Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Surrender procedures between Member States – Conditions for execution – Jurisdiction of the issuing judicial authority – Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union – Right of access to a tribunal previously established by law – Possibility of issuing a new European arrest warrant relating to the same person
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
1. 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,
must be interpreted as meaning that an executing judicial authority does not have the power to refuse to execute a European arrest warrant on the basis of a ground for non-execution which arises not from Framework Decision 2002/584, as amended, but solely from the law of the executing Member State. However, that judicial authority may apply a national provision which provides that the execution of a European arrest warrant is to be refused where that execution would lead to an infringement of a fundamental right enshrined in EU law, provided that the scope of that provision does not go beyond the scope of Article 1(3) of Framework Decision 2002/584, as amended, as interpreted by the Court of Justice of the European Union.
2. Article 1(1) and (2) and Article 6(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,
must be interpreted as meaning that the executing judicial authority may not verify whether a European arrest warrant has been issued by a judicial authority which had jurisdiction for that purpose and refuse to execute that European arrest warrant where it considers that that is not the case.
3. Article 1(3) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that the executing judicial authority called upon to decide on the surrender of a person for whom a European arrest warrant has been issued may not refuse to execute that warrant on the ground that that person is at risk, following his or her surrender to the issuing Member State, of being tried by a court which lacks jurisdiction for that purpose unless,
– first, that judicial authority has objective, reliable, specific and properly updated information showing that there are systemic or generalised deficiencies in the operation of the judicial system of the issuing Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which the person concerned belongs, in the light of the requirement for a tribunal established by law, which mean that the individuals concerned are generally deprived, in that Member State, of an effective legal remedy enabling a review of the jurisdiction of the criminal court called upon to try them, and
– secondly, that judicial authority finds that, in the particular circumstances of the case in question, there are substantial grounds for believing that, taking into account, inter alia, the information that is provided by the person for whom that European arrest warrant has been issued and that relates to his or her personal situation, to the nature of the offence for which that person is prosecuted, to the factual context in which that European arrest warrant was issued or to any other relevant circumstance, the court which is likely to be called upon to hear the proceedings to which that person will be subject in the issuing Member State manifestly lacks jurisdiction for that purpose.
The fact that the person concerned was able, before the courts of the issuing Member State, to rely on his or her fundamental rights in order to challenge the jurisdiction of the issuing judicial authority and the European arrest warrant issued for him or her is of no decisive importance in that regard.
4. Article 1(3) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights,
must be interpreted as meaning that in a situation where a person for whom a European arrest warrant has been issued alleges that he or she is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, the existence of a report by the Working Group on Arbitrary Detention which does not directly relate to that person’s situation may not, in itself, be justification for the executing judicial authority to refuse to execute that European arrest warrant, but such a report may, however, be taken into account by that judicial authority, among other elements, in order to assess whether there are systemic or generalised deficiencies in the operation of the judicial system of that Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which that person belongs.
5. Article 15(2) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,
must be interpreted as precluding the executing judicial authority from refusing to execute a European arrest warrant on the ground that the person for whom that warrant has been issued is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, without having first requested that the issuing judicial authority provide supplementary information.
6. Framework Decision 2002/584, as amended by Framework Decision 2009/299,
must be interpreted as not precluding the issuing of several successive European arrest warrants against a requested person with a view to obtaining his or her surrender by a Member State after the execution of a first European arrest warrant concerning that person has been refused by that Member State, provided that the execution of a new European arrest warrant does not result in an infringement of Article 1(3) of Framework Decision 2002/584, as amended, and provided that the issuing of the latter European arrest warrant is proportionate.
3 Recitals 6, 8 and 12 of Framework Decision 2002/584 are worded as follows:
...
(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union …, 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.
