CJEU - C-294/16 PPU / Opinion
Key facts of the case:

Reference for a preliminary ruling — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant and surrender procedures between Member States — Effects of the surrender — Deduction of the period of detention served in the executing Member State — Article 26 — Detention arising from the execution of a European arrest warrant — Concept — Curfew with electronic monitoring — Inclusion — Fundamental rights — Article 6 and Article 49(3) of the Charter of Fundamental Rights of the European Union

Results (sanctions) and key consequences of the case:

In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the national court as follows:
(1) Article 26(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that it is for the national court to determine, on the basis of the criterion of equivalence between measures involving deprivation of liberty stricto sensu and the measures applied to the applicant in the main proceedings, whether the latter measures produced a situation substantively comparable to the situation entailed by the former and, if they did, to deduct them from the period of detention to be served in the issuing Member State.

(2) In circumstances such as those at issue in the main proceedings, the measures at issue cannot be classified as measures involving deprivation of liberty for the purposes of Article 26(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299.
Paragraphs referring to EU Charter
Fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.’
6. Under Article 1(1) of Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, ‘the Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms’.

The notion of ‘detention’ in the Framework Decision must itself be based on respect for fundamental rights and observance of the principles recognised by Article 6 TEU and reflected in the Charter, bearing in mind that fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, form part of EU law as general principles, under Article 6(3) TEU. (10)

In fact, rather than useful guidance, it is possible to extract real criteria for the interpretation of Article 5 of the ECHR and, in consequence, Article 6 of the Charter, in the light of which Article 26(1) of the Framework Decision should be interpreted.

Through Article 26, the EU legislature sought to discharge its general obligation to comply with fundamental rights in the ambit of the Framework Decision, particularly the fundamental right to liberty guaranteed by Article 6 of the Charter, non-compliance with which may trigger, to a certain extent, on-compliance with the principle that penalties must be proportionate (Article 49(3) of the Charter) (16) and even the right not to be punished twice for the same offence (Article 50 of the Charter). (17)

That being the case, the concept of ‘detention’ within the meaning of Article 26(1) of the Framework Decision must be interpreted in accordance with the content of Article 6 of the Charter, since the rights recognised therein, according to the explanations relating to the Charter — which, as a way of providing guidance in the interpretation of the Charter, must be given due regard by the courts of the European Union and of the Member States (Article 52(7) thereof) — ‘are the rights guaranteed by Article 5 of the ECHR, and in accordance with Article 52(3) of the Charter, they have the same meaning and scope’.