The evolution of European Union criminal law (1957-2012)

State has having been committed in whole or in part in the territory of the executing
Member State or when the offences were committed outside the territory of the issuing
Member State and the law of the executing Member State does not allow prosecution for
those offences when committed outside its territory. 758
Furthermore, besides grounds for refusal, Article 5 of the Framework Decision lists
three conditions that executing State can demand for in order to agree to surrender an
individual. First, it allows for the executing Member State to make surrender dependent
upon giving the requested individual the opportunity to apply for a retrial when a
sentence was passed in absentia and he or she was not summoned or otherwise informed
of the trial. 759 Second, where a life sentence could be imposed, the executing Member
State can demand the guarantee that the sentence can be reviewed after 20 years at the
latest. 760 Finally, the surrender can be made conditional upon the return of the national or
resident in order to serve the passed sentence in the territory of the Member State of
origin. 761
The CJEU has had the opportunity to provide some guidance in the interpretation of
several of these provisions. Article 4(6) of the Framework Decision, for instance, has
been the focus of several cases brought before the Court. The provision is one of the
listed optional grounds for refusal and stipulates that an executing authority may refuse
to execute carry out an EAW issued for the purposes of executing a sentence where that
warrant concerns a person who “is staying in, or is a national or a resident of the
executing Member State” and in case that State undertakes to execute that sentence in
accordance to its domestic law.
In Kozlowski, 762 the Court was asked to clarify the meaning of the terms ‘resident’ or
‘staying in’ for the purposes of Article 4(6) of the Framework Decision. Mr. Kozlowski
had been sentenced in Poland on 28 May 2003 to five months imprisonment for
destruction of another person’s property. The sentence had become final but was not
executed immediately. Since 10 May 2006, Mr. Kozlowski was imprisoned in Stuttgart
(Germany) where he was serving a custodial sentence of 3 years and 6 months to which
he was sentenced by two judgments of the Amtsgericht Stuttgart, dated 27 July 2006 and
25 January 2007, in respect to 61 fraud offences committed in Germany. On 18 April
758 Article 4 (1)(2)(3)(4)(5)(6)and (7), ibid..
759 Article 5(1), ibid..
760 Article 5(2), ibid..
761 Article 5(3), ibid..
762 Case 66/08 Proceedings concerning the execution of a European arrest warrant issued
against Szymon Kozlowski ECR I-06041 [2008].
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