Mutual trust

European Arrest Warrant; use of the preliminary reference procedure; judicial cooperation

Court of Justice of the European Union/ Curtea de Apel Cluj

Court of Justice of the European Union/ Court of Appeal Cluj

01.06.2016

ECLI:EU:C:2016:385

The Judgment of the Court in the Case C‑241/15 Niculaie Aurel Bob-Dogi represents the response to the request made by a national ordinary court, Curtea de Apel Cluj (Court of Appeal, Constanța, Romania).
Law no. 236 of December 5, 2017, Published in the Official Gazette no. 993 of December 14, 2017 provides multiple changes, including procedure of European arrest warrant and access to a lawyer in both states.

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Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Article 8(1)(c) — Obligation to include in the European arrest warrant information concerning the existence of an ‘arrest warrant’ — No national arrest warrant issued prior to and separately from the European arrest warrant — Effect

The case deals with clarifications on the term ‘arrest warrant’, which must be understood as referring to a national arrest warrant that is distinct from the European arrest warrant. Where a European arrest warrant based on the existence of an ‘arrest warrant’ within the meaning of that provision does not contain any reference to the existence of a national arrest warrant, the executing judicial authority must refuse to give effect to it if that authority concludes that the European arrest warrant is not valid because it was in fact issued in the absence of any national warrant separate from the European arrest warrant.

The referring court asked the Court of Justice for the reference for a preliminary ruling to be determined pursuant to the urgent preliminary-ruling procedure provided for in Article 107 of the Court’s Rules of Procedure, given the fact that even Mr Bob-Dogi was not in custody that period of time, although he was subject to supervision measures, which restricted his personal freedom. The Court decided that there was no need to grant that request, but gave the case priority over others, pursuant to Article 53(3) of the Rules of Procedure.

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On 27 November 2013, Mr. Bob-Dogi, Romanian national, committed offences related to a road traffic accident on the public highway for which was responsible due to the excessive speed at which the lorry he was driving was travelling and which caused multiple fractures and injuries to Mr Katona, a Hungarian national, who was riding a moped when the accident occurred. On 23 March 2015, the Mátészalkai járásbíróság (District Court, Mátészalka) issued a European arrest warrant against Mr Bob-Dogi. On 30 March 2015, an alert concerning the European arrest warrant at issue in the main proceedings was filed in the Schengen Information System. On 2 April 2015, Mr Bog-Dogi was arrested in Romania and, after being placed in detention, appeared before the Curtea de Apel Cluj (Appeal Court, Cluj, Romania) so that that court could decide whether he was to be remanded in custody and surrendered to the Hungarian judicial authorities. By order issued the same day, that court rejected the proposal of the public prosecutor’s office that Mr Bob-Dogi should be remanded in custody and ordered his immediate release, while at the same time ordering that he should be subject to supervision measures for an initial period of 30 days, which was subsequently extended. On 15 April 2015, receiving a copy of the European arrest warrant translated into Romanian, the referring court observes that point (b) of the European arrest warrant at issue, headed ‘Decision on which the arrest warrant is based’, stated ‘public prosecutor’s office attached to Nyíregyházi járásbíróság (District Court, Nyíregyház, Hungary), K.11884/2013/4’, and point b(1) of that arrest warrant, which must be completed with the details of the arrest warrant or judicial decision of equivalent effect, stated ‘European arrest warrant No 1.B.256/2014/19-II, issued by the Mátészalkai járásbíróság (District Court, Mátészalka), also covering the territory of Hungary, thus constituting, at the same time, a national arrest warrant’. The referring court is uncertain whether the European arrest warrant may validly be based on itself, without any reference to a separate prior national arrest warrant. This provision is interpreted differently by Romanian courts. The majority view is that, in such a situation, the request for execution of the European arrest warrant must be dismissed on the essential ground that it cannot compensate for the lack of a national arrest warrant or enforceable judicial decision. Other courts have, however, allowed execution of the European arrest warrant on the ground that the statutory requirements were satisfied, since the issuing judicial authorities expressly indicated that the European arrest warrant issued constituted the judicial decision on which the application to the Romanian judicial authorities was based, clarifying, in certain cases, that under Hungarian law the European arrest warrant also constituted the national arrest warrant. The national court considers that, in the procedure for the execution of a European arrest warrant, the decision recognized by the executing judicial authority is the national judicial decision delivered by the competent authority in accordance with the rules of criminal procedure of the issuing Member State before the procedure for issuing the European arrest warrant was commenced. As well, referring court observes that there are fundamental differences between a European arrest warrant and a national arrest warrant. Accordingly, the European arrest warrant is issued for the purposes of arresting and surrendering a person who has been charged or convicted and is in the territory of the executing Member State. The national arrest warrant, on the other hand, is issued for the purposes of arresting a person in the territory of the issuing Member State. Furthermore, the issue of the European arrest warrant is based on an arrest warrant or decision relating to the execution of a custodial sentence, whereas the national arrest warrant is issued on the basis of conditions and circumstances expressly governed by the criminal procedure of the issuing Member State. Also, there are many differences between European and national arrest warrants with regard to their content, form and period of validity. The referring court concludes that a person cannot be arrested or detained in the absence of a national arrest warrant and nor can it be accepted that the European arrest warrant is ‘transformed’ into a national arrest warrant after the person sought has been surrendered. That interpretation would, furthermore, be contrary to the fundamental rights guaranteed by EU law. The referring court is also of the view that judicial practice shows that there are other implied grounds for refusal, in addition to the optional or mandatory grounds for refusal provided for in the Framework Decision. That is true where the substantive or formal requirements of the European arrest warrant are not met, inter alia, where no national arrest warrant has been issued in the issuing Member State, which is the situation in the main proceedings. The referring court decides to send questions for preliminary ruling whether the term ‘arrest warrant’ mentioned in Article 8(1)(c) European arrest warrant Framework Decision refer to a ‘national’ arrest warrant distinct from the European arrest warrant, and, if so, does the absence of such a national warrant constitute an implicit ground for refusal to execute the European arrest warrant? On 25 June 2015, referring court received by fax from MAI-IGPR - Center for International Police Cooperation - SIRENE BUREAU - a set of documents from which it appears that the judicial authority in Mateszalka - Hungary canceled the arrest warrant issued against the requested person, following that the SIS alert to be deleted. Consequently, since the measure of judicial control ordered in the procedure for the execution of the European arrest warrant is no longer justified, referring court ordered the dismissal of the measure of judicial control taken against the requested person.

