Article 45 - Freedom of movement and of residence
Key facts of the case:
Italy requested the surrender of an Indian citizen, A.A., for the purpose of serving a sentence of 2 years and 6 months in prison, after being convicted of the crime of facilitating unauthorised entry and residence. The first-instance court granted the execution of the European Arrest Warrant (EAW). A.A appealed before the Court of Appeal which upheld the contested decision. A.A. lodged a review appeal before the Supreme Court of Justice, arguing that there were grounds for optional non-execution of the EAW, namely under Article 12(1)(g) of Law 65/2003 of 23 August – the requested person is in national territory and has Portuguese nationality or resides in Portugal, provided that the arrest warrant has been issued for the enforcement of a sentence or security measure and the Portuguese State agrees to enforce that sentence or security measure, in accordance with Portuguese law.
Key legal question raised by the Court:
The key legal question was whether there were grounds for optional non-execution of the European arrest warrant, under Article 12 (1)(g) of Law 65/2003 of 23 August.
Outcome of the case:
The Court held that the EAW is executed based on the principle of mutual recognition, which is grounded on notions of equivalence and a high degree of mutual trust in the legal systems of the EU Member States, founded on respect for the fundamental rights enshrined in the EU Charter and the European Convention on Human Rights.
The Court noted that the optional grounds for refusing to execute a EAW required the following conditions to be met: that the requested person is in Portugal, has Portuguese nationality or resides in Portugal; and that the Portuguese State, at the request of the Public Prosecutor Service, agrees to enforce the sentence or security measure that led to the EAW, in accordance with Portuguese law, trough a court decision recognizing the sentence issued in the EAW proceedings (Article 12 of Law 65/2003, 23 August).
In this case, the Public Prosecutor Service did not request, as provided for in Article 12(3) of Law 65/2003, 23 August, that the Court of Appeal declare the sentence handed down by the Italian court to be enforceable in Portugal and confirm the sentence imposed on the applicant. Therefore, the Portuguese State has not committed to enforcing the sentence, so the optional grounds for non-execution of the European Arrest Warrant cannot apply.
The Court held that the appellant is not a national of a Member State, he is not a citizen of the European Union and therefore does not enjoy the right to move and reside freely within the territory of the member states (Articles 9 of the Treaty on European Union and 20(1) and (2)(a) of the Treaty on the Functioning of the European Union). The applicant, as a third-country national legally resident in the territory of a Member State, can only be granted freedom of movement and residence, in accordance with the Treaties (Article 45(2) of the Charter of Fundamental Rights of the European Union).
Furthermore, the Court considered whether there was a legitimate interest in applying the optional non-execution grounds of the EAW, such as promoting social reintegration, and not only to be resident in Portuguese territory. However, the Court concluded that serving the sentence in Portugal would not be more advantageous for the appellant, in terms of his re-socialisation, than in Italy, as the appellant had been living alone in Portugal since June 2023, and has no family members in Portugal.
Therefore, the appeal was dismissed and the judgement under appeal upheld.
Furthermore, in the judgment of this Supreme Court of 22 May 2024 (Judgment n.º 55/24.EVR.S1, in www.dgsi.pt), it is stated that it had been stressed in the case law of the CJEU that ‘the principle of mutual recognition is based on notions of equivalence and a high degree of mutual trust in the legal systems of the EU Member States, founded on respect for the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. Union law is based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a series of common values on which the Union is founded, as specified in Article 2 TEU. This premise implies and justifies the existence of mutual trust between the Member States in the recognition of those values and, therefore, in respect for the Union law that implements them (judgments of 25 July 2018, Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:586, paragraph 35; and of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, paragraph 45).’
In fact, the appellant, as a third-country national legally resident in the territory of a member state, ‘can only be granted freedom of movement and residence in accordance with the Treaties’ (Article 45(2) of the Charter of Fundamental Rights of the European Union).
«Também no acórdão deste Supremo Tribunal de 22 de Maio de 2024 (processo nº 55/24.EVR.S1, in www.dgsi.pt) se afirma que tem sido sublinhado em jurisprudência uniforme do TJUE que o princípio do reconhecimento mútuo assenta em noções de equivalência e de elevado grau de confiança mútua nos sistemas jurídicos dos Estados-Membros da UE, alicerçada no respeito pelos direitos fundamentais consagrados na Carta dos Direitos Fundamentais da União Europeia e na Convenção Europeia dos Direitos Humanos. O direito da União assenta na premissa fundamental segundo a qual cada EstadoMembro partilha com todos os outros EstadosMembros, e reconhece que estes partilham com ele, uma série de valores comuns nos quais a União se funda, como precisado no artigo 2.º TUE. Esta premissa implica e justifica a existência da confiança mútua entre os EstadosMembros no reconhecimento desses valores e, portanto, no respeito do direito da União que os aplica (Acórdãos de 25 de julho de 2018, Minister for Justice and Equality (Falhas do sistema judiciário), C216/18 PPU, EU:C:2018:586, n.º 35; e de 15 de outubro de 2019, Dorobantu, C128/18, EU:C:2019:857, n.º 45).»
«Na verdade, ao recorrente, enquanto cidadão nacional de país terceiro, residente legalmente no território de um Estado membro, apenas pode ser concedida liberdade de circulação e de permanência, de acordo com os Tratados (art. 45º, nº 2, da Carta dos Direitos Fundamentais da União Europeia).»