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

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 30 September 2020 (1)

Case C‑649/19

Spetsializirana prokuratura

Criminal proceedings

against

IR

(Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Right to receive information in criminal proceedings – Directive 2012/13/EU – Articles 3 to 7 – Written Letter of Rights upon arrest – Right to be informed of the accusation – Right of access to the materials of the case – Person arrested under a European arrest warrant – Remedy against the decision to issue a European arrest warrant – Validity of Framework Decision 2002/584/JHA – Charter of Fundamental Rights of the European Union – Articles 6, 47 and 48)

I.      Introduction

1.        Since 2010, the European Union legislature has adopted a number of directives designed to improve judicial cooperation in criminal matters and having as their principal object the strengthening of the rights of the persons concerned in criminal proceedings.

2.        The first question submitted by the referring court relates to the scope ratione personae of such strengthening, concerning, more particularly, the recognition in favour of persons arrested under a European arrest warrant of different procedural rights provided for in Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings. (2) The referring court associates the benefit of those rights with the exercise of an effective remedy against the decision to issue such a warrant and, should the answer to the first question be in the negative, questions the validity of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (3) itself, in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

3.        The present case thus provides the Court with the opportunity to clarify the interaction between Directive 2012/13 and Framework Decision 2002/584 and the requirements relating to the protection of fundamental rights applied to the European arrest warrant system.

II.    Legal context

A.      Directive 2012/13

4.        Recital 39 of that directive is worded as follows:

‘The right to written information about rights on arrest provided for in this Directive should also apply, mutatis mutandis, to persons arrested for the purpose of the execution of a European Arrest Warrant under … Framework Decision [2002/584]. To help Member States draw up a Letter of Rights for such persons, a model is provided in Annex II. That model is indicative and may be subject to review in the context of the Commission’s report on implementation of this Directive and also once all the Roadmap measures have come into force.’

5.        Article 1 of that directive provides:

‘This Directive lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them. It also lays down rules concerning the right to information of persons subject to a European Arrest Warrant relating to their rights.’

6.        Article 3 of that directive provides:

‘1.      Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:

(a)      the right of access to a lawyer;

(b)      any entitlement to free legal advice and the conditions for obtaining such advice;

(c)      the right to be informed of the accusation, in accordance with Article 6;

(d)      the right to interpretation and translation;

(e)      the right to remain silent.

2.      Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.’

7.        Article 4 of Directive 2012/13 provides:

‘1.      Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. They shall be given an opportunity to read the Letter of Rights and shall be allowed to keep it in their possession throughout the time that they are deprived of liberty.

2.      In addition to the information set out in Article 3, the Letter of Rights referred to in paragraph 1 of this Article shall contain information about the following rights as they apply under national law:

(a)      the right of access to the materials of the case;

(b)      the right to have consular authorities and one person informed;

(c)      the right of access to urgent medical assistance; and

(d)      the maximum number of hours or days suspects or accused persons may be deprived of liberty before being brought before a judicial authority.

3.      The Letter of Rights shall also contain basic information about any possibility, under national law, of challenging the lawfulness of the arrest; obtaining a review of the detention; or making a request for provisional release.

4.      The Letter of Rights shall be drafted in simple and accessible language. An indicative model Letter of Rights is set out in Annex I.

5.      Member States shall ensure that suspects or accused persons receive the Letter of Rights written in a language that they understand. Where a Letter of Rights is not available in the appropriate language, suspects or accused persons shall be informed of their rights orally in a language that they understand. A Letter of Rights in a language that they understand shall then be given to them without undue delay.’

8.        Article 5 of that directive provides:

‘1.      Member States shall ensure that persons who are arrested for the purpose of the execution of a European Arrest Warrant are provided promptly with an appropriate Letter of Rights containing information on their rights according to the law implementing Framework Decision [2002/584] in the executing Member State.

2.      The Letter of Rights shall be drafted in simple and accessible language. An indicative model Letter of Rights is set out in Annex II.’

9.        According to Article 6 of that directive:

‘1.      Member States shall ensure that suspects or accused persons are provided with information about the criminal act they are suspected or accused of having committed. That information shall be provided promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence.

2.      Member States shall ensure that suspects or accused persons who are arrested or detained are informed of the reasons for their arrest or detention, including the criminal act they are suspected or accused of having committed.

3.      Member States shall ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person.

4.      Member States shall ensure that suspects or accused persons are informed promptly of any changes in the information given in accordance with this Article where this is necessary to safeguard the fairness of the proceedings.’

10.      Article 7 of Directive 2012/13 provides:

‘1.      Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers.

2.      Member States shall ensure that access is granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence.

3.      Without prejudice to paragraph 1, access to the materials referred to in paragraph 2 shall be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgment of a court. Where further material evidence comes into the possession of the competent authorities, access shall be granted to it in due time to allow for it to be considered.

4.      By way of derogation from paragraphs 2 and 3, provided that this does not prejudice the right to a fair trial, access to certain materials may be refused if such access may lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings are instituted. Member States shall ensure that, in accordance with procedures in national law, a decision to refuse access to certain materials in accordance with this paragraph is taken by a judicial authority or is at least subject to judicial review.

5.      Access, as referred to in this Article, shall be provided free of charge.’

B.      Framework Decision 2002/584

11.      Article 1 of that framework decision 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].’

12.      Article 8 of that framework decision provides:

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

(a)      the identity and nationality of the requested person;

(b)      the name, address, telephone and fax numbers and email address of the issuing judicial authority;

(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;

(d)      the nature and legal classification of the offence, particularly in respect of Article 2;

(e)      a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f)      the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;

(g)      if possible, other consequences of the offence.

2.      The European arrest warrant must be translated into the official language or one of the official languages of the executing Member State. Any Member State may, when this Framework Decision is adopted or at a later date, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other official languages of the Institutions of the European Communities.’

