Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 18 December 2025 (1)
Case C‑580/24 [Tsachkov] (i)
Criminal proceedings
against
LY,
other party:
Sofiyska gradska prokuratura
(Request for a preliminary ruling from the Sofiyski gradski sad (Sofia City Court, Bulgaria))
( Reference for a preliminary ruling – Charter of Fundamental Rights of the European Union – Article 6 – Right to liberty and security – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 12 and Article 23(5) – Keeping the requested person in detention – Article 5(1)(f) of the European Convention for the Protection of Human Rights and Fundamental Freedoms – Case-law of the European Court of Human Rights )
Introduction
1.        In the present case, the Court has received a request from the Sofiyski gradski sad (Sofia City Court, Bulgaria) for a preliminary ruling on the interpretation of Council Framework Decision 2002/584/JHA
of 13 June 2002
on the European arrest warrant and the surrender procedures between Member States, (2) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (3) (‘Framework Decision 2002/584’). In particular, the referring court asks whether, in the light of Article 12 and Article 23(5) of Framework Decision 2002/584, national legislation which automatically and generally requires the executing judicial authority to order the detention of the requested person, in prison, from the time of the decision to execute a European arrest warrant and until that person is actually surrendered to the issuing Member State, without taking individual circumstances into consideration, is compatible with EU law.
2.        This request for a preliminary ruling arises in the context of the execution of a European arrest warrant issued by the competent judicial authority of the Republic of Austria for the purposes of a criminal prosecution for burglary against a Bulgarian national residing in Bulgaria. More specifically, the referring court asks, in essence, whether, when it issues a decision to execute a European arrest warrant, it is required to apply its national legislation and simultaneously order the detention of the requested person or whether EU law precludes this in the light of the obligations arising from Article 12 of Framework Decision 2002/584, concerning continued detention or release subject to measures to prevent absconding, and from Article 23(5) of that framework decision, concerning release upon expiry of the time limits for surrender.
3.        The case thus provides the Court with the opportunity to clarify the scope of the powers of the executing judicial authority in relation to detention during the surrender phase and to consider whether or not an individual assessment of the specific case is required.
Legal framework
European Union law
4.        Recitals 5 and 6 of Framework Decision 2002/584 state as follows:
‘(5)      The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
(6)      The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.’
5.        Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, is worded as follows:
‘1.      The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2.      Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3.      This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.’
6.        Under Article 12 of that framework decision, entitled ‘Keeping the person in detention’:
‘When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding.’
7.        Article 17 of Framework Decision 2002/584, entitled ‘Time limits and procedures for the decision to execute the European arrest warrant’, provides as follows:
‘1.      A European arrest warrant shall be dealt with and executed as a matter of urgency.
2.      In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.
3.      In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.
4.      Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days.
…’
8.        Under Article 23 of that framework decision, entitled ‘Time limits for surrender of the person’:
‘1.      The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.
2.      He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.
3.      If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.
4.      The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.
5.      Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.’
9.        Article 24 of that framework decision, entitled ‘Postponed or conditional surrender’, provides, in paragraph 1 thereof:
‘The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant.’
10.      Article 26 of that framework decision, entitled ‘Deduction of the period of detention in the executing Member State’, provides, in paragraph 1 thereof:
‘The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.’
Bulgarian law
The ZEEZA
11.      The zakon za ekstraditsiata i evropeyskata zapoved za arest (Law on extradition and the European arrest warrant) (‘the ZEEZA’) (4) transposes Framework Decision 2002/584 into national law. Article 42(1) and (2) of the ZEEZA provides that, on actual receipt of a European arrest warrant, the requested person is to be placed in custody for a period of up to 72 hours, provided that the European arrest warrant is formally in order.
12.      Article 43(1) and (2) of the ZEEZA provides that the court must decide at the very beginning of the proceedings for the execution of the European arrest warrant whether the requested person is to remain in detention. There is no need for the requested person to be mandatorily kept in detention during those proceedings.
13.      According to Article 43(7) of the ZEEZA, if a requested person has been taken into custody, he or she may apply for release, so long as the proceedings for recognition of the European arrest warrant are still pending. That application must be granted if it transpires that his or her detention is not necessary.
14.      The second sentence of Article 44(7) of the ZEEZA is worded as follows:
‘In all cases in which the court authorises the execution of the European arrest warrant, it shall order as a coercive measure that the requested person be remanded in custody until such time as he or she is actually surrendered to the issuing State.’
15.      Under
Article 54(1) of the ZEEZA, surrender must take place within 10 days of the date on which the surrender decision becomes final. Under
Article 54(2) of the ZEEZA, that time limit may be extended if there is an objective obstacle to surrender. The requested person may be released from detention only if he or she cannot be surrendered.
The ZINZS
16.      Under Article 260 of the zakon za izpalnenie na nakazaniata i zadarzhaneto pod strazha (Law on the execution of sentences and pre-trial detention) (‘the ZINZS’): (5)
‘1.      Prisons shall also house persons detained at the request of a foreign State with a view to being surrendered. …
2.      Until such time as the decision to surrender to the foreign State is executed, … the persons referred to in the first paragraph shall have the rights enjoyed by accused persons and defendants pursuant to the present law.’
