Opinion of the Advocate General — ECLI:EU:C:2020:1009
Date: 2020-12-09
Language of the case: Bulgarian
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Bulgaria

summary of the main offences of which the person suspected of having committed a crime is accused and a legal characterisation of those offences. 8 Article 63(1) of the NPK provides that a provisional detention order is to be adopted where there are reasonable grounds for assuming that the accused person has committed a crime punishable by a custodial sentence or another more severe penalty and the evidence in the case file indicates that there is a genuine risk of the accused person absconding or committing an offence. 9 In this regard, the referring court explains that, at this stage of the criminal proceedings, a decision to place the accused person in provisional detention can be adopted only in the presence of that person. 10 In its reply to the request for clarifications made by the Court, the referring court states that this measure constitutes an arrest warrant under national law. It then proceeds to refer to it as an ‘order to appear’. 11 ‘The order putting a person under investigation of 9 August 2019’. 12 It is likewise apparent from the clarifications provided by the referring court that the practice adopted with a view to locating and arresting the persons accused of having participated in a criminal drug trafficking organisation was not uniform. That court states that 18 European arrest warrants were issued. For some of them, the order putting the person concerned under investigation was stated as the national arrest warrant; for others, reference was made to the order pursuant to Article 64(2) of the NPK (placement in detention for a maximum of 72 hours), with the referring court clarifying in this regard that this is the standard basis in Bulgaria on which a European arrest warrant is used during the preliminary stage; in other cases still, the order pursuant to Article 71 of the NPK (order to appear) is stated; and in yet further cases, reference is made to a combination of two or three of those national measures. 13 The referring court cites, in this connection, the judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456); of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, ‘the judgment in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours)’; and of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office) (C‑625/19 PPU, EU:C:2019:1078, ‘the judgment in Openbaar Ministerie (Swedish Public Prosecutor’s Office)’). 14 By letter dated 1 December 2020, the referring court informed the Court that the arrangements for MM’s provisional detention were altered due to his illness. MM is since then subject to house arrest, which prohibits him from leaving his residence and involves the use of electronic surveillance. 15 See, inter alia, judgment of 3 March 2020, X (European arrest warrant – Double criminality) (C‑717/18, EU:C:2020:142, paragraphs 28, 35, 37, 38 and 41 and the case-law cited). 16 With regard to the limits on the obligations on the executing judicial authority, see Opinion of Advocate General Campos Sánchez-Bordona Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1012, points 99 to 101). 17 See judgment of 23 January 2018, Piotrowski (C‑367/16, EU:C:2018:27, paragraph 50 and the case-law cited). 18 See, inter alia, judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraphs 30 and 31) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraphs 48 and 49). See also Opinion of Advocate General Campos Sánchez-Bordona in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1012, point 70), in which he observes that the existence of such a remedy is ‘a condition relating to the lawfulness of issuing a [European arrest warrant] by a public prosecutor’s office and, therefore, to its effectiveness’. 19 See, inter alia, judgment in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 52 and the case-law cited). 20 DV No 64 of 7 August 2007, in the version thereof applicable to the dispute in the main proceedings (DV No 11 of 7 February 2020). 21 The Bulgarian Government refers, in this regard, to the judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 50). 22 See Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions, 2020 EU Justice Scoreboard (COM(2020) 306 final, figure 55, p. 62). 23 See, inter alia, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 66 and the case-law cited). 24 See, inter alia, judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 38 and the case-law cited) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 59 and the case-law cited). 25 See, inter alia, judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 39 and the case-law cited) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 60 and the case-law cited). 26 See, inter alia, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 69). 27 See, inter alia, judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 40 and the case-law cited) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 61 and the case-law cited). 28 See, inter alia, judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 41 and the case-law cited) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 62 and the case-law cited). 29 See judgment in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 42). See also judgment in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 63). 30 C‑241/15, EU:C:2016:385. 31 C‑241/15, EU:C:2016:131 (‘the Opinion in Bob-Dogi’). 32 See Opinion in Bob-Dogi (point 50). 33 See Opinion in Bob-Dogi (point 51). 34 See Opinion in Bob-Dogi (point 72). 35 See Opinion in Bob-Dogi (point 51). 36 See Opinion in Bob-Dogi (point 52). 37 See Opinion in Bob-Dogi (point 54). 38 See Opinion in Bob-Dogi (point 55). 39 See Opinion in Bob-Dogi (point 56). 40 See Opinion in Bob-Dogi (point 57). 41 See Opinion in Bob-Dogi (point 62). 42 See Opinion in Bob-Dogi (point 66). 43 See Opinion in Bob-Dogi (point 73). 44 See Opinion in Bob-Dogi (point 75). 45 See judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385, paragraph 58). 