Who qualifies as the ‘executing judicial authority’ in the context of actual surrender/extradition? A review of the ECJ versus ECtHR approaches and the new Dutch law

Abstract

The term ‘executing judicial authority’ (Article 6(2) FD EAW) responsible for deciding on the execution of EAWs, once the final decision to surrender is reached, has recently sparked a discussion. This particularly pertains to the determination of (exceptional) circumstances for temporary postponement of surrender – force majeure, serious humanitarian reasons and the postponement of surrender for criminal prosecution/execution of a sentence (Articles 23(3) and (4) and 24(1) FD EAW). This article unpacks the meaning of these circumstances and analyses the ECJ’s requirement for ‘necessary independence vis-à-vis the executive’, clarifying who qualifies as an ‘executing judicial authority’. The findings illustrate the difficulty in meeting the requirement by bodies other than a judge/court. Its impact on the Dutch system, leading to a new amendment to the surrender law, is demonstrated. The FD establishes a higher standard than the extradition regime (European Convention on Extradition), which does not necessarily require intervention by a ‘judicial authority’. Nonetheless, it is argued that the ECJ’s stringent criteria for an ‘executing judicial authority’ in decisions on actual surrender ensure a consistent interpretation of the FD EAW and maintain a balance between safeguarding (fundamental) rights and the need for efficiency in the EAW system.

Introduction

To date, more than eighty judgements and orders of the Court of Justice (ECJ) involve the interpretation of the Council Framework Decision 2002/584/JHA on the European arrest warrant (further: FD EAW). ¹ Most of those judgements concern the grounds for refusal to execute EAW or the procedure leading to the decision on the EAW by the ‘executing judicial authority’. Some notable cases in this regard concern preliminary requests by national courts on the interpretation of the FD EAW vis-à-vis a refusal to execute an EAW on the grounds of a fundamental rights violation. ² In contrast, the ECJ only rendered a few judgements regarding the stage of EAW proceedings following the final decision to surrender the requested person, in particular decisions leading to the actual surrender of the requested person in accordance with the time limit set and the circumstances specified under Articles 23 and 24 FD EAW. The relevant cases in this respect are Openbaar Ministerie (Forgery of documents), Vilkas, C and CD, CJ, E.D.L. The present article emphasises this latter aspect of EAW proceedings and EAW cases.

Once the ‘executing judicial authority’ takes the final decision to execute an EAW, the requested person shall be surrendered to the issuing Member State as soon as possible on a date agreed upon by the concerned authorities, but in any case, no later than ten days, in accordance with Article 23(1) and (2) of the FD EAW. However, surrender may temporarily be postponed due to the exceptional circumstances specified under sub-paragraphs 3 and 4 of the same provision, and the not so exceptional circumstances specified in Article 24(1) FD EAW. The ‘executing judicial authority’ is authorised to set a new date in agreement with the issuing judicial authority. However, what these (exceptional) circumstances are and, most importantly, who is authorised to determine their (non) existence and, consequently, to postpone actual surrender has recently become a topic of discussion. In particular, the question of what constitutes the ‘executing judicial authority’ under Article 6(2) FD 2002/584 has sparked debate since, in some Member States, such as the Netherlands, the Public Prosecutor has historically been considered part of the executing judicial authority.

This article focuses on the interpretation offered by the ECJ on the (exceptional) circumstances for the postponement of the surrender under Articles 23(3)–(4) and 24(1) and the ‘executing judicial authority’ within the meaning of Article 6(2). The case-law on the (exceptional) circumstances has received some attention in literature, ³ while there is an abundance of literature on the case-law concerning the notion of ‘judicial authority’. ⁴ The latter case-law has encountered criticisms, especially concerning the position of Public Prosecutors. One opinion is that the ECJ did not go far enough by not excluding Public Prosecutors as ‘judicial authority’. ⁵ At the other end of the spectrum, there is the opinion that the ECJ went too far by requiring the independence of Public Prosecutors. ⁶ However, the literature does not specifically deal with the ‘executive judicial authority’ that can take a decision about actual surrender once the decision to surrender is final. This article takes a critical look at the case-law concerning the notion of ‘judicial authority’ in order to establish whether that notion has and/or should have the same meaning in the context of actual surrender, both from the perspective of the nature of the decisions that can be taken in the course of actual surrender and from the perspective of fundamental rights. Therefore, this article aims at analysing and critically evaluating ECJ cases both on the (exceptional) circumstances and on the notion of ‘executive judicial authority’ and the changes in domestic laws and practices that ensued from that case-law, as illustrated by the Netherlands. Furthermore, it will uncover EU law and case-law in the light of Article 6 of the EU Charter of Fundamental Rights (the Charter)/Article 5(1)(f) of the European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights (ECtHR).

The paper is organised as follows. Section ‘The EAW procedure leading to actual surrender’ begins with an examination of what constitutes a ‘executing judicial authority’ as defined by the ECJ in Openbaar Ministerie (Forgery of documents) and discusses the relevant procedures and requirements for (exceptional) grounds for temporary postponement of surrender under Articles 23 and 24 FD EAW. This includes the Court’s interpretation of those grounds in the C and CD (also Vilkas), C.J and E.D.L cases, and the ‘executing judicial authority’ competent to decide on those circumstances. Section ‘FD EAW transposition by the Netherlands: Past and present’ illustrates the practical relevance of the Court’s rulings and delves into the consequences of the ECJ’s rulings in the context of the Netherlands and the circumstances resulting in the amendment of the Dutch Law on Surrender. Section ‘Actual surrender under the extradition regime and the ECHR’ then compares and evaluates what constitutes an ‘executing judicial authority’ under the ECHR and ECtHR in extradition cases versus the FD EAW and the case-law of the ECJ. Finally, Section ‘Concluding evaluation’ will end with some concluding remarks.

The EAW procedure leading to actual surrender

The procedure for executing an EAW is divided into two separate but related procedures, each having its own time limits. The first procedure concerns the decision whether or not to surrender the requested person to the issuing Member State. Pursuant to Article 1(2) FD EAW, Member States are under a general duty to execute any EAW. However, the FD does contain exceptions to that duty: the mandatory and optional grounds for refusal, that is, non-execution, of the EAW, contained in Articles 3, 4 and 4a FD EAW, and the grounds for refusal concerning fundamental rights violations that are not mentioned explicitly in the FD but that the ECJ derived from the obligation to respect fundamental rights (Article 1(3) FD EAW) in combination with the Charter. After the final decision to execute an EAW is taken by a judicial authority of the executing Member State, the second procedure is the decision on the actual surrender, such as the decision on the date and time of actual surrender, and, where appropriate, the decision whether the (exceptional) circumstances for temporary postponement are present. Indeed, the decision on the actual surrender presupposes the final decision to execute the EAW.

The applicable time limits for deciding on the first stage of execution of the EAW are enshrined under Article 17(2) and (3) FD EAW. Accordingly, the final decision should be made within ten days of the requested person’s arrest if the person consents to his surrender and within sixty days in other cases. Further extension is possible by thirty days in specific circumstances. However, the executing judicial authority shall immediately inform the issuing judicial authority, providing the reasons for the delay. ⁷ Finally, in exceptional circumstances, ⁸ the executing Member State is justified in exceeding the ninety days’ time limit, but it must inform Eurojust and give the reasons for the delay. ⁹

On the other hand, the time limits for the second stage – actual surrender of a requested person to the issuing Member State are enshrined under Article 23(2)–(4) FD EAW. Since this article focuses on this second stage of the proceedings, the standard time limits for surrender and the (exceptional) circumstances for temporary postponement will be dealt with subsequently. But, before embarking on those circumstances under Articles 23(3) and (4) and 24(1) FD EAW, it appears apposite to address the pivotal question of who is authorised to determine the (non) existence of (exceptional) grounds for temporary postponement of surrender.

