X.
Date: 2021-04-29
33


In the second place, it is necessary, according to the settled case-law of the Court, to take into account the fact that the person concerned in the case in the main proceedings is currently deprived of his liberty and that the question whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings (judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 28 and the case-law cited).
37


As a preliminary point, it should be recalled that the Framework Decision seeks, by the establishment of a simplified and 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 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 38 and the case-law cited).
38


In the field governed by the Framework Decision, the principle of mutual recognition, which, as is apparent, in particular, from recital 6 thereof, constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is put into practice in Article 1(2) of that Framework Decision, which lays down the rule that Member States are to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that Framework Decision (judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 39 and the case-law cited).
39


It follows that executing judicial authorities may, in principle, refuse to execute such a warrant only on the grounds for non-execution exhaustively listed by the Framework Decision. 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 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 37 and the case-law cited).
40


The Framework Decision explicitly sets out, in Article 3, grounds for mandatory non-execution of a European arrest warrant and, in Articles 4 and 4a, grounds for optional non-execution of such a warrant (see, to that effect, judgment of 11 March 2020, SF(European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 40 and the case-law cited).
41


As regards the grounds for optional non-execution listed in Article 4 of the Framework Decision, it is clear from the case-law of the Court that, when transposing the Framework Decision, the Member States have a margin of discretion. Therefore, they are free to transpose those grounds into their domestic law or not to do so. They may also choose to limit the situations in which the executing judicial authority may refuse to execute a European arrest warrant, thereby facilitating the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of that Framework Decision (see, to that effect, judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraphs 58, 59 and 61).
43


It is therefore clear from the wording of Article 4 of the Framework Decision – in particular from the use of the verb ‘may’ together with the infinitive of the verb ‘refuse’, the subject of which is the executing judicial authority – that that authority must, itself, have a margin of discretion as to whether or not it is appropriate to refuse to execute the European arrest warrant on the grounds referred to in Article 4 (see, to that effect, judgment of 13 December 2018, Sut, C‑514/17, EU:C:2018:1016, paragraph 33 and the case-law cited).
46


First, as the Court has repeatedly held, execution of the European arrest warrant constitutes the rule, whereas refusal to execute is intended to be an exception which must be interpreted strictly (see, to that effect, judgment of 11 March 2020, SF(European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 39).
52


In that regard, it should be recalled that EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in Article 2 TEU (judgment of 24 September 2020, Generalbundesanwalt beim Bundesgerichtshof (Speciality rule), C‑195/20 PPU, EU:C:2020:749, paragraph 30). That premiss implies and justifies the existence of mutual trust between the Member States, in particular in their respective criminal justice systems.
53


The principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 35 and the case-law cited).
54


Such mutual trust also exists between the States party to the CISA, Article 54 of which precludes a person whose trial has been finally disposed of in one contracting State from being ‘prosecuted’ in another contracting State (judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraph 50 and the case-law cited).
56


That interpretation is, moreover, consistent with the objective of Article 4(5) of the Framework Decision which, as is apparent from the wording of that provision and in accordance with Article 67(1) TFEU, is intended to enable the executing judicial authority to ensure legal certainty for the requested person by taking into account the fact that he or she has been finally judged in a third State in respect of the same acts, provided that, where there has been a sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country (see, by analogy, with regard to Article 54 of the CISA, judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraph 44).
57


In that regard, it should be noted that the condition that the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country, in so far as it has the effect, if not satisfied, of requiring the surrender of the requested person in order for that person to be prosecuted or to serve the custodial sentence ordered against him or her, contributes to the attainment of the objective of the European arrest warrant mechanism of preventing, within the area of freedom, security and justice, offences going unpunished (see, to that effect, judgment of 11 March 2020, SF(European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 47, and, by analogy, judgment of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 77).
58


In that context, it should be recalled that the Framework Decision must be interpreted in such a way as to ensure compliance with the requirements of respect for the fundamental rights of the persons concerned, without, however, calling into question the effectiveness of the system of judicial cooperation between the Member States of which the European arrest warrant, as provided for by the EU legislature, is one of the key elements (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 63).
62