According to the CJEU, the term ‘arrest warrant’ must be understood as referring to a national arrest warrant that is distinct from the European arrest warrant. If the executing judicial authority concludes that the European arrest warrant is not valid because it was issued in the absence of any national warrant separate from the European arrest warrant, the executing judicial authority must refuse to give effect to it. The CJEU’s main arguments follow: A national warrant is needed that is distinct from the European arrest warrant. On the basis of a textual interpretation of the provision (paras 42–46), its effet utile (para 47) and the context and objectives pursued by the European arrest warrant Framework Decision (paras 49–57), the CJEU concludes that the term ‘arrest warrant’ mentioned in Article 8(1)(c) of the European arrest warrant Framework Decision must be understood as referring to a national arrest warrant that is distinct from the European arrest warrant (para 58). The list of grounds for non-recognition and guarantees is exhaustive. The lack of a reference in the European arrest warrant to a national arrest warrant is not one of the refusal grounds laid down in Articles 3, 4 and 4(a) of the European arrest warrant Framework Decision (paras 61 and 62). However, Article 8(1)(c) of the European arrest warrant Framework Decision lays down a requirement as to lawfulness, which must be observed if the European arrest warrant is to be valid. A failure to comply with it must in principle result in the executing judicial authority refusing to give effect to that warrant (para 64).

Duty to request for additional information.
If a European arrest warrant does not contain any reference to a national arrest warrant, the executing judicial authority must request all necessary supplementary information from the issuing judicial authority, as a matter of urgency, pursuant to Article 15(2) European arrest warrant Framework Decision. The executing judicial authority must then examine – on the basis of that information and any other information available to it – the reason for the lack of reference to a national arrest warrant in the European arrest warrant (para 65). Consequences of the absence of a separate national warrant. If the executing authority concludes that the European arrest warrant is not valid because it was issued in the absence of any national warrant separate from the European arrest warrant, the executing judicial authority must refuse to give effect to it on the basis that it does not satisfy the requirements as to lawfulness laid down in Article 8(1) European arrest warrant Framework Decision (para 66).