Needless to mention, Article 23 FD EAW generally refers to the ‘executing judicial authority’. As per Article 6(2) FD EAW, the ‘executing judicial authority’ shall be the judicial authority of the executing state competent to execute the EAW warrant by virtue of the law of that State. Nonetheless, the following questions remain relevant: Which authorities qualify as ‘executing judicial authority’? Does this concept only encompass courts and judges, or does it also extend to other bodies, such as public prosecutors and the police? Second, should the determination of not only the existence of ‘circumstances beyond the control’ and ‘serious humanitarian reasons’ but also the practical aspect of those circumstances, such as the means of transfer, place, date and time of delivery, be left to the ‘executing judicial authority’? What if another organ, other than the ‘executing judicial authority’, makes such a decision? The upcoming sections discuss and examine how the ECJ has replied to those questions in its pertinent judgements, along with its interpretation of (exceptional) circumstances for postponing surrender.

Executing judicial authority: ‘Necessary independence from the executive’

In the Openbaar Ministerie (Forgery of documents) case, the ECJ interpreted the concept of ‘executing judicial authority’ within the meaning of Articles 6(2), 24(1), 27(3)(g) and 27(4) FD EAW. In this case, following the issuance of an EAW against AZ by a Belgian investigative judge in September 2017, AZ was arrested in the Netherlands and surrendered to Belgium in December 2017. However, a Belgian investigative judge issued an additional EAW for other offences committed prior to the surrender, asking the Dutch authorities to consent to prosecution of those offences since the speciality rule would otherwise prevent the Belgian authorities from depriving AZ of his liberty for the other offences. In response, the Public Prosecutor for the Amsterdam District (further: PPA) consented to extend the scope of the prosecution following the additional EAW. ¹⁰ Eventually, AZ was prosecuted for both acts referred to in the initial EAW and the additional EAW and sentenced to a three-year prison term. AZ appealed against the conviction before a Belgian Court of Appeal, questioning whether the PPA, in the case at hand, can be considered as an ‘executing judicial authority’ within the meaning of Article 6(2) of the FD EAW, and, therefore, whether the PPA may give the consent provided for in Article 27(3)(g) and 27(4) of the same FD. The Appellate Court then referred the issue to the ECJ. ¹¹

The ECJ responded that the concept of ‘executing judicial authority’ within the meaning of Article 6(2) EAW FD constitutes an ‘autonomous concept of EU law’. ¹² In effect, the Court referred to its former interpretations regarding the concept of ‘issuing judicial authority’ and held that they could be transposed to the execution phase of EAWs. ¹³ The Court noted the identical status and nature of the ‘issuing judicial authority’ and the ‘executing judicial authority’. Although these authorities exercise separate functions – one issuing and the other executing – both are ‘capable of prejudicing the liberty of the person concerned’. ¹⁴ Subsequently, it held that the concept of ‘executing judicial authority’ like the concept of ‘issuing judicial authority’, refers to either a judge or a court, or another authority, such as the public prosecution service (PPS), which participates in the administration of justice of the executing Member State and enjoys the necessary independence vis-à-vis the executive as per its ruling in the OG and PI and PF cases. The ECJ’s conclusion therefore is that the concept of ‘executing judicial authority’, without being necessarily limited to judges or courts, covers the authorities of a Member State which participate in the administration of criminal justice in that state, acting independently in the exercise of the responsibilities inherent in the execution of an EAW and which exercise their responsibilities under a procedure complying with the requirements inherent in effective judicial protection. ¹⁵ This means that the decision of that authority must be capable of being subject to an effective judicial remedy. ¹⁶

In the context of the definition of ‘executing judicial authority’, apparently judges and courts enjoy a (non-rebuttable) presumption that they meet the requirement of independence vis-à-vis the executive. When it comes to the PPS, however, the ECJ requires evidence of the existence of ‘necessary independence vis-à-vis the executive’ in the form of statutory rules and an institutional framework capable of guaranteeing that the ‘executing judicial authority’ is not exposed, when adopting a decision to execute such an EAW, to any risk of being subject, to an instruction in a specific case from the executive. ¹⁷ Moreover, there should also be a possibility for the decision to be subject to an effective judicial remedy. In stark contrast, the Court has ruled in the Poltorak and Kovalkovas cases that neither the Swedish National Police Board nor the Ministry of Justice of the Republic of Lithuania qualifies as ‘issuing judicial authorities’ under Article 6(1) FD EAW. ¹⁸

Related to the above, the ECJ was asked ‘whether Article 6(2) and Article 27(3)(g) and 27(4) of Framework Decision 2002/584 must be interpreted as meaning that the public prosecutor of a Member State constitutes an “executing judicial authority” within the meaning of those provisions’. ¹⁹ The Dutch Government claimed that the decision to grant the consent provided for in Article 27(4) FD EAW was taken exclusively by the PPA, given that the person concerned had already been surrendered to the issuing judicial authority pursuant to a decision taken by the Amsterdam District Court (further: ADC). Nevertheless, the ECJ found that the PPA may be subject to instructions in specific cases from the Ministry of Justice according to the Dutch Law on the organisation of the courts. ²⁰ This is similar to the Court’s ruling in OG and PI cases where it established that the concept of ‘issuing judicial authority’ does not include public prosecutors who are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a minister for justice, in connection with the adoption of a decision to issue an EAW. In other words, as the Court held in PF, the concept does include public prosecutors whose legal position in their Member State guarantees them independence from the executive in relation to issuing an EAW. ²¹

Therefore, the PPA cannot satisfy the necessary conditions to be characterised as an ‘executing judicial authority’ within the meaning of Article 6(2) and Article 27(3)(g) and 27(4) FD EAW. ²² The ECJ added that this is even though the consent given by the PPA may be subject to judicial action since the existence of that remedy in itself, does not shield the PPA against the risk that his/her decision on the consent referred to in Article 27(4) FD EAW will be subject to an instruction in a specific case from the Dutch Ministry of Justice. As a result, it becomes clear that within the meaning of those provisions, a public prosecutor who may receive, in exercising his or her decision-making power, an instruction in a specific case from the executive, does not constitute an ‘executing judicial authority’. ²³ The following discusses how the ECJ ruling unfolds in determining the grounds for the (non) existence of (exceptional) situations that allow temporary postponement of surrender by the ‘executing judicial authority’.

(Exceptional) circumstances for postponement of surrender and their determination by the ‘executing judicial authority’

Article 23(3) FD EAW: ‘Circumstances beyond control’ or ‘force majeure’

Once the executing judicial authority takes the final decision to execute the EAW in accordance with the time limits and procedure under Article 17 FD EAW, the actual date of surrender will be determined in agreement with the issuing Member State’s authorities. That is carried out following the procedure and the time limits set out under Article 23 FD EAW. Accordingly, the requested person should be surrendered to the issuing Member State as soon as possible on the date agreed between ‘the authorities concerned’, and, in any case, surrender should be effected no later than ten days after a final decision is made on the execution of the EAW. ²⁴ The provision does not explicitly appear to require that date to be set by ‘judicial authorities’, for it simply refers to ‘the authorities concerned’. Whether this means that a non-judicial authority, such as the police, can set the date and time, including the manner of transportation, or whether that term requires involvement by the ‘executing judicial authority’, appears unclear from the text of the provision. ²⁵

In situations where the surrender is not possible due to ‘circumstances beyond the control’ of any of the Member States, a new surrender date must be agreed upon immediately, and surrender should take place within ten days of the new date thus agreed between the executing and issuing judicial authorities as per Article 23(3) FD EAW. The provision offers no clue as to what those ‘circumstances beyond the control’ of any of the Member States mean. One could comprehend ‘circumstances beyond control’ as ‘force majeure’, which is the terminology used in the French version of the FD EAW and the ECJ in its case-law, ²⁶ but that still leaves the matter of the definition of ‘force majeure’. The provision also does not explicitly state which authority of the executing Member State should determine whether surrender is prevented by ‘circumstances beyond the control’ or ‘force majeure’. As to setting the new surrender date in those circumstances, the provision states that it should be agreed upon by the ‘executing and issuing judicial authorities’. Unlike paragraph 1, paragraph 3 explicitly uses the concept of ‘judicial authority’ in the context of the determination of a new surrender date when it is impossible to surrender a requested person within ten days because of ‘circumstances beyond the control’ or ‘force majeure’.