46 See judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385, paragraph 55). 47 C‑241/15, EU:C:2016:385. 48 See judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385, paragraphs 62 and 63). See also judgment of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraphs 42 and 43). 49 See judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385, paragraph 64). Emphasis added. See also judgment of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraph 43). 50 See judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385, paragraph 66). 51 C‑241/15, EU:C:2016:385. 52 C‑241/15, EU:C:2016:385. 53 See judgment of 10 November 2016, Özçelik (C‑453/16 PPU, EU:C:2016:860, paragraphs 32 and 33). 54 See, by analogy, judgment of 10 November 2016, Özçelik (C‑453/16 PPU, EU:C:2016:860, paragraph 34). 55 Emphasis added. 56 See, conversely, where a national arrest warrant issued by a police service is confirmed by the public prosecutor’s office, judgment of 10 November 2016, Özçelik (C‑453/16 PPU, EU:C:2016:860). 57 C‑241/15, EU:C:2016:385. 58 See, by analogy, judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385, paragraph 57). 59 See also, to that effect, observations lodged by the raiyonna prokuratura Ruse, (Prosecutor of the Regional Prosecutor’s Office, Ruse, Bulgaria) in the case of Prosecutor of the regional prosecutor’s office in Ruse, Bulgaria (C‑206/20), currently pending before the Court: ‘When the accused person was prosecuted in this capacity in absentia and he can’t be searched and brought before the court for examination of the request for placing a detention order, the only possible basis (NAO – [National arrest order]) for the ruling of EAW under the current legislation is the order of the public prosecutor for detention up to 72 hours on the grounds of art. 64, para 2 of the Criminal procedure code [NPK]. Based on such type of NAO up to now there have been ruled (and implemented) hundreds of EAW [European arrest warrant] …’ (paragraph 7, emphasis added). Furthermore, in its written observations lodged in the same case, the Bulgarian Government states that, ‘by definition, the public prosecutor’s decision on the basis of which the person concerned is detained for a period of 72 hours in order to be brought before a court satisfies the requirement laid down in Article 8(1)(c) of Framework Decision 2002/584. It constitutes a national arrest warrant serving as the legal basis for the issuing of a European arrest warrant’ (paragraph 78). 60 See, inter alia, judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 41) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 62 and the case-law cited). 61 See judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 69). Emphasis added. 62 See judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 70). Emphasis added. 63 The question of whether such a review must necessarily occur before the requested person is surrendered to the issuing Member State is raised in the case of Prosecutor of the regional prosecutor’s office in Ruse, Bulgaria (C‑206/20), which is currently pending before the Court. 64 In this connection, the referring court cites the judgment of 14 May 2020, Staatsanwaltschaft Offenburg (C‑615/18, EU:C:2020:376, paragraph 72). 65 Mention should also be made, in this regard, of paragraph 70 of the same judgment. 66 I would note, however, that MM was not the subject of such a measure prior to his appearance before the referring court. 67 The Bulgarian Government cites, in this regard, the judgment in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 74). 68 Under Article 63(2) of the NPK, where the evidence in the case does not establish the contrary, when adopting the initial provisional detention order, a genuine risk of the accused person absconding or committing an offence, within the meaning of paragraph 1 of that article, exists where the person put under investigation is a persistent reoffender or a special reoffender; where the person is put under investigation for a serious and premeditated offence and has been convicted of another serious and premeditated offence prosecuted ex officio by the public prosecutor’s office (irrespective of the wishes of the victim) to a term of imprisonment of at least one year or to another heavier penalty, the enforcement of which is not deferred pursuant to Article 66 of the nakazatelen kodeks (Criminal Code); the person is put under investigation for an offence punishable by a penalty not less than a custodial sentence of 10 years or another more severe penalty; or that the person is put under investigation in the circumstances set out in Article 269(3) of the NPK. 69 See judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 44) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 65). According to the Court, introducing a separate right of appeal against the decision to issue a European arrest warrant taken by a judicial authority other than a court is just one possible means of safeguarding effectively the level of judicial protection required by Framework Decision 2002/584. 70 See judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraphs 52 and 53) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraphs 70 and 71). 71 See, inter alia, judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 41 and the case-law cited) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 62 and the case-law cited). 72 See judgment in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 42). See also judgment in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 63). 73 See judgments in Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 43) and in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (paragraph 64). 74 C‑168/13 PPU, EU:C:2013:358. 75 See judgment of 30 May 2013, F (C‑168/13 PPU, EU:C:2013:358, paragraph 46). See also judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 56 and the case-law cited). 76 See judgment of 30 May 2013, F (C‑168/13 PPU, EU:C:2013:358, paragraph 47). 