Police and judicial cooperation in criminal matters – EAW Framework Decision 2002/584/JHA – Articles 27(4) and 28(3)(c) – European arrest warrant and surrender procedures between Member States – Speciality rule – Extension of the European arrest warrant to other offences – Decision of the judicial authority of the executing Member State to give consent – Non-availability of appeal with suspensive effect

The applicant J.F. is a UK citizen who fled to France after being charged by UK courts for child abduction. Upon arrest by the French police, J.F. consented to extradition before the appellate court in Bordeaux but did not invoke the specialty rule that would prohibit British officials from adding charges not included in the EAW. British authorities asked the Bordeaux Court of Appeal for permission to prosecute J.F. for another offence, namely unlawful sexual conduct with a female minor, which was not included in the first EAW.

The Bordeaux Court of Appeal decided to extend the arrest warrant. J.F. appealed the decision before the French Supreme Court (Cour de Cassation), which referred to the Constitutional Council a priority question of constitutionality relating to Art 695-46 of the French Code of Criminal Procedure which do not allow for an appeal of the judgment extending the EAW. The Supreme Court raised concerns regarding the compatibility of the contested provisions with the principle of equality before the law and the right to an effective judicial remedy.

In this context, for the first time, the Constitutional Council addressed a preliminary reference to the CJEU by way of the urgent preliminary reference. The Constitutional Council essentially asked whether the EAW Framework Decision 2002/584/JHA precludes domestic provisions that do not provide for the possibility of an appeal with suspensive effect against a decision to execute a EAW or a decision giving consent to an extension of the warrant. It seems that the Constitutional Council formulated the preliminary questions in a way that shows its preference for an interpretation whereby such a right of appeal should be recognized.

The CJEU held that the EAW Framework Decision 2002/584/JHA does not preclude the Member States from providing for an appeal with suspensive effect against a decision to execute a EAW or a decision giving consent to an extension of the warrant, provided that the final surrender or extension decision is given within the time-limits of Article 17 of the EAW Framework Decision 2002/584/JHA.

The Constitutional Council held that the decision on unconstitutionality of the challenged national provisions is to be observed by the national courts, including in the pending proceedings as of the publication date in the Official Journal – 16 June 2013.

• Case C?69/10 Samba Diouf (2011)

In Jeremy F preliminary ruling, the CJEU cited its own judgment in Diouf (C?69/10) as an example of a similar interpretation of the right to an effective remedy (C?168/13, paragraph 44). In Diouf, the CJEU found in a different context that “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.” Thus, the CJEU found in Jeremy F that EU law neither demands nor prohibits appellate proceedings. However, if a member states decided to put in place such appellate proceedings, the EAW Framework Decision 2002/584/JHA requires Member States to execute arrest warrants quickly – within the time-limits laid down in Article 17 thereof.

The CJEU, in answering the preliminary question, referred strategically to the ECtHR’s case law to assess whether the absence of an appeal in case of a decision extending the EAW to other offences was compatible with the right to an effective judicial remedy under Art 13 of the ECHR and Art 47 of the EU Charter (C?168/13, paragraph 43). Essentially, CJEU cited the Chahal judgment of the ECtHR in favour of the proposition that Art 5(4) ECHR is lex specialis to Art 13 ECHR in cases of detention in view of extradition, and Marturana v. Italy in support of the view that Art 5(4) does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention.