Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

A list of the applicants is set out in the appendix. All applicants are represented by Mr Th.O.M. Dieben and Mr G.A. Jansen, lawyers practising in Amsterdam.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

On 25 November 2011 Mr Chylinski was stopped by police for riding a bicycle in the dark without showing lights. From an identity check it emerged that an alert had been entered in the Schengen Information System by Poland for the purpose of his arrest for surrender. He was provisionally arrested (voorlopig aangehouden) and taken into police custody (inverzekeringstelling) for three days.

Questioned by a police officer the same day, Mr Chylinski consented to his surrender to Poland without delay.

On 28 November 2011 Mr Chylinski appeared before an investigating judge (rechter-commissaris). He again consented to his immediate surrender to Poland.

On the same day the investigating judge ordered Mr Chylinski taken into initial detention on remand (bewaring). The order was in the following terms:

“Orders the requested person to be taken into detention on remand and notes that the requested person shall be released as soon as the detention on remand has lasted twenty days and the European arrest warrant has not yet been received.”

On 15 December 2011 the public prosecutor (officier van justitie) sought the prolongation by the Amsterdam Regional Court (rechtbank) of Mr Chylinski’s detention on remand, surrender having not yet taken place.

A hearing was held the same day. Mr Chylinski, represented by counsel, argued that “special circumstances” within the meaning of section 35(2) of the Surrender Act (Overleveringswet) justifying the prolongation requested did not exist. He took the view that if the Polish authorities did not come to fetch Mr Chylinski, then the Netherlands authorities should effect the transfer to Poland themselves. In his submission, an extension of the time-limits set out in Article 23 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between European Union Member States was permitted only if both the issuing and the executing Member States were prevented by force majeure from effecting the surrender. Should the Regional Court be hesitant to follow this view, he asked the Regional Court to put a preliminary question to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU).

The Regional Court gave its decision the same day. It ordered Mr Chylinski to be taken into extended detention on remand (gevangenhouding) for a further ten days from 18 December 2011 and declined to put any preliminary question to the CJEU. Its reasoning included the following:

“The public prosecutor has argued that the lack of any earlier transport from Poland constitutes force majeure for him and that he is not under any obligation to take the requested person to Poland.

The Regional Court takes the view that the public prosecutor is tasked with the actual surrender. For the actual surrender he is dependent on the Polish authorities as regards transport. The issuing state, being the party with an interest in the surrender, is responsible for the actual transport. If the actual transport cannot take place within the time-limit set by law, then this constitutes force majeure for the public prosecutor. The public prosecutor is under no obligation to take a requested person to the country that issued the European arrest warrant.

The time-limits in the Surrender Act covering actual surrender are intended to increase the efficiency and speed of the surrender procedure. This is in the first place an interest of the authorities concerned and additionally an interest of the requested person himself. The interest of the authorities concerned is not harmed since this has come into being by mutual agreement [sic].

The interest of the requested person is harmed. The extent of the harm is however limited since actual surrender can actually take place in short order, namely on 27 December, and can be justified by what has been considered above.

In view of the reasons outlined above the Regional Court sees no reason to put any preliminary questions.”

No appeal was possible against this decision.

Mr Chylinski was surrendered to the Polish authorities at Schiphol (Amsterdam) Airport on 27 December 2011.

On 10 December 2011 Mr Milkovics was provisionally arrested on the basis of an alert entered in the Schengen Information System by Hungary for the purpose of his arrest for surrender. He was taken into police custody for three days.

The public prosecutor received the relevant European arrest warrant on 12 December 2011. The following day, 13 December 2011, he ordered the extension of the police custody until such time as the Regional Court would give a decision concerning detention on remand. At the same time, however, he ordered the conditional suspension (schorsing) of the police custody.

On 15 February 2012 the Amsterdam Regional Court gave a decision ordering Mr Milkovics’s extended detention on remand, which at the same time it conditionally suspended until the date of its eventual decision on the permissibility of surrender.

On 29 February 2012 the Regional Court gave a decision finding Mr Milkovics’s surrender to Hungary permissible. Mr Milkovics was taken into detention on remand the same day.

