Fiches Belges

Under French law, a European Arrest Warrant is a judicial decision issued by a judicial authority of a Member States aiming at the arrest and the surrender of a person sought for the purpose of prosecution or execution of a custodial sentence. An EAW may be issued under the requirements of article 8 of the Framework decision 2002/584/JHA as transposed at article 695-13 of the Code of Criminal Procedure. Where the person is arrested, the investigation chamber have a deadline of 10 days to examine the case otherwise the person will be compulsory released (695-36). An EAW may be issued for acts punishable under the law of the issuing Member State by a custodial sentence or a detention order for a duration of 1 year or more or where such sentences have been passed, by a custodial sentence for a period of four months or more. 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 or in another Member 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° as amended by the Act of 24 December 2021) • 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 European Arrest Warrant was issued on grounds of sex, race, religion, ethnicity, nationality, political opinions or sexual orientation or gender identity (695-22 5°). Cases in which refusal to execute an EAW is discretionary: • When the European Arrest Warrant has been issued for the purpose of the execution of a sentence or of a detention order, its execution can 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 (695-22-1 as amended by the Act of 24 December 2021): “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" • If the facts (the conduct) do(es) not constitute an offence under French law or are not included in the list of offences provided under article 694-32 of the Code of Criminal Procedure and are not punishable by a sentence of 3 years’ imprisonment (695-23 subparagraph 1 and 2 as amended by the Act of 24 December 2021) • 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, has established his or her residence on French territory or remains on it 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 24 December 2021) • 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°) • If the requested person has been the subject of a final decision by the judicial authorities of a third State in respect of the same acts as those which are the subject of the European arrest warrant, provided, in the case of a conviction, that the sentence has been executed or is in the process of being executed or can no longer be enforced under the laws of the convicting State (695-24 5° as added by the Act of 24 December 2021) • If the acts for which the European arrest warrant was issued could be prosecuted and judged by the French courts and if the statute of limitations has expired on the prosecution or the sentence (695-24 6° as added by the Act of 24 December 2021).

Framework Decision on the European Arrest Warrant and the transposition provisions inserted into the Code of Criminal Procedure from articles 695-11 to 695-46.

The competent authority to receive the EAW is the General Prosecutor 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) and the Prosecutor General of the court of appeal of Paris if the offences relate to terrorism. The competent authority to execute the EAW and to decide on surrender is the investigation chamber of the competent court of appeal (to which the matter is referred by the General Prosecutor).

French.

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 General Prosecutor 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).

The rules are not the same if the State does not apply the EAW and depends on the applicable legal framework (e.g. European Convention on Extradition of the 13 December 1957 and its 2nd, 3rd and 4th Additionnal Protocols). The transmission of the EAW shall occur 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). 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 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 3 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.