As to what constitutes a ‘force majeure’ situation, the ECJ in the Vilkas case defined it as ‘abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care’. ²⁷ The Irish authorities’ attempt to surrender the requested person (Mr. Vilkas) to the Lithuanian authorities by using a commercial flight was prevented twice due to his resistance. ²⁸ The ECJ held that the ‘executing judicial authority’ must agree on a new surrender date if the surrender is impossible on account of the repeated resistance of the person, provided that, on account of exceptional circumstances, that resistance could not have been foreseen and its consequences could not have been avoided. ²⁹ It appears to follow from the Vilkas case that, although resistance and, a fortiori, repeated resistance are usually not unforeseeable, the repeated resistance of the requested person to be surrendered can, exceptionally, constitute a force majeure situation for the purpose of temporary postponement of surrender under Article 23(3) FD EAW. However, in the context of the obligation to assess the (non) existence of force majeure, the ‘executing judicial authority’ bears the obligation to assess whether the repeated resistance to surrender could not have been foreseen by the authorities, and the consequences of the resistance could not have been avoided despite the exercise of all due care. In contrast to the Court, ³⁰ force majeure AG Bobek dedicated more detailed considerations to the interpretation of ‘circumstances beyond the control’ or. Given the specific context of the EAW system, which operates in the field of judicial cooperation in criminal matters to expedite and simplify surrender procedures, coupled with its impact on the personal freedom of the individual involved, the AG advocates for a strict and rather narrow interpretation of these circumstances. ³¹ In that consideration, the AG argued that, as the Court accordingly upheld, in situations such as Vilkas, where the requested person has already resisted a first surrender attempt, the fact that he would also resist a second surrender attempt cannot normally be regarded as unforeseeable. ³² If the first surrender attempt was frustrated by the person’s aggressive behaviour, this could only be qualified as force majeure if domestic judicial authorities could not reasonably have foreseen such a course of events based on the facts and case file of the individual. Conversely, ‘a repetition of almost identical behaviour preventing a subsequent surrender attempt could not be reasonably qualified as force majeure, unless, on the facts of the case, the competent authority had reason to believe that such a scenario could not reoccur’. ³³

In the C and CD cases, the Finnish Supreme Court ordered C and CD’s surrender to Romania. However, their transportation failed two times due to the COVID-19 pandemic (absence of direct air flights to Romania or any other connecting flights via other Member States of the EU). When the third delivery date was set, it was still impossible to surrender since they had applied for international protection in Finland by that time. ³⁴ The ECJ did not actually rule that the impediments created by the COVID-19 pandemic constitute a force majeure situation, since this was not the question referred by the Finnish Supreme Court. In cases such as this, however, one may ponder whether difficulties arising from the COVID-19 pandemic (and, similarly, difficulties arising from natural disasters or wars) constitute unforeseen circumstances, preventing the surrender of requested persons due to health risks for those involved in the actual surrender or due to a lack of means of transport. ³⁵

The legal obstacles to the execution of EAW resulting from legal actions related to the application for asylum protection brought by EU citizens subject to an EAW (C and CD) cannot constitute a case of force majeure within the meaning of Article 23(3) FD EAW, because this cannot be regarded as an unforeseeable circumstance. ³⁶ The executing Member State, therefore, is not allowed to extend the time limits on account of asylum proceedings, and it is rather obliged to surrender the person to the issuing Member State within those time limits. ³⁷ The question that follows is, who is the competent authority to assess the (non) existence of circumstances constituting ‘force majeure’?

Regarding the question of the competent authority, in the C and CD case, the ECJ underscored that determining the (non) existence of a force majeure circumstance pursuant to Article 23(3) FD EAW and the setting of a new surrender date remains the sole competence of ‘executing judicial authorities’. ³⁸ Although Article 23(3) does not explicitly state that the (non) existence of a force majeure circumstance must be determined by the ‘executing judicial authority’, the ECJ apparently was of the opinion that the agreement of a new date for surrender presupposes a finding of force majeure by the ‘executing judicial authority’. ³⁹ The Court reiterated its ruling from the Openbaar Ministerie (Forgery of documents) case stating that the concept of ‘executing judicial authority’ within the meaning of Article 6(2) FD EAW, like the concept of ‘issuing judicial authority’ within the meaning of Article 6(1) of the same, refers, to either a judge or a court, or a judicial authority, such as the PPS of a Member State, which participates in the administration of justice of that Member State and which enjoys the necessary independence from the executive. ⁴⁰ It obviously excludes intervention by the police and other non-independent bodies of the executing Member State to assess the (non) existence of force majeure and, as the case may be, set a new surrender date. ⁴¹

The ECJ further highlighted that, although under Article 7(1) FD EAW a ‘central authority’ may assist the competent judicial authorities, such an authority’s intervention ‘must be limited to practical and administrative assistance for the competent judicial authorities’. ⁴² The Court then referred to the opinion of the AG that the assessment of whether there is a situation of force majeure and where appropriate, the setting of a new surrender date constitute decisions on the execution of the EAW, which is a matter for the ‘executing judicial authority’ as per Article 6 FD EAW. Hence, such decisions go beyond the mere ‘practical and administrative assistance’ to be left to the responsibility of the police service under Article 7 FD EAW. The Court gives us a little glimpse of what might constitute practical and administrative assistance by referring to – and apparently agreeing with – the opinion of the AG that the ‘mere agreement of surrender arrangements would be a conceivable part of practical and administrative assistance’. ⁴³ Arguably, the mere agreement of surrender arrangements would include such matters as the place where the requested person will be handed over, the means of transportation and associated arrangements. It could also include proposing a tentative date for surrender, subject to approval and, more generally, facilitating and preparing the decision-making process by the ‘executing judicial authority’ (see infra).

From the Court’s ruling, the presence of the ‘necessary independence’ from the executive authority, as identified in the Openbaar Ministerie (Forgery of documents) case, still appears to be a pivotal criterion to identify whether bodies, other than judges, fall within the ambit of ‘executing judicial authority’. The requirement of intervention by the ‘executing judicial authority’ is not met if the executing Member State assigns a police service to assess the situation of force majeure and determine the conditions for continued detention of the requested person, including setting a new surrender date, even if that person is entitled to apply to the executing judicial authority at any time for a decision on the matter. ⁴⁴ The absence of intervention by an ‘executing judicial authority’ results in the non-observance of a formality requirement, and the person should be released from detention as per Article 23(5) FD EAW because the time limits under Article 23(2)–(3) FD EAW must be considered to have been expired. ⁴⁵

Article 23(4) FD EAW: ‘Serious humanitarian reasons’

After the final decision to surrender the requested person to the issuing Member State is taken, the surrender may also temporarily be postponed in exceptional circumstances because of ‘serious humanitarian reasons for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health’. ⁴⁶ Unlike ‘force majeure’ under Article 23(3) discussed above, Article 23(4) offers instances that constitute ‘serious humanitarian reasons’. Accordingly, it appears to exclude trivial circumstances that would not manifestly endanger the requested person’s life or health. Similar to Article 23(3), Article 23(4) does not explicitly state that the determination of the (non) existence of ‘serious humanitarian reasons’ should be made by the ‘executing judicial authority’. It rather says that the executing judicial authority shall immediately inform the issuing judicial authority of the ‘serious humanitarian reasons’ and agree on a new surrender date. In the case of Article 23(3) FD EAW, such an obligation to inform the issuing judicial authority is not explicitly mentioned. Of course, there is a general obligation on judicial authorities to contact each other, since ‘force majeure’ circumstances could occur on either side.

