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ECJ at odds with AG on European Arrest Warrants and double jeopardy in first reference from Croatian criminal courts


The Court of Justice of the European Union (“CJEU”) has given judgment in Case C-268/17 AY, an important case concerning the European Arrest Warrant system.  In May, we reported here on the Opinion of AG Szpunar in the same case. The preliminary ruling was given in the context of the first preliminary reference from the Croatian criminal courts since the Republic of Croatia’s accession to the European Union in 2013. 

The contrast between AG Szpunar’s Opinion and the Judgment of the Court also exposes significant differences as to (1) the criteria for admissibility of a preliminary reference; and (2) the scope of the grounds of non-execution of European Arrest Warrants (“EAWs”).

The case concerns two EAWs issued by the Croatian courts in respect of an individual, AY, who is the subject of criminal proceedings in Croatia.  The Hungarian authorities refused to execute the first EAW, because the same allegations had already been investigated in Hungary, and the investigation had been closed with no further proceedings. 

The Croatian court referred a number of questions to the CJEU, relating to whether the Hungarian authorities were entitled to refuse to execute the EAWs. 

AG Szpunar had considered that the majority of the questions referred were inadmissible because irrelevant to the Croatian criminal trial proceeding in AY’s absence, and an attempt by the Croatian court to “apply and interpret the law of the executing Member State” which “moves dangerously close to a breach of… mutual trust” between Member States (para 32 of the Opinion).  The Court has found that all of the questions referred were admissible because they “enjoy a presumption of relevance” (para 25) and because the Croatian authorities might decide to withdraw the EAWs (para 27).

On the substance of the questions referred, the Court agreed with AG Szpunar on the following points:

  1. Like the AG (paras 35-39 of the Opinion), the Court found that an executing Member State is obliged to 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 32-36).
  2. The Court considered that the mandatory ground of non-execution in Article 3(2) of Council Framework Decision 2002/584/JHA (the “Framework Decision”) did not apply to this case, because AY had been interviewed as a witness in the Hungarian proceedings, rather than being a suspect or defendant to them (paras 38-46).  This was also the Opinion of the Advocate General (paras 45-47 of the Opinion).

The Court differed substantially from the Advocate General in relation to the application of the optional ground for non-execution in Article 4(3) of the Framework Decision.  Importantly, the Court held that this and the other grounds for non-execution of a European Arrest Warrant “must be interpreted strictly” (para 52).  Since the Hungarian investigation was conducted against an unknown person, it could not give rise to the application of Article 4(3) (para 58).  AG Szpunar’s opinion had been that the executing Member State could refuse to execute the EAW where the requested person had not been a suspect in the executing Member State’s proceedings, provided that the authorities had examined the possibility that he had committed the offence (paras 58-69 of the Opinion). 

The judgment of the CJEU is here.

Maya Lester QC and Sarah Abram represented AY, the individual who is the subject of the European Arrest Warrant, instructed by Peters & Peters Solicitors LLP.  Jonathan Scott assisted with this case during his pupillage.