“Dear Colleague, Are You Lot Independent Enough?” The Fate Of The Regulation Of Usual Trust Inwards Instance Of Systemic Deficiencies Inwards A Fellow Member State’S Organization Of Jurist

By Cecilia Rizcallah*

*Research Fellow at the Belgian National Fund For Scientific Research (F.R.S.-FNRS). The writer wishes to give thank you lot Pr. S. Van Drooghenbroeck. The commons disclaimer applies.

Advocate General Tanchev delivered, a few days ago, his opinion inwards the illustration C-216/18 PPU concerning a gear upwards of European Arrest Warrants (EAWs) issued against LM, suspected of drug trafficking, yesteryear the Polish Authorities. The illustration concerns a reference for a preliminary ruling made yesteryear the Irish Gaelic High Court, which questions the European Court of Justice (ECJ) on the obligation to execute a EAW when the “conditions inwards the issuing Member State are incompatible with the commutation correct to a fair trial because the scheme of justice itself inwards the issuing Member State is no longer operating nether the dominion of law”.

Context of the illustration

This illustration emerges inwards the context of the “rule of police line crisis”, resulting from recent reforms threatening EU’s founding values inwards around Member states including, with others, Poland. The Venice Commission together with other organisations take hold indeed observed the existence of serious breaches of the dominion of law, notably due to the reform of its judiciary which highly undermines its independency. Ensuing this crisis together with the lack of improvement of the province of affairs inwards Poland, the Commission issued, inwards Dec 2017, a reasoned proposal inwards accordance with Article 7(1) TEU proposing to the Council to assert the existence of a clear risk of a serious breach of the dominion of police line inwards Poland.

No concrete activity has yet been taken pursuant to this opinion, notably because of the heavy weather condition put downwards inwards Article seven together with the lack of other proper tools to react to such events. Brussels has thus until at nowadays been unable to offering a collective together with efficient reply to this crisis together with the starting fourth dimension consequences on European Union integration start out to popular up.  The ECJ inwards that honour ruled 2 weeks agone that Poland had breached the Railway Safety Directive (Directive 2001/14/EC) because of the lack of independency of its investigating torso of railway undertakings together with infrastructures. It is at nowadays the plow of the machinery of the EAW to aspect upwards the difficulties triggered yesteryear the dominion of police line crisis inwards 1 of the Member States.

As a reminder, the European Arrest Warrant mechanism, enshrined inwards the Council Framework Decision of thirteen June 2002 (hereafter the Framework decision), relies upon the regulation of mutual trust, which presumes the honour yesteryear all the Member US of European Union founding values listed inwards Article 2 TEU, including the dominion of police line together with human rights. This presumption justifies the quasi-automaticity of the execution of EAWs, together with prevents inwards regulation the command of the honour of commutation rights yesteryear the executing Member State. The executing national authorization has to “trust” the admissibility of EAWs issued yesteryear its peers.

According to the settled case-law of the ECJ, the grounds for non-execution of a EAW are exhaustively listed inwards the Framework Decision together with must hold out restrictively construed because of the regulation of mutual trust. Yet, commutation rights are non explicitly included with the grounds for refusal inwards the Framework decision. Relying upon the regulation of mutual trust together with for the sake of the EAW mechanism’s effectiveness, the ECJ has long been reluctant to permit national courts to command the honour of commutation rights when requested to execute a EAW.

A starting fourth dimension breach was nevertheless opened yesteryear the Aranyosi together with Căldăraru judgment (discussed here), where the ECJ considered that, inwards rattling exceptional circumstances, the execution of a EAW may hold out postponed when the private would aspect upwards a existent risk of inhuman or degrading handling inwards the issuing Member State inwards illustration of give upwards because of the detention weather condition inwards this country. It developed a two-step approach to determine the existence of such risk: first, the executing authorization must hold out “in possession of evidence of a existent risk of inhuman or degrading handling of individuals detained inwards the issuing Member State” (§89)  and, “whenever the existence of such a risk is identified, it is so necessary that the executing judicial authorization brand a farther assessment, specific together with precise, of whether at that spot are substantial grounds to believe that the private concerned volition hold out exposed to that risk because of the weather condition for his detention envisaged inwards the issuing Member State” (§92).

