By Cecilia Rizcallah*
*Research Fellow at the Belgian National Fund For Scientific Research (F.R.S.-FNRS). The author wishes to thank Pr. S. Van Drooghenbroeck. The usual disclaimer applies.
Advocate General Tanchev delivered, a few days ago, his opinion in the case C-216/18 PPU concerning a set of European Arrest Warrants (EAWs) issued against LM, suspected of drug trafficking, by the Polish Authorities. The case concerns a reference for a preliminary ruling made by the Irish High Court, which questions the European Court of Justice (ECJ) on the obligation to execute a EAW when the “conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law”.
Context of the case
This case emerges in the context of the “rule of law crisis”, resulting from recent reforms threatening EU’s founding values in some Member states including, among others, Poland. The Venice Commission together with other organisations have indeed observed the existence of serious breaches of the rule of law, notably due to the reform of its judiciary which highly undermines its independency. Ensuing this crisis and the lack of improvement of the situation in Poland, the Commission issued, in December 2017, a reasoned proposal in accordance with Article 7(1) TEU proposing to the Council to assert the existence of a clear risk of a serious breach of the rule of law in Poland.
No concrete action has yet been taken pursuant to this opinion, notably because of the heavy conditions laid down in Article 7 and the lack of other proper tools to react to such events. Brussels has thus until now been unable to offer a collective and efficient response to this crisis and the first consequences on EU integration begin to pop up. The ECJ in that respect ruled two weeks ago that Poland had breached the Railway Safety Directive (Directive 2001/14/EC) because of the lack of independency of its investigating body of railway undertakings and infrastructures. It is now the turn of the mechanism of the EAW to face the difficulties triggered by the rule of law crisis in one of the Member States.
As a reminder, the European Arrest Warrant mechanism, enshrined in the Council Framework Decision of 13 June 2002 (hereafter the Framework decision), relies upon the principle of mutual trust, which presumes the respect by all the Member States of EU founding values listed in Article 2 TEU, including the rule of law and human rights. This presumption justifies the quasi-automaticity of the execution of EAWs, and prevents in principle the control of the respect of fundamental rights by the executing Member State. The executing national authority has to “trust” the admissibility of EAWs issued by its peers.
According to the settled case-law of the ECJ, the grounds for non-execution of a EAW are exhaustively listed in the Framework Decision and must be restrictively construed because of the principle of mutual trust. Yet, fundamental rights are not explicitly included among the grounds for refusal in the Framework decision. Relying upon the principle of mutual trust and for the sake of the EAW mechanism’s effectiveness, the ECJ has long been reluctant to allow national courts to control the respect of fundamental rights when requested to execute a EAW.
A first breach was nevertheless opened by the Aranyosi and Căldăraru judgment (discussed here), where the ECJ considered that, in very exceptional circumstances, the execution of a EAW may be postponed when the individual would face a real risk of inhuman or degrading treatment in the issuing Member State in case of surrender because of the detention conditions in this country. It developed a two-step approach to determine the existence of such risk: first, the executing authority must be “in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State” (§89) and, “whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State” (§92).
According to the Court, the requested authority must, to that end, “request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State” pursuant to Article 15(2) of the Framework Decision (§95).
The question in C-216/18 PPU
The question posed in Case C-216/18 was whether the rule of law crisis and the systemic deficiencies in the Polish judicial system could justify the refusal of execution of a EAW issued by this Member State. More precisely, the Irish judge asked the ECJ whether the Aranyosi and Căldăraru double test leading to the suspension of EAWs’ execution should apply in case of systemic breach of the rule of law. This case thus appears to be an occasion to the ECJ to provide some of the missing pieces in the puzzle of tolerated limitations to the principle of mutual trust.
Unlike the Aranyosi and Căldăraru case, the question raised in the case C-216/18 concerns structural deficiencies in a Member State’s system of justice and risk of breaches of a non-absolute right, the right to a fair trial (Article 47 of the Charter). Sensitive issues are moreover at stake, in relation to the controversial reforms adopted in Poland. Political reactions have not been slow in coming.
