1. 

Young law students in Europe are often introduced to criminal law by a Latin saying: nullum crimen nulla poena sine lege scripta, praevia, certa et stricta. It expresses a clear rule and a fundamental principle of law, that both crime and punishment must be prescribed by law. Later comes the discovery, as a law student, practitioner, lawyer, professor or even Advocate General at the Court of Justice of the European Union, that that Latin phrase can accommodate infinite nuances. Words such as poena always require interpretation.

2. 

Thus, the present case concerns an ‘additional penalty’, which consists in the convicted person being ‘made available’ for a period of ten years on expiry of a main and immediate three-year custodial sentence. Is that additional penalty one of the factors which must be mentioned in a European arrest warrant pursuant to Article 8 of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, ( 2 ) and if so, which consequences ensue from the failure to mention it?

3.

Article 1 of the Framework Decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘1.   The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2.   Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3.   This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU].’

4.

Under Article 2(1) of the Framework Decision, a European arrest warrant ‘may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months’.

5.

Article 3 lists the grounds for mandatory non-execution of a European arrest warrant, whilst Article 4 sets out the grounds for optional non-execution. ( 3 )

6.

Article 4a of the Framework Decision contains detailed rules regarding the circumstances in which the execution of a European arrest warrant may be refused if the person concerned did not appear in person at the trial resulting in the decision. ( 4 )

7.

Article 6(1) and (2) of the Framework Decision defines ‘the issuing judicial authority’ as ‘the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State’ and ‘the executing judicial authority’ as ‘the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State’.

8.

Article 8(1) of the Framework Decision, entitled ‘Content and form of the European arrest warrant’, provides:

‘The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

9.

Under Article 11(1) of the Framework Decision, when a requested person is arrested, the competent executing authority is, in accordance with its national law, to inform that person ‘of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority’.

10.

Article 13 of the Framework Decision concerns the consent of the requested person to his surrender:

‘1.   If the arrested person indicates that he or she consents to surrender, that consent and, if appropriate, express renunciation of entitlement to the “speciality rule”, referred to in Article 27(2), shall be given before the executing judicial authority, in accordance with the domestic law of the executing Member State.

2.   Each Member State shall adopt the measures necessary to ensure that consent and, where appropriate, renunciation, as referred to in paragraph 1, are established in such a way as to show that the person concerned has expressed them voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel.

3.   The consent and, where appropriate, renunciation, as referred to in paragraph 1, shall be formally recorded in accordance with the procedure laid down by the domestic law of the executing Member State.

4.   In principle, consent may not be revoked. …’

11.

Under Article 14 of the Framework Decision, ‘where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State’.

12.

Article 15 of the Framework Decision concerns the surrender decision:

‘1.   The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

2.   If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on the surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

3.   The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’

13.

Article 17(1) of the Framework Decision provides that the European arrest warrant is to be ‘dealt with and executed as a matter of urgency’. Under paragraphs 2 and 3 of that article, in cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant must be taken within a period of 10 days after consent has been given, whereas in other cases, the final decision on the execution of the European arrest warrant must be taken within a period of 60 days after the arrest of the requested person. Paragraph 6 of the article provides that reasons must be given for any refusal to execute a European arrest warrant.

14.

Article 19 of the Framework Decision concerns the hearing of the requested person, where that person does not consent to his surrender:

‘1.   The requested person shall be heard by a judicial authority, assisted by another person designated in accordance with the law of the Member State of the requesting court.

2.   The requested person shall be heard in accordance with the law of the executing Member State and with the conditions determined by mutual agreement between the issuing and executing judicial authorities.

3.   The competent executing judicial authority may assign another judicial authority of its Member State to take part in the hearing of the requested person in order to ensure the proper application of this Article and of the conditions laid down.’

15.

Under the heading ‘Possible prosecution for other offences’, Article 27 of the Framework Decision reads as follows:

‘1.   Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.

2.   Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be 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.

…’

16.

Pursuant to Article 31(1), the Framework Decision is to replace the corresponding provisions of several conventions applicable in the field of extradition between the Member States, in particular the European Convention on Extradition ( 5 ) and the Convention relating to extradition between the Member States of the European Union. ( 6 )

17.

The European arrest warrant form, which is contained in the annex to the Framework Decision, includes a box (c), ‘Indications on the length of the sentence’, points 1 and 2 of which are entitled, respectively, ‘Maximum length of the custodial sentence or detention order which may be imposed for the offence(s)’ and ‘Length of the custodial sentence or detention order imposed’.

18.

Box (f) of the European arrest warrant form is entitled ‘Other circumstances relevant to the case’ and states that this information is optional.

19.

Under Article 34a of the Strafwetboek (Belgian Criminal Code), the making available of a person is an additional penalty which, in the cases provided for by law, must or may be imposed in order to protect society from persons who have committed serious offences causing bodily harm. Its execution is governed by Articles 95/2 to 95/30 of the Wet van 17 mei 2006 betreffende de externe rechtspositie van de veroordeelden tot een vrijheidsstraf en de aan het slachtoffer toegekende rechten in het raam van de strafuitvoeringsmodaliteiten (Law of 17 May 2006 on the external legal status of persons sentenced to a custodial sentence and the rights granted to the victim within the framework of the procedures for the serving of sentences, ‘the Law of 17 May 2006’).

