Prosecutor of the regional prosecutor's office in Ruse, Bulgaria (Judicial cooperation in criminal matters - European arrest warrant - Order) [2021] EUECJ C-206/20

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(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 8(1)(c) – European arrest warrant issued by the public prosecutor’s office of a Member State for the purposes of criminal prosecution on the basis of a measure involving deprivation of liberty issued by the same authority – No judicial review prior to surrender of the requested person – Consequences – Effective judicial protection – Charter of Fundamental Rights of the European Union – Article 47)

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court), made by decision of 17 February 2020, received at the Court on 15 May 2020, in proceedings relating to the execution of a European arrest warrant issued against

composed of L. Bay Larsen, President of the Chamber, C. Toader (Rapporteur) and N. Jääskinen, Judges,

– VA, by H. Malcolm QC, and B. Seifert, Barrister, instructed by R. Katz, Solicitor,

– the prosecutor of the regional prosecutor’s office in Ruse, Bulgaria, by R. Milcheva,

– the Bulgarian Government, by L. Zaharieva and T. Tsingileva, acting as Agents,

– the European Commission, by M. Wilderspin and S. Grünheid, acting as Agents,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

1 This request for a preliminary ruling concerns the interpretation of Article 8(1)(c) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’), read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in the context of the execution in the United Kingdom of a European arrest warrant issued by the prosecutor of the rayonna prokuratura Ruse (prosecutor of the regional prosecutor’s office in Ruse, Bulgaria), for the purposes of the criminal prosecution of VA.

3 Recitals 5, 6, 10 and 12 of Framework Decision 2002/584 are worded 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.

(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [TEU], determined by the Council pursuant to Article 7(1) [TEU] with the consequences set out in Article 7(2) thereof.

(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [TEU] and reflected in the Charter …, in particular Chapter VI thereof. …’

4 Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘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 [TEU].’

5 Article 2 of that framework decision, entitled ‘Scope of the European arrest warrant’, provides, in paragraph 1 thereof:

‘A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.’

6 Under Article 6 of that framework decision, entitled ‘Determination of the competent judicial authorities’:

‘1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.

2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.

3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.’

7 Article 8 of Framework Decision 2002/584, entitled ‘Content and form of the European arrest warrant’, provides, in paragraph 1 thereof:

‘The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;

8 The procedure for executing a European arrest warrant is governed by the Extradition Act 2003. Part 1 of that Act defines the territories to which extradition by the United Kingdom of Great Britain and Northern Ireland may be carried out. The Republic of Bulgaria is amongst those territories. Under section 2(7) of that Act, the designated central authority is to issue a certificate if it believes that the arrest warrant has been issued by an issuing authority from one of those territories.

‘The judiciary shall be independent. When performing their functions, all judges, jurors, public prosecutors and investigating magistrates shall be subject only to the law.’

10 The Zakon za ekstraditsiata i evropeiskata zapoved za arest (Law on extradition and the European arrest warrant, DV No 46 of 3 June 2005), in the version applicable to the dispute in the main proceedings (‘the ZEEZA’), transposes Framework Decision 2002/584 into Bulgarian law. Article 37 of the ZEEZA sets out the provisions relating to the issuing of a European arrest warrant in terms almost identical to those of Article 8 of that framework decision.

11 Pursuant to Article 56(1)(1) of the ZEEZA, the public prosecutor is competent, at the pre-trial stage of criminal proceedings, to issue a European arrest warrant for the accused person.

12 Pursuant to Article 14(1) of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, DV No 86 of 28 October 2005), in the version applicable to the dispute in the main proceedings (‘the NPK’), the public prosecutor is to take decisions in accordance with his or her own firm conviction, on the basis of an objective, impartial and comprehensive examination of all the circumstances of the case, in accordance with the law.

13 In criminal proceedings, the prosecutor is the competent authority which, in accordance with Article 46 of the NPK, brings the prosecution, directs the investigation and supervises its lawful and proper conduct.

14 The placement in provisional detention of a person who is the subject of a criminal prosecution is governed, at the pre-trial stage of criminal proceedings, by Article 64 of the NPK.

15 Under Article 64(1) of the NPK, ‘during the pre-trial stage, the supervision measure of provisional detention shall be adopted by the court of first instance having jurisdiction at the request of the public prosecutor’.

16 In accordance with Article 64(2) of the NPK, the public prosecutor may adopt a measure ordering the detention of the accused person for a maximum of 72 hours with a view to ensuring that that person is brought before the court with jurisdiction in order to adopt, where appropriate, a measure placing that person in detention.

