Communicated on 5 October 2017
THIRD SECTION
Application no. 62318/16
Cosmin Florian CERNEA
against the Netherlands
lodged on 25 October 2016
SUBJECT MATTER OF THE CASE
The application concerns the lawfulness under Article 5 § 1 of the Convention of the applicant’s detention in the Netherlands for the purpose of his surrender – on the basis of a European arrest warrant – to Romania where he had been convicted of murder and sentenced to 13 years imprisonment. Under the Netherlands Surrender Act (Overleveringswet), a request for surrender must be determined within 90 days after the arrest of the person concerned. Past this period, a person’s detention for surrender should be suspended pending the determination of the request.
The duration of the applicant’s detention for surrender lasted longer than 90 days because the Netherlands courts decided to await answers to preliminary questions which had been put to the Court of Justice of the European Union (CJEU) by a German court in a similar case.
The applicant claims that, pursuant to domestic statutory rules, his detention should have been suspended after 90 days. The Court of Appeal rejected that claim on 3 May 2016, finding that the Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States allowed, under certain circumstances (like pending an answer to preliminary questions put to the CJEU), a longer period of detention. As this possibility had not been included in the Surrender Act, the Framework Decision has been insufficiently implemented. Considering that the interests of a correct interpretation and application of EU law and – in that connection – to put preliminary questions prevailed over the interest of the national legal order.
However, on 16 July 2015 the CJEU had given a preliminary ruling in the case Minister for Justice and Equality v. Francis Lanigan (at the request of the Irish High Court; case C-237/15) in which it held that longer period of detention for the purpose of surrender is possible provided that this is “in accordance with the law of the executing Member State”.
QUESTIONS tO THE PARTIES
1. Did the applicant’s detention for the purposes of his surrender to Romania fall within the scope of paragraph(s) (a), (b), (c), (d), (e) and/or (f) of Article 5 § 1 of the Convention?
2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the prolongation of the applicant’s detention for the purpose of his surrender to Romania beyond 90 days after his apprehension “in accordance with a procedure prescribed by law”?
3. Was the manner in which, in its decision of 3 May 2016 in the present case, the Amsterdam Court of Appeal (gerechtshof) applied the Surrender Act (Overleveringswet) in light of the Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States compatible with the requirements relating to the “quality of law” (see, for instance, J.N. v. the United Kingdom, no. 37289/12, §§ 75-78, 19 May 2016; and Ismoilov and Others v. Russia, no. 2947/06, § 137, 24 April 2008)?
4. Have any legislative initiatives been taken aimed at correcting the insufficient implementation of the Council Framework Decision 2002/584 in the Surrender Act as found by the Amsterdam Court of Appeal?
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