Like ‘force majeure’, as soon as ‘serious humanitarian reasons’ cease to exist, the executing and issuing judicial authorities should agree on a new date, and the surrender should take place again within ten days of the new date thus agreed, pursuant to Article 23(3) and (4). That provision evidently presupposes that the exceptional circumstances will be of a transitory nature. Nonetheless, in cases of serious health issues, the situation can persist for a much longer duration, potentially becoming a permanent condition. This, in turn, raises the question of the consequences for detention of a requested person (if he/she is still in detention) after the expiry of the time limits provided under Article 23(2)–(4) FD EAW. In that case, paragraph 5 of the same provision strictly demands that the person be released. ⁴⁷ However, in such circumstances, the executing Member State is required to take the necessary measures to prevent the person from absconding to another country in accordance with Article 12 FD EAW. ⁴⁸

In its recent E.D.L case, the ECJ interpreted Article 23(4) FD EAW in the context of the surrender of a convicted person suffering from a serious chronic and potentially irreversible disease. An Italian Appellate Court, based on expert opinion, found that the requested person (E.D.L) is unsuitable for detention because of the chronic illness he is suffering from. The ECJ held that in those cases, the executing judicial authority has the discretion to temporarily postpone surrender and ask the issuing judicial authority for information about the possibility of adapting detention or prosecution conditions to such a person’s state of health to prevent the risk from materialising. ⁴⁹ If such safeguards are provided by the issuing judicial authority, the EAW must be executed and a new surrender date must be agreed upon pursuant to Article 23(4) FD EAW. However, the executing judicial authority must make use of the discretion conferred by Article 23(4) and temporarily postpone surrender if actual surrender would subject the person concerned to a real risk of a violation of Article 4 of the Charter, which means that the surrender of a seriously ill person would expose him or her to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health. The executing judicial authority must refuse to surrender of seriously ill person if it appears that that risk cannot be ruled out within a reasonable period of time. ⁵⁰

The ECJ’s approach demonstrates that it is the ‘executing judicial authority’ that decides on postponement of surrender or refusal to surrender after assessing the information presented by the issuing judicial authority. The question whether the competent authority to determine the existence of risks endangering the health of that person who is seriously ill is the ‘executing judicial authority’ was not an issue in E.D.L, since such assessment had already been conducted by the ‘executing judicial authority’ – the Court of Appeal, Milan, Italy. In any case, the referring authority, a court, undoubtedly qualifies as ‘executing judicial authority’. Besides, there is no reason for believing that the ECJ’s case-law concerning the definition of ‘executing judicial authority’ does not apply to Article 23(4), given the need to ensure consistency between the interpretations of the various provisions of the FD EAW. ⁵¹ Therefore, such an assessment by a public prosecutor who does not enjoy the ‘necessary independence from the executive’ or the police would run against the Court’s ruling in Openbaar Ministerie (Forgery of documents) and C and CD case.

Article 24(1) FD EAW: Postponed surrender

Another case where the actual surrender of the requested person may be postponed is specified under Article 24 FD EAW. Unlike the circumstances described in Article 23(3)–(4) FD EAW, the circumstances that may lead to postponement under Article 24(1) are more mundane. This provision allows postponement when the requested person is being prosecuted in the executing Member State or has already been sentenced in that Member State for an act other than that referred to in the EAW. One of the choices to be made by the ‘executing judicial authority’ in those cases is to postpone the surrender of the requested person to the issuing Member State so that he/she may be prosecuted or serve a sentence in the executing Member State. The second option, which is not the focus of this study, is to temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities (Article 24(2) FD EAW). It appears that the choice is left to the discretion of the ‘executing judicial authority’, since there is no further indication of how the choice should be made. Only in the second case, there seems to be a formal requirement of mutual agreement between the executing and the issuing judicial authorities. Unlike Article 23, Article 24 FD EAW generally does not provide a time limit for enforcement and, consequently, does not contain a provision concerning the consequences of the expiry of a time limit.

In the CJ case, the ECJ addressed one of the questions referred by the ADC related to the temporary postponement of surrender of the requested person under Article 24 FD EAW. The ADC asked whether the decision to postpone the actual execution of the EAW under Article 24(1) may only be taken by the ‘executing judicial authority’ and, if another authority than the ‘executing judicial authority’ takes the decision, whether the person subject to the EAW may still be detained on the basis of that warrant. In the case at hand, the PPA decided to postpone the surrender of the requested person (CJ) to Poland (issuing Member State) for the purpose of criminal prosecution in the executing Member State (Netherlands) pursuant to Article 24(1) FD EAW. ⁵² The ECJ in its response highlighted that the wording of Article 24(1) FD EAW clearly indicates that it is for the ‘executing judicial authority’ to postpone the surrender of the requested person. ⁵³ It noted the fact that the exercise of the option provided for in Article 24(1) FD EAW is beyond the mere ‘practical and administrative assistance’ entrusted to central authorities as per Article 7 FD EAW. The decision to postpone surrender goes to the very essence of the mechanisms for cooperation between the judicial authorities of the Member States under the FD EAW. ⁵⁴ It thus constitutes a decision on the execution of EAW, and it falls within the exclusive competence of the ‘executing judicial authority’.

Regarding the categorisation of the PPA as an ‘executing judicial authority’ for the purposes of Article 6(2) FD EAW in the CJ case, the Court reiterated its previous decision in the Openbaar Ministerie (Forgery of documents) case that the PPA does not fall within that concept, since that authority may be subject to individual instructions from the Netherlands Minister for Justice. ⁵⁵ In essence, the ECJ reaffirmed the criterion ‘necessary independence’ from the executive to demonstrate that the PPA does not fall within the ambit of ‘executing judicial authority’. Therefore, in the context of the Dutch legal order, only a court or a judge can decide to postpone surrender temporarily pursuant to Article 24(1) FD EAW, since the public prosecutor cannot constitute an ‘executing judicial authority’.

The ECJ subsequently indicated that if there is no intervention by an ‘executing judicial authority’ in the adoption of a decision to postpone the surrender of the requested person, that decision does not satisfy the requirements laid down in Article 24(1) FD EAW and is invalid. This is analogous to its decision in the C and CD case. According to the Court, since there is no valid decision to postpone pursuant to Article 24(1) and since the decision to execute the European arrest warrant was adopted pursuant to Article 15 FD EAW (which provides for the intervention of the ‘executing judicial authority’), the situation falls within Article 23 FD EAW and the time limits therein apply. ⁵⁶ Consequently, if the decision to postpone the surrender has not been taken by an ‘executing judicial authority’ and these time limits have expired, Article 23(5) FD EAW requires the competent authority of the executing Member State to release the requested person, without prejudice to the application of the measures preventing the person from absconding as per Article 12 FD EAW. ⁵⁷ In the case at hand, the referring court must comply with that duty, unless it is able to give a conforming interpretation to the national provision. ⁵⁸ To this end, the Court referred to the AG’s Opinion that the ADC could interpret the Dutch Law on Surrender in such a way, that it substitutes its own postponement decision for that adopted by the PPA, which it has previously found to be unlawful, and, if necessary, keeping CJ in detention. ⁵⁹

Article 24(1) FD EAW does not say anything about the consequence of a decision given by a body other than the ‘executing judicial authority’. However, the ECJ’s reasoning is clear. An essential requirement of Article 24(1) is involvement by the ‘executing judicial authority’. Absent such involvement, the time limits of Article 23 were not suspended and, therefore, started running from the date of the decision on the execution of the EAW pursuant to Article 23(2). As a consequence, upon expiry of the time limits of Article 23(2)–(4), the executing judicial authority is required to release the requested person if he is still in detention on the basis of the EAW. From the CJ and C and CD cases, it follows that the ECJ qualifies the absence of intervention by a competent ‘executing judicial authority’ in the determination of force majeure and postponing surrender for prosecution or a sentence as a failure to observe an essential requirement, the ultimate consequence of which is the release of the person from detention. In those cases, the executing judicial authority is still required to decide a new surrender date upon agreement with the issuing judicial authority, but it no longer has at its disposal the most effective tool of ensuring the actual surrender of the requested person (detention) and has to content itself with other, less effective measures to reach that goal (eg restriction of liberty).

FD EAW transposition by the Netherlands: Past and present

The Netherlands transposed FD EAW on 12 May 2004. On that day, the Law on Surrender (Overleveringswet) entered into force. ⁶⁰ The tardy transposition ⁶¹ of FD EAW would turn out to be only the first of many problems. The choices made by the Netherlands in transposing FD EAW have led to several preliminary references to the ECJ, ⁶² to two major legislative overhauls (one in 2021 and one in 2024) and to infringement proceedings initiated by the European Commission (EC). In what follows, the impact of the aforementioned case-law of the ECJ on the Dutch transposition of the FD EAW and the resulting new practice is discussed and scrutinised.

