HM and TZ

On 26 of October 2021, the First Chamber of the Court rendered a judgement in the context of a European Arrest Warrant regarding the application of the right of the surrendered person to be heard.

In case C‑428/21, the Dutch authorities decided HM to be surrendered to Hungary for the purposes of criminal prosecution for money laundering. Afterwards the Hungarian judicial authority asked the Dutch authorities to consent to the prosecution of HM for other offences committed prior to his surrender under the procedure of Article 27 § 3 of Framework decision 2002/584. However, HM could not exercise effectively his rights of defence before the executing authority as he was detained in Hungary and the Framework Decision does not include any provision regulating the right to be heard of the person surrendered in the frame of Article 27.

Likeweise, in case C‑429/21, a Belgium judicial authority asked the referring court (the Tribunal of Amsterdam) to give its consent for the surrender of TZ to the Federal Republic of Germnay in accordance with Article 28(3) of the Framework Decision in view of prosecuting TZ for offences other than those for which he was surrendered. Since TZ was in detention in Belgium, he could not exercise his rights of defence before the executing authority in the course of the examination of the request issued by the Belgium judicial authority.

Therefore, the referring court asked the Court of Justice to clarify before which Member State the surrendered person must exercise his or her right to be heard in the context of the consenting procedure as provided for in Article 27(3)(g) and (4) and Article 28(3) of the Framework Decision respectively.

The Court of Justice started its assessment by recalling the ratio legis of the Framework Decision on the European Arrest Warrant, which consists in contributing to the creation of an area without internal borders, and it is established in the principles of mutual trust and mutual recognition between Member States.

In the first place, the Court stated that the decision of the executing authority in the context of Articles 27 and 28 of the Framework Decision to consent or not to the prosecution for other offences or to the subsequent surrender to another Member State, may adversely affect the surrendered person, and therefore he or she should have the right to be heard in such cases. Then, the Court concluded that the executing authority is the one that should hear the surrendered person. Nevertheless it pointed out that the Framework Decision does not include any provisions in this regard, and therefore the Member States may lay down their own rules in accordance with the principle of procedural authonomy, provided that the latter would not be contrary to the underlying logic of the Framework Decision and its objectives of accelerating surrender procedures, and would ensure the surrendered person may exercise effectively his or her right to be heard. In that regard, Article 47 of the Charter requires the surrendered person to have a real opportunity to express his or her views and objections before the executing authority, while it does not imply his or her right to appear in person before the latter authority.

Thus, the Court of Justice ruled that this hearing can take place in the issuing State and the judicial authorities of the latter are responsible for ensuring that the person is heard effectively without the direct participation of the executing State. The executing judicial authority should in principle consider the procedure in the issuing State to be complying with EU law; but in case of lack of sufficient evidence – notably regarding the opinion of the surrendered persosn – it may request that supplementary information be provided by the issuing judicial authority.