20.

Under Article 95/2 of the Law of 17 May 2006, the making available of the convicted person commences upon the expiry of the main sentence. Before that occurs, the sentencing court decides either to deprive the convicted person made available of his liberty or to release him under supervision. That person is deprived of his liberty if there is a risk of him committing serious offences causing bodily harm to third parties and that risk cannot be offset, in the context of release under supervision, by imposing special conditions. At the hearing, the Belgian Government confirmed that the additional deprivation of liberty is not automatic but rather dependent on the examination of the convicted person’s individual case.

21.

By inter partes judgment of the Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium) of 1 February 2013, IK, a Belgian national, received a main prison sentence of three years for indecent assault on a minor under the age of 16 (‘the main sentence’). By the same judgment, and for that same offence, he was also made available to the sentencing court (Belgium) for a ten-year period (‘the additional penalty’).

22.

Since IK had fled to the Netherlands following his conviction, on 27 August 2014 the competent Belgian judicial authority issued a European arrest warrant for him. The European arrest warrant identified him, stated the main sentence, the nature and legal classification of the offences and the applicable legal provisions, and contained a summary of the facts. However, it made no mention of the additional penalty to which IK had also been sentenced.

23.

Following IK’s arrest in the Netherlands, by decision of 8 March 2016 the internationale rechtshulpkamer (Chamber for International Judicial Cooperation) of the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) allowed IK’s surrender to the Kingdom of Belgium for the purposes of executing the custodial sentence.

24.

IK was subsequently surrendered to the Belgian authorities and placed in detention. That detention was based on his conviction under the main sentence, the end date of which had been fixed at 12 August 2018, and on him being made available for a ten-year period.

25.

Before the expiry of the main sentence, in the context of the procedure relating to the additional penalty imposed on IK, the director of Wortel Prison (Belgium) and the public prosecution service adopted an opinion advocating deprivation of liberty for IK. On 21 June and 19 July 2018, the strafuitvoeringsrechtbank Antwerpen (sentencing court, Antwerp, Belgium) organised hearings in order for a decision to be reached on the additional penalty.

26.

In the context of that procedure, IK claimed that his surrender by the Netherlands authorities did not relate to the additional penalty. In his view, the sentencing court could not order a deprivation of liberty in execution of that penalty, since the European arrest warrant issued by the Belgian authorities made no mention of it.

27.

Subsequently, on 2 July 2018, the competent issuing authority at the strafuitvoeringsrechtbank te Antwerpen (sentencing court, Antwerp) sent the Netherlands authorities an additional request for consent in relation to the making available penalty imposed on IK, pursuant to Article 27 of the Framework Decision. The Netherlands authorities did not accede to that request, finding that additional consent may be granted only for the purposes of sentencing or prosecution for an offence other than that for which his surrender was allowed, and deeming that that was not the case here.

28.

By a judgment of 31 July 2018, the strafuitvoeringsrechtbank te Antwerpen (sentencing court, Antwerp) rejected the arguments advanced by IK and decided that he should continue to be detained. In execution of that decision, IK was held in detention pending a new decision of the strafuitvoeringsrechtbank (sentencing court).

29.

On 3 August 2018, IK lodged an appeal on a point of law against that judgment before the Hof van cassatie (Court of Cassation, Belgium, ‘the referring court’). According to the sole ground of appeal advanced, the European arrest warrant issued by the Belgian public prosecution service mentions the custodial sentence imposed on IK only. Accordingly, there is no European arrest warrant issued by the Belgian authorities in relation to the additional penalty, and the surrender by the Netherlands authorities pursuant to the Belgian authorities’ European arrest warrant cannot therefore relate to that penalty.

30.

In the light of the ground of appeal relied on by IK, the referring court decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

31.

Written observations were submitted by IK, the Belgian and Netherlands Governments and the European Commission. Those parties, as well as the Irish and Polish Governments, presented oral argument at the hearing held on 22 October 2018.

32.

The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court. In support of that request, it stated that IK is in detention in Belgium and that his continued detention is directly dependent on the Court’s answer to the questions referred for a preliminary ruling.

33.

In that regard, it should first be stated that the present reference for a preliminary ruling concerns the interpretation of the Framework Decision, which comes within the areas covered by Title V of Part Three of the FEU Treaty on the area of freedom, security and justice. Consequently, the reference may be dealt with under the urgent preliminary ruling procedure, in accordance with Article 107(1) of the Rules of Procedure of the Court.

34.

Second, as regards the criterion relating to urgency, it is necessary, in accordance with the settled case-law of the Court, to take into account the fact that the person concerned in the case in the main proceedings is currently deprived of his liberty and that the question as to whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings. Furthermore, the situation of the person concerned must be assessed as it stood at the time when consideration was given to whether the reference should be dealt with under the urgent preliminary ruling procedure. ( 7 )

35.

