The CJEU Gets Brexit Done: New Judgment on Extradition from Ireland to the UK after Brexit

 

 

Professor Steve Peers, University of Essex

 

The CJEU this week delivered its first judgment on the impact of Brexit (as far as the EU side is concerned) since the UK has left the EU – swiftly following last week’s Advocate General’s opinion (which I discussed here; I’ve adapted some of that blog post in this one) in response to fast tracked questions referred from the Irish Supreme Court (on appeal from the Irish High Court’s judgment).

 

Background

The Court’s judgment concerns extradition from Ireland to the UK under both the withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The former treaty provides that the internal EU legal framework for simplified extradition – the European Arrest Warrant (EAW) law – still applied between the UK and EU during the transition period set out in that agreement, which lasted from 1 February 2020 to the end of that year. (As an exception, three Member States refused to hand over their own citizens, but Ireland was not one of them). 

After that point, the separation provisions of the withdrawal agreement applied: the EAW law still applies if a fugitive was arrested on the basis of that law before the end of the transition period. If the EAW was issued before that date, but the fugitive was not arrested in time on the basis of the EAW law, the subsequent TCA provides that its extradition rules – which are similar, but not identical, to the EAW law – apply. (The TCA rules also apply to extradition requests first sent after the transition period ended, and the judgment in this case is also relevant by analogy to those requests too).  

The case is about two fugitives arrested in Ireland on the basis of British EAWs, who challenged their extradition to the UK. Both EAWs were issued during the transition period, but one EAW led to an arrest before the end of that period, hence the separation provisions kicked in, and the EAW law applies fully to the case. In the other case, the arrest took place after the end of this period, and so the TCA rules apply. The fugitive in the former case was already convicted and sentenced to eight years in prison, whereas the fugitive in the latter case was subject to a pending prosecution for fourteen alleged criminal offences.

Both two fugitives argued that they could not be subject to these rules in the two treaties, because even though Ireland agreed to both treaties in the EU Council, that country did not exercise a formal opt in as set out in the Justice and Home Affairs protocol relating to Ireland (and previously also applying to the UK) attached to the EU Treaties. If they had been successful, their challenge would have complicated not only extradition but other forms of criminal law cooperation between Ireland and the UK set out in the withdrawal agreement and TCA, in both directions (ie Irish requests to the UK too). It could also have impacted on criminal law cooperation between the UK and Denmark, which has a similar (but not identical) opt in protocol. (Criminal law cooperation would not entirely have ended, however, because there are other international treaties that would have applied as a default, although they do not simplify cooperation as much as the treaties with the EU do).

Judgment of the Court

The judgment first examines the scope of Article 50 TEU, noting that it has the twin objectives of ‘first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion’ (referring to the Wightman judgment, discussed here). The Court continued:

50      It is in order to be able to attain that objective effectively that Article 50(2) TEU confers on the European Union alone competence to negotiate and conclude an agreement laying down the detailed rules for withdrawal, since that agreement is intended to regulate, in all the areas covered by the Treaties, all questions relating to the separation between the European Union and the State withdrawing from it.

51      It was therefore pursuant to that competence that the European Union was able to negotiate and conclude the Withdrawal Agreement, which provides, inter alia, in relations with the United Kingdom, for the continued application of a significant part of the EU acquis, in order to reduce uncertainty and, to the extent possible, minimise disruption caused by the fact that, on the date of withdrawal, the Treaties cease to apply to the departing State, as is apparent from point 4 of the guidelines adopted by the European Council at its special meeting of 29 April 2017 following the United Kingdom’s notification under Article 50 TEU.

