additional limitation on the right to freedom which that person must in any event endure in the issuing Member State or as a disproportionate measure for the purposes of the second sentence of Article 52(1) of the Charter, provided that the period of detention does not exceed that which would be served in the issuing Member State.

70. Consequently, I propose that the answer to the first question referred for a preliminary ruling be that Article 12 and Article 24(1) of Framework Decision 2002/584, read in conjunction with Article 6 of the Charter, do not preclude a requested person, whose surrender for the purpose of executing a custodial sentence has been authorised by a final decision but has been postponed ‘so that he or she may be prosecuted in the executing Member State … for an act other than that referred to in the European arrest warrant’, from being kept in detention in execution of the European arrest warrant for the duration of that criminal prosecution, provided that the period of detention does not exceed that which would be served in the issuing Member State.

V. Conclusion

71. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) in the following manner:

(1) Article 12 and Article 24(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in conjunction with Article 6 of the Charter of Fundamental Rights of the European Union, do not preclude a requested person, whose surrender for the purpose of executing a custodial sentence has been authorised by a final decision but has been postponed ‘so that he or she may be prosecuted in the executing Member State … for an act other than that referred to in the European arrest warrant’, from being kept in detention in execution of the European arrest warrant for the duration of that criminal prosecution, provided that the period of detention does not exceed that which would be served in the issuing Member State.

(2) The decision to postpone the surrender of a requested person under Article 24(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with Article 6(2) and recital 8 of that framework decision, constitutes a measure ‘executing’ the European arrest warrant and, accordingly, must be taken by the ‘executing judicial authority’.

Infringement of Article 24(1) of that framework decision, read in conjunction with Article 6(2) thereof, by virtue of which the decision to postpone the surrender of the requested person must be taken by an executing judicial authority, requires that that person be released, without prejudice to the possibility for such an authority to remedy that infringement by means of, inter alia, an interpretation of the relevant rules of national law in conformity with Article 24(1) of that framework decision or the existence of a legal basis in national law justifying keeping him or her in detention on other grounds.

(3) Article 24(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, does not, in principle, preclude the surrender of the requested person from being postponed for the purpose of a criminal prosecution in the executing Member State on the ground that that person does not wish to waive his or her right to be present at that criminal prosecution. In the exercise of its discretion under Article 24 of that framework decision, the executing judicial authority is, however, required to examine whether a limitation on the exercise by the requested person of his or her fundamental procedural safeguards may be justified in the light of the potentially divergent legitimate interests of the issuing and executing Member States.