The Advocate General’s opinion
A few days ago, the Advocate General Tanchev issued its opinion which, in a nutshell, pleads for the adoption of the Aranyosi and Căldăraru double test in the case at hand. The Advocate General started its reasoning by differentiating the assessment that should, according to him, be applied in the present case and the one that should be carried out by the Council under Article 7(1) TEU. Indeed, “the referring court asks the Court of Justice whether, in order for it to be required to postpone the execution of a European arrest warrant, it is sufficient for it to find that ‘conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself [of that Member State] is no longer operating under the rule of law” (§39).
The Court is therefore, according to the Advocate General, not asked about the consequences of breach of the value constituted by the rule of law, but about consequences of breach of the right to a fair trial. By this statement, the Advocate General offers an appealing way-out allowing the ECJ not to generally pronounce itself generally on the current sensitive political issue of the rule of law crisis in Poland. This finding moreover seems in compliance with the will of the treaties, Article 269 TFEU excluding the competence of the ECJ to rule on the legality of the acts adopted under Article 7 TEU, except for procedural concerns.
In the opinion of the Advocate General, different consequences must moreover be triggered from the activation of Article 7 and from the Aranyosi and Căldăraru judgement. On the one hand, the finding, in a specific case, of the existence of a real risk of breach of the prohibition of inhuman or degrading treatment obliges the executing judicial authority to postpone the execution of the EAW at issue. On the other hand, the suspension of the whole EAW system in respect of a Member State may only occur if the Council so decides, pursuant Article 7 (3) TEU, on the basis of the existence of a breach, and not of a mere risk of breach, of EU founding values (recital 10 of the Framework decision).
After these preliminary observations, the Advocate General continued its reasoning by sketching out the way the Aranyosi and Căldăraru test should be applied in the case at hand. First, he addressed the question of the possibility to postpone the execution of a EAW for protecting non-absolute rights. According to him, the fact that only limitations on the principle of mutual trust have hitherto been accepted in the light of Article 4 of the Charter does not precludes a similar conclusion when other rights, such as the right to a fair trial, are at stake (§58). Nevertheless, given the importance of the principle of mutual trust, “it is not sufficient that there is a real risk of breach of the second paragraph of Article 47 of the Charter in the issuing Member State” (emphasis added, the Advocate General interestingly did not use the word “restriction” but “breach”).
The postponing of an EAW may only occur when there exists a “real risk of breach not of the right to a fair trial but of the essence of that right” (§76) amounting to “a flagrant denial of justice” (§80). Having regard to the independence of the judiciary, the Advocate General underlined that “the lack of independence and impartiality of a tribunal can be regarded as amounting to a flagrant denial of justice only if it is so serious that it destroys the fairness of the trial” (§93). Assessing the existence of such risk, the executing judicial authority must “rely on information which is objective, reliable, specific and properly updated on the conditions prevailing in the issuing Member State, and which demonstrates that there are deficiencies affecting the Polish system of justice” (§95), such as the Venice Commission’s reports or the Commission’s reasoned opinion.
Yet, in the Advocate General’s opinion, such finding is however not sufficient for deciding the postponing of a EAW. The executing judicial authority must, moreover, ascertain that “in the case in point”, the individual concerned will be exposed to that risk (§104), by examining the particular circumstances relating either to that person or to the offence (113). It should notably be ascertained whether the individual is a “political opponent or whether he is a member of a social or ethnic group that is discriminated against” and/or if “the offence for which the individual concerned is being prosecuted is political in nature or whether the powers that be have made public declarations concerning that offence or its punishment” (§113). The burden of proof shall lie on the individual concerned (§115). In the assessment of the individual risks faced by the requested person, the executing judge must moreover request, from the issuing judicial authority, all necessary supplementary information on the basis of Article 15(2) of the Framework Decision “concerning, first, legislation adopted after the Commission’s reasoned proposal and the opinions of the Venice Commission and, second, the particular features relating to the individual concerned and to the nature of the offence that would be liable to expose him to the real risk of flagrant denial of justice identified” (§128). Eventually and “in the light of the information obtained” the executing judicial authority must execute the warrant if it considers that the person subject to the EAW does not run a real risk of suffering a flagrant denial of justice in the issuing Member State or, on the contrary, postpone its execution if such risk exist (§§130 – 131).
In spite of current events attesting the serious endangerment of EU founding values in several Member States, the Advocate General’s opinion sounds like a plea for the safeguard at any price of a – yet no longer existing – trust between Member States. It calls for a few comments.