13.      Article 11 of that framework decision states:

‘1.      When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority.

2.      A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.’

14.      Article 12 of Framework Decision 2002/854 is worded as follows:

‘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.’

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

15.      The Spetsializirana prokuratura (Specialised Public Prosecutor’s Office, Bulgaria) brought criminal proceedings against IR, who was accused of having participated in a criminal organisation involved in tax offences. During the pre-trial stage of the criminal proceedings against him, when he was represented by two lawyers chosen by him, IR was informed of only some of his rights as an accused person.

16.      When the trial stage of the criminal proceedings against IR commenced, on 24 February 2017, he had left his home address and could not be found. The two lawyers who had represented him during the pre-trial stage of the criminal proceedings declared that they no longer represented him. A new lawyer was officially appointed to represent him.

17.      By order of 10 April 2017, upheld on appeal on 19 April 2017, the referring court issued an order remanding IR in detention pending trial, which constituted a national arrest warrant. IR did not take part in the proceedings and was represented by the officially appointed lawyer.

18.      On 25 May 2017, a European arrest warrant was issued against IR, who has still not been found. The lawyer appointed to represent him was replaced by another lawyer, also officially appointed.

19.      On reading the judgments in OG and PI (Public Prosecutors’ Offices, Lübeck and Zwickau) (4) and PF (Prosecutor General of Lithuania), (5) and the Opinion of Advocate General Bot in Gavanozov, (6) the referring court decided to annul the European arrest warrant, on the ground that it was not certain that that warrant was compatible with EU law, since it did not guarantee IR an effective remedy, in that he would be unable to request, immediately after being arrested in the executing Member State, annulment of the national arrest warrant and the European arrest warrant.

20.      The referring court states that, in order to be able to issue a new European arrest warrant against IR that is compatible with EU law, it requires clarification of the content of that warrant or the possibility of attaching documents to the warrant, in such a way as to ensure observance of the rights conferred by Directive 2012/13.

21.      In the first place, the referring court considers that, according to the terms of that directive, it is not clear whether certain provisions, such as Article 4(3), Article 6(2) and Article 7(1) of that directive, cannot apply to a person who is arrested on the territory of another Member State under a European arrest warrant. It is necessary to ascertain whether that person may rely on the rights provided for in those provisions, in addition to those expressly referred to in Article 5 of Directive 2012/13 and Annex II thereto.

22.      In the second place, if it must be considered that the person arrested in the executing Member State under a European arrest warrant should have all the rights which he would have enjoyed if he had been arrested on the territory of the issuing Member State, the referring court asks whether Article 8 of Framework Decision 2002/584 must be interpreted as meaning that the content of the European arrest warrant may be amended to incorporate the rights provided for in the aforementioned provisions of Directive 2012/13.

23.      In the third place, if it must be considered that the information in the form set out in Framework Decision 2002/584 cannot be supplemented, the referring court asks what other ways exist of guaranteeing the genuine and effective exercise of the rights which IR enjoys under Directive 2012/13, immediately after having been arrested in another Member State on the basis of a European arrest warrant. That might lead the referring court which issued the European arrest warrant to send that person, after becoming aware of his arrest, the Letter of Rights in the event of arrest, a copy of the national arrest warrant and the related evidence, and also the details of his representative and, if he so requests, a copy of the other documents in the case concerning him.

24.      In the fourth place, in the event that there is no binding legal solution that guarantees that the person who has been arrested can exercise his rights under Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13, the referring court questions the validity of Framework Decision 2002/584 in the light of the requisite respect for fundamental rights, set out in recital 12 and Article 1(3) of that framework decision, and more particularly of the rights enshrined in Articles 6 and 47 of the Charter.

25.      In those circumstances, the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Do the rights of an accused person under Article 4 (in particular the right under Article 4(3)), Article 6(2) and Article 7(1) of Directive [2012/13] apply to an accused person who has been arrested on the basis of a European arrest warrant?

(2)      If the first question is answered in the affirmative: is Article 8 of Framework Decision [2002/584] to be interpreted as meaning that it allows the content of a European arrest warrant to be amended with regard to the form specified in the annex, in particular the insertion of new text into that form, in relation to the rights of the requested person against the judicial authorities of the issuing Member State to challenge the validity of the national arrest warrant and of the European arrest warrant?

(3)      If the second question is answered in the negative: is it compatible with recital 12 and Article 1(3) of Framework Decision [2002/584], Article 4, Article 6(2) and Article 7(1) of Directive [2012/13] and Articles 6 and 47 of the Charter if a European arrest warrant is issued in strict compliance with the form set out in the annex (that is to say without informing the requested person about his rights against the issuing judicial authority) and the issuing judicial authority informs him about the rights to which he is entitled and sends him the relevant documents immediately after that authority becomes aware of the arrest?

(4)      If there are no other legal means for safeguarding the rights of a person arrested on the basis of a European arrest warrant under Article 4 (in particular the right under Article 4(3)), Article 6(2) and Article 7(1) of Directive 2012/13], is Framework Decision [2002/584] valid?’

IV.    The procedure before the Court

26.      Written observations were lodged by the Czech, German, Hungarian and Austrian Governments and by the European Commission within the prescribed period, in accordance with Article 23 of the Statute of the Court of Justice of the European Union.

V.      Analysis

27.      The referring court has referred four questions to the Court, which overlap in part and may in my view be rearranged into two questions.

28.      By its first question, the referring court asks, in essence, whether Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13 must be interpreted as meaning that the rights referred to in those provisions are applicable to persons arrested under a European arrest warrant. Should that question be answered in the affirmative, the referring court asks whether it is possible to amend the content of the form setting out a uniform model of the European arrest warrant, as determined in Article 8 of Framework Decision 2002/584, by including those rights or, failing that, to send the person who has been arrested documents informing him of his rights under the aforementioned provisions of Directive 2012/13.

