Ministère public v Marin-Simion Sut.
Date: 2018-12-13
23


However, the referring court is unsure of the relevance of that interpretation, having regard to the case-law of the Court which permits 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, inter alia, judgments of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 32, and of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 21), while ensuring that the sentence imposed by the issuing State is enforced, and having regard to the recitals of Framework Decision 2008/909 to that effect, in particular to recital 9 thereof.
26


As a preliminary matter, it should be noted that the purpose of Framework Decision 2002/584, as is apparent in particular from Article 1(1) and (2) and recitals 5 and 7 thereof, is to replace the multilateral system of extradition based on the European Convention on Extradition of 13 December 1957 with a system of surrender between judicial authorities of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions, the system of surrender being based on the principle of mutual recognition (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 39 and the case-law cited).
27


Framework Decision 2002/584 thus seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 40 and the case-law cited).
28


In the field governed by Framework Decision 2002/584, the principle of mutual recognition, which, as is apparent in particular from recital 6 of that framework decision, constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is applied in Article 1(2) thereof which lays down the rule that Member States are required to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the framework decision. Executing judicial authorities may therefore, in principle, refuse to execute such a warrant only on the grounds for non-execution exhaustively listed by the framework decision and execution of the warrant may be made subject only to one of the conditions exhaustively laid down in Article 5. Accordingly, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 41 and the case-law cited).
29


Framework Decision 2002/584 explicitly states the grounds for mandatory non-execution (Article 3) and optional non-execution (Articles 4 and 4a) of a European arrest warrant, as well as the guarantees to be given by the issuing Member State in particular cases (Article 5) (see judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 42 and the case-law cited).
30


Thus, although the system established by Framework Decision 2002/584 is based on the principle of mutual recognition, that recognition does not mean that there is an absolute obligation to execute the arrest warrant that has been issued. The system established by that framework decision, as evidenced inter alia by Article 4 thereof, makes it possible for the Member States to allow the competent judicial authorities, in specific situations, to decide that a sentence must be enforced on the territory of the executing Member State (judgment of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 30 and the case-law cited).
33


Furthermore, as the Court has previously found, it is clear from the wording of Article 4(6) of Framework Decision 2002/584, in particular from the word ‘may’, that, where a Member State chooses to transpose that provision into domestic law, the executing judicial authority must, nevertheless, have a margin of discretion as to whether or not it is appropriate to refuse to execute the European arrest warrant. In that regard, that authority must take into consideration the objective of the ground for optional non-execution set out in that provision, which, according to the Court’s settled case-law, means 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 judgment of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 21 and the case-law cited).
34


As regards, in the first place, the first condition stated in Article 4(6) of Framework Decision 2002/584, the Court has previously stated that a requested person is ‘resident’ in the executing Member State when he has established his actual place of residence there and he is ‘staying’ there when, following a stable period of presence in that State, he has acquired connections with that State which are of a similar degree to those resulting from residence (judgment of 17 July 2008, Kozłowski, C‑66/08, EU:C:2008:437, paragraph 54).
35


As regards, in the second place, the second condition stated in Article 4(6) of Framework Decision 2002/584, as the Court has previously held, it follows from the wording of that provision that any refusal to execute a European arrest warrant presupposes an actual undertaking on the part of the executing Member State to enforce the custodial sentence imposed on the requested person. This indicates that any refusal to execute a European arrest warrant must be preceded by the executing judicial authority’s examination of whether it is actually possible to enforce the custodial sentence in question in accordance with its domestic law. In the event that the executing Member State finds that it is in fact impossible to undertake to enforce the sentence, it falls to the executing judicial authority to execute the European arrest warrant and, therefore, to surrender the requested person to the issuing Member State (judgment of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 22).
36


Where the executing judicial authority finds that both of the abovementioned conditions have been satisfied, it must ascertain whether there is a legitimate interest which would justify the sentence imposed in the issuing Member State being enforced on the territory of the executing Member State (see judgment of 17 July 2008, Kozłowski, C‑66/08, EU:C:2008:437, paragraph 44). Such an assessment allows that judicial authority to take account of the objective underlying Article 4(6) of Framework Decision 2002/584, as stated in paragraph 33 above.
37


It follows from the foregoing considerations that the option conferred on the executing judicial authority to refuse, pursuant to Article 4(6) of Framework Decision 2002/584, to surrender the person requested may be exercised only if that judicial authority, after having ascertained, first, that that person falls within the scope of that provision, within the meaning set out in paragraph 34 above, and, second, that the custodial sentence passed in the issuing Member State against that person can actually be enforced in the executing Member State, considers that there is a legitimate interest which would justify the sentence imposed in the issuing Member State being enforced in the executing Member State.
42


In the second place, it should be noted that, when deciding on transposing Article 4 of Framework Decision 2002/584 into domestic law, the Member States have, of necessity, a certain margin of discretion in implementing that provision and in particular paragraph 6 thereof (see, to that effect, judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraph 61).
43


In that context, as the Court has previously held, a national legislature which, by virtue of the options afforded it by Article 4 of the framework decision, chooses to limit the situations in which the national executing judicial authority may refuse to surrender a requested person merely reinforces the system of surrender introduced by that framework decision to the advantage of an area of freedom, security and justice (judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraph 58).
44


Indeed, by limiting the situations in which the executing judicial authority may refuse to execute a European arrest warrant, such legislation only facilitates the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of Framework Decision 2002/584, which constitutes the essential rule introduced by that decision (judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraph 59).
46


As the Court has previously held, although the ground for optional non-execution set out in Article 4(6) of the Framework Decision 2002/584 has 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, such an objective, while important, cannot prevent the Member States, when implementing that framework decision, from limiting, in a manner consistent with the essential rule stated in Article 1(2) thereof, the situations in which it is possible to refuse to surrender a person who falls within the scope of Article 4(6) thereof (see judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraph 62 and the case-law cited).
47


In the third place, although, in adopting Article 4(6) of Framework Decision 2002/584, the EU legislature wished to allow the Member States, for the purposes of facilitating the social rehabilitation of the person requested, to refuse to execute the European arrest warrant, it was nevertheless careful to set out, in that provision, the conditions for the application of that ground of refusal, including, inter alia, the executing Member State undertaking to order that the custodial sentence imposed on the person requested actually be enforced, in order to ensure that the custodial sentence imposed is enforced and thereby to avoid any risk of that person going unpunished.