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.

4.

Recitals 1, 5, 8, 12 and 13 in the preamble to Framework Decision 2002/584 are drafted as follows:

…

…

…

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:

…

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 ‘Time-limits and procedures for the decision to execute the European arrest warrant’, provides:

‘1.   A European arrest warrant shall be dealt with and executed as a matter of urgency.

2.   In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.

3.   In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.

4.   Where in specific cases the European arrest warrant cannot be executed within the time-limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time-limits may be extended by a further 30 days.

5.   As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled.

6.   Reasons must be given for any refusal to execute a European arrest warrant.

7.   Where in exceptional circumstances a Member State cannot observe the time-limits provided for in this Article, it shall inform [the European agency for the strengthening of judicial cooperation (Eurojust)], giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level.’

10.

Article 23 of Framework Decision 2002/584, which defines the ‘[t]ime-limits for surrender of the person’, states:

‘1.   The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.

2.   He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.

3.   If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

4.   The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

5.   Upon expiry of the time-limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.’

11.

Lastly, Article 26 of Framework Decision 2002/584, entitled ‘Deduction of the period of detention served in the executing Member State’, provides:

‘1.   The issuing Member State shall 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 as a result of a custodial sentence or detention order being passed.

2.   To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 7 to the issuing judicial authority at the time of the surrender.’

12.

Framework Decision 2002/584 was transposed into Irish law by the European Arrest Warrant Act, 2003, ( 6 ) as amended. Section 13 of the EAWA 2003 provides:

13.

Section 16(1) of the EAWA 2003 provides:

‘Where a person does not consent to his or her surrender to the issuing state the High Court may, upon such date as is fixed under section 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that:

…

14.

Section 16(9) and (10) of the EAWA 2003 provides:

15.

On 17 December 2012, in accordance with Framework Decision 2002/584, the Magistrates’ Court in Dungannon in County Tyrone, Northern Ireland (United Kingdom) ( 7 ) issued a European arrest warrant in respect of Francis Lanigan ( 8 ) at the request of the Public Prosecution Service for Northern Ireland so that he could be tried for murder and the possession of a firearm with intent to endanger life, crimes which he is alleged to have committed on 31 May 1998 in Dungannon.

16.

On 7 January 2013, the High Court (Ireland) endorsed the European arrest warrant for execution by the Garda Síochána (the Irish police force).

17.

On 16 January 2013, the respondent was arrested on the basis of the European arrest warrant and was brought before the High Court the same day. He did not consent to his surrender to the issuing Member State and was remanded in custody pending the final decision on the application for his surrender.

18.

The hearing of the application for his surrender before the High Court, initially fixed for 29 January 2013, was postponed on a number of occasions and for a variety of reasons, including a legal aid application made on 3 July 2013 and finally granted on 26 July 2013.

19.

Meanwhile, on 26 February 2013, the High Court rejected the respondent’s application for bail.

20.

It was not until 26 November 2013 that the respondent in the main proceedings put forward 11 points of objection to his surrender, in support of which he produced an affidavit sworn on 16 December 2013 and an affidavit sworn by his solicitor in Belfast on 19 February 2014.

21.

According to the written observations submitted to the Court by the applicant and the respondent in the main proceedings, the latter argues, principally, that his life would be endangered if he were to be surrendered to the issuing Member State. Having joined the Provisional Irish Republican Army at the age of 17 and having later joined the Irish National Liberation Army (INLA), he states that, on 7 September 1993, he was the target of a first attempted assassination by the Irish paramilitary unionist organisation, the Ulster Freedom Fighters (UFF). He says that he was the target of a second attempted assassination by the INLA on 1 December 1995. He states in his affidavit that five of his associates were assassinated in the 1990s, either by the INLA, in the context of feuds, or by unionist paramilitaries. Consequently, he decided to seek refuge in Ireland, where he changed his name for his own safety. He therefore refuses to return to Northern Ireland, for fear of being assassinated there by loyalist or republican dissidents, believing that the security forces and prison authorities cannot protect him.

22.

On 17 December 2013, the case was transferred for hearing to a designated judge and a hearing was fixed for 3 February 2014. That hearing was, however, adjourned on two occasions, first to 28 April 2014, and subsequently to 30 June 2014, at the request of the applicant in the main proceedings, who was awaiting information from the United Kingdom authorities regarding the threat to the life of the respondent in the main proceedings.

23.

On 9 April 2014, the applicant in the main proceedings requested from the central authority in Northern Ireland, the UK National Crime Agency, information regarding procedures in place in Northern Irish prisons for protecting prisoners at risk. On 10 April 2014, the Northern Ireland Prison Service (NIPS) answered that request, setting out details of the procedures in place in Northern Irish prisons to protect and manage prisoners perceived to be at risk of harm from others.

24.

On 16 April 2014, the applicant in the main proceedings sent a second request for information to the central authority in Northern Ireland, seeking an explanation as to why the European arrest warrant — relating to criminal offences committed in May 1998 — had not been issued until December 2012. The Crown Solicitor’s Office, a representative of the United Kingdom Government in Northern Ireland, replied by letter of 24 April 2014, stating that, although the respondent in the main proceedings had quickly been identified as a suspect, it had not been until 2011 that sufficient evidence had been gathered to charge the respondent, against whom the Public Prosecution Service for Northern Ireland had directed that charges be brought on 4 May 2012.

25.

It was not until 30 June 2014 that the hearing of the surrender application finally commenced before the High Court. The hearing lasted for three days, during which time the respondent in the main proceedings raised a number of procedural and evidential issues. In particular, he argued that both parties needed to be heard and that the High Court could not, therefore, act on information received from the issuing Member State unless it was proved on affidavit and that the respondent’s lawyer were allowed the right to cross-examine any deponent proffered by the applicant. Various applications made by the respondent in the main proceedings were rejected by the High Court as unnecessary and, on 4 July 2014, it adjourned the case.

26.

On 17 November 2014, the High Court delivered judgment on the preliminary issues in the case. It first of all pointed out that European arrest warrant proceedings were not subject to the ordinary procedural and evidential rules governing Irish proceedings and that information received from an issuing Member State could be considered by the court, acting in its capacity as executing judicial authority. Next, having regard to the evidence adduced by the respondent in the main proceedings that his life would be endangered if he were surrendered to the issuing Member State, it stated that, before a surrender could be ordered, the court had to be satisfied that his right to life under the Irish Constitution and Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), would be protected as far as was practicable. The High Court consequently invited the applicant in the main proceedings to engage with the, to date, uncontroverted evidence and to request from the issuing Member State further information regarding the concerns expressed by the respondent in the main proceedings. The High Court stated that it would defer its consideration of the other objections raised by the respondent in the main proceedings until it had that information.

27.

On 27 November 2014, the applicant in the main proceedings therefore submitted a further request for information to the central authority in Northern Ireland in a letter in which it repeated the defendant in the main proceedings’ contention that, if he were to be incarcerated in Northern Ireland, his life would be at risk from loyalist and republican dissidents, since prison authorities would be unable to protect him. That letter enclosed the affidavit sworn by the respondent in the main proceedings on 16 December 2013 and the affidavit sworn by his solicitor on 19 February 2014 and invited the central authority to express its position on the question whether there would be a real and immediate risk to the respondent’s life and, if there were, whether NIPS would be able to guarantee him effective protection. NIPS and the Police Service of Northern Ireland answered that request for information by two letters both dated 3 December 2014 and sent to the applicant in the main proceedings on 4 December 2014.

28.

By a sworn statement dated 28 November 2014, received by the High Court on 1 December 2014, the respondent in the main proceedings made a fresh bail application.

29.

On 8 December 2014, the respondent in the main proceedings applied to the court to dismiss the surrender application on the ground that, under the national law of criminal procedure and evidence as well as the Irish Constitution and the Charter, the documents produced by the applicant in the main proceedings were inadmissible as evidence and, even if they were admissible, they would have to be disregarded since they were incapable of being challenged in cross-examination. That application was nevertheless dismissed by the High Court on the ground that it related to the preliminary issues on which the court had already ruled.

30.

On 8 December 2014, the respondent in the main proceedings raised an additional ground of objection to his surrender.

31.

On 15 December 2014, there was a further hearing before the High Court in the course of which counsel for the respondent in the main proceedings argued, inter alia, that the application for his surrender should be dismissed on grounds of excessive delay. He also made an application for a question to be referred to the Court of Justice dealing with the issue of delay and, lastly, a bail application.

32.

On 19 December 2014, the High Court determined the bail application. However, the respondent in the main proceedings was unable to satisfy the conditions of bail, the surety having been set at a level beyond his means.

33.

On 12 January 2015, there was a further hearing before the High Court in the course of which the applicant in the main proceedings opposed the raising of an objection in relation to delay at that stage and also contended that the Supreme Court had already decided that issue in its judgment of 19 December 2005 in Dundon v. The Governor of Cloverhill Prison. ( 9 ) The respondent in the main proceedings pointed out that, since 1 December 2014, the option of referring a question to the Court of Justice of the European Union for a preliminary ruling had been available to the Irish courts and submitted that the interpretation in Dundon was no longer binding on the High Court.

34.

The matter was then adjourned to 18 January 2015, on which date the High Court decided to refer a question to the Court of Justice concerning delay, noting that the Irish system could not function within the limits set out in Article 17 of Framework Decision 2002/584 and that it wished to have assistance in interpreting that provision.

35.

The matter was subsequently adjourned on a number of occasions to allow the parties to submit drafts of the wording of the question to be referred to the Court of Justice and to submit observations.

36.

Meanwhile, on 2 February 2015, the High Court heard an application to vary the monetary terms of the bail set on 19 December 2014, but dismissed the application on 9 February 2015, whereupon the respondent in the main proceedings appealed to the Court of Appeal.

37.

It was in those circumstances that, by decision of 19 May 2015, received by the Court of Justice on 22 May 2015, the High Court referred the following two questions to the Court for a preliminary ruling:

38.

