Court Holds Dutch Prosecutors Can’t Expand European Warrants

A canal in Amsterdam, Netherlands. (AP Photo/Peter Dejong)

LUXEMBOURG (CN) — Dutch public prosecutors cannot extend the scope of European Union arrest warrants because they answer to a higher political body, the EU’s top court held Tuesday. 

The Dutch Public Prosecution Service is not an “executing judicial authority” under the European arrest warrant system, the European Court of Justice found, as it takes direction from the Netherlands Ministry of Justice. 

Under the EAW system, warrants issued by any EU member states are valid across all countries in the 27-member political and economic union. However, the EAW directive framework specifies that “a person who has been surrendered may not be prosecuted, sentenced or otherwise deprived of liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.” Article 27 of the directive offers a few exceptions to this rule, including if an executing judicial authority approves the change. 

The case before the Court of Justice involves the 2017 arrest of a Belgian man, referred to as A.Z. in court records, by Dutch authorities. A.Z. was wanted in Belgium on charges of forgery and fraud, and a Belgian court had issued an EAW for him. He was turned over to the Belgian authorities in December 2017. 

In January 2018, the Belgian court issued a second EAW for crimes not listed in the first warrant. The Amsterdam public prosecutor’s office approved the second warrant, agreeing to broaden the scope of the prosecution. 

A.Z. was convicted of the charges in both warrants and sentenced to three years in prison. He appealed his conviction, arguing that the public prosecution office cannot be considered an executing judicial authority as it is part of the Ministry of Justice. The Belgian high court sought clarification from the Luxembourg-based Court of Justice, which sided with A.Z.  

“Consent cannot in any event be given by an authority which may in exercising its decision-making power receive an instruction in a specific case from the executive and which consequently does not satisfy the necessary conditions to be characterized as an ‘executing judicial authority,’” the EU high court wrote. 

The Dutch government defended its decision, arguing that it was the Amsterdam District Court that gave approval for the initial warrant. But in the case of the second warrant, the decision was made exclusively by the public prosecutor, as the court had approved the first warrant and A.Z. had already been turned over to the Belgian authorities. 

The Belgian high court requested that any decision be limited to the case at hand, claiming a broader ruling would create confusion in the EAW system. But the Court of Justice disagreed.

“In the present case the Public Prosecutor’s Office has raised no evidence capable of proving that the criteria for interpretation upheld by the court in the present case entail a risk of serious difficulties with respect to procedures for the execution of European arrest warrants,” the ruling states. “The temporal effects of the present judgment should not be limited.”

The case now returns to the Belgian court to decide on A.Z.’s appeal.

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