A member state refusing to execute a European arrest warrant must formally undertake to execute the sentence, as the primary objective is to avoid the wanted person going unpunished, Advocate General Yves Bot told the Court of Justice of the EU on Wednesday 15 February.
This case (C-579/15) concerns a Polish national sentenced to a year's imprisonment in Poland and who was the subject of a European arrest warrant. He was found in the Netherlands, but the authorities of the country refused to execute the warrant, whilst adding that they were prepared to execute the sentence on their territory. This option is indeed provided for in the framework decision of the Council (2002/584/JHA) on European arrest warrants and handover procedures between member states.
However, Dutch law provides that the sentence may only be executed in the Netherlands if the member state that issued the warrant (in this case, Poland) requested this. However, Polish legislation opposes such requests in the event that the wanted person is a Polish national. This situation led to a Dutch court finding that a refusal to hand the wanted person over could ultimately lead to the person in question going unpunished and therefore requested clarification from the Court.
In view of the Advocate General, it is clear that the refusal to execute a European arrest warrant presupposes in exchange a proper unilateral commitment on the part of the member state of execution to recognise the judgement and to ensure that the sentence is executed. In this case, there is no such commitment on the part of the Dutch authorities, as a simple statement of intention does not constitute a proper commitment. He finds that the Netherlands and Poland must therefore agree on how the sentence is to be executed. If this cannot be done in the Netherlands, then the European arrest warrant must be executed and wanted person must be handed over to the Polish authorities. (Original version in French by Jan Kordys)