The High Court was careful to state that it considered that the Irish system could not function within the limits set out in Article 17 of Framework Decision 2002/584, that the consequences of that inability were a matter of real substance justifying the request for a preliminary ruling and that the interpretation of that provision provided by the Court of Justice could affect its ultimate decision in this case.

39.

On this last point, the High Court emphasises that, in Dundon, the Supreme Court dismissed a habeas corpus application made by a person remanded in custody on the basis of a European arrest warrant in circumstances similar to those of the case in the main proceedings.

40.

In Dundon, the applicant had argued that, since the High Court had failed to make a final decision on the execution of the European arrest warrant within the 60 day time-limit laid down by Irish law, he was entitled to be released from custody. However, the Supreme Court held that his detention was lawful, holding, first of all, that the requested person was not entitled to immediate release in circumstances where the High Court failed to make a decision within the specified period, since such a consequence would have to be spelled out clearly and unambiguously, given the primary obligation on Member States to execute the European arrest warrant. It then emphasised that the obligation on the High Court to execute the warrant had not come to an end upon the expiry of the 60-day period and added that the time-limits had been fixed with a view to internal discipline within Member States and not with a view to conferring rights on individuals. Lastly, it held that it was required to interpret national law in conformity with Framework Decision 2002/584.

41.

In its decision, the referring court also requests the Court that the reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of its Rules of Procedure

42.

It also points out in this connection that the reference raises one or more questions in the areas covered by Title V of Part Three of the FEU Treaty and that the respondent in the main proceedings has been held in custody since 16 January 2013. It also states that it is minded to follow the decision of the Supreme Court in Dundon, but that it wishes to take the opportunity to ascertain the views of the Court of Justice before doing so.

43.

Accordingly, on 28 May 2015 the Fourth Chamber of the Court decided, on the Judge-Rapporteur’s proposal and after hearing the Advocate General, to grant the referring court’s request that the reference for a preliminary ruling be dealt with under the urgent procedure. It also decided, pursuant to Article 113(2) of the Rules of Procedure, to suggest to the Court that the case be assigned to a formation composed of a greater number of judges.

44.

Pursuant to Article 109(2) of the Rules of Procedure, the Fourth Chamber invited the parties to the main proceedings, the Member State of the referring court and the institutions referred to in the first paragraph of Article 23 of the Statute of the Court of Justice of the European Union to submit written observations by 15 June 2015. Pursuant to Article 109(2) of the Rules of Procedure, the Court also invited the United Kingdom of Great Britain and Northern Ireland to submit written observations by the same date or to appear at the hearing.

45.

The respondent in the main proceedings, the United Kingdom Government and the European Commission submitted written observations within the prescribed period.

46.

The applicant and the respondent in the main proceedings, the Irish, German, Spanish, French, Netherlands and United Kingdom Governments and the Commission also made oral submissions at the hearing held on 1 July 2015.

47.

The applicant in the main proceedings, while considering the two questions together, proposes that they be answered separately. It considers that the referring court essentially seeks to establish what consequences for the surrender procedure may ensue from a failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584. Referring to the Supreme Court’s ruling in Dundon, it submits that the expiry of those time-limits does not result in the acquisition by the respondent in the main proceedings of any right to be released or any other rights. In accordance with the principle of national procedural autonomy, it is for the national court to assess whether the duration of the procedure has prejudiced the rights of the requested person in such a way that surrender would infringe his fundamental rights. At the hearing, the applicant in the main proceedings added that the suggestion made by the respondent in the main proceedings that the rejection of a surrender application would be the most effective deterrent against the failure of executing Member States to comply with the time-limits stipulated in Article 17 of Framework Decision 2002/584 finds no basis in that Framework Decision.

48.

It observes, first of all, that Article 17 of Framework Decision 2002/584 makes no provision for the termination of the process of surrender on the expiry of the time-limits which it lays down and, by contrast with Article 23 of the decision, does not provide for the release of the requested person. Moreover, Article 17(2) and (3) uses wording that is not mandatory, but conditional. ( 10 ) Whilst it is true that Article 15(1) of Framework Decision 2002/584 states that ‘[t]he executing judicial authorityshall [ ( 11 )] decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered’, that provision must nevertheless be read in light of the wording of Article 17(2) and (3) of the Framework Decision. The Court of Justice has held, in this connection, in its judgment in F., ( 12 ) that ‘the time-limits prescribed in Article 17 of the Framework Decision must be interpreted as requiring the final decision on the execution of the European arrest warrant to be taken, in principle, either within 10 days from consent being given to the surrender of the requested person, or, in other cases, within 60 days from his arrest’. Thus, the Court has recognised that it is legally possible to take a final decision on the execution of a European arrest warrant outside the stipulated time-limits and that failure to comply with those time-limits does not mean that the procedure lapses.

49.

Moreover, failure to observe the time-limits is not without consequences, inasmuch as these are provided for in Article 17(7) of Framework Decision 2002/584. Read as a whole, Article 17 establishes a system whereby final decisions on the execution of a European arrest warrant are, in principle, where the person requested does not consent, to be made within 60 days, which period may be extended by 30 days; if that time-limit is not observed, the executing Member State must inform Eurojust and where there is repeated non-compliance with the time-limits, the issuing Member State may refer the matter to the Council.

50.

Secondly, that interpretation is consistent with the purpose and objectives of Framework Decision 2002/584, which, in accordance with Article 67 TFEU, are to ensure a high level of security in an area of freedom, security and justice through measures for cooperation between the police and judicial authorities of the Member States in criminal matters. A system which secures the release of a person who is sought for criminal prosecution or who has been convicted of a crime would be the antithesis of one that pursues that objective. Furthermore, the objectives of promoting cooperation in criminal matters would be compromised if requested persons were unexpectedly released on the expiry of the time-limits laid down for the surrender procedure. To compel the Member States to comply with the time-limits stipulated in Framework Decision 2002/584 when they are unable to comply with them is unlikely to promote cooperation and, most importantly, could result in the person requested not being surrendered where the time-limits cannot be observed.

51.

Thirdly, the objectives of efficiency and speed pursued by Title V of Part Five of the FEU Treaty and by Framework Decision 2002/584 are not designed to protect the fundamental rights of the requested person. Their purpose is to ensure, as far as possible, the free movement of judicial decisions so as to promote the administration of criminal justice throughout the European Union and thereby combat crime, including organised crime, more effectively. The specific purpose of the time-limits stipulated in Framework Decision 2002/584 is to ensure that persons who are fleeing justice are made amenable to the criminal process as swiftly as is reasonably possible. The fact that an executing judicial authority may take longer than 60 or 90 days to adopt a final decision on the execution of a European arrest warrant consequently does not alter any of the requested person’s rights.

52.

Fourthly, as is clear from recital 12 in the preamble to Framework Decision 2002/584 and Article 1(3) thereof, the Framework Decision does not have the effect of modifying the obligation to respect fundamental rights and fundamental freedoms as enshrined in Article 6 TEU. Recital 10 in the preamble to the Framework Decision goes further by clarifying that the implementation of the European arrest warrant mechanism may be suspended not for failure to observe the time-limits fixed, but only in the event of infringement of the principles set out in Article 6(1) TEU. At the hearing, the applicant in the main proceedings acknowledged in this connection that the case-law of the European Court of Human Rights relating to Article 5 of the ECHR did apply, but only the case-law relating to Article 5(1)(f) and not that relating to Article 5(4), contrary to the Commission’s view. However, Article 5(1)(f) of the ECHR is infringed only if the competent national authorities, in breach of national procedural rules, fail to conduct the procedure diligently and consequently prolong the detention of the person in question unreasonably. ( 13 ) The situation is different if the requested person is responsible for the time-limits being exceeded, as in the case in the main proceedings. In any event, the release of the requested person cannot be automatic. On the contrary, if the objectives of Framework Decision 2002/584 are not to be undermined, all the circumstances of the case must be taken into consideration, in particular, the flight risk, the amount of time spent in custody and the extent to which the person detained has contributed to the delay. In the case in the main proceedings, it is the respondent who is principally responsible for the delays in the surrender procedure and therefore for the length of time that he has been remanded in custody.

53.

The applicant in the main proceedings concludes that Framework Decision 2002/584 makes no provision for the European arrest warrant to be set aside in the event that the executing judicial authority is unable to make a decision within the time-limits stipulated in Article 17 thereof, and that the executing judicial authority may still fulfil its obligations after the expiry of the time-limits.

54.

The respondent in the main proceedings argued, in his written observations, that the successive delays that have occurred in the proceedings before the High Court do not constitute exceptional circumstances within the meaning of Article 17(7) of Framework Decision 2002/584. In the circumstances, he envisages a number of solutions for the infringement of Article 17, which might be appropriate separately or cumulatively, namely, the refusal of his surrender to the issuing Member State, the deduction of the total duration of the time he has spent in custody, his release on bail on reasonable terms, and damages, to be apportioned between the Member States concerned on the basis of their respective contributions to the delays incurred.

55.

He states in this connection that, in the absence of any provision equivalent to Article 23(5) of Framework Decision 2002/584, the refusal of surrender to the issuing Member State, like habeas corpus proceedings in common law systems, would be the most effective deterrent against unwarranted delays on the part of Member States in executing European arrest warrants. He also points out that, under Irish law, the Criminal Law (Jurisdiction) Act 1976 enables crimes committed in Northern Ireland, such as those at issue in the main proceedings, to be prosecuted in Ireland. At the hearing, he stated that Framework Decision 2002/584 did not exclude that possibility, which, moreover, would satisfy the requirements of the principle of proportionality.

56.

The respondent in the main proceedings also points out that he submitted to the High Court further questions which ultimately were not referred to the Court of Justice for a preliminary ruling and states that he would like the Court to examine those questions.

57.

In his oral submissions, the respondent in the main proceedings added that, in his view, the principal reason for the length of the delays lay in the fact that the applicant in the main proceedings is testing a new procedure which is unprecedented in the Irish courts.

58.