17 Article 64(3) of the NPK provides that ‘the court, sitting in a single-judge formation, shall immediately hear the case in a public hearing with the participation of the public prosecutor, the accused person and that person’s defence counsel’.

18 Furthermore, in accordance with Article 64(4) of the NPK, the court is the competent authority to examine the request to place the accused person in provisional detention and to assess whether such a measure should be adopted, or to choose to impose a less stringent measure or refuse generally to impose a restrictive procedural measure in respect of the accused person.

The dispute in the main proceedings and the question referred for a preliminary ruling

19 On 6 March 2018, the prosecutor of the regional prosecutor’s office in Ruse issued a European arrest warrant for the purposes of the criminal prosecution of VA (‘the European arrest warrant at issue’).

20 As is apparent from the file before the Court, VA is suspected of having committed, on 4 July 2011 in the city of Ruse (Bulgaria), burglary consisting in the removal of an estimated sum of 13 749.85 Bulgarian leva (BGN) (approximately EUR 7 030), punishable by a term of imprisonment of between 1 and 10 years.

21 The European arrest warrant at issue is based on a decision of that prosecutor, issued on 11 January 2018, ordering that VA be detained for a maximum period of 72 hours.

22 VA was arrested in the United Kingdom on 16 March 2019 pursuant to the European arrest warrant at issue and was subsequently released on bail, subject to a number of restrictions imposed on him.

23 On 10 May 2019, a District Judge (United Kingdom) ordered the extradition of VA to Bulgaria.

24 VA brought an appeal against that decision before the referring court and challenged the validity of the European arrest warrant at issue, arguing that the Bulgarian judicial system does not satisfy the requirements of Framework Decision 2002/584, as interpreted in the case-law of the Court, in so far as neither the European arrest warrant nor the measure involving deprivation of liberty on which it is based is subject to judicial oversight before the surrender of the requested person to the issuing Member State.

25 It is apparent from the request for a preliminary ruling that, according to the prosecutor of the regional prosecutor’s office in Ruse, a person requested pursuant to a European arrest warrant is, under Bulgarian law, represented by a lawyer, so that his or her interests are fully protected. In so far as the decision to issue such a warrant is based on a decision ordering detention which requires that, after the surrender of the requested person, the latter be brought before a court which decides on his or her detention, the Bulgarian procedural system is, it is argued, in compliance with Framework Decision 2002/584, as interpreted by the case-law of the Court.

26 According to the referring court, under Bulgarian law, neither the prosecutor’s decision ordering the detention of the requested person nor the European arrest warrant issued by the same authority as a result of that decision is subject to judicial oversight before the requested person is surrendered. In that court’s view, that situation therefore appears to be distinct from the procedural systems known in other Member States and which have given rise to the case-law of the Court on the subject.

27 The referring court annexed to its request for a preliminary ruling the certificate issued by the National Crime Agency (United Kingdom), in accordance with section 2(7) of the Extradition Act 2003, certifying that the European arrest warrant at issue was issued by a competent judicial authority.

28 That court asks nonetheless whether the dual level of protection for rights which must be enjoyed by the requested person, as required by the case-law of the Court of Justice, in particular in paragraph 56 of the judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385), is provided in the context of the case before it, in so far as both the European arrest warrant at issue and the national arrest warrant or the judicial decision having the same effect as the latter were issued by the prosecutor of the regional prosecutor’s office in Ruse, without the involvement of a Bulgarian court prior to the surrender of VA by the United Kingdom.

29 In those circumstances, the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) (United Kingdom) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Where surrender is sought in order to prosecute a requested person, and where the decision to issue an underlying national arrest warrant … and the decision to issue a European arrest warrant … are both taken by a public prosecutor, without any involvement of a [court] prior to surrender, does a requested person receive the dual level of protection envisaged by the Court in [the judgment of 1 June 2016,] Bob-Dogi (C‑241/15, EU:C:2016:385) if:

(a) the effect of the [national arrest warrant] is limited to detaining the individual for a maximum of 72 hours for the purpose of bringing him before a court; and

(b) on surrender, it is solely a matter for the court whether to order release, or to continue detention, in light of all the circumstances of the case?’

30 The referring court requested that the present case be dealt with under the expedited procedure pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice.

31 In support of its request, that court stated that VA was arrested pursuant to the European arrest warrant at issue and that, since then, he has been released on bail, with certain restrictions imposed on him. That court also submitted that it is necessary to comply with the timescales for surrender laid down in Article 18 of Framework Decision 2002/584 and invoked the fact that the Court’s answer to the question referred will have an impact on other cases concerning similar proceedings involving European arrest warrants issued by Bulgarian public prosecutors for the purposes of criminal prosecution.

