Case C‑268/17

AY

(Request for a preliminary ruling from the Županijski Sud u Zagrebu)

(Reference for a preliminary ruling — Judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 1(2), Article 3(2) and Article 4(3) — Grounds for the refusal to execute — Closure of criminal proceedings — Principle ne bis in idem — Requested person who had the status of a witness in previous proceedings concerning the same acts — Issue of several European arrest warrants against the same person)

Summary — Judgment of the Court (Fifth Chamber), 25 July 2018

Judicial cooperation in criminal matters—Council Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States—Grounds for mandatory non-execution of the European arrest warrant—Requested person who has been finally judged in respect of the same acts—Grounds for optional non-execution of the European arrest warrant—Requested person who has been finally judged in respect of the same acts or is concerned by a decision not to prosecute or to halt proceedings—Arrest warrant issued against a person who had the status of a witness in closed proceedings concerning the same acts—Not included

Judicial cooperation in criminal matters—Council Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States—74069 / Grounds for mandatory non-execution of the European arrest warrant—94090 / Requested person who has been finally judged in respect of the same acts—Definition of ‘judgment’—Decision definitively discontinuing criminal proceedings issued by an authority responsible for administering criminal justice—Included

Judicial cooperation in criminal matters—Council Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States—Implementation by Member States—Obligation to adopt a decision to execute a European arrest warrant—Scope—Second European arrest warrant concerning the same person and the same acts as the previous warrant in respect of which a decision to execute has already been adopted—Included

In any event, the admissibility of the request for a preliminary ruling is not called into question by the fact that the questions asked concern the obligations of the executing judicial authority, even though the referring court is the judicial authority that issued the European arrest warrant (EAW). The issue of an EAW could result in the arrest of the requested person and, therefore, affects the personal freedom of the latter. The Court has held that, with regard to proceedings relating to an EAW, observance of fundamental rights falls primarily within the responsibility of the issuing Member State (judgment of 23 January 2018, Piotrowski, C‑367/16, EU:C:2018:27, paragraph 50). Therefore, in order to ensure observance of those rights — which may lead a judicial authority to decide to withdraw the EAW it issued — such an authority must be able to refer questions to the Court for a preliminary ruling. (see paras 28, 29)

Article 1(2) 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, must be interpreted as requiring the judicial authority of the executing Member State to adopt a decision on any European arrest warrant forwarded to it, even when, in that Member State, a ruling has already been made on a previous European arrest warrant concerning the same person and the same acts, but the second European arrest warrant has been issued only on account of the indictment, in the issuing Member State, of the requested person. In that context, Article 15(1) of Framework Decision 2002/584 provides that ‘the executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered’. Furthermore, Article 17(1) and (6) of the framework decision provides that ‘[an EAW] shall be dealt with and executed as a matter of urgency’ and that ‘reasons must be given for any refusal to execute [such a warrant]’. In addition, Article 22 of the framework decision provides that ‘the executing judicial authority shall notify the issuing judicial authority immediately of the decision on the action to be taken on the [EAW]’. As a result, as observed by the Advocate General in point 38 of his Opinion, an executing judicial authority which does not reply following the issue of an EAW and thus does not communicate any decision to the judicial authority that issued the EAW is in breach of its obligations under those provisions of Framework Decision 2002/584. (see paras 34-36, operative part 1)

One of the conditions to which the refusal to execute an EAW is subject is that the requested person must have been ‘finally judged’. In that regard, it must be stated that, even though Article 3(2) of Framework Decision 2002/584 refers to a ‘judgment’, that provision is also applicable to decisions issued by an authority responsible for administering criminal justice in the national legal system concerned, definitively discontinuing criminal proceedings in a Member State, although such decisions are adopted without the involvement of a court and do not take the form of a judicial decision (see, by analogy, judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraph 39 and the case-law cited). (see paras 40, 41)