In its oral submissions, the German Government proposed that the answer to the first question should be that Article 17 of Framework Decision 2002/584, read together with Article 15, obliges executing Member States to continue with the surrender procedure even if the time-limits have expired. That may be inferred from a grammatical and systematic analysis of those provisions of the Framework Decision and from the judgment in F. ( 14 ) The objective of the Framework Decision is to speed up the surrender by executing judicial authorities of persons convicted of or suspected of having committed an offence. Isolated failures to comply with those time-limits do not automatically undermine the attainment of that objective, provided that the delay is justified. The delay is justified in the case in the main proceedings, inasmuch as the Irish executing judicial authority was obliged to ascertain whether the life of the respondent in the main proceedings would indeed be endangered if he were surrendered to the issuing Member State.

59.

In so far as concerns the second question, the German Government submits that failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584 does not result in the detained person obtaining the right to be released, although that right could arise on a different basis. The German Government’s analysis of this point draws on Article 12 of Framework Decision 2002/584, which entrusts the executing judicial authority with the task of deciding whether or not the person detained on the basis of a European arrest warrant should continue to be deprived of his liberty. Whilst that decision is, without question, to be taken in accordance with domestic law, the national court must also apply the Charter and Article 5 of the ECHR, which is referred to in the explanation on Article 6 of the Explanations relating to the Charter of Fundamental Rights.

60.

The German Government recalls in this connection that, in accordance with the case-law of the European Court of Human Rights, the right to liberty of a person against whom extradition proceedings are underway may be restricted, in accordance with procedures established by law, although such a restriction is permissible only if the period of detention remains reasonable, which must be assessed on a case by case basis. One vital requirement is that the proceedings must be conducted diligently in every case. Monitoring compliance with that requirement entails consideration of the procedure as a whole as well as of each of its stages. In that context, exceeding the time-limits stipulated in Article 17 of Framework Decision 2002/584 is merely one factor to be taken into consideration. In the circumstances of the case in the main proceedings, account should also be taken of the fact that the respondent made extensive use of his procedural rights, of the length of time it appears to have taken the executing judicial authority to resolve the various procedural issues, and of the successive adjournments.

61.

The Spanish Government considers, in so far as the first question is concerned, that failure to observe the time-limits for execution of a European arrest warrant does not mean that the executing judicial authority must reject the application for surrender. It submits, with regard to the second question, that any possible consequences of delay in the execution of a European arrest warrant, as in the case in the main proceedings, are a matter of domestic law.

62.

The Spanish Government states, first of all, that the objective of Framework Decision 2002/584 is to establish a simplified procedure for the surrender of persons suspected of having committed a criminal offence, so as to strengthen, facilitate and accelerate judicial cooperation between the Member States on the basis of the principle of mutual recognition. That principle obliges the Member States to execute European arrest warrants in every case, subject to the exceptions provided for and the conditions laid down in Articles 3, 4 and 5 of the Framework Decision. Moreover, the Court of Justice has repeatedly held that neither internal difficulties nor domestic legislation can justify the failure of Member States to fulfil their obligations under EU law.

63.

Next, the Spanish Government insists that failure to comply with the time-limits stipulated in Article 17 of Framework Decision 2002/584 can in no way cause the obligation on the executing Member State to cease to exist. The consequences of a delay in the adoption of a final decision on the execution of a European arrest warrant are defined in Article 17(7), which lays down an obligation to inform Eurojust and, where appropriate, the Council. That obligation was introduced in order to impose some degree of discipline between the Member States, having regard to the limits on judicial review imposed by the former Article 35 TEU in the field of judicial cooperation in criminal matters. The non-execution of a European arrest warrant on the ground that the time-limits stipulated in Article 17 have expired would compromise the effectiveness of Framework Decision 2002/584 and could encourage persons against whom a European arrest warrant has been issued to adopt delaying tactics in order to frustrate the warrant’s execution. The Spanish Government refers in this connection to the judgment in F. ( 15 )

64.

Lastly, the Spanish Government submits that the rights of a person deprived of his liberty on the basis of a European arrest warrant are defined in Articles 11 to 14 of Framework Decision 2002/584. The effects of delay in the execution of a European arrest warrant on the situation of a requested person are determined by the domestic law of the executing Member State, although measures necessary to preclude any risk of that person absconding must be adopted, in accordance with Article 12 of the Framework Decision, and the fulfilment of the material conditions necessary for the effective surrender of the requested person must be ensured, in accordance with Article 17(5) of the Framework Decision. The executing judicial authority decides whether to remand the requested person in custody or to grant him bail in accordance with domestic law, since the area has not been harmonised and continues to be governed by the principle of procedural autonomy, provided that the principles of equivalence and effectiveness are observed. In the circumstances of the case in the main proceedings, those two principles have been duly observed, inasmuch as the respondent in the main proceedings has had the opportunity to apply for bail and indeed his most recent bail application is still pending.

65.

At the hearing, the French Government expressed its disagreement with the Commission’s position. It submits, in so far as concerns the first question, that failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584 does not alter the obligation on the executing judicial authority to reach a decision on the surrender of the requested person, nor does it entail the latter’s release. In so far as the second question is concerned, it considers that failure to comply with the time-limits does not give rise to individual rights on the part of requested persons held in custody after the expiry of those time-limits.

66.

As regards the first question, the French Government recalls, first of all, that, in accordance with the Court’s judgment in F., ( 16 ) compliance with the time-limits is, in principle, mandatory. However, the Court did not reach a finding on the consequences of failure to comply with them. Framework Decision 2002/584 does not provide for sanctions in this connection, but merely requires, pursuant to Article 17(7), that Eurojust and, where appropriate, the Council be informed. The obligation upon the executing judicial authority to adopt a final decision therefore remains even after the expiry of the time-limits.

67.

Next, the French Government emphasises that, by contrast with the provisions of Article 23(5), which expressly provide for release, no provision of Framework Decision 2002/584 envisages the release of the requested person on the expiry of the time-limits stipulated in Article 17. On the contrary, the executing judicial authority is required, in accordance with Article 17(5), to ensure that the material conditions necessary for effective surrender remain fulfilled. That interpretation is, moreover, confirmed by the preparatory work for Framework Decision 2002/584, which discloses that the Commission’s initial suggestion to that effect was not taken up.

68.

Furthermore, the French Government considers that that interpretation is the only one capable of supporting the attainment of the objectives pursued by Framework Decision 2002/584, which is to speed up judicial cooperation among the Member States and also to facilitate such cooperation. If it were accepted that requested persons were to be released on expiry of the time-limits, that would encourage them to adopt delaying tactics.

69.

The French Government also submits that the need to ensure respect for fundamental rights cannot give rise to such consequences. Admittedly, Article 6 of the Charter and Article 5(1)(f) and (4) of the ECHR are relevant, as is the case-law of the European Court of Human Rights relating to those provisions. Nevertheless, the French Government submits that the Commission has drawn the wrong conclusions from that case-law, from which it is clear that, in any review of the lawfulness of detention for the purposes of extradition, account must be taken, on a case by case basis, of all the circumstances of the case and that, consequently, the continued detention of a requested person beyond the time-limits stipulated in Article 17 of Framework Decision 2002/584 cannot be regarded as incompatible, in itself and as a matter of principle, with Article 6 of the Charter. Nor may it be inferred from that case-law that the mere fact that the prescribed time-limits have been exceeded points to the conclusion that the procedure has not been conducted with the requisite diligence.

70.

Lastly, and in any event, Framework Decision 2002/584 does not preclude executing judicial authorities from releasing requested persons from custody, either before or after the expiry of the time-limits stipulated in Article 17, in accordance with their domestic law and Article 12 of the Framework Decision.

71.

As regards the second question, the French Government points out that Framework Decision 2002/584 merely provides, in Article 26 thereof, that all periods of provisional detention completed by the requested person in the executing Member State must be deducted from the total period of detention to be served in the issuing Member State. That obligation rests upon the issuing Member State, whether or not the time-limits stipulated in Article 17 have been observed by the executing Member State. Moreover, Framework Decision 2002/584 makes no provision for any right to compensation in respect of failure to observe the time-limits, leaving it to the Member States to provide for such compensation if they choose.

72.

The Netherlands Government proposes that the two questions referred should be answered in the negative. It submits that failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584 is without consequences for the surrender obligation, since that provision merely imposes on executing Member States a duty to act diligently. The time-limits stipulated are clear and should be observed, so as to ensure that the surrender procedure is completed swiftly. Nevertheless, if they are not observed, that is without consequences for the person deprived of his liberty pending a final decision on his surrender.

73.

Framework Decision 2002/584 clearly establishes that failure to observe the time-limits has no repercussions for the obligation to adopt a final decision on surrender. Moreover, Article 17 of Framework Decision 2002/584 confers no rights on requested persons held in custody in the event that the stipulated time-limits are exceeded. If any consequences for the situation of the person detained ensue from failure to observe the time-limits, they are independent of Article 17. The duty to act diligently in managing the situation of persons detained for the purposes of extradition is imposed by national constitutions and by Article 5 of the ECHR. The Charter does not apply, inasmuch as it is the executing judicial authority that is required, in accordance with Article 12 of Framework Decision 2002/584, to adopt a decision on detention, in accordance with national law. Consequently, in a situation such as that in the main proceedings, the national court does not give effect to the rights guaranteed by the Charter.

74.

The Netherlands Government nevertheless submits that the Member States must fulfil their obligation to act diligently with regard to the rights of persons held in custody. From that point of view, such persons should be able to apply for the terms of their detention to be altered, which can equally be decided upon ex officio. It is for the competent national court to assess whether protracted detention remains proportionate, taking into account the risk of the requested person’s absconding. However, the maximum period of 90 days stipulated in Article 17 of Framework Decision 2002/584 cannot be regarded as disproportionate.

75.

The United Kingdom Government, which focussed its oral submissions on the answer to be given to the second question, considers that failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584 does not confer on the requested person any right to be released. It bases its position in this regard on a grammatical interpretation of Article 17, on the preparatory work for the Framework Decision and on its structure, which contains specific rules on the consequences of failure to observe the time-limits.

76.