29.      By its second question, should the first question be answered in the negative, the referring court asks the Court, in essence, whether Framework Decision 2002/584 is compatible with the requirements that derive from the right to liberty provided for in Article 6 of the Charter and the right to an effective remedy and to a fair trial enshrined in Article 47 of the Charter, in that it does not guarantee the person arrested on the basis of a European arrest warrant and detained in the executing Member State the right to be informed asserted in the aforementioned articles of Directive 2012/13, for the purposes of the effective exercise, immediately after being arrested in that State, of a remedy before the issuing judicial authority in order to seek annulment of the national arrest warrant and the European arrest warrant.

A.      Admissibility

30.      The German Government expressed doubts as to the admissibility of the questions referred, which are similar to a request for a legal opinion that is unrelated to a pending case, which is contrary to the spirit and the purpose of a reference for a preliminary ruling under Article 267 TFEU.

31.      It should be borne in mind, in that regard, that, according to the Court’s settled case-law, 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 the 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 of a preliminary ruling in order 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. It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, 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. (7)

32.      In the present case, it is not obvious from the case file submitted to the Court that the facts of the case correspond to one of those situations. In fact, criminal proceedings in absentia concerning IR are currently pending before the referring court, in which that court made an order remanding IR in detention pending trial, constituting a national arrest warrant, and then, on 27 May 2017, issued a European arrest warrant. The questions referred for a preliminary ruling have been done so in the context of those proceedings. In that regard, the referring court states that it has brought the matter before the Court with a view to adopting, depending on the answers provided to the questions submitted, a new European arrest warrant against IR, as the warrant initially issued was annulled because that court had doubts as to its compatibility with EU law. Therefore, the claim cannot be made that the questions submitted are unrelated to the actual facts or the object of the proceedings pending before the referring court or that the problem is hypothetical. (8)

33.      It must be emphasised, moreover, that the issue of a European arrest warrant could result in the arrest of the requested person and, therefore, affects the personal freedom of the latter. The Court has held that, with regard to proceedings relating to a European arrest warrant, observance of fundamental rights falls primarily within the responsibility of the issuing Member State. Therefore, in order to ensure observance of those rights – which may lead a judicial authority to decide to withdraw the European arrest warrant it issued – such an authority must be able to refer questions to the Court for a preliminary ruling in order to determine the conditions of compatibility with EU law of the issue of a new European arrest warrant, with particular regard to observance of the procedural rights of the person concerned and therefore to the applicability of Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13 to persons arrested under a European arrest warrant. (9)

34.      Consequently, the present request for a preliminary ruling is in my view admissible.

B.      The first question

35.      It seems to me to be necessary, as a preliminary point, to emphasise that, as is apparent, Directive 2012/13 applies to persons who are the subject of a European arrest warrant; the question submitted by the referring court concerns the extent to which that directive applies and, more particularly, the extent to which the rights provided for in Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13 are recognised in favour of those persons.

36.      According to 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. (10)

1.      The contextual and literal interpretation of Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13

37.      It is essential, in my view, to analyse the general scheme of Directive 2012/13 in order to determine the scope of Article 4(3), Article 6(2) and Article 7(1) of that directive and to resolve the question of the recognition of the rights set out in those provisions in favour of persons arrested under a European arrest warrant.

38.      It must be noted, in that regard, that it is only in recital 39 of Directive 2012/13 that the situation of such persons is mentioned in the preamble, for the first and only time; all the preceding recitals are devoted to presenting the minimum rules to be applied concerning the provision of information to ‘suspects or accused persons’ in criminal proceedings. The wording of recital 39 confirms the distinction which the EU legislature draws between the situations, since it is stated that the right to written information about rights on arrest should ‘also’ apply, ‘mutatis mutandis’, to persons arrested for the purpose of the execution of a European arrest warrant. That Latin expression, which may be translated as ‘the necessary changes being made’, is generally used in a comparison of situations which are intended to be presented as merely similar.

39.      Article 1 of Directive 2012/13 is even more explicit, since it defines, in two separate sentences, the twofold subject matter of that directive, namely the definition of rules concerning the right to receive information of two categories of individuals: (i) suspects and accused persons in criminal proceedings and (ii) persons subject to a European arrest warrant. The terminology thus used is reproduced exactly in the following Articles 2 to 8, and only Article 5 of that directive – and therefore not the provisions referred to in the request for a preliminary ruling – makes express reference to the second category. Article 2 of Directive 2012/13 refers to the applicability ratione materiae of that directive only from the aspect of the determination of the concept of criminal proceedings, to which it gives, in this instance, a wide scope, from the time of the first suspicions to the final decision finding the person concerned guilty. That definition further demonstrates the singular and, in a way, accessory nature of the provisions relating to persons subject to a European arrest warrant set out in Article 5 of Directive 2012/13.

40.      As regards, more specifically, the scope of the rights set out in Articles 4, 6 and 7 of Directive 2012/13, it is necessary to read those provisions, and Article 3 of that directive, together, given the express references those measures make to one another.

41.      Article 4 of Directive 2012/13 requires Member States to provide suspects or accused persons who are arrested or detained with a written letter containing information concerning (i) the procedural rights referred to in Article 3 of that directive, including the right to be informed of the accusation, the details of which are set out in Article 6 of that directive, and (ii) four additional rights referred to in Article 4(2) of that directive, including the right of access to the materials of the case, the details of which are set out in Article 7 of that directive. In addition, Article 4(3) of Directive 2012/13 provides that that Letter of Rights is also to contain basic information about any possibility, under national law, of challenging the lawfulness of the arrest, obtaining a review of the detention or making a request for provisional release.