The Court also noted that there may be a contradiction between the procedure for the EU Council to conclude an international treaty in other circumstances – which may entail a unanimous vote – and a withdrawal agreement, where Article 50 TEU provides for a qualified majority vote. In the Court’s view, it followed that:

54      Since the withdrawal agreement is intended to cover all of the fields and issues referred to in paragraph 50 above, and since it is not possible to add to Article 50(2) TEU legal bases laying down procedures which are incompatible with the procedure laid down in paragraphs 2 and 4 of that article (see, to that effect, judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C‑180/20, EU:C:2021:658, paragraph 34 and the case-law cited), it must be concluded that only Article 50 TEU, as an autonomous legal basis independent of any other legal basis set out in the treaties, can ensure that all of the fields falling within the scope of those treaties are treated consistently in the Withdrawal Agreement, thus enabling the withdrawal to take place in an orderly manner.

Furthermore, there would be ‘uncertainty’ because Ireland, having agreed to participate in the EAW system with the UK, ‘would be treated as if it had never participated in it’. This outcome ‘would be difficult to reconcile with the objective of reducing uncertainty and limiting disruption so as to enable an orderly withdrawal’.

As for the TCA, which was concluded on the basis of Article 217 TFEU (the power for the EU to conclude association agreements), the Court recalled its case law that Article 217 ‘empowers the European Union to guarantee commitments towards third countries in all the fields covered by the TFEU’. It followed that:

58      Agreements concluded on the basis of that provision may therefore contain rules concerning all the fields falling within the competence of the European Union. Given that, under Article 4(2)(j) TFEU, the European Union has shared competence as regards Title V of Part Three of the TFEU [ie EU competence as regards justice and home affairs], measures falling within that area of competence may be included in an association agreement based on Article 217 TFEU, such as the TCA.

Did the inclusion of extradition issues within the TCA require an additional legal basis relating to criminal law cooperation, besides that of an association agreement? While the case law states that the competence over association agreements can be used ‘only on condition that that measure relates to a specific area of EU competence and is also founded on the legal basis corresponding to that area’, that case law ‘concerned not the conclusion of an association agreement but the adoption of a decision on the position to be taken, on behalf of the European Union, within a body set up by such an agreement’; in such circumstances, where a decision could be adopted ‘by qualified majority without the participation of the European Parliament… the addition of a specific legal basis was necessary in order to ensure that any more stringent procedural requirements specific to the area concerned would not be circumvented’. This is distinct from an association agreement as such:

62      By contrast, since the conclusion of an agreement such as the TCA does not relate to a single specific area of action but, on the contrary, a wide range of areas of EU competence with a view to achieving an Association between the European Union and a third State, and the conclusion of such an agreement requires, in any event – in accordance with point (a)(i) of the second subparagraph of Article 218(6) TFEU and the first sentence of the second subparagraph of Article 218(8) TFEU – a unanimous vote and the consent of the European Parliament, there is no risk, as regards the conclusion of such an agreement, of more stringent procedural requirements being circumvented.

Nor did the prior case law on using multiple legal bases where a measure pursues multiple objectives apply, in the Court’s view. The Court recalled its case law taking a broad view of the scope of the EU’s development policy powers, and extended that approach to cover association agreements:

65      Those considerations also apply mutatis mutandis to association agreements whose objectives are designed in a broad manner, in the sense that the measures required in order to pursue those objectives concern a wide range of areas of EU competence.

66      That is precisely the case with regard to the TCA, since, as the Council submitted in its observations, in order to ensure an appropriate balance of rights and obligations between the parties to the agreement and to secure the unity of the 27 Member States, that agreement had to have a sufficiently wide scope.

67      Accordingly, in view of the wide scope of the TCA, the context of its adoption and the unequivocal declarations made by all the institutions and Member States involved throughout the negotiations on the withdrawal of the United Kingdom from the European Union, the inclusion in that agreement, alongside rules and measures falling within many other areas of EU law, of provisions falling within Title V of Part Three of the TFEU forms part of the general objective of that agreement, which is to establish the basis for a broad relationship between the Parties, within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties’ autonomy and sovereignty.

