The Advocate General at the Court of Justice of the European Union (CJEU), Jean Richard de la Tour, on 11 February, published a non-binding opinion on the compatibility of Bulgarian European Arrest Warrants with EU law. In AG de la Tour’s opinion, the procedure for issuing and challenging Bulgarian European Arrest Warrants (EAWs) in the pre-trial stage of criminal proceedings fails to meet the standards of rights protection required under the EU Charter of Fundamental Rights, in particular the requirement of effective judicial protection guaranteed by Article 47 of the Charter.
The AG’s opinion was published in response to a request for a preliminary ruling from Westminster Magistrates’ Court. In those proceedings, the requested person challenged the execution of the Bulgarian EAW against him on the grounds that Bulgarian law does not guarantee the dual level of protection envisaged by the CJEU in Bob-Dogi (C-241/15). Neither the national detention order nor the EAW that flows from it is founded on a decision of a court (both decisions are taken by the Bulgarian Prosecutor’s Office) and neither is open to challenge before the courts in Bulgaria prior to the surrender of the requested person. Whilst the requested person may apply for judicial review of the warrant, this cannot be done until after they are surrendered to the Bulgarian authorities.
The AG conducted a thorough review of CJEU case law on the necessary components of effective judicial protection. The case law makes clear that the fact that judicial protection is available under the procedural system of the issuing Member State after the requested person has been surrendered to it does not relieve that Member State of the obligation to provide for judicial review of the EAW or of the national decision on which it is based prior to surrender. Further, the interference with the right to liberty of the requested person, as guaranteed by Article 6 of the Charter, makes it essential that the national procedure leading to that interference be reviewable by a court before that person is surrendered.
AG de la Tour went on to say that the requirements inherent in effective judicial review are not satisfied where both the EAW and the national judicial decision on which it is based, first, are issued by an authority that, whilst participating in the administration of criminal justice, is not itself a court; and second, cannot be reviewed by a court prior to the surrender of the person concerned. It follows, therefore, in the AG’s view, that the Bulgarian procedure for issuing EAWs by a public prosecutor during the pre-trial stage of criminal proceedings does not meet the requirements of EU law.