55 Ms Ponsatí Obiols’ argument that that option cannot be exercised in order to determine the conditions under which an executing judicial authority must, in order to ensure compliance with the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), refuse to execute a European arrest warrant cannot succeed, in so far as the issuing judicial authority must, in order to comply with the principles of mutual trust and sincere cooperation, refrain from issuing or maintaining a European arrest warrant the execution of which should be refused, in particular in order to avoid an infringement of the second paragraph of Article 47 of the Charter (see, by analogy, judgment of 11 November 2021, Gavanozov II, C‑852/19, EU:C:2021:902, paragraph 60).
72 In the fourth place, the existence of a risk of infringement of the fundamental rights set out in Articles 4 and 47 of the Charter is capable of permitting the executing judicial authority to refrain, exceptionally and following an appropriate examination, from giving effect to a European arrest warrant on the basis of Article 1(3) of that framework decision (see, to that effect, judgments of 15 October 2019, Dorobantu, C‑128/18, EU:C:2019:857, paragraph 83, and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 46 and the case-law cited).
91 Secondly, despite the general wording of that subquestion, it is apparent from the order for reference that the Tribunal Supremo (Supreme Court) is unsure, more specifically, as to the relevance, for the purposes of that execution, of an alleged risk that the person for whom that European arrest warrant has been issued may, following his or her surrender to that Member State, be exposed to an infringement of the second paragraph of Article 47 of the Charter, in that that person would be tried by a court lacking jurisdiction for that purpose.
92 In those circumstances, it must be held that, by part (c) of its fourth question, and its fifth question, which it is appropriate to deal with together, the referring court asks, in essence, whether Article 1(3) of Framework Decision 2002/584, read in conjunction with the second paragraph of Article 47 of the Charter, must be interpreted as meaning that the executing judicial authority called upon to decide on the surrender of a person for whom a European arrest warrant has been issued may refuse to execute that warrant where it considers that that person is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, when that person could, before the courts of that Member State, have invoked his or her fundamental rights in order to challenge the jurisdiction of the issuing judicial authority and that European arrest warrant.
95 That said, the high level of trust between Member States on which the European arrest warrant mechanism is based is thus founded on the premiss that the criminal courts of the other Member States which, following execution of a European arrest warrant, will have to conduct the criminal procedure for the purpose of prosecution, or of enforcement of a custodial sentence or detention order, and the substantive criminal proceedings, meet the requirements inherent in the fundamental right to a fair trial enshrined in the second paragraph of Article 47 of the Charter. That fundamental right is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 45 and the case-law cited).
97 In that regard, it follows from the Court’s case-law that, where the executing judicial authority called upon to decide on the surrender of a person in respect of whom a European arrest warrant has been issued has evidence indicating that there is a real risk of infringement of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies in the operation of the judicial system of the issuing Member State, that authority must verify, specifically and precisely, whether, in the light of that person’s personal situation, the nature of the offence for which he or she is sought and the factual context in which the European arrest warrant was issued, there are substantial grounds for believing that that person will run such a risk in the event of being surrendered to that Member State (see, to that effect, judgments of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 52, and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 50).
98 As regards the applicability of that two-step examination on the ground of the refusal to execute a European arrest warrant which is the subject of part (c) of the fourth question, it is important to note that the executing judicial authority is required, inter alia, to carry out such an examination in order to assess whether, if the person concerned is surrendered to the issuing Member State, that person runs a real risk of infringement of his or her fundamental right to a fair trial before a tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter (see, to that effect, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 66).
99 It follows from the case-law of the ECtHR relating to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which must be taken into account when interpreting Article 47 of the Charter (see, to that effect, judgment of 26 October 2021, Openbaar Ministerie (Right to be heard by the executing judicial authority), C‑428/21 PPU and C‑429/21 PPU, EU:C:2021:876, paragraph 64), that the jurisdiction of a court to hear a case, under the relevant national rules, is part of the requirement to have a ‘tribunal established by law’, within the meaning of Article 6(1) of that convention (see, to that effect, ECtHR, 20 July 2006, Sokurenko and Strygun v. Ukraine, CE:ECHR:2006:0720JUD002945804, §§ 26 to 29, and ECtHR, 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland, CE:ECHR:2020:1201JUD002637418, §§ 217 and 223).
