Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 6 August 2020 (1)

Case C‑195/20 PPU

XC

Criminal proceedings

other party to the proceedings:

Generalbundesanwalt beim Bundesgerichtshof

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

(Reference for a preliminary ruling — Judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant and the surrender procedures between Member States — Article 27(2) and (3) — Specialty rule — Scope — Prosecution of the requested person for offences other than those for which he was surrendered — Two European arrest warrants issued in succession by the same Member State for different offences — Legal effects of the voluntary departure from the territory of the Member State which issued the first European arrest warrant and of the forced return to its territory on the basis of a second European arrest warrant)

I.      Introduction

1.        Under Article 27 of Framework Decision 2002/584/JHA, (2) which lays down the ‘specialty rule’, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.

2.        In the present case, the defendant was first surrendered to the German authorities by the Portuguese authorities, pursuant to a European arrest warrant. After serving his custodial sentence, he voluntarily left German territory. He then became the subject of a second European arrest warrant pursuant to which the Italian authorities surrendered him to the German authorities. The Italian authorities agreed to waive the specialty rule so that he could be prosecuted for the offences at issue in the main proceedings. The defendant alleges that such consent should have come from the Portuguese authorities as the authorities that executed the first European arrest warrant.

3.        In the present case, the Court is thus asked, in essence, to adjudicate on how exactly the specialty rule is to be applied in the specific context of a person forming the subject of an initial European arrest warrant who voluntarily leaves the territory of the Member State which issued that warrant and is then forcibly returned there on the basis of a second European arrest warrant: must the view be taken that such a person, notwithstanding his or her voluntary departure, continues to enjoy the protection conferred by the specialty rule in connection with the first European arrest warrant? Or must the view be taken rather that, because of his or her voluntary departure from the territory of the State which issued the first arrest warrant, the specialty rule, if applicable, may be assessed only in connection with the second European arrest warrant, since consent to an extension of the prosecution can in those circumstances be given only by the authorities executing the second arrest warrant?

II.    The legal framework

A.      EU law

4.        Under Article 1(1) of Framework Decision 2002/584:

‘The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.’

5.        It follows from Article 8(1) of that framework decision that the European arrest warrant must contain a certain amount of information, in particular ‘the nature and legal classification of the offence’ and ‘a description of the circumstances in which the offence was committed’.

6.        Under Article 13(1) of that framework decision:

‘If the arrested person indicates that he or she consents to surrender, that consent and, if appropriate, express renunciation of entitlement to the “speciality rule”, referred to in Article 27(2), shall be given before the executing judicial authority, in accordance with the domestic law of the executing Member State.’

7.        Article 27 of that framework decision is contained in Chapter 3 thereof, entitled ‘Effects of the surrender’. It concerns the possible prosecution (of the person concerned) for other offences and is worded as follows:

‘1.      Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.

2.      Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.

3.      Paragraph 2 does not apply in the following cases:

(a)      when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;

(b)      the offence is not punishable by a custodial sentence or detention order;

(c)      the criminal proceedings do not give rise to the application of a measure restricting personal liberty;

(d)      when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;

(e)      when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;

(f)      when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;

(g)      where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.

4.      A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.

For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein.’

B.      German law

8.        According to Paragraph 83h of the Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual legal assistance in criminal matters), which transposed Framework Decision 2002/584:

‘(1)      Persons surrendered by a Member State pursuant to a European arrest warrant may not be:

1.      prosecuted, sentenced or otherwise deprived of their liberty for an offence committed prior to their surrender other than that for which they were surrendered; or

2.      extradited, transferred or removed to a third country.

(2)      Paragraph 1 does not apply in the case where:

1.      the person surrendered, having had an opportunity to leave the territorial scope of this Law, has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;

2.      the offence is not punishable by a custodial sentence or detention order;

3.      the criminal proceedings do not give rise to the application of a measure restricting personal liberty;

4.      the person surrendered could be liable to a penalty or measure not involving the deprivation of liberty, even if the penalty or measure may give rise to a restriction of his or her personal liberty; or

5.      the requested Member State or the person surrendered has renounced the application of that paragraph.

(3)      The surrendered person’s renunciation after his or her surrender shall be given and recorded before a judge or public prosecutor. The declaration of renunciation shall be irrevocable. The person surrendered must be informed of this.’

III. Facts, procedure and the question referred

9.        The defendant has been prosecuted in Germany in three successive cases relating to different offences: trafficking in narcotic drugs (offence A); sexual abuse of a minor, committed in Portugal (offence B); and, aggravated rape in conjunction with extortion, also committed in Portugal (offence C).

10.      First of all, the defendant was prosecuted for the trafficking of narcotic drugs in not insignificant quantities (offence A). On 6 October 2011, he was convicted of that offence by the Amtsgericht Niebüll (Local Court, Niebüll, Germany) and given a combined custodial sentence of one year and nine months. That sentence was suspended on probation.