The dispute in the main proceedings, the question referred and the procedure before the Court
17.      The Public Prosecutor’s Office, Eisenstadt (Austria), filed with the Sofiyski gradski sad (Sofia City Court), which is the referring court, a European arrest warrant dated 4 July 2024 by which it requested the surrender of LY (‘the requested person’), a Bulgarian national permanently resident in Bulgaria, for the purposes of conducting a criminal prosecution for the burglary of 61 tyre-and-wheel assemblies worth EUR 150 990.
18.      In the proceedings for the execution of the European arrest warrant, the executing judicial authority, on 26 July 2024, issued a warrant for the arrest of the requested person on the territory of the Republic of Bulgaria. He was arrested on 4 August 2024. On 7 August 2024, the referring court, having determined that there was no risk of absconding, set bail in the amount of 1 000 Bulgarian leva (BGN) (approximately EUR 511), as a temporary coercive measure. The requested person was released.
19.      The requested person appeared in person, assisted by his counsel, at the hearings on 9 and 30 August 2024. Through his counsel, he stated that he would consent to his surrender as soon as possible to the Austrian judicial authorities, stating that although he had not given such consent, this was because of the risk of being subject, pending surrender, to a detention measure of potentially significant length. He therefore requested authorisation to travel freely to Austria, where he has a lawyer authorised to act, in order to voluntarily appear before the judicial authorities of that Member State with that lawyer’s assistance.
20.      The referring court notes that the request of the requested person is at odds with the nature of the judicial cooperation mechanism established in Framework Decision 2002/584, according to which the court must issue a decision on the surrender of the requested person and, next, the competent authorities of the executing Member State must surrender the requested person to the competent authorities of the issuing Member State.
21.      The referring court concurs with the analysis of the defence that the detention of the requested person immediately after the issue of the surrender decision cannot be regarded as necessary for the actual surrender. Such a measure, which may last for several days, or even for over a week, and is enforced in a prison, would constitute a disproportionate interference with personal liberty in the light of the objective pursued.
22.      Bulgarian law requires the referring court, at the time of issuing the decision recognising and executing the European arrest warrant, to take the requested person into custody and send him or her to prison. The referring court has doubts as to whether this form of execution is in accordance with Framework Decision 2002/584.
23.      In the first place, as regards mandatory detention, the very nature of the European arrest warrant necessarily presupposes the arrest of the requested person, which differs from surrender. Consequently, the requested person must necessarily be held in detention, at least at the time of surrender. Nonetheless, Framework Decision 2002/584 contains no provision requiring that the requested person must mandatorily be detained at an earlier point in the proceedings, before actually being physically surrendered.
24.      First, Article 12 of Framework Decision 2002/584 establishes as a general rule the possibility of detention or of release from detention. In that regard, the choice of the appropriate coercive measure depends on the particularities of the individual case. Consequently, detention is possible but not mandatory.
25.      Secondly, the expression ‘the person may be released provisionally at any time in conformity with the domestic law of the executing Member State’ means that the national transposing law must provide for the possibility of release from detention ‘at any time’.
26.      Thirdly, Article 23(5) of Framework Decision 2002/584, concerning the period following the issue of a final surrender decision to actual surrender, states ‘if the person is still being held in custody’, which means that that it is possible during that period that the requested person is not being held in custody.
27.      For those reasons, and having regard to the relevant case-law of the Court, the referring court considers that the second sentence of Article 44(7) of the ZEEZA is contrary to Article 12 and Article 23(5) of Framework Decision 2002/584, since those provisions preclude mandatory detention of the requested person in the period following the issue of the judicial decision on surrender until the actual physical surrender, even if there is from the outset no risk of absconding and no risk of the surrender being prevented. In such a case, detention is objectively necessary only at the time of surrender.
28.      In the second place, with regard to detention in prison, under Bulgarian law, if the referring court makes an order for the requested person to be taken into custody, that person is held in prison until he or she is actually surrendered. That person will therefore spend a few days, a week or longer in prison and will be subject to the same conditions as persons who have been detained in accordance with the rules set out in Article 5(1)(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. (6) The question arises whether being held in prison corresponds to the type of detention permitted by Article 12 and Article 23(5) of Framework Decision 2002/584.
29.      Notwithstanding the foregoing considerations, the referring court considers that there are also arguments which support the view that Bulgarian law is compatible with Framework Decision 2002/584.
30.      In particular, according to the referring court, it could be considered that mandatory detention at the time of the issue of the decision to recognise and execute the European arrest warrant constitutes the execution of the detention ordered by the national arrest warrant for the purposes of criminal proceedings in the issuing Member State. The European arrest warrant is based on a national arrest warrant and is merely a technical instrument for initiating the execution of the national arrest warrant in the territory of another Member State. Through the intermediary of the European arrest warrant – and the judicial cooperation mechanism under Framework Decision 2002/584 that is linked to that warrant – the national arrest warrant undergoes a limited review as to its legality by the executing judicial authority.
31.      As compared with traditional extradition, the system under Framework Decision 2002/584 creates a qualitatively different procedure for the surrender of requested persons for the purposes of their criminal prosecution, in so far as it is based on mutual trust and the mutual recognition of judicial arrest warrants. This is also the origin of the principle contained in Article 1(2) of that framework decision, according to which every European arrest warrant must be executed unless there are grounds for refusing to do so, which are listed exhaustively and which must be interpreted restrictively. There is no such principle in the case of extradition.