On 8 March 2012 the Regional Court gave a decision extending Mr Milkovics’s detention on remand by a further thirty days starting on 10 March 2012. The decision noted that actual surrender had not yet taken place because of “special circumstances”.

On 12 March 2012 Mr Milkovics lodged a request for the suspension of his detention on remand. He stated that he wished to be surrendered to Hungary as soon as possible so as to prove his innocence; at all events, even in the event of a conviction the sentence would be unlikely to be more than a suspended prison sentence or a community service order given his clean criminal record and the (in his submission) relatively minor nature of the charges against him. Should the Regional Court be minded not to accede to this request, he suggested that a preliminary question be put to the CJEU.

The Regional Court gave its decision on 15 March 2012 after having held a hearing. It dismissed the applicant’s request for suspension of his detention on remand. Its reasoning included the following:

“Section 64 of the Surrender Act allows the suspension of detention on remand for the purpose of surrender until the moment at which the Regional Court has permitted the surrender. Only in exceptional circumstances does the Regional Court consider itself empowered to order the suspension of the detention on remand for the purpose of surrender after that decision; an example is the situation in which continued detention would lead to a violation of Article 5 of the Convention. The Regional Court takes the view that no exceptional circumstances are apparent that ought to lead to the suspension of the detention on remand for the purpose of surrender of the requested person. In so finding, the Regional Court notes that the requested person has spent only nineteen days in detention and that actual surrender to the Hungarian authorities is expected to take place very soon, no later than 26 March 2012. The Regional Court therefore cannot see that continuing the detention in remand for the purpose of surrender constitutes a violation of Article 5 of the Convention already now.

Nor does the Regional Court see any need to consider the request for suspension of the detention according to the standards applicable to the situation in which the Regional Court has not yet given its decision. Unlike counsel, the Regional Court does not consider the limitation of the possibility of suspension for the purpose of surrender to the period preceding the decision, as laid down in section 64 of the Surrender Act, to run counter to Article 12 of Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. That Article provides that the person requested may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding [emphasis in the original]. Clearly the Netherlands legislature has considered the restriction of the possibilities of suspension referred to above necessary to prevent the requested person absconding. Nor is it the case that the Surrender Act rules out the possibility of releasing the requested person from the decision until actual surrender takes place. It is, after all, within the power of the public prosecutor to release the requested person at any time if there should be occasion to do so. Likewise, if the public prosecutor does not seek the prolongation of the detention on remand for the purpose of surrender or if the Regional Court dismisses a request for its prolongation, then the requested person will be released provisionally until actual surrender takes place.

There is accordingly no necessity to construe [section 64 of the Surrender Act] in the light of the Framework Decision, nor is there a need for any preliminary questions [to the CJEU].”

Mr Milkovics lodged an appeal against this decision with the Amsterdam Court of Appeal (gerechtshof).

Mr Milkovics was surrendered to the Hungarian authorities at Schiphol Airport on 26 March 2012, having remained in detention until then.

The Court of Appeal held a hearing in the case on 4 April 2012. Mr Milkovics was represented by his counsel. Relying on S.T.S. v. the Netherlands, no. 277/05, ECHR 2011, his counsel asked that the appeal be declared admissible despite Mr Milkovics’s surrender nine days earlier. He challenged the decision of the Regional Court, arguing that Article 5 of the Convention and Articles 6 and 52 § 1 of the Charter of Fundamental Rights of the European Union acted to override section 64(1) of the Surrender Act and introduce a subsidiarity test. Pointing out that no appeal lay to the decision of the Court of Appeal, he again asked for a preliminary question to be put to the CJEU.

The Court of Appeal dismissed Mr Milkovics’s appeal on 18 April 2012. Its reasoning included the following:

“Given section 64 of the Surrender Act suspension of detention on remand for surrender purposes is possible only as long as no judicial decision has been taken about allowing surrender. This rule admits of exceptions only if there is an exceptional situation, in which there is a danger that the rights guaranteed by Article 5 of the Convention may be violated. There is no such situation in the present case, considering also the brief period that the requested person has spent in detention for surrender purposes in the Netherlands.