The United Kingdom Government adds that, even if such a right were to arise from the provisions of Article 17 of Framework Decision 2002/584, quod non, a person who, through his own conduct, causes the delay in question cannot invoke such a right. Any contrary solution would run counter to the objective pursued by the Framework Decision. In any event, even supposing that such a right were to exist, quod non, it could not be invoked before national courts, since, in accordance with the former Article 34(2)(b) TEU, the Framework Decision does not have direct effect.

77.

The United Kingdom Government also emphasises that strict time-limits could undermine the fundamental rights of a person held in custody, inasmuch as he might, as in the case in the main proceedings for example, be surrendered to the issuing Member State before it had been ascertained whether or not his life was actually in danger.

78.

It also emphasises, with respect to the fundamental right to liberty of persons held in custody, that, under national law, the ECHR and — where EU law applies — the Charter, national courts are required constantly to review whether deprivation of liberty is justified. That obligation applies even before the time-limits stipulated in Article 17 of Framework Decision 2002/584 have expired. When carrying out such a review, national courts must assess all the circumstances, including whether the person held in custody has exercised his procedural rights, the risk of his absconding and his chances of being granted bail.

79.

The United Kingdom Government ultimately proposes that the answer to the first question should be that the only consequences which ensue from failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584 are those recognised in the provision itself and that the executing Member State remains bound by the obligation to execute the European arrest warrant notwithstanding the expiry of those time-limits. It proposes that the answer to the second question should be that requested persons have no right to immediate release on the expiry of the time-limits stipulated in Article 17.

80.

The Commission points out, first of all, that Framework Decision 2002/584 replaced traditional extradition procedures with a new, simplified and more effective system for the surrender of persons convicted of an offence or wanted for prosecution that is intended to facilitate and accelerate judicial cooperation with a view to establishing an area of freedom, security and justice within the European Union. That system is founded on the principle of mutual recognition, the cornerstone of judicial cooperation, the fundamental importance of which the Court recognised in Opinion 2/13. ( 17 ) That principle is itself founded on the mutual confidence between the Member States that their respective legal systems are capable of providing equivalent and effective protection of fundamental rights. That implies that the Member States are, in principle, obliged to give effect to European arrest warrants, unless one of the grounds for not executing such a warrant applies. At the hearing, the Commission also emphasised that, by contrast with traditional extradition systems, the European arrest warrant system relied essentially on cooperation between judicial authorities and that political authorities intervened only in order to provide practical and administrative support.

81.

However, the principle of mutual recognition is not intended to establish an automatic regime for recognition and execution, and the presumption that all Member States respect fundamental rights is not a conclusive presumption. ( 18 ) Consequently, in certain cases, the executing judicial authority must be able to rebut that presumption.

82.

The Commission then endeavours to propose answers to the two questions referred by the national court.

83.

The Commission proceeds to carry out an interpretative analysis of the provisions of Articles 15 and 17 of Framework Decision 2002/584 and submits, first of all, that failure to observe the time-limits stipulated in Article 17 does not affect the validity of a European arrest warrant and that the obligation on the executing judicial authority to decide whether the requested person is to be surrendered to the issuing Member State remains, even after the expiry of the time-limits.

84.

It then examines the question whether the concerns expressed by the requested person regarding his safety have an effect on that obligation to reach a decision on surrender. It points out in this connection that the European arrest warrant mechanism may be suspended only in the event of serious and persistent breach by a Member State of the principles set out in Article 6(1) TEU, determined by the Council in accordance with Article 7(1) TEU. It nevertheless observes that the order for reference does not mention such a situation.

85.

It also emphasises that Article 1(3) of Framework Decision 2002/584 refers specifically to the obligation to respect fundamental rights, which could lead to further scrutiny on the part of the executing judicial authority if there are credible allegations of a risk of serious human rights violations following surrender. At the hearing it insisted that, as is clear from Article 15(2) of Framework Decision 2002/584, any such scrutiny must be completed within the time-limits stipulated in Article 17 thereof. It nevertheless points out that the answer provided by the issuing Member State to the requests for information of the executing judicial authority regarding the concerns expressed by the respondent in the main proceedings has not led the executing judicial authority to decide not to execute the European arrest warrant.

86.

It concludes that the obligation on the executing judicial authority to decide whether or not the requested person must be surrendered remains, even after the expiry of the time-limits stipulated in Article 17(2) and (3) of Framework Decision 2002/584.

87.

The Commission considers that the answer to the second question referred by the national court should be that failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584 obliges the executing judicial authority to release persons against whom a European arrest warrant has been issued and who have been held in custody pending a decision on their surrender after the expiry of the time-limits stipulated in Article 17(3) of the Framework Decision unless exceptional circumstances that cannot be imputed to the executing Member State require their continued detention.

88.

It observes, first of all, that the fact that Article 17 of Framework Decision 2002/584 does not, by contrast with the provisions on surrender of Article 23(5) of the Framework Decision, provide for the release of persons held in custody after the expiry of the stipulated time-limits does not imply that continued detention is automatically justified.

89.

First, Article 12 of Framework Decision 2002/584 lays down the general rule that a person held in custody ‘may’ be released provisionally at any time in accordance with the domestic law of the executing Member State, provided that the competent authority takes all the measures it deems necessary to prevent the person absconding. It also points out that its proposal for a Framework Decision contained a provision expressly providing for the immediate release of persons in relation to whom a European arrest warrant has been issued where no decision on their surrender has been taken within a period of 90 days. The fact that the EU legislature did not take up that proposal cannot be interpreted, a contrario, as meaning that there is no duty to release where the time-limits stipulated in Article 17 of the Framework Decision 2002/584 are not observed.

90.

Next, it recalls that, in accordance with Article 1(3) thereof, Framework Decision 2002/584 cannot have the effect of modifying the obligation on the Member States to respect fundamental rights as enshrined in Article 6 TEU and that, in accordance with recital 12 in the preamble thereto, the Framework Decision itself must respect fundamental rights and the principles recognised in Article 6 TEU. Accordingly, it examines the situation in the main proceedings in the light of Article 6 of the Charter, which enshrines the right to liberty and security, in the light of the relevant case-law of the European Court of Human Rights relating to Article 5 of the ECHR, in particular, Article 5(1)(f) concerning detention with a view to extradition, Article 5(3), which enshrines the right to trial within a reasonable period or to be released pending trial, and Article 5(4), which enshrines the right to have the lawfulness of detention reviewed speedily by a court.

91.

The Commission emphasises in this connection, first of all, that the specific mechanism of the European arrest warrant established by Framework Decision 2002/584 is a relevant factor that must be taken into consideration when determining whether the duration of provisional detention with a view to surrender is reasonable. In the present case, the EU legislature decided that the final decision on the execution of a European arrest warrant must be taken by the executing judicial authority within 60 days, that period being regarded as sufficient in the context of cooperation between Member States founded on mutual trust and of limited review of executing judicial authorities. It was only for specific cases that the EU legislature provided for an additional period of 30 days, and that should also be a factor in the assessment of the reasonableness of the period of detention.

92.

The obligation on the executing judicial authority to deal with and execute European arrest warrants as a matter of urgency, in accordance with Article 17(1) of Framework Decision 2002/584, corresponds, in so far as concerns the detention of requested persons, to the requirements of Article 5(4) of the ECHR. Consequently, as long as the executing judicial authority acts diligently within the time-limits, the detention of a requested person will be prima facie compatible with the requirement to act within a reasonable time. However, the time-limits are maxima and no unjustified delay is allowed. Conversely, once the time-limits have expired, the detention of a requested person will be prima facie incompatible with the requirement to act within a reasonable time and the necessary conditions for the ‘lawfulness’ of that detention will consequently be absent.

93.

The detention of requested persons beyond the time-limits stipulated in Article 17 is justified only in exceptional circumstances that cannot be imputed to the executing Member State. The only such circumstance identified by the Court of Justice to date (in its judgment in F. ( 19 )) is a request for a preliminary ruling. When asked to clarify this point at the hearing, the Commission stated that, according to its interpretation of the judgment in F., any period of detention longer than the maximum period of 90 days, in the absence of exceptional circumstances within the meaning of Article 17(7) of Framework Decision 2002/584, was unlawful. The fact that the legislature did not specify such a consequence in the Framework Decision is irrelevant, since the right to liberty is, and remains, applicable.

94.

The circumstances of the case in the main proceedings are characterised by a provisional detention lasting almost 30 months, that is, 10 times longer than the maximum period authorised by Article 17 of Framework Decision 2002/584. It is the executing Member State that is responsible for the excessive lapse of time, caused by unjustified delays in the procedure. The Commission cites in this connection the length of the procedure for the endorsement of the European arrest warrant and the successive adjournments of the surrender hearing, the adversarial nature of the surrender hearing, which is not provided for in the Framework Decision, and the repeated periods of inactivity on the part of the executing judicial authority, including four and a half months between hearing and delivering judgment on the preliminary issues and four months between the decision to make a reference to the Court for a preliminary ruling and the actual order for reference.

95.

The Commission concludes that the continued detention of the requested person in the case in the main proceedings is incompatible with the obligation to act expeditiously and that the executing judicial authority must release him, unless exceptional circumstances that cannot be imputed to the executing Member necessitate his continued detention, albeit that such circumstances are not present in this case. At the hearing, the Commission added that, in any event, the obligation to execute the European arrest warrant, like the obligation to comply with the provisions of Articles 12 and 17(5) of Framework Decision 2002/584, remains and consequently, if the deprivation of liberty cannot be prolonged, alternative solutions, entailing a lesser restriction of the requested person’s liberty, must be adopted in order to attenuate the risk of his absconding.

96.

It adds that the executing Member State cannot rely on constitutional rules relating to due process, mentioned in recital 12 in the preamble to Framework Decision 2002/584, in order to justify its failure to observe the time-limits stipulated in Article 17 of the Framework Decision. Indeed, the Court has held, in its judgment in Melloni, ( 20 ) that the application of national standards of protection of fundamental rights must not compromise the level of protection provided for by the Charter or the primacy, unity and effectiveness of EU law.