32.      Those arguments lead to the conclusion that, following the issue of the judicial decision of the executing judicial authority to recognise the European arrest warrant and surrender the requested person, both the mandatory detention of the requested person and the fact that he or she is sent to prison are normal and logical.
33.      In those circumstances, the Sofiyski gradski sad (Sofia City Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is a national law which provides that, when the executing judicial authority adopts a decision to recognise a European arrest warrant issued for the purposes of criminal proceedings and to surrender the [requested person], it must also mandatorily issue a decision ordering the arrest of that person, following which the [requested person] will remain detained in prison until such time as he or she is surrendered, consistent with Article 12 and Article 23(5) of [Framework Decision
2002/584]?’
34.      Written observations were submitted by the Bulgarian and Hungarian Governments and by the European Commission. The Bulgarian, Czech and Hungarian Governments and the Commission presented oral argument at the hearing held on 2 October 2025.
Analysis
Preliminary observations
35.      It should be noted that the referring court submits a single question, the wording of which, although it does not expressly make a distinction between them, essentially contains two parts. That question primarily concerns the automatic nature of the detention of the requested person. Moreover, the referring court makes clear that the automatic nature of that detention results in that person being placed in detention in a prison. That clarification suggests that detention in a prison is the immediate consequence of the automatic nature of the detention, in other words, a further effect of the obligation imposed on the court to order detention from the time when the decision to execute the European arrest warrant is taken.
36.      To that extent, and since the referring court seems to regard detention in a prison as the necessary consequence of that obligation, it seems to me that the question may be divided into two parts: the first relating to the automatic nature of detention; the second concerning whether detention in a prison until the requested person is actually surrendered is compatible with EU law, in the light of Framework Decision 2002/584.
The first part of the question referred
37.      The referring court seeks to ascertain whether a national rule which requires the automatic detention of the requested person from the time of the decision to execute a European arrest warrant and until that person is actually surrendered is compatible with Article 12 and Article 23(5) of Framework Decision 2002/584, read in the light of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 5 ECHR.
38.      It is necessary first to recall the requested person’s situation in the light of the execution of the European arrest warrant as is apparent from the main proceedings, in order to identify the relevant provisions of Framework Decision 2002/584. The requested person, a Bulgarian citizen, was the subject of a European arrest warrant issued by the Republic of Austria for the purposes of a criminal prosecution for burglary. Initially arrested in Bulgaria, he was subsequently released on bail, since the referring court considered that there was no risk of absconding.
39.      The applicable national law, in this case Article 44(7) of the ZEEZA, requires the referring court to order the arrest and detention of the requested person from the time when the decision to execute the European arrest warrant is issued until the person is actually surrendered to the issuing Member State. In other words, under national law, the surrender decision automatically entails the arrest and detention of the requested person. The referring court therefore asks whether such a detention requirement, covering the period between the decision to execute the warrant and the surrender itself, is compatible with Article 12 and Article 23(5) of Framework Decision 2002/584.
40.      Since the execution of the European arrest warrant by the Bulgarian authorities necessarily entails the arrest of the requested person, (7) the main provision applicable is Article 12 of Framework Decision 2002/584, which governs that person’s situation after his or her arrest. (8) Moreover, Article 23(5) of that framework decision must also be taken into consideration, in so far as it governs detention following the decision to execute the European arrest warrant.
41.      I propose at this point to answer in the negative the first part of the question submitted by the referring court.
42.      In my view, Framework Decision 2002/584 requires an individual review by the court of any deprivation of liberty at the stage of the execution of the European arrest warrant. That is, in fact, the interpretation which emerges from Article 12 and Article 23(5) of that framework decision, according to a literal, systematic and teleological reading. A contrary approach would depart from the requirements established by the case-law of the Court and that of the European Court of Human Rights (‘the ‘ECtHR’).
43.      I shall examine in turn the reasons why, in my view, that conclusion clearly follows, first, from a literal, next, from a systematic and, finally, from a teleological interpretation of the above provisions.
44.      In the first place, as regards the literal interpretation, Article 12 of Framework Decision 2002/584 provides that, when a person is arrested on the basis of a European arrest warrant, ‘the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State’, (9) and the person ‘may’ be released provisionally ‘at any time’. I consider that the answer to the first part of the question submitted by the referring court is clear from that wording. The phrase ‘shall take a decision’, directly associated with ‘the  executing judicial authority’, (10) expressly confers on that authority the task of deciding on continued detention. The wording ‘shall take a decision’ therefore implies genuine judicial discretion.
45.      It is certainly true, as the Bulgarian Government in particular emphasises, that Article 12 of Framework Decision 2002/584 expressly provides that the executing judicial authority decides whether the person concerned should remain in detention in accordance with the law of the executing Member State. Can it be inferred from that sentence that Framework Decision 2002/584 leaves to Member States the discretion to choose either to entrust to a judicial authority the assessment of the necessity of detention or to establish an automatic mechanism by law? In my view, no.
