Article 3 EAW FD provides mandatory grounds upon which the Executing State court must refuse to execute an EAW. These mandatory grounds are as follows:

1. Amnesty in the executing Member State;
2. Ne bis in idem pursuant to Article 54 Convention Implementing the Schengen Agreement (CISA);
3. Beneath age of criminal liability at the time of the offence

Article 3(1) will be applicable only if the Executing State has jurisdiction to prosecute the offence under national criminal law. In that event, should the offence be covered by amnesty according to national law, you should invoke this refusal ground.

Article 3(3) applies irrespective of whether the Executing State has jurisdiction over the circumstances underlying the EAW. It will apply, for example, if a person is arrested in Portugal, where the age of criminal responsibility is 18, pursuant to an English EAW for criminal prosecution for an offence committed when he was 14 years old.

These issues may also arise in consideration of the laws of the Issuing State, since the EAW, as noted above, presupposes the existence of a valid national arrest warrant. But the mandatory grounds only refer to Executing State laws. An argument based on Issuing State amnesty or liability must be raised with the Issuing State authority by the ISL in the substantive criminal proceedings (see below section H).

Article 3(2) provides for an EU-wide mandatory refusal ground regulated solely by EU law. It protects the fundamental legal principle that a person cannot be tried twice for the same offence: if the requested person has been subject to a final decision in criminal proceedings for the same acts in another EU Member State, surrender must be refused, pursuant to Article 54 CISA and Article 50 Charter of Fundamental Rights of the European Union (“CFR”). [4] The rule is subject to the proviso that, where there has been a sentence, the sentence has been served or is currently being served, or may no longer be executed under the law of the sentencing Member State.

There is extensive CJEU case law on the topic, which should be taken into account when dealing with EAW cases.

i. Ne bis in idem (Article 3(2) EAW FD and 54 CISA) – definition

In order to invoke this refusal ground you must verify with your client, the ISL and other authorities or defence lawyers in the relevant Member State(s) that:

• The case relates to your client;
• The case relates to the same offence;
• A final decision has been made in an EU Member State;
• Where your client has been convicted, the “execution condition” has been fulfilled.

The “same person”

The “same person” will obviously be the same individual person, but could also relate to a legal person, which may have subsidiaries and other entities.

The “same offence”

Through its jurisprudence, the CJEU has established an autonomous EU law definition of “the same acts” based on the factual approach (idem factum), as opposed to the legal approach (idem crimen). This means that the concept “has been interpreted as referring only to the nature of the acts, encompassing a set of concrete circumstances which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected: Case C-261/09 Gaetano Mantello, Grand Chamber (16^th November 2010), citing Van Esboreck and Van Straaten.
Whether there is an inextricable link between factual circumstances has been assessed through their connection in time, space and subject matter:
Case C-436/04 Van Esbroeck (9^th March 2006) at [38];
Case C-467/04 Gasparini and Others (28^th September 2006) at [56];
Case C-150/05 Van Straaten First Chamber (28th September 2006) at [52];
Case C-288/05 Kretzinger (18th July 2007) at [34];
Case C-367/05 Kraaijenbrink (18th July 2007) at [27][5].

A final decision in an EU Member State

Firstly, it is necessary that two or more criminal proceedings are at stake (in the Issuing State and another Member State). The concept “criminal proceedings” is a material one and may go beyond what is labelled as “criminal” in the national laws of Member States. The CJEU has explicitly adopted the ECtHR case law (Engel criteria) – Engel and Others v. the Netherlands, App. No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, (judgment 8th June 1976) at [80-2], followed in Sergey Zolotukhin v. Russia, App. No. 14939/03, (10th February 2009) at [52-3] – Case C-617/10 Åklagaren v Hans Åkerberg Fransson, Grand Chamber (26th February 2013),  at [35]:

“The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned is liable to incur.”

