The Court of Justice of the EU has clarified the scope of the principle ne bis in idem applicable when executing a European arrest warrant in respect of acts which were previously the subject of a sentence in a third country, in a judgment delivered on Thursday 29 April in case C-665/20.
The case concerns a European Arrest Warrant (EAW) issued in 2019 by the German judicial authorities against X, in order to conduct criminal proceedings for acts committed in 2012 against his partner and her daughter.
Arrested in 2020 in the Netherlands, X objected to his surrender to those authorities, invoking the principle ne bis in idem, asserting that he had previously been prosecuted and finally judged in respect of the same acts in Iran.
According to Article 4(5) of the Framework Decision on the EAW the executing judicial authority may refuse to execute an EAW if the requested person has been finally judged for the same acts by a third State, 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.
The Amsterdam District Court, which had to decide on the surrender of X, sought the guidance of the Court on the interpretation of this article.
In its judgment, the Court ruled, first of all, that the executing judicial authority must have a margin of discretion in order to determine whether it is appropriate to refuse to execute an EAW on the ground concerned.
The principles of mutual trust and recognition, which prevail between the Member States, are not automatically transposable to judgments handed down by the courts of third States, it recalls.
The Court also ruled that the concept of “same acts” referred to in Article 3(2) - which concerns judgments given in the EU - and in Article 4(5) of the Framework Decision - which concerns judgments given in a third State - must be interpreted uniformly.
Lastly, it considers that leniency measures under the laws of the sentencing country, which have the effect that the sanction imposed cannot be enforced, fulfil the conditions laid down in the Framework Decision.
However, the Court adds that the executing judicial authority must strike a balance between preventing the impunity of convicted and sentenced persons and combating crime with ensuring legal certainty as regards those persons through respect for decisions of public bodies which have become final.
See the judgment: https://bit.ly/3xvoUMW (Original version in French by Marion Fontana)