97.

In the present case, as I have already mentioned, questions concerning the interpretation of Framework Decision 2002/584 have been referred by the High Court to the Court of Justice for a preliminary ruling very shortly after the expiry, on 1 December 2014, of the transitional period of five years provided for by Protocol No 36 on Transitional Provisions, in accordance with Article 10(1) of that protocol. Prior to that date, since Ireland had not made the relevant declaration, Irish courts were, in accordance with the provisions of Article 35(2) TEU in the version prior to the entry into force of the Lisbon Treaty, unable to refer questions to the Court concerning the interpretation of framework decisions, in particular those adopted under Title VI TEU concerning police and judicial cooperation in criminal matters.

98.

As the referring court itself states in its order for reference, it had been, up to that time, bound in its interpretation of national legislation and of Framework Decision 2002/584 by the decisions of the Supreme Court, including its ruling in Dundon. Therefore, although it states that it is, in principle, minded to follow that decision, the High Court regards it as appropriate to have the Court of Justice’s interpretation of the relevant provisions of Framework Decision 2002/584 and, more specifically, that it ascertain the consequences which, according to the Court of Justice, ensue from failure to comply with the time-limits stipulated in Article 17 of the Framework Decision for the adoption of a final decision on the execution of a European arrest warrant. At the same time, it asks for the urgent preliminary ruling procedure, under Article 107 of the Rules of Procedure of the Court, to be applied.

99.

It is well to mention that context, since it explains why the Court is, in this case, being called on to rule on a number of very elementary aspects of the European arrest warrant some 10 years after it first came into use, in the context of a case that has been pending before the High Court for almost 30 months.

100.

It should also be mentioned that the European arrest warrant was established by means of a framework decision, an act which, under primary law, ( 21 ) initially had no direct effect and one which continues to have no direct effect in accordance with Article 9 of Protocol No 36 on Transitional Provisions. I would simply recall in this connection that the Court has held that, in view of their binding nature, Framework Decisions place on national authorities and national courts an obligation to interpret national law in conformity. ( 22 )

101.

As I have already mentioned, this is of course not the first case concerning the interpretation ( 23 ) or the validity ( 24 ) of Framework Decision 2002/584 to come before the Court of Justice. Consequently, it is not the first time that the Court has been called upon to express, in general terms, its opinion on the importance of this act, which came into being almost 13 years ago in the context of the former ‘third pillar’. ( 25 ) Having said that, and given the content of the questions referred to the Court for an urgent answer, it seems to me appropriate to make a few observations of a general nature regarding the European arrest warrant, a measure which is described in recital 6 in the preamble to Framework Decision 2002/584 as ‘the first concrete measure in the field of criminal law implementing the principle of mutual recognition’ and the ‘“cornerstone” of judicial cooperation’.

102.

The European arrest warrant and the procedures for surrender between the Member States established by Framework Decision 2002/584 replaced the various extradition procedures ( 26 ) that existed until 31 December 2003. ( 27 ) Consequently, the time-honoured instruments for extradition between State authorities ceased to exist as between the Member States and a new system based on direct cooperation between judicial authorities came into being.

103.

As the Court has repeatedly emphasised, it is clear, in particular from Article 1(1) and (2) of Framework Decision 2002/584 and from recitals 5 and 7 in the preamble thereto, that the purpose of the decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of conducting prosecutions, that system of surrender being based on the principle of mutual recognition. ( 28 )

104.

Framework Decision 2002/584 thus seeks, by the establishment of a new, simplified and more effective system for the surrender of persons convicted of or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the objective set for the European Union of becoming an area of freedom, security and justice by basing itself on the high degree of confidence which should exist between the Member States. ( 29 ) As is underscored in recital 10 in the preamble to Framework Decision 2002/584, ‘the mechanism of the European arrest warrant requires a high degree of confidence between the Member States’. ( 30 )

105.

The European arrest warrant is thus a new creation, unique and peculiar to the European Union. ( 31 ) It is a new instrument in the sense that it is unlike traditional mechanisms whereby requested persons are handed over by one Member State to another, and it is of a different nature from the extradition procedures which it replaced. The categories specific to extradition are consequently of only relative value when considering this new instrument of judicial cooperation. It is vital to bear those factors in mind when addressing issues of interpretation of Framework Decision 2002/584.

106.

It is also unique in that, leaving aside the characteristics of the framework decision as a normative instrument, it establishes a uniform regime in all the Member States. The European arrest warrant has thus become a first-rate tool in judicial cooperation between Member States in criminal matters and its underpinning by the principle of mutual confidence is essential.

107.

It is also peculiar to the European Union inasmuch as it is the EU legislature that, by means of a framework decision, devised it, creating an obligation on each Member State to introduce it into its domestic law. The adjective ‘European’ which accompanies every mention of the arrest warrant instituted by Framework Decision 2002/584 is a constant reminder of its European Union provenance.

108.

Lastly, the fact that it may in some cases have been necessary to effect constitutional reforms in order to implement this instrument ( 32 ) and that its introduction excited pronouncements from the highest courts of the Member States, including constitutional courts where they exist, ( 33 ) says a great deal about its importance in the various national constitutional systems ( 34 ) and ultimately for the European Union itself.

109.

Next, it is important to point out that, under the provisions of Framework Decision 2002/584, the surrender of a requested person on the basis of a European arrest warrant takes place in two distinct phases. Once the European arrest warrant has been drawn up by the issuing judicial authority in accordance with the requirements as to content and form laid down in Article 8 of Framework Decision 2002/584 and, where necessary, translated into the language of the executing Member State, it is transmitted in accordance with the procedure laid down in Article 9 or Article 10, depending on the circumstances of the case. Once a requested person has been arrested in a Member State on the basis of a European arrest warrant, the remainder of the procedure falls into the separate phases of the adoption by the executing judicial authority of a final decision on the execution of the European arrest warrant (that being the issue in the case in the main proceedings) and, where the surrender request is acceded to, the actual surrender of the requested person to the issuing Member State.

110.

In the first phase, the executing competent judicial authority must, in accordance with Article 11 of Framework Decision 2002/584, inform the requested person of the European arrest warrant and of its content and also of the possibility of consenting to surrender to the issuing judicial authority. It must then adopt a final decision on the execution of the European arrest warrant, in accordance with the provisions of Articles 13 to 21 of the Framework Decision, and that final decision must be notified to the issuing judicial authority in accordance with Article 22 thereof.

111.

If the executing judicial authority decides to surrender the requested person to the issuing Member State it must do so as soon as possible after adopting the final decision on the execution of the European arrest warrant and in accordance with the procedure and conditions laid down in Articles 23 and 24 of the Framework Decision. If the person requested cannot be surrendered within the period prescribed in Article 23(2) and (4) and is still being held in custody, he must, in accordance with Article 23(5), be released.

112.

The present case concerns only the time-limits in which the first phase, involving the adoption of the final decision on the execution of a European arrest warrant, must be completed, in accordance with Article 17 of Framework Decision 2002/584.

113.

It may also be emphasised that the provisions of Article 17 of Framework Decision 2002/584 taken together establish a complete scheme for the adoption by executing judicial authorities of final decisions on the execution of European arrest warrants, the central element of which is the stipulation of the time-limits.

114.

After stating (in paragraph 1) that European arrest warrants must be ‘dealt with and executed as a matter of urgency’, Article 17 then fixes the alternate time-limits within which that decision must be adopted according to whether or not the requested person consents to his surrender, the first being 10 days after consent is given (paragraph 2) and the second being 60 days after the person’s arrest (paragraph 3), albeit that an exception is provided for.

115.

Indeed, where in specific cases the European arrest warrant cannot be executed within the time-limits of 10 and 60 days, those time-limits may be extended by a further 30 days, in which case the executing judicial authority must immediately and directly inform the issuing judicial authority and give the reasons for the delay (paragraph 4). A situation in which the person requested opposed his surrender on the ground that his life or safety would thereby be endangered may certainly constitute such a specific case and one which would require the executing judicial authority to carry out the necessary inquiries, ( 35 ) where appropriate, requesting the issuing Member State to furnish supplementary information as a matter of urgency, pursuant to Article 15(2) of the Framework Decision.

116.

In any event, pending the adoption of the final decision the executing Member State must ensure that the material conditions necessary for effective surrender of the person requested remain fulfilled (paragraph 5).

117.

The obligation to act expeditiously which flows from those first provisions is obviously without prejudice to those cases in which it is necessary for surrender to be refused in accordance with Articles 3, 4 and 4a of Framework Decision 2002/584, whereupon the executing judicial authority must adopt a decision not to execute the European arrest warrant. Such a decision must be duly reasoned and must, it appears, be taken within the stipulated time-limits (Article 17(6)).

118.

Lastly, Article 17(7) of Framework Decision 2002/584 envisages two anomalous situations. The first sentence of Article 17(7) provides for exceptional circumstances where a Member State ‘cannot’ observe the prescribed time-limits. The second sentence addresses the case where a Member State repeatedly fails in its obligations towards another Member State, that is to say, where there are repeated delays in the execution of European arrest warrants.

119.

By fixing the time-limits ( 36 ) within which the final decision on the execution of a European arrest warrant must be taken, and at the same time defining the obligations on executing judicial authorities in the event that they are unable to comply with those time-limits in specific cases and on executing Member States in the event that they are unable to ensure that the time-limits are observed, the provisions of Article 17 establish a comprehensive scheme that is designed to govern any situation that might arise, regardless of whether or not the requested person is held in custody. That is without prejudice to the possibility of making a reference to the Court for a preliminary ruling during the course of the procedure for the adoption of a final decision on the execution of a European arrest warrant. ( 37 )

120.

Before proceeding to analyse the two questions referred by the High Court, it seems to me necessary to make a number of observations on the degree to which the problems which they raise overlap. The first question raises the simple issue of the effects of a failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584, read in conjunction with Article 15 thereof, for the adoption by the executing judicial authority of a final decision on the execution of a European arrest warrant. The second question contemplates the same situation, failure to observe the time-limits, and introduces two further factors: the circumstance that the European arrest warrant has resulted in the requested person’s being placed in custody and the characterisation of the effects of the failure to comply with the time-limits in question in terms of ‘rights’ for the person requested and held in custody.