68      The surrender mechanism established by the TCA contributes to the pursuit of that objective, the Parties having indicated, in recital 23 thereof, that their cooperation relating to, inter alia, the investigation, detection and prosecution of criminal offences and the execution of criminal penalties would enable the security of the United Kingdom and the European Union to be strengthened. It follows that the TCA cannot be regarded as pursuing a number of objectives or as having several components, within the meaning of the case-law referred to in paragraph 63 above.

 

Comments

First of all, the Court’s approach to the scope of Article 50 is a logical application of its prior ruling that the purpose of Article 50 is partly to provide for an ‘orderly withdrawal’, as the Treaties cease to apply to the withdrawing State (note that the cessation of the Treaties to that country is not just an assertion in European Council guidelines, as the Court seems to imply, but is set out in Article 50 itself). This logically entails that the withdrawal agreement has a broad scope, covering ‘all the areas covered by the Treaties’ – because the withdrawal may raise issues as regards ending membership in any of those areas. The judgment implicitly confirms competence to conclude the transition period (‘the continued application of a significant part of the EU acquis’), also referring to ‘all questions relating to the separation’, in the context of ‘reduc[ing] uncertainty and, to the extent possible, minimis[ing] disruption’ (emphasis added). 

Although there is no reference to the potentially permanent system set up by the Northern Ireland protocol – which goes beyond purely transitional or ‘winding up’ rules – the Court’s judgment does point toward that direction, notably the reference to applying some EU law and to ‘all questions’ concerning withdrawal.

Secondly, as for association agreements such as the TCA, the judgment builds upon prior case law, and reflects the requirement for unanimity of Member States in the Council to conclude them – which is an even stronger guarantee for Member States than as regards development policy treaties (which can be concluded by a qualified majority in the Council). It appears, however, that the specific provisions in an association agreement should be linked to the objective of that particular agreement – although note that the Court’s description of the broad general objective of the TCA is not a frolic by the judges, but comes from the purpose of the treaty as agreed by the parties (see Article 1 of the TCA), which was quoted earlier in the judgment.

Finally, it is notable that while the Court confirms that the withdrawal agreement had to be concluded by the EU without participation of the Member States (para 50: ‘Article 50(2) TEU confers on the European Union alone competence to…’ – emphasis added), the Court does not comment on the fact that – unusually for association agreements – the TCA was also concluded by the EU without the Member States also becoming parties alongside it. However, the overall tenor of the judgment seems favourable to the EU only being a party to this agreement too (see the Council legal service opinion on this point). Given the Court’s explicit reference to the shared competence of the EU over justice and home affairs, it might reasonably be inferred from this judgment that, as the Council legal service argued, the EU alone may conclude association agreements when they include provisions on shared competence – or the Council may instead to conclude them alongside the Member States in such cases. 

Of course, the EU and the UK continue to argue about the interpretation, application and revision of the Northern Ireland protocol to the withdrawal agreement. Nevertheless, the Court’s firm conclusion that the EU had extensive powers to conclude the two key treaties relating to Brexit should address most or all complications that some had argued limited the powers of the EU to conclude those treaties. In that sense, at least as far as the EU is concerned, the Court of Justice has Got Brexit Done.

 

 

Barnard & Peers: chapter 26

JHA4: chapter II:2, chapter II:3

Photo credit: Jimmy Harris, via Wikimedia commons

Prison Break? The CJEU rules on clashing EU and national law obligations on detention time limits

Joske Graat, PhD candidate, Utrecht University

If EU law provides for a longer period of detention of a person subject to a European Arrest Warrant, and national law provides for a shorter period, which prevails? If national law is vague about the issue, is that a violation of the ECHR (and therefore also the EU Charter of Fundamental Rights), which provides that detention needs to be ‘lawful’, and so relevant national laws must be precise?