32 As regards, first of all, the fact that the requested person who is currently released is subject to certain restrictions, it is apparent from the case-law that that fact cannot be regarded as constituting an exceptional circumstance that requires that case to be dealt with within a short time, within the meaning of Article 105(1) of the Rules of Procedure, and, therefore, to apply the expedited procedure (order of the President of the Court of 20 September 2018, Minister for Justice and Equality, C‑508/18 and C‑509/18, not published, EU:C:2018:766, paragraph 12 and the case-law cited).

33 As regards, next, the referring court’s argument based on the strict timescales as regards the surrender of a requested person in the context of the execution of a European arrest warrant, the Court has previously held that the fact that a request for a preliminary ruling concerns the execution of a European arrest warrant and, therefore, requires a swift response is not sufficient in itself to justify the application of the expedited procedure referred to in Article 105(1) of the Rules of Procedure to those cases since the latter is a procedural instrument intended to address matters of exceptional urgency (order of the President of the Court of 20 September 2018, Minister for Justice and Equality, C‑508/18 and C‑509/18, not published, EU:C:2018:766, paragraph 11 and the case-law cited).

34 As regards, lastly, the ground relating to the potential consequences as regards other requests for the execution of European arrest warrants from Bulgaria, it should be borne in mind that the large number of persons or legal situations potentially affected by the decision the referring court or tribunal has to deliver after bringing a matter before the Court for a preliminary ruling is not capable, in itself, of constituting an exceptional circumstance that could justify the use of an expedited procedure (order of the President of the Court of 24 October 2017, Popławski, C‑573/17, not published, EU:C:2017:827, paragraph 8 and the case-law cited).

35 In the light of the foregoing considerations, the referring court’s request that the expedited procedure under Article 105(1) of the Rules of Procedure be applied to the present case was rejected by decision of the President of the Court of 16 July 2020.

36 Pursuant to Article 99 of its Rules of Procedure, where the reply to a question may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

37 It is appropriate to apply that provision in the context of the present reference for a preliminary ruling.

38 By its question, the referring court asks, in essence, whether Article 8(1)(c) of Framework Decision 2002/584, read in the light of Article 47 of the Charter and the case-law of the Court, must be interpreted as meaning that the requirements inherent in the effective judicial protection that must be afforded to a person who is the subject of a European arrest warrant for the purposes of criminal prosecution are satisfied where both the European arrest warrant and the judicial decision on which that warrant is based are issued by a public prosecutor – who may be classified as an ‘issuing judicial authority’ within the meaning of Article 6(1) of that framework decision – but cannot be reviewed by a court in the issuing Member State prior to the surrender of the requested person by the executing Member State.

39 As a preliminary matter, it should be recalled that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 33 and the case-law cited).

40 The effectiveness and proper functioning of the simplified system for the surrender of persons convicted or suspected of having infringed criminal law, established by Framework Decision 2002/584, are based on compliance with certain requirements laid down by that framework decision, the scope of which has been established by the case-law of the Court.

41 In that regard, so far as concerns, in the first place, the classification of public prosecutors in Bulgaria as an ‘issuing judicial authority’ within the meaning of Article 6(1) of Framework Decision 2002/584, the Court has previously held that they participate in the administration of criminal justice and that they are independent in the execution of those of their responsibilities which are inherent in the issuing of a European arrest warrant, both of which conditions make it possible to classify them as such (see, to that effect, judgment of 10 March 2021, PI, C‑648/20 PPU, EU:C:2021:187, paragraph 37 and the case-law cited).

42 In the second place, it should also be recalled that, as the Court held in paragraph 39 of the judgment of 10 March 2021, PI (C‑648/20 PPU, EU:C:2021:187), the prosecutor’s decision ordering the detention of the requested person for a maximum of 72 hours, on which the European arrest warrant is based, must be classified as an ‘enforceable judicial decision having the same effect’ as a national arrest warrant, within the meaning of Article 8(1)(c) of Framework Decision 2002/584.

43 Nevertheless, those facts do not suffice for a finding that the Bulgarian system of criminal procedure under which both the European arrest warrant and the decision on which it is based are issued by the public prosecutor’s office meets the requirements of Framework Decision 2002/584, namely compliance with the dual level of protection of the rights which must be enjoyed by the requested person, as interpreted by the Court’s case-law, since judicial review in that connection can take place only after the surrender of the requested person.

44 In that connection, it should be recalled that, in paragraph 56 of the judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385), the Court ruled that the European arrest warrant system entails, in view of the requirement laid down in Article 8(1)(c) of Framework Decision 2002/584, a dual level of protection for 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 judicial decision, such as a national arrest warrant, is adopted, 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.

45 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, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 68).