101 In those circumstances, although the executing judicial authority may not, as follows from the answer to the third question, verify the jurisdiction of the issuing judicial authority, it is, however, the responsibility of the executing judicial authority, where the person for whom a European arrest warrant has been issued alleges that he or she will, following his or her surrender to the issuing Member State, be exposed to an infringement of the second paragraph of Article 47 of the Charter, in so far as he or she would be tried there by a court that lacks jurisdiction for that purpose, to assess the merits of that allegation in the context of the two-step examination referred to in paragraph 97 of the present judgment.
102 As regards the content of that examination, it must be noted that, as a first step, the judicial authority executing the European arrest warrant in question must determine whether there is objective, reliable, specific and properly updated information to demonstrate that there is a real risk of infringement, in the issuing Member State, of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, connected in particular with a failure to comply with the requirement for a tribunal established by law, on account of systemic or generalised deficiencies in that Member State or deficiencies affecting an objectively identifiable group of persons to which the person concerned belongs (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89, and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 67).
106 In the context of a second step, the executing judicial authority must determine, specifically and precisely, to what extent the deficiencies identified in the first step of the examination referred to in paragraph 97 of the present judgment are liable to have an impact on the proceedings to which the person for whom a European arrest warrant has been issued will be subject and whether, having regard to that person’s personal situation, the nature of the offence for which he or she is prosecuted and the factual context in which that arrest warrant was issued, there are substantial grounds for believing that that person will run a real risk of infringement of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter if he or she is surrendered to that Member State (see, to that effect, judgments of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 55, and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 53).
109 Finally, since it is apparent from the order for reference that the Tribunal Supremo (Supreme Court) is unsure, inter alia, whether an executing judicial authority may refuse to execute a European arrest warrant on the ground of a risk of infringement of the second paragraph of Article 47 of the Charter, without having found that there are systemic or generalised deficiencies in the issuing Member State, it should be noted that the two steps of the examination referred to in paragraph 97 of the present judgment involve an analysis of the information obtained on the basis of different criteria, with the result that those steps cannot overlap with one another (see, to that effect, judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 56).
111 Similarly, where a person for whom a European arrest warrant has been issued claims that he or she will be exposed to a risk of infringement of the second paragraph of Article 47 of the Charter on the ground that he or she will be tried by a court of the issuing Member State which does not have jurisdiction to do so, but the executing judicial authority considers that the information at its disposal does not constitute objective, reliable, specific and properly updated information to demonstrate the existence of systemic or generalised deficiencies in the operation of the judicial system of that Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which that person belongs, that authority cannot refuse to execute that European arrest warrant on the ground alleged by that person.
113 Furthermore, in the light of the nature of the infringement of the second paragraph of Article 47 of the Charter invoked by a person for whom a European arrest warrant has been issued and who is in a situation such as that referred to in part (c) of the fourth question, it must be held that the exercise of such legal remedies must make it possible, provided that they are effective, to avoid the very occurrence of that infringement or, in any event, to avoid irreparable damage arising from that infringement.
116 In the absence of such trust, once allegations such as those at issue in the main proceedings have been brought to the attention of the executing judicial authority, it would be led to review the application, by the courts of the issuing Member State, of their own rules on jurisdiction and judicial procedure in an individual case, which, as stated in paragraph 88 of the present judgment, would run counter to the principle of mutual recognition underlying Framework Decision 2002/584. It follows from the Court’s settled case-law that that framework decision, read in the light of the provisions of the Charter, cannot be interpreted in such a way as to call into question the effectiveness of the system of judicial cooperation between the Member States (see, to that effect, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 47).
117 The foregoing interpretation thus guarantees that the examination, by the executing judicial authority, of the observance, by the courts of the issuing Member State, of the right laid down in the second paragraph of Article 47 of the Charter, can, in accordance with the Court’s case-law, take place only in exceptional circumstances (see, to that effect, Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 191).