Transposition of the FD EAW

When considering how to transpose FD EAW, the Netherlands made the fateful decision to take the Act on Extradition (Uitleveringswet) ⁶³ as a model for the transposition of FD EAW. ⁶⁴ That decision can be seen as the ‘original sin’ from which many of the transposition problems ensued. The Law on Extradition was and is not based on the principle of mutual recognition. Nor is its procedure based on decision-making by and direct communication between judicial authorities. Under the Law on Extradition, there is a division of competence between the courts on the one hand ⁶⁵ and the Minister of Justice and Security on the other. The courts are tasked with examining the admissibility (toelaatbaarheid) of extradition under the applicable treaty and national legislation (Article 26(1) Law on Extradition) and with taking decisions on detention during the extradition procedure (Article 27 and 37 Law on Extradition). ⁶⁶ Once the judgement on the admissibility of extradition is final, the Minister for Justice and Security takes the ‘final’ decision on the extradition request. ⁶⁷ There is no specific legal remedy against the Minister’s decision to grant extradition, which means that the requested person can only challenge such decisions before the Hague District Court (HDC) in civil proceedings against the State. If the Minister grants extradition, that authority is tasked with executing that decision. In that context, the Minister of Justice and Security takes the decision on the date and place for actual extradition to the requesting State, in agreement with the authorities of that State. ⁶⁸ Where appropriate, the Minister of Justice and Security may decide to postpone actual extradition in connection with an ongoing prosecution of the requested person in the Netherlands or in connection with the enforcement of a sentence imposed on the requested person in the Netherlands, or to temporarily extradite the requested person to the requesting State as an alternative to postponing the actual extradition. ⁶⁹ There is no specific legal remedy against such decisions, but, like the decision on extradition itself, those decisions can be challenged in civil proceedings before the HDC.

Pending actual extradition, the detention of the requested person may be maintained (provided that the extradition proceedings are prosecuted with due diligence and that the duration of detention therefore is not excessive). ⁷⁰ The district court takes decisions on the detention of the requested person in those circumstances. It may prolong the detention of the requested person upon motion by the public prosecutor each time for a maximum period of thirty days, as long as actual extradition has not taken place. ⁷¹

When transposing FD EAW, the legislator recognised that the Minister of Justice and Security, not being a judicial authority, could not play a role in the decision-making process concerning the execution of an EAW. ⁷² In the interest of efficiency and the uniformity of law, the legislator chose to concentrate proceedings concerning the execution of EAWs in Amsterdam, where a specialised chamber of the ADC and specialised public prosecutors would carry out the responsibilities in executing EAWs. ⁷³ Consequently, the Netherlands designated the ADC and the PPA as competent executing judicial authorities. ⁷⁴ In the context of actual surrender, the stage of the EAW proceedings that starts once the ADC has rendered a judgement allowing (partial) surrender ⁷⁵ and ends with the actual handing over of the requested person to the authorities of the issuing Member State, the competences referred to in Articles 23 and 24 FD EAW were conferred on the PPA, with one exception.

When (partial) surrender is allowed, actual surrender must take place as soon as possible, but at least within ten days from the date of the judgement of the ADC. To that end, the PPA must determine a date and place for actual surrender, in agreement with the issuing judicial authorities. ⁷⁶ This was the rule when the Law on Surrender entered into force and that rule is still in effect. The original provisions of the Law on Surrender made the PPA also competent to decide whether actual surrender was prevented by ‘special circumstances’ or whether actual surrender should be postponed temporarily due to ‘serious humanitarian reasons, particularly if the requested person’s health does not allow him to travel’. ⁷⁷ Article 36(1) of the Law of Surrender mandated the postponement of actual surrender in case of an ongoing prosecution in the Netherlands or an enforceable Dutch sentence. However, the competence to decide on temporary surrender and on the conditions for temporary surrender was not conferred on the PPA but on the Minister of Justice and Security (Article 36(2)), who decided on the advice of the PPS. The reason for this was to prevent the PPA from interfering in an ongoing prosecution by another member of the PPS by ordering a temporary surrender. ⁷⁸ In other words, the Minister of Justice and Security was chosen as a kind of arbiter. The Law on Surrender did not provide for a specific legal remedy against the decisions of the PPA or of the Minister of Justice and Security. As in extradition proceedings, those decisions could be challenged in civil proceedings before the HDC. ⁷⁹ The review by that court was a marginal review, limited to examining whether the PPA or the Minister could reasonably have taken the decision at issue. The possible involvement of that court in EAW matters was at odds with the legislator’s aim to concentrate all matters concerning incoming EAWs in Amsterdam with two specialised authorities, the ADC and the PPA (see supra), but was necessary on account of the role of the PPA and the Minister.

Pending the actual surrender, the requested person can be kept in detention (provided that the surrender proceedings are prosecuted with due diligence and that the duration of detention therefore is not excessive). ⁸⁰ The original and current provisions on detention during the stage of actual surrender stipulate that, once the ADC has allowed surrender, the detention previously ordered by the ADC will be valid for another ten days, thus allowing the PPA to organise the actual surrender within ten days from the date of the judgement. ⁸¹ The ADC may prolong that detention, upon motion by the PPA, each time for a maximum period of thirty days, but only if force majeure has prevented actual surrender within the period of ten days from the date of the judgement, if actual surrender is temporarily postponed on account of serious humanitarian reasons or if actual surrender is postponed in order to conduct a prosecution in the Netherlands or to enforce a sentence in the Netherland. ⁸² Both the original and the current provisions direct the ADC to end the detention of the requested person on expiry of the time limits of Article 35(1)–(3). In contrast to the original provision, however, the current provision stipulates that the requested person will only be released once the ADC has had an opportunity to set conditions that restrict the freedom of the requested person and that are necessary to prevent his flight. ⁸³ In this way, the executing judicial authority can comply with the duty, when applying Article 23(5) FD EAW, ‘to take any measures it deems necessary to prevent [the requested person] from absconding, with the exception of measures involving deprivation of liberty’. ⁸⁴

From Openbaar Ministerie (Forgery of documents) to infringement proceedings

The question whether a public prosecutor whose independence is not guaranteed by statutory rules and an institutional framework, such as the PPA, can be an ‘executing judicial authority’ within the meaning of Article 6(2) FD EAW was only raised in 2020, in the Openbaar Ministerie (Forgery of documents) case. As demonstrated above, the ECJ ruled that the PPA cannot be an ‘executing judicial authority’ within the meaning of Article 6(2). ⁸⁵ The ECJ’s considerations on the definition of the term ‘executing judicial authority’ had a broad scope and pertained to that term as it is used in Article 6(2) FD EAW. One might think that this judgement was a signal that was hard to ignore for the Netherlands. However, in this respect, one must distinguish between the judicial branch and the legislative branch.

The judicial branch picked up the signal loud and clear. Indeed, the day after the Openbaar Ministerie (Forgery of documents) judgement was rendered, the ADC already ruled that this judgement meant that the PPA could not be an executing judicial authority and that national provisions that conferred the powers of an executing judicial authority on the PPA were not in conformity with the FD EAW. As far as the provisions on actual surrender were concerned, the ADC held that ‘the authorities concerned’, mentioned in Article 23(1) FD EAW, that must agree on a date and place for actual surrender are the issuing and executing judicial authorities. Article 35(1) of the Law on Surrender confers the task of determining the date and place for actual surrender on the PPA, after consultation with the issuing judicial authority. The ADC gave a conforming interpretation to that provision: the judgement of the ADC allowing surrender is a judicial authorisation to the PPA to arrange the date and place for actual surrender. ⁸⁶ In a later decision, the ADC ruled that Article 36(1)–(2) of the Law on Surrender was not in conformity with Article 24 FD EAW. Article 36(1) obliged the PPA to postpone surrender in case of an ongoing prosecution of the requested person in the executing Member State, whereas Article 24(1) FD EAW confers a margin of discretion on the executing judicial authority in this regard. And Article 36(2) conferred the power to decide on temporary surrender on the Minister of Justice and Security, whereas Article 24(2) confers this power on the executing judicial authority. A conforming interpretation of the national provisions would mean substituting the ADC for the PPA and for the Minister of Justice and Security, respectively and reading a provision that directs to postpone as a provision that allows to postpone. The ADC ruled that such an interpretation was not possible, as it would be contra legem. ⁸⁷ In other words, the ADC indicated that it was up to the legislator to remedy the situation.