In the present case, it is common ground that, on that date, IK was deprived of his liberty. Moreover, his continued detention depends on the consequences of the failure to mention the additional penalty in the European arrest warrant at issue in the main proceedings. According to the explanations provided by the referring court, the detention measure to which he is currently subject commenced on expiry of the main sentence.

36.

In those circumstances, on 10 September 2018 the First Chamber of the Court, acting on a proposal of the Judge-Rapporteur and after hearing the Advocate General, decided to accede to the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure.

37.

The Framework Decision marks the transition from the system of extradition of requested persons, based on the concept of State sovereignty, to the surrender system which is founded on mutual trust between Member States.

38.

That is consistent with the conclusions of the Tampere European Council, according to which the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons. ( 8 ) It is likewise in line with the objective set for the Union to become an area of freedom, security and justice. ( 9 )

39.

Thus, traditional cooperation relations which prevailed between Member States up until the adoption of the Framework Decision are replaced by the new system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions. ( 10 ) In those circumstances, a person’s surrender is requested and provided in the context of a supranational, harmonised legal system, as part of which Member States partially renounce their sovereignty. ( 11 ) The key components of the break with extradition law introduced by the Framework Decision are the generalisation of the surrender of nationals, ( 12 ) the partial abolition of double criminality ( 13 ) and the establishment of exhaustive lists detailing the grounds for refusing execution. ( 14 ) The change from the old extradition system is intended to be ‘radical’. ( 15 )

40.

This move from a system of extradition to a system of surrender has also been noted on numerous occasions by the Court, from the first judgment on the Framework Decision ( 16 ) to the most recent. ( 17 )

41.

Thus, the European arrest warrant was conceived as a system intended to replace the extradition procedure in order to facilitate the surrender of a requested person located in a Member State other than that in which that warrant was issued. That emerges very clearly from the definition set out in Article 1(1) of the Framework Decision, under which the European arrest warrant is a judicial decision for the arrest of the requested person in a Member State other than the issuing Member State for the purpose of his surrender to the latter.

42.

In that context, the objectives of the Framework Decision are clearly stated.

43.

It is apparent, in particular, from Article 1(1) and (2) and from recitals 5 and 7 of the Framework Decision that the purpose of the Framework Decision is to establish, on the basis of the principle of mutual recognition, a system of surrender between judicial authorities of convicted or suspected persons for the purposes of enforcing judgments or conducting prosecutions on the basis of the principle of mutual recognition. The Framework Decision thus seeks, by the establishment of that simplified and more effective system, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States. ( 18 )

44.

That system implements the principle of mutual recognition, described by the European Council in its Tampere Conclusions as being the ‘cornerstone’ of judicial cooperation. ( 19 ) That principle is based on judicial cooperation in criminal matters in the European Union. ( 20 ) It assumes a high level of trust between the Member States, in particular as regards compliance with EU law and with the fundamental rights recognised by EU law. ( 21 ) The implementation of the principle of mutual recognition means that each national judicial authority should ipso facto recognise requests for the surrender of a person made by the judicial authority of another Member State with a minimum of formalities. ( 22 )

45.

The ambit of the European arrest warrant is clearly defined by the Framework Decision. Thus, it concerns the arrest and surrender of a person for the purposes either of conducting a criminal prosecution or of executing a custodial sentence or detention order. ( 23 ) In the first scenario, the ‘threshold’ established by the Framework Decision states that the acts forming the basis of the criminal prosecution must be punishable in the issuing Member State by a custodial sentence or a detention order of at least 12 months; in the second, the sentence passed must be of at least four months. ( 24 )

46.

The form contained in the annex to the Framework Decision reflects the ambit of the European arrest warrant as well as the distinction between potential sentences and the sentence imposed. Thus, in box (c) entitled ‘Indications on the length of the sentence’, the form provides that the maximum length of the custodial sentence or detention order which ‘may be imposed’ must be stated under 1. (I note here that it does not refer to the minimum sentence, which would make it possible to verify whether the sentence falls below the twelve-month threshold) and the length of the custodial sentence or detention order ‘imposed’ under point 2.

47.

The present case concerns the second scenario, namely the execution of a custodial sentence or detention order imposed.

48.

The Netherlands Government relies on the principle of speciality to conclude that the additional penalty cannot be executed because the executing Member State was not informed of it. It therefore appears to me necessary to indicate first of all whether that principle has any possible application in the present case.

49.

The concept of speciality originates in extradition law. It consists in the idea of limiting the acts in respect of which the extradited person will be tried following his extradition to those which formed the grounds for his surrender. ( 25 ) Thus, Article 14 of the 1957 Convention laid down a speciality rule by virtue of which the person extradited is not to be prosecuted, tried, detained or otherwise deprived of his liberty for an act committed prior to his surrender other than that for which he was extradited. Article 10 of the 1996 Convention also includes that principle, albeit with a reduced scope.

50.

