E.2 Optional Refusal Grounds

Article 4 of the Framework Decision provides optional grounds for refusing to execute an EAW.  Upon implementation, Member States could choose to either incorporate some or all of the optional grounds into national law as mandatory grounds of refusal or leave the decision to refuse surrender to the discretion of the Executing State court. Both routes have been applied across the Member States.

The optional grounds are as follows:

  1. Dual criminality
  2. Precedence of domestic prosecution
  3. Domestic decision not to prosecute
  4. Limitation due to the passage of time
  5. Ne bis in idem in non-EU (“third”) states
  6. Nationality/residence
  7. Territoriality
  8. Trials in absentia

i. Article 4(1) – Dual Criminality

Generally, if the conduct on which the EAW is based does not constitute an offence in the Executing State, then that Member State should refuse to execute the EAW.

Dual criminality is assessed by verifying whether the factual elements underlying the offence, as described in the EAW, would also be subject to a criminal sanction in the Executing State if they had taken place there. In this analysis it is irrelevant whether the laws infringed concern a legal interest of the Issuing State, but rather whether, if the conduct had been committed in the territory of the Executing State, ‘it would be found that a similar interest, protected under the national law of that State, had been infringed’ (C-289/15, Joszef Grundza (11th January 2017) , §§47, 49). This case law refers to FD 2008/909/JHA but will be highly likely be applied in EAW proceedings.

There is an exception, however for 32 categories of offence, for which there is no requirement that the act is a criminal offence in both countries. The only requirement for these categories is that the offence must be punishable by at least 3 years of imprisonment in the issuing country. The CJEU has held that “in so far as it dispenses with verification of the requirement of double criminality in respect of the offences listed in that provision, Article 2(2) of the Framework Decision is not invalid on the ground that it infringes the principle of the legality of criminal offences and penalties” and “is not invalid inasmuch as it does not breach Article 6(2) TEU or, more specifically, the principle of legality of criminal offences and penalties and the principle of equality and non-discrimination” (Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad at [49-50], [52-54] and [57-60]).

The list of categories of offences is as follows:

  • Arson;
  • Computer-related crime;
  • Corruption;
  • Counterfeiting currency;
  • Counterfeiting and piracy of products;
  • Crimes within the jurisdiction of the International Criminal Court;
  • Environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties;
  • Facilitation of unauthorised entry and residence;
  • Forgery of means of payment;
  • Forgery of administrative documents and trafficking therein;
  • Fraud, including fraud affecting the financial interests of the European Union;
  • Illicit trade in human organs and tissue;
  • Illicit trafficking in cultural goods, including antiques and works of art;
  • Illicit trafficking in hormonal substances and other growth promoters;
  • Illicit trafficking in narcotic drugs and psychotropic substances;
  • Illicit trafficking in nuclear or radioactive materials;
  • Illicit trafficking in weapons, munitions and explosives;
  • Kidnapping, illegal restraint and hostage-taking;
  • Laundering of the proceeds of crime;
  • Murder, grievous bodily injury;
  • Organised or armed robbery;
  • Participation in a criminal organisation;
  • Racism and xenophobia;
  • Rape;
  • Racketeering and extortion;
  • Sabotage;
  • Sexual exploitation of children and child pornography;
  • Swindling;
  • Terrorism;
  • Trafficking in human beings;
  • Trafficking in stolen vehicles; or
  • Unlawful seizure of aircraft and ships.

The Issuing State will have indicated in the EAW if it considers that the offence falls within one of these categories, and its assessment will bind the Executing State court. However you may assess whether the conduct described in the EAW is capable of falling within the category in question; if there is a manifest inconsistency, depending on the national practice you may be able to argue that the EAW is invalid (see section D.1 above) or that the dual criminality check should be performed.

ii. Article 4(2) – Precedence of domestic prosecution

If the requested person is already being prosecuted in the Executing State for the same act, then it may be possible to  invoke this optional ground for refusal.

You may have to persuade your Executing Authority that your jurisdiction is best placed to prosecute and that this refusal ground should apply (see section J on conflicts of jurisdiction).