In that regard, it should be recalled, first, that since the Framework Decision does not have direct effect, a court of a Member State is not required, solely on the basis of EU law, to disapply a provision of its national law which is contrary to the Framework Decision (see, to that effect, judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 71 and the case-law cited).
63


Second, while the binding character of a framework decision places on national authorities an obligation to interpret national law, to the greatest extent possible, in the light of the text and the purpose of the framework decision in order to achieve the result sought by that decision, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem (see, to that effect, judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 72, 73 and 76 and the case-law cited).
64


That being so, the principle that national law must be interpreted in conformity with EU law requires that the whole body of domestic law be taken into consideration and that the interpretative methods recognised by domestic law be applied, with a view to ensuring that the framework decision is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 77 and the case-law cited).
69


According to settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard not only to its wording but also to the context of the provision and the objective pursued by the legislation in question (judgment of 25 June 2020, Ministerio Fiscal (Authority likely to receive an application for international protection), C‑36/20 PPU, EU:C:2020:495, paragraph 53 and the case-law cited).
70


As regards, in particular, the concept of ‘same acts’ in Article 3(2) of the Framework Decision, the Court held that, since that provision made no reference to the law of the Member States with regard to that concept, the latter had to be given an autonomous and uniform interpretation throughout the European Union (see, to that effect, judgment of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraph 38).
71


The Court also noted that the concept of ‘same acts’ also appeared in Article 54 of the CISA and, in view of the shared objective of that article and Article 3(2) of the Framework Decision, which is to ensure that a person is not prosecuted or tried more than once in respect of the same acts, it held that those two concepts had to be interpreted in the same way, as referring only to the nature of the acts, encompassing a set of concrete circumstances which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected (judgment of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraphs 39 and 40 and the case-law cited).
75


In those circumstances, reasons of consistency and legal certainty dictate that the concepts which are worded identically in each of those two provisions, and in Article 54 of the CISA, should be given the same scope (see, to that effect, judgment of 10 November 2016, Özçelik, C‑453/16 PPU, EU:C:2016:860, paragraph 33).
77


It is true that the application of the ne bis in idem principle necessarily presupposes the existence of trust in the criminal justice system of the country in which the judgment was delivered (see, to that effect, judgment of 9 March 2006, Van Esbroeck, C‑436/04, EU:C:2006:165, paragraph 30 and the case-law cited). As is clear from paragraph 55 of this judgment, the high level of trust that exists between the Member States cannot be presumed as regards third States and, in particular, their criminal justice systems.
79


In doing so, it allows Member States to limit the situations in which the executing judicial authority may refuse to execute a European arrest warrant on that ground, thereby facilitating the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of the Framework Decision (judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraphs 58 and 59).
97


In that regard, it should be recalled that, as can be seen from Article 67(3) TFEU, in order to achieve its objective of constituting an area of freedom, security and justice, the European Union endeavours to ensure a high level of security through measures to prevent and combat crime, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws (judgment of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 62).
99


However, the ne bis in idem principle set out in both Article 4(5) of the Framework Decision and Article 3(2) thereof and in Article 54 of the CISA is intended not only to prevent, in the area of freedom, security and justice, the impunity of persons definitively convicted and sentenced; it also seeks to ensure legal certainty through respect for decisions of public bodies which have become final (see, to that effect, judgment of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 77).
100


Legal certainty for persons who have been finally judged can be effectively guaranteed only if they can be sure that, once they have been convicted and when the penalty imposed on them can no longer be enforced under the laws of the sentencing country, they may travel within the European Union without fear of further prosecution for the same acts (see, to that effect, judgment of 11 December 2008, Bourquain, C‑297/07, EU:C:2008:708, paragraphs 49 to 50), including where their sentence has been remitted by a non-judicial authority as part of a general leniency measure which is not based on objective criminal policy considerations.