118 That interpretation is also such as to ensure that account is taken, in addition to the guarantees which, for the person for whom a European arrest warrant has been issued, stem from Article 47 of the Charter, of other interests, such as the need to observe, where appropriate, the fundamental rights of the victims of the offences concerned (see, by analogy, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 60 to 63).
119 In the light of the foregoing, the answer to part (c) of the fourth question, and to the fifth question, is that Article 1(3) of Framework Decision 2002/584, read in conjunction with the second paragraph of Article 47 of the Charter, must be interpreted as meaning that the executing judicial authority called upon to decide on the surrender of a person for whom a European arrest warrant has been issued may not refuse to execute that warrant on the ground that that person is at risk, following his or her surrender to the issuing Member State, of being tried by a court which lacks jurisdiction for that purpose unless,
121 By parts (a) and (b) of its fourth question, the referring court asks, in essence, whether Article 1(3) of Framework Decision 2002/584, read in conjunction with the second paragraph of Article 47 of the Charter, must be interpreted as meaning that, in a situation where a person for whom a European arrest warrant has been issued alleges that he or she is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, the existence of a WGAD report may, in itself, be justification for the executing judicial authority to refuse to execute that European arrest warrant or, failing that, may be taken into account by that judicial authority in order to decide whether it is necessary to refuse to execute that European arrest warrant on the ground alleged by that person.
122 It follows from the answer given to part (c) of the fourth question that the execution of a European arrest warrant may be refused on the ground that the person to whom it relates is at risk, following his or her surrender to the issuing Member State, of being tried by a court which lacks jurisdiction for that purpose only in so far as the executing judicial authority concludes, first, that there is a real risk of an infringement, in that Member State, of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter as a result of systemic or generalised deficiencies in the operation of the judicial system of that Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which that person belongs and, second, that the court likely to be called upon to hear the proceedings to which that person will be subject in that Member State manifestly lacks jurisdiction.
126 Consequently, the answer to parts (a) and (b) of the fourth question is that Article 1(3) of Framework Decision 2002/584, read in conjunction with the second paragraph of Article 47 of the Charter, must be interpreted as meaning that, in a situation where a person for whom a European arrest warrant has been issued alleges that he or she is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, the existence of a WGAD report which does not directly relate to that person’s situation may not, in itself, be justification for the executing judicial authority to refuse to execute that European arrest warrant, but such a report may, however, be taken into account by that judicial authority, among other elements, in order to assess whether there are systemic or generalised deficiencies in the operation of the judicial system of that Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which that person belongs.
142 However, first, it follows from the Court’s case-law that the issuing of a European arrest warrant the execution of which would lead to an infringement of Article 47 of the Charter and should, in the circumstances set out in the Court’s settled case-law, be refused by the executing judicial authority is not compatible with the principles of mutual trust and sincere cooperation (see, by analogy, judgment of 11 November 2021, Gavanozov II, C‑852/19, EU:C:2021:902, paragraph 60).
143 Accordingly, an issuing judicial authority cannot, in the absence of a change in circumstances, issue a new European arrest warrant against a person after an executing judicial authority has refused to give effect to a previous European arrest warrant issued against that person, in accordance with the requirements that were imposed on it by Article 1(3) of Framework Decision 2002/584, read in conjunction with the second paragraph of Article 47 of the Charter.
– secondly, that judicial authority finds that, in the particular circumstances of the case in question, there are substantial grounds for believing that, taking into account, inter alia, the information that is provided by the person for whom that European arrest warrant has been issued and that relates to his or her personal situation, to the nature of the offence for which that person is prosecuted, to the factual context in which that European arrest warrant was issued or to any other relevant circumstance, the court which is likely to be called upon to hear the proceedings to which that person will be subject in the issuing Member State manifestly lacks jurisdiction for that purpose. The fact that the person concerned was able, before the courts of the issuing Member State, to rely on his or her fundamental rights in order to challenge the jurisdiction of the issuing judicial authority and the European arrest warrant issued for him or her is of no decisive importance in that regard.
