i. Postponement of removal
Although the court may decide to surrender, there are two circumstances in which the surrender may be temporarily postponed.
Firstly, Article 23(4) EAW FD provides for where it would manifestly endanger the requested person’s life or health. You should rely on this ground where your client is suffering from an illness that cannot be properly treated in the Issuing State, or moving them would aggravate their illness. You may have already relied on these circumstances under Article 4 CFR as an argument for permanent refusal. Article 23(4) provides an alternative by which to at least delay the surrender. You will need expert medical evidence to support this argument, and an ISL to assist in obtaining evidence concerning treatment in the Issuing State.
Secondly, Article 24 EAW FD allows for postponement where the requested person is already being prosecuted or is serving a sentence for a different criminal act to the EAW in the Executing State. The Executing and Issuing State judicial authorities may agree for a temporary surrender in the alternative, the terms of which are for them to agree. This may be demanded by the Issuing State if there is some urgency in progressing the case for which the EAW has been issued. You will need to ensure the most favourable position for your client in terms of prison conditions, deduction of prison days from the relevant sentence, their family life, and in which jurisdiction it is in fact better that proceedings progress in order to ensure a fair trial. You should consult with both your client and the ISL before making submissions to the Executing State court.
For either scenario, the requested person must be surrendered as soon as the grounds of postponement have ceased.
ii. Execution (time-limit for removal)
According to Article 23(1) EAW FD the requested person should be surrendered as soon as possible on a date that is agreed between the Executing State and the Issuing State. In any event, a requested person should be surrendered no later than 10 days after a final decision is taken on the execution of the EAW.
If the surrender of the requested person is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities are to immediately contact one another and agree on a new surrender date. Removal must then take place within 10 days of the new date agreed. This often occurs if arrangements cannot be made for the removal of the requested person because no flights are available.
If Article 23(4) EAW FD has been applied (see above), the executing judicial authority must immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.
iii. Non Execution of removal
If the time limits imposed for removal are not met, and no alternative arrangements have been made, a requested person in detention in the Executing State must be released (Article 23(5) EAW FD). You should request immediate release, should this not be ordered by the authorities.
Notwithstanding the CJEU has ruled that in certain circumstances the person may be kept in detention. The CJEU has ruled that where it was not possible to surrender the person on the 10 days following the decision, or on the first new date, Article 23 (3) requires the Issuing and Executing Authorities to agree on a second new date. Article 23 (3) will apply (i.e. the second new date has to be within 10 days of the first new date) and if removal of the person was impeded due to reasons de force majeure, the person may be kept in detention, as long as not for an excessive period (‘only in so far as the surrender procedure has been carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the custody is not excessive. In order to ensure that that is indeed the case, that authority will be required to carry out a concrete review of the situation at issue, taking account of all of the relevant factors’ – C-640/15, Tomas Vilkas (25th January 2017), §43). Force majeure may exist in circumstances such as ‘on account of the repeated resistance of that person, in so far as, on account of exceptional circumstances, that resistance could not have been foreseen by those authorities and the consequences of the resistance for the surrender could not have been avoided in spite of the exercise of all due care by those authorities’, which is for the Executing court to ascertain.
This applies even where the time limits of Article 15 (1) have expired, but if there was no situation of force majeure, then the person has to be released from custody pending his or her removal (C-640/15, Tomas Vilkas (25th January 2017), §§39, 66, 72-73).