Criminal proceedings against MM.
Date: 2021-01-13
In the second place, as regards the criterion relating to urgency, according to the Court’s settled case-law, it is necessary to take into account the fact that the person concerned in the main proceedings is, on the date the request for a preliminary ruling is lodged, deprived of his or her liberty and that his or her continuing detention depends on the outcome of the dispute in the main proceedings (see, to that effect, judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 38, and 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 99).
By contrast, the referring court does not cast doubt on the classification of the public prosecutor as an ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, in the light of the criteria identified by the Court of Justice in order to be eligible for that classification, that is to say, first, its participation in the administration of criminal justice and, secondly, its independence in the execution of those of its responsibilities which are inherent in the issuing of a European arrest warrant (see, in that regard, judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 51 and 74, and 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, paragraph 52).
As the Court has stated, judicial review of the decision taken by an authority other than a court to issue a European arrest warrant is not a condition for classification of that authority as an issuing judicial authority within the meaning of Article 6(1) of Framework Decision 2002/584. That requirement does not fall within the scope of the statutory rules and institutional framework of that authority, but concerns the procedure for issuing such a warrant, which must satisfy the requirement of effective judicial protection (judgment of 24 November 2020, AZ (Forgery of documents), C‑510/19, EU:C:2020:953, paragraph 46 and the case-law cited).
As a preliminary point, it should be borne in mind that the principle of mutual recognition on which the European arrest warrant system is based is founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter (judgment of 1 June 2016, Bob-Dogi, C‑241/15, EU:C:2016:385, paragraph 33 and the case-law cited).
The principles of mutual recognition and mutual confidence which form the basis of the European arrest warrant system are founded inter alia on the premiss that the European arrest warrant concerned has been issued in conformity with the minimum requirements necessary for it to be valid, which include the requirement laid down in Article 8(1)(c) of Framework Decision 2002/584. The dual level of judicial protection is, in principle, lacking in a situation where a procedure to issue a European arrest warrant has been applied without a decision, such as a decision to issue a national arrest warrant on which the European arrest warrant is based, having been taken by a national judicial authority, before the issuing of the European arrest warrant (see, to that effect, judgment of 1 June 2016, Bob-Dogi, C‑241/15, EU:C:2016:385, paragraph 57).
It should be borne in mind that, whereas Framework Decision 2002/584 does not provide a precise definition of the concept of an ‘arrest warrant or … enforceable judicial decision having the same effect’, it is apparent from the Court’s case-law that that concept refers, in the first place, to a national measure that is distinct from the European arrest warrant decision (see, to that effect, judgment of 1 June 2016, Bob-Dogi, C‑241/15, EU:C:2016:385, paragraph 58).
As regards, in the second place, what must be understood by the term ‘judicial decision’, it has been held that that term covers all the decisions of the Member State authorities that administer criminal justice, but not the police services (judgment of 10 November 2016, Özçelik, C‑453/16 PPU, EU:C:2016:860, paragraph 33).
In that regard, as the Court has already held, as regards proceedings relating to a European arrest warrant, observance of the rights of the person whose surrender is requested falls primarily within the responsibility of the issuing Member State, which must be presumed to be complying with EU law, in particular the fundamental rights conferred by that law (judgments of 23 January 2018, Piotrowski, C‑367/16, EU:C:2018:27, paragraph 50, and of 6 December 2018, IK (Enforcement of an additional sentence), C‑551/18 PPU, EU:C:2018:991, paragraph 66).
It is also apparent from the Court’s case-law that the European arrest warrant system entails a dual level of protection of procedural rights and fundamental rights which must be enjoyed by the requested person, since, in addition to the judicial protection provided at the first level, at which a national decision, such as a national arrest warrant, is adopted, there is the protection that must be afforded at the second level, at which a European arrest warrant is issued, which may occur, depending on the circumstances, shortly after the adoption of the national judicial decision (judgments 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, paragraph 59, and of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 38).
