The CJEU: the alleged disproportion of a sentence is not enough, by itself, to refuse to execute a European arrest warrant (C-583/24, Tagu)
Case C-583/24 (Tagu): the alleged disproportion of a seven-year drug sentence is not enough, by itself, to refuse a European arrest warrant.
Can a judge refuse to surrender a person sought by another Member State because the sentence imposed seems disproportionate? The Court of Justice of the European Union has answered clearly in its judgment of 3 November 2026, case C-583/24 (Tagu): no, at least not for that reason alone. The alleged disproportion between the sentence and the gravity of the offence is not, in itself, sufficient to justify refusing the execution of a European arrest warrant.
The case comes from Amsterdam and has striking facts. In December 2023, DZ was convicted by final judgment in Romania to seven years' imprisonment for importing into the country three grams of cannabis and four pills containing MDMA. In January 2024, a Romanian court issued a European arrest warrant for him to serve the sentence in Romania. Before the Amsterdam court that had to decide on his surrender, DZ objected alleging the disproportion of the conviction: the drugs, he maintained, were intended for the personal consumption of his wife, who used them as a painkiller. The Dutch judge found that an analogous offence would be punished in the Netherlands with between one and three weeks' imprisonment, as against the Romanian seven years, and that Romanian law imposed at the time of the facts a minimum sentence of seven years for the importation of "high-risk" drugs such as MDMA, with little room to weigh the small quantity or the absence of intent to traffic, and with no possibility of suspending the sentence.
Mutual trust as the rule, refusal as the exception
The reasoning of the Court of Justice starts from the principles of mutual trust and recognition between Member States, pillars of the area of freedom, security and justice. Save in exceptional circumstances, each State must presume that the others respect EU law and fundamental rights, so that execution of the European arrest warrant is the rule and its refusal the exception. The possible disproportionate nature of the sentence does not appear, as such, among the grounds for non-execution expressly provided for by the EU legislature.
Case law does admit that, in exceptional circumstances, the executing judicial authority may - and even must - refuse to give effect to a European arrest warrant where there is a real risk of breach of the fundamental rights of the person sought. But that risk must be analysed in two successive stages. First, the executing authority needs objective, reliable, precise and duly updated elements revealing in the issuing State systemic or generalised deficiencies, or deficiencies affecting an objectively identifiable group of persons. Only after passing that first examination may it, secondly, check specifically whether the person sought actually runs that risk having regard to their personal situation.
When criminal legislation does reveal a deficiency
The key to the judgment lies in the first step. Disparities, even significant ones, between the sentences provided for in national legislations are not sufficient to demonstrate systemic deficiencies: in the absence of complete criminal harmonisation, the criminal policy choices of the States may diverge significantly. Allowing the executing authority to review the proportionality of a sentence because in its own legal order it would have been more lenient would amount to giving it a general function of control over the criminal decisions of other Member States, contrary to mutual trust.
Deficiencies may only be found, the Court reasons, where the legislation or the judicial practice of the issuing State reveals a manifest and serious breach of the principle of proportionality of sentences that cannot be remedied by an effective judicial remedy. That would occur, in particular, if the rule permitted or imposed sentences so disproportionate that they amounted to inhuman or degrading punishments within the meaning of EU law, or if it did not allow the judge to take into account the gravity of the offence or the individual circumstances in order to adjust the sentence.
Romanian law passes the test
Applied to the case, the Court of Justice finds that the minimum sentence of seven years provided for by Romanian law for the importation of high-risk drugs cannot be considered, in itself, inhuman or degrading. Moreover, Romanian law allows the individualisation of the sentence: the judge may assess the purpose of the offence, the quantity of drugs and the mitigating or particular circumstances and, in certain situations, modify the classification of the offence with a reduction of the sentence. And DZ was able to challenge his conviction on appeal and in cassation. Conclusion: Romanian legislation presents no deficiencies justifying refusal, and it will be for the Dutch court to resolve the dispute in accordance with this interpretation, which also binds other national judges facing similar problems.
The framework: an arrest warrant designed to be executed
The European arrest warrant, created by Framework Decision 2002/584/JHA to replace traditional extradition between Member States, rests on a demanding idea: the criminal decisions of one State are recognised and executed in the others with minimal control. The EU legislature closed the list of grounds for refusal, and disproportionality of the sentence is not among them, as the judgment underlines. The door that case law has kept open is that of fundamental rights, but with a deliberately high threshold: refusal requires first systemic, generalised or group deficiencies in the issuing State, and only then a personal and concrete risk for the person sought.
The Tagu judgment fits that door in the field of substantive criminal law. If not even the comparison between seven years in Romania and a few weeks in the Netherlands for the same type of conduct empowers the executing judge to deny surrender, the message to practitioners is that the review of proportionality belongs to the issuing legal order - to its judges and its remedies - and not to the judge of the executing State. Mutual trust emerges strengthened precisely at one of the points where it is most strained: the divergence of national criminal policies.
Practical reading for cross-border criminal defence
The judgment leaves criminal lawyers practising in judicial cooperation with a tactical lesson: the "comparative" disproportionality route - in my country this offence would be punished with weeks - is practically closed as a standalone argument against surrender. The useful defensive line runs through the two-stage structure: proving first systemic or group deficiencies in the issuing State, with objective and updated elements, and only then the personal risk of the person sought. It also underlines the weight of domestic remedies: the fact that the issuing legal order offers effective ways to modulate or review the sentence reinforces the presumption of trust.
In our litigation section you can follow other recent European pronouncements, such as the validation of aid to KLM and Condor against Ryanair or the judgment on detergent packaging mistakable for food, as well as the Supreme Court doctrine on digital defencelessness due to IT failures in criminal evidence.
Sources
Fuentes
The specific data in this article come from the official sources cited.