The referring court made general reference to the Charter for fundamental rights and the European Convention on Human rights in the context of analyzing the consequences which may appear whether there is no national (domestic) arrest warrant, a person cannot be arrested and kept in custody. As well, the referring court appreciated that it would be inappropriate to interpret that the European arrest warrant "transfers" its restrictive nature of the person's individual freedom and "converts ” in the national (domestic) arrest warrant after surrendering the requested person. Consequently, the referring court established that is inadmissible to infringe European human rights standards, a contrary approach being an obvious violation of a person's right to freedom and would also jeopardize the very viability, from a legal point of view, of the European arrest warrant.

Strategic use of the preliminary reference mechanism by the national ordinary court in order to be made conceptual delimitations on European arrest warrant meaning and content; consistent interpretation with the EU law of the national provisions by the national referring court; comparative reasoning with Hungarian legislation and practice; preserving the efficiency of the judicial cooperation mechanism through art. 267 TFEU.

The validity of European arrest warrant in the absence of a national arrest warrant was interpreted differently by Romanian courts, being established two solutions.

Rejection of the request for the execution of the European arrest warrant (most situations) on the grounds that, in essence, the European arrest warrant does not replace the lack of the national (domestic) arrest warrant or the enforceable court decision, and in some cases, additionally, it was mentioned that the European arrest warrant is not equivalent to a warrant to bring the requested person before the authorities of the issuing member state, indicating even the recourse to alternative measures, namely the use of Decision - framework 2008/909/JHA of the Council of the European Union of November 27, 2008 regarding the application of the principle of mutual recognition in the case of judicial decisions in criminal matters that impose punishments or custodial measures for the purpose of their execution in the European Union, the use of less coercive instruments in the field of legal assistance, i.e. hearing by videoconference of the requested person, summoning the requested person, hearing the requested person through the rogatory commission, using the Schengen Information System in order to establish the place of residence or domicile of the requested person - measures that were exemplified in point 2 of the content of the Council's draft conclusions - Actions following the recommendations from the final report on the fourth round of mutual evaluations regarding the European arrest warrant from the period of the Spanish Presidency of the Council of the EU (Brussels 28 May 2010). For example, in this regard, the following court decisions were issued: Criminal sentence number 6/14 January 2010 of the Court of Appeal Oradea – Criminal Section and for cases with Minors; Criminal sentence number 73/July 29, 2010 of the Court of Appeal Oradea – Criminal Section and for cases with Minors; Criminal sentence number 22/27 February 2012 of the Court of Appeal Oradea – Criminal Section and for cases with Minors; Criminal sentence number 197/14 May 2012 of the Court of Appeal Bucharest – Criminal Section I; Criminal sentence number 77 /June 28, 2014 of the Court of Appeal Cluj – Criminal and Juvenile Section; Criminal sentence number 78 / June 28, 2014 of the Court of Appeal Cluj – Criminal and Juvenile Section; Criminal sentence number 79 /June 28, 2014 of the Court of Appeal Cluj- Criminal and Juvenile Section.

Admission of the request for the execution of the European arrest warrant (the fewest solutions) with the reasoning, essentially, that the legal requirements were met because the issuing judicial authorities expressly mentioned that the judicial decision that was the basis of the request addressed to the Romanian judicial authorities it is the European arrest warrant issued at the same time, the express mention that the European arrest warrant, according to the national legislation constitutes "simultaneous" and the national arrest warrant, or in other cases this mention was simply ignored. It is necessary, expressly, to specify that in some cases the same issuing judicial authorities, which consider that the European arrest warrant is concurrent with a national (domestic) arrest warrant, have also issued European arrest warrants that were based on a warrant of national (internal) arrest, and the Romanian judicial authorities have admitted the request for the execution of such European warrants. For example, in this regard, the following court decisions were pronounced: Criminal decision number 9/23 July 2007 of the Court of Appeal Târgu Mures; Criminal decision number 7/24 March 2008 of the Court of Appeal Cluj, Criminal and Juvenile Section; Criminal sentence number 9/PI/January 17, 2014 of the Court of Appeal Oradea – Criminal and Juvenile Division.