42.      As stated in recital 22 of Directive 2012/13 and provided for in Article 4(4) thereof, in order to assist Member States in drafting that Letter of Rights, an indicative model is set out in Annex I to that directive; it contains eight headings, covering: A. assistance of a lawyer/entitlement to legal aid; B. information about the accusation; C. interpretation and translation; D. the right to remain silent; E. access to documents; F. informing someone else about the arrest or detention/informing the consulate or embassy of the person concerned; G. urgent medical assistance; and H. the period of deprivation of liberty. It is clear from the above that headings B, E and H correspond to the rights provided for in Article 6(2), Article 7(1) and Article 4(3), respectively, of Directive 2012/13.

43.      Article 5 of Directive 2012/13, read in conjunction with recital 39 of that directive, provides that persons who are arrested for the purpose of the execution of a European arrest warrant are to be provided with an ‘appropriate’ written Letter of Rights and refers to the indicative model set out in Annex II to that directive, the content of which differs from that reproduced in Annex I. The indicative model in Annex II does not contain headings concerning the rights provided for in Article 6(2) to Article 7(1) and Article 4(3) of Directive 2012/13, which therefore do not apply to persons who are arrested for the purpose of the execution of a European arrest warrant. (11)

44.      As the Czech Government rightly states in its observations, no provision of Directive 2012/13 establishes or suggests that persons arrested on the basis of a European arrest warrant should receive a written letter combining the information contained in the two indicative models set out in Annexes I and II to that directive. On the contrary, recital 39 of Directive 2012/13 very clearly shows that the model Letter of Rights ‘for such persons’ consists solely of Annex II to that directive. It therefore follows from the wording of Articles 4 and 5 of Directive 2012/13, read in conjunction with recitals 22 and 39 of that directive, that the model Letters of Rights reproduced in those two annexes are mutually exclusive. (12)

45.      The conclusion that Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13 do not apply to the situation of persons arrested under a European arrest warrant is further supported by two other factors.

46.      It seems relevant to me, in the first place, to devote my attention to the scope of the concepts of ‘arrest’ or ‘detention’ of suspects and accused persons, as used in Articles 4, 6 and 7 of Directive 2012/13. In that regard, recital 21 of Directive 2012/13 states that ‘references in this Directive to suspects or accused persons who are arrested or detained should be understood to refer to any situation where, in the course of criminal proceedings, suspects or accused persons are deprived of liberty within the meaning of Article 5(1)(c) [of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘ECHR’)], as interpreted by the case-law of the European Court of Human Rights’.

47.      The latter provision concerns a situation involving ‘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’. Such a situation must be distinguished from that referred to in Article 5(1)(f) of the ECHR, namely the lawful arrest or detention of a person to prevent his or her effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to ‘deportation or extradition’, the latter situation corresponding to the mechanism of the European arrest warrant established by Framework Decision 2002/584.

48.      It follows, in the second place, from Articles 3 and 4 of Directive 2012/13 that suspects and accused persons enjoy various rights, including the right to be informed of the accusation and the right of access to the materials of the case, set out in Articles 6 and 7, respectively, of that directive, ‘as they apply under [the] national law’ of the Member State concerned. However, that explicit reference to ‘national law’ is not compatible with the taking into account of the situation of persons arrested under a European arrest warrant, which necessarily refers to reliance on the law of the issuing or the executing Member State, which is confirmed by the wording of Article 5 of that directive.

2.      The teleological interpretation

49.      As a preliminary point, I observe that, having regard to the nature of the question referred, the teleological interpretation entails an examination of the objectives of Directive 2012/13 together with those of Framework Decision 2002/584.

50.      In order to understand the intention of the EU legislature and, consequently, the objectives of those measures, it is appropriate to focus on the dynamic of the construction, from an EU perspective, of an area of freedom, security and justice, more particularly in the field of judicial cooperation in criminal matters.

51.      In that regard, it must be observed that, as stated in recital 6 thereof, Framework Decision 2002/584 is the first concrete measure in the field of criminal law implementing the principle of mutual recognition of judgments and judicial decisions, enshrined in Article 82(1) TFEU, which replaced Article 31 TEU, on the basis of which that Framework Decision was adopted. Since then, the field of judicial cooperation in criminal matters has gradually acquired legal instruments whose coordinated application is intended to strengthen the confidence of Member States in their respective national legal orders with a view to ensuring that judgments in criminal matters are recognised and enforced within the European Union in order to ensure that persons who have committed offences do not go unpunished. (13)

52.      Directive 2012/13, as stated in recitals 11, 12 and 14 thereof, forms part of that set of measures giving effect to the Roadmap, adopted by the Council in 2009, designed to strengthen the rights of the individual in criminal proceedings, which was welcomed by the European Council and declared to form part of the Stockholm Programme. (14) That chronology clearly shows that the EU legislature sought to strengthen judicial cooperation in criminal matters by going beyond the mechanism of the European arrest warrant, already in place, to encompass the full extent of criminal proceedings. As the Resolution of the Council of 30 November 2009, on that Roadmap, states, ‘criminal proceedings, … for the purposes of this Resolution, includes the pre-trial and trial stages’.

53.      Those measures include:

–        Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings; (15)

–        Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty; (16)

–        Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings; (17)

–        Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings. (18)

54.      All of those norms of secondary law, including Directive 2012/13, seek to strengthen the procedural rights of suspects or accused persons in criminal proceedings, but also have in common that they contain specific provisions relating to the situation of persons arrested under a European arrest warrant, thus rendering certain of those rights applicable to those persons, in an adapted manner. The interpretation of the provisions referred to in the request for a preliminary ruling cannot in my view be dissociated from that particular normative context, characterised by a legislative technique that employs legal instruments having a twofold purpose and in which the basic text, namely Framework Decision 2002/584, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, (19) does not in itself suffice to provide an understanding of the rights of persons arrested on the basis of a European arrest warrant.