121.

It is in fact difficult to answer the first question in isolation, that is to say, without taking account of the fact that the requested person may find himself deprived of his liberty as a result of the application for his surrender. However, I do think it possible to keep the two questions separate, in the formulation proposed by the referring court, by answering the first question as if the individual liberty of the requested person were not in issue. Accordingly, it is the mutual duties of the Member States that will be at the forefront of my analysis of the first question. Thus, only on answering the second question will I address the fact that the person requested is held in custody pending the execution of the European arrest warrant issued in relation to him. It nevertheless seems to me essential to emphasise that the Member States’ observance of the mutual undertakings which they gave on the adoption of Framework Decision 2002/584 and the respect for fundamental rights which its implementation calls for must both be preserved.

122.

I should also add that I will examine only the two questions referred by the national court for a preliminary ruling. Admittedly, the respondent in the main proceedings has, throughout the procedure for the execution of the European arrest warrant, raised the issue of the threat that his surrender to the issuing Member State poses to his life, the matter of proving the existence of such a risk lying at the heart of his allegations and leading him to ask the Court to answer additional questions. The High Court’s examination of that risk is also one of the factors that explains, if not justifies, the fact that it has still not adopted a final decision on surrender.

123.

However, it hardly need be said that the questions as formulated by the national court are the only ones that the Court is required to answer and that it is not required to take those proposed by the respondent in the main proceedings into account. In the context of the procedure provided for by Article 267 TFEU, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine, in the light of the particular facts of each case, both the need for a preliminary ruling in order to be able to deliver judgment and the relevance of the questions which they refer to the Court, the parties having no entitlement to alter the wording of those questions. ( 38 )

124.

To answer any additional questions mentioned by the parties to the main proceedings in their observations would moreover be incompatible with the Court’s function under Article 267 TFEU and with its duty to ensure that the governments of the Member States and the parties concerned are given the opportunity to submit observations under Article 23 of the Statute of the Court of Justice, bearing in mind that under that provision only the order of the referring court is notified to the interested parties. ( 39 )

125.

By its first question, the referring court seeks clarification from the Court of Justice, in very generic terms, as to the effect of the failure, on the part of the Member State executing a European arrest warrant, to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584.

126.

The generic nature of that question is, however, more apparent than it is real. It is clear from the explanations provided by the referring court that what is ultimately being asked is whether a European arrest warrant expires with the time-limits within which the executing judicial authority, is this instance the High Court itself, is required to adopt a final decision, be that positive or negative, on the execution of that warrant.

127.

However, that is not, in fact, the only issue which arises. In a situation in which Framework Decision 2002/584 does not state the effect of a failure to observe the time-limits which it stipulates in its Article 17, the first question to be answered, since it has been raised, is whether those time-limits are binding. I shall thus, first of all, examine that question before moving on to examine the possible consequences of a failure to observe those time-limits.

128.

It should be noted, incidentally, that the time-limits do not merely serve to ensure the swiftness of criminal justice. They also contribute, in a very particular way in circumstances such as those in the case in the main proceedings, to ensuring that the requested person, who benefits from the presumption of innocence, may be brought promptly before the courts of the issuing Member State.

129.

The issue as to the binding nature of the time-limits stipulated in Article 17 of Framework Decision 2002/584 for executing Member States arises from the very question referred by the national court. The order for reference takes as its starting point the interpretation given to that provision by the Supreme Court in its judgment in Dundon, which was appended to the order for reference. In that case, the Supreme Court held ( 40 ) that a person remanded in custody temporarily pursuant to a European arrest warrant had no entitlement in law to his immediate release upon expiry of the time-limits stipulated in Article 17 of Framework Decision 2002/584; those time-limits were established with a view to instilling ‘internal discipline within the Member States’ and not with a view to conferring individual rights. It further concluded that the High Court still had a duty to execute the European arrest warrant in spite of the expiry of those time-limits.

130.

All of the observations made before the Court of Justice defend the same line of argument, albeit with certain nuances. The same arguments were raised repeatedly, in particular the fact that Article 17(2) and (3) of Framework Decision 2002/584 stipulate those time-limits using the conditional tense, which is not used in other provisions, the fact that Article 17 does not contain any express provisions equivalent to those of Article 23(5), contrary to what the Commission had originally proposed ( 41 ) and, finally, the interpretation of Article 17 adopted by the Court of Justice in its judgment in F., ( 42 ) in particular in paragraph 64 thereof.

131.

I do not fully share those points of view for the following reasons.

132.

First, the grammatical argument needs to be placed in context.

133.

It is true that Article 17(2) and (3) of Framework Decision 2002/584 states that the final decision on the execution of the European arrest warrant ‘should’ ( 43 ) be taken within a period of either 10 days or 60 days. However, Article 17(1) of the Framework Decision states, in imperative terms, that a European arrest warrant ‘shall be dealt with and executed as a matter of urgency’. Article 15(1) states, using the indicative, that the executing judicial authority ‘shall decide’, within the time-limits and under the conditions defined in Article 17, whether the person is to be surrendered. The use of the conditional tense must, therefore, essentially be understood as referring to the exceptional circumstances in which the executing Member State cannot observe the time-limits provided for in Article 17(7).

134.

Secondly, I consider that the Court’s interpretation of Article 17 in its judgment in F. ( 44 ) cannot be understood as relativising the binding nature of the time-limits established in that provision. In that judgment, the Court points out, first of all, that Article 17(1) of Framework Decision 2002/584 provides that the European arrest warrant is to be ‘dealt with and executed as a matter of urgency’ and that Article 17(2) and (3) ‘prescribe precise time-limits’. ( 45 ) Next, it refers to paragraphs 4 and 7 of Article 17, which, respectively, allow the time-limits to be extended in specific cases and not to be observed in exceptional circumstances. ( 46 ) Moreover, it stresses, on the one hand, that ‘the importance of the time-limits set by Article 17 is seen not only in that article but also in other provisions of the Framework Decision’ ( 47 ) and places in context, on the other hand, the significance of the evolution of the wording of Article 17 of the Framework Decision which, in the Commission’s original proposal, did not use the conditional tense but the indicative. ( 48 )

135.

Finally, it concludes those developments by finding that ‘the time-limits prescribed in Article 17 of the Framework Decision must be interpreted as requiring the final decision on the execution of the European arrest warrant to be taken, in principle, either within 10 days from consent being given to the surrender of the requested person, or, in other cases, within 60 days from his arrest. Only in specific cases may those periods be extended by an additional 30 days, and only in exceptional circumstances may the time-limits prescribed in Article 17 not be complied with by a Member State’, ( 49 ) namely if the competent national court decides to make a reference to the Court of Justice for a preliminary ruling. ( 50 )

136.

Thirdly, the devaluation of the importance of the time-limits fixed by Article 17 of Framework Decision 2002/584 would considerably weaken the practical effect of that provision, and could seriously compromise the attainment of the objectives pursued by the Framework Decision.

137.

That being said, I none the less consider it necessary to acknowledge that the strictly binding nature of the time-limits stipulated in Article 17 of Framework Decision 2002/584 may be relativised to a certain degree. The European arrest warrant is an instrument of judicial cooperation between the Member States which is of such novelty that it would not be prudent to answer that question solely in relation to Article 17(7). Nevertheless, it should be pointed out immediately that such relativisation cannot, in any way, lead to the conclusion that those time-limits act merely as an incentive and are intended to urge Member States to execute European arrest warrants swiftly.

138.

The degree to which the time-limits stipulated in Article 17 of Framework Decision 2002/584 are binding having been stated, it is now necessary to turn to the analysis of the first of the questions of the referring court. May it be considered that the failure to observe those time-limits leads to the expiry of a European arrest warrant?

139.

The question raised by the referring court concerns the effect of the failure to observe those time-limits in relation to the arrest warrant at issue in the main proceedings, that is to say whether the effects of that warrant continue. In that regard and leaving aside the impact of the scenario — which is no doubt frequent, in the light of Article 12 of Framework Decision 2002/584 — in which the requested person has been remanded in custody, the failure to observe those time-limits cannot lead to the expiry of the European arrest warrant. Such an outcome would presuppose that the executing Member State has the option to adopt either a negative decision refusing surrender, which is explicit and reasoned in accordance with the requirements laid down in Articles 3, 4, 4a and 17(5) of Framework Decision 2002/584, or a final, implied decision, resulting from its silence or inactivity. However, such an extreme outcome is most certainly not provided for in Framework Decision 2002/584 and cannot be admitted without irreparably compromising the practical effect of Framework Decision 2002/584 and thus seriously undermining the aim pursued by it.

140.

Moreover, as is apparent from both a literal and systematic reading of the second subparagraph of Article 17(7) of Framework Decision 2002/584, possible ‘delays’ in the execution by a Member State of European arrest warrants do not free that Member State of its obligation to adopt a final decision one way or the other. In merely stating that repeated delays of an executing Member State are to be ‘dealt with’, that provision confirms implicitly that, in any event, the Member State is always expected to adopt final decisions.

141.

Consequently, I consider that the answer to be given to the first question referred by the national court is that Article 17 of Framework Decision 2002/584 must be interpreted as meaning that the failure to comply with the time-limits stipulated therein and within which a final decision on the execution of a European arrest warrant should be adopted cannot lead to the expiry of the arrest warrant itself, it being clear that the effects of a European arrest warrant continue irrespective of the consequences which the taking into account of a potential deprivation of liberty may have on the enjoyment by the requested person of his fundamental rights. The executing judicial authority, and more broadly the executing Member State, thus remain required, in spite of the expiry of those time-limits, to adopt a decision in that regard.

142.

The High Court asks, second, whether the fact that the time-limits stipulated in Article 17 of Framework Decision 2002/584 for the adoption of a final decision on the execution of a European arrest warrant were not observed by the executing judicial authority gives rise to rights on the part of the requested person who has been remanded in custody pending that decision.

