Friday 5 February 2016

Free at last? Detention, the European Arrest Warrant and Julian Assange

Steve Peers

The CJEU judgment in Lanigan: on lengthy pre-trial detention and the European Arrest Warrant (EAW) has added relevance in light of the UN opinion (released today) on the ‘arbitrary detention’ of Julian Assange – who is also facing an EAW. What does each of them tell us about the length of detention and the EAW?

The Lanigan judgment

Unfortunately EAWs are often issued for the most trivial reasons. A carpenter, removing a wardrobe door until he got paid. (What Would Jesus Do?) The theft of a piglet. And my personal favourite: the friend of a friend who came to a house party and took someone else’s can of beer. That last case makes me pine for the return of the death penalty.

Yet the Lanigan case usefully reminds us that EAWs are also issued for the most serious of crimes. Mr. Lanigan was wanted on murder charges in the UK, which issued an EAW to the Irish Republic. He was detained in Ireland while he fought the execution of the EAW. Finally, the Irish courts decided to ask the CJEU if the months he spent fighting the EAW were a breach of the deadlines to execute it – as set out in the EU Framework Decision which created it – or of human rights law. This was the first Irish reference to the CJEU on criminal issues, following the expiry on the limits of the CJEU’s criminal law jurisdiction in December 2014 (for more on that transitional issue, see here).

According to the CJEU, the continued detention of Mr. Lanigan pending the EAW did not invalidate the EAW itself. Nor was there an obligation to release him. First of all, the Court insisted that the time limits in the legislation (60 days to execute an EAW, with a possible 30 day extension) had to be complied with strictly. This followed its earlier ruling in the Forrest case, which concerned the British schoolteacher who had fled to France with an underage schoolgirl.

But then the Court ate its previous words. The problem was that in this case, strict compliance with the time limits conflicted with the underlying obligation to execute the EAW. The Court referred to its many previous rulings insisting on the limited exceptions to that latter obligation. So it gave preference to the underlying rule, ruling that the EAW remained valid once the deadline expired: the ‘time limit’ was not really a time limit at all. (I wouldn’t advise students, lawyers, journalists or many others to take the same approach to deadlines.)

It got worse for Mr. Lanigan. The CJEU ruled that the expiry of the deadlines did not mean that Ireland had to release him from prison either. It pointed out that the rules on detention in the Framework Decision were very vague: national judicial authorities have to decide on detention; the fugitive may be given bail, if the authorities take steps to stop him or her absconding; and the issue is basically subject to national law. The EU rules do say that fugitives must be released from custody after the execution of an EAW, if the deadlines to surrender the person to the State which issued the EAW are not complied with. But in contrast, there is no such obligation if a State misses the deadline to execute the EAW in the first place.  

Yet if there’s no real deadline to execute an EAW, and no obligation to release a fugitive from jail because that ‘time limit’ is a legal fiction, people could effectively end up facing indefinite detention without trial. Rightly realising that this was unacceptable, the Court, for the first time, gave some grudging respect to the many references to human rights set out in the EAW law. In this case, that meant the rules on detention were subject to Article 6 of the EU Charter on Fundamental Rights, which had to be applied consistently with the rules on detention set out in Article 5 ECHR. So the relevant case law of the European Court of Human Rights applied: fugitives can only be detained if the EAW procedure is being carried out with ‘due diligence’. The national court has to consider all the factors, including any lax behaviour by the Irish authorities, the conduct of the fugitive himself, the possible sentence (severe in this case), the risk of absconding and the huge overrun of the deadlines.

The Assange case

In Lanigan, the CJEU wasn’t called upon to deal with the two detention issues that most frequently arise in practice as regards EAWs: (a) the lengthy pre-trial detention that fugitives are often subject to in the issuing State after they are surrendered there, and (b) the poor detention conditions which they sometimes face there. The CJEU will shortly rule on the latter issue, in the cases of Aranyosi and Caldararu.

Nor, obviously, was it called upon to deal with the peculiar circumstances of Mr. Assange: fleeing into a third State’s embassy, to escape the execution of an EAW, because the investigation which motivated the issuing of the EAW was allegedly politically motivated, and a further extradition request from the USA was possibly looming. Today we have a new twist: the opinion of a UN body that his ‘detention’ in the embassy is ‘arbitrary’.