Secondly, a final decision need not necessarily be a court decision but must constitute the exercise of the ius puniendi of a Member State, which presupposes: (i) that the state had jurisdiction to adjudicate in the first place; (ii) the absence of voluntary relinquishment of jurisdiction over the acts; (iii) the application of the national criminal justice system, either by a standard trial and judgment, or by alternative means. The decision must follow a determination of the “merits” of the case. The judgment may be based on the merits of the case stricto sensu or on a lack of evidence (Van Straaten), or statute limitation (Gasparini and Others) and may have been imposed in absentia: Case C-297/07 Bourquain (11^th December 2008). [6]

A decision which does not, under the national law of the deciding Member State, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another Member State: Case C-398/12 M. (5th June 2014) and  Case C-486/14 Kossowski (29^th June 2016).

Execution condition

There are three conditions of enforcement relevant to the execution condition: (1) the sentence has been served; (2) is currently being served; or (3) may no longer be executed under the law of the sentencing Member State.

If the sentence has been fully served, it is considered to have been enforced. For example, the payment of a fine by a person also sentenced to a custodial sentence that has not been served in the deciding Member State is not sufficient to consider that the penalty has been enforced (nor that it is ‘actually in the process of being enforced’) because the sentence is not fully served: Case 129/14 PPU Zoran Spasic (27th May 2014).

When does a sentence start to be enforced for the purposes of ‘being served’? The CJEU has confirmed that the sentence commences as soon as it becomes enforceable, and that this includes any probation period. Once the probation period has come to an end, the sentence is to be regarded as having been enforced (Kretzinger).

If the penalty is actually being enforced in the deciding Member State, no prosecution can be brought in another Member State. This means that it might be disproportionate under EU law for a Member State to start or continue a second set of proceedings for the same acts where the Member State making the first decision has not yet started to enforce it, but is in the process of doing so. Should this circumstance occur, you should consider whether an attempt to activate the execution of the first decision is favourable to your client being prosecuted for the second time in the Issuing State.

The final condition, that the sentence can no longer be enforced in the deciding Member State, includes pardon or amnesty, as well as statute limitation (Bourquain).

The execution condition set out in Article 54 CISA has been held to be compatible with Article 50 CFR (Zoran Spasic at [65-74]).

ii. Ne bis in idem (Article 3(2) EAW FD and 54 CISA) – how to invoke it

You should ask your client whether they have already been subject to criminal proceedings in another Member State for the same offence.

If you have reason to believe that this is the case, you should verify whether the conditions set out in Article 54 CISA and Article 3(2) EAW FD are satisfied. You should ask an ISL or a lawyer in the relevant Member State to provide you with copies of the relevant case materials, as well as with an expert opinion of the “final” character of the decision, if necessary.

In certain cases you need only provide a copy of the indictment and final decision of that Member State to the Executing State court in order to prove this refusal ground. In other cases the final decision might not specify the facts of the case or the motives for closing it and it might be necessary to add further case materials to your submissions.

Should you have difficulties in obtaining these materials, you should request that the Executing Authority obtain such materials from the deciding Member State (Article 15(2) EAW FD and Article 57 CISA), directly or through a further request to Eurojust (see below section J on Eurojust).

iii. Ne bis in idem (Article 3(2) EAW FD and 54 CISA) – what to do after a decision not to surrender

If surrender is refused pursuant to Article 3(2) EAW FD you should request that the ISL lodge a request for the EAW to be withdrawn in the Issuing State and for criminal proceedings in that State to be closed, according to Articles 54 CISA and 50 CFR. This will create a bar to prosecution in Issuing State national criminal proceedings, irrespective of whether that national law has explicit provision on the matter.

This request should include the evidence used in the EAW proceedings of a final decision in the deciding Member State.

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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.

 

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[4] The CJEU has clarified that “an interpretation of that concept given in the context of the CISA is equally valid for the purposes of the Framework Decision”- Case C-261/09 Gaetano Mantello, Grand Chamber (16^th November 2010)

[5] The meaning of “subject-matter” is not very clear. The wording in the original language of Van Esbroeck states “verbonden zijn naar tijd en plaats en wat het voorwerp ervan betreft”.

[6] About trials in absentia see below section E.2 viii. Article 4A Trial in absentia.