55.      With specific regard to Directive 2012/13, I note that different formulations used in the Commission’s Proposal for a directive, of 20 July 2010, (20) which might seem relatively ambiguous with regard to the scope of the rights provided for, disappeared from the final text.

56.      Thus, recital 25 stated that ‘the rights provided for in this Directive’ should also apply, mutatis mutandis, to proceedings for the execution of a European arrest warrant, a general formulation replaced by the reference, in recital 39 of Directive 2012/13, to only the right to written information about rights on arrest, with an express reference to the model letter set out in Annex II.

57.      Article 2 of the proposal for a directive, on the scope of the directive, already contained, in paragraph 1, the same definition ratione temporis, namely from first suspicions until the final determination of guilt. Paragraph 2 was worded thus: ‘This Directive applies to proceedings for the execution of a European arrest warrant’. It must be stated that Article 2 of Directive 2012/13 makes no reference to such proceedings.

58.      It should, conversely, be pointed out that the proposal for a directive expressly mentions, in the explanatory memorandum relating to Article 5, that ‘different rights apply to persons subject to a European arrest warrant’, which resulted in a wording of that provision that is close to the current final text.

59.      It is thus apparent that Directive 2012/13 aims, in the first place and principally, to define, by laying down common minimum rules, the right to information of suspects and accused persons in national criminal proceedings, in order to strengthen mutual confidence between Member States in their respective criminal justice systems. (21) As stated in recitals 19, 22, 27 and 28 of Directive 2012/13 and in Articles 3, 4, 6 and 7 thereof, it is precisely the objective of those provisions to allow for an effective exercise of the rights of the defence and to ensure the fairness of those proceedings, (22) those rights being exercised in accordance with the national law of the Member States concerned.

60.      That directive aims, in the second place, and in an accessory manner, to clarify the way in which the right to information applies, in favour of persons arrested under a European arrest warrant; Article 5 of Directive 2012/13 and Annex II to that directive thus supplement Framework Decision 2002/584.

61.      Although those two objectives are undeniably connected or may be described as parallel, as the issuing of a European arrest warrant often necessarily has its origin in national criminal proceedings, they are separate. The arrest of the requested person automatically leads to the implementation of a specific procedure, having the nature of a lex specialis, owing to its cross-border dimension.

62.      In that regard, it must be borne in mind that Framework Decision 2002/584 seeks, by the establishment of a new simplified and more effective system 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. The system of the European arrest warrant makes it possible to remove, as stated in recital 5 of that framework decision, the complexity and potential for delay inherent in the extradition procedures that existed before that framework decision was adopted. In accordance with Article 1 of that framework decision, the aim of the mechanism of the European arrest warrant is therefore to enable the arrest and surrender of a requested person, in the light of the objective pursued by the framework decision, so that the crime committed does not go unpunished and the person is prosecuted or serves the custodial sentence ordered against him. (23)

63.      The Court has already held that the decision of the executing authority merely grants surrender of the person requested, in accordance with the provisions of Framework Decision 2002/584, while the criminal proceedings for the purpose of prosecution, or of enforcement of a custodial sentence or detention order, or indeed the substantive criminal proceedings, lie outside the scope of that decision. (24)

64.      The determination of the procedural rights of the person arrested under a European arrest warrant cannot be dissociated from the intention of the EU legislature expressed when that warrant was created. The European arrest warrant was conceived as a judicial mechanism for the rapid and effective surrender of wanted persons between Member States, to replace an onerous extradition system that was subject to the discretion of the political power, not being intended to take into account the entire criminal procedural situation of the person concerned. As the Czech Government rightly observes, the rights of a person in proceedings relating to a European arrest warrant are therefore, quite logically, focused on the aspect of surrender to another Member State and do not cover the whole range of rights available to an individual in criminal proceedings under national law. (25)

65.      In that context, any interpretation of Directive 2012/13 that leads to a wide interpretation ratione personae of that directive (26) and to a high level of interpenetration of the two measures of secondary law in question seems to me to be incompatible with the intentionally limited object and the objective of accelerating judicial cooperation of Framework Decision 2002/584, Article 17(1) of which expressly provides that the European arrest warrant is to be dealt with and executed as a matter of urgency. (27) It is thus important, in accordance with the intention already expressed by the Court, to prevent the effect of European arrest warrants from being weakened by delaying tactics aimed at obstructing the execution of such warrants. (28)

66.      Having regard to the foregoing considerations, the answer to the first question should be that Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13 must be interpreted as meaning that the rights referred to therein are not applicable to persons arrested under a European arrest warrant. (29) In those circumstances, there is no need to consider the possibility, put forward by the referring court, of amending the content of the form setting out a uniform model of the European arrest warrant, as determined in Article 8 of Framework Decision 2002/584, by including those rights in that form or, failing that, of sending the person arrested documents informing him of his rights under the abovementioned provisions of Directive 2012/13.

67.      As for the referring court’s argument that depriving persons arrested under a European arrest warrant of the rights set out in the aforementioned provisions of Directive 2012/13 would amount to disregarding the obligation to observe fundamental rights, as provided for in recital 12 and Article 1(3) of Framework Decision 2002/584, and more particularly the requirements resulting from Articles 6 and 47 of the Charter, it should be noted that such an argument, in reality, raises the question of the compatibility of Framework Decision 2002/584 with the fundamental rights protected in the legal order of the European Union, which is the subject of the second question. (30)

C.      The second question

68.      By its second question, the referring court asks the Court about the validity of Framework Decision 2002/584 in the light of Articles 6 and 47 of the Charter, in so far as the rights provided for in the provisions of Directive 2012/13 referred to in the order for reference are not guaranteed to persons arrested under a European arrest warrant, which makes it impossible or excessively difficult for them to challenge national and European arrest warrants even when they are being detained in the executing Member State on the basis of a European arrest warrant.

