In its judgment in Case C-294/16 PPU JZ (
1
) the Court of Justice ruled as follows:
‘47. (…) the concept of “detention” within the meaning of Article 26(1) of Framework Decision 2002/584/EC must
be interpreted as covering not only imprisonment but also any measure or set of measures imposed on the
person concerned which, on account of the type, duration, effects and manner of implementation of the
measure(s) in question deprive the person concerned of his liberty in a way that is comparable to
imprisonment.
(…)
53. When applying Article 26(1) of Framework Decision 2002/584/EC, the judicial authority of the Member State
which issued the European arrest warrant is required to consider whether the measures taken against the
person concerned in the executing Member State are to be treated in the same way as a deprivation of liberty,
as referred to in paragraph 47 of the present judgment, and therefore constitute detention within the meaning
of Article 26(1). If, in carrying out that examination, the judicial authority comes to the conclusion that that is
the case, Article 26(1) of Framework Decision 2002/584/EC requires that the whole of the period during
which those measures were applied be deducted from the period of detention which that person would be
required to serve in the Member State which issued the European arrest warrant.
(…)
55. However, in so far as Article 26(1) of that framework decision merely imposes a minimum level of protection
of the fundamental rights of the person subject to the European arrest warrant, it cannot be interpreted, as the
Advocate General stated at point 72 of his Opinion, as preventing the judicial authority of the Member State
that issued that arrest warrant from being able, on the basis of domestic law alone, to deduct from the total
period of detention which the person concerned would have to serve in that Member State all or part of the
period during which that person was subject, in the executing Member State, to measures involving not
a deprivation of liberty but a restriction of it.
56. It must, lastly, be borne in mind that, in the course of the examination referred to in paragraph 53 of the
present judgment, the judicial authority of the Member State which issued the European arrest warrant may,
under Article 26(2) of Framework Decision 2002/584/EC, ask the competent authority of the executing
Member State to transmit any information it considers necessary.’
4.6. Keeping the requested person in detention in the executing Member State
Following the arrest of the requested person on the basis of the EAW, the executing judicial authority must decide
whether the person needs to be kept in detention or set free until the decision on the execution of the EAW. Detention
is, thus, not necessarily required and the person may be released provisionally at any time in conformity with the
domestic law of the executing Member State (Article 12 of the Framework Decision on EAW).
When the person is not kept in detention, the competent authority of the executing Member State has a duty to take all
measures it deems necessary to prevent the person absconding (Article 12 of the Framework Decision on EAW). These
measures could include, for example, travel bans or a duty to regularly register and electronic surveillance.
The decision on detention is taken in accordance with national law and in conformity with Article 6 of the Charter of
Fundamental Rights of the European Union which provides that everyone has the right to liberty and security of person.
In its judgment in Case C-237/15 PPU Lanigan the Court of Justice held:
‘Articles 15(1) and 17 of Council Framework Decision 2002/584/JHA (…) must be interpreted as meaning that the
executing judicial authority remains required to adopt the decision on the execution of the European arrest warrant
after expiry of the time-limits stipulated in Article 17.
Article 12 of that Framework Decision, read in conjunction with Article 17 thereof and in the light of Article 6 of
the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding, in such
a situation, the holding of the requested person in custody, in accordance with the law of the executing Member
State, even if the total duration for which that person has been held in custody exceeds those time-limits, provided
that that duration is not excessive in the light of the characteristics of the procedure followed in the case in the
main proceedings, which is a matter to be ascertained by the national court. If the executing judicial authority
decides to bring the requested person's custody to an end, that authority is required to attach to the provisional
release of that person any measures it deems necessary so as to prevent him from absconding and to ensure that the
material conditions necessary for his effective surrender remain fulfilled for as long as no final decision on the
execution of the European arrest warrant has been taken.’
6.10.2017 C 335/27 Official Journal of the European Union
EN
1
) Judgment of the Court of Justice of 28 July 2016, JZ, C-294/16 PPU, ECLI:EU:C:2016:610.