46.      The reference to the law of the executing Member State cannot be interpreted, contrary to the argument put forward in particular by the Bulgarian Government, as conferring on that State the power to impose automatic detention without effective judicial review. On the contrary, it implies that the assessment of the necessity and conditions of detention is a matter for the judicial authority, which acts in accordance with the conditions and procedures laid down by domestic law. Any other interpretation would render meaningless the phrase ‘shall take a decision’, which precedes the words ‘in accordance with the law of the executing Member State’. The structure of Article 12 of Framework Decision 2002/584 thus leads to the conclusion that the intervention of the court remains, in all circumstances, necessary, even though, as the Commission pointed out at the hearing, it must take place in accordance with the criteria and procedure laid down by national law.
47.      I conclude from this that, according to the literal approach to Article 12 of Framework Decision 2002/584, the EU legislature entrusts a judicial authority with the mandatory task of assessing whether or not it is appropriate to keep the requested person in detention at the stage of the procedure between his or her arrest and his or her surrender to the issuing Member State.
48.      In the second place, with regard to the interpretation of Article 12 of Framework Decision 2002/584, placed in its context, I consider that its general scheme and the relevant case-law of the Court confirm the importance of the role of the judicial authority in assessing the need to keep the person concerned in detention throughout the procedure for the execution of the European arrest warrant.
49.      First, as the referring court points out, Article 12 of Framework Decision 2002/584 must be interpreted in conjunction with Article 23(5) thereof. I would recall that those two provisions are contained in the chapter entitled ‘Surrender procedure’, which governs the phase of the surrender of the requested person to the issuing Member State. Article 23(5) provides that, upon expiry of the time limits referred to in paragraphs 2 to 4, ‘if the person is still being held in custody, he shall be released’. (11) It follows clearly from this that, during that interim period, detention is not mandatory: the EU legislature expressly acknowledges that the person concerned may, depending on the circumstances, be either kept in detention or released.
50.      That provision is consistent with Article 12 of Framework Decision 2002/584. Seen from a chronological standpoint, the procedure can be broken down into three successive stages: first, the arrest of the requested person, followed by the decision of the competent judicial authority on the need for detention; next, the possibility for that authority to order the release of that person at any time; finally, if that person remains in detention, Article 23(5) of the Framework Decision provides, in accordance with Article 12, that upon expiry of the time limits referred to, ‘if the person is still being held in custody’, he or she must be released.
51.      Secondly, the importance of judicial review of continued detention is apparent from the case-law of the Court. First of all, in the judgment in Lanigan, (12) the Court ruled that a failure by the executing Member State to observe the time limits laid down in Article 17 of Framework Decision 2002/584 did not, in itself, preclude the continued detention of the requested person. It nonetheless recalled the requirement, arising from Article 6 of the Charter, for effective judicial review to ensure that the duration of the custody does not become excessive in relation to the progress of the proceedings. (13)
52.      That approach is confirmed by the judgment in Vilkas. (14) In that judgment, the Court states that Article 23(3) of Framework Decision 2002/584 does not necessarily require release where, because of circumstances beyond one of the Member States’ control, surrender cannot take place within ten days of a new agreed date. However, by reference to Article 12 of Framework Decision 2002/584, it is for the executing judicial authority to assess, in accordance with national law, whether the person concerned should remain in detention. (15)
53.      The judgment in TC (16) also illustrates the central role of the court in assessing the continued detention in the light of the period of 90 days set out in Article 17(3) and (4) of Framework Decision 2002/584. In an extension of the judgment in Lanigan, the Court recognises in the judgment in TC that the procedure for executing a European arrest warrant may continue beyond the expiry of the period laid down by Framework Decision 2002/584. It considers that a general and unconditional obligation to release the person provisionally at that stage would undermine the effectiveness of the surrender mechanism. (17) However, the Court emphasises that continued detention beyond that period must be reconciled with the guarantees provided for in Article 6 of the Charter and Article 5 ECHR. Referring to paragraphs 57 to 59 of the judgment in Lanigan, it states that the extension of detention can take place only ‘under certain conditions’, entailing a specific, continuous and reasoned review by the executing judicial authority of the necessity and proportionality of the custodial measure. (18) It therefore follows from the judgment in TC that the requirement for an individual review by the court of continued detention applies throughout the execution stage and requires, at each step, an effective verification of the justification for detention.
54.      That approach is confirmed by the judgment in CJ, in which the Court ruled that the decision to postpone the surrender of the requested person, in accordance with Article 24 of Framework Decision 2002/584, in order to allow either prosecution or the execution of a sentence in the executing Member State, falls within the exclusive competence of the executing judicial authority, as expressly provided for in Article 24(1) thereof. (19)
55.      It follows from all that case-law that Article 12 of Framework Decision 2002/584 establishes the requirement for an individual, reasoned and reviewable judicial assessment of the necessity of continued detention. That assessment must be based on the specific circumstances of the procedure, taking into account the possibility of using less restrictive measures. National legislation making detention an automatic consequence of the decision to execute a European arrest warrant therefore disregards the scheme of Framework Decision 2002/584 and renders Article 12 of that framework decision meaningless.
