Criminal proceedings against IR.
Date: 2021-01-28
In that regard, it should be borne in mind that, according to the settled case-law of the Court, a national court may refer a question to the Court of Justice only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (judgments of 31 May 2005, Syfait and Others, C‑53/03, EU:C:2005:333, paragraph 29, and of 16 September 2020, Anesco and Others, C‑462/19, EU:C:2020:715, paragraph 36).
In the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 17 October 2019, Elektrorazpredelenie Yug, C‑31/18, EU:C:2019:868, paragraph 31 and the case-law cited).
It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law or the assessment of the validity of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 16 October 2019, Winterhoff and Eisenbeis, C‑4/18 and C‑5/18, EU:C:2019:860, paragraph 36 and the case-law cited).
Furthermore, the issuing of a European arrest warrant could result in the arrest of the requested person and, therefore, affects the personal freedom of that person. The Court has held that, with regard to proceedings relating to such a warrant, observance of fundamental rights falls primarily within the responsibility of the issuing Member State. In order to ensure observance of those rights – which may lead a judicial authority to decide to issue a European arrest warrant – such an authority must be able to refer questions to the Court for a preliminary ruling (see, to that effect, judgment of 25 July 2018, AY (Arrest warrant – Witness), C‑268/17, EU:C:2018:602, paragraphs 28 and 29).
In accordance with settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, judgments of 4 May 2010, TNT Express Nederland, C‑533/08, EU:C:2010:243, paragraph 44, and of 6 October 2020, Jobcenter Krefeld, C‑181/19, EU:C:2020:794, paragraph 61).
Framework Decision 2002/584 on the European arrest warrant seeks, by the establishment of a simplified and more effective system, directly between the judicial authorities, for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States (judgment of 24 September 2020, Generalbundesanwalt beim Bundesgerichtshof (Speciality rule), C‑195/20 PPU, EU:C:2020:749, paragraph 32 and the case-law cited).
As a preliminary point, it should be borne in mind that the substantive legality of an EU act cannot be examined in the light of another EU act of the same status in the hierarchy of legal rules, unless the former has been adopted pursuant to the latter or unless it is expressly provided, in one of those two acts, that one take precedence over the other (judgment of 8 December 2020, Hungary v Parliament and Council, C‑620/18, EU:C:2020:1001, paragraph 119).
In particular, it is apparent from paragraph 70 of the judgment 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), that the decision to issue a European arrest warrant must, in the issuing Member State, be subject to review by a court which meets in full the requirements inherent in effective judicial protection. For the person concerned to be able to effectively exercise the rights conferred on him or her by Directive 2012/13, he or she must enjoy those rights not only after his or her surrender to the issuing judicial authorities but from the moment of his or her arrest in the executing Member State.
The European arrest warrant system introduced by that framework decision is based on the principle of mutual recognition, which is itself 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 (judgments of 10 November 2016, Özçelik, C‑453/16 PPU, EU:C:2016:860, paragraph 23 and the case-law cited, and of 9 October 2019, NJ (Public Prosecutor’s Office, Vienna), C‑489/19 PPU, EU:C:2019:849, paragraph 27).
In that context, where a European arrest warrant is issued with a view to the arrest and surrender by another Member State of a requested person for the purpose of conducting a criminal prosecution, that person must have already had the benefit, at the first stage of the proceedings, of procedural safeguards and fundamental rights, the protection of which it is the task of the judicial authorities of the issuing Member State to ensure, in accordance with the applicable provisions of national law, for the purpose, inter alia, of adopting a national arrest warrant (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 66, and of 9 October 2019, NJ (Public Prosecutor’s Office, Vienna), C‑489/19 PPU, EU:C:2019:849, paragraph 33).
The Court has thus already considered 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 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 67; of 9 October 2019, NJ (Public Prosecutor’s Office, Vienna), C‑489/19 PPU, EU:C:2019:849, paragraph 34; and of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraph 59).
Since the issuing of a European arrest warrant is capable of impinging on the right to liberty of the person concerned, enshrined in Article 6 of the Charter, 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 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 68, and of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraph 60).
In particular, 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 (judgment of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraph 61 and the case-law cited).
Second, the right to effective judicial protection does not require that the right, provided for in the legislation of the issuing Member State, to challenge the decision to issue a European arrest warrant for the purposes of criminal prosecution can be exercised before the surrender of the person concerned to the competent authorities of that Member State (see, to that effect, judgment of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraphs 69 to 71).