Melvin West.
Date: 2012-06-28
41. Like the specialty rule set out in Article 27(2) of the Framework Decision, according to which a person may 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 (see Case C-388/08 PPU Leymann and Pustovarov  [2008] ECR I-8983, paragraph 43), the rule laid down in Article 28(2) of that Framework Decision confers on the requested person the right not to be surrendered to a Member State other than the executing Member State for the purposes of conducting a criminal prosecution or executing a custodial sentence for an offence committed prior to his surrender to the issuing Member State.
49. In order to understand the scope of Article 28(2) of the Framework Decision and, in particular, the phrase ‘executing Member State’ in a situation such as that at issue in the main proceedings, both the wording of that provision and the objective pursued by the Framework Decision must be taken into account (see, to that effect, Leymann and Pustovarov , paragraph 46).
53. With regard, second, to the objective pursued by the Framework Decision, it must be pointed out that it seeks, inter alia, to facilitate and accelerate judicial cooperation (see Case C-303/05 Advocaten voor de Wereld  [2007] ECR I-3633, paragraph 31; Case C-296/08 PPU Santesteban Goicoechea  [2008] ECR I-6307, paragraphs 51, 55 and 76; and Leymann and Pustovarov , paragraph 42). That Framework Decision thus seeks to contribute to the objective set for the European Union to become an area of freedom, security and justice by basing itself on the high degree of confidence which should exist between the Member States ( Leymann and Pustovarov , paragraphs 48 and 50).
54. Furthermore, as is clear from recitals 5 and 7 in the preamble to the Framework Decision, the purpose of the Framework Decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings, that system of surrender being based on the principle of mutual recognition ( Advocaten voor de Wereld , paragraph 28; Case C-66/08 Kozłowski  [2008] ECR I-6041, paragraphs 31 and 43; Case C-123/08 Wolzenburg [2009] ECR I-9621, paragraph 56; and Case C-261/09 Mantello  [2010] ECR I-11477, paragraph 35).
55. That principle, which constitutes the ‘cornerstone’ of judicial cooperation, means that, pursuant to Article 1(2) of the Framework Decision, Member States are in principle obliged to give effect to a European arrest warrant. They are thus either obliged to execute, or may not refuse to execute, such a warrant, and they may make its execution subject to conditions only in the cases listed in Articles 3 to 5 of that Framework Decision. Equally, according to Article 28(3) of the Framework Decision, consent to a subsequent surrender may be refused only in those same cases (see, to that effect, Leymann and Pustovarov , paragraphs 49 and 51; Wolzenburg , paragraph 57; and Mantello , paragraphs 36 and 37).
62. It follows from the above that the interpretation according to which the concept of ‘executing Member State’ refers only to the Member State which carried out the last surrender of the person concerned reinforces the system of surrender established by the Framework Decision for the good of the area of freedom, security and justice, in accordance with the mutual confidence which must exist between the Member States. By limiting the situations in which the executing judicial authorities of the Member States involved in the successive surrenders of the same person may refuse to consent to the execution of a European arrest warrant, such an interpretation only facilitates the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of the Framework Decision, which constitutes the essential rule introduced by that decision (see, to that effect, Wolzenburg , paragraphs 58 and 59).
64. In that regard, it should be recalled that the principle of mutual recognition does not impose an absolute obligation to execute the European arrest warrant. According to paragraph 55 above, the system established by the Framework Decision, as is apparent inter alia from Articles 3 to 5 thereof, leaves the Member States with the possibility of allowing the competent judicial authorities, in specific situations, to refuse to execute such a surrender (see, to that effect, Case C-306/09 B.  [2010] ECR I-10341, paragraphs 50 and 51).
70. It should be noted that Articles 4(6) and 5(3) of the Framework Decision allow the executing judicial authority, first, where the person concerned is subject to a European arrest warrant issued for the purposes of execution of a custodial sentence and where he ‘is staying in, or is a national or a resident of the executing Member State’, to refuse to execute such a warrant by undertaking to have that sentence executed in accordance with its national law and, second, where that person is subject to a European arrest warrant for the purposes of prosecution and is ‘a national or resident of the executing Member State’, to make the surrender subject to the condition that that person is returned to the executing Member State in order to serve there the custodial sentence passed against him in the issuing Member State. Those provisions have in particular the objective of enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires (see Kozłowski , paragraph 45; Wolzenburg , paragraphs 62 and 67; and B. , paragraph 52).