11.      Then, in 2016, criminal proceedings were instituted against the defendant, in Germany, for the offence of sexual abuse of a minor, committed in Portugal (offence B). On 23 August 2016, the Staatsanwaltschaft Hannover (Public Prosecutor’s Office, Hannover, Germany) issued a European arrest warrant on those grounds (‘the first European arrest warrant’). The Tribunal da Relação de Évora (Court of Appeal, Évora, Portugal) authorised the defendant’s surrender to the German judicial authorities in connection with that offence. The defendant did not renounce the specialty rule on that occasion. On 22 June 2017, the defendant was surrendered to the Federal Republic of Germany by the Portuguese authorities. He then served in that country the entirety of the custodial sentence of one year and three months which had been imposed on him for the offence of sexual abuse of a minor. In August 2018, he was placed under social and judicial supervision (Führungsaufsicht) for a period of five years. During that period, he had to report to his probation officer once a month.

12.      While he was serving the custodial sentence for sexual abuse of a minor (offence B), the suspension on probation of the sentence imposed pursuant to the judgment delivered by the Amtsgericht Niebüll (Local Court, Niebüll) in 2011 for trafficking in narcotic drugs (offence A) was revoked. On 22 August 2018, the Staatsanwaltschaft Flensburg (Public Prosecutor’s Office, Flensburg, Germany) asked the Tribunal da Relação de Évora (Court of Appeal, Évora) to renounce the application of the specialty rule and to consent to the execution of the sentence imposed by the Amtsgericht Niebüll (Local Court, Niebüll).

13.      On 31 August 2018, in the absence of any response from the Tribunal da Relação de Évora (Court of Appeal, Évora), the defendant was released. Then, on 18 September, he went to the Netherlands and later to Italy. On 19 September, the Staatsanwaltschaft Flensburg (Public Prosecutor’s Office, Flensburg) issued a European arrest warrant against the defendant for the purposes of executing the judgment delivered by the Amtsgericht Niebüll (Local Court, Niebüll) in connection with offence A (‘the second European arrest warrant’).

14.      On 27 September 2018, the defendant was arrested in Italy. On 10 October 2018, the Italian authorities agreed to surrender him. On 18 October, the defendant was surrendered to the German authorities.

15.      Finally, on 5 November 2018, the Amtsgericht Braunschweig (Local Court, Braunschweig, Germany) issued a national arrest warrant (Untersuchungshaftbefehl) for the purposes of the conduct of a criminal investigation into a third case involving the defendant (offence C), the events relating to which, namely the rape and extortion of a 72-year-old American woman in Praia da Luz, Portugal, date back to 2 September 2005. It is this case which has given rise to the present request for a preliminary ruling.

16.      On 12 December 2018, the Staatsanwaltschaft Braunschweig (Public Prosecutor’s Office, Braunschweig, Germany) asked the Italian executing authority to give consent for the defendant to be prosecuted for the further offence of rape in conjunction with extortion at issue in the main proceedings (offence C). That request was granted by the Corte d’appello di Milano (Court of Appeal, Milan, Italy) on 22 March 2019.

17.      From 23 July 2019 to 11 February 2020, the defendant was remanded in custody in Germany, pursuant to the national arrest warrant referred to in point 15 of this Opinion. During that period, the Landgericht Braunschweig (Regional Court, Braunschweig, Germany), by judgment of 16 December 2019, convicted the defendant of the offence of aggravated rape in conjunction with extortion committed in Portugal in 2005 (offence C). It imposed on him a combined custodial sentence of seven years, which takes into account the judgment delivered in 2011 by the Amtsgericht Niebüll (Local Court, Niebüll). The period which the defendant had spent on remand in Italy was offset in full against the combined sentence. Moreover, on 21 January 2020, the Portuguese executing authority consented to the execution of the combined custodial sentence imposed by the Amtsgericht Niebüll (Local Court, Niebüll) for offence A.

18.      The defendant has been in custody since 12 February 2020, serving the custodial sentence handed down by the Amtsgericht Niebüll (Local Court, Niebüll) in 2011 for offence A. He has brought an appeal on a point of law (‘Revision’) before the Bundesgerichtshof (Federal Court of Justice, Germany), the referring court, against the judgment of the Landgericht Braunschweig (Regional Court, Braunschweig). He contests, in particular, the validity of the proceedings culminating in the delivery of that judgment in the light of the specialty rule laid down in Article 27 of Framework Decision 2002/584. In so far as the Portuguese authorities did not consent to his prosecution for the offence of rape in conjunction with extortion committed in Portugal (offence C), the German authorities were not entitled to prosecute the defendant and the procedural documents, such as the national arrest warrant issued by the Amtsgericht Braunschweig (Local Court, Braunschweig) on 5 November 2018, were therefore illegal.

19.      According to the referring court, the question as to whether the national arrest warrant issued for the purposes of conducting a criminal investigation can be maintained or must, conversely, be annulled depends on whether the German authorities were entitled to prosecute the defendant on the charge of having committed aggravated rape in conjunction with extortion in Portugal in 2005 (offence C).

20.      It was in those circumstances that the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is Article 27(2) and (3) of Council Framework Decision [2002/584] to be interpreted as meaning that the specialty rule does not preclude a measure involving deprivation of liberty for an offence committed prior to surrender other than that on which the surrender is based if the person voluntarily left the territory of the issuing Member State after the surrender, was subsequently surrendered again by another executing Member State to the territory of the issuing Member State pursuant to a new European arrest warrant, and the second executing Member State gave its consent to prosecution, sentencing and execution in respect of that other offence?’