The legislative branch was more reticent. First, it considered – and rejected – the seemingly obvious solution to the issue of the PPA as executing judicial authority: doing away with the Minister of Justice and Security’s power to give specific instructions to public prosecutors altogether or, at least, excluding EAW matters from its scope. The PPA would then meet all requirements to be considered as an executing judicial authority. However, the power to give specific instructions to the PPS is closely tied to the Minister of Justice and Security’s political accountability to Parliament for the policy of the PPS in general and its actions in individual cases. That political accountability is considered to be a core element of the Rule of Law. ⁸⁸ Given the fundamental nature of the issue, abolishing or restricting the Minister of Justice and Security’s power needed further scrutiny (see infra).

Second, in the legislator’s opinion, the ECJ’s case-law on the concept of ‘judicial authority’ was a clear signal to amend only some of the national provisions insofar as they conferred the powers of an executing judicial authority on the PPA, but not a clear signal to amend all such provisions, let alone the provisions on actual surrender. In its reading of that case-law, it emphasised that the ECJ had referred to the fact that issuing and executing an EAW and deciding on a request for consent within the meaning of Article 27(4) FD EAW are capable of prejudicing the liberty of the person concerned. ⁸⁹ After all, issuing and executing an EAW can lead to an arrest in the executing Member State with a view to surrender for the purposes of prosecution or enforcement of a sentence in the issuing Member State. ⁹⁰ Similarly, a decision on consent can lead to a heavier sentence in the issuing Member State, given that it allows that Member State to prosecute the surrendered person for additional offences, ⁹¹ and is therefore also capable of prejudicing liberty.

Against that background, the legislator chose a two-track approach. ⁹² In the short term, the legislator would only effect the most necessary amendments, concerning competences that can prejudice liberty (the competences mentioned in Articles 27(4), 28(3) and 13(1) FD EAW). In the long term, on the basis of independent research, the legislator would examine whether a more structural revision of the position of the PPA in surrender proceedings was necessary. The independent research would also look into whether abolishing the power of the Minister of Justice and Security to give specific instructions or excluding EAW matters from the scope of that power could be a solution. With regard to the provisions on competing EAWs from two or more Member States (Article 16 of FD EAW; Articles 26(4) and 28(3) of the Law on Surrender) ⁹³ and those on actual surrender, the legislator saw no need for an amendment pending the outcome of the independent research. In its opinion, these provisions only concerned ‘additional powers’ because the decision on the execution of an EAW is already taken by the ADC. ⁹⁴ In short, the legislator believed that maintaining some of the powers of the PPA was possible, depending on the character of the power and on whether there was a possibility of judicial review. ⁹⁵

The amendments to the Law on Surrender entered into force on 1 April 2021. ⁹⁶ The choices made by the legislator were criticised. ⁹⁷ The legislator’s reasoning overemphasised the liberty argument. It ignored the fact that both Article 23 and Article 24 FD EAW plainly confer powers on the ‘executing judicial authority’ without any condition or reservation and the fact that the ECJ had ruled that a Public Prosecutor’s Office that acts as executing judicial authority must comply with the requirement of the ‘necessary independence from the executive’. The exercise of the so-called ‘additional powers’ can also prejudice liberty, notwithstanding that the ADC has already allowed surrender. Exercising the powers of Article 35(2)–(3) and 36(1) of the Law on Surrender can lead to prolonged periods of detention in the issuing Member State which, in itself, are not justified by the decision on surrender. Moreover, the opinion of the legislator would lead to the situation that one and the same term (‘executing judicial authority’) would have different meanings in different provisions of the same legal instrument. In the Ozçelik judgement, the ECJ had already stressed the importance of the need to ensure consistency of the interpretation of various provisions of FD EAW. ⁹⁸

The criticisms were partly vindicated by the infringement proceedings instituted by the EC in June 2021. ⁹⁹ The EC did not agree with some of the choices made by the legislator concerning the position of the PPA as executing judicial authority. Referring to Openbaar Ministerie (Forgery in documents), the EC was of the opinion that, for example, the power to decide in case of competing EAWs (Article 16 of FD 2002/584/JHA) could not be conferred on the PPA. Strangely, it did not raise an issue with the other so-called ‘additional powers’ (ie those concerning actual surrender), except for the power to decide on temporary surrender. This power could not be conferred on the Minister of Justice and Security, since that authority could not be an executing judicial authority.

From infringement proceedings to the amended Law on Surrender

Two subsequent judgements of the ECJ rendered in 2022 made crystal clear that the so-called ‘additional powers’ cannot be conferred on the PPA as well. As extensively dealt with above, these are the C and CD and CJ cases. In these cases the ECJ ruled that the application of Article 23(3) FD EAW (force majeure) and a decision to postpone surrender on the basis of Article 24(1) FD EAW requires the intervention of the ‘executing judicial authority’, as defined in Openbaar Ministerie (Forgery of documents). ¹⁰⁰ The ECJ’s reasoning left no doubt that the prejudice to liberty argument is not determinative, by stating that Article 24(1) ‘clearly indicates that it is for the executing judicial authority to postpone the surrender of the requested person’ and that ‘[w]here the meaning of a provision of EU law is absolutely plain from its very wording, the Court cannot depart from that interpretation’. ¹⁰¹

In the meantime, the independent researchers had concluded that tinkering with the Minister of Justice and Security’s power to give specific instructions would have effects that were too far-reaching just to solve a problem with the execution of EAWs. Moreover, removing or restricting the Minister’s power would not solve all problems. The decision of an independent PPA would still have to be capable of being subject to an effective remedy before a court. ¹⁰² In line with the recommendations of the independent researchers, the Minister of Justice and Security planned to put forward a proposal for legislation that would transfer to the ADC the powers concerning, inter alia, force majeure, serious humanitarian reasons and temporary surrender. ¹⁰³

Pending that amending legislation, the ADC still had to deal with national provisions that were not in conformity with the FD EAW. Fortunately, the CJ judgement handed the ADC a possible conforming interpretation (supra). ¹⁰⁴ As the AG had pointed out in her opinion, Article 36(1) of the Law on Surrender did not explicitly refer to the PPA as the competent authority (although this was definitely the legislative intent) and in the context of the decision whether or not to prolong detention the ADC could assess itself whether or not to postpone detention. ¹⁰⁵ Just one day after CJ was rendered, the ADC already adopted this interpretation. In the context of a motion by the PPA to prolong detention on the basis of an EAW pending an ongoing prosecution in the Netherlands, the ADC ruled that the PPA’s decision to postpone surrender was not lawful, not being taken by a judicial authority, that it substituted its own decision on postponement for that adopted by the PPA and that, since the ADC ruled that postponement was in order, detention should be prolonged. ¹⁰⁶

A conforming interpretation was only possible, however, if the PPA motioned the ADC to prolong detention on the basis of the EAW. In three types of cases the PPA did not need to or could not enter such a motion: cases in which the requested person could be surrendered within ten days after the ADC’s judgement allowing (partial) surrender and in which the PPA saw no need for postponement of surrender, cases in which the requested person was not detained and cases in which the requested person was detained but not on the basis of an EAW. In such cases, the PPA evidently took decisions without any involvement by the ADC; in other words, it took decisions contrary to EU law.

As explained before, such decisions could be challenged before the HDC in civil proceedings. In two cases, the requested persons initiated such proceedings against the PPA’s decision not to postpone, in the expectation that it would be found to be unlawful, but they were disappointed. In one case, the HDC held that a conforming interpretation was not possible because such an interpretation would be contra legem, ¹⁰⁷ in another, it held that, even though an amendment of the Law on Surrender was pending, according to the provisions in force at that time intervention by a judicial authority was not required. ¹⁰⁸ In both cases, the HDC added that by its review, in the civil proceedings, of the PPA’s decision there had been a judicial review of that decision after all. This line of reasoning is fallacious. A decision on postponement taken by the PPA without intervention by the execution judicial authority violates EU law and, therefore, is contrary to EU law, whether or not it is possible to give a conforming interpretation to the national provisions. The fact that a decision taken by a non-judicial authority was subsequently reviewed by the HDC is not relevant. Although the HDC, as a court, definitely falls within the definition of ‘executing judicial authority’, it was not designated as an executing judicial authority by the Netherlands. Therefore, its judicial review of the PPA’s decision did not constitute intervention by the executing judicial authority within the meaning of the ECJ’s case-law.