The system of the Surrender Act and [Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States] is based on the assumption that the orders of the judicial authorities of the Member States of the European Union are to be trusted as if they were decisions of the requested Member State itself.

The requested person can exercise his rights based on the Convention and related arrangements without limitation in Hungary and will have to approach the Hungarian authorities for that purpose. There is no point to any further assessment by the Netherlands courts in the given circumstances.

In view of the above, there is no need to put any preliminary questions.”

No appeal was possible against this decision.

On 31 July 2011 Mr Targus, having been spotted fishing, was asked to show his fishing licence. From an identity check it emerged that an alert had been entered in the Schengen Information System by Poland for the purpose of his arrest for surrender. He was provisionally arrested and taken into police custody for three days.

On 2 August 2011 the investigating judge ordered Mr Targus taken into initial detention on remand. The order was in the following terms:

On 3 August 2011 the investigating judge gave a decision conditionally suspending Mr Targus’s detention on remand.

On 3 October 2011 the Amsterdam Regional Court gave a decision ordering Mr Targus taken into extended detention on remand, which at the same time it conditionally suspended until the date of its eventual decision on the permissibility of surrender.

The public prosecutor received the relevant European arrest warrant on 5 August 2011.

On 6 December 2011 the Regional Court gave a decision giving permission for Mr Targus’s surrender to Poland in respect of one charge but refusing such permission in respect of a plurality of other charges. Mr Targus was taken back into detention on remand the same day.

On 15 December 2011 the public prosecutor sought the prolongation by the Amsterdam Regional Court of Mr Targus’s detention on remand, surrender having not yet taken place.

A hearing was held the same day. Mr Targus, represented by counsel, argued that on the same grounds as in the case of Mr Chylinski (see paragraph 8 above) that “special circumstances” within the meaning of section 35(2) of the Surrender Act justifying the prolongation requested did not exist and asked the Regional Court to put a preliminary question to the CJEU under Article 267 of the TFEU. In the alternative, he argued that there was no danger of his absconding since only one charge remained for him to face in Poland, a minor one at that, and he had built a stable existence in the Netherlands with his family.

The Regional Court gave its decision the same day. It ordered the prolongation of Mr Targus’s detention on remand for a further ten days from 16 December 2011 and declined to put any preliminary question to the CJEU. Its reasoning on this point was identical to that in the case of Mr Chylinski (see paragraph 9 above). It also found that there were no special circumstances justifying suspending the detention. No appeal was possible against this decision.

Mr Targus was surrendered to the Polish authorities at Schiphol (Amsterdam) Airport on 27 December 2011.

The following provisions of positive European Union law are relevant to the case:

“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.”

“Everyone has the right to liberty and security of person.”

“1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. ...”

“When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding.”

“1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.

He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.

If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.”

In its judgment of 6 October 1982 in Case 283/81 (Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health), the Court of Justice of the European Communities (hereafter ECJ) responded to a request from the Italian Court of Cassation for a ruling as to whether the third paragraph of Article 177 of the EEC Treaty (now Article 267 of the TFEU) laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt. In this connection, the ECJ found it necessary to define the meaning, for purposes of Community law, of the expression “where any such question is raised” in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before it. The ECJ observed the following:

“... it must in the first place be pointed out that Article 177 does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article 177.

Secondly, it follows from the relationship between the second and third paragraphs of Article 177 that the courts or tribunals referred to in the third paragraph have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of community law is necessary to enable them to give judgment. Accordingly, those courts or tribunals are not obliged to refer to the court of justice a question concerning the interpretation of community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case.”

and gave the following interpretation of Article 177 of the EEC Treaty:

“The third paragraph of Article 177 of the EEC Treaty must be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court of Justice or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”

In Case 338/85 Pardini v Ministero del Commercio con l’Estero [1988] ECR 2041, paragraph 11; Case C-159/90 Society for the Protection of Unborn Children Ireland v Grogan [1991] ECR I-4685, paragraph 12; and Case C-176/96, Jyri Lehtonen, Castors Canada Dry Namur-Braine ASBL and Fédération Royale Belge des Sociétés de Basket-ball ASBL (FRBSB), paragraph 19, the ECJ held:

“[A] national court or tribunal is not empowered to bring a matter before the Court by way of a reference for a preliminary ruling under Article 177 of the Treaty unless a dispute is pending before it in the context of which it is called upon to give a decision which could take into account the preliminary ruling. Conversely, the Court of Justice has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the court making it has already been terminated.”