Thus, as regards a measure, such as the issuing of a European arrest warrant, which is capable of impinging on the right to liberty of the person concerned, that protection means that a decision meeting the requirements inherent in effective judicial protection should be adopted, at least, at one of the two levels of that protection (judgments 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, paragraph 60, and of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 39).
In addition, the second level of protection of the rights of the person concerned requires that the issuing judicial authority review observance of the conditions to be met when issuing a European arrest warrant and examine objectively – taking into account all incriminatory and exculpatory evidence, without being exposed to the risk of being subject to external instructions, in particular from the executive – whether it is proportionate to issue that warrant (judgments 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, paragraph 61, and of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 40).
Furthermore, it should be borne in mind that, where the law of the issuing Member State confers the competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, the decision to issue such an arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection (judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 41 and the case-law cited).
Such proceedings against a decision to issue a European arrest warrant for the purposes of a criminal prosecution taken by an authority which, whilst participating in the administration of justice and having the necessary independence from the executive, does not constitute a court serve to ensure that the review by a court of that decision and of the conditions to be met when issuing that warrant and, in particular, the proportionality of such a warrant complies with the requirements inherent in effective judicial protection (judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 42).
Accordingly, it is for the Member States to ensure that their legal orders effectively safeguard the level of judicial protection required by Framework Decision 2002/584, as interpreted by the Court’s case-law, by means of remedies which they implement and which may vary from one system to another (judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 43).
In that context, 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 possibility in that regard (judgments 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, paragraph 65, and of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 44).
Consequently, the inclusion in the national legal system of procedural rules whereby the conditions under which a European arrest warrant was issued and, inter alia, its proportionality, may be subject to review by a court in the issuing Member State before, after, or at the same time as its adoption, meets the requirement of effective judicial protection (see, to that effect, judgments 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, paragraphs 70 and 71, and of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraphs 52 and 53).
While Framework Decision 2002/584 leaves the national authorities some discretion, in accordance with the procedural autonomy which they enjoy, as to the specific manner of implementation of the objectives it pursues, with respect inter alia to the possibility of providing for a certain type of appeal against decisions relating to a European arrest warrant (see, to that effect, judgment of 30 May 2013, F, C‑168/13 PPU, EU:C:2013:358, paragraph 52), the fact remains that the Member States must ensure that they do not frustrate the requirements flowing from that framework decision, in particular regarding the judicial protection which underlies it.
In addition, it should be observed that compliance with the Charter is binding, as is stated in Article 51(1) of the Charter, on the Member States and, consequently, on their courts, when they are implementing EU law, which is the case when the issuing judicial authority and the executing judicial authority are applying the provisions of national law adopted to transpose Framework Decision 2002/584 (judgment of 1 June 2016, Bob-Dogi, C‑241/15, EU:C:2016:385, paragraph 34 and the case-law cited). That must also be the case when what is at issue is the effectiveness of the judicial review that must be carried out, directly or indirectly, with regard to decisions relating to the European arrest warrant.
In accordance with Article 1(1) of Framework Decision 2002/584, the aim of the mechanism of the European arrest warrant is to enable the arrest and surrender of a requested person, in the light of the objective pursued by that framework decision, so that the crime committed does not go unpunished and that that person is prosecuted or serves the custodial sentence ordered against him or her (judgment of 6 December 2018, IK (Enforcement of an additional sentence), C‑551/18 PPU, EU:C:2018:991, paragraph 39).
Furthermore, in the absence of harmonisation of the conditions under which a pre-trial detention measure may be issued and maintained in respect of a person who is the subject of a criminal prosecution (see, to that effect, judgments of 19 September 2018, Milev, C‑310/18 PPU, EU:C:2018:732, paragraph 47, and of 28 November 2019, Spetsializirana prokuratura, C‑653/19 PPU, EU:C:2019:1024, paragraph 28), it is only under the conditions laid down in its national law that the court having jurisdiction may decide to adopt such a measure and, where appropriate, interrupt its execution if it finds that those conditions are no longer satisfied.