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1st Croatian criminal reference to ECJ on important EAW issues is inadmissible, says AG


Advocate General Szpunar has handed down his Opinion in Case C-268/17 AY, an important case on the European Arrest Warrant (EAW) system and the principle of double jeopardy (ne bis in idem). 

This is the 1st preliminary reference from the Croatian criminal courts since the Republic of Croatia’s accession to the EU in 2013. The case concerns 2 EAWs issued by the Croatian courts in respect of a Hungarian individual, AY, who is subject to criminal proceedings in Croatia in his absence.  The Hungarian authorities refused to execute the EAWs, because the same allegations had already been investigated in Hungary, and the investigation had been closed for lack of evidence and no further proceedings permitted. 

The Croatian court’s reference to the Court of Justice asks various questions about whether the Hungarian authorities were entitled to refuse to execute the EAWs.  AG Szpunar considers all but one of the questions referred re inadmissible (as AY had argued).  The questions relate to the obligations of the Hungarian authorities in connection with the execution of the EAWs, as opposed to the obligations of the Croatian authorities in issuing the EAWs.  The AG’s view was that the attempt by the Croatian court to “apply and interpret the law of the executing Member State [Hungary]… moves dangerously close to a breach of… mutual trust” between Member States (para 32).

AG Szpunar answered the last question, expressing the view that an executing Member State must adopt a decision on each EAW issued in respect of a requested person, even if an EAW had previously been issued in respect of the same person by the same Member State (paras 35-39). 

In case the ECJ does not agree that the request is inadmissible, AG Szpunar expressed the following opinions on the other questions:

  1. The mandatory ground for non-execution in Article 3(2) of Council Framework Decision 2002/584/JHA did not apply to this case, because AY had been interviewed as a witness in the Hungarian proceedings, rather than being formally a “suspect” or defendant to them.
  2. The optional ground for non-execution in Article 4(3) of the Framework Decision would allow the executing Member State to refuse to execute the EAW in the following circumstances (which are met in the context of Hungary’s investigation of AY):
    1. the executing Member State should be competent to prosecute the relevant offence, but not have initiated proceedings, or have brought them to an end; and
    2. the requested person need not have been a suspect in the executing Member State’s proceedings, provided that the authorities had examined the possibility that the requested person had committed the offence.

The judgment of the Court of Justice is the next step. The Advocate General’s Opinion (which does not bind the Court) is here.

Maya Lester QC and Sarah Abram represented AY, the individual subject to the EAW, instructed by Peters & Peters Solicitors LLP.