In its relevant part, the Surrender Act provides as follows:

“1. At the request of the public prosecutor, the Regional Court can order the person requested detained on remand at its hearing.

Before terminating its examination of the case in the hearing the Regional Court shall decide ex officio ... on the extended detention on remand of the person requested if he is in initial detention on remand or police custody.”

“Detention ordered pursuant to section 27 shall – without prejudice to the possibility of further detention on other grounds – be terminated as soon as:

a. it is so ordered by the public prosecutor or the Regional Court, whether ex officio or at the request of the person requested or his counsel;

b. it has lasted ten days from the day of the Regional Court’s decision, unless the Regional Court has prolonged the detention on the application of the public prosecutor in the meantime.”

“1. Prolongation of the detention as referred to in section 33 under b can be for no longer than ten days.

In derogation from the first paragraph, the detention can be prolonged for thirty days at a time if:

a. in addition, extradition has been requested, or surrender by the International Criminal Court or another international tribunal, and the competent Minister has not yet decided on those requests;

b. surrender has been permitted, but actual surrender has not proved possible within the time-limit set for that purpose.

The person requested shall be given the opportunity to be heard about the application for prolongation of his detention.”

“1. The person requested shall be surrendered as soon as possible after the decision in which surrender has been permitted in whole or in part, but no later than ten days after the date of this decision. The public prosecutor shall decide the time and place after consultation with the issuing judicial authorities.

If owing to special circumstances the surrender of the requested person cannot take place within the time-limit set in the first paragraph, a new date shall be determined by mutual agreement. In that event, the surrender shall take place within 10 days of the new date thus agreed.

The surrender may exceptionally be postponed as long as serious humanitarian reasons prevent the surrender, in particular as long as travel would be irresponsible in view of the state of health of the person requested. The requesting judicial authority shall be informed of this without delay. The public prosecutor shall, after consulting the requesting judicial authority, determine the time and place at which the surrender can take place. In that event, the surrender shall take place within ten days of the new date thus determined.

The detention of the person requested shall be terminated after the time-limits set out in the first through third paragraphs have ended.”

“1. In cases in which a decision on detention can or must be taken pursuant to this Act, an order can be given for such detention to be conditionally deferred or suspended (voorwaardelijk opgeschort of geschorst) until the moment of the decision of the Regional Court in which the surrender is permitted. The conditions to be set may purport only to prevent the requested person’s absconding. ...”


DAS UNIVERSELLE LEBEN ALLER KULTUREN WELTWEIT E.V. v. GERMANY

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant, Das Universelle Leben Aller Kulturen Weltweit e.V., is a German association, which has its seat in Marktheidenfeld. It was represented before the Court by Mr C. Sailer, a lawyer practising in Marktheidenfeld.

The applicant is a registered association claiming to represent the interests of the religious community “Universelles Leben” that is gathering people in a “new, true Christian faith conveyed by a new prophet sent by God”. It did not provide further information on its members and specific activities.

The Federal Ministry for Family, Senior, Women and Youth affairs (hereinafter: “the Federal Ministry”) ordered the Federal Administrative Agency (Bundesverwaltungsamt – hereinafter “the Federal Agency”) to maintain an information division regarding “so-called youth sects and psycho-groups” and, within its activities, to gather information on the applicant association.

Relying on the Federal Freedom of Information Act (see paragraph 11 below), the applicant association requested access to files containing all the information gathered by the Federal Agency in this regard. On 30 March 2007 the Federal Agency refused the applicant’s request.

Subsequently, the applicant association filed an action against the refusal with the Cologne Administrative Court. During the court proceedings, the court ordered the Federal Agency to list and describe the documents in its possession so that the applicant association could specify its claim, and a comprehensive assessment of the lawfulness of the refusal could be made.