How does EU law apply to this issue? In fact, EU law issues were discussed in the earlier UK litigation, in particular in the Supreme Court judgment. At that time, the UK courts were, like the Irish courts, unable to ask the CJEU questions about EU criminal laws adopted before the entry into force of the Treaty of Lisbon. Now they can. So Assange could arguably bring a fresh challenge in the UK courts to the execution of the EAW in light of the UN ruling. He could either (a) request the UK courts (at any level) to ask the CJEU questions about the EAW law (the CJEU will likely give an emergency ruling, within about three months), or (b) litigate back up to the Supreme Court, then go to the European Court of Human Rights to complain if he loses his case.

What’s the likely outcome? The European Court of Human Rights is usually keen to take into account the opinion of other human rights bodies (for an exception, see the RMT case); but the CJEU is not. In the Grant case, it rubbished the opinion of the UN Human Rights Committee, and in the well-known Kadi line of case law, it deemed that the UN Security Council had not provided enough legal protection when listing people as terrorist suspects.

Applying the Lanigan case to the facts of Assange, there is a strong obligation upon the UK to execute the EAW, which obviously remains valid. His continued ‘detention’ also remains valid, since he has the obvious intention to abscond. There are human rights arguments: the risk of an unfair trial in Sweden or the USA, and the ‘detention conditions’ in the embassy. As I noted above, the CJEU is usually dismissive of human rights arguments in the EAW context, although there was a nod to ECHR case law in Lanigan. On this issue, things should be clearer after the judgments in Aranyosi and Caldararu, which we can expect before Easter.

It might be better, from Assange’s perspective, to fight all the way again through the UK courts without asking for a CJEU reference, and then head to the ECtHR in Strasbourg. That’s not entirely up to him, though: the UK government could ask the courts to send questions to the CJEU. If he does get to Strasbourg, the ECtHR might be torn between its usual enthusiasm to endorse the work of international human rights bodies, and its traditional deference to the CJEU on human rights matters within the scope of EU law. The Assange saga might have awhile to run yet.

Barnard & Peers: chapter 25
JHA4: chapter II:3

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  1. I cannot understand, dear professor, why you put the equal sign between UN Resolutions that concern the fight of terrorism (the case in Kadi) and the today's UN opinion (which concerns arbitrary detention - in another words, the protection of a human liberty and right). I find this as being false analogy and therefore just because the CJUE had an attitude in Kadi does not mean that is going to have the same attitude towards human rights bodies in Assange. Therefore, is irrelevant what the CJUE did in Kadi when deciding what is going to be the attitude of CJUE towards human rights bodies.

    Kind regards,

    1. But I didn't just give the example of Kadi, I gave also the more relevant example of Grant, which concerned the ruling of a UN human rights treaty body. It's very noticeable that while the ECtHR uses many human rights sources from international and European bodies (many of them 'soft law') the CJEU rarely displays much interest (to be fair, there are a few references to ILO standards). The opinion on Assange even indirectly expresses some views on the EAW itself - and the CJEU is particularly annoyed by the involvement of such 'foreign' bodies in the operation of EU law (see Tarakhel, followed shortly after by Opinion 2/13). Since today's opinion has met with quite a negative reaction from many dedicated human rights lawyers, that does not augur well for the Court of Justice accepting it. And there is also the general trend of the CJEU being reluctant to accept human rights constraints on the operation of the EAW, which I refer to.

  2. Do we then agree that Kadi is irrelevant when talking about the attitude of CJUE towards human rights bodies because in Kadi we had not the fight for human rights, but the fight of terrorism?

    Just because the Kadi example was not the only given example, that does not mean that the Kadi example was not given, and therefore considered to be relevant when talking about the attitude of CJEU towards human rights bodies.

    1. I think Kadi is relevant because it shows that the CJEU is willing to disagree with the UN if it believes that the EU objective is significant enough. I don't think it necessarily matters whether that is a human rights objective. As Opinion 2/13 shows, the CJEU places more stress on its conception of the EU legal order than it does on human rights protection.