According to the Court, the requested authorization must, to that end, “request of the judicial authorization of the issuing Member State that at that spot hold out provided equally a affair of urgency all necessary supplementary information on the weather condition inwards which it is envisaged that the private concerned volition hold out detained inwards that Member State” pursuant to Article 15(2) of the Framework Decision (§95).

The query inwards C-216/18 PPU

The question posed inwards Case C-216/18 was whether the dominion of police line crisis together with the systemic deficiencies inwards the Polish judicial scheme could justify the refusal of execution of a EAW issued yesteryear this Member State. More precisely, the Irish Gaelic approximate asked the ECJ whether the Aranyosi together with Căldăraru double examine leading to the recess of EAWs’ execution should apply inwards illustration of systemic breach of the dominion of law.  This illustration thus appears to hold out an occasion to the ECJ to furnish around of the missing pieces inwards the puzzle of tolerated limitations to the regulation of mutual trust.

Unlike the Aranyosi together with Căldăraru case, the query raised inwards the illustration C-216/18 concerns structural deficiencies inwards a Member State’s scheme of justice together with risk of breaches of a non-absolute right, the correct to a fair trial (Article 47 of the Charter). Sensitive issues are moreover at stake, inwards relation to the controversial reforms adopted inwards Poland. Political reactions take hold non been wearisome inwards coming.

The Advocate General’s sentiment

A few days ago, the Advocate General Tanchev issued its sentiment which, inwards a nutshell, pleads for the adoption of the Aranyosi together with Căldăraru double examine inwards the illustration at hand. The Advocate General started its reasoning yesteryear differentiating the assessment that should, according to him, hold out applied inwards the acquaint illustration together with the 1 that should hold out carried out yesteryear the Council nether Article 7(1) TEU. Indeed, “the referring courtroom asks the Court of Justice whether, inwards monastic say for it to hold out required to postpone the execution of a European arrest warrant, it is sufficient for it to let on that ‘conditions inwards the issuing Member State are incompatible with the commutation correct to a fair trial because the scheme of justice itself [of that Member State] is no longer operating nether the dominion of law” (§39).

The Court is therefore, according to the Advocate General, non asked virtually the consequences of breach of the value constituted yesteryear the dominion of law, but virtually consequences of breach of the correct to a fair trial. By this statement, the Advocate General offers an appealing way-out allowing the ECJ non to by together with large pronounce itself by together with large on the electrical flow sensitive political number of the dominion of police line crisis inwards Poland. This finding moreover seems inwards compliance with the volition of the treaties, Article 269 TFEU excluding the competence of the ECJ to dominion on the legality of the acts adopted nether Article seven TEU, except for procedural concerns.

In the sentiment of the Advocate General, unlike consequences must moreover hold out triggered from the activation of Article seven together with from the Aranyosi together with Căldăraru judgement. On the 1 hand, the finding, inwards a specific case, of the existence of a real risk of breach of the prohibition of inhuman or degrading handling obliges the executing judicial authorization to postpone the execution of the EAW at issue. On the other hand, the recess of the whole EAW scheme inwards honour of a Member State may exclusively occur if the Council so decides, pursuant Article seven (3) TEU, on the ground of the existence of a breach, together with non of a mere risk of breach, of European Union 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 together with Căldăraru examine should hold out applied inwards the illustration at hand. First, he addressed the query of the possibility to postpone the execution of a EAW for protecting non-absolute rights. According to him, the fact that exclusively limitations on the regulation of mutual trust take hold hitherto been accepted inwards the calorie-free of Article 4 of the Charter does non precludes a similar conclusion when other rights, such equally the correct to a fair trial, are at stake (§58). Nevertheless, given the importance of the regulation of mutual trust, “it is non sufficient that at that spot is a existent risk of breach of the minute paragraph of Article 47 of the Charter inwards the issuing Member State” (emphasis added, the Advocate General interestingly did non piece of occupation the word “restriction” but “breach”).

The postponing of an EAW may exclusively occur when at that spot exists a “real risk of breach non of the correct 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 together with impartiality of a tribunal tin hold out regarded equally amounting to a flagrant denial of justice exclusively if it is so serious that it destroys the fairness of the trial” (§93). Assessing the existence of such risk, the executing judicial authorization must “rely on information which is objective, reliable, specific together with properly updated on the weather condition prevailing inwards the issuing Member State, together with which demonstrates that at that