56.      In the third place and finally, the conclusion which follows from a systematic interpretation of Article 12 of that framework decision, as clarified by the case-law of the Court, is supported by the teleological interpretation of that article, which highlights the specific purpose of the mechanism established by Framework Decision 2002/584. (20)
57.      From a teleological point of view, it should be noted that the interpretation of Article 12 of Framework Decision 2002/584 and its application in the main proceedings must be understood in the light of the intrinsic balance on which the European arrest warrant is based: on the one hand, the expeditiousness and simplicity of the procedure, guaranteed by the principle of mutual recognition; on the other hand, the effective protection of fundamental rights and judicial safeguards. (21)
58.      As regards the first aspect, recital 5 of Framework Decision 2002/584 states that it seeks to establish a simplified system of surrender between judicial authorities, with a view to removing the complexity and delays inherent in previous extradition procedures. (22) It is from that perspective that, in accordance with the principle of mutual recognition, the cornerstone of judicial cooperation in criminal matters, (23) Article 1(2) of Framework Decision 2002/584 establishes the principle of the automatic recognition and execution of European arrest warrants issued by another Member State. (24)
59.      However, that principle of mutual trust has as its necessary counterpart respect for fundamental rights. Article 1(3) of Framework Decision 2002/584 expressly states that the framework decision is not to have the effect of modifying the obligation to respect fundamental rights and general principles of law, as enshrined in Article 6 TEU. (25) Those rights include, first and foremost, the right to liberty, guaranteed by Article 6 of the Charter, in the light of which Article 12 of Framework Decision 2002/584 must be interpreted. (26) Under Article 52(1) of the Charter, any limitation on that right must be necessary, proportionate to the objective pursued and subject to effective safeguards with respect to review.
60.      Moreover, in accordance with Article 52(3) of the Charter, the rights contained therein which correspond to rights guaranteed by the ECHR must be given the same meaning and scope as those guaranteed by the ECHR. Article 53 of the Charter confirms that the Charter cannot be interpreted as restricting the rights recognised by the ECHR. The European arrest warrant falls within the scope of Article 5(1)(f) ECHR, which concerns the lawful detention of a person against whom action is being taken with a view to deportation or extradition. (27)
61.      According to the established case-law of the ECtHR, any deprivation of liberty must be ‘lawful’, which means not only that it must have a legal basis, but also that the law must be accessible, precise and predictable in its application in order to avoid all risk of arbitrariness. (28)
62.      More specifically, Article 5(1)(f) ECHR refers to the detention of a person either to prevent unauthorised entry into the country or with a view to preparation for deportation or extradition.
63.      In the situation provided for in Article 5(1)(f) ECHR, which is similar to that in question, the ECtHR carries out a limited review as to the validity of the reason for detention, namely the existence of deportation or extradition proceedings. However, it ensures strict compliance with the substantive and procedural safeguards that must govern such detention, in particular the principle of proportionality. As it pointed out in a case specifically concerning the execution of a European arrest warrant: ‘where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the [ECHR] refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness’. (29)
64.      In particular, according to the case-law of the ECtHR, Article 5(1)(f) ECHR does not require that the detention be reasonably considered necessary, for example to prevent the commission of an offence or the risk of absconding. The ECtHR has stated that Article 5(1)(f) provides a different level of protection from that of Article 5(1)(c): (30) all that is required under subparagraph
(f) is that ‘action is being taken with a view to deportation or extradition’. Accordingly, the ECtHR has repeatedly held that it is immaterial, for the purposes of applying that provision, whether the underlying decision to expel or extradite can be justified under national or Convention law. (31)
65.      However, the ECtHR carries out, in the light of Article 5(1)(f) ECHR, a specific, albeit non-exhaustive, review of proportionality. Accordingly, the ECtHR considers that detention based on Article 5(1)(f) must be carried out in good faith; it must be closely connected to the ground of detention relied on; the place and conditions of detention should be appropriate, and the length of that measure should not exceed that reasonably required for the purpose pursued. (32) Moreover, detention is justified only so long as the deportation or extradition proceedings are conducted diligently; once the authorities become inactive, the detention ceases to be covered by that provision. (33)
66.      Finally, the ECtHR emphasises, which is important in the light of the question raised in the main proceedings, that the ECHR also enshrines procedural safeguards enabling the person concerned to contest the lawfulness and length of his or her detention, thereby preventing all risk of arbitrariness. (34)
67.      Accordingly, the role of the court remains fundamental – even within the framework of Article 5(1)(f) ECHR, which does not require an intensive review of proportionality – since it is by means of the judicial review that it is possible to determine whether the detention ordered in the context of the enforcement of an extradition or deportation decision complies with the requirements of that provision.
68.      I shall now turn to the context of the main proceedings and the question whether the national legislation at issue satisfies the requirements of Article 6 of the Charter, as it must be interpreted in the light of Article 5(1)(f) ECHR. It cannot be denied that a legislative provision of general application, such as the one at issue, appears to meet the requirements of clarity, predictability and accessibility. (35) However, it seems to me that the restriction on the right to liberty which it imposes cannot be regarded as proportionate to the objective pursued.
69.      For detention to be proportionate to the aim pursued, the surrender procedure must be conducted diligently, detention must be strictly necessary to achieve that objective and the authorities must have considered less intrusive measures before having recourse to detention. However, those requirements can be guaranteed only by effective judicial review, which alone can ensure that the principle of proportionality is actually applied with respect to the person concerned.