Under extradition law, the principle of speciality limits the powers of the issuing State to which a person has been extradited in order to protect that person from being convicted or sentenced for acts other than those for which he was extradited. The justification for that principle was the fear that the State seeking extradition might limit its request to those acts in respect of which the extradition was granted in order subsequently to prosecute the person extradited for other crimes, for example political crimes. ( 26 )

51.

Under the logic of mutual trust that forms the cornerstone of the European arrest warrant, the proposal for a Framework Decision broke with that principle and proposed its abolition, to go hand in hand with the abolition of the principle of double criminal liability. ( 27 ) However, in the final text of the Framework Decision, that principle was retained in Article 27 entitled ‘Possible prosecution for other offences’, inserted into Chapter 3 on the ‘Effects of the surrender’.

52.

Thus, under Article 27(2) of the Framework Decision, a person surrendered may not be 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. ( 28 ) That rule is linked to the sovereignty of the executing Member State and confers on the requested person the right not to be prosecuted, sentenced or otherwise deprived of his or her liberty except for the offence for which he or she was surrendered. ( 29 )

53.

It is clear, both from the background to and the content of the principle of speciality and from its formulation in the context of the Framework Decision, including the wording of Article 27 thereof, that that principle concerns only (i) offences committed prior to the person’s surrender and which (ii) are different from the offence(s) for which that person was surrendered. There is no basis on which to conclude that the principle of speciality likewise excludes the execution of other custodial sentences. Extending the scope of that principle to other factors would, in my view, run counter to the system established by the Framework Decision, which is based on mutual trust with a view to simplifying the surrender procedures.

54.

I therefore reject the argument advanced by the Netherlands Government which appears to me to be rooted in the old view prevailing under the system of extradition based on a national sovereignty approach.

55.

By its first question, the referring court essentially seeks to ascertain whether Article 8(1)(f) of the Framework Decision requires that the additional penalty be mentioned in the European arrest warrant.

56.

Article 8(1)(f) of the Framework Decision provides that the European arrest warrant must contain information, set out in accordance with the form contained in the annex to the Framework Decision, on ‘the penalty imposed, if there is a final judgment’.

57.

That information must be provided in box (c) of the form, contained in the annex to the Framework Decision, entitled ‘Indications on the length of the sentence’, point 2 of which provides that the length of the custodial sentence or detention order must be stated.

58.

The concept of a ‘penalty’ is not defined in the Framework Decision. It must be given an autonomous and uniform interpretation within the European Union, independently of the substantive and procedural rules in criminal matters, which by nature diverge in the various Member States. ( 30 ) That interpretation must take into account the terms of that provision, its content and the objectives of the legislation of which it forms part. ( 31 )

59.

The word ‘penalty’ signifies, in accordance with its ordinary meaning and its etymology, ( 32 ) a punishment or retribution. In criminal matters, that punishment is provided for by law and imposed as a penalty by a court in the name and in defence of the public interest.

60.

The Framework Decision also requires that the penalty for the execution of which the person is requested be ‘imposed’ by a final judgment.

61.

It seems clear from the context of the Framework Decision that the EU legislature had intended to include other detention measures in the concept of a ‘penalty’. ( 33 ) Accordingly, even though Article 8(1)(f) refers only to the ‘penalty’ imposed, it seems to me, in the light of box (c) of the form contained in the annex to the Framework Decision, that that word must be construed as also encompassing detention measures.

62.

However, the European arrest warrant, which forms the subject matter of the Framework Decision, is concerned solely with the execution of ‘custodial sentences’ or ‘detention orders’. ( 34 ) Accordingly, in my view, ‘sentences’ and ‘orders’ which do not deprive the person concerned of his liberty do not have to be stated in box (c) of the form contained in the annex to the Framework Decision.

63.

With regard to the concept of ‘deprivation of liberty’, I observe that the Court has held that measures which certainly restrict the liberty of movement of the person concerned, such as a nine-hour night-time curfew, together with the monitoring of that person by means of an electronic tag, an obligation to report to a police station at fixed times on a daily basis or several times a week, and a ban on applying for foreign travel documents are not so restrictive as to have the effect of depriving that person of his liberty. ( 35 ) The case-law of the European Court of Human Rights supports that interpretation. It has been held, for instance, that measures requiring the person concerned to report once a month to the police monitoring authority, to maintain contact with the psychiatric unit of the hospital concerned, to reside in a specific location, not to leave the municipality in which he resided and to remain at home between the hours of 22.00 and 07.00 did not constitute a deprivation of liberty within the meaning of Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’). ( 36 )

64.

Turning now to the objective of the Framework Decision, it is settled case-law that it seeks to facilitate and accelerate judicial cooperation. ( 37 )

65.

Within the context of that system, it appears to me that the information required by Article 8(1) of the Framework Decision serves the dual purpose of providing the executing Member State with the information necessary for the requested person to be surrendered and of guaranteeing that that person’s rights are respected (I shall return to this point later, in point 106 et seq.).

66.