Be that as it may, the unlawfulness of a decision not to postpone actual surrender does not mean that actual surrender must be postponed, it just means that there is no valid reason not to carry out the surrender of the requested person within the period of ten days from the judgement allowing (partial) surrender, which is the rule. Nevertheless, it is important to note that the HDC and the ADC had completely opposite opinions on the lawfulness of decisions by the PPA on the postponement of surrender. Leaving aside the fact that the HDC’s reasoning is faulty, this accentuates the objective of efficiency and the uniform application of the law, which the legislator sought to realise by concentrating proceedings concerning the execution of EAWs in Amsterdam (see supra).

On 19 January 2024, the government at last put a proposal before parliament to amend the Law on Surrender, to remedy the defects identified by the EC and some other defects and to comply with the ECJ’s C and CD and CJ judgements. That proposal was adopted and entered into force on 1 October 2024. ¹⁰⁹ In the meantime, the EC had apparently grown weary of waiting for the Netherlands to comply with the FD EAW and had issued a reasoned opinion for failing to comply with the FD EAW. ¹¹⁰

Under the Law on Surrender as amended in 2024, the powers of the PPA and the Minister of Justice and Security concerning actual surrender were transferred to the ADC, with one exception. Under the amended law, the Minister does not play any role concerning actual surrender anymore. Although the PPA has lost its decision-making powers, that authority still plays a role in actual surrender. Being a non-judicial authority, that role should be that of a ‘central authority’, providing only practical and administrative assistance to the ADC. Nevertheless, according to the legislator, the PPA is not a ‘central authority’, because in the procedure leading to the decision whether or not to execute the EAW (see supra) the PPA has retained some powers that, pursuant to the FD EAW, belong to the executing judicial authority. ¹¹¹ Consequently, the Netherlands has not designated the PPA as a ‘central authority’.

In case of force majeure, on motion by the PPA, the ADC may extend the time limit for actual surrender with a maximum of thirty days. The assessment of whether there is a situation of force majeure, and, as the case may be, the setting of a new date for actual surrender is up to the ADC. ¹¹² To that end, the PPA when motioning the ADC, indicates the new date agreed with the issuing judicial authority beforehand (that new date should fall within the extended time limit), so that the ADC’s judicial review extends to the new date and that judicial intervention with regard to setting the new date is assured. The fact that the PPA agrees on a new date beforehand does not seem to go beyond practical and administrative assistance, since, in essence, that new date is only a provisional date, subject to approval by the executing judicial authority (see supra). The PPA may even agree with the issuing judicial authority on several subsequent provisional dates for actual surrender beforehand, if it believes that the force majeure situation is not likely to end within thirty days (such as war, contagious epidemics or force of nature), thus preventing repeated contacts with the issuing judicial authority on this issue. ¹¹³ It is open to doubt whether the amended provision ensures intervention by the executing judicial authority in all cases. In contrast to the provisions on ‘serious humanitarian reasons’ and prosecution or sentence enforcement in the Netherlands, the provision on force majeure does not accord the requested person the right to motion to the ADC. Therefore, a determination of the existence of force majeure is dependent on a motion by the PPA. If the requested person thinks that there is a situation of force majeure but the PPA disagrees and, therefore, does not motion the ADC to extend the time limit, the PPA de facto decides whether there is a situation of force majeure. In such a case, the requested person could initiate civil proceedings against the State with the goal of ordering the PPA to motion the ADC (cf. supra), but this solution does not sit well with the aim of concentrating proceedings concerning the execution of EAWs in Amsterdam (see supra).

Similarly, the ADC also decides whether actual surrender should be temporarily postponed on account of ‘serious humanitarian reasons’. It does so ex officio, on motion by the PPA or by the requested person or his counsel. ¹¹⁴

Finally, the ADC decides whether actual surrender should be postponed for the benefit of an ongoing prosecution or the enforcement of a sentence in the Netherlands, on motion by the PPA or the requested person or his counsel. The decision whether to temporarily surrender and, if so, which conditions to set is also up to the ADC. ¹¹⁵

Under the amended Law on Surrender, the PPA, however, is still tasked with determining, within ten days from the date of the judgement of the ADC, the date (which must be no later than ten days from the date of the judgement of the ADC) and place of actual surrender in agreement with the issuing judicial authority. ¹¹⁶ As to the place of actual surrender, this is not contrary to Article 23(2) FD EAW: that provision does not refer to determining the place of actual surrender, which can be considered to constitute practical and administrative assistance (see supra). As to the date of actual surrender, since Article 23(2) FD EAW refers to the date agreed between ‘the authorities concerned’, not to the date agreed between the judicial authorities, it was thought that no intervention of an executing judicial authority was needed. ¹¹⁷ In this respect, the legislator did not follow the ADC, which had held that the ‘authorities concerned’ referred to the issuing and executing authorities (see supra). The legislator’s line of reasoning, based on the distinction between ‘authorities concerned’ on the one hand and ‘issuing judicial authority’ and ‘executing judicial authority’ on the other, seems to be corroborated by the ECJ’s recent case-law on the concept of ‘competent authority’ within the meaning of Article 16(3) of FD EAW. Given that FD EAW distinguishes between the concepts of ‘judicial authority’ and ‘competent authority’, the ECJ ruled that the latter can also include a non-judicial organ, viz. an organ of the executive. ¹¹⁸ In addition, one can point out that, in contrast to the situations covered by Article 23(2)–(4) and Article 24(1), the time limit for actual surrender, and, if the requested person is detained on the basis of the EAW, the corresponding period of detention are both limited and fixed (no later than ten days after the final decision).

Actual surrender under the extradition regime and the ECHR

European Convention on Extradition

Before the transposition of the FD EAW into the national laws of the Member States, they extradited requested persons to one another based on the European Convention on Extradition (ECE). ¹¹⁹ That convention contains provisions on handing over the requested person to the requesting State, once the extradition request is agreed to by the requested State. The convention denotes this as ‘surrender’, but to avoid confusion with the EAW system, we shall use the term ‘actual extradition’. The requested State must be informed of the date and place of actual extradition. ¹²⁰ The State that is prevented from actually extraditing or taking over the requested person by circumstances beyond its control must inform the other State, whereupon they must agree on a new date for actual extradition. ¹²¹ If the requesting State does not take over the requested person on the date set by the requested State, the requested person may be released from detention after fifteen days and must be released after thirty days, unless actual extradition is prevented by circumstances beyond the control of the States. ¹²² In order to prosecute the requested person or to enforce a sentence imposed on him/her for an offence other than that for which extradition is requested, actual surrender may be postponed. ¹²³

Those provisions of the ECE do not require the intervention of a ‘judicial authority’ and merely refer to the ‘requesting Party’, the ‘requested Party’, the ‘Party’ or ‘Parties’. Accordingly, the convention leaves it to the national laws of the State Parties to determine which of their authorities are competent to execute actual extradition. Of course, insofar as those States are also bound by the ECHR, ¹²⁴ their national provisions must comply with the ECHR.

ECHR and actual extradition

Two provisions of the ECHR are directly relevant to actual extradition. The first provision is Article 5(1)(f) ECHR. ¹²⁵ This provision is relevant because decisions to postpone actual extradition can be accompanied by a decision on prolonging detention pending actual extradition. The second provision is Article 13 ECHR. This provision is relevant because decisions on actual extradition might violate the requested person’s ECHR rights, in which case the requested person has a right to an effective remedy before a national authority.

Article 5(1)(f) ECHR does not posit any requirement as to the nature of the authority that is competent to decide on (prolonging) detention ‘with a view to extradition’. Nevertheless, pursuant to the second sentence of that provision, any deprivation of liberty must be ‘in accordance with a procedure prescribed by law’. According to the case-law of the ECtHR, this requirement primarily refers to national law, including international (extradition) treaties. ¹²⁶ The ECE does not prescribe which authority of the requested State is competent to take decisions with regard to detention pending actual extradition. As a result, depending on the national laws of the requested State, the competent national authority could be an authority that does not meet the requirements to be considered as ‘executing judicial authority’ within the meaning of the FD EAW, such as a Minister of Justice, a public prosecutor who does not meet the ‘necessary independence’ requirement or even the police.

