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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