77 See judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 58). 78 See, inter alia, judgment of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraph 66 and the case-law cited). See also judgment of 23 January 2018, Piotrowski (C‑367/16, EU:C:2018:27, paragraph 50). 79 See, by analogy, with regard to a European arrest warrant issued for the purpose of enforcing a custodial sentence or detention order, judgment of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraph 67 and the case-law cited). 80 See, to that effect, judgment of 30 May 2013, F (C‑168/13 PPU, EU:C:2013:358, paragraph 52). 81 See, to that effect, judgment of 30 May 2013, F (C‑168/13 PPU, EU:C:2013:358, paragraph 53). 82 See, in the same vein, Opinion of Advocate General Campos Sánchez-Bordona in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours) (C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1012, point 97). 83 See, inter alia, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 139 and the case-law cited). 84 See, inter alia, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 140 and the case-law cited). 85 See, inter alia, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 142 and the case-law cited). 86 See, inter alia, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 143 and the case-law cited). 87 See, by analogy, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 146 and the case-law cited). 88 See, conversely, judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office) (paragraph 52). 89 OJ 2016 L 65, p. 1. Under recital 44 of that directive, ‘the principle of effectiveness of Union law requires that Member States put in place adequate and effective remedies in the event of a breach of a right conferred upon individuals by Union law. An effective remedy, which is available in the event of a breach of any of the rights laid down in this Directive, should, as far as possible, have the effect of placing the suspects or accused persons in the same position in which they would have found themselves had the breach not occurred, with a view to protecting the right to a fair trial and the rights of the defence’. 90 The referring court draws a parallel to the case that gave rise to the judgment of 17 January 2019, Dzivev and Others (C‑310/16, EU:C:2019:30), in so far as that case concerned, in the referring court’s view, the consequences of a decision given by an authority which acted beyond its remit (use of evidence gathered further to the interception of telecommunications authorised by a judicial authority which had just been stripped of the power to grant such authorisation). 91 For an illustration of the limits on the applicability of Directive 2016/343 in matters of provisional detention and on the applicability of Articles 6 and 47 on the Charter in that regard, see judgment of 28 November 2019, Spetsializirana prokuratura (C‑653/19 PPU, EU:C:2019:1024). See also Opinion of Advocate General Pitruzzella in Spetsializirana prokuratura (C‑653/19 PPU, EU:C:2019:983, point 15 et seq.). 92 Judgment of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraph 39). Emphasis added. 93 See, in this regard, Opinion of Advocate General Sharpston in IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:890, points 81 and 82). She describes the process covered by Framework Decision 2002/584 as a ‘“loop” which begins when the European arrest warrant is issued … [and] is closed on execution of the European arrest warrant, which is effected by the surrender of the person concerned’ (point 83). She infers from this that ‘the effects of that process cannot extend beyond the ambit or objective of [that] [f]ramework [d]ecision, that is to say the surrender of the requested person. Any effects of that process which persist after the surrender are clearly defined in Chapter 3 of the Framework Decision’ (point 84). 94 The judgment of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraph 56) contains useful guidance in this regard, even though it must be made clear, first, that it relates to a European arrest warrant issued for the purposes of enforcing a custodial sentence or detention order and, second, it concerns a situation in which the failure to mention an additional sentence in that warrant did not affect the warrant’s validity. When it had to respond to the argument that, in essence, the decision of the executing judicial authority amounts to the ground for deprivation of liberty in the issuing Member State, as a result of which a sentence cannot be served which has not been the subject of a decision of the executing judicial authority and for which surrender has not been granted, the Court held that ‘the decision of the executing authority is not intended to grant, in the present case, enforcement of a custodial sentence in the issuing Member State … [T]hat decision merely grants surrender of the person requested, in accordance with the provisions of Framework Decision 2002/584, so that the offence committed does not go unpunished. The basis for the enforcement of the custodial sentence lies in the enforceable judgment pronounced in the issuing Member State which must be indicted pursuant to Article 8(1)(c) of that framework decision’ (paragraph 56, emphasis added). 95 I would point out, in this regard, that MM was not the subject of an order adopted by the public prosecutor pursuant to Article 64(2) of the NPK; such a measure is seemingly the method normally used in Bulgaria to issue a European arrest warrant for a person who is the subject of a criminal prosecution. 96 See inter alia, to that effect, judgment of 24 November 1998, Bickel and Franz (C‑274/96, EU:C:1998:563, paragraph 17). See also judgment of 2 April 2020, Ruska Federacija (C‑897/19 PPU, EU:C:2020:262, paragraph 48 and the case-law cited). 97 See, by analogy, in the context of the expiry of the time limits laid down in Article 17 of Framework Decision 2002/584, judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 50). 98 See, inter alia, judgment of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraph 39).