NJ.
Date: 2019-09-17
27


In that regard, It is important to bear in mind that the European arrest warrant system introduced by Framework Decision 2002/584 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 of Fundamental Rights of the European Union (‘the Charter’) (judgment of 10 November 2016, Özçelik, C‑453/16 PPU, EU:C:2016:860, paragraph 23 and the case-law cited).
28


Article 1(1) of Framework Decision 2002/584 defines the European arrest warrant as ‘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’. The principle of mutual recognition proceeds from the assumption, in that regard, that only European arrest warrants, within the meaning of that provision, must be executed in accordance with the provisions of Framework Decision 2002/584 (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 46).
29


That principle is based on the premiss that the European arrest warrant concerned was issued in accordance with the minimum requirements on which its validity depends, including those laid down in Article 8 of Framework Decision 2002/584, in particular the requirement that there be an arrest warrant or other national judicial decision to which the European arrest warrant is attached (see, to that effect, judgment of 1 June 2016, Bob-Dogi, C‑241/15, EU:C:2016:385, paragraph 53).
30


As is clear from the established case-law, the concept of ‘judicial decision’, within the meaning of Framework Decision 2002/584, is not limited to designating only decisions of the judges or courts of a Member State, but must be construed as designating, more broadly, the decisions adopted by the authorities participating in the administration of criminal justice in that Member State, such as the Austrian Public Prosecutor’s Office, as distinct from, inter alia, ministries or police services which are part of the executive (see, to that effect, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 50).
32


In that regard, it must be borne in mind that Framework Decision 2002/584 aims to introduce a simplified system of surrender directly between judicial authorities designed to replace a traditional system of cooperation between sovereign States — which involves the intervention and assessment of the executive — in order to ensure the free circulation of court decisions in criminal matters, within an area of freedom, security and justice (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 65).
33


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 purposes 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, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 66).
34


The Court has thus 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 (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 67).
35


In addition, it should be recalled that, since the issuing of a European arrest warrant, which 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 (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 68).
36


In that regard, it should be noted, first, that, where those requirements are met, the executing judicial authority may be satisfied that the decision to issue a European arrest warrant for the purpose of criminal prosecution is based on a national procedure that is subject to review by a court and that the person in respect of whom that national arrest warrant was issued has had the benefit of all safeguards derived from the fundamental rights and fundamental legal principles referred to in Article 1(3) of Framework Decision 2002/584 (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 70).
37


Second, the review carried out at the time of adoption of an arrest warrant must include an examination of the observance of the conditions necessary for the issuing of that arrest warrant and of whether, in the light of the particular circumstances of each case, it is proportionate to issue that warrant (see, to that effect, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 71).
38


Third, that review must be exercised objectively, taking into account all incriminatory and exculpatory evidence, and independently, which presupposes the existence of statutory rules and an institutional framework capable of excluding any risk that the adoption of a decision to issue such an arrest warrant be subject to external instructions, in particular from the executive (see, to that effect, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 73 and 74).
40


In addition, it is common ground that the courts responsible for the endorsement of European arrest warrants meet the requirement of objectivity and independence. However, in the case of the Austrian Public Prosecutor’s Offices, Paragraph 2(1) of the StAG states that they are directly subordinate to the higher public prosecutor’s offices and subject to their instructions and that the latter are in turn subordinate to the Federal Minister of Justice. Given that the necessary independence requires that there be statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a European arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive, the Austrian Public Prosecutor’s Offices cannot be regarded as satisfying that requirement (see, by analogy, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices of Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 74 and 84).