After being charged for child abduction by the Crown Court at Maidstone (UK), Mr Jeremy fled to France, where he was arrested thanks to a European Arrest Warrant (EAW). Before the Bordeaux Court of Appeal, the man consented to his surrender to the UK authorities. However, he did not waive the speciality rule, which would prohibit British officials from adding charges not included in the EAW. Later on, the British authorities issued another EAW, connected to the facts of the first proceedings, but concerning a different offence (sexual activity with a child, notably the abducted child).
The Bordeaux Court of Appeal decided to consent to the extension of the EAW.
Mr Jeremy F therefore appealed the decision before the Cour de Cassation (French Supreme Court), which decided to refer a priority question of constitutionality to the Conseil Constitutionnel (French Constitutional Court) in relation to Article 695?46 of the French Code of Criminal Procedure. This provision does not grant any appeal with suspensive effect against the judgment extending the EAW. The Supreme Court raised concerns regarding its compatibility with, inter alia, the right to an effective judicial remedy, as guaranteed by the domestic constitution. The Conseil Constitutionnel decided to stay the proceedings and to ask the CJEU, in essence,
Whether Articles 27(4) and 28(3)(c) of the EAW Framework Decision must be interpreted as precluding Member States from providing for an appeal suspending execution of the decision of the judicial authority which consent to the extension of an EAW.
The reasoning of the CJEU can be divided into three main logical steps.
In the first place, after observing that the EAW Framework Decision does not make any provisions on the possibility to appeal with suspensive effect a decision on the extension of an EAW, the Court considered whether this entailed a violation of the right to an effective remedy set out in Article 47 of the Charter. The Court indeed stressed that this provision “is of special importance” (para 42) within the EAW system. It found that, in spite of the lack of the abovementioned possibility, the EAW Framework Decision ensures that warrants are attended by all the guarantees appropriate for decisions of such a kind; in particular, the entire surrender procedure is carried out under judicial supervision.
It also observed that, in cases of detention with a view to extradition, the ECtHR ? interpreting Article 5(4) ECHR, which provides for a lex specialis in relation to the more general requirements of Article 13 ECHR ? has held that, when the decision depriving a person of his liberty is made by a court at the close of judicial proceedings, the supervision required by Article 5(4) of the Convention is incorporated in the decision and that the Contracting States are not under a duty to set up a second level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release (see, respectively, ECtHR, judgment of 5 June 2012, Khodzhamberdiyev v. Russia, no. 64809/10, para. 103, and judgment of 4 March 2008, Marturana v. Italy, no. 63154/00, para. 110). The CJEU also recalled its own case law in the different field of procedures concerning the granting and withdrawing of the refugee status, where it has held that Council Directive 2005/85/EC, read in the light of the principle of effective judicial protection, affords an individual a right of access to a court but not to a number of levels of jurisdiction (see Case C?69/10 Samba Diouf EU:C:2011:524).
Thus, the Court affirmed that the provisions of the Framework Decision themselves already provide for a procedure that complies with the requirements of Article 47 CFR, regardless of the implementing methods chosen by the Member States (para. 47).
In the second place, the Court observed, however, that the circumstance that the EAW does not provide for a right of appeal with suspensive effect does not as such prevent the Member States from providing for such a right. National authorities are indeed left with the choice as to the specific manner of implementing the objectives pursued by the Framework Decision. In particular, the Courtobserved that recital 12 in the preamble points out that the Framework Decision does not prevent a Member State from applying its constitutional rules relating inter alia to respect for the right to a fair trial. Thus, the Court affirmed that Articles 27(4) and 28(3)(c) of the Framework Decision must be interpreted as not precluding Member States from providing for an appeal suspending execution of the judicial decision granted the requested extension of an EAW.
The discretion left to the member States is not, however, without limits; the objective of accelerating judicial cooperation, which underlines the whole Framework Decision, would otherwise be frustrated. Indeed, as a third step, the Court engaged with the limits to the possibility to foresee a right to appeal with suspensive effect. Based on a systematic reading of the Framework Decision, the Court concluded that the limits laid down by its Article 17 must in any event be observed. Accordingly, it replied to the question referred by the Conseil Constitutionnel in the sense that Articles
27(4) and 28(3)(c) of the Framework Decision must be interpreted as not precluding Member States from providing for an appeal suspending execution of the judicial decision granting the requested extension of an EAW, provided that the final decision on the surrender is adopted within the time?limits laid down in Article 17 of the Framework Decision.