First, the Advocate General pleads for distinguishing the examination of the existence of a rule of law crisis which systematically threatens the independence of the Polish judiciary and the assessment of the respect of the right to a fair trial in Poland. It is true that both procedures differ from their nature, one being political the other judicial as well from their object, one concerning the serious and persistent breach of the EU’s founding values and the other the right to a fair trial. Nevertheless, the risks in terms of Human rights in the case at hand precisely result from the systemic violation of the value of the rule of law. The alleged risks do not consist in a punctual breach of the right to a fair trial in relation to the specific case at hand, but in structural deficiencies in the Polish judicial system presenting risks for the fairness of its trials. If both assessments differ in their nature, their object must, in our view, not be addressed in isolation. According to the Advocate General, both procedures do also trigger different consequences. It is only if the Council observes the breach – and not the mere existence of a risk of breach – of EU founding values that the EAW mechanism could possibly be suspended. This finding suggests low likelihood that the EAW procedure would ever be suspended given the inefficiency of the Article 7 procedure, attested by recent events, as well as the poor probability to reach the required unanimity at the Council.
Secondly, the systemic character of the judicial system’s deficiencies does not suffice in the view of the Advocate General to justify the non-execution of Polish EAWs. Relying upon the ruling in Aranyosi and Căldăraru, he considers that a refusal to surrender an individual may only occur when (i) there exists a risk of breach of the right to a fair trial’s essential content amounting to a flagrant denial of justice and (ii) the requested person individually faces the risk to be subject to this breach. In relation to the first condition, the Advocate General thus clearly gives priority to the principle of mutual trust over the protection of fundamental rights, since not any breach of these rights could compromise in his view the execution of a EAW. This finding contrasts with the ECJ’s ruling in Tupikas, where it held that “the principles of mutual trust and recognition on which that Framework Decision is based must not in any way undermine the fundamental rights guaranteed to the persons concerned” (emphasis added), as well as the Framework Decision’s preamble, which underlines that it respects fundamental freedoms.
The Advocate General refers to the ECtHR case law about extradition procedures in order to reach this conclusion. The ECtHR indeed several times relied upon the “flagrant denial of justice” concept in order to determine the responsibility of a Contracting Party which indirectly enabled or gave effect to the breach of important components of fundamental freedoms by third parties (see, for instance, ECtHR 26 June 1992, Drozd and Janousek v. France and Spain, § 110,). Nevertheless, it is worth nothing that the case-law on this issue is not consistent, as shown by the judgment in Pellegrini v Italy where the fact that the judgment was rendered by a third party – the Vatican – justified, according to this to the ECHR, a full control of the respect of Article 6 by the executing Italian judge.
Moreover, this test was only used in regard to extradition procedures with third States, based on the reasoning that “the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States” (ECtHR 7 July 1989, Soering v. United Kingdom, § 86). Yet, the case at hand concerns the cooperation between two Member States of the Council of Europe and moreover, of the European Union. Moreover, one should wonder why violations (not mere restrictions) of Article 47 of the Charter must, for the sake of the principle of mutual trust, be accepted in the EU while this principle is precisely founded on the presumption of compliance, by all Member States, with fundamental rights as enshrined in the Charter. The ECtHR seems nevertheless to consent to the principle of mutual trust in its Avotins judgement (discussed here), at least as long as Member States are “empowered to conduct a review commensurated with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient” (ECtHR 23 May 2016, Avotins v. Latvia, §114). This case did not concern the EAW mechanism but the mutual recognition in civil proceedings, where guarantees contained in Article 6 apply less stringently than to criminal proceedings.
As far as the second condition is concerned, the Advocate General requires the maintenance of an individual assessment consisting in first, the examination of the nature of the alleged offence and the individual’s profile and, secondly, in an exchange of information between the issuing the executing authority. He moreover considers that the burden of the proof of the risk lies on the requested individual. This is maybe the most critical part of the opinion. First, regarding the object of this assessment. The executing judge would indeed be required to postpone the execution of a EAW, according to the Advocate General, “only where it finds not only that there is a real risk of flagrant denial of justice on account of deficiencies affecting the system of justice of the issuing Member State but also that the individual concerned will be exposed to that risk”.
