Prosecutors in the Netherlands do not constitute an “executing judicial authority” in the context of the execution of a European Arrest Warrant (EAW), as they may be subject to individual instructions from the Netherlands Minister for Justice. This is the verdict of the European Court of Justice on Tuesday 24 November (Case C-510/19).
In September 2017, an EAW was issued by a Belgian investigating judge against AZ, a Belgian national (forgery, use of forgery). In December 2017, AZ was arrested in the Netherlands and surrendered to the Belgian authorities.
In January 2018, the investigating judge issued an additional EAW for other acts, requesting the Netherlands authorities to disapply the rule of speciality provided for by the EAW Framework Decision (a person surrendered to the issuing Member State pursuant to an EAW may not be prosecuted, sentenced or deprived of liberty by the judicial authorities of that Member State for an offence committed prior to his or her surrender other than that for which he or she was surrendered, unless the executing judicial authority has given its consent).
In February 2018, the Amsterdam Public Prosecutor’s Office gave its consent to extend the scope of prosecution. AZ was then prosecuted for the acts referred to in the initial and supplementary EAWs and sentenced to three years’ imprisonment.
In this context, the Brussels Court of Appeal wonders whether the Public Prosecutor for the Amsterdam District may be considered to be an “executing judicial authority” with the power to give the consent provided for in this Framework Decision.
The Court notes that, while the decision to execute the arrest warrant ultimately rests with a court, the decision to grant consent is, on the other hand, taken exclusively by the public prosecutor. However, since the latter may be subject to individual instructions from the Netherlands Minister for Justice, he or she does not constitute an “executing judicial authority”. (Original version in French by Lionel Changeur)