The Federal Ministry, which had initially requested the collection of information and was therefore an interested third party in the proceedings, declared an exemption of disclosure (Sperrerklärung), by virtue of Article 99 (1) of the Code of Administrative Court Procedure (see paragraph 12 below). It held that there was no duty to produce the documents or even to reveal their existence and contents in the court proceedings and to the applicant association.

Subsequently the matter was transferred to the Federal Administrative Court which, according to Article 99 (2) of the Code of Administrative Court Procedure, was the competent authority to assess the lawfulness of the exemption of disclosure.

On 25 June 2010 the Federal Administrative Court viewed the documents in question and decided on the legality of the exemption of disclosure. In a comprehensive introduction the court outlined its own standards of examination and explained that Article 99 (2) of the Code of Administrative Court Procedure would require an assessment if the provided reasons for confidentiality would be firstly relevant to the specific case and secondly sufficient to justify an exemption of disclosure. Applying these standards, the Federal Administrative Court found that a general, unsubstantiated reference to the confidentiality of internal working methods of the Federal Agency could not provide a sufficient reason. However, the court also established that the Federal Agency was, as a State authority, bound by the obligations provided in the German Basic Law (Grundgesetz). Consequently, as argued by the Federal Ministry, the right to privacy of third persons, protected by the German Basic Law, and in particular the protection of informants could generally justify an exemption of disclosure. Turning to the facts of the case, the court ruled that for some parts, consisting of public information, such as newspaper articles, internet printouts, court judgments or publications of the association itself, no reason for confidentiality could be adduced. Therefore, the refusal to produce these documents was held to be unlawful. However, the court accepted the refusal of disclosure regarding other documents concerning the applicant association. These concerned reports from former members of the applicant association who had left the community. Those persons had revealed sensitive personal information about their private and religious life to the agency. The Federal Administrative Court held that the refusal to produce these documents was justified in order to protect the anonymity of the sources of information and the private information of third parties. It further argued that there was no other possibility than non-disclosure, since the small number of possible sources would allow identification even if the documents were edited. Furthermore, it found that the statements did not include any defaming or libelous remarks.

On 22 August 2011 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the part of that decision which upheld the refusal, without providing reasons (no. 1 BvR 2016/10).

The relevant provisions of the Federal Act Governing Access to Information held by the Federal Government (Freedom of Information Act Informationsfreiheitsgesetz) read as follows:

“Section 1 Underlying principles

(1) Everyone is entitled to official information from the authorities of the Federal Government in accordance with the provisions of this Act. This Act shall apply to other Federal bodies and institutions insofar as they discharge administrative tasks under public law. For the purposes of these provisions, a natural or legal person shall be treated as equivalent to an authority where an authority avails itself of such a person in discharging its duties under public law.

(2) The authority may furnish information, grant access to files or provide information in any other manner. Where an applicant requests a certain form of access to information, the information may only be provided by other means for good cause. In particular, substantially higher administrative expenditure shall constitute good cause.

(3) Provisions in other legislation on access to official information shall take precedence, with the exception of Section 29 of the Administrative Procedure Act and Section 25 of Book Ten of the Social Code.”

Article 99 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung) reads, insofar as relevant, as follows:

“(1) Authorities shall be obliged to submit certificates or files, to transmit electronic documents and provide information. If the knowledge of the content of these certificates, files, electronic documents or this information would prove disadvantageous to the interests of the Federation or of a Land, or if the events must be kept strictly secret in accordance with a statute or due to their essence, the competent supreme supervisory authority may refuse the submission of certificates or files, the transmission of the electronic documents and the provision of information.

(2) On request by a party concerned, the Higher Administrative Court shall find by order without an oral hearing whether the refusal to submit certificates or files, to transmit the electronic documents or to provide information is lawful. If a supreme federal authority refuses the submission, transmission or information on grounds that the interests of the Federation would be impaired were the content of the certificates or files, of the electronic documents and the information to become known, the Federal Administrative Court shall decide; (...) The supreme supervisory authority shall submit the certificates or files refused in accordance with subsection 1, second sentence on request by this panel of judges, transmit the electronic documents or provide the refused information. It shall be subpoenaed to these proceedings. (...)”