IV.    The urgent procedure before the Court of Justice

21.      The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court. In support of that request, it argued that the question referred concerns the interpretation of a framework decision falling within the scope of Title V of Part Three of the FEU Treaty. It also stated that, on the date of the request for a preliminary ruling, the defendant was in custody serving the sentence handed down by the Amtsgericht Niebüll (Local Court, Niebüll) for trafficking in narcotic drugs (offence A). Even if the defendant were to be granted early release, he would nonetheless remain in custody on the basis of the national arrest warrant issued by the Amtsgericht Braunschweig (Local Court, Braunschweig) for the purposes of the conduct of a criminal investigation into the offence of rape in conjunction with extortion committed in Portugal (offence C). However, the legality of his detention in custody for that reason is itself dependent on the validity of the proceedings which culminated in the judgment, at issue in the main proceedings, delivered by the Landgericht Braunschweig (Regional Court, Braunschweig) in connection with offence C. If those proceedings were invalid, the defendant would have to be released.

22.      The Fourth Chamber of the Court decided, on 25 May 2020, to grant that request.

23.      Written observations were lodged by the defendant, the Generalbundesanwalt beim Bundesgerichtshof (Public Prosecutor General before the Federal Court of Justice, ‘the Public Prosecutor General’), the German Government and the European Commission. All the parties, as well as Ireland, presented oral argument at the hearing held on 16 July 2020.

V.      Analysis

24.      This Opinion is structured as follows. I shall begin by analysing the specialty rule in the light of the wording, context and purpose of Article 27 of Framework Decision 2002/584. I shall focus, in particular, on determining what effects the fact that the person concerned voluntarily departs from the territory of the Member State that issued a European arrest warrant against him or her has on the application of the specialty rule and, more broadly, on the surrender procedure (A). I shall then explain what the specialty rule requires in the case where the person concerned has been surrendered to the issuing Member State once again, in response to a second European arrest warrant, in circumstances such as those at issue in the main proceedings (B).

A.      The specialty rule and the effects of voluntary departure from the territory of the issuing Member State

25.      In the present case, the defendant, on the basis of an initial arrest warrant issued by Germany and executed by Portugal, was surrendered to Germany, where he served the sentence handed down for the offence referred to in that arrest warrant (sexual abuse of a minor, offence B). On leaving prison, he was placed under social and judicial supervision but was not prohibited from leaving German territory. The defendant voluntarily left German in order to go first to the Netherlands and then to Italy. On the basis of a second European arrest warrant issued by the German authorities, he was again surrendered to the German authorities, this time by the Italian authorities, in order to serve the custodial sentence which he had previously received for trafficking in narcotic drugs (offence A). The Italian authorities also later agreed to waive the specialty rule, thus allowing the defendant to be prosecuted in Germany for the offence of aggravated rape in conjunction with extortion committed in Portugal before his initial surrender (offence C). On account of that offence, he is currently the subject of a detention order (Untersuchungshaft) in relation to the judgment that he contests.

26.      By its single question, the referring court seeks to ascertain, in essence, what legal consequences attach, first, to the voluntary departure from the territory of the issuing Member State of a person who was surrendered to that State on the basis of an initial European arrest warrant and, secondly, to the forced return of that person on the basis of a second European arrest warrant.

27.      I shall begin with the first point: what effects does the voluntary departure from the territory of the issuing Member State of a person who was surrendered to that State have on the specialty rule?

28.      According to the defendant and Ireland, such a circumstance has no bearing on the application of the specialty rule. The defendant did not renounce that rule by voluntarily leaving German territory. The specialty rule remains applicable since, first, the defendant was still under social and judicial supervision in connection with offence B when he left German territory and, secondly, he did not voluntarily return to German territory. Therefore, the initial surrender continues to produce its effects.

29.      For their part, the Public Prosecutor General, the German Government, the Commission and the referring court share the view that the defendant’s voluntary departure from the territory of the issuing Member State brings the first surrender procedure to an end and thus extinguishes the specialty rule. The interests protected by the specialty rule are no longer affected where the person voluntarily leaves the Member State to which he or she was originally surrendered. A person who voluntarily leaves the issuing Member State can no longer rely on the protection conferred by the specialty rule, even if he or she returns to it, in so far as the new stay in the issuing Member State is no longer due to the surrender effected previously.

30.      I agree with the Public Prosecutor General, the German Government, the Commission and the referring court. In my opinion, the specialty rule is intrinsically linked to the execution of a specific European arrest warrant in the context of which it was ‘activated’ and can therefore be assessed. That rule is applicable in connection with that warrant only in so far as the person concerned is, by virtue of his or her presence in the territory of the issuing Member State, under the control of that State. Therefore, once the person concerned is no longer subject to the jurisdiction of the State which issued that warrant because he or she has voluntarily departed from it, the specialty rule no longer applies.

31.      That interpretation follows from the wording, the context and the purpose of Article 27(2) of Framework Decision 2002/584.

1.      Literal interpretation

32.      Article 27(2) of Framework Decision 2002/584 provides that a person who has been surrendered cannot, in principle, be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.

