Brussels, 05/09/2012 (Agence Europe) - A member state may not restrict solely to its own nationals the non-execution of a European arrest warrant with a view to enforcing in its territory a custodial sentence imposed in another member state, according to the EU Framework Decision 2002/584/JHA on the European Arrest Warrant. The French legislation transposing the EU rules (Article 695-24 of the French Penal Code) restricts the power not to execute an arrest warrant on such a ground solely to requested persons who are French nationals and therefore discriminates on the grounds of nationality.
This was the ruling issued on Wednesday 5 September by the European Court of Justice in Case C-42/11, sent by the appeals court in Amiens, France, about interpretation of Decision 2002/584/JHA, which lays down obligations for the member states for the implementation of the European Arrest Warrant, and how this applies to French legislation under which the possibility of refusing to surrender a person in order to enforce in France a custodial sentence imposed in another member state is limited solely to French nationals, irrespective of where the person in question is officially resident. The case before the Amiens court related to execution of a European Arrest Warrant issued on 14 September 2006 by the tribunal criminal de Lisboa (Criminal Court of Lisbon) (Portugal) against Jorge Lopes Da Silva. In 2003, that Portuguese court had sentenced Lopes Da Silva, a Portuguese national, to five years' imprisonment for drug trafficking. Subsequently, he married a French national (in 2009) and is now living with her in France, where he has a permanent job. He appealed against the decision and, not wanting to be sent to prison in Portugal, he has asked to be imprisoned in France.
In its ruling, the Court of Justice points out that in Ruling C-123/08, it ruled that under the derogation to mutual recognition of rulings, an executing judicial authority is allowed to restrict limitations on the implementation of a European Arrest Warrant to their own nationals or people who have lived in their country for more than five years (meaning that they are properly integrated there). The Court of Justice rules, however, that countries may not restrict the derogation to its own nationals, because this would amount to discrimination on the grounds of nationality. The Court states: 'That does not mean that that member state must necessarily refuse to execute a European arrest warrant issued against a person resident or staying in its territory. However, in so far as that person demonstrates a degree of integration in the society of that member state comparable to that of a national thereof, the executing judicial authority must be able to assess whether there is a legitimate interest which would justify the sentence imposed in the issuing member state (Portugal) being enforced within the territory of the executing member state (France).' (FG/trans.fl).