Case C‑142/22

OE

v

Minister for Justice and Equality

(Request for a preliminary ruling from the Supreme Court (Ireland))

Judgment of the Court (Second Chamber), 6 July 2023

(Reference for a preliminary ruling – Police and judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 27 – Prosecution for an offence committed prior to the person’s surrender other than that for which he or she was surrendered – Request for consent sent to the executing judicial authority – European arrest warrant issued by the public prosecutor of a Member State which is not an issuing judicial authority – Consequences for the request for consent)

1. Judicial cooperation in criminal matters – Framework decision on the European arrest warrant and the surrender procedures between Member States – Possible prosecution for other offences – Request for consent sent to the executing judicial authority – European arrest warrant underlying the surrender which was not issued by an issuing judicial authority within the meaning of Article 6(1) of the framework decision – Consent given to that request submitted by an issuing judicial authority – Validity

   (Council Framework Decision 2002/584, Art. 27(3)(g) and Art. 27(4))

   (see paragraphs 33, 34, 41-45, 48, 49, 52, operative part)

2. Judicial cooperation in criminal matters – Framework decision on the European arrest warrant and the surrender procedures between Member States – Speciality rule – Request for consent to disapply the speciality rule

   (Council Framework Decision 2002/584, Art. 27(2))

   (see paragraphs 39, 40)

3. Judicial cooperation in criminal matters – Framework decision on the European arrest warrant and the surrender procedures between Member States – Principle of mutual recognition – Scope – Exceptions – Objectives of the framework decision to facilitate and accelerate surrenders between the judicial authorities of the Member States

   (Council Framework Decision 2002/584, Arts 1(2), 27 and 28)

   (see paragraphs 47, 50)

Résumé

By an order of the High Court (Ireland) executing three European arrest warrants issued in 2016 by Netherlands prosecutors, OE was surrendered to the Netherlands in 2017. He was then sentenced to a term of imprisonment.

In 2019, an investigating judge in Amsterdam (Netherlands) asked the High Court, in accordance with the rule set out in Article 27(3)(g) and Article 27(4) of Framework Decision 2002/584, ( 1 ) to grant consent to the prosecution of OE for offences committed prior to his surrender other than those which provided the justification for the initial European arrest warrants. OE opposed that request before the High Court, claiming that the initial arrest warrants, which had been issued by public prosecutors, had been issued by authorities which could not be regarded as ‘issuing judicial authorities’ within the meaning of Article 6(1) of Framework Decision 2002/584. According to OE, that fact precluded the request for consent from being granted. However, by order of 27 July 2020, the High Court granted the consent sought.

In May 2021, the Court of Appeal (Ireland) dismissed OE’s appeal, holding that it was necessary to apply the national procedural rule of estoppel, which precluded a challenge to the 2017 surrender order, which had the force of res judicata.

In the context of an appeal brought by OE against that decision before the Supreme Court (Ireland), which is the referring court in the present case, that court is uncertain as to how to classify legally the relationship between the surrender procedure and the consent procedure.

The Court holds that Article 27(3)(g) and (4) of Framework Decision 2002/584 must be interpreted as meaning that the fact that a European arrest warrant on the basis of which a person has been the subject of a surrender decision has been issued by an authority which did not constitute an ‘issuing judicial authority’ within the meaning of Article 6(1) of that framework decision, does not preclude the executing judicial authority, to which a request to that effect has been made by an issuing judicial authority within the meaning of Article 6(1), from subsequently giving its consent to that person being prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.

Findings of the Court

First of all, the Court notes that European arrest warrants which have been issued by the public prosecutor of a Member State which may, in exercising its decision-making power, receive an instruction in a specific case from the executive are not issued in accordance with the requirements arising from Framework Decision 2002/584.

The Court then notes that the consent decision has a subject matter that is specific to it. For that reason, it must be taken by the executing judicial authority following an examination separate from and independent of the examination prompted by the European arrest warrant. That examination must be carried out in accordance with Article 27(4) of Framework Decision 2002/584. The executing judicial authority must first verify whether the request for consent submitted to it is accompanied by the information required under the framework decision and a translation. ( 2 ) Second, that authority must also ascertain whether the offence for which consent is requested is itself subject to the surrender obligation under the same framework decision. Third, it must assess, in the light of the grounds for mandatory or optional non-execution laid down by that framework decision, ( 3 ) whether the extension of the prosecution to offences other than those for which the person concerned was surrendered may be authorised. However, it is not clear from the wording of the provisions concerned that a defect affecting an initial European arrest warrant would be such as to prevent the executing judicial authority from giving the consent sought.

Furthermore, the Court takes the view that to accept that the conditions under which the surrender was carried out may be the subject of a review in the context of a request for consent made under Article 27(3)(g) and (4) of Framework Decision 2002/584 would result in a delay to the consent decision, on grounds unrelated to those provided for in paragraph 4, which would run counter to the need for speed which underlies that framework decision.

Lastly, the Court notes that, in the present case, the 2017 surrender order has become definitive despite the fact that it was adopted following European arrest warrants that were all issued by authorities that cannot be classified as ‘competent judicial authorities’ within the meaning of Article 6 of Framework Decision 2002/584. Therefore, it would be paradoxical to call into question, on the basis of that fact, the consent at the origin of the case in the main proceedings, which, for its part, follows a request issued by such a competent judicial authority.

( 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).

( 2 ) See Article 8(1) and (2) of Framework Decision 2002/584.

( 3 ) See Articles 3 and 4 of Framework Decision 2002/584.