Dr Leandro Mancano, Senior Lecturer in EU Law, Edinburgh Law School
This blogpost is based on Leandro
Mancano, ‘You’ll never work alone: A systemic assessment of the European Arrest
Warrant and judicial independence’, in Common
Market Law Review, Volume 58, Issue
3 (2021) pp. 683 – 718
Introduction
The European
Arrest Warrant Framework Decision (EAW FD) has changed the landscape of
inter-state cooperation in criminal matters within the EU (for its ‘external’
impact, see the Court of Justice’s judgments in Petruhhin
– see discussion here
– and IN).
The EAW implements the principle
of mutual recognition in criminal matters. An arrest warrant issued by Member State
‘A’ (issuing state) and addressed to Member State ‘B’ (executing state) against
person ‘X’ should be recognised and executed by the latter – with subsequent
surrender of ‘X’ from ‘B’ to ‘A’ - without further formalities unless
grounds for refusal apply. Automaticity in judicial cooperation rests on the
principle of mutual trust: in this context, the rebuttable presumption that
member states, save in exceptional
circumstances, comply with fundamental rights. Unlike extradition, the EAW
– and mutual recognition in criminal matters more broadly - place cooperation
entirely in the hands of the judiciary.
Against that background, judicial
independence represents a pre-condition for the healthy functioning of the
mechanism. In a system operating on the basis that trust and surrender are the
rule, the identification of the exceptions and their modus operandi is key to
its proper understanding. The relentless undermining of judicial independence
in Poland, perpetrated by the national government, has led – directly or
indirectly – to the creation of a body of law on judicial independence in the
framework of the EAW which has broad systemic implications. This blogpost
explores the role and meaning of judicial independence in the EAW.
The Concept of Judicial Authority: Between Independence and Effective
Protection
The multifaceted relevance of
judicial independence in judicial cooperation begins – logically and
chronologically – with issuance of the EAW. Firstly, there is the independent
judicial supervision that must be guaranteed throughout the EAWs procedures
– from issuing to execution - to ensure effective judicial protection. Secondly,
there are the requirements that the issuing judicial authority must possess to
issue a valid EAW.
Since an EAW must be based on a
national arrest warrant (Article 8(1)(c) EAW FD), the effective judicial
protection must be guaranteed during procedures related to both the (1)
national, and (2) European, arrest warrants. The judicial authority competent
to issue an EAW must review observance of the conditions necessary for the
issuing of the warrant - including its proportionality. Such a level of
protection must be ensured even where the EAW is based on a national decision
delivered by a judge or a court. Where the EAW was issued by a judicial
authority that is not itself a court or tribunal, that
decision must be capable of being the subject to judicial review.
Public prosecutor can be
considered judicial authorities – even though they are not courts or tribunals
- as long as there are statutory rules and an institutional framework capable
of guaranteeing their independence, and preventing their exposure to external directions.
Even if the public prosecutor was exposed to the risk of instructions from the
executive in the specific case at the basis of the EAW, the warrant could be
validly issued in
the presence of effective judicial supervision (see, by contrast, the approach
taken in the case of the European Investigation Order). Such oversight,
which could take the form of e.g. judicial review of the EAW decision, must
be in place in the issuing State and activated before execution of the EAW.
The Exceptional Circumstances Doctrine: The Level of Probability
Required by the Two-Step Test
The EAW FD mandates (Article 3)
or allows (Article 4) the executing judicial authorities to refuse execution of
the arrest warrant and surrender in certain cases. Most of these exceptions do
relate to fundamental rights (e.g. ne bis in idem), but their wording clearly
points to, for example, possible issues of coordination between different States’
laws. They are not concerned with a Member State’s systemic failure of
fundamental rights protection. The suspension of the EAW vis-à-vis a Member
State by the European Council is mentioned in recital 10 (non-legally binding)
of the Framework Decision, and requires a finding of serious and persistent
breach of the EU values. This reveals, perhaps, the EU legislature’s confidence
in the Member States’ capacity for maintaining the rule of law standards
required by EU membership. No specific or general clause is provided for in the
text of the FD, allowing a national court to refuse surrender due to concerns related
to the person’s fundamental rights in the issuing State.
Relying on Article 1(3) EAW FD,
the Court has introduced a two-step test to challenge the presumption of mutual
trust. The test was firstly devised in the context of inhuman and degrading
treatments (see the judgment in Aranyosi and
Căldăraru) and then applied to cases where the independence of the
judicial authority issuing the EAW was in doubt. The Court found that, as a
first step, the executing judge must verify the existence of systemic
deficiencies, in the issuing State, of the right to an independent tribunal.
Secondly, precise and specific elements must show that systemic deficiencies
are liable to have an impact at the level of the State’s courts with
jurisdiction over the proceedings, and substantial grounds must emerge for
believing that the person will run a real risk, having regard to their personal
situation, the nature of the offence involved and the factual context at the
basis of the EAW (see judgment in LM,
discussed here).
The test has been criticised
because of its allegedly insurmountable nature, compounded by the Court’s recent
ruling where it stated that systemic deficiencies alone do not constitute
sufficient ground to refuse execution. The present author submits that, while
not easily met, the standard of proof of the real risk must not be understood
as near certainty. Semantic accuracy and the Court’s wording suggest that these
two levels of probability not be conflated. Relatedly, the features that the
evidence must possess (precision and specificity) must be understood together
with the milder level of probability of the consequences attached to them (liable
to impact the competent court). Furthermore, the areas from whence the
substantial grounds must emerge (personal situation, nature of the offence,
factual context) are indicative and not cumulative. The test is not as
constrictive as it might seem, and the executing authorities have certainly
leeway when assessing the real risk to the person’s right to an independent
tribunal.
Conclusion
Judicial independence is the
cornerstone of the rule of law and judicial cooperation in criminal matters,
including the EAW. At the very least, independence must be guaranteed to the
judicial authority which: supervises the issuing and executing EAWs procedures;
has jurisdiction over the proceedings in the issuing State after surrender. On
the one hand, the Court requires that independence of the issuing authority be
protected by statutory rule and institutional frameworks, failing which an EAW
cannot be validly issued. On the other, the
ECJ distinguishes the latter scenario from lack of independence caused by systemic
deficiencies in the issuing State, in which case the EAW is valid in
principle and the executing court must carry out the two-step test to refuse
surrender. The two situations might indeed be different and are to do with two
different bodies (issuing v trying authority).
The Court’s approach is – if not
justified – explained by systemic considerations. The tenability of the
statutory rules/systemic deficiencies distinction might prove hard to uphold
for much longer, however, and especially in a context where the undermining of
judicial independence in Poland shows no signs of receding. A related issue,
not yet brought to the fore but with the potential to shake things up, concerns
the scenario where the supervising body in the issuing State is not adequately protected
by statutory and institutional safeguards. These questions, jointly with the
proper interpretation of the level of probability of the two-step test
mentioned above, lie at the core of the EAW mechanisms and might be the
protagonists of this existential saga on judicial independence and EU cooperation
in criminal matters.
Barnard & Peers: chapter 25
JHA4: chapter II:3
Photo credit: Jebulon,
via Wikimedia Commons
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