As regards more specifically the ratio of Article 8(1)(f) of the Framework Decision (under box (c) ‘Indications on the length of the sentence’), it appears to me to be correctly described in Annex III to the Handbook. The purpose of that information ‘is to place on record the fact that … the punishment thresholds laid down in Article 2(1) of the Framework Decision [are exceeded]’.

67.

Accordingly, the sentence which the surrender requested is intended to execute is a piece of key information required to meet those objectives. In addition, the length of that sentence is a factor specifically mentioned in box (c) of the form contained in the annex to the Framework Decision.

68.

However, the question arises whether an additional penalty imposed by the same judgment as that relating to the main custodial sentence constitutes a ‘penalty imposed’ within the meaning of Article 8(1)(f) of the Framework Decision. It is clear from the information submitted to the Court that that penalty consists in the person concerned being made available to the sentencing court for a ten-year period. It commences only on expiry of the main sentence. There is an additional deprivation of liberty only if the sentencing court decides to impose one.

69.

I observe, first of all, that that additional penalty illustrates perfectly the infinite nuances that national criminal penalties may encompass. I freely acknowledge the difficulties that such specific features may present for the issuing judicial authority when completing the boxes of the European arrest warrant form which is, ultimately, a ‘ready-made’ solution, and in which, with a view to simplifying the surrender of requested persons, all the necessary information must be provided.

70.

What should be done about this additional penalty, of which the ‘custodial’ nature — using the wording in EU law — and the possible length, even if imposed by the same judgment as the main sentence, remain uncertain at the point when the national court completes the European arrest warrant form?

71.

I cannot agree with the Commission’s approach, namely that that information should be stated under point 1 of box (c) of the form in the annex to the Framework Decision, in the part for use where the European arrest warrant is issued ‘for the purposes of conducting a criminal prosecution’. ( 38 ) That interpretation appears to me to be flawed because, in order to address a specific national feature, namely the making available procedure under Belgian law, it disregards the binary structure of the system established by the Framework Decision which clearly sets out the difference between a European arrest warrant issued for the purposes of conducting a criminal prosecution, on the one hand, and such a warrant issued for the purposes of executing a custodial sentence or detention order, on the other. ( 39 ) Adopting that approach could affect the clarity and readability of the European arrest warrant. That would compromise the objectives of the Framework Decision, that is to say the simplification of the surrender procedures by means of a form standardised at European Union level. ( 40 )

72.

It is the national court which has all the information on that additional penalty needed to determine, in the light of the considerations set out above, whether it satisfies the concept of a ‘penalty imposed’ under Article 8(1)(f) of the Framework Decision and should therefore be stated in point 2 of box (c) of the European arrest warrant form.

73.

In making that assessment, account must be taken, in my opinion, of the following factors.

74.

In view of the fact that the additional penalty is merely a possibility and that it might not result in an additional custodial sentence (the sole object of a European arrest warrant in accordance with Articles 1(1) and 2(1) of the Framework Decision), mention could conceivably be made of it as one of the ‘other consequences of the offence’, pursuant to Article 8(1)(g), and, therefore, in box (f) of the European arrest warrant form, entitled ‘Other circumstances relevant to the case (optional information)’. The Handbook explains that that box is not normally completed, but that it may be used, after a trial, to mention, for example, an ‘unlawful absence from prison’. I note that this information is included in the European arrest warrant ‘if possible’. ( 41 ) However, the significance of the consequences that that penalty may have for the convicted person (in the present case, imprisonment for up to ten years) leads me to conclude that it would be more appropriate to opt for point 2 of box (c) of the form. In contrast, mention may be made of non-custodial sentences in box (f) of the form.

75.

Thus, where the additional penalty and the main sentence constitute an inseparable whole, ( 42 ) imposed by the same judicial decision, and it may deprive the person concerned of his liberty, it appears to me that the additional penalty satisfies the concept of a ‘penalty imposed’ within the meaning of Article 8(1)(f). The fact that the form of its execution is not yet known is not sufficient on its own to exempt the issuing Member State from the requirement to inform the executing Member State about it. I observe at this point that the scenario in which the exact length of that penalty is not known in advance appears to be envisaged in the Handbook, which provides in relation to the completion of box (c) of the form in the annex to the Framework Decision as follows: ‘in cases where a custodial sentence or detention order has been made, the period of the detention order may be indefinite, e.g. life imprisonment or a sentence involving psychiatric care’. ( 43 )

76.

In any event, the Belgian Government confirmed at the hearing that it is the practice of that Member State to mention the additional penalty in point 2 of box (c) of the form in the annex to the Framework Decision, and that an additional penalty such as that at issue in the main proceedings is one of the factors to be mentioned in that box.

77.

I therefore propose that the Court answer the first question to the effect that an additional penalty, such as that at issue in the present case, must be mentioned in point 2 of box (c) of the European arrest warrant, in accordance with Article 8(1)(f) of the Framework Decision.

78.

