Thursday 18 October 2018

Human rights v the European Arrest Warrant? The legality of surrender detention after 90 days

Joske Graat, PhD student, Utrecht University

The Amsterdam District Court, which has the exclusive jurisdiction in the Netherlands to decide on incoming European Arrest Warrants (EAW), currently finds itself stuck between national rules and EU law obligations on detention and provisional release.  According to the Dutch Surrender Act (SA), the requested person needs to be (provisionally) released 90 days after the receipt of the EAW if the court has not delivered a decision by then. In 2015, the Court of Justice of the European Union (CJEU) decided in Lanigan (discussed here) that the Framework Decision on the European Arrest Warrant (FDEAW) does not require the release of the requested person after 90 days as national courts need to be able to ensure that the substantive conditions for surrender are at all times guaranteed. Consequently, extending the detention beyond this term is allowed in compliance with national rules. This is, however, exactly where the trouble starts in the Netherlands, since article 22(4) SA does not allow for such an extension. As a result, the strict obligation under national law to release the requested person might clash with the EU obligation to ensure the effectiveness of the surrender procedure.

We will see that the solution of the Amsterdam District Court to this problem, which is to interpret Dutch legislation in the light of the FDEAW, is itself problematic. In my opinion, the interpretation of the relevant provisions interferes with the legal certainty of the requested person and constitutes a contra legem interpretation. The legal certainty concerns have in fact resulted in a preliminary question to the CJEU, but it is questionable whether any answer would solve the problem at hand or would further complicate matters. (The CJEU has fast-tracked the case, and an Advocate-General’s opinion is due on November 6th) Hence, I would argue that it is time for the Dutch legislator to step in.

The issue of clashing national and European obligations regarding detention has become increasingly urgent as it becomes – as a result of other EU law obligations - ever more difficult to reach a decision on an EAW within 90 days. These obligations include the duty to refer preliminary questions and the obligation established in Aranyosi & Căldăraru (discussed here) to ask the issuing state for information contradicting a possible violation of article 4 Charter of Fundamental Rights of the European Union (CFR). Fulfilling these obligations often prolongs surrender proceedings and could result in the release of requested persons, even if the risk of absconding is real.  In the latter case, the order to release would violate the general obligation in Article 17 FDEAW to ensure that the substantive conditions for surrender remain guaranteed.

As I stated before, the Amsterdam District Court tried to find a way out in seeking to interpret Dutch legislation in conformity with the FDEAW. It ruled that Article 22 SA not only contains the power to extend the decision term after 90-days, but also includes the competence to suspend the 90-day term before it has lapsed. In case of the latter, the 90-day term is barred and thus the requested person might de facto be detained for more than 90 days. This possible effect of the new interpretation of Article 22 SA has been criticized in the light of the right to liberty in article 5 European Convention on Human Rights (ECHR) and 6 CFR.

A complaint was filed before the European Court of Human Rights (ECtHR), questioning whether the interpretation of Article 22 SA violates the requirement of a clear legal basis for detention in article 5(1)(f) ECHR. Remarkably, the Dutch government contended that this requirement has indeed been violated and has offered compensation for the unlawful detention. Unfortunately, though, the ECtHR therefore, struck the case, which was not decided on the merits. Meanwhile the Amsterdam District Court itself has recently requested a preliminary ruling on whether legal certainty as protected by Article 6 CFR is violated by the current interpretation of Article 22 SA.

In my opinion, this interpretation of Article 22 SA is not only an unjustified interference with the principle of legal certainty; it is also a contra legem interpretation. To start with the former. It is true that the current case law of the CJEU interprets legal certainty as a restriction to the duty of conform interpretation (sometimes called ‘indirect effect’) in a narrow manner. Legal certainty bars conform interpretation when this would result in determining or aggravating criminal liability on the basis of the FDEAW alone. In this sense, legal certainty is obviously no barrier to the current interpretation of Article 22 SA.

However, the general scope of the principle of legal certainty is not restricted to establishing or aggravating criminal liability. The principle is also part of Article 5 ECHR and 6 CFR which demand that the procedure for detention pending extradition is sufficiently accessible, precise and foreseeable to prevent arbitrary interferences with the right to liberty. Even though the broad concept of ‘the law’ in Article 5 ECHR, which includes both formal statutes and case law, allows the interpretation of a written rule in jurisprudence, the ECtHR has decided in past cases that a violation of Article 5 ECHR may occur when the national authorities do not interpret or apply the rules on extradition detention in a uniform manner. These cases concerned diverging opinions of national judicial authorities regarding the application of time limits and the use of a particular national provision as a legal basis for detention. The situation at hand is slightly different, since it concerns a difference in opinion between the court and the Dutch legislator, who stated explicitly that the requested person should be released after 90 days. However, I would argue that a similar risk of arbitrariness and threat to legal certainty exists in this situation. Can we really speak of a sufficiently foreseeable and accessible procedure for surrender detention when the judiciary and the legislator disagree on the interpretation of Article 22 SA?

In case the CJEU were to find the interpretation of Article 22 SA compatible with legal certainty, it should still be considered contra legem. This restriction to the duty of conform interpretation is often connected to the legal certainty principle but constitutes essentially a different test. In my opinion, the current interpretation of Article 22 SA contradicts the wording of the provision. The text as well as the intention of the legislator are crystal clear. Release after 90 days means release after 90 days. In addition, suspending a decision means in common parlance ‘halting or stopping’ an ongoing term which has not yet lapsed, whereas extending means ‘adding’ time to a term which has already lapsed. Hence the wording and meaning of Article 22 SA simply does not allow the interpretation as it follows from the case law of the Amsterdam District Court.

Lastly, we should also view the consequences of a rejection of the current interpretation of Article 22 SA. Is the Amsterdam District Court provided with the means to solve the remaining clash between its duties when an interpretation of the Dutch rule in conformity with the FDEAW is impossible? The answer is – at least for now - that it is not. This could change if the CJEU in the future decides that the primacy rule also applies to former third-pillar framework decisions. This question has equally been put before the CJEU by the Amsterdam District Court, but has remained yet unanswered (the case is still pending).

Application of the primacy rule would bring along its own problems however. It would resolve the clash between EU obligations and national law but might at the same time harm the legal certainty of the requested person. After all, it will depend on the concrete circumstances of each case whether the decision-term will be suspended or not and, therefore, whether Article 22 SA will be applied or not. If this effect would be corrected by a legal certainty exception to the primacy rule, legal certainty may be ensured, but the clash between EU law and national law would continue to exist.

The devilish dilemma for the Amsterdam District Court may thus not easily be solved by the CJEU. It is indeed difficult to see how any decision of the CJEU would not further complicate matters rather than solve them. Most likely the CJEU will not be able to provide the Amsterdam District Court with a way out of its impasse while at the same time protecting legal certainty. This brings another state authority in the picture: the Dutch legislator. This authority could in fact quite easily solve the problem. A simple adaption of Article 22(4) SA changing it into a discretionary competence instead of an obligation would suffice. In other words, it is time for the national legislator to come to the rescue of the Amsterdam District Court.

This blog is based on a publication in Strafblad in May 2018.
J.J.M. Graat, ‘Een dilemma voor de Overleveringskamer’, Strafblad 2018(2) 20.

Barnard & Peers: chapter 25
JHA4: chapter II:3
Photo credit: The Panopticon Chronicles

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