70.      In other words, a national provision which has the effect of ‘tying the hands of the court’ and making continued detention an automatic consequence cannot, by its very nature, be compatible with the principle of proportionality. Such a rule precludes any examination of the elements necessary to establish that the detention is proportionate to the objective pursued by the surrender and by Framework Decision 2002/584.
71.      In conclusion, a systematic, and even more so a teleological, interpretation of Framework Decision 2002/584 leads to the conclusion that, even if it lacked Article 12 thereof, a national provision such as that at issue in the main proceedings cannot, in any event, be regarded as complying with the principle of proportionality. In other words, the rapidity and effectiveness of judicial cooperation cannot be achieved at the expense of automatic detention.
72.      In that regard, it is necessary to reject the argument put forward in particular by the Czech Government, at the hearing, that detention ‘as a point of principle’ is justified by the short time limits for the execution of the European arrest warrant, and the argument put forward by the Bulgarian and Hungarian Governments, based on the need to ensure the surrender of the requested person. In my view, no deprivation of liberty is legitimate in itself. It is only legitimate if it can be reviewed at any time and is limited to what is strictly necessary where no less restrictive measure can achieve the purpose pursued.
73.      Undoubtedly, the procedural safeguards provided for by Framework Decision 2002/584, referred to in particular by the Bulgarian, Hungarian and Czech Governments in their observations, such as the short time limits laid down in Article 17 of Framework Decision 2002/584 concerning the decision to execute a warrant, the requirement to release the person concerned laid down in Article 23(5) of that framework decision or the taking into account by the issuing Member State of the time spent in detention in the executing Member State, are important safeguards. However, for the reasons already set out, they cannot compensate for the absence of effective judicial review of the continued detention of the person concerned. Only an individual review by a court can give full effect to Article 12 of Framework Decision 2002/584 and ensure the practical implementation of the principle of proportionality by verifying whether detention is actually necessary.
74.      In conclusion, I consider that Article 12 and Article 23(5) of Framework Decision 2002/584, interpreted in the light of Article 6 of the Charter and Article 5 ECHR, preclude national legislation which requires the executing judicial authority, when deciding to recognise a European arrest warrant and order its execution, automatically to issue a decision to detain the requested person until his or her actual surrender, without an individual examination of the circumstances of the case.
The second part of the question referred
75.      It is necessary to determine whether Framework Decision 2002/584 authorises detention in a prison until the person concerned is surrendered in the context of the execution of a European arrest warrant.
76.      I consider that the answer to that question raised by the referring court should be in the affirmative.
77.      In the first place, unlike other acts of EU law, (36) no provision of Framework Decision 2002/584 provides that detention for the purposes of executing a European arrest warrant must take place in a type of facility other than a prison.
78.      In the second place, as is apparent from point 10 of this Opinion, in accordance with Article 26(1) of Framework Decision 2002/584, the issuing Member State is to deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed. This suggests, in my view, that detention in the executing Member State for the purpose of executing a European arrest warrant is comparable to detention in a prison in the issuing Member State for the purpose of the enforcement of a custodial sentence.
79.      In the third place, it should be recalled, as stated in point 60 above, that, in so far as the Charter sets out rights which correspond to rights guaranteed by the ECHR, Article 52(3) of the Charter provides that the meaning and scope of those rights are to be the same as those laid down by that convention. Article 5(1) ECHR must therefore be taken into account when interpreting Article 6 of the Charter.
80.      The case-law of the ECtHR supports the line of reasoning set out in points 77 and 78 above. (37) Admittedly, as recalled in point 65 of this Opinion, under Article 5(1)(f) ECHR, the place and conditions of detention of the person concerned must be ‘appropriate’ to the purpose pursued. That requirement follows a line of case-law which, in particular in relation to removal, emphasises that the measure is aimed at foreign nationals who are not being detained for a criminal offence and who have often fled their country in fear for their lives. (38)
81.      Is it to be inferred from this that detention in a prison is, as a matter of principle, prohibited? I do not think so. That case-law of the ECtHR requires rather that the detention regime reflect the non-punitive nature of the measure and be adapted to its administrative purpose, which presupposes the provision of decent material conditions and consideration of any vulnerabilities of the person concerned. (39)
82.      The case-law of the ECtHR also confirms that the infringements found relate primarily to the actual conditions of detention, such as overcrowding, hygiene, access to healthcare, to fresh air or to the maintenance of family ties and to the inadequacy of procedural safeguards, rather than to the legal classification of the applicable regime. For example, in the judgment in Suso Musa v. Malta, the ECtHR, examining the prolonged detention of an asylum seeker, noted that the infringement stemmed from the unreasonable length of detention and the worrying material conditions noted in several international reports, without calling into question the nature of the facility in which the person concerned was being held. (40)
83.      Furthermore, in its decision in Zaloilo v. Netherlands of 12 June 2018, the ECtHR confirmed this functional approach. It noted that, at the material time, there were three facilities in the Netherlands specifically reserved for the detention of foreign nationals, but that national law nevertheless allowed for their detention in an ordinary remand centre where necessary. In that case, the Appeals Board had ruled that the applicant’s transfer was justified by operational considerations related to his behaviour, since it was no longer possible to keep him at the Rotterdam facility, while ensuring that his status as a person in immigration detention was taken into consideration. In those circumstances, the ECtHR found no appearance of any arbitrariness. (41)
84.      It follows from the case-law of the ECtHR that detention in a facility under the responsibility of the prison authorities is not, in itself, contrary to the ECHR. What matters to the ECtHR is whether the measure is consistent with its purpose of removal, the material conditions of detention and the diligence of the authorities in conducting the proceedings. The emphasis is thus placed on whether there is in practice an alignment between the administrative nature of the detention and the manner in which it is implemented.