The second and third questions appear to me to be closely linked and have been raised in accordance with whether the first question is answered in the affirmative or the negative. The referring court is essentially asking for clarification on the possibility of continuing to detain IK in execution of the additional penalty, depending on whether the Court considers that it is sufficient for the European arrest warrant to mention only the main sentence or whether it finds that the additional penalty should also have been mentioned in the European arrest warrant.

79.

I have already explained in my answer to the first question that an additional penalty, such as that in question in the present case, must be mentioned in the European arrest warrant, in accordance with the requirements of Article 8(1)(f) of the Framework Decision. It therefore does not appear to me to be necessary to explore the hypothesis of the second question raised before the Court. However, for the sake of completeness I note that if the Court were to find that it is not necessary to mention, in the European arrest warrant, an additional penalty such as that in question in the main proceedings, I do not see how that failure to mention it could prevent the execution of that penalty.

80.

I now turn to the question concerning the consequences of failure to mention the additional sentence in the European arrest warrant for the deprivation of liberty of the person concerned in execution of that penalty.

81.

In that regard, I emphasise at the outset that, under the system of judicial cooperation established by the Framework Decision, the Member States remain in control of their national criminal law as regards inter alia the definition of offences, criminal prosecutions, penalties imposed and their execution.

82.

The scope of the European arrest warrant is clearly described and delimited in Article 1(1) of the Framework Decision: the arrest and surrender of a requested person. The legal effects of that judicial decision are likewise limited to that person’s arrest and surrender.

83.

The process is a ‘loop’ which begins when the European arrest warrant is issued pursuant to Article 8 of the Framework Decision and continues with its transmission (Articles 9 and 10), the arrest of the requested person by the executing Member State, the provision of information to the requested person and a possible hearing of that person (Articles 11, 14 and 19), his detention or provisional release (Article 12), and the surrender decision together with its notification (Articles 15 to 18 and 22). That ‘loop’ is thus closed on execution of the European arrest warrant, which is effected by the surrender of the person concerned (Articles 23 to 25).

84.

In my view, the effects of that process cannot extend beyond the ambit or objective of the Framework Decision, that is to say the surrender of the requested person. Any effects of that process which persist after the surrender are clearly defined in Chapter 3 of the Framework Decision. They include the principle of specificity, which I explored in point 49 et seq. above, and certain limitations on the possibility of surrender or subsequent extradition.

85.

The consequences of the failure to mention the existence of an additional penalty in the European arrest warrant should be determined in the light of the foregoing.

86.

First, I stress that the failure to mention that penalty in no way affects the validity of the European arrest warrant.

87.

The concept of an ‘invalid’ European arrest warrant is not envisaged in the Framework Decision. It was introduced by case-law, namely the judgment in Bob-Dogi, in a very specific context. ( 44 )

88.

The present case differs from Bob-Dogi, in which the Court held that failure to comply with a requirement as to lawfulness which must be observed if the European arrest warrant is to be valid must, in principle, result in the executing judicial authority refusing to give effect to that arrest warrant. ( 45 )

89.

Thus, Bob-Dogi was concerned with the execution of a European arrest warrant based on that same warrant and not on a national arrest warrant or another national decision. The Court found that Article 8(1)(c) of the Framework Decision lays down a requirement as to lawfulness which must be observed if the European arrest warrant is to be valid; failure to comply with that requirement must, in principle, result in the executing judicial authority refusing to give effect to that warrant. However, before taking such action, that authority must, pursuant to Article 15(2) of the Framework Decision, ask the judicial authority of the issuing Member State to furnish all necessary supplementary information as a matter of urgency to enable the executing judicial authority to ascertain whether the fact that a European arrest warrant does not state whether there is a national arrest warrant may be explained by the fact that no separate national warrant was issued prior to the issue of the European arrest warrant or that such a warrant exists but was not mentioned. The executing judicial authority may refuse to give effect to a European arrest warrant only if there is actually no legal basis for that warrant, that is to say, in the case in question, that there is no national arrest warrant. ( 46 )

90.

In Bob-Dogi, the European arrest warrant had been issued for the purposes of surrender in order to conduct a criminal prosecution but there was no national decision forming the legal basis for that warrant. As Advocate General Bot emphasised, the case concerned the absence of a national legal basis which disqualifies the act from being a European arrest warrant rather than a formal irregularity that may be regularised by the use of the cooperation framework provided for in Article 15(2) of the Framework Decision. ( 47 )

91.

Two factors distinguish the present case from Bob-Dogi. First, the present case concerns a European arrest warrant issued for the purpose of executing a penalty, and it is apparent from the information submitted to the Court that that penalty was imposed in accordance with national law by national courts having jurisdiction by judgment of 1 February 2013. The enforceable judgment forming the legal basis of the European arrest warrant in question, pursuant to Article 8(1)(c) of the Framework Decision, therefore exists — it was, moreover, mentioned in point 2 of box (b) of the European arrest warrant. Second, the custodial sentence, which exceeds the threshold required by Article 2(1) of the Framework Decision, does indeed also exist. There is therefore no absence of a national legal basis as far as concerns the main sentence and the additional penalty.

92.