In the recent TC judgment the Court of Justice of the European Union (CJEU) provided an answer to the preliminary question posed by the Amsterdam District Court in July 2018, which raised these issues. The preliminary ruling was supposed to aid in resolving the devilish dilemma in which the Amsterdam District Court and Amsterdam Court of Appeal currently find themselves. As described in an earlier contribution, these national courts are stuck between national rules and EU law obligations regarding detention pending surrender proceedings. Article 22 of the Dutch Surrender Act (SA) transposes Article 12 of the Framework Decision on the European Arrest Warrant (FDEAW) into an automatic and absolute obligation to release the requested person if no decision on the execution of the EAW is made after 90 days have passed.

In other words, the decision to extend the time to rule on the execution of an EAW after 90-days have lapsed needs to be accompanied by the decision to (provisionally) release the requested person. The application of this national rule became problematic after the Lanigan judgment wherein it was established that national judicial authorities are not obliged to provisionally release the requested person after 90 days as this may threaten the effectiveness of the FDEAW. To avoid a violation of the obligation in article 17 FDEAW, which requires that the substantive conditions for surrender are guaranteed at all times, both the Amsterdam District Court and the Amsterdam Court of Appeal adopted – on the basis of different legal reasonings – a broad interpretation of article 22 SA. They concluded 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, which may result in a de facto detention duration beyond 90 days. In its request for a preliminary ruling the Amsterdam District Court asked whether this new interpretation violates legal certainty as protected by Article 6 Charter of Fundamental Rights of the European Union (CFR), which lays down the right to liberty, and which corresponds to Article 5 ECHR.

In its preliminary ruling the CJEU first determines that the FDEAW precludes the unconditional obligation to release after 90 days as it undermines the effectiveness of the FDEAW. As we will see, this determination plays an important role in relation to the second conclusion, which is that Article 22 SA and its current interpretation by the national courts does not constitute a sufficiently clear and predictable legal basis for continued detention after 90 days. In my view the legal reasoning underlying this conclusion gives rise to certain questions and does in the end not provide the necessary solution to the dilemma in which the national courts find themselves. 

The CJEU bases its violation of Article 6 CFR on two main arguments; the variation in the legal reasonings of the national courts that may result in different periods of continued detention and the fact that the current national case law does not ensure full conformity with the FDEAW.  With regard to the second argument it is, in my view, first of all interesting that the CJEU does not only consider the clarity and predictability of Article 22 SA, but of the relevant provisions in the FDEAW, as interpreted in Lanigan, as well. This gives rise to the question in what way the individual is concerned with the clarity of the rules in the FDEAW, as it is an instrument that imposes obligations on the member states, is not directly applicable and does not have direct effect? Does this mean that an individual should be able to understand the rules on the duration of detention as they follow from the FDEAW interpreted in the case law of the CJEU? Absent legal counsel this seems like an almost impossible task. 

Secondly, in the context of the second argument the CJEU concludes that ensuring clear and predictable rules on the duration of detention requires a broader application of the power to suspend the decision term by the national courts. The CJEU firmly reminds the national courts of their obligation to do all within their jurisdiction to interpret Article 22 SA in conformity with the FDEAW as explained in Lanigan. The current interpretation fails in this regard as it only allows for a suspension in three particular situations, including the referral or awaiting of a preliminary ruling and when the issuing state is requested to provide information contradicting a possible violation of article 4 or 47 CFR. However, when the preliminary ruling is made or information is provided by the issuing state the suspension is lifted, and the 90-days term once again applies. According to the CJEU, in order to ensure full conformity with the FDEAW, national law should allow for a suspension of the decision term in all cases in which a serious risk of absconding cannot be sufficiently limited by non-custodial measures.