85.      In the light of all the foregoing, I consider that Framework Decision 2002/584 does not preclude the detention of the requested person in a prison until his or her surrender to the issuing Member State. The fact remains that the authorities of the executing Member State are required to comply with the obligations arising from Article 4 of the Charter, read in the light of Article 3 ECHR, by ensuring that the detention respects human dignity and the non-punitive nature of the measure.
Conclusion
86.      In the light of the foregoing considerations, I propose that the Court of Justice answer the question referred for a preliminary ruling by the Sofiyski gradski sad (Sofia City Court, Bulgaria) as follows:
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in the light of Article 6 of the Charter of Fundamental Rights of the European Union and Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms,
must be interpreted as:
–        precluding national legislation which requires the executing judicial authority, when deciding to recognise a European arrest warrant and order its execution, automatically to issue a decision to detain the requested person until his or her actual surrender, without an individual examination of the circumstances of the case;
–        not precluding the detention of the requested person in a prison until his or her surrender to the issuing Member State. The fact remains that the authorities of the executing Member State are required to comply with the obligations arising from Article 4 of the Charter of Fundamental Rights of the European Union, read in the light of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, by ensuring that the detention respects human dignity and the non-punitive nature of the measure.
1      Original language: French.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      OJ 2002 L 190, p. 1.
3      OJ 2009 L 81, p. 24.
4      DV (Darzhaven vestnik (State Gazette)) No 46, of 3 June 2005, in the latest version published in DV No 18, 1 March 2024.
5      DV No 25, of 3 April 2009, in the version thereof published in DV No 84, of 6 October 2023.
6      Signed in Rome on 4 November 1950 (‘ECHR’). According to Article 5(1)(c) ECHR: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(c)      the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.’
7      See Article 1(1) of Framework Decision 2002/584.
8      See, in that regard, Bot, S., Le mandat d’arrêt européen, Larcier, Brussels, 2009, in particular p. 427, No 551, which provides some examples of the transposition of that provision into national law.
9      Emphasis added.
10      Emphasis added.
11      Emphasis added.
12      Judgment of 16 July 2015, Lanigan (C‑237/15 PPU, ‘the judgment in Lanigan’, EU:C:2015:474).
13      Judgment in Lanigan (paragraphs 54 and 58).
14      Judgment of 25 January 2017, Vilkas (C‑640/15, ‘the judgment in Vilkas’, EU:C:2017:39).
15      Judgment in Vilkas (paragraphs 41 and 42).
16      Judgment of 12 February 2019, TC (C‑492/18 PPU, ‘the judgment in TC’,
EU:C:2019:108).
17      Judgment in
TC
(paragraphs 49 and 50).
18      Judgment in TC
(paragraph 64).
19      Judgment of 8 December 2022, CJ (Decision to postpone surrender due to criminal prosecution) (C‑492/22 PPU, ‘the judgment in CJ’, EU:C:2022:964). Referring to paragraph 43 of the judgment in Vilkas, the Court considers that, in accordance with Article 6 of the Charter, the executing judicial authority must carry out a specific review of the situation at issue to ensure that ‘the procedure has been conducted in a sufficiently diligent manner and the duration of detention is accordingly not excessive’ (paragraph 82).
20      As noted by Lenaerts, K., and Gutiérrez-Fons, J.-A., in Les méthodes d’interprétation de la Cour de justice de l’Union européenne, Bruylant, Brussels, 2020, p. 55, No 58: ‘the teleological method and the systematic method are often closely linked, since the latter helps to identify the objective of the provision of EU law in question. In other words, it is the general scheme of the Treaty (or of the secondary legislation in question) which enables the Court to clarify the objective pursued by it’.
21      See, on the issue of respect for fundamental rights in the execution of the European arrest warrant, Bot, S., Le mandat d’arrêt européen, Larcier, Brussels, 2009, pp. 410 to 433.
22      See, in that regard, judgment in Vilkas (paragraph 31).
23      See recital 6 of Framework Decision 2002/584.
24      See judgment in Lanigan (paragraph 36 and the case-law cited).
25      See judgment in CJ (paragraph 87), in which the Court noted that, even though the wording of Article 24(1) of Framework Decision 2002/584 does not impose any additional conditions on the exercise by the executing judicial authority of the option to adopt a decision to postpone surrender (other than the condition that that decision be intended to allow a criminal prosecution to be conducted or a sentence to be enforced in respect of an offence other than that covered by the European arrest warrant), that framework decision must be interpreted in accordance with fundamental rights.
26      See judgment in Lanigan (paragraphs 53 and 54).
27      See judgments of 28 January 2021, Spetsializirana prokuratura (Letter of rights) (C‑649/19, EU:C:2021:75, paragraph 55); of 30 June 2022, Spetsializirana prokuratura (Information on the national arrest decision) (C‑105/21, EU:C:2022:511, paragraphs 55 and 56); and in CJ (paragraph 80).