69.      It must be borne in mind, as a preliminary point, that, in accordance with Article 6(1) TEU, the Union recognises the rights, freedoms and principles set out in the Charter, which ‘shall have the same legal value as the Treaties’. (31)

70.      It must be emphasised, in the first place, that the European arrest warrant mechanism established by Framework Decision 2002/584, which does not regulate the possibility of lodging an appeal against the decision to issue that warrant, is based on a presumption of respect for the fundamental rights enshrined in the Charter, of which the right to liberty provided for in Article 6 of the Charter and respect of the rights of the defence which derive from the right to a fair trial, enshrined in Articles 47 and 48 of the Charter, form an integral part.

71.      The principle of mutual recognition on which the European arrest warrant system is based 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 in the European Union, particularly those contained in the Charter. The principle of mutual confidence requires, particularly with regard to 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. (32)

72.      More specifically, Framework Decision 2002/584 is founded on the principle that decisions relating to European arrest warrants are attended by all the guarantees appropriate for judicial decisions, inter alia those resulting from the fundamental rights and from the fundamental legal principles referred to in Article 1(3) of that framework decision, which means that the entire surrender procedure between Member States provided for by Framework Decision 2002/584 is carried out under judicial supervision. It follows that the provisions of the framework decision themselves already provide for a procedure that complies with the requirements of Article 47 of the Charter, regardless of the methods of implementing the framework decision chosen by the Member States. (33)

73.      The Court has held that, in so far as proceedings relating to a European arrest warrant are concerned, 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. (34) In that regard, 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. (35)

74.      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. 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 that warrant and examine objectively, taking into account all the 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. (36)

75.      It is therefore for the Member States to ensure that their legal orders effectively safeguard the level of judicial protection required by Framework Decision 2002/584 by means of the procedural rules which they implement and which may vary from one system to another, provided that they do not frustrate the objective of that framework decision and the requirements deriving from it. In that regard, the requirements inherent in effective judicial protection may lead to the establishment of a separate right of appeal against the decision to issue a European arrest warrant taken by a judicial authority other than a court. (37) Having regard to the terms of the request for a preliminary ruling, it is interesting to note that a national system providing for a remedy against the decision to issue a European arrest warrant for the purpose of criminal proceedings that may be exercised after the actual surrender of the requested person meets the requirement of effective judicial protection. (38)

76.      It must further be emphasised that although, in application of Article 1(2) of Framework Decision 2002/584, Member States are required to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that framework decision, that recognition does not mean that there is an absolute obligation to execute the arrest warrant that has been issued. (39) Before deciding on the surrender of the requested person for the purposes of prosecution, the executing judicial authority must subject the European arrest warrant to a degree of scrutiny and satisfy itself that the fundamental rights of the requested person have been respected, as expressly stated in Article 1(3) of Framework Decision 2002/584. That authority cannot tolerate a breach of those rights and in such a case has the option of refusing to execute the European arrest warrant. (40)

77.      By way of a final observation, I note that the Court’s case-law referred to in this Opinion has, rightly, been described as a movement for the ‘proceduralisation’ of the principle of mutual confidence in the context of the implementation of the European arrest warrant, designed to compensate for the quasi-automatic nature of that warrant by requirements of a procedural nature that guarantee the rights of the persons concerned. (41)

78.      It should be observed, in the second place, that Framework Decision 2002/584 provides for a certain number of procedural rights in favour of the person arrested on the basis of a European arrest warrant in the executing Member State and, in particular, the right to be provided with information. In accordance with Article 11 of Framework Decision 2002/584, the executing competent judicial authority is required to inform that person, as soon as he or she is arrested, of the European arrest warrant and of its contents, of the possibility of consenting to or opposing surrender to the issuing judicial authority and of his or her right to be assisted by a legal counsel and by an interpreter. Those rights, apart from the right to be heard where he or she does not consent to his or her surrender in accordance with Article 14 of that framework decision, correspond to those set out in the written letter that must be promptly communicated to the person who is arrested for the purpose of the execution of a European arrest warrant, provided for in Article 5 of Directive 2012/13.

79.      In the context of the communication of the content of the arrest warrant, that person will receive the information required in the form setting out a model European arrest warrant annexed to Framework Decision 2002/584 which the issuing judicial authorities are required to complete, with the aim of simplifying and accelerating the surrender procedure, in accordance with the time limits laid down by Article 17 of Framework Decision 2002/584. According to Article 8 of that framework decision, that information undoubtedly relates to 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 of that framework decision, but also the nature and legal classification of the offence, a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person. (42) It is interesting to note that the last two items of information closely resemble those referred to in Article 6 of Directive 2012/13.

80.      It is thus apparent that, under Article 11 of Framework Decision 2002/584 and Article 5 of Directive 2012/13, a person arrested for the purposes of the execution of a European arrest warrant has the benefit of precise, appropriate and accessible information concerning his or her rights, provided at an early stage in the surrender procedure, in such a way as to allow him or her to effectively exercise those rights in the specific context of that procedure.

81.      Those rights were further clarified and supplemented by the provisions of Directives 2010/64, 2013/48 and 2016/1919. The Court has thus stated that Framework Decision 2002/584 forms part of a comprehensive system of safeguards relating to effective judicial protection provided for by other EU rules, adopted in the field of judicial cooperation in criminal matters, which contribute to helping a person requested on the basis of a European arrest warrant to exercise his or her rights, even before his or her surrender to the issuing Member State. In particular, Article 10 of Directive 2013/48 requires the competent authority of the executing Member State to inform the persons whose surrender is sought without undue delay after they have been deprived of their liberty that they have the right to appoint a lawyer in the issuing Member State. (43) It should be made clear, however, first, that the role of that lawyer is to assist the lawyer in the executing Member State by providing him or her with information and advice in order to ensure the effective exercise of the rights of those persons ‘provided for under Framework Decision 2002/584/JHA’ and, second, that the abovementioned right is exercised without prejudice to the time limits set out in Framework Decision 2002/584 or the obligation on the executing judicial authority to decide, within those time limits and the conditions defined under that framework decision, whether the person is to be surrendered.