Be that as it may, under Article 5(4) ECHR, the requested person has a right to ‘take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. Therefore, even though authorities that would not qualify as ‘judicial authorities’ under the FD EAW may take decisions on detention pending actual extradition, the requested person must be able to challenge those decisions before a ‘court’. Although such a ‘court’ does not have to be a court in the traditional sense, it must have a ‘judicial character’ and its independence and impartiality must be guaranteed. ¹²⁷ Article 5(4) does not require the parties to the ECHR to set-up a system of automatic review by such a ‘court’. ¹²⁸ Neither does this provision afford a right of appeal against the decision of such a ‘court’, because Article 5(4) is a lex specialis of Article 13. ¹²⁹

By contrast, Article 12 FD EAW requires decisions ‘on whether the requested person should remain in detention’ to be taken by the ‘executing judicial authority’, thereby excluding the Minister of Justice, a public prosecutor who does not meet the ‘necessary independence’ requirement or the police. As to the right of appeal, according to the case-law of the ECJ the provisions of the FD EAW themselves already provide for a procedure that complies with the requirements of the right to an effective remedy before a tribunal guaranteed by Article 47 of the Charter. ¹³⁰ Therefore, there is no right of appeal. ¹³¹ However, if a Member State designates a public prosecutor as ‘executing judicial authority’ his/her decisions must be capable of being subject to court proceedings that satisfy the requirements of effective judicial protection. ¹³²

As to decisions on actual extradition, Article 13 ECHR requires an effective remedy before a ‘national authority’. However, this provision is only applicable in case of an arguable claim of a violation of another ECHR right. ¹³³ The ‘national authority’ that is to provide the effective remedy does not always have to be a ‘judicial authority’ in the strict sense. ¹³⁴

By contrast, the provisions of the FD EAW themselves already provide for a procedure that complies with the requirements of Article 47 of the Charter. Since they require intervention by an ‘executing judicial authority’, they provide for a system in which courts or judges either take the relevant decision themselves or are able to review the relevant decision if that decision is taken by a public prosecutor. ¹³⁵

Comparison

With regard to decisions on detention pending actual extradition, the ECE in combination with Article 5(1)(f) ECHR does not require intervention by a ‘judicial authority’ and leaves the determination of the competent national authority up to the States, whereas concerning decisions on actual extradition Article 13 ECHR does not necessarily require intervention by a court. In this regard, the FD EAW, as interpreted by the ECJ, offers a higher level of protection. Decisions on detention and actual surrender must be taken by a court or a judge, or (in case of decisions taken by a public prosecutor) must be reviewable by a court or a judge.

Under Article 5(4) ECHR, the intervention of a ‘court’ is dependent on action by the person concerned, and under Article 13 ECHR intervention by a judicial or non-judicial authority is dependent on an arguable claim by the person concerned. Again, in this regard, FD EAW, as interpreted by the ECJ, offers a higher level of protection. Since the intervention by a ‘judicial authority’ is required with regard to decisions on detention and decisions on actual surrender, intervention by a court or judge is automatic and not dependent on a claim of a violation of rights (whether fundamental rights or other rights). If and only if the ‘judicial authority’ is a public prosecutor, it depends on the national laws of the executing Member State whether the court proceedings are automatic or dependent on action by the requested person.

Concluding evaluation

The FD EAW, as interpreted by the ECJ, establishes a system in which the issuing and executing of EAWs takes place under ‘judicial’ supervision. ¹³⁶ This judicial supervision includes the second and final stage of EAW proceedings in the executing Member State: the proceedings concerning actual surrender and detention pending actual surrender. When compared to the extradition regime under the ECE and the ECtHR, the FD EAW sets a higher bar. In principle, only courts or judges may take decisions on actual surrender and on detention pending actual surrender. If a Member State designates, as ‘executing judicial authority’, public prosecutors who meet the ‘necessary independence’ requirement, their decisions must be capable of being subject to proceedings before a court or a judge. In essence, therefore, the FD EAW requires that decisions are taken by a court or a judge or, in the case of decisions taken by a public prosecutor, that decisions are amenable to review by a court or a judge.

Could the ECJ have interpreted the concept of ‘executing judicial authority’ differently, for example, by taking into account the specific context of actual surrender? After all, the proceedings concerning actual surrender follow a final decision to surrender the requested person that is already taken by a court, a judge or a public prosecutor who meets the requirement of the ‘necessary independence’. Perhaps, but a different interpretation, for example, one that leaves the Member States room to designate other authorities as competent ‘executing judicial authorities’, would certainly not have contributed to the consistency between the interpretations of the various provisions of the FD EAW. ¹³⁷ It would have resulted in different definitions of the concept ‘executing judicial authority’ for the proceedings leading to the final decision on surrender and for the subsequent proceedings concerning actual surrender, respectively. Such a lack of consistency could have hindered the correct transposition and application of the FD EAW, which were real issues (see supra).

Apart from the objection based on the need to ensure consistency, the argument that there is already a final ‘judicial’ decision to surrender gives rise to another objection. The issues to be decided under Articles 23(3)–(4) and 24(1) FD EAW are not trivial ones and have a serious impact on the fundamental rights and/or the interests of the requested person, as they concern, for example, the life or health of the requested person (Article 23(4)) or his rights of defence in the executing Member State (Article 24(1)). Furthermore, any postponement of actual surrender, in principle, can be accompanied by a further period of detention pending actual surrender going beyond the period of ten days after the final ‘judicial’ decision to surrender. That final ‘judicial’ decision does not cover the issues under Articles 23(3)–(4) and 24(1) nor does it cover the concomitant prolongation of detention, whereas these issues, both inherently and on account of their consequences (detention), merit intervention by a ‘judicial authority’.

In any case, the requested person has a right to an effective remedy before a ‘tribunal’, if his/her rights that are guaranteed by EU law are violated. This right to an effective remedy does not just concern rights guaranteed by primary EU law, such as the fundamental right to liberty (Article 6 of the Charter) or the rights of defence in criminal cases (Article 48 of the Charter), but also rights conferred by secondary EU law, such as the FD EAW. Of course, Articles 23(3)–(4) and 24(1) are not formulated as provisions that expressly give rights to the requested person. However, Article 23(3) is formulated as a provision that obligates the issuing and executing authorities to set a new date for actual surrender if force majeure prevents the actual surrender of the requested person within the period of ten days after the final decision to surrender. Unlike Article 23(3), both Articles 23(4) and 24(1) give discretion to the ‘executing judicial authority’. Nevertheless, in exercising discretion under Articles 23(4) and 24(1), the ‘executing judicial authority’ is under an obligation to apply the EU law concepts ‘serious humanitarian reasons’, ‘prosecution in the executing Member State’ and ‘serving a sentence [in the executing Member State]’. These obligations resting on the executing judicial authority logically correspond to the rights of the requested person that the correct procedure be followed and that these concepts are applied in accordance with EU law. Consequently, pursuant to Article 47(1) Charter, the Member States must provide the requested person with an opportunity for an effective judicial remedy that can guarantee that these rights are complied with. ¹³⁸

By conferring the tasks on the executing judicial authority, Articles 23(3)–(4) and 24(1) as interpreted by the ECJ, in effect, incorporate the effective judicial remedy required by Article 47(1) of the Charter in the procedure leading to the decision taken by the executing judicial authority, ¹³⁹ unless the executing judicial authority is a public prosecutor in which case the decision must be subject to an effective remedy before a court or a judge. The ECJ’s interpretation, therefore, has the potential to enhance the efficiency and speed of the proceedings concerning (detention pending) actual surrender. That interpretation does not impair the effectiveness of those proceedings. The case-law of the ECJ requires ‘intervention’ by the executing judicial authority, but does not exclude that non-judicial authorities play a role in those proceedings, as long as that role is limited to providing practical and administrative assistance to the executing judicial authority. Thus, that case-law leaves enough leeway to the Member States for a set-up of proceedings in which non-judicial authorities contact the authorities in the issuing Member State, make the necessary provisional travel arrangements with those authorities, and otherwise make relevant provisional preparations, but in which it is up to judicial authorities to decide on postponement of actual surrender.

In conclusion, the interpretation given by the ECJ to the concept of ‘executing judicial authority’ in the context of decisions on actual surrender ensures a consistent understanding of the provisions of the FD EAW. It strikes a fair balance between the duty to protect the requested person’s (fundamental) rights and the need to ensure the effectiveness of EAW proceedings, while, on the whole, it also gives the Member States the possibility of arranging for judicial protection efficiently.