28      See judgment in TC (paragraph 58). See, also, ECtHR, 19 May 2016, J.N. v. United Kingdom (CE:ECHR:2016:0519JUD003728912, § 77). In general, concerning Article 5 ECHR, see von Arnim, D., ‘Artikel  5. Recht auf Freiheit und Sicherheit’, in Frowein, J.A. and Peukert, W., Europäische MenschenRechtsKonvention. EMRK-Kommentar, N.P. Engel Verlag, Kehl am Rhein, 2024, 4th ed., pp. 181 to 287.
29      See ECtHR, 17 April 2018, Pirozzi v. Belgium (CE:ECHR:2018:0417JUD002105511, § 45).
30      For the content of that article, see footnote 6 to point 28 of this Opinion.
31      See ECtHR, 15 November 1996, Chahal v. United Kingdom
(GC) (CE:ECHR:1996:1115JUD002241493, § 112), and ECtHR, 23 October 2008, Soldatenko v. Ukraine (CE:ECHR:2008:1023JUD000244007, § 109).
32      See ECtHR, 20 December 2011, Yoh-Ekale Mwanje v. Belgium (CE:ECHR:2011:1220JUD001048610, §§ 117 to 119), and ECtHR, 9 April 2024, Lazăr v. Romania (CE:ECHR:2024:0409JUD002018321, §§ 108 to 111).
33      See ECtHR, 15 December 2016, Khlaifia and Others
v. Italy
(GC) (CE:ECHR:2016:1215JUD001648312, § 90), and ECtHR, 24 January 2022, Sy
v. Italy (CE:ECHR:2022:0124JUD001179120, § 79) (the case specifically concerned detention pursuant to a European arrest warrant).
34      See, in particular, ECtHR, 17 July 2014, Kim v. Russia (CE:ECHR:2014:0717JUD004426013, § 53). The case concerned the detention pending deportation of a stateless person, born in the Uzbek Soviet Socialist Republic, notwithstanding the absence of any realistic prospect of the deportation being carried out and the lack of diligence on the part of the authorities in conducting the proceedings. The ECtHR held, in particular, that the Russian authorities were required from the outset to examine whether detention with a view to expulsion was, or remained, justified. That requirement was of particular importance in the case of the applicant, who was stateless and without resources and was in a particularly vulnerable situation. However, he had no effective remedy to challenge the lawfulness or length of his detention, and no legal or practical safeguards were in place to prevent the risk of arbitrariness. The Russian system thus provided no judicial review mechanism to prevent arbitrary detention, while the ‘preventive’ measure had proved to be more severe than the maximum sentence of 30 days provided for the offence.
35      See, by analogy, judgments of 15 March 2017, Al Chodor
(C‑528/15, EU:C:2017:213, paragraph 43); of 12 February 2019, TC (paragraphs 61 and 66), and of 10 March 2022, Landkreis Gifhorn
(C‑519/20, EU:C:2022:178, paragraph 62).
36      See, for example, judgment of 10 March 2022, Landkreis Gifhorn (C‑519/20, EU:C:2022:178, paragraphs 34, 36 and 45), in which the Court observed that the first sentence of Article 16(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) lays down the principle that the detention of illegally staying third-country nationals for the purpose of removal is to take place in specialised detention facilities. The Court has ruled that such facilities are distinct from prisons, which means that the conditions of detention in those facilities must have certain specific features in relation to the normal conditions under which custodial sentences are enforced in prison accommodation in order for the regime to be considered appropriate to the legal status of those nationals. In particular, the conditions of detention applicable in such a facility must be such that they avoid, as much as possible, the detention of such a national resembling detention in a prison environment, suitable for detention for punitive purposes.
37      Concerning the case-law of the ECtHR on Article 5(1)(f) ECHR, see, in particular, von Arnim, D., ‘Artikel 5. Recht auf Freiheit und Sicherheit’, in Frowein, J.A. and Peukert, W., Europäische MenschenRechtsKonvention. EMRK-Kommentar, N.P. Engel Verlag, Kehl am Rhein, 2024, 4th ed., pp. 236 to 238, Nos 151 to 158.
38      See ECtHR, 29 January 2008, Saadi v. United Kingdom
(GC) (CE:ECHR:2006:0711JUD001322903, § 74); ECtHR, 23 July 2013, Suso Musa v. Malta (CE:ECHR:2013:0723JUD004233712, § 93); ECtHR, 4 April 2017, Thimothawes v. Belgium (CE:ECHR:2017:0404JUD003906111, § 64), and ECtHR, 25 January 2018, J.R. and Others v. Greece (CE:ECHR:2018:0125JUD002269616, § 110).
39      See ECtHR, 4 April 2017, Thimothawes v. Belgium (CE:ECHR:2017:0404JUD003906111, §§ 73, 79 and 80).
40      ECtHR, 23 July 2013, Suso Musa v. Malta (CE:ECHR:2013:0723JUD004233712, § 101).
41      ECtHR, 12 June 2018, Zaloilo v. Netherlands (CE:ECHR:2018:0612DEC006003512, §§ 39 to 41).