You should also consider whether national law prevents your State from waiving jurisdiction, which would make this a mandatory refusal ground.

iii. Article 4(3) – Domestic decision not to prosecute

Article 4(3) EAW FD states that surrender may be refused “where the judicial authorities of the Executing State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings.”

This provision will apply in cases where, despite there being (or having been) proceedings for the same acts in the Executing State: i) there is no final decision; or ii) there is a final decision but it does not fall within Articles 54 CISA and 3(2) EAW FD (see section E.1 above for a definition of what falls under these provisions).

Examples that could fall under this provision are:

  • The prosecution authorities exercised their discretion under national law not to prosecute;
  • A case was closed because the person cooperated with the police and was exempted from prosecution;
  • There is a final conviction in the Executing State, but it has not been enforced yet and may still be enforced.

If your national law protects people in these situations from further criminal prosecution for the same acts, you should argue that this refusal ground must be applied.

iv. Article 4(4) – Statute of limitation

Where the Executing State has jurisdiction to adjudicate the facts underlying the EAW and the prosecution of the offence would be statute-barred in the Executing State, this ground provides another avenue to refuse to execute the EAW.

v. Article 4(5) – Ne bis in idem in non-EU (“third”) states

If your national law in general protects people from further criminal prosecution for the same acts where there has been a decision in a third state, you should argue that this refusal ground must be applied. The same conditions and process as set out in E1 will apply.

You should also check whether your Member State has any treaty arrangements with the relevant third state whereby it recognises the ne bis in idem effect of such decisions. If so, you should argue that this refusal ground must be applied.

vi. Article 4(6) – National or resident of the Executing State

This provides a ground for an Executing State to refuse execution of an EAW which has been issued for the purpose of enforcing a custodial sentence, where the requested person is a national or resident of the Executing State. The CJEU has confirmed that it is permissible for Member States to restrict the availability of this provision either to nationals or those lawfully resident in the Member State for at least five years: Case C-123/08 Wolzenburg [2009] ECR I-9621.
A person is ‘resident’ for the purposes of this ground of refusal if he has established his actual residence there, is living there and, following a stable period of residence, he has acquired connections (such as family or employment) to the Executing State similar to those resulting from nationality: Case C-66/08 Kosłowski, Grand Chamber (17th July 2008).

Note, however, that the Framework Decision requires the Executing State to assume responsibility for execution of the sentence or detention order in accordance with its domestic law in place of the Issuing State. Therefore you will need to consider which jurisdiction has the most favourable sentencing regime before seeking that this be applied.  The execution of foreign judgments is regulated by Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (27th November 2008) (Article 25).

vii. Article 4(7) – Territoriality

Article 4(7)(a) provides a ground of refusal where the offence for which the person is sought is committed either in whole or in part in the territory of the Executing State.

Article 4(7)(b) deals with extra-territorial offences, and allows an Executing State to refuse execution where the offence is committed outwith the territory of the Issuing State and the Executing State has no law to allow that offence to be prosecuted in the same circumstances.

viii. Article 4A – Trials in absentia

Framework Decision 2009/299/JHA (26th February 2009) [7] is the only legislation so far to have amended the EAW FD. The Framework Decision concerns decisions rendered without the requested person having been present and lays down the conditions upon which a further optional refusal ground to a conviction EAW can be based. It recognises that the right to be present at one’s trial is an integral part of the right to a fair trial protected by Article 6 ECHR.
The amended conditions comply with the Charter of Fundamental Rights, and are the only basis upon which an in absentia decision can be refused; no stronger national constitutional principles may be invoked:  Case C-399/11 Melloni (26th February 2013). The Framework Decision inserts Article 4a into the EAW FD, deleting the previous requirement for a guarantee under Article 5 EAW FD that a retrial could be sought. Article 4a enhances the procedural safeguards of the requested person.

The EAW may be refused unless the requested person:

  • In due time was informed in person of the scheduled date and time of the trial, or “actually received” official notification in such a manner that it was “unequivocally established” that he or she knew about it, and that a determination could be made in his or her absence; or
  • Having been so informed, instructed a lawyer to appear in his or her defence, who did represent them; or
  • Having been convicted, was served with the decision and informed about the right to a retrial, and expressly accepted the conviction or did not request a retrial within the timeframe specified; or
  • Having been convicted, has not yet been informed of the right to a retrial, but will be served with the decision and notice of the right as soon as they are surrendered.