33.      The wording of that provision does not itself give any indication of what effects a surrendered person’s voluntary departure from the issuing Member State has on the application of the specialty rule. That wording nonetheless clearly suggests that the specialty rule is closely linked to the surrender (in the singular) and, therefore, to the execution of a specific European arrest warrant. After all, the fact that that rule benefits ‘a person surrendered’ implies that that person must be — or be about to be — present in the territory of the Member State having requested that surrender pursuant to a European arrest warrant, or, at least, under the effective control of that State.

34.      Similarly, and again from a textual point of view, Chapter 3 of Framework Decision 2002/584, which contains Article 27, is entitled ‘Effects of the surrender’. That heading too implies that the provisions of that chapter govern the effects produced by a specific surrender on the basis of a given European arrest warrant.

2.      Contextual interpretation

35.      As regards, in the first place, the internal context of Article 27 of Framework Decision 2002/584, it is clear from paragraph 3 thereof that the specialty rule is not applicable in a number of exhaustively listed scenarios. (3) This is the case, first of all, in circumstances where the person concerned consents to an extension of the prosecution. In those circumstances, it must be assumed that the person concerned, by giving such consent, has freely agreed to submit to the jurisdiction of the issuing Member State in connection with other offences even though he or she was under no obligation to do so. It is also the case where the authority executing the European arrest warrant itself consents to an extension of the prosecution. (4) This second scenario, which is well known in traditional extradition law, emphasises both the bilateral dimension and the sovereignty considerations underlying every European arrest warrant: it is for the benefit of the issuing State that the executing State refrains from exercising its ius puniendi in connection with offences other than those for which the person concerned was surrendered. (5)

36.      In spite of their apparent differences, those two classes of exception have one decisive feature in common: the agreement to make offences committed prior to the surrender, which are not referred to in the European arrest warrant, subject to the ius puniendi of the State issuing that warrant. In other words, renunciation of the specialty rule, whether on the initiative of the person concerned or on that of the executing Member State, has the effect of authorising the issuing Member State to prosecute and try a person physically under its jurisdiction pursuant to a specific European arrest warrant for offences other than those for which he or she was surrendered. It follows that the specialty rule constitutes a guarantee for the surrendered person for as long as he or she remains in the territory of the issuing Member State by virtue of the effects of the arrest warrant itself, which is to say by compulsion.

37.      As regards, in the second place, the scheme of Framework Decision 2002/584, it follows from the wording and the rationale of other provisions that the rules of that framework decision are applicable in the context of one and the same surrender. Thus, according to Article 1(1) of that framework decision, a European arrest warrant has as its specific aim the ‘surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order’. Likewise, it follows from Article 8(1) of, and the annex to, that framework decision that such a surrender is concerned with offences which are equally specific, since each European arrest warrant must define the nature and legal classification of the offence or offences in question and describe the circumstances in which the offence or offences was or were committed. It is indeed the case, then, that a European arrest warrant authorises the issuing Member State to prosecute the person concerned for the offences referred to in it  within the specific context of a surrender — that is to say, the circumstance of being present in the territory of that State by compulsion. It is within that same context that the person concerned may rely on the specialty rule. It follows logically from the foregoing that that rule can be applied in this way only within the particular and specific framework of a single surrender. It cannot be applied transversally, in connection with another surrender, after the person concerned has left the territory in which he or she was initially surrendered. (6)

3.      Teleological interpretation

38.      While the literal interpretation and the contextual interpretation emphasise the close link that exists between the specialty rule and the presence of the person surrendered in the territory of the issuing State in the context of the execution of a specific European arrest warrant, the objectives pursued by that rule and by the instrument of the European arrest warrant show that that link is severed in the case where the person concerned voluntarily leaves the territory of the issuing Member State. If the State exercises no coercive control over the person concerned, it follows logically that the specialty rule connected with that surrender is itself extinguished or deactivated.

39.      As regards the functions of the specialty rule laid down in Article 27(2) of Framework Decision 2002/584, the Court has held that that rule ‘is linked to the sovereignty of the executing Member State and confers on the person requested the right not to be prosecuted, sentenced or otherwise deprived of liberty except for the offence for which he or she was surrendered’. (7) The specialty rule thus pursues two main objectives. First — and traditionally, inasmuch as it traces its origins to extradition law (8) — that rule seeks to preserve the sovereignty of the State executing the arrest warrant, since, in executing that warrant, it agrees to limit (or even to waive) the exercise of its own sovereignty in criminal matters in favour of another Member State. Secondly — and more unconventionally from the point of view of the traditional understanding of extradition — the specialty rule in EU law seeks to guarantee the rights of the person concerned. That person must not be troubled by the prospect of any further prosecutions for offences committed prior to his or her surrender which were not expressly referred to in the European arrest warrant in question. Unless he or she explicitly renounces entitlement to the specialty rule, that person must be able to expect not to be prosecuted for other offences throughout the duration of his or her forced presence in the territory of the issuing Member State.