The Romanian High Court of Cassation and Justice - Criminal Section has pronounced both solutions in the cases on European arrest warrant procedure and content, not always following the decision of the lower court: the rejection of the request for the execution of the European arrest warrant in its Criminal decision no 97/22 February 2022, Criminal decision no 440/7 July 2022, Criminal decision no. 804/20 December 2022, Criminal decision no. 991/7 December 2021, Criminal decision no. 1034/16 December 2021, Criminal decision number 1103/27 March 2014 and established a solution of admission of the request for the execution of the European arrest warrant in its Criminal decision no 520/8 September 2022, Criminal decision number 324/9 June 2020, Criminal decision number 128/20 February 2020, Criminal decision number 968/18 March 2014, Criminal decision number 1332/ April 14, 2014, Criminal decision number 581/18 February 2008.

The referring court mentions directly in the end of its decision the intention to respect the directions established by the CJEU, already understood and invoked in the arguments of its request for a preliminary ruling: “Even if the judicial authorities in Hungary canceled the arrest warrant issued against the requested person, however, Court of Appeal Cluj will grant practical effectiveness to the Court's Decision (Second Chamber) of June 1, 2016, a decision that has particular relevance for the resolution of the merits of this case considering the solution adopted and set out in full above and as such will reject the request for the execution of the European arrest warrant issued by the judicial authorities of the Republic of Hungary on March 23, 2015, respectively the Mateszalka Court, regarding the requested person”.

The preliminary ruling in Case C-241/15 influenced a new change of the Law no. 302 of 2004, being adopted Law no. 236 of December 5, 2017, published in the Official Gazette no. 993 of December 14, 2017: Article 84-1. Application in relation to other states: ”The provisions of this title also apply in cases where a convention containing provisions similar to Council Framework Decision 2002/584/JHA of 13 June 2002 regarding the European arrest warrant and surrender procedures between Romania and the requested state, respectively the applicant, is applicable the member states of the European Union”

Law no. 236 of December 5, 2017, published in the Official Gazette no. 993 of December 14, 2017: Article 87: (7) For the record of the court's activity, the Record of European Arrest Warrants shall be drawn up and kept. The following entries are made in the register: current number; the name, surname and nationality of the requested person; the procedural phase in which the European arrest warrant was issued, the crime, the penalty applied or applicable, the number and date of the address of the prosecutor's office or the court before which the criminal case is pending; the file number of the enforcement court; date of issuance of the European arrest warrant; date of transmission of the European arrest warrant; information on the execution of the European arrest warrant; the reasons for not executing the European arrest warrant; date of delivery to the requested person; date of withdrawal of the European arrest warrant. The register is not intended for advertising.

The outcome achieved by the referring court is consistent with the CJEU doctrine on mutual trust principle and European arrest warrant procedure. The referring court uses the CJEU Judgement in Niculaie Aurel Bob-Dogi for underlining the necessity to pre-exist a national arrest warrant to European arrest warrant, only the national arrest warrant being applied after the requested persons is surrender to the requesting state authorities. The referring court was opened to apply the criteria indicated by CJEU, even Hungarian authorities cancelled the European arrest warrant.

The national referring court did not quote any judgements of the CJEU/ECtHR other than the ones indicated in the section above.

The national referring court did not quote any soft law instrument.

The national case law on fundamental rights was not considered an important element in this case

Pursuant to national procedural law, the judgment of the national court subsequent to the CJEU judgment was final.

Pursuant to national procedural law, the judgment of the national court subsequent to the CJEU judgment was final.