An obligation to (provisionally) release only arises when after balancing the factors laid down in Lanigan continued detention becomes excessive. This message of the CJEU brings the national courts, in my opinion, back to square one. Despite the CJEU’s firm emphasis on the duty of conform interpretation (indirect effect) and the fact that a suspension of the decision terms is not prohibited by the FDEAW, it is still for the national courts to determine whether a conform interpretation is in fact possible. In this light, I would argue that interpreting Article 22 SA in full conformity with the FDEAW would clash with the intent of the Dutch legislator to establish an unconditional obligation to release after 90 days and would be contra legem. 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 a fully conform interpretation of Article 22 SA would require a contra legem explanation of this provision, which would in itself not contribute to the protection of an individual’s legal certainty. In other words, the national courts are still stuck between EU obligations and national rules whose wording do not allow a conform interpretation. As the CJEU did not answer the question whether the primacy rule applies to the FDEAW as well, this preliminary ruling does not provide the necessary solution for the dilemma of the national courts. However, this may change when the CJEU answers this question in the Poplawski II case which is still pending (Opinion of the AG November 27, 2018).

It can be concluded that the CJEU seems to use the TC case to send a message of its own. Despite the clear fundamental rights angle of the initially referred question, the judgment is, in my view, predominantly a slap on the wrist of the Dutch legislator and the national courts for not ensuring full compatibility with EU law. In addition, the dilemma in which the national courts find themselves is not solved. This reaffirms the conclusion made in my previous contribution, which is that the Dutch legislator needs to step in to solve this situation as it is the only public authority with the necessary means to do so. To end on a more positive note, the strong focus on the incompatibility of national law with EU law might just be the necessary push for the Dutch legislator to come to the rescue of the national courts by adapting article 22 SA in conformity with the FDEAW.

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: IBtimes.uk

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

Mutual trust and independence of the judiciary after the CJEU judgment in LM – new era or business as usual?

Dr hab Agnieszka Frąckowiak-Adamska, Faculty of Law, University of Wroclaw

In case C-216/18 PPU LM the CJEU was asked by an Irish court to address one of the most serious current legal challenges of the EU: the consequences of restrictions imposed upon judicial independence in one Member State for other Member States of the Union. The sequence of laws adopted in 2015-2018 in Poland has been assessed commonly by various external and internal institutions as “enable(ing) the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice and thereby pos(ing) a grave threat to the judicial independence as a key element of the rule of law” (quotation from the Venice Commission). Consequently, to protect the rule of law in Europe, the European Commission submitted for the first time in the history a reasoned proposal activating the Article 7 TEU mechanism. Two infringement procedures based on Article 258 TFEU against Poland are also ongoing (on the law on the ordinary courts organisation - C-192/18 and on the law on the Supreme Court). The Supreme Court itself has also asked the CJEU to rule on the latter issue (see discussion here).

Is the organisation of the judiciary in Member States the EU’s business?

The Polish reforms are problematic for the EU because national courts are to ensure “the full application of European Union law (…) and (…)  judicial protection of an individual’s rights under that law” (Opinion 1/09, § 68). If politicians can influence courts’ decisions, they can use this leverage to pursue sheer protectionism, instead of advancing the interests linked to the EU internal market and citizenship. In addition, deficiencies of judicial independence in one Member State entail problems for the courts in other Member States, as the latter are obliged by EU law to recognize and enforce judicial decisions coming from other EU Member States. Should the courts trust the judgments from the State in which the division of powers is blurred?

Many questions arise in this context. Member States and their legal orders differ as to the substance and procedures, ways and level of protection of fundamental rights, court organisation and the expediency of proceedings. These differences are treated as diversity and have not prevented the EU from establishing the European area of justice based on mutual trust and mutual recognition of judgments. How to find the limits of States’ freedom to organise their judiciary? How to differentiate between a “reorganisation” and a breach of the rule of law? Is the EU (and if yes, who exactly – Council, CJEU?) legitimized to make such a decision? And what consequences should be drawn if a breach of the rule of law is established?

These issues can be important for all 24 EU acts introducing mutual recognition of judgments (14 regulations on civil cases and 10 framework decisions and 2 directives on criminal cooperation). The LM case arose in the context of one of them – the European Arrest Warrant (EAW) Framework Decision.