It must in that regard consider notably the nature of the alleged offence as well as the profile of the person subject to the EAW, and especially, whether he is a political opponent or whether he is a member of a social or ethnic group that is discriminated against in the issuing country (§113). Yet, the possibility to refuse to surrender persons convicted for political offences has been especially removed from the Convention on Extradition between Member States of the European Union concluded in 1996 – when replaced by the Framework decision (see discussion here). Furthermore, requesting the individual to demonstrate the lack of independence of the tribunal in his or her specific case seems to disregard the traditional case law of the ECHR, according to which serious doubts that an individual will not benefit from a fair trial by an independent and impartial tribunal may lead to a violation of Article 6 of the ECHR (ECtHR, 25 July 2002, Sovtransavto Holding v. Ukraine, §78).
In this way, the mere existence of mechanisms enabling the executive branch of a State to influence court proceedings, even if they have not been effectively used in the case at hand, suffice, in the view of the ECtHR, to find a breach of the right to a fair trial (ECtHR, 19 April 1994, Van De Hurk v. The Netherlands, §50 and ECtHR, 25 July 2002, Sovtransavto Holding v. Ukraine, §§ 77 and 80). The approach proposed by the Advocate General also contravenes the “doctrine of appearance” (ECtHR, 17 January 1970, Delcourt v Belgium, §31 and Kress v France, 7 June 2001, §81), usually adopted by the ECtHR, which attaches great importance to “appearances and to the increased sensitivity of the public to the fair administration of justice” (ECtHR, 30 October 1991, Borgers v. Belgium, §24).
Indeed, according to this doctrine, “justice must not only be done, it must also seem to be done”, and “importance should be given to the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused” (ECtHR, 9 June 1998 Incal v. Turkey, §71). Speculations about the effective independent character of a tribunal in a specific case should thus not be needed when important deficiencies in the rule of law such as those at issue exist. The inadequacy of such test is furthermore strengthened by the way the requested judge should determine the existence of a risk of breach of the right to a fair trial. The opinion indeed proposes to require from the executing authority, before deciding upon the execution of the EAW, “to ask the necessary information to that end to the issuing judge”. One may indeed wonder how a judge - whose independence is challenged – would provide reliable information on…his or her own independence!
New playground, new rules of the game?
The principle of mutual trust constitutes an important tool of EU integration, used both in the internal market and in the Area of freedom, security and justice. In relation to the EAW system, it enables effective and smooth criminal cooperation between Member States without the merging of their national criminal systems of justice nor uniformisation of their national criminal law. Nevertheless, this principle was developed on the presumption that only democratic systems, respecting EU’s founding values including fundamental rights were involved. The importance of the respect of the rule of law was in that sense recently recalled by the ECJ in its case law Associação Sindical dos Juízes Portugueses (ECJ, 27 February 2018, discussed here). One must however note the lack of discipline of some Member States to comply with this value, despite numerous diplomatic attempts to stop the crisis. Should we nevertheless maintain the obligation for Member States to trust in each other’s system of justice notwithstanding these events?
The principle of mutual trust, of fundamental importance to EU law, relies upon the presumption that Member States share and respect a set of common values (ECJ, 18 December 2014 Opinion 2/13, §168). Firmly upholding this principle while its foundations are undermined seems problematic. Once the playground has changed, shall the initial rules of the game be kept? Besides being as such problematic for the State concerned by the crisis, imposing mutual trust to other States entails an important risk of contagion in all the European Union since national judgments are mutually recognised. In addition, one should bear in mind the rights at stake, which include the right of judicial protection rightly referred to as “the right to have right”. This right furthermore amounts to, according to the ECJ, the essence of the rule of law (ECJ, 27 February 2018, Associação Sindical dos Juízes Portugueses, §36).
Admittedly, the current “rule of law crisis” constitutes first and foremost a political issue that has to be dealt with by political bodies such as the Council as provided by Article 7 TEU. Nonetheless, the ECJ must ensure the respect of EU law and, in particular, of the Charter of Fundamental Rights which is part of primary law. When construing the Framework Decision, the Court shall therefore – at least theoretically – ensure the respect of EU Fundamental Rights and in particular of the right to an effective judicial protection. In our view, the principle of mutual trust, being it a fundamental principle, shall not justify restrictions to fundamental rights that do not respect the conditions laid down in Article 52 of the Charter which not only requires the respect of the essential content of fundamental rights, but, also, a more general proportionality assessment.
Barnard & Peers: chapter 9
JHA4 : chapter II :3
Photo credit : Human Rights Watch