Article 4a specifies that a retrial, or appeal, must enable the merits of the case, including fresh evidence, to be re-examined, during which the requested person can participate and which may result in an acquittal.

In in absentia cases, the Issuing Judicial Authority may assert that a condition of Article 4a(1) is satisfied, such that the requested person may be surrendered despite their absence from trial. The CJEU has held that Article 4a(1) contains an autonomous concept of EU law and that it cannot be ‘unequivocally established’ that a person was aware of the date and place of their trial where the summons was served upon a third person (e.g. their grandfather), in the absence of any conclusive evidence that the person himself received the required notification (see Case C-108/16 PPU Dworzecki (24th May 2016)). The same judgment underlined, however, that where the Article 4(1) exceptions are inapplicable, the residual refusal ground is merely optional, such that an Executing Judicial Authority might nevertheless be able to satisfy itself that the requested person’s defence rights would not be infringed by surrender in such circumstances, e.g. if it was apparent that they had deliberately avoided service and would have a right to apply for a retrial once in the Issuing State, on the basis that they had not received service.

At the time of publication, there are references for preliminary rulings pending before the CJEU as to the question whether Article 4a applies to proceedings other than the substantive ‘trial’, namely: appeal proceedings where the original sentence is altered, suspended and/or activated (Case C-376/17 Lipinski); and proceedings aggregating separate custodial sentences or varying an aggregate sentence, or appeal proceedings involving an examination of the merits resulting in a new sentence or confirmation of a sentence at first instance (Case C-271/17 Zdziaszek). You may need to take specific instructions from your client as to his or her knowledge of and presence or representation at any appeal proceedings depending on the rulings in these cases.

If the EAW is for the execution of a sentence, you should ask your client if they were present at their trial or any of the first three conditions are satisfied. If not, the fourth condition effectively replicates the guarantee previously required by Article 5 EAW FD and you should consult with your client about whether to seek refusal of the EAW.

In the first instance, you should ascertain whether the judgment rendered in absentia is final, i.e. the deadline for appeal or retrial has expired. If this is not the case, you should also ascertain whether your client was, or would have been, placed in pre-trial detention pending the outcome of the case. If this has not been ordered you should seek to oppose surrender on the ground that the EAW is disproportionate, and mutual legal assistance or a European Investigation Order should have been used by the Issuing State instead.

Article 4a(2) enables the requested person to have sight of the decision resulting in their conviction prior to deciding whether to consent to surrender. You should assist in obtaining a copy of this in order to advise fully on whether the requested person should consent to surrender. You should also ask the ISL for evidence as to whether a full retrial is possible in the Issuing State, and if not, seek refusal on this basis (see section H below on the role of the ISL).

Directive 2016/343/EU (9th March 2016) has since further regulated the right to a retrial in the Member States, specifying that a new trial or other legal remedy must allow effective participation and exercise of defence rights (Article 9). The CJEU has yet to comment on the relationship between this provision and Article 4a of the EAW FD, but it appears that Article 9 confers an enforceable right to a new trial for a person whose extradition is required under Article 4a(1)(d) (i.e. who was not present at trial but will have the right to a new trial). It will be prudent to explore with the ISL whether the ‘new trial’ procedure available in the Issuing State offers full the full guarantees of Article 9, particularly in light of further interpretation of that provision by the CJEU after the Directive’s transposition deadline on 1 April 2018.

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If any of these grounds are present in your case, you should consider with your client refusing execution of the warrant and making an application for the warrant to be discharged on the basis of the relevant ground.

Since these grounds for refusal may be optional, and at the discretion of the court in your Member State, you will have to convince the court that it is appropriate to refuse surrender in your case (for example, you may bolster your argument by stating that there is a better chance of rehabilitation in the Executing State, or because it is more appropriate to prosecute there – see sections below on fundamental rights and section J on conflicts of jurisdiction).

 

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[7] Council Framework Decision 2009/299/JHA amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. In the future, Articles 8 and 9 of Directive 2016/343/EU will also become relevant – Directive 2016/343/EU of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, which must be implemented by 1st April 2018.