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The temporary surrender of an individual is a modality of implementation of a European arrest warrant, which is deprived of effect upon his return and cannot justify further detention

On May 6, 2020, the French Court of Cassation issued an important judgment regarding the effect of the temporary surrender of a person subject to a European arrest warrant (“EAW”).

In the present case the applicant, a Romanian national, was placed under judicial supervision pending his appearance before the French Hauts-de-Seine regional Supreme Court scheduled for June 2020. A first EAW was issued against him on February 6, 2019 by the German judicial authorities for the prosecution of armed robbery and aggravated violence. He was placed under custody pending extradition when he was notified of this EAW on April 4, 2019.


Then, on June 13, 2019, a second EAW was issued against him by the same authorities, for the same facts, which was followed by a second remand in custody.


By a 2-July-2019 judgment, the investigating chamber found that the German authorities no longer requested the surrender of the applicant under the first EAW and ordered his temporary surrender to the German authorities ten days later.


He was thus temporarily handed over to the German authorities from October 8, 2019 to January 28, 2020, when he returned to France under custody at the Bois d’Arcy prison.


On 30 January 2020, the applicant’s lawyer applied for bail before the investigating chamber of the Appeal Court. The request was denied.


The investigating chamber considered that because of his temporary surrender to the German authorities followed by his return to France, the proceedings before the German judicial authorities, which had not yet rendered a judgment, were only suspended pending the appearance of the accused before the French Assise Court. It concluded that his provisional surrender had not “purged” the EAW issued by the German authorities, which had not renounced it.


The applicant appealed to the Court of Cassation. The Court argued that article 695-39 of the Code of Criminal Procedure means that, when a person against whom a EAW is issued is prosecuted in France, the investigating chamber may decide to surrender him/her temporarily for the purpose of carrying out the EAW. The temporary transfer implies that the EAW has been enforced. This EAW, as a result of this enforcement, is deprived of effect upon the return of the person sought and cannot therefore justify the continuance of his/her detention. The Court of Cassation therefore quashed the judgment of the investigating chamber, arguing it breached article 695-39 of the Code of Criminal Procedure. Ruling without remanding the case, the Court ordered the applicant’s release. Source (in French): Judgment – Cass. crim., 6 May 2020, n ° 20-81183

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