Case C‑804/21 PPU

C
and
CD

v

Syyttäjä

(Request for a preliminary ruling from the Korkein oikeus)

Judgment of the Court (Second Chamber), 28 April 2022

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 23(3) – Requirement of intervention on the part of the executing judicial authority – Article 6(2) – Police services – Not included – Force majeure – Concept – Legal obstacles to surrender – Legal actions brought by the requested person – Application for international protection – Not included – Article 23(5) – Expiry of the time limits provided for surrender – Consequences – Release – Obligation to adopt any other measures necessary to prevent absconding)

1. Judicial cooperation in criminal matters – Framework decision on the European arrest warrant and the surrender procedures between Member States – Time limits for the surrender of the requested person – Setting of a new surrender date where it is impossible to surrender the person within the prescribed period on account of a situation of force majeure – Concept of force majeure – Restrictive interpretation – Legal obstacles to surrender which arise from legal actions brought by the requested person, based on the law of the executing Member State – No force majeure – Consequences – Time limits for surrender not suspended

   (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 23(3))

   (see paragraphs 44-49, 51, 58, operative part 1)

2. Judicial cooperation in criminal matters – Framework decision on the European arrest warrant and the surrender procedures between Member States – Requirement of intervention on the part of an executing judicial authority for the purposes of Article 23(3) of the framework decision – Intervention by a police service of the executing Member State – Not permissible – Consequences – Expiry of the time limits for the surrender of the person who is the subject of the European arrest warrant – Release of that person – Obligation of the executing Member State to carry on with the procedure for executing the European arrest warrant – Competent authority of that Member State required to take any measures necessary to prevent that person from absconding, with the exception of measures involving deprivation of liberty

   (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, recitals 8 and 9, Arts 6, 7, 15(1) and 23)

   (see paragraphs 61-63, 66-69, 71-76, operative part 2)

Résumé

In May 2015, European arrest warrants (EAWs) were issued by a Romanian judicial authority in respect of C and CD, two Romanian nationals (‘the persons concerned’), for the purpose of executing custodial sentences. In 2020, the persons concerned were arrested and placed in detention in Finland on the basis of those EAWs. In April 2021, the Korkein oikeus (Supreme Court, Finland) ordered that they be surrendered to the Romanian authorities and the Keskusrikospoliisi (National Bureau of Investigation, Finland) initially set a surrender date of 7 May 2021. However, that surrender did not take place, on account of an appeal brought by the persons concerned before the same court. Before dismissing that appeal on 31 May 2021, the Supreme Court had provisionally prohibited the enforcement of the surrender decisions. A second surrender date was set for 11 June 2021, but was once again postponed, owing to the fact that it was impossible to organise air transport in accordance with the agreed schedule. The third date set for their surrender, at the end of June 2021, could not lead to surrender, because the persons concerned had lodged applications for international protection in Finland.

The persons concerned then brought an action before the Helsingin käräjäoikeus (District Court, Helsinki, Finland) seeking their release and the postponement of their surrender on account of their applications for international protection. That court declared the actions inadmissible. In that context, the Supreme Court, hearing the appeals against those decisions of the District Court, Helsinki, is uncertain, first, as regards the concept of force majeure, which permits, in accordance with Article 23(3) of Framework Decision 2002/584, ( 1 ) the postponement of the surrender of a person who is the subject of an EAW. Faced with impediments provided for by Finnish law, the referring court asks in particular whether legal obstacles such as a prohibition on the enforcement of surrender decisions during court proceedings or the lodging of an application for international protection may constitute situations of force majeure for the purposes of that provision. Second, that court has doubts as regards the procedural rules governing the assessment of whether a situation of force majeure exists, having regard to the central role of the National Bureau of Investigation in the execution of the surrender.

In the context of the urgent preliminary ruling procedure, the Court answers the first of those questions in the negative, stating that the concept of ‘force majeure’ does not encompass legal obstacles to surrender which arise from legal actions brought by the person who is the subject of an EAW and are based on the law of the executing Member State, in cases where the final decision on surrender has been adopted by the executing judicial authority. ( 2 ) Furthermore, the Court states that the requirement of intervention on the part of the executing judicial authority, referred to in Article 23(3), is not met where the executing Member State makes a police service responsible for ascertaining whether there is a situation of force majeure and whether the necessary conditions for the continued detention of the person who is the subject of the EAW are satisfied and for potentially deciding on a new surrender date, even if that person is entitled to apply to the executing judicial authority at any time for a decision on those various matters.

Findings of the Court

In the first place, the Court points out that the concept of ‘force majeure’ presupposes the existence of abnormal and unforeseeable circumstances which are outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care. In that regard, legal actions brought by the person who is the subject of an EAW, in the context of proceedings provided for by the law of the executing Member State, in order to challenge his or her surrender or having the effect of delaying that surrender, cannot be regarded as an unforeseeable circumstance. Consequently, legal obstacles to surrender which arise from that type of legal action cannot constitute a situation of force majeure for the purposes of Article 23(3) of Framework Decision 2002/584. Where the final decision to surrender that person has been taken by the executing judicial authority, and the time limits for surrender laid down in Article 23 of that framework decision cannot be regarded as suspended on account of such pending proceedings brought in the executing Member State, the authorities of that Member State are still required to surrender that person to the authorities of the issuing Member State within those time limits.

In the second place, the Court points out that the police services of a Member State are not covered by the concept of ‘judicial authority’ provided for by Article 6 of Framework Decision 2002/584. Thus, the intervention on the part of an executing judicial authority required by Article 23(3) of that framework decision in order to assess whether there is a situation of force majeure and potentially set a new surrender date cannot be made the responsibility of a police service. Irrespective of whether a situation of force majeure actually exists, intervention on the part of such a service in respect of those two types of decision does not meet the formal requirements laid down by that provision. Consequently, where there is no intervention on the part of the executing judicial authority, the time limits for surrender laid down by Article 23(2) to (4) of the framework decision cannot be extended by virtue of a situation of force majeure. In such a case, those time limits must be regarded as expired, which means that the person concerned must be released. No provision is made for an exception to that obligation on the part of the executing Member State in such a case. However, the mere expiry of the time limits for surrender laid down in Article 23 of Framework Decision 2002/584 cannot have the effect of allowing the executing Member State to relieve itself of its obligation to carry on with the procedure for executing an EAW and to surrender the requested person, and the authorities concerned must agree on a new surrender date. Thus, if the person concerned is released, the competent authority of the executing Member State is required to take any measures it deems necessary to prevent that person from absconding, with the exception of measures involving deprivation of liberty.

More specifically, Article 23 of Framework Decision 2002/584 lays down time limits for the surrender of persons requested under an EAW once the final decision to surrender those persons has been taken by the executing judicial authority. If the surrender is prevented because of a situation of force majeure, that period may be extended pursuant to Article 23(3). If the requested person is not surrendered within the time limits laid down by the framework decision, he or she must be released pursuant to Article 23(5).

( 1 ) Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24).

( 2 ) That final decision on surrender is taken by the executing judicial authority in accordance with Article 15(1) of Framework Decision 2002/584; that provision states that it is necessary to comply with the time limits and conditions laid down by that framework decision.