THE BOTTOM LINE
- New Hurdle for Repatriation: Companies with employees convicted abroad can no longer assume they will automatically be allowed to serve their sentences in their home country. A Dutch court has confirmed this new procedural barrier.
- Issuing State Consent is Now Key: A recent Court of Justice of the European Union (CJEU) ruling now requires the country that issued the sentence to formally consent before another EU member state can take over its enforcement.
- Increased Uncertainty and Delay: This adds a significant step and potential delays to European Arrest Warrant (EAW) proceedings, creating uncertainty for individuals and the companies supporting them through cross-border legal challenges.
THE DETAILS
In a case with significant implications for cross-border criminal enforcement, the District Court of Amsterdam has paused proceedings concerning a European Arrest Warrant from Italy. The case involved a Dutch national sentenced to nearly four years in prison for public violence. Italy sought his surrender to serve the sentence. The individual, citing strong social and family ties to the Netherlands, requested to serve his time locally—a standard procedure under Dutch law designed to aid social reintegration. While the Dutch court was inclined to grant this request, its hands were tied by a pivotal new ruling from the EU’s top court.
Before addressing the core issue, the Amsterdam court dealt with the fact that the Italian conviction was delivered in absentia (in the defendant’s absence). The defense argued the surrender should be refused on these grounds. However, the court chose not to, pointing to the individual’s “careless” conduct. He had provided an incorrect address to Italian authorities and failed to act when the final judgment was personally served on him in the Netherlands. This serves as a stark reminder that courts will scrutinize an individual’s diligence in their own legal proceedings, even when they are not physically present.
The crucial development, however, came from the CJEU’s recent decision in the C.J. case (C-305/22). This ruling fundamentally changes the process for sentence takeover. Previously, an EU member state like the Netherlands could unilaterally decide to enforce a foreign sentence for one of its nationals. The C.J. ruling now mandates a more collaborative approach. The executing state (the Netherlands) must now formally request and receive consent from the issuing state (Italy). This consent must be provided through a specific certificate (under Framework Decision 2008/909/JHA) along with the original judgment. Consequently, the Amsterdam court has put the case on hold, directing the prosecutor to obtain these necessary documents from Italy before it can make a final decision.
SOURCE
District Court of Amsterdam
