THIRD SECTION

DECISION

This version was rectified on 16 October 2018

under Rule 81 of the Rules of Court .

Application no. 1704/17 Iulian-Marian ORBULESCU against the Netherlands

The European Court of Human Rights (Third Section), sitting on 10 July 2018 as a Committee composed of:

Dmitry Dedov , President, Alena Poláčková , Jolien Schukking , judges,

and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 3 January 2017,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . The applicant, Mr Iulian -Marian Orbulescu , is a Romanian national, who was born in 1993 and was living in Purmerend when the present application was introduced. He was represented before the Court by Mr Th.O.M . Dieben , a lawyer practising in Amsterdam.

The Dutch Government (“the Government”) were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs.

2. The application concerns the lawfulness under Article 5 § 1 of the Convention of the applicant ’ s detention in the Netherlands for the purpose of his surrender – on the basis of a European arrest warrant – to Romania where he had been convicted of robbery and sentenced to 28 months ’ imprisonment. Under the Netherlands Surrender Act ( Overleveringswet ), a request for surrender must be determined within 90 days after the arrest of the person concerned. Past this period, a person ’ s detention for surrender should be suspended pending the determination of the request.

3 . The duration of the applicant ’ s detention for surrender lasted longer than 90 days because the Netherlands courts decided to await answers to preliminary questions which had been put to the Court of Justice of the European Union (CJEU) by a German court in a similar case.

4 . The applicant claimed that, pursuant to domestic statutory rules, his detention should have been suspended after 90 days. The Court of Appeal rejected that claim on 4 July 2016, finding that the Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States allowed, under certain circumstances (like pending an answer to preliminary questions put to the CJEU), a longer period of detention. Considering that the interests of a correct interpretation and application of EU law and – in that connection – to put preliminary questions prevailed over the interest of the national legal order, it found that the running of the 90 days period should be considered interrupted between the moment on which a preliminary question was put to the CJEU and the latter ’ s answer to that question.

5 . However, on 16 July 2015 the CJEU had given a preliminary ruling in the case Minister for Justice and Equality v. Francis Lanigan (C-237/15) in which it held that a longer period of detention for the purpose of surrender is possible provided that this is “ in accordance with the law of the executing Member State ”.

THE LAW

6 . The Court takes note of the friendly settlement reached between the parties under which the applicant agreed to waive any further claims against the Netherlands in respect of the facts giving rise to this application, subject to an undertaking by the Government to pay him ex gratia 3,760 [1] euros (EUR) as well as an amount of EUR 207.95 for reimbursement of the costs for legal assistance. These sums will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay these sums within the said three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.

7 . The Court is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.

Done in English and notified in writing on 30 August 2018 .

             Stephen Phillips Dmitry Dedov Registrar President

[1] Rectified on 1 6 October 2018: the text was: “3,670”