The preliminary reference in the LM case

In the Irish case, in which the EAW was issued by a Polish judicial authority against a person prosecuted for a drug related crime, the defendant argued that, due to the reforms of the Polish judiciary, there is a risk of denial of justice if he is transferred to Poland. Consequently, the Irish court premised its preliminary question to the CJEU on the right to fair trial. As at this time Poland was already subject to the stage of a reasoned proposal by the Commission as referred to in Article 7(1) TEU (which would, if adopted by the Council, have established a risk of a threat to the rule of law in Poland), the Irish court asked whether in case of “cogent evidence that 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” it should “make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial”. Such a two-prong test (first - “systemic deficiencies in the state”, and second – “actual risk in an individual case”) was established by the CJEU in the Aranyosi judgment (discussed here), which also related to the protection of fundamental rights in the context of mutual recognition of judgments, in the context of detention conditions.

In the LM case the CJEU could answer the question in three different ways. First, it could refrain from assessing the impact of the restrictions of judicial independence on the EAW mechanism (following Poland’s argument that only the Council is empowered to do so, on the basis of Article 7 TEU). Second, it could follow the Aranyosi pattern, ie the two-step test. As the last alternative, it could allow to suspend the cooperation with a Member State which breaches the obligation to ensure the independence of its courts. This last possibility could seem all the more likely path towards deciding the LM case after the Court issued its recent decision in the case of Associação Sindical dos Juízes Portugueses (discussed here), in para 37 of which it stated that the obligation of judicial independence stems from the EU law.

Judgment in the LM case 

Maybe because of time constraints (as the due urgent procedure applied) or maybe due to an unwillingness of the CJEU to become dragged down into a political brawl, the Luxembourg institution took the safest path of applying to the case the already existing pattern (Aranyosi).

According to the judgment of 25 July 2018 in the LM case, national courts should apply both steps of the Aranyosi test when judicial independence in the issuing country is endangered. If the executing court possesses a strong evidence of systemic or generalised deficiencies in this respect, it should proceed to the second step – of individual case assessment. The CJEU indicated that suspending the mechanism of recognition is possible only if the decision on the basis of Art. 7 TEU is taken (§§ 71 -73 of LM).

Until this moment even if a Member State is subject to a reasoned proposal, as referred to in Article 7(1) TEU, “the executing judicial authority must refrain from giving effect to the European arrest warrant” only if there are substantial grounds for believing that that person will run a real risk of a breach of the fundamental right to a fair trial (§ 78 and 59). However, there is one important novelty (stemming from §§ 60 and 68 of LM) - the fact of starting the Article 7 TEU procedure rebuts the presumption of mutual trust as the individual assessment is required in every case in which the person subject to EAW pleads it.

By the same token, the Court found itself competent to tackle the issue of judicial independence, but only from the perspective of the protection of an individual. It did not determine any systemic consequences of limiting the judicial independence for judicial cooperation. The issue of judicial independence was thus treated as a part of a right to a fair trial protected by Article 47 of the Charter. The answer was based on the interpretation of Article 1 (3) of the EAW framework decision, which states that this act shall not modify “the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6” [TEU] (nota bene interesting from the Freudian perspective is that the CJEU did see in this provision also the reference to Article 2 TEU (§ 45 of LM), which sets out the values of the EU enforced by the Article 7 process, even though Article 1(3) mentions only Article 6 TEU, which refers to the mechanisms for the protection of human rights within the EU legal system).

The reasoning of the court unfolds in three parts.

Firstly (§§ 33-46) the CJEU reminds of the fundamental values and principles which are at stake in the case – Article 2 TEU, mutual trust, and mutual recognition principles. Then it confirms that the execution of the EAW constitutes a rule and can be refused only when one of the grounds of refusal exhaustively listed by the Framework Decision materialises. Additionally, the executing judicial authority has the power to bring the surrender procedure to an end ‘in exceptional circumstances’, when limitations are placed on the principles of mutual recognition and mutual trust.