Furthermore, the irregularity consisting in the failure to mention the additional penalty is, as the Belgian Government explained at the hearing, an oversight on the part of the issuing authority (and one which, I venture to add, appears to me to be excusable enough given the difficulty in determining the exact nature of the additional penalty, as considered in point 69 et seq. above, and the confusion which arose at the hearing regarding the appropriate box in which to mention it). That formal error in no way invalidates the existence of the necessary national legal basis. Furthermore, it could easily have been corrected in the course of the surrender procedure if one of the parties involved in the procedure (namely, the issuing authority, the executing authority or the requested person) had noticed it.

93.

That irregularity does not therefore affect the validity of the European arrest warrant and cannot constitute a reason for refusing to give effect to it.

94.

Second, I would observe that the failure to provide that information also cannot constitute a ground for non-execution of the European arrest warrant.

95.

Article 1(2) of the Framework Decision implements the principle of mutual recognition. It lays down the rule that Member States are required to execute any European arrest warrant on the basis of that principle and in accordance with the provisions of the Framework Decision. Executing judicial authorities may therefore, in principle, refuse to execute such a warrant only on the grounds for non-exhaustion exhaustively listed in the Framework Decision. Accordingly, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly. Thus, the Framework Decision explicitly states the grounds for mandatory non-execution of a European arrest warrant (Article 3), the grounds for optional non-execution (Articles 4 and 4a), and the guarantees to be given by the issuing Member State in particular cases (Article 5). ( 48 )

96.

It must be observed that failure to indicate the existence of an additional penalty in the European arrest warrant is not one of the grounds for non-execution listed in Articles 3, 4 and 4a of the Framework Decision; nor does it fall within the scope of Article 5 of the Framework Decision.

97.

In that context, and since it has been established that failure to mention the additional penalty in the European arrest warrant does not constitute an irregularity affecting the validity of that warrant or a ground for non-execution, what should be the consequences, if any, of such an irregularity?

98.

In order to answer that question, account must be taken of the two-fold objective behind the requirement to state the penalty imposed in the European arrest warrant.

99.

First, the aim is to provide the executing Member State with the information necessary for the surrender of the person concerned and to enable it to review that warrant (even if that review is minimal). The indication of the penalty thus serves to establish that the warrant falls within the scope of the Framework Decision, that is to say that the penalty imposed deprives the person concerned of his liberty and is greater than four months, in accordance with Article 2(1) of the Framework Decision. ( 49 ) It also serves to ensure compliance with the guarantee laid down in Article 5(2) of the Framework Decision regarding custodial life sentences and lifetime detention orders.

100.

The second goal is to ensure that the rights of the requested person are respected. Under Article 11(1) of the Framework Decision, that person is entitled to be informed of the European arrest warrant and of its contents and to consent or refuse to consent to his surrender.

101.

In order to achieve those objectives, the system established by the Framework Decision provides for procedures in cases where information is not provided or the information provided is incomplete. Those procedures are available to the various parties involved in the surrender procedure, that is to say the issuing Member State, the executing Member State and the requested person, so as to ensure that the respective prerogatives or rights of each of them are observed by means of a ‘review’, which is thus intended to be multilateral, in order to avoid compromising the effectiveness of the system.

102.

Accordingly, pursuant to Article 15(3) of the Framework Decision, the issuing Member State may at any time, and on its own initiative, forward any additional useful information to the executing judicial authority.

103.

For its part, the executing Member State has the power, under Article 15(2) of the Framework Decision, where it finds that the information communicated by the issuing Member State is insufficient or incomplete, to request that supplementary information be furnished which the executing Member State considers necessary to enable it to take a decision on the surrender of the person concerned. ( 50 ) This communication between the issuing and executing authorities is an essential element of the judicial cooperation on which the system of mutual recognition is based. ( 51 )

104.

I note that, within the simplified system of surrender of requested persons established by the Framework Decision, the content of the European arrest warrant provided for in Article 8(1) thereof consists of information intended to provide the minimum and sufficient formal information to enable the executing judicial authorities to give effect to the European arrest warrant swiftly by adopting their decision on the surrender as a matter of urgency. Recourse may be had to the procedure provided for in Article 15(2) only as a last resort in cases in which the executing judicial authority considers that it does not have all the necessary official evidence. ( 52 )

105.

The requested person’s situation is particularly important, especially if the competent issuing and executing authorities have not noted (and perhaps could not have noted) such an irregularity.

106.

That person enjoys guarantees throughout the surrender procedure which enable him to assert his rights and rely on any irregularities in the European arrest warrant.

107.

I observe in this connection that, while the obligations imposed on the Member States by the Framework Decision relate to matters that are essentially procedural, that does not mean that the legislature failed to take fundamental and human rights into account when enacting the Framework Decision. On the contrary: it did so in a number of ways. ( 53 )

108.