The preliminary ruling in the Case Bob-Dogi has been quoted in 94 Romanian cases in front of different ordinary courts: Decision no. 154/707/2016 of Court of Appeal Craiova; Decision no. 19/28/01/2020 of Court of Appeal Bucharest; Decision no. 23/14/03/2019 of Court of Appeal Oradea; Decision no. 89/4/10/2019 of Court of Appeal Pitesti; Decision no. 114/7/7/2017
Decision Salomon, R (On The Application Of) v Westminster Magistrates' Court [2022] EWHC 83 (Admin) (18 January 2022)
Decision Prosecutor At the Tribunal Judiciaire De Rennes, France v Bazlah [2021] EWHC 1507 (Admin) (08 June 2021)
Decision of Irish Court of Appeal, The Minister for Justice & Equality v Harrison (Approved) [2020] IECA 159 (12 June 2020)
Decision Krupeckiene v Public Prosecutor's Office Lithuania [2019] EWHC 569 (Admin) (11 March 2019)
Decision Litwinczuk v The Circuit Court In Szczecin, Poland [2019] EWHC 2745 (Admin) (18 October 2019)
Decision Kricka v County Court In Varazdin, Croatia [2018] EWHC 1129 (Admin) (11 May 2018)
Decision M B v Preliminary Investigation Tribunal of Napoli, Italy [2018] EWHC 1808 (Admin) (16 July 2018)
Decision Budai v Hungary Judicial Authority [2017] EWHC 229 (Admin) (15 February 2017)
Decision Sesinova v District Court in Most, Czech Republic [2017] EWHC 2755 (Admin) (7 November 2017)
Decision Central Magistrates Court Number 1 of the Spanish Criminal Court v Chadlioui [2017] EW Misc 21 (EXTRADITION) (03 October 2017)
Decision Alexander v The Public Prosecutor's Office, Marseille District Court of First Instance, France [2017] EWHC 1392 (Admin) (15 June 2017)
Decision BS v Court of First Instance Brussels (Belgium) [2017] EWHC 571 (Admin) (22 March 2017)
Judgment of 18 April 2023 in Case C-699/21, E. D. L. (Motif de refus fondé sur la maladie), paragraph 53, ECLI:EU:C:2023:295
Judgment of 30 June 2022 in Case C-105/21, Spetsializirana prokuratura (Informations sur la décision nationale d’arrestation), paragraph 50, ECLI:EU:C:2022:511
Judgment of 10 March 2021 in Case C-648/20 PPU, PI, paragraph 26, ECLI:EU:C:2021:187
Judgment of 13 January 2021 in Case C-414/20 PPU, MM, paragraph 48, ECLI:EU:C:2021:4
Judgment of 3 March 2020 in Case C-717/18, X, paragraph 29, ECLI:EU:C:2020:142    
Judgment of 09 October 2019 in Case C-489/19 PPU, NJ (Parquet de Vienne), paragraph 29, ECLI:EU:C:2019:849
Judgment of 27 May 2019 in Case C-509/18, PF, paragraph 44, ECLI:EU:C:2019:457
Judgment of 06 December 2018 in Case C-551/18 PPU, IK, paragraph 43, ECLI:EU:C:2018:991        
Judgment of 7 March 2017 in Case C‑551/15, Pula Parking d.o.o. v Sven Klaus Tederahn, paragraph 53, ECLI:EU:C:2017:193
Judgment of 10 November 2016 in Case C-452/16 PPU, Krzysztof Marek Poltorak, paragraph 16, ECLI:EU:C:2016:858
Judgment of 10 November 2016 in Case C-477/16 PPU, Kovalkovas, paragraph 15, ECLI:EU:C:2016:861
Judgment of 10 November 2016 in Case C-453/16 PPU, Özçelik, paragraph 27, ECLI:EU:C:2016:860

Judgment of 5 April 2016 in Case C‑404/15 and C‑659/15 PPU, Aranyosi and Căldăraru, EU:C:2016:198
Judgment of 6 December 2018 in Case C-551/18 PPU, IK, ECLI:EU:C:2018:991

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https://curia.europa.eu/juris/document/document.jsf?text=mandat%2Beuropean%2Bde%2Barestare&docid=179221&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=2119688#ctx1

Alina Gentimir, “Alexandru Ioan Cuza” University of Iasi

CJEU, Case C-241/15, Niculaie Aurel Bob-Dogi, Judgment of 1 June 2016
Court of Appeal Cluj, File no. 435/55/2015, Decision no. 89/2016 of 8 June 2016