It's been a busy summer at the Court of Justice which has handed down its second judgment using the urgent preliminary reference procedure. The judgment in Case C-296/08 PPU Santesteban Goicoechea, handed down on August 12th 2008 concerns the European arrest warrant and Framework Decision 2002/584/JHA. So it is not about cross-border domestic strife this time, as the first case using this procedure was, but chasing down a bad guy.
Mr Santesteban Goicoechea was doing time in France. Then in October 2000 the Spanish authorities, requested his extradition of for offences allegedly committed in Spain in February and March 1992, described as the storing of weapons, the illegal possession of explosives, the offence of unlawful use of a motor vehicle belonging to another, the offence of changing car registration plates, and the offence of belonging to a terrorist organisation. The extradition request was made on the basis of the European Convention on Extradition of December 13th 1957 (For more information on that convention, see here). The French judicial authorities refused extradition on the ground that the offences for which extradition was sought were statute-barred under French law.
Then the Spanish authorities issued a European arrest warrant against Santesteban Goicoechea on March 31st 2004 referring to the same acts as the extradition request of October 2000. That warrant was not enforced: Because of the date of the acts and the statement made pursuant to Article 32 of the Framework Decision, the warrant could be regarded only as a mere request for a provisional arrest, to be dealt with under the system of extradition applicable before January 1st 2004, that is, the European Convention on Extradition of December 13th 1957. However, the offences were statute-barred under French law. And because Santesteban Goicoechea was doing jail time in France, no surrender to the requesting member State could have been carried out until after that sentence had been served.
Mr Santesteban Goicoechea was to be released on June 6th 2008. Since the impossibility of making use of a European arrest warrant in view of the date of the acts and the statement made pursuant to Article 32 of the Framework Decision had been pointed out by the French judicial authorities, a request for provisional arrest was made on May 27th 2008 by the Juzgado Central de Instrucción (Central Court of Investigation) of the Audiencia Nacional (National High Court, Spain) in respect of the same acts, with a view to a request for extradition based on the 1996 Convention relating to extradition between the Member States of the European Union. On 28 May 2008 Mr Santesteban Goicoechea was detained for the purpose of extradition by the Procureur de la République (Public Prosecutor). The Spanish authorities requested his extradition on June 2nd 2008 under the 1996 Convention.
But there was a problem. Santesteban Goicoechea claimed that Spain could not use the 1996 Convention and challenged his extradition before the French courts. The Framework Decision provides in Article 31 that from January 1st 2004 it is to replace the corresponding provisions of the conventions – including the 1996 Convention – applicable in the field of extradition in relations between the member States. Article 31(2) of the Framework Decision provides for the possibility of some member States continuing to apply certain bilateral or multilateral agreements in force at the time of adoption of the Framework Decision. They must, however, notify those agreements within three months from the entry into force of the Framework Decision. The problem was that Spain has not made any notification to that effect.
Thus, the French courts seised of Santesteban Goicoechea's challenge to the extradition proceedings referred a couple of questions to the Court of Justice about whether the Framework Decision could apply.
In its first question the French court asked whether Article 31 of the Framework Decision must be interpreted as meaning that, having regard to the word ‘replace’ in paragraph 1 of that article, the failure of Spain to notify that it intends to apply bilateral or multilateral agreements in accordance with Article 31(2) of the Framework Decision has the consequence that that member State cannot make use of extradition procedures other than the European arrest warrant procedure with another member State, such as France, which has made a statement pursuant to Article 32 of the Framework Decision.
The Court of Justice held that Article 31 of the Framework Decision refers only to the situation in which the European arrest warrant system is applicable, which is not the case where a request for extradition relates to acts committed before a date specified by a Member State in a statement made pursuant to Article 32 of the Framework Decision. It notes that France made a statement in accordance with Article 32 of the Framework Decision, declaring that, as executing State, it will continue to deal with requests relating to acts committed before November 1st 1993, the date of entry into force of the Maastricht Treaty, in accordance with the extradition system applicable before January 1st 2004. As the acts of which Santesteban Goicoechea is accused in Spain were committed in February and March 1992, the Framework Decision did not apply to the extradition request.