In the second part (§§ 47-59) the CJEU verifies whether a risk of a breach of the fundamental right to an independent court can justify a limitation of the mutual trust and permit the executing judicial authority to refrain from giving effect to an EAW. This highlights the importance of judicial independence as a part of a right to fair trial and the rule of law. It repeats the statements made by the Court in Associação Sindical dos Juízes Portugueses i.a. that it is an obligation of Member States to ensure that their courts which “come within its judicial system in the fields covered by EU law” meet the requirements of effective judicial protection. Only if there is a real risk that the person will suffer a breach of his fundamental right to an independent tribunal and, therefore of the essence of the right to a fair trial, can the executing judicial authority to refrain, by way of an exception, from giving effect to the EAW (§ 59).

For national courts and individuals the most important part of the judgment are paras 60-78, which instruct the former on how to proceed if the person in respect of whom an EAW has been issued pleads that there are systemic or generalized deficiencies in the independence of courts in the issuing state. The procedure is not left to the discretion of the executing authority. In such a case the executing authority is required to make an assessment of the risk in the individual case (§ 60). The assessment consists of two steps – a systemic assessment (§ 61-68) and a specific one (§ 69-78).

The first step (a systemic assessment) should be done by the executing authority on the basis of “objective, reliable, specific and properly updated” information and according to the criteria of judicial independence set out by the CJEU in §§ 62-67 of the LM case. If this assessment implies the conclusion that there is a real risk of systemic or generalised deficiencies of judicial independence there, the court is obliged to pass to a specific assessment. The executing authority does not have to make its own assessment if the issuing state is subject to reasoned proposal as referred to in Article 7(1) TEU, and “the executing judicial authority considers that it possesses, on the basis, in particular, of such a proposal, material showing that there are systemic deficiencies, in the light of those values, at the level of that Member State’s judiciary” (§ 68). In such a case also the executing authority should pass to the second step.

The second step (specific assessment) aims to verify whether in the particular circumstances of the case there are substantial grounds for believing that, following the surrender to the issuing Member State, the requested person will run a real risk of a breach of the fundamental right to a fair trial (§ 69-78). The court should verify firstly “to what extent the systemic or generalised deficiencies are liable to have an impact at the level of that State’s courts with jurisdiction over the proceedings to which the requested person will be subject” (§ 74). In case of a positive answer, it should assess whether there is a real risk of a breach of his fundamental right to an independent tribunal, having regard to his or her personal situation, the nature of the offence for which he or she is prosecuted and the factual context that forms the basis of the European Arrest Warrant.

It can perform this assessment on the basis of (§§ 75-78): 1) specific concerns expressed by the individual concerned and any information provided by him or her; 2) any supplementary information obtained from the issuing judicial authority in the answer to the (mandatory) request made by the executing authority’; and 3) (optional) assistance from the central authority or one of the central authorities of the issuing Member State.

If the information obtained in such a way by the executing judicial authority “does not lead the latter to discount the existence of a real risk (…) (for the individual concerned) “the executing judicial authority must refrain from giving effect to the European arrest warrant” (§ 78).

Assessment of the LM judgment

It is difficult to assess the LM judgment in an unequivocal way (see the debate on Verfassungblog). The Luxembourg court is praised by some for confirming its competence to tackle the issue of the independence of judiciary and for its judicial prudence. It is criticized by others for not setting systemic consequences of the breach of independence but also for a definition of judicial independence which is too detailed and disconnected from the ECHR’s.

Certainly, the LM judgment did not halt the Polish “reforms”. Instead it allowed to rebut the presumption of mutual trust if a Member State is subject to a reasoned proposal provided by Article 7(1) TEU. In such a case the individual assessment is required in every case in which it is pleaded. But it means that the executing authorities would have to make embarrassing investigations about the substantial issues of the cases and of the division of powers in Poland. In my opinion (developed here), it can contravene the spirit of mutual trust between the courts and often will be impossible in practice. Arguably the CJEU should have focussed not only on the protection of individuals but also on the interests of other States and the EU at large. In the LM case the CJEU acted like the Court of Human Rights which is always very welcome. But it is not enough to stand up against the destruction of the rule of law in Europe. Maybe in next cases – either based on the Article 258 TFEU infringement procedure or following the preliminary reference from the Polish Supreme Court it will show also its other face – this of a constitutional court of the EU.

