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Fiches Belges: France

European Arrest Warrant (901)

1. MEASURE IMPLEMENTATION

France

Is this measure possible in your Member State under International Judicial Cooperation?

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States was transposed into national law by an Act of 9 March 2004, complemented by an Act of 5 August 2013 transposing in particular the provisions of Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. The provisions on the implementation of the European Arrest Warrant are set out in articles 695-11 to 695-46 of the Code of Criminal Procedure. The European Arrest Warrant procedure is not enforceable, in the State of execution, in cases where the offence(s) took place before 1 November 1993. The European Arrest Warrant can be transmitted directly to the competent judicial authority and/or via the SIS, and/or via Interpol.

2. LEGAL FRAMEWORK

France

International legal framework applicable for this measure in your Member State

Framework Decision on the European Arrest Warrant and the transposition provisions inserted into the Code of Criminal Procedure.

3. COMPETENT AUTHORITY TO:

France

* receive the request/decision for judicial cooperation

The Prosecutor General of the competent court of appeal (with jurisdiction over the place of residence of the person or over the location where the person is in custody) The Prosecutor General of the court of appeal of Paris if the offences relate to terrorism.

* execute/recognise the measure (if other than the receiving authority)

The investigation chamber of the competent court of appeal (to which the matter is referred by the Prosecutor General).

4. ACCEPTED LANGUAGES

France

Accepted languages for the request/decision

French

5. EXECUTION DEADLINE

France

Deadlines for the execution of the request/decision (where applicable)

The principle laid down in article 695-37 of the Code of Criminal Procedure: the person is to be surrendered at the latest within the 10 days following the date of the final surrender decision issued by the investigation chamber of the court. In the event of force majeure, the Prosecutor General must immediately inform the issuing judicial authority and agree a new surrender date with that authority. The person is then surrendered, at the latest, within the 10 days following the new date thus agreed. Exceptions: when, in specific cases and particularly if, subsequent to an appeal, the final decision cannot be issued within 60 days of the person’s arrest, the competent Prosecutor General shall immediately inform the issuing authority of this, stating the reasons for the delay. This time period is then extended by a further 30 days (article 695-43 of the Code of Criminal Procedure). Finally, when, in exceptional circumstances, particularly following a judgment of the Court of Cassation with a reference, the final decision has not been taken within 90 days of the date of arrest, the Prosecutor General shall inform the Ministry of Justice of this and the Ministry of Justice shall inform Eurojust, stating the reasons for the delay (article 695-43 of the Code of Criminal Procedure).

6. CONCISE LEGAL PRACTICAL INFORMATION

France

a. Special requirements

Transmission of the European Arrest Warrant [EAW]: Within 6 days of the date of the arrest, by any secure means enabling the retention of a written record and enabling the verification of its authenticity (transmission by fax and transmission by email are sometimes accepted under case law).