82.      As regards, in the third place, the situation as a detained person of the requested person, which the referring court compares with the question of the exercise of a remedy against the national arrest warrant and the European arrest warrant, it must be emphasised that, under Article 12 of Framework Decision 2002/584, it is for the executing judicial authority to decide, after the requested person has been arrested, whether he or she should remain in detention or be released pending the decision on the execution of the European arrest warrant. Detention is therefore not necessarily required and the person concerned may be released provisionally at any time in conformity with the domestic law of the executing Member State.

83.      Those observations combine with the fact that the EU legislature, first, ensured respect for the right to be heard in the executing Member States, as provided for, in particular, in Articles 14 and 18 of Framework Decision 2002/584, which allows the person concerned effectively to challenge his or her continued detention and, second, imposed strict time limits for the adoption of decisions relating to the European arrest warrant in order to meet the objective of accelerating judicial cooperation.

84.      As already mentioned, with respect to the adoption of the decision on the execution of the European arrest warrant, Article 17(1) of Framework Decision 2002/584 provides that that warrant is to be dealt with and executed as a matter of urgency. Paragraphs 2 and 3 of that article lay down precise time limits, of 10 days or 60 days, respectively, depending on whether the requested person consents or does not consent to his or her surrender, within which the Member States must take the final decision on the execution of the warrant, while an extension of 30 days is provided for in paragraph 4. The time taken to complete the European arrest warrant mechanism procedure is therefore largely determined by the stated intention of the person concerned.

85.      While stating that the time limits laid down in Article 17 of Framework Decision 2002/584 are in principle sufficient, in the light, inter alia, of the essential role of the principle of mutual recognition in the system put in place by the framework decision, for the executing judicial authority to carry out checks prior to the execution of the European arrest warrant and to adopt the decision on the execution of such a warrant, the Court has considered that that authority is still required to adopt that decision upon expiry of those time limits and that, in such a situation, Article 12 of the framework decision, read in conjunction with Article 17 thereof, does not, in principle, preclude the executing judicial authority from holding the requested person in custody, in accordance with the law of the executing Member State, even if the total duration for which that person has been held in custody exceeds those time limits. (44)

86.      What to my mind is important is that, interpreting the provisions concerned in a manner consistent with Article 6 of the Charter, the explanation of which refers to Article 5 of the ECHR and, in this instance, to Article 5(1)(f) of that Convention, on extradition procedures, the Court has clearly tempered that solution by stating that, in so far as the issuing of a European arrest warrant cannot, as such, justify holding the requested person in custody for a period the total duration of which exceeds the time necessary to execute that warrant, the executing judicial authority may decide to hold that person in custody only in so far as the procedure for the execution of the European arrest warrant has been carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the custody is not excessive. In order to ensure that that is the case, that authority is required to carry out a concrete review of the situation at issue, taking account of all of the relevant factors with a view to evaluating the justification for the duration of the procedure. (45)

87.      Two provisions of Framework Decision 2002/584 must in my view still be mentioned in the light of the situation of detention of the person arrested under a European arrest warrant, to which the referring court makes reference as a basis for its doubts regarding the validity of that measure, should the various rights to receive information laid down in Directive 2012/13 referred to in the order for reference not be applicable.

88.      First, Article 23(5) of Framework Decision 2002/584 provides that, upon expiry of the time limits for surrender of the requested person following the adoption of the decision to execute the European arrest warrant, that person is to be released if he or she is still being held in custody.

89.      Second, Article 26(1) of Framework Decision 2002/584 provides that 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, thereby ensuring that all periods of detention, even those resulting from possibly being held in custody after the time limits stipulated in Article 17 of the framework decision have expired, will duly be taken into account if a custodial sentence is executed in the issuing Member State. (46)

90.      In that context, it seems to me that the conclusion that Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13 are not applicable to persons arrested under a European arrest warrant is not of such a kind as to characterise, in the light of a possible appeal against the decision to issue the national arrest warrant and the European arrest warrant and of the situation of those persons during the surrender procedure, any failure whatsoever by Framework Decision 2002/584 to comply with the requirements arising under Articles 6, 47 and 48 of the Charter.

91.      To my mind, Framework Decision 2002/584, as thus clarified and supplemented, in particular, by Article 5 of Directive 2012/13, and interpreted by the Court, guarantees the rights of the persons concerned, in conformity with the abovementioned guarantees, while ensuring the effectiveness of the mechanism for the surrender of those persons and thereby the effectiveness of the system of judicial cooperation between Member States of which the European arrest warrant is one of the essential elements.

92.      In the light of all of the foregoing considerations, the answer must be that consideration of the questions referred has revealed no factor of such a kind as to affect the validity of Framework Decision 2002/584.

VI.    Conclusion

93.      In the light of the foregoing considerations, I propose that the Court answer the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) as follows:

–        Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings must be interpreted as meaning that the rights referred to therein are not applicable to persons arrested under a European arrest warrant.

–        Consideration of the questions referred has revealed no factor of such a kind as to affect the validity of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.

1      Original language: French.

2      OJ 2012 L 142, p. 1.

3      OJ 2002 L 190, p. 1.

4      See judgment of 27 May 2019, OG and PI (Public Prosecutors’ Offices, Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456).

5      See judgment of 27 May 2019, PF (Prosecutor General of Lithuania) (C‑509/18, EU:C:2019:457).

6      See Opinion of Advocate General Bot in Gavanozov (C‑324/17, EU:C:2019:312).

7      See, in particular, judgment of 12 October 2017, Sleutjes (C‑278/16, EU:C:2017:757, paragraphs 21 and 22 and the case-law cited).

