Minister for Justice and Equality v Francis Lanigan.

• Jurisdiction: European Union
• Celex Number: 62015CP0237
• ECLI: ECLI:EU:C:2015:509
• Docket Number: C-237/15
• Date: 06 July 2015
• Court: Court of Justice (European Union)
• Procedure Type: Petición de decisión prejudicial - procedimiento de urgencia

VIEW OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 6 July 2015 ( 1 )

Case C‑237/15 PPU

Minister for Justice and Equality

v

Francis Lanigan

(Request for a preliminary ruling from the High Court (Ireland))

‛Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Decision on surrender — Article 15 — Requested person not consenting to his surrender and placed in custody — Time-limit for the adoption of a final decision on the execution of the European arrest warrant — Article 17 — Effects of failure to observe the time-limits — Rights of the requested person — Charter of Fundamental Rights of the European Union — Article 6 — Right to liberty — European Convention for the Protection of Human Rights and Fundamental Freedoms — Article 5(1)(f) and (4) — Right to a speedy legal remedy for the review of the lawfulness of continued detention — Right to be released — Explanations relating to the Charter — Article 52(3) of the Charter’

1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, ( 2 ) which the Member States were required to implement by 31 December 2003, soon gave rise to a number of requests for a preliminary ruling. ( 3 ) However, the fact that not all Member States consented, in accordance with Article 35(2) TEU in the version prior to the Lisbon Treaty, to make the preliminary ruling procedure available to their courts has meant that it is only now, when the transitional period provided for by Protocol No 36 on Transitional Provisions annexed to the FEU Treaty has just ended, that questions that are sometimes specific to certain Member States are being referred to the Court of Justice.

2. Once again, questions of considerable importance concerning the European arrest warrant have been referred to the Court by way of an urgent request for a preliminary ruling. ( 4 ) Perhaps that is to be expected, inasmuch as the request for a preliminary ruling arises in the context of a procedure which the EU legislature intended to be expeditious. ( 5 ) However, that cannot prevent the Court, and, on the contrary, should encourage it to offer a response as closely tailored as possible to the particular circumstances of the case.

3. This request for a preliminary ruling from the High Court (Ireland) raises the question of the consequences of failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584 within which a Member State must adopt a final decision, one way or the other, on the execution of a European arrest warrant issued by another Member State, in particular where the warrant has resulted in the person requested being placed in a situation where he is deprived of his liberty. The High Court seeks to ascertain with certainty whether the national judicial authorities, which have hitherto had to give effect to the provisions of Framework Decision 2002/584 without assistance from the Court of Justice, have correctly interpreted the requirements of Framework Decision 2002/584 in this regard, so that they may act accordingly.

I – Law

A – EU law

4. Recitals 1, 5, 8, 12 and 13 in the preamble to Framework Decision 2002/584 are drafted as follows: ‘(1) According to the Conclusions of the Tampere European Council of 15 and 16 October 1999, and in particular point 35 thereof, the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence. … (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. … (8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender. … (12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected by the Charter of Fundamental Rights of the European Union [(“the Charter”)], in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons. This Framework Decision does not prevent any Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media. (13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

5. Article 1 of Framework Decision 2002/584, 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 of the Treaty on European Union.’

6. Article 5 of Framework Decision 2002/584, which defines the “[g]uarantees to be given by the issuing Member State in particular cases”, provides, in paragraph 3 thereof: ‘The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions: … 3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.’

7. Articles 11 and 12 of Framework Decision 2002/584 provide: ‘Article 11 Rights of a requested person 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. Article 12 Keeping the person in detention 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.’

8. Article 15 of Framework Decision 2002/584, which concerns surrender decisions, provides: ‘1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered. 2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time-limit for the receipt thereof, taking into account the need to observe the time-limits set in Article 17. 3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’

9. Article 17 of Framework Decision 2002/584, entitled...