b. Other useful information

Grounds for refusal are either mandatory (695-22 Code of Criminal Procedure) or discretionary (695-24 Code of Criminal Procedure). Cases in which refusal to execute an EAW is mandatory: • Offences which could be prosecuted and tried in France and which have been the subject of an amnesty (695-22 1°) • Offences already tried in France, in another Member State or in a Third State and either the person has been convicted and served his sentence or it has not been possible to convict the person because of the rules of the convicting State (ne bis in idem – the double jeopardy principle) (695-22 2°) • The person who is the subject of the European Arrest Warrant was under 13 years of age at the time of the offences (695-22 3°) • The offences could have been prosecuted and tried in France and the limitation period has expired under French law (695-22 4°) • The European Arrest Warrant was issued on grounds of sex, race, religion, ethnicity, nationality, political opinions or sexual orientation (695-22 5°) • The facts (the conduct) do(es) not constitute an offence under French law and are not included in the list of 32 offences provided under article 695-23 subparagraph 2 of the Code of Criminal Procedure, or the facts are included in the list of 32 offences but they are not punishable by a sentence of 3 years’ imprisonment (695-23 subparagraph 1). A new ground for refusal has been introduced by the Act of 5 August 2013 transposing Framework Decision 2009/299/JHA enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial: Art. 695-22-1: When the European Arrest Warrant has been issued for the purpose of the execution of a sentence or of a detention order, its execution shall also be refused if the person concerned did not appear in person at the trial which culminated in the passing of the sentence or the imposing of the detention order unless, according to the information provided by the issuing Member State in the European Arrest Warrant, the case falls within one of the following categories: “1° The person was informed, in an appropriate legal form and effectively, in an unequivocal, unambiguous manner and in a timely manner, by means of a summons or by any other means, of the date and of the place fixed for the trial and of the possibility that an order could be issued against him if he did not appear in court; “2° Having received notification of the date and place of the trial, he was defended during the trial by a lawyer (by counsel), designated either by himself or at the request of the public authority, whom he had instructed for this purpose; “3° Having received notification of the decision and having been expressly informed of his right to appeal against the decision to enable him to obtain a new examination of the merits of the case, in his presence, by a jurisdiction which has the power to take a decision which sets aside or substitutes the initial decision, he expressly indicated that he did not contest the initial decision, or he did not exercise, within the deadline of which he was informed, his opportunity to appeal. “4° The decision, of which he was not notified, must be notified to him as soon as he is surrendered and he must, furthermore, be informed of his right to appeal, provided under 3° above, as well as the time limit within which he may exercise his right to appeal”. Cases in which refusal to execute an EAW is discretionary: • If there are proceedings pending before the French courts or the case has been closed in France (with no further action) with regard to the offences which are the subject of the European Arrest Warrant (695-24 1°) • If the person is a French national or has been living lawfully and on an uninterrupted basis for at least five years on the national territory and if the conviction decision is enforceable on French national territory under article 728-31 of the Code of Criminal Procedure (695-24 2°, as amended by the Act of 5 August 2013 in view of the judgment of the Court of Justice of the European Union of 5 September 2012 in the matter of Jorge Lopes da Silva and of the transposition of Framework Decision 2008/909/JHA on the recognition of custodial sentences) • If the offences were committed, in whole or in part, on French territory (695-24 3°) • If the offences were committed outside the territory of the issuing State and French law does not authorise the prosecution of those offences when they are committed outside of the French national territory (695-24 4°). Assurances which can be requested (article 695-32 of the Code of Criminal Procedure) The investigation chamber of the court can make the execution of a European Arrest Warrant subject to an assurance that: • the person can lodge an objection to the judgment passed in absentia; • the person can be returned to France to serve the sentence imposed by the foreign court if the person is a French national or if the person has been living lawfully and on an uninterrupted basis for at least five years on the national territory (“assurance of return”). Request for further information (article 695-33 of the Code of Criminal Procedure) If the investigation chamber considers that the information provided by the issuing Member State in the European Arrest Warrant is insufficient to enable it to rule on the surrender of the person it will ask the judicial authority of the issuing State, to provide the necessary supplementary information, and this supplementary information must reach the investigation chamber within ten days. Suspension of surrender (article 695-38 of the Code of Criminal Procedure) The investigation chamber which granted the surrender can temporarily suspend the surrender for serious humanitarian reasons. The investigation chamber will determine the duration of the suspension of the execution of the European Arrest Warrant. Once this time period has expired it is the responsibility of the Prosecutor General to agree a new surrender date with the issuing State. Deferred surrender (article 695-39 of the Code of Criminal Procedure) When the person whose surrender is being sought is being prosecuted in France or has already been convicted in France and must serve a sentence in France for a different offence, the investigation chamber may, after having ruled on the execution of the European Arrest Warrant, defer (postpone) the surrender of the person. The Prosecutor General shall then immediately inform the issuing judicial authority of the deferral. Temporary surrender (article 695-39 of the Code of Criminal Procedure) The investigation chamber which decides to defer the surrender can also authorise the temporary surrender of the person. The Prosecutor General shall immediately inform the issuing judicial authority and shall agree with the issuing authority, in writing, the conditions and time period of the temporary surrender. Competing European Arrest Warrants or competing obligations to execute a European Arrest Warrant and an extradition request In the event of competing EAWs/extradition requests it is the investigation chamber that decides, where appropriate after consultation with Eurojust, taking into account the degree of gravity and the place where the offence was committed, the dates of the European Arrest Warrants and whether a European Arrest Warrant has been issued for the purpose of prosecution or of executing a sentence (article 695-42 Code of Criminal Procedure). Extension of the surrender and the principle of speciality As in extradition law, because of the principle of speciality, the person being surrendered to the executing State cannot be prosecuted or punished for any offence other than the offence for which he is being surrendered and which was committed before his surrender. This essential rule is enshrined in article 27 of the Framework Decision which states that a person who has been surrendered cannot be prosecuted, convicted or deprived of his liberty for an offence committed before his surrender other than the offence for which he has been surrendered. Several exceptions are nonetheless provided under article 27 paragraphs 3 and 4, and, in particular, if the executing judicial authority which has surrendered the person gives its consent (article 27 paragraphs 3g and 4). The latter exception is repeated in article 695-46 of the Code of Criminal Procedure which provides that the investigating chamber before which the person appeared is responsible for dealing with every request which comes from the competent authorities of the issuing Member State in respect of consent to prosecution or the execution of a sentence or a court order pronounced in respect of offences other than those for which the person has been surrendered and which were committed before that (request for extension of surrender). The request for the extension of the surrender from the issuing State takes the form of a new European Arrest Warrant. Article 695-46 paragraph 3 provides that the request for an extension must include a report recording the statements of the person concerned. Surrender to another Member State: In the same way, because of the principle of speciality, the investigating chamber shall rule on every request from the competent authorities of the issuing Member State with a view to consenting to the surrender of the person sought to another Member State for the purpose of prosecution or the execution of a sentence or a detention order for any offence which took place before the surrender other than the offence for which this measure is being carried out. Article 695-46 paragraph 3 provides that the request must include a report recording the statements of the person concerned.

Last reviewed on 6 July 2016 by EJN Secretariat

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