But the LM judgment can also be seen as an important development of the case law related to the protection of fundamental rights in the context of mutual recognition. At least some questions arising after the Aranyosi decision have been answered. It is now clear that not only an infringement of Article 4 of the Charter (on freedom from torture or other inhuman or degrading treatment, in the context of detention conditions) but also of the essence of Article 47 (which is always at stake when the judicial independence is limited) can justify refraining from the execution of the EAW. However, it is to clarify whether the EAW should not be executed also in case of the risk of the breach of further fundamental rights e.g. a right to a private and family life. The detailed analysis on the issue whether the right to the fair trial is capable of limiting the execution of EAW (§§ 47-59) suggests that it is not certain that every right protected by the Charter can have this effect.

Other aspects to be clarified in the future are what “refraining from giving effect to the EAW” exactly means and whether the systemic deficiencies are a prerequisite to apply the individual test. The Aranyosi and LM cases are related to systemic deficiencies, but their conclusion is that what is always required to be performed is the individual risk test. The development of the case law on another aspect of the Area of Freedom, Security and Justice – the common European asylum system – shows that the transfer of an asylum seeker to another Member State should be refused if there is a risk of the person concerned suffering inhuman or degrading treatment even if there are no systemic deficiencies (case C-578/16 PPU, C.K., discussed here). The open question is whether the same pattern will apply to the EAW and to other fundamental rights.

My final point is that the non-execution of EAWs based on an individual test is not capable to resolve the essence of the problems with fundamental rights and judicial independence. It often results in an impunity for the requested person, which constitutes a severe consequence for others (victims) and for the public interest. Moreover, it can save fundamental rights of individuals partly only. The parallel judgment in Case C-220/18 PPU ML confirms this conclusion, as it limits the meaning of the Aranyosi assessment of detention conditions in the issuing Member State to the first prisons in which the person concerned will be held immediately after the surrender. The CJEU admitted that “since a person who is the subject of a European arrest warrant can, as a general rule, be detained in any prison in the territory of that State. It is generally not possible at the stage of executing a European arrest warrant to identify all the prisons in which such a person will actually be detained” (§ 81 of ML). In reality, therefore, the individual is not wholly protected against inhuman treatment. The same limitation is seen already in LM judgment according to which the executing authority should verify “to what extent the systemic or generalised deficiencies (..) are liable to have an impact at the level of that State’s courts with jurisdiction over the proceedings to which the requested person will be subject.” (§ 74 of LM).

The non-execution of EAWs should be treated as a signal of serious problems and the EU should reflect how to solve their sources. Here there is a clear difference between prison conditions and the independence of the judiciary. In the case of a breach of fundamental rights (Aranyosi) the reason laying at the heart of the breach was a serious structural incapacity of some Member States to ensure the proper standard of detention conditions in prisons. Improving this capacity is a long, costly and complicated process, which the EU could only stimulate and support. In the case of independence of judges in Poland the source of the problem is the will of the governing party. The problem could be very easily and quickly resolved by withdrawing the reforms related to courts, according to the recommendations of the Venice Commission/European Commission. The only thing that the EU can (and should) do is to set clear limits as to the rule of law and the consequences of trespassing them. If the EU had done it earlier addressing Hungary, the Polish government would not have dared to follow the Hungarian path.

Barnard & Peers: chapter 9, chapter 24

JHA4: chapter II:3

Photo credit: CNBC.com

“Dear Colleague, Are You Independent Enough?” The Fate of the Principle of Mutual Trust in Case of Systemic Deficiencies in a Member State’s System of Justice

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).

Comments

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