If the Framework Decision did not apply to Santesteban Goicoechea's extradition, the question remained what convention did apply and whether the 1996 Convention could apply when it became applicable only after January 1st 2004 in France. That was essentially the object of the second question referred to the Court of Justice.
To cut a long and rather complicated story short, the Court held that Article 32 of the Framework Decision does not preclude the application by an executing member State of the 1996 Convention, even where that convention became applicable in that member State only after 1 January 2004.
Interestingly, two preliminary points on the jurisdiction of the Court of Justice to answer the questions referred came up.
The first point was whether the Court of Justice was properly seised by the referring court: The order for reference referred to Article 234 EC only, although the interpretation sought concerns the Framework Decision, an act adopted under Title VI of the EU Treaty in which special jurisdictional rules apply in accordance with Article 35 EU.
The Court held that it did have jurisdiction to reply to the questions of which it was properly seised. It pointed out that, in accordance with Article 46(b) EU, the provisions of the EC and EAEC Treaties concerning the powers of the Court of Justice and the exercise of those powers, including the provisions of Article 234 EC, apply to the provisions of Title VI of the EU Treaty under the conditions laid down by Article 35 EU. It follows that the system under Article 234 EC applies to the Court’s jurisdiction to give preliminary rulings under Article 35 EU, subject to the conditions laid down by that provision (see, Case C‑105/03 Pupino, paragraphs 19 and 28, and Case C‑467/05 Dell’Orto, paragraph 34). France stated, by a declaration of March 14th 2000 taking effect from July 11th 2000, that it accepted the jurisdiction of the Court to rule on the validity and interpretation of the acts referred to in Article 35 EU in accordance with the arrangements laid down in Article 35(3)(b) EU (As we had noted here, by the way. And for the updated list, see here.)
Consequently, the Court stated that the fact that the order for reference does not mention Article 35 EU but refers to Article 234 EC cannot of itself make the reference for a preliminary ruling inadmissible. This conclusion is reinforced by the fact that the EU Treaty neither expressly nor by implication lays down the form in which the national court must present its reference for a preliminary ruling (see Case C‑467/05 Dell’Orto, paragraph 36).
The second preliminary point was whether the French court referring the questions was a "court" within the meaning of Article 234 EC. The reference was made in the course of proceedings brought before the Chambre de l’instruction (Indictment Division) of the Cour d’appel de Montpellier (Court of Appeal, Montpellier). The Court of Justice noted that when indictment divisions give opinions on requests for extradition they exercise administrative powers, but that does not lead to the conclusion that those bodies are not courts or tribunals within the meaning of Article 234 EC.
The Court of Justice recalled that according to settled case-law, in order to determine whether a body making a reference is such a court or tribunal, which is a question governed by EC law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see inter alia Case C‑53/03 Syfait and Others paragraph 29 and the case-law cited). Moreover, a national court may refer a question to the Court only if there is a case pending before it and if it is called on to give judgment in proceedings intended to lead to a decision of a judicial nature (see inter alia Syfait and Others, paragraph 29, and Case C‑96/04 Standesamt Stadt Niebüll, paragraph 13).
It held that it is not disputed that the indictment divisions of courts of appeal satisfy the above conditions of establishment by law, permanence and independence. Their involvement is compulsory in extradition matters and they give decisions in proceedings of a judicial nature in the course of which the person concerned is heard, as is the public prosecutor’s office, at a hearing inter partes. They review the conditions of lawfulness of extradition and give a reasoned opinion. If the opinion is unfavourable, once it has become final it puts an end to the extradition procedure and automatically entails the release of a requested person who has been detained pending extradition. In addition, as the French Government explained in its observations, the Cour de cassation (Court of Cassation) has since 1984 accepted that an opinion of an indictment division can be the subject of an appeal in cassation based on errors of form and procedure. That possibility of an appeal on a point of law is now laid down in Article 696-15 of the Code de procedure pénale. Finally, where an appeal in the interests of the law is brought before the Cour de cassation against an opinion of an indictment division, the court rules on the substantive conditions of extradition.