KKO:2021:62 – Monitored travel ban; securing the execution of a surrender decision

Diary number: R2021/336
Issued on: 2 September 2021
ECLI:FI:KKO:2021:62

Background and the issue at hand

The complainant A had been detained in Finland on 21 April 2021 on the basis of a European arrest warrant issued by the competent Belgian judicial authority. According to the arrest warrant, the surrender request pertained to the prosecution of A in Belgium for alleged human trafficking, forgery and smuggling as a member of a criminal conspiracy. The District Court had on 23 April 2021 ordered A to be kept in detention, as the execution of the surrender decision would otherwise have been at risk.

The issue before the Supreme Court, on a complaint filed by A, was whether there had been a legal basis for the continued detention of A when the District Court heard the matter on 23 April 2021, or whether an order for a monitored travel ban should have been issued instead.

Legal context

The leading principle in the EU Framework Decision 2002/584/JHA and in the Finnish Act on Surrender Procedures between Finland and Other Member States of the European Union (in the following, Act on EU Surrender Procedures) is that the actual realisation of the surrender of a person from one country to another be secured by taking the requisite national measures to prevent that person from absconding. In Finland, the execution of a surrender decision can be secured by detaining the person whose surrender has been requested or by imposing a travel ban on that person.

Subsequently to the enactment of the Act on EU Surrender Procedures, provisions have been incorporated in the Finnish Coercive Measures Act (CMA) on monitored travel ban. This is a coercive measure involving the obligation to remain at home at given times, said obligation being monitored by using technological means. The Supreme Court held that the national court may issue an order for a monitored travel ban to secure the execution of a surrender decision. That said, the evaluation of the conditions for a monitored travel ban, its enforcement and the technical monitoring require certain inquiries and preparatory measures which make it less suitable in the context of surrender proceedings with strict time limits.

Even though detention is intended for the securing of the execution of a surrender decision, it curtails the personal liberty of the person in question and must therefore be assessed in the light of the general principles governing the exercise of coercive measures, such as proportionality and the prohibition of unreasonable deprivation of liberty. Normally, detention to secure the execution of a surrender decision cannot be deemed unreasonable to the person in question, considering the strict time limits of surrender proceedings and the provision in Article 26 of the Framework Decision regarding the obligation of the state issuing the arrest warrant to deduct the period of detention from an eventual custodial sentence.

The Supreme Court noted that it was for the court in question to assess, case by case, whether there were grounds for an order that the person in question be kept in detention or whether less intrusive coercive measures, such as a travel ban or monitored travel ban, were to be deemed sufficient to secure the actual realisation of the surrender of the person in question. For the control of the legality of the exercise of the coercive measures, the court assessing the matter must provide a clear statement of reasons indicating the circumstances on which it has based its assessment.

Assessment of the case at hand

The purpose of the detention of A was to secure the execution of her surrender. Evidence had been given both for and against the continued detention of A. Circumstances pointing to continued detention were, first, that detention was mentioned in the Act on EU Surrender Procedures as the default measure. The alleged criminal acts underlying the prosecution were “listed offences” under the Act on EU Surrender Procedures, that is, so serious offences that surrender should be granted without verification of double criminality. In view of the nature of the criminal acts underlying the prosecution, points had been raised in the surrender request indicating a risk that the person in question will abscond. In addition, this had been the first court order concerning continued detention, issued when A had been detained for only two days.

In contrast, the personal circumstances of A did not point to continued detention. A had been a permanent resident in Finland for several years, which indicated that she had integrated into Finnish society. A had custody of three underage children, who were living with her. That said, the parents had joint custody and the children met their father every other weekend. During the detention, the children had stayed with their father, with the child welfare authorities also being aware of A’s circumstances. Accordingly, the children were not to be deemed especially vulnerable, even though the presence of their mother would have been humanely important to them.

On balance, the Supreme Court held that the circumstances for the continued detention of A outweighed those against detention. The risk of absconding had been established. In view of this, and as the alleged offences were of a serious nature, it was held that an order for a monitored travel ban was not sufficient for securing the execution of the surrender decision. The Supreme Court held that detention that had lasted for only two days was not disproportionate nor unreasonable in view of A’s personal circumstances.

In conclusion, the Supreme Court held that the order for the continued detention of A had been valid.