8      See, to that effect, judgment of 25 July 2018, AY (Arrest warrant – Witness) (C‑268/17, EU:C:2018:602, paragraphs 26 and 27).

9      See, to that effect, judgment of 25 July 2018, AY (Arrest warrant – Witness) (C‑268/17, EU:C:2018:602, paragraphs 28 and 29).

10      See judgment of 10 September 2014, Ben Alaya (C‑491/13, EU:C:2014:2187, paragraph 22 and the case-law cited).

11      Annex II contains five headings, on: A. Information about the European arrest warrant; B. Assistance of a lawyer; C. Interpretation and translation; D. Possibility to consent to surrender; and E. Hearing. Those headings correspond to the rights of the requested person guaranteed directly in Framework Decision 2002/584, as shall be seen below.

12      I would point out, however, that once the requested person is surrendered to the issuing judicial authority, he or she will acquire the status of ‘accused person’ within the meaning of Directive 2012/13 and will therefore enjoy all the rights associated with that status.

13      See 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 43).

14      Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ 2009 C 295, p. 1) and ‘The Stockholm Programme – An open and secure Europe serving and protecting citizens’, paragraph 2.4 (OJ 2010 C 115, p. 1).

15      OJ 2010 L 280, p. 1.

16      OJ 2013 L 294, p. 1.

17      OJ 2016 L 132, p. 1.

18      OJ 2016 L 297, p. 1.

19      OJ 2009 L 81, p. 24.

20      COM(2010) 392 final.

21      See, to that effect, judgments of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraph 34) and of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraph 36). In the first judgment, the Court again stated, in paragraph 36, that Directive 2012/13 contributes to establishing minimal harmonisation of criminal proceedings in the European Union and the application, in a Member State, of the rules laid down by that directive is independent of the existence of any cross-border situation in the context of a dispute arising in that Member State.

22      See, to that effect, judgment of 5 June 2018, Kolev and Others (C‑612/15, EU:C:2018:392, paragraph 89).

23      See judgments of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraphs 36 to 39) and of 30 May 2013, F (C‑168/13 PPU, EU:C:2013:358, paragraph 57).

24      See, to that effect, judgments of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraph 56), and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 57).

25      The argument, put forward in the order for reference, that the procedural situation of persons arrested under a European arrest warrant should be aligned with that of the suspects or accused persons referred to in Directive 2012/13 amounts in my view to denying the particular nature of the cross-border procedure for the surrender of the requested person between Member States.

26      The application of Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13 to the situation of persons arrested under a European arrest warrant is in any event pointless when that warrant has been issued for the purpose of the enforcement of a custodial sentence.

27      The question might arise, more particularly, of the consequences of the recognition in favour of persons arrested under a European arrest warrant of the right of access to the case file as provided for in Article 7(1) of Directive 2012/13 and explained in recital 30 of that directive as taking the form of the making available to the person concerned and his or her lawyer of documents and, where appropriate, photographs, audio and video recordings which are essential to challenging effectively the lawfulness of an arrest or detention of suspects or accused persons in accordance with national law. That communication of the material in the case file will allow the person concerned and his or her lawyer to formulate requests relating to the evidence produced or to request a further investigation, which will undeniably have an impact on the progress of the surrender procedure.

28      Judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 41).

29      I note that this position is shared by the Commission and by all the Governments that lodged written observations in the context of the present proceedings.

30      See, to that effect, judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 45).

31      See judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 48).

32      See, to that effect, judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 77 and 78).

33      See, to that effect, judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 56), and of 30 May 2013, F (C‑168/13 PPU, EU:C:2013:358, paragraphs 46 and 47).

34      See judgment of 23 January 2018, Piotrowski (C‑367/16, EU:C:2018:27, paragraph 50).

35      See judgment of 27 May 2019, OG and PI (Public Prosecutors’ Offices, Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 67 and the case-law cited).

36      See 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 60 and 61).

37      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 64 to 66).

38      See judgments of 30 May 2013, F (C‑168/13 PPU, EU:C:2013:358, paragraph 50); of 6 December 2018, IK (Enforcement of an additional sentence) (C‑551/18 PPU, EU:C:2018:991, paragraph 67); 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, paragraphs 70 and 71).

39      See, to that effect, judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State) (C‑314/18, EU:C:2020:191, paragraphs 39 and 40).

40      See, to that effect, judgments of 29 January 2013, Radu (C‑396/11, EU:C:2013:39, paragraph 41), and of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629, paragraphs 103 and 104). Examples include the verification by the executing judicial authority of the risk of inhuman or degrading treatment owing to the conditions of detention in the issuing State (judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198)); the capacity as a judicial authority of the organ that issued the arrest warrant (judgment of 10 November 2016, Kovalkovas (C‑477/16 PPU, EU:C:2016:861)); the existence of a national arrest warrant (judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385)); compliance with the principle non bis in idem (judgment of 16 November 2010, Mantello (C‑261/09, EU:C:2010:683)); and the fact that the conditions for the issue of the warrant and in particular its proportionality are subject to judicial review in that Member State (judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor) (C‑625/19 PPU, EU:C:2019:1078)).

41      Rizcallah, C., ‘La notion d’autorité judiciaire d’émission dans le cadre du mandat d’arrêt européen et la procéduralisation du principe de confiance mutuelle’, L’Observateur de Bruxelles, No 119, p. 36.

42      See, to that effect, judgment of 23 January 2018, Piotrowski (C‑367/16, EU:C:2018:27, paragraphs 58 and 59).

43      See 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 72 and 73).

44      See, to that effect, judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraphs 42, 52, 60 and 62).

45      See, to that effect, judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraphs 53 to 59).

46      See judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 51).

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