143.

As I have already stated, that second question refers to the same situation as that concerned by the first question, namely the situation in which an executing judicial authority has allowed the time-limits stipulated in Article 17 of Framework Decision 2002/584 to expire without adopting a final decision on the execution of a European arrest warrant, either by acquiescing to the request for surrender or by rejecting it on justified grounds. The essential difference between the two questions resides in the fact that, by the second question, the Court is requested to take account of the fact that, in response to a European arrest warrant issued by the issuing Member State, the executing judicial authority remanded the requested person in custody, pursuant to Article 12 of Framework Decision 2002/584, without that situation having changed after the expiry of those time-limits. In order to correctly delineate that question, two preliminary observations need to be made.

144.

First of all, and as has already been pointed out, a European arrest warrant may, in accordance with Article 1(1) of Framework Decision 2002/584, be issued with a view to the arrest and the surrender of the requested person for two distinct purposes, ( 51 ) namely for the purposes of executing a custodial sentence or detention order, or for the purposes of conducting a criminal prosecution, so that that person may be tried and, where appropriate, prosecuted for the offences set out in the European arrest warrant which he is presumed to have committed. ( 52 )

145.

The case in the main proceedings falls within the second hypothesis, even though that does not result expressly from the wording of the second question referred. The issuing Member State seeks the surrender of the respondent in the main proceedings for prosecution purposes for the alleged offences of murder and possession of a firearm with intent to endanger life.

146.

I deem it necessary to take that fact into consideration in the answer to be given to the second question referred. The holding of a person in custody is not as serious in a situation where that person has already been sentenced to a custodial sentence pursuant to a final court decision as it is in a situation where that person has not yet been tried and thus benefits from the presumption of innocence. ( 53 ) It is sufficient, in that regard, to refer to Article 26 of Framework Decision 2002/584, which 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. Although the person surrendered to the issuing Member State to be tried may, indeed, subsequently be given a custodial sentence, the total duration of which may be reduced by the duration of temporary custody incurred in the executing Member State pending surrender, in accordance with that article, it cannot, however, be ruled out that that person will ultimately be acquitted in the issuing Member State, in which case Article 26 would not be applicable.

147.

Coming back to the question referred by the national court, it should be noted that that court raises the possibility that the failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584 may give rise to ‘rights’ — expressed as generically as possible — on the part of the requested person who has been remanded in custody. Of course, one must agree in this respect with those who advocate that Framework Decision 2002/584, in particular Article 17 thereof, does not mention any subjective rights whatsoever on the part of the person remanded in custody pursuant to a European arrest warrant arising from the expiry of the time-limits stipulated therein without a final decision on the execution of the arrest warrant having been taken. Article 17(5) refers, at best, to the guarantee that ‘the material conditions necessary for effective surrender of the person remain fulfilled’.

148.

That said, the mere express reference, in the question of the referring court, to a situation in which a requested person has been remanded in custody, in conjunction with the reference to the failure to observe the time-limits stipulated for the adoption of a final decision on the execution of a European arrest warrant, is sufficient to give rise to the question of rights and freedoms. This is thus the very essence of the second question referred and may be simply formulated as follows: what are the consequences, for a person who has been remanded in custody pursuant to a European arrest warrant, of the expiry of the time-limits stipulated for the adoption of a final decision on the execution of that warrant?

149.

What is at issue is the deprivation of the right to individual freedom of a person, in the situation in the main proceedings, to whom the presumption of innocence applies. That situation may, most certainly, be perfectly legitimate under EU law, as it may under the domestic law of the Member States or in the context of the ECHR. However, that situation may be lawful only under certain conditions, which is no doubt also the case under EU law. Consequently, Framework Decision 2002/584, like any other provision of EU law, must be interpreted in the light of fundamental rights. This also results from recital 12 in the preamble to the Framework Decision and Article 1(3) thereof.

150.

Member States are indeed required to implement Framework Decision 2002/584 by means of national legal instruments, without encroaching upon fundamental rights. Recital 12 in the preamble thereto makes a broad reference, in the second paragraph thereof, to the ‘constitutional rules’ of the Member States. Moreover, the Framework Decision, by its very nature, leaves the Member States discretion as to the specific manner of implementation of the objectives it pursues. ( 54 ) The situation at issue in the main proceedings is thus comparable to that raised in paragraph 29 of the judgment in Åkerberg Fransson, ( 55 ) where action of the Member States is not entirely determined by EU law. In that situation, although the court of the Member State called on to assess the conformity with fundamental rights of a national provision or measure remain free to apply national standards of protection of fundamental rights, that application cannot compromise the level of protection provided for in the Charter, as interpreted by the Court, nor the primacy, unity and effectiveness of EU law. ( 56 )

151.

In reasoning in this way, a finding that the Member State placed in the situation of the dispute in the main proceedings must be regarded as implementing EU law, within the meaning of Article 51(1) of the Charter and as follows from the Court’s settled case-law, strikes me as undeniable. ( 57 ) Both the national legislation adopted to transpose Framework Decision 2002/584 and the carrying out of the surrender procedure by the executing judicial authority amount to an implementation of EU law within the meaning of Article 51(1) of the Charter, since the European arrest warrant is ultimately a creation of the European Union. In the context of a European arrest warrant, Framework Decision 2002/584 is, in particular, the legal basis and foundation on which a Member State may order and maintain a measure of deprivation of liberty in relation to a requested person for the purposes of conducting a criminal prosecution in his regard. ( 58 ) In principle, the presumption of innocence applies to that person, at least in so far as concerns the offences in relation to which he is requested and in respect of which a European arrest warrant has been issued.

152.

It follows from the foregoing that, in the circumstances of the main proceedings, Framework Decision 2002/584 and Article 17 thereof in particular must be interpreted in the light of the Charter, that the Charter is applicable to the Member States and that acts of the national authorities adopted to implement the Framework Decision must be interpreted in conformity with it. ( 59 )

153.

In this instance, interpreting Framework Decision 2002/584 in the light of the Charter is tantamount, in the circumstances of the main proceedings, to interpreting it in accordance with the requirements of Article 6 thereof, which guarantees, in lapidary terms, the right to liberty.

154.

The Explanations relating to the Charter of Fundamental Rights ( 60 ) concerning that provision refer directly to the very wording of Article 5 of the ECHR, which is much more explicit, which they reproduce in its entirety. Those Explanations also state that the rights enshrined in Article 6 of the Charter must be respected ‘particularly’ when the European Parliament and the Council adopt legislative acts in the area of judicial cooperation in criminal matters, on the basis of Articles 82 TFEU, ( 61 ) 83 TFEU and 84 TFEU.

155.

Article 5 of the ECHR contains two provisions of importance to the case in the main proceedings, namely, first, paragraph (1)(f) on extradition, which is objectively speaking the most similar to the surrender procedure of Framework Decision 2002/584 and, second, paragraph (4), under which everyone who is deprived of his liberty is to be entitled to take proceedings by which the lawfulness of his detention is to be decided speedily by a court.

156.

Article 5(1)(f) of the ECHR has given rise to copious case-law at the European Court of Human Rights, to which I shall refer when appropriate. I must first, however, begin with the following observation.

157.

It is essentially the case-law of the European Court of Human Rights on extradition procedures and thus Article 5(1)(f) of the ECHR which is most relevant for the assessment of the situation in the main proceedings, with the result that it is indispensable to take it as a starting point. That being said, it must not be forgotten that, as I have already stated, the European arrest warrant is not a mere variant to extradition procedures. The consequence is that it is not always necessary, nor always sufficient, merely to assess compliance with the case-law on extradition of the European Court of Human Rights. Criteria, such as the reasonable duration of the procedure, its complexity, the conduct of the requested person, and the absence of a period of judicial inactivity, which we shall see immediately, are without a doubt relevant, in particular in a case where the question referred by the national court merely requests the Court to assess a situation of provisional custody which has existed for the past 30 months. However, it should not be ruled out that the interpretation of the requirements deriving from the right to liberty in the context of a different instrument, such as the European arrest warrant, may require a stricter approach in the light of the failure to observe the time-limits stipulated in Article 17 of Framework Decision 2002/584.

158.

Article 5(1)(f) of the ECHR authorises the Member States to restrict the liberty of any person against whom action is being taken with a view to extradition. That provision empowers the European Court of Human Rights with the task of assessing the ‘lawfulness’ of the detention of a person against whom action ‘is being taken’ with a view to extradition, it being pointed that only an on-going extradition procedure justifies, in such a case, the deprivation of liberty. ( 62 )

159.

To the best of our knowledge, the European Court of Human Rights is yet to give a formal ruling on the applicability of Article 5(1)(f) of the ECHR to provisional detention ordered in accordance with a provision of national law transposing Article 12 of Framework Decision 2002/584. However, there can be little doubt, with the caveat set out in point 157 above, that the provisional detention ordered in the context of the execution of a European arrest warrant, comparable to detention for the purposes of extradition, falls, in principle, ( 63 ) within the provisions of that article. ( 64 )

160.

To be compliant with Article 5(1)(f) of the ECHR, the detention with a view to extradition must therefore, first of all, be ‘lawful’ and in accordance with a ‘procedure prescribed by law’, that is to say, decided in conformity with the substantive and procedural norms applicable to the interested parties, whether norms laid down in national legislation or those originating from international law ( 65 ) or EU law. ( 66 ) However, as essential as it may be, the ‘lawfulness’, within the meaning of that provision, of the detention under domestic law is not decisive. ( 67 ) It must, moreover, be in accordance with the aim pursued by that article, which is to protect individuals from arbitrariness. ( 68 )

161.