46 It follows 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 a judge or a court, the national judicial decision, such as a national arrest warrant, on which the European arrest warrant is based, must, itself, meet those requirements (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, paragraph 69).

47 Where those requirements are met, the executing judicial authority may therefore be satisfied that the decision to issue a European arrest warrant for the purposes 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 appropriate to the adoption of that type of decision, inter alia those 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, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 70).

48 In addition, 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 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 75).

49 As is apparent from paragraphs 47 and 48 of the judgment of 10 March 2021, PI (C‑648/20 PPU, EU:C:2021:187), the Court held that it is apparent from that case-law that a person who is the subject of a European arrest warrant for the purposes of criminal prosecution must be afforded effective judicial protection before being surrendered to the issuing Member State, at least at one of the two levels of protection required by that case-law. Such protection presupposes, therefore, that judicial review of either the European arrest warrant or the judicial decision on which it is based is possible before that warrant is executed.

50 That requirement makes it possible, under the system established by Framework Decision 2002/584, which is based, as recalled in paragraph 39 of the present order, on mutual trust between Member States, for the executing judicial authority to be satisfied that the European arrest warrant, the execution of which has been requested, has been issued following a national procedure that is subject to judicial review in the context of which the requested person has had the benefit of all safeguards appropriate to the adoption of that type of decision, inter alia those derived from the fundamental rights and fundamental legal principles referred to in Article 1(3) of Framework Decision 2002/584.

51 Consequently, a judicial review of a prosecutor’s decision to issue a European arrest warrant which takes place only after the requested person is surrendered does not satisfy the obligation of the issuing Member State to implement procedural rules allowing a competent court to review, prior to that surrender, the lawfulness of the national arrest warrant or of the judicial decision having the same effect, also adopted by a prosecutor, or of the European arrest warrant (judgment of 10 March 2021, PI, C‑648/20 PPU, EU:C:2021:187, paragraph 57).

52 Admittedly, in implementing Framework Decision 2002/584, the Member States retain, in accordance with their procedural autonomy, the option of adopting rules which may differ from one Member State to another. However, they must ensure that those rules do not frustrate the requirements arising from that framework decision, in particular as regards the judicial protection, guaranteed by Article 47 of the Charter, which underpins it.

53 It follows therefrom that the objective of Framework Decision 2002/584 which, by establishing a new simplified and more effective system for surrendering persons convicted or suspected of having infringed criminal law, seeks to facilitate and accelerate judicial cooperation between the judicial authorities of the issuing Member State and those of the Member State executing a European arrest warrant can only be achieved through respect for fundamental rights and legal principles, as enshrined in Article 6 TEU and reflected in the Charter, an obligation which, moreover, concerns all Member States, and in particular both the issuing and the executing Member State (see, to that effect, judgment of 12 February 2019, TC, C‑492/18 PPU, EU:C:2019:108, paragraphs 41 and 54 and the case-law cited).

54 In the light of all these considerations, the answer to the question referred is that Article 8(1)(c) of Framework Decision 2002/584, read in the light of Article 47 of the Charter and the case-law of the Court, must be interpreted as meaning that the requirements inherent in the effective judicial protection that must be afforded to a person who is the subject of a European arrest warrant for the purposes of criminal prosecution are not satisfied where both the European arrest warrant and the judicial decision on which that warrant is based are issued by a public prosecutor – who may be classified as an ‘issuing judicial authority’ within the meaning of Article 6(1) of that framework decision – but that European arrest warrant or judicial decision cannot be reviewed by a court in the issuing Member State prior to the surrender of the requested person by the executing Member State.

55 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 8(1)(c) of 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 47 of the Charter of Fundamental Rights of the European Union and the case-law of the Court of Justice, must be interpreted as meaning that the requirements inherent in the effective judicial protection that must be afforded to a person who is the subject of a European arrest warrant for the purposes of criminal prosecution are not satisfied where both the European arrest warrant and the judicial decision on which that warrant is based are issued by a public prosecutor – who may be classified as an ‘issuing judicial authority’ within the meaning of Article 6(1) of that framework decision, as amended by Framework Decision 2009/299 – but that European arrest warrant or judicial decision cannot be reviewed by a court in the issuing Member State prior to the surrender of the requested person by the executing Member State.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Prosecutor of the regional prosecutor's office in Ruse, Bulgaria (Judicial cooperation in criminal matters - European arrest warrant - Order) [2021] EUECJ C-206/20_CO (22 June 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/C20620_CO.html Cite as: [2021] EUECJ C-206/20_CO, EU:C:2021:509, ECLI:EU:C:2021:509

Court of Justice of the European Communities (including Court of First Instance Decisions)