40.      Decisively in this case, it follows from those two objectives that the specialty rule has the effect of limiting the criminal jurisdiction of the issuing State and of preventing it from encroaching upon the jurisdiction of the executing State and exceeding its powers in relation to the person concerned. The issuing Member State might, after all, be tempted, for various reasons, to prosecute the person for (by definition previous) offences not referred to in the European arrest warrant. (9)

41.      The objectives thus pursued by the specialty rule must themselves be assessed in the light of the purpose of European arrest warrants. European arrest warrants are, after all, intended to place the person concerned under the potestas of the Member State issuing the warrant, in relation to the offences mentioned in it, by bringing him or her to the territory of that same State by compulsion. (10) In so far as the specialty rule protects the person concerned against any inclination on the part of the issuing Member State to extend its criminal jurisdiction unduly, that rule appears to be indissociably linked to the execution of a specific European arrest warrant the scope of which is clearly defined.

42.      Consequently, the specialty rule is applicable only in the context of the surrender in question, by virtue of the effects of that surrender and for as long as the person concerned is present, by compulsion, in the territory of the issuing Member State. A voluntary departure from that territory severs the link between that State and the surrendered person. That act on the part of the person concerned has the effect of removing him or her from the potestas of that State. Thereafter, the person concerned is by definition no longer protected by the specialty rule applicable in the context of the initial surrender.

43.      In short, in so far as the person concerned has freely left the territory of the issuing Member State, the slate is wiped clean. This applies to the entirety of the surrender procedure specific to a given European arrest warrant, not to the specialty rule alone. After all, the purpose of surrender is to bring the person concerned to the territory of the issuing Member State so that he or she can be tried and/or serve his or her sentence in that State. Once that purpose has been achieved, the surrender ‘cycle’ is terminated. It follows logically that, inasmuch as it applies within the context of that cycle, the specialty rule has itself lapsed.

B.      The effects of a forced return to the territory of the issuing Member State

44.      It is common ground in the present case that the defendant left German territory voluntarily after serving the sentence imposed on him for the offence — B (sexual abuse of a minor) — referred to in the European arrest warrant that had given rise to his initial surrender by the Portuguese authorities. As a result, the specialty rule applicable to that cycle in connection with that warrant is extinguished.

45.      Nonetheless, this case is not concerned only with the effects which the voluntary departure from the territory of the issuing Member State of a person who has been surrendered to that State has on the specialty rule. It is characterised by a second feature of a factual nature which seems to be the root cause of the referring court’s doubts: the person concerned returned to the territory of the issuing Member State pursuant to a second European arrest warrant. The referring court therefore asks about the consequences that follow from the fact that, after his departure, the defendant became the subject of that second European arrest warrant, which itself gave rise to the defendant’s forced return to German territory, this time from Italian territory.

46.      Is that fact such as to ‘reactivate’, so to speak, the specialty rule connected with the first European arrest warrant? If the specialty rule were ‘reactivated’ in this way, it would be for the German issuing authorities to obtain the consent of the first executing Member State (the Portuguese Republic) to extend the prosecution to offence C, at issue in the main proceedings (aggravated rape in conjunction with extortion), since this was not covered by the second European arrest warrant. That is the position advocated by the defendant and Ireland, for whom the specialty rule continues to produce its effects in relation to the Portuguese Republic.

47.      If that were not the case, on the other hand, the consent of the authorities executing the second European arrest warrant (the Italian authorities) would be sufficient for such purposes. That is the position advocated by the Public Prosecutor General, the German Government, the Commission and the referring court.

48.      In arriving at those opposite conclusions, all the parties to the proceedings have relied extensively on Article 27(3)(a) of Framework Decision 2002/584, under which the specialty rule is no longer applicable ‘when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it’. On the one hand, the defendant and Ireland regard that provision as maintaining the defendant’s entitlement to the protection conferred by the specialty rule in connection with the first European arrest warrant, in so far as that provision requires that the return be voluntary. On the other hand, the Public Prosecutor General, the Commission and the referring court seem to share the view that that exception to the specialty rule applies to forced returns too. While the Government does not rule out such an interpretation, it nonetheless doubts whether an examination of Article 27(3)(a) of Framework Decision 2002/584 is necessary in this case.

49.      To my mind, the reliance on Article 27(3)(a) is irrelevant in this case. It is neither necessary, nor even possible, in circumstances such as those at issue in the main proceedings, to rely on Article 27(3)(a) in order to reach the conclusion that the specialty rule connected with the first European arrest warrant is no longer applicable.

50.      First and principally, it is clear from the previous section of the present Opinion that, in the circumstances of the present case, there is no need to justify the inapplicability of the specialty rule connected with the first European arrest warrant on the basis of Article 27(3)(a) of Framework Decision 2002/584, in so far as its inapplicability follows simply from the extinction of the first surrender procedure that is inherent in the voluntary departure of the person concerned from the territory of the issuing Member State. That departure, after all, severed the territorial link enabling the person concerned to rely successfully on the protection afforded by the specialty rule throughout the period of his forced presence in that territory. Thus, the inapplicability of the specialty rule connected with the first European arrest warrant follows not from one of the exceptions provided for in Article 27(3) of Framework Decision 2002/584 but from the fact that the dispute is now concerned with a new cycle connected with the second European arrest warrant. (11)

51.      Secondly and in the alternative, Article 27(3)(a) of Framework Decision 2002/584 is inapplicable in any event in the case of a forced return. For, just as that provision is concerned only with the voluntary departure of the person concerned, its application also requires that any return to the territory of the issuing Member State should be voluntary. As the Court held in the case giving rise to the judgment in West, (12) that provision shows that the person concerned must implicitly consent to be subject to the jurisdiction of the issuing Member State, the very same State which prosecuted him or her for the offences referred to in the European arrest warrant and, as the case may be, convicted him or her of them. That implicit consent is obvious in circumstances where the person freely decides to remain in the territory [of the issuing Member State] rather than to leave it (lawfully) and return to the State of which he or she is a national, the State in which he or she lives or any other State of his or her choice.

52.      It is true that the wording of Article 27(3)(a) does not expressly mention the voluntary nature of any return by the person concerned to the issuing Member State. However, I take the view, like the defendant and Ireland, that the expression ‘has returned to that territory after leaving it’ suggests a voluntary rather than a forced return, (13) but also that that interpretation is the only logical one in the light of the scheme and purpose of that provision. (14) For, in so far as the specialty rule protects the person concerned only inasmuch as that person is present by compulsion in the territory of the issuing Member State, it logically ceases to apply as soon as that person is, if I may put it this way, free to come and go as he or she pleases, whether that means staying in that State, leaving it or returning to it. Any other interpretation would be synonymous with impunity, as the person concerned would need only to return to the territory of the issuing Member State by compulsion in order not to be troubled by the prospect of potential prosecution for any previous offences which no one suspected him or her of having committed at the time of his or her surrender. Such an approach makes very little sense.

53.      Although the defendant and Ireland are right to take the view that the application of the exception under Article 27(3)(a) of Framework Decision 2002/584 is subject to the condition that the return be voluntary, they are, on the other hand, wrong to think that, notwithstanding the defendant’s voluntary departure, his forced return reactivated the specialty rule connected with the first surrender.

54.      In the third place, the — superfluous — reliance on Article 27(3)(a) of that framework decision appears to be dictated by the facts of the present case, even though those facts are the source of some confusion inasmuch as they lead down a false trail. It is, after all, important not to attach too much importance to the (purely coincidental) circumstance that the person concerned was compelled by the second European arrest warrant to return to the territory of the Member State which had issued the first European arrest warrant (Germany). Above all, it would be illogical to draw from this the inference that the specialty rule connected with the first arrest warrant was reactivated as a result of that state of affairs.

55.      The following example clearly shows that the specialty rule connected with the first European arrest warrant cannot be reactivated in the case where the person concerned has become the subject of a new European arrest warrant after voluntarily leaving the territory of the Member State which issued the first arrest warrant. Let us imagine, again in the context of circumstances in which the person concerned has voluntarily left the territory of the State which issued the first arrest warrant, that the State issuing the second arrest warrant is the Czech Republic rather than the Federal Republic of Germany. In those circumstances, it is all but inconceivable that the Czech issuing authorities would have to ask the Portuguese authorities for their consent for an extension of the prosecution to an offence which was not referred to in the European arrest warrant issued by the Czech Republic to Italy and which predated the surrender of the person concerned by the Italian authorities to the Czech authorities. In those circumstances, it is readily apparent that the only interlocutors are the Czech and Italian authorities. Even if the offence in question had been committed in Portugal and the person concerned had first been surrendered by the Portuguese authorities (to the German authorities), since that person left Germany of his or her own free will to go to Italy (and was not the subject of a surrender request by the Portuguese authorities), only the Italian (executing) authority would be competent to authorise the Czech (issuing) authorities to extend the scope of the prosecution under Article 27(3)(g) of Framework Decision 2002/584. Such an interpretation is logical and is directly informed by the very functions of the specialty rule, by its bilateral dimension and by the underlying sovereignty considerations described in the present Opinion, (15) which is to say the concern to ensure that the State of issue (of the specific arrest warrant by which the person concerned is made subject to the potestas of that State) does not encroach upon the sovereignty of the Member State of execution (of that specific arrest warrant). (16)

56.      In the fourth and final place, regard being had to the objective pursued by Framework Decision 2002/584 of accelerating and simplifying judicial cooperation between the Member States, (17) the Court has held that Articles 27 and 28 of that framework decision, where they lay down rules derogating from the principle of mutual recognition stated in Article 1(2) of that framework decision, cannot be interpreted in a way which would frustrate the objective pursued by that framework decision. (18) Thus, an extension of the prosecution cannot be made more difficult by requiring the authority issuing the second European arrest warrant to obtain the consent of the authority executing the first arrest warrant.

57.      It is true that, in the present case, the difficulty does not appear to be insurmountable, inasmuch as the Federal Republic of Germany issued both European arrest warrants. The position would be otherwise, however, if the issuing States were different. Moreover, the illogical consequences of the approach advocated by the defendant and Ireland are clear to see in such a scenario. Take the case of a person with a long criminal record. The ‘last’ Member State to which the person was surrendered would, years later, have to seek the consent of all the Member States to which that person had previously been surrendered (not just one but, potentially, three, four, five or even more). Given the difficulty of such an enterprise, it is a fair bet that the person concerned would enjoy effective immunity from prosecution for any previous offences which had not been identified at the time when the first European arrest warrant was issued.

58.      It follows from the foregoing that, in the circumstances of the case in the main proceedings, the specialty rule does not require consent to extend the prosecution under the second European arrest warrant to be obtained from the State executing the first European arrest warrant. The specialty rule connected with the first European arrest warrant is accordingly of no consequence and the return of the person concerned to the territory of the State which issued that arrest warrant is not such as to reactivate that rule.

59.      That said, the specialty rule can still be fully relied upon, but in connection with the second European arrest warrant. It must therefore be assessed in the light of the second European arrest warrant, in so far as the person concerned is now under the control of the State which issued that second warrant. Whether that State is the same as the Member State which issued the first European arrest warrant is irrelevant. All that matters, for the purposes of applying the specialty rule, is that the person concerned should be subject to that State’s ius punendi in connection with the second European arrest warrant.

60.      In this case, as the German Government has stated, the relevant exception to the specialty rule is therefore Article 27(3)(g) of Framework Decision 2002/584 in relation to the second European arrest warrant: the specialty rule does not apply ‘where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4’. In the present case, in so far as the offence at issue in the main proceedings (offence C) is being prosecuted under an extension of the scope of the second European arrest warrant, the authorities executing the second European arrest warrant (in this case, the Italian authorities) must therefore give their consent to the waiving of the specialty rule in order for the authorities issuing that warrant (the German authorities) to be able to conduct that prosecution legally. (19)

61.      It follows that the answer to the referring court’s question must be that the specialty rule does not preclude a measure involving deprivation of liberty for an offence committed prior to the first surrender other than that on which that surrender is based, in the case where the person referred to in the first European arrest warrant voluntarily left the territory of the issuing Member State, provided that the authorities executing the second European arrest warrant issued after that departure have given their consent, in connection with that second warrant, to an extension of the prosecution to the offence which gave rise to the measure involving deprivation of liberty at issue in the main proceedings.

62.      I shall conclude with two observations.

63.      First, it is true that, in the judgment in West, the Court held that the subsequent surrender of a person pursuant to Article 28(2) of Framework Decision 2002/584 was subject in principle to the consent of the Member State executing the European arrest warrant by which the person concerned was surrendered. (20) However, it cannot be inferred from that judgment that the consent of the authority executing the first European arrest warrant is required in addition to the consent of the authority executing the second warrant. For, unlike in this case, the case giving rise to the judgment in West concerned the forced departure from the territory of the issuing State of a person who, because he was the subject of several European arrest warrants, had been surrendered to several Member States in succession. In that (transitive) chain of European arrest warrants, the same Member State was in turn the issuing State and the executing State.

64.      There is no such chain in the present case. The defendant was not surrendered to the Italian Republic by the Federal Republic of Germany. Consequently, the Italian authorities did not acquire from the German authorities (let alone the Portuguese authorities) their power to execute the second arrest warrant. Only two European arrest warrants have been issued in succession, the first being clearly distinct from the second because of the defendant’s voluntary departure from German territory.

65.      The situation would have been analogous to that in the case giving rise to the judgment in West (21) if, and only if, the second surrender had been the subject of a decision adopted by the authorities issuing the first warrant (the German authorities) for the benefit of another Member State, and if the person concerned had not since freely and voluntarily left German territory. However, that was not the case here.

66.      Secondly, the defendant has submitted that he cannot have lost entitlement to the specialty rule inasmuch as he is still subject to social and judicial supervision requiring him to visit his probation officer once a month. Consequently, he has not yet been finally discharged within the meaning of Article 27(3)(a) of Framework Decision 2002/584.

67.      That argument is ineffective in the present case, inasmuch as Article 27(3)(a) is not applicable to the facts of the case. It therefore makes little difference whether a person still subject to probationary supervision has been finally discharged within the meaning of that provision. After all, a person who voluntarily leaves the issuing Member State does not need the protection conferred by the specialty rule because he or she is by definition no longer under the control of the Member State which issued the first European arrest warrant. (22)

68.      The question of the effects of the social and judicial supervision would have arisen only in the very different scenario in which the defendant, ‘having had an opportunity to leave [German] territory … ha[d] not done so within 45 days of his or her final discharge’. (23) In such a situation, in the absence of the Portuguese authorities’ consent, it would be open to debate whether the defendant, by virtue of the probation measure to which he remains subject, could still rely on the protection conferred by the specialty rule connected with the first European arrest warrant, in accordance with Article 27(3)(a) of Framework Decision 2002/584. It would then be for the Court to rule on the concept of ‘final discharge’. However, such a discussion, the keen interest in which became apparent at the hearing, is unnecessary given the circumstances of the present case, the defendant having voluntarily left Germany after serving his sentence for offence B (sexual abuse of a minor). I shall therefore refrain from initiating that discussion in this case.

VI.    Conclusion

69.      I propose that the Court’s reply to the question referred by the Bundesgerichtshof (Federal Court of Justice, Germany) should be as follows:

–        The specialty rule referred to in Article 27(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, does not preclude a measure involving deprivation of liberty for an offence committed prior to the first surrender other than that on which that surrender is based, in the case where the person referred to in the first European arrest warrant has voluntarily left the territory of the issuing Member State, provided that the authorities executing the second European arrest warrant issued after that departure have given their consent, in connection with that second warrant, to an extension of the prosecution to the offence which gave rise to the measure involving deprivation of liberty at issue in the main proceedings.