From both those perspectives, the European Court of Human Rights has repeatedly stated, on the one hand, that, although it is primarily for the national authorities, and in particular the national courts, to interpret and apply national law, it could and should also, since in the light of Article 5(1) of the ECHR a failure to observe national law constitutes an infringement of the Charter, carry out a certain degree of review to ascertain whether national law has been complied with. ( 69 ) It has stated, on the other hand, that it should also ensure that national law is in conformity with the ECHR, including the principles set out therein or implied by it, ( 70 ) namely the principle of the rule of law and, connected to the latter, that of legal certainty, the principle of proportionality and the principle of protection against arbitrariness, which is, moreover, the very aim of Article 5. ( 71 )

162.

The European Court of human Rights insists, in that regard, on the fact that, where deprivation of liberty is at issue, it is particularly important to satisfy the general principle of legal certainty. Consequently, it is essential that the conditions for the deprivation of liberty under national law ( 72 ) and/or international law ( 73 ) are clearly defined and that the application of the law itself is foreseeable, so as to satisfy the criterion of ‘lawfulness’ imposed by the ECHR ( 74 ) and to satisfy the requirement of ‘quality of the law’, which is a requirement inherent in all of the provisions of the ECHR.

163.

May it be considered, in the light of the case-law of the European Court of Human Rights, that the mere expiry of the time-limits stipulated in Article 17 of Framework Decision 2002/584 means that the detention of the requested person is no longer lawful and that that person must be released immediately? I do not share the Commission’s view in this respect. I do not believe that such a radical consequence may be drawn. In particular, it do not believe it can be argued that the mere expiry of the time-limits stipulated in Article 17 of Framework Decision 2002/584 immediately renders unlawful, thereby rendering it incompatible with the right to liberty guaranteed by Article 6 of the Charter, a deprivation of liberty ordered in execution of a European arrest warrant.

164.

First of all, the holding of a person in custody may be justified by circumstances other than the European arrest warrant. The holding of a requested person in custody in execution of a European arrest warrant issued in relation to that person may appear to be perfectly justified on a basis other than that European arrest warrant, either because the person concerned has been sentenced to a custodial sentence in accordance with a final court decision, or because that person is involved in other court proceedings in the executing Member State for charges other than those set out in the European arrest warrant issued in his regard and has been remanded in provisional custody pending judgment, in both cases in accordance with the law of the executing Member State; both of these hypothesis are set out, namely, in Article 24 of Framework Decision 2002/584.

165.

Next, it is possible that exceptional circumstances have prevented a final decision on the execution of a European arrest warrant from being adopted, as is indeed envisaged in Article 17(7) of Framework Decision 2002/584. Three, almost self-evident, precisions need to be made, however, in that regard. First, the very nature of exceptional circumstances means that the possibility for a Member State to rely on such circumstances cannot become a routine practice barely justified on formal grounds. Next, the information which the executing Member State must communicate to Eurojust cannot be viewed as granting that State carte blanche to maintain a situation of deprivation of liberty indefinitely. Finally, and as the Commission submitted in its observations, those exceptional circumstances cannot be imputable to the executing Member State. In particular, the clause contained in Article 17(7) of Framework Decision 2002/584 cannot be viewed as serving to remedy the detailed procedural rules established by a Member State the implementation of which would almost inevitably result in the failure to comply with the time-limits stipulated in Article 17 thereof. It is for national law to adapt to what is stipulated in the Framework Decision, not the contrary.

166.

Finally, and quite apart from the existence of exceptional circumstances rendering materially impossible the adoption of a final decision on the execution of a European arrest warrant within the time-limits stipulated in Framework Decision 2002/584, it cannot be excluded entirely that circumstances may arise which make it possible to justify a delay, albeit a moderate one and in isolated cases, provided that the final decision is finally on the verge of being adopted. The reservation relating to the existence of a reference for a preliminary reference referred to by the Court in its judgment in F. ( 75 ) follows this logic.

167.

In the light of the foregoing analysis, the release of the requested person cannot, therefore, constitute the inescapable consequence of the expiry of the time-limits stipulated in Article 17 of Framework Decision 2002/584. That assertion constitutes the first limb of the answer to the second question referred by the national court.

168.

It cannot be considered, however, that the issue of compliance with Article 5 of the ECHR, as integrated into Article 6 of the Charter, has been dealt with by this first finding. Article 5 of the ECHR also has a paragraph (4), which entitles the person being held in execution of a European arrest warrant to challenge his continued detention. More precisely, Article 5(4) of the ECHR provides that ‘everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. That provision has been incorporated into Article 6 of the Charter, both by means of Article 52(3) of the Charter and the express reference made thereto by the Explanations relating to the Charter of Fundamental Rights, especially in the area of judicial cooperation in criminal matters, and has a certain impact in the main proceedings.

169.

The European Court of Human Rights has had the opportunity to point out, as noted by the Court in its judgment in F., ( 76 ) that that provision is also applicable in the area of extradition, ( 77 ) as a lex specialis in relation to the more general requirements of Article 13 of the ECHR ( 78 ) and that the fact that there was no failure to comply with the requirements of Article 5(1) of the ECHR did not dispense it of its obligation to ensure compliance with Article 5(4) of the ECHR. The two provisions in fact differ, in that compliance with the former does not necessarily guarantee compliance with the latter ( 79 ) and the finding of an infringement of the former does not free the European Court of Human Rights of its obligation to determine whether there has been an infringement of the latter. ( 80 )

170.

According to Article 5 of the ECHR, everyone who is deprived of his liberty by arrest or detention is, in accordance with paragraph (4) thereof, entitled to an examination of whether the procedural and substantive requirements have been complied with so as to ensure the ‘lawfulness’, within the meaning of the ECHR, of the deprivation of his liberty, it being pointed out, first, that the notion of ‘lawfulness’ must have the same scope in Article 5(4) as in Article 5(1) of the ECHR and, second, that the ‘lawfulness’ of an ‘arrest or detention’ is to be assessed not only in relation to national law, but also the provisions of the ECHR, the general principles laid down therein and the aim of the restrictions authorised by Article 5(1). ( 81 )

171.

It is true that the Court has also pointed out, in its judgment in F., ( 82 ) that the European Court of Human Rights has held that, ‘when the decision depriving a person of his liberty is made by a court at the close of judicial proceedings, the supervision required by Article 5(4) of the Convention is incorporated in the decision’. ( 83 )

172.

The European Court of Human Rights has, however, also stated that that rule is applicable only to the initial decision depriving a person of his liberty and not subsequent detentions in so far as new issues of lawfulness later arise in that regard. ( 84 ) Indeed, continued detention, which was lawful when initially ordered, may subsequently become unlawful and lose all justification.

173.

In the case of continued detention, the result of Article 5(4) of the ECHR is thus that the person being detained has the right to ‘bring an action before a competent “court” which is to decide “speedily” whether his detention has become “unlawful”’. ( 85 ) The notion of ‘court’ signifies, inter alia, that the person remanded in custody has ‘made available to him the fundamental procedural guarantees applied in situations of deprivation of liberty’, it being pointed out that those guarantees must not necessarily be identical to those which Article 6(1) of the ECHR prescribes for civil or criminal cases, ( 86 ) but that they must be adapted to the nature of the deprivation of liberty at issue, regard being had to the specific circumstances surrounding the detention. ( 87 ) This means of judicial redress must exist with a sufficient degree of certainty, not only in theory, but also in practice, failing which the requirements of accessibility and effectiveness risk being violated. ( 88 ) The court must be able to give a swift decision on whether the deprivation of liberty of the detained person has become ‘unlawful’ as a result of the coming to light of new factors following the initial decision and to decide on his release, where necessary. ( 89 )

174.

The requirements relating to a swift procedure and a periodic judicial review, at reasonable intervals, exist so that detained persons do not run the risk of being remanded in custody for a long time after the point at which their deprivation of liberty has lost all justification, ( 90 ) it being pointed out that factors affecting the lawfulness of a detention in the context of an extradition procedure, such as progress made in the procedure and the diligence with which the competent authorities are carrying out the procedure, may change over time. ( 91 )

175.

It is now time to assess the impact of that case-law on the case in the main proceedings.

176.

I take the view that the right guaranteed by Article 5(4) of the ECHR is applicable to a person in the situation of the respondent in the main proceedings ( 92 ) and that the continued detention of the respondent, pending a final decision on the execution of the European arrest warrant issued in relation to him after the expiry of the time-limits stipulated in Article 17 of Framework Decision 2002/584 confers a specific content on that right.

177.

In particular, the expiry of the time-limits stipulated in Article 17 of Framework Decision 2002/584, within which the executing judicial authority is required to adopt a final decision on the surrender of the respondent in the main proceedings, constitutes a circumstance which changes, in itself and without prejudice to the outcome of the action, the basis for his provisional detention and grants him entitlement to the rights guaranteed by Article 5(4) of the ECHR.

178.

In the context of a provisional detention ordered in execution of a European arrest warrant, and in response to a request to that effect by the person being detained, it is for the competent national court to decide, after the expiry of the time-limits stipulated in Article 17 of Framework Decision 2002/584, whether his continued detention is lawful and to order, where this is not the case, his release in accordance with Article 5(4) of the ECHR.

179.

In the light of the foregoing analysis, I propose that the Court should answer the second question referred by ruling that Framework Decision 2002/584 must be interpreted as meaning that a person remanded in custody provisionally pending a final decision on the execution of the European arrest warrant issued in relation to him for the purposes of conducting a criminal prosecution in the issuing Member State, must have made available to him in the executing Member State, as from the moment at which the time-limits stipulated in Article 17 of the Framework Decision expire, a legal remedy enabling him swiftly to obtain a court decision on whether his continued provisional custody, in spite of the expiry of the time-limits stipulated in that article, is still justified either by legitimate reasons other than those which led to the issuing of the European arrest warrant, or by duly identified individual grounds related to the procedure for the adoption of the final decision on the execution of that warrant or, finally, by exceptional circumstances which are not imputable to the executing Member State and which are duly justified. If this is not the case, his release must be ordered. In the event that the detained person is to remain in custody, it is for the competent national court to ensure on a permanent basis that the rights guaranteed by Article 6 of the Charter are observed.

180.

In light of the foregoing analysis, I propose that the Court should answer the two questions referred by the High Court for a preliminary ruling in the following manner: