i. After a decision to surrender
After a decision on the execution of the EAW, one of the tasks in the case of a surrender decision is to ensure that specialty is not violated. You can also advise your client whether he should make a subsequent waiver of specialty (see above section D.3.i and section D.3.iii).
Another important task is to make sure that the detention period suffered in the Executing State is deducted from any sentence imposed following conviction, or the service of a sentence pursuant to a conviction EAW, in the Issuing State (Article 26 EAW FD). House arrest may be deductible pursuant to that provision, but the CJEU has decided that “[…] measures such as a nine-hour night-time curfew, in conjunction with the monitoring of the person concerned 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, in principle, having regard to the type, duration, effects and manner of implementation of all those measures, so restrictive as to give rise to a deprivation of liberty comparable to that arising from imprisonment and thus to be classified as ‘detention’ within the meaning of that provision, which it is nevertheless for the referring court to ascertain”: Case C-294/16 PPU JZ v Prokuratura Rejonowa Łódź — Śródmieście, (28th July 2016).
ESL and ISL should communicate as to what measures are imposed during the surrender procedure and whether these will be taken into account in the Issuing State, both to ensure that the Executing Judicial Authority is appraised of any risk of excessive detention upon surrender and to ensure that any required deduction is duly made after surrender. In the CJEU’s approach, an objective assessment is required, so a rigid application of national law preventing the real nature of the measures imposed from being considered would be insufficient.
After the person has been surrendered, you should also ensure that INTERPOL or SIS II alerts have been deleted and, if not, make an application in the Issuing State or the CCF for this to take place (see below section I).
If your client has been surrendered and convicted to a prison sentence, where the client wishes it, you should request that he or she serves their sentence in the Executing State. If there was a guarantee in place, you should help your client avail themselves of the corresponding guarantee given by the Issuing State during the EAW proceedings (see above section F).
If you have discovered that there are multiple prosecutions in different Member States against your client for the same facts, and the conflict of jurisdiction has not been resolved during the EAW proceedings you should consider, together with the ESL and where applicable a lawyer in a third EU Member State, which is the most appropriate jurisdiction for your client to be prosecuted in (see below section J). As soon as there is a final decision in the Issuing State, it is the duty of the ISL to inform the lawyers of the other relevant Member States of that decision in order for them to ask for the proceedings in their respective states to be discontinued. Likewise, if a final decision is made in one of the other states, the ISL should, as soon as she becomes aware of the decision, lodge a request for proceedings to be discontinued in the Issuing State, pursuant to Article 54 CISA and Article 50 CFR (see section E.1).
ii. After a decision not to surrender
Your intervention as an ISL may be necessary for requesting the removal or flagging of a Schengen or Interpol Alert, or for finding out whether such alerts are in place (see section I).
If the Executing State has refused surrender, there is no obligation upon the Issuing State to withdraw the EAW and SIS II alert as a consequence and the person may be re-arrested in any other Member State. In your capacity as ISL you should check whether the underlying national warrant and/or the EAW could be revoked on national legal grounds, or whether they could be replaced by less coercive measures (see above section H.2 at ii).
If surrender is refused pursuant to Article 3(2) EAW FD you as ISL should lodge an application 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. These create a bar to prosecution that is directly applicable in national criminal proceedings, irrespective of whether your national law has explicit provision on the matter. This application should include evidence of the existence of a final decision in the other Member State. A lawyer in the deciding Member State can provide you with a copy of the decision and case materials, as well as with an expert opinion of the “final” character of the decision, if necessary.
If you have found out that there are multiple prosecutions in different Member States against your client for the same facts, and the conflict of jurisdiction has not been resolved during the EAW proceedings, the same process applies as in the case of a decision to surrender (see the preceding section and below section J). As soon as there is a final decision in the Issuing State, or if a final decision is made in one of the other states, the same process applies as in the case of a decision to surrender (see the preceding section and above section E.1).
iii. After the Issuing State withdraws or revokes an EAW
After the Issuing State has withdrawn or revoked an EAW, you should also ensure that INTERPOL or SIS II alerts have been deleted and, if not, make an application in the Issuing State or to the CCF in order to obtain their deletion (see below section I).
If you have discovered that detention of your client on the basis of the EAW was illegal or arbitrary and disproportionate (Article 6 CFR and 5 ECHR), you should consider whether it is appropriate and/or possible to claim for compensation (see Article 5(5) ECHR).
If you have discovered that there are multiple prosecutions in different Member States against your client for the same facts, and the conflict of jurisdiction has not been resolved during the EAW proceedings, the same process applies as in the case of a decision to surrender (see section H.3.i above and below section J). As soon as there is a final decision in the Issuing State, or if a final decision is made in one of the other states, the same process applies as in the case of a decision to surrender (see above section H.3.i and above section E.1).