1      Original language: French.

2      Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).

3      See, on the various categories of exception to the specialty rule, judgment of 1 December 2008, Leymann and Pustovarov (C‑388/08 PPU, EU:C:2008:669, paragraphs 67 to 73).

4      Article 27(3)(g) of Framework Decision 2002/584. See, also, as a further example of an approach based on States agreeing in principle to waive a share of their sovereignty in criminal matters, Article 27(1) of that framework decision, which provides for a more general exception whereby each Member State may decide that the consent to an extension of the prosecution is deemed to have been given without the intervention of the executing authority or the person concerned. As the Commission has stated, that exception is not relevant to the present case, as the Member States concerned have given no such notification.

5      On the concept of ‘offence other than’ that for which the person was surrendered within the meaning of Article 27(2) of Framework Decision 2002/584, see judgments of 1 December 2008, Leymann and Pustovarov (C‑388/08 PPU, EU:C:2008:669, paragraph 57), and of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraphs 58 to 61).

6      Except, however, in the — different — situation referred to not in Article 27 but in Article 28 of Framework Decision 2002/584 (subsequent surrenders), as interpreted in particular in the judgment of 28 June 2012, West (C‑192/12 PPU, EU:C:2012:404, paragraph 80). See, in this regard, points 62 to 64 of this Opinion.

7      Judgments of 1 December 2008, Leymann and Pustovarov (C‑388/08 PPU, EU:C:2008:669, paragraph 44), and of 19 September 2018, RO (C‑327/18 PPU, EU:C:2018:733, paragraph 53).

8      On that rule and its various functions in traditional international law, see, in particular, Morvillo, C.J., ‘Individual Rights and the Doctrine of Specialty: The Deteriorations of the United States v. Rauscher’, Fordham International Law Journal, 1990, vol. 14, p. 987; Bouloc, B., ‘Le principe de la spécialité en droit pénal international’, Mélanges dédiés à Dominique Holleaux, Litec, Paris, 1990, p. 7; and Zaïri, A., Le principe de la spécialité de l’extradition au regard des droits de l’homme, LGDJ, Paris, 1992. See, also, in the specific context of the European arrest warrant, Lagodny, O. and Rosbaud, C., ‘Specialty rule’, in Keijzer, N. and van Sliedregt, E. (eds), The European Arrest Warrant in Practice, T.M.C. Asser, The Hague, 2009, p. 265.

9      No one would deny that such an approach is more indicative of mutual mistrust than the high degree of confidence between Member States on which Framework Decision 2002/584 is supposed to be based (see recital 10).

10      A European arrest warrant remains an instrument of compulsion notwithstanding any consent the person concerned might give to being surrendered.

11      See points 42 and 43 of this Opinion.

12      Judgment of 28 June 2012 (C‑192/12 PPU, EU:C:2012:404, paragraph 78), in which the Court interpreted the mirror provision contained in Article 28(2)(a) of Framework Decision 2002/584, concerning subsequent surrenders.

13      The language versions other than the French language version make clear the voluntary nature of the return of the person concerned, particularly the language versions in English ‘has returned to that territory after leaving it’ and not ‘has been returned’; German, ‘nach Verlassen dieses Gebiets dorthin zurückgekehrt ist’; Italian, ‘ha fatto ritorno dopo averlo lasciato’; Spanish, ‘haya vuelto a dicho territorio después de haber salido del mismo’; Czech, ‘vrátila-li se na území tohoto státu poté, co ho opustila’. These various language versions imply an active decision to return by the person concerned.

14      See points 39 to 42 of this Opinion.

15      See points 35 and 39 of this Opinion.

16      An even more absurd scenario would be one in which the Portuguese Republic issued the second European arrest warrant in order to ‘recover’ the person concerned so that he could be tried in Portugal for offence C. Would the Portuguese authorities issuing the second European arrest warrant then have to ask the Portuguese authorities executing the first European arrest warrant for the right to extend the scope of the prosecution?

17      See, in particular, judgments of 1 December 2008, Leymann and Pustovarov (C‑388/08 PPU, EU:C:2008:669, paragraph 42); of 28 June 2012, West (C‑192/12 PPU, EU:C:2012:404, paragraph 56); and of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraph 38).

18      Judgment of 28 June 2012, West (C‑192/12 PPU, EU:C:2012:404, paragraph 77).

19      Provided that no other of the exceptions provided for in Article 27 of Framework Decision 2002/584 has been successfully relied on.

20      Judgment of 28 June 2012, West (C‑192/12 PPU, EU:C:2012:404, paragraph 80).

21      Judgment of 28 June 2012 (C‑192/12 PPU, EU:C:2012:404).

22      There is nothing in the present case to indicate that the German authorities transmitted the probation decision to the authorities of another Member State for the purposes of its recognition and supervision. I shall not therefore dwell on what, if any, bearing derives from Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ 2008 L 337, p. 102).

23      Article 27(3)(a) of Framework Decision 2002/584.

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