Thus, the Framework Decision includes express references to those rights. This is clear, for example, from recitals 10, 12 and 13 of the Framework Decision. More fundamentally, Article 1(3) of the Framework Decision provides that that decision is not to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU. In addition, compliance with the Charter of Fundamental Rights of the European Union is binding, as is stated in Article 51(1) of the Charter, on the Member States and, consequently, on their courts, when they are implementing EU law. That is the case when the issuing judicial authority and the executing judicial authority are applying the provisions of national law adopted to transpose the Framework Decision. ( 54 )

109.

The Framework Decision also includes a number of specific provisions intended to protect the rights of the requested person. In the context of the surrender procedure, the European legislature has ensured that the right to be heard will be observed in the executing Member State in such a way as not to compromise the effectiveness of the European arrest warrant system. ( 55 )

110.

Thus, the requested person is entitled, under Article 11(1) of the Framework Decision, to be informed of the European arrest warrant and of its contents. In addition, Articles 11(2) and 13(2) of the Framework Decision provide that the requested person has a right to be assisted by a legal counsel, in particular where he consents to his surrender and, if appropriate, renounces entitlement to the speciality rule. Furthermore, pursuant to Articles 14 and 19 of the Framework Decision, where the requested person does not consent to his surrender and is the subject of a European arrest warrant issued for the purposes of conducting a criminal prosecution, he is entitled to be heard by the executing judicial authority under the conditions determined by mutual agreement with the issuing judicial authority. ( 56 )

111.

It is clear from the information submitted to the Court that IK was aware of the sentence and its length, including the additional penalty. Indeed, his lawyer stated at the hearing that he did not consent to his surrender, which is why his surrender was decided by the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), but that he did not state before that court that there was no mention of the additional sentence in the European arrest warrant.

112.

IK thus had every opportunity to argue the invalidity of the European arrest warrant during the surrender procedure. Furthermore, aside from a few general references to rights under Article 6 ECHR and Article 48(2) of the Charter of Fundamental Rights of the European Union, IK made no mention, either in his written observations or at the hearing, of any infringement whatsoever of his fundamental rights during the surrender procedure or even outside that procedure.

113.

I return now to the image of the loop which I used above (at point 83) to describe the scope and the effects of the European arrest warrant and of the surrender procedure.

114.

In the present case, when that loop was opened with the issue of the European arrest warrant for IK’s surrender and he was arrested, IK had the opportunity to argue that the additional penalty was not mentioned in the European arrest warrant. IK having failed to take such action during the procedure for the execution of the European arrest warrant, the loop closed with the execution of that warrant and his surrender to the Belgian authorities. Accordingly, IK can no longer rely on that substantive irregularity three years later in the course of proceedings which have no connection to the European arrest warrant and involve determining arrangements for the execution of the additional penalty.

115.

Any finding to the contrary would go beyond the limits of the surrender procedure and the scope of the judicial decision enshrined in the European arrest warrant.

116.

In the same vein, I also reject the Commission’s argument that the issuing judicial authority can still inform the executing judicial authority of the existence of the additional penalty using the procedure provided for in Article 15(2) and (3) of the Framework Decision.

117.

In my view, that solution is at odds with both the system of surrender established by the Framework Decision and the wording and objective of Article 15(2) and (3).

118.

The title of Article 15 is clear: this supplementary information procedure is applicable in the case of adopting the surrender decision. Furthermore, that article is inserted in Chapter 2 of the Framework Decision, entitled ‘Surrender procedure’. Thus, the objective of that provision is to enable the executing judicial authority to obtain the information necessary to allow the surrender. Extending that procedure beyond the surrender procedure would disregard the fact that the system established by the Framework Decision (i) is limited in scope by Article 1(1) thereof to the arrest and surrender of the requested person and (ii) is intended to be swift and effective. Continuing potential exchanges between issuing and executing judicial authorities even years after the execution of a European arrest warrant appears to me to serve no purpose and potentially to be harmful to the effectiveness of the system.

119.

It follows from the foregoing that the system established by the Framework Decision does not allow the execution of an additional penalty to be called into question because that penalty was not mentioned in a European arrest warrant which has been executed.

120.

For the sake of completeness, I would add that the argument put to the Court that, if the European arrest warrant has been issued in relation to the main sentence only and the surrender decision relates solely to that sentence, only that sentence may be executed by the issuing State, has no basis in the Framework Decision. It appears to me to be rooted in an approach based on extradition and national sovereignty under which the requesting State cannot go beyond the scope of the consent given by the requested State. However, in the context of the area of freedom, security and justice, permeated by mutual trust, it is no longer a case of initiating contact between two sovereign States, the requester and the requested, each of which acts from an independent position. ( 57 ) On the contrary, the current system involves cooperation in good faith with a view to achieving the objectives of the Framework Directive, which converge in the swift and effective surrender of requested persons.

121.

I therefore propose that the second and third questions put to the Court should be answered to the effect that failure to mention an additional penalty (such as that at issue in the present case) in the European arrest warrant on the basis of which the person concerned was surrendered cannot prevent the execution of that penalty where it was imposed in accordance with the relevant national provisions.

122.

On those grounds, I propose that the Court answer the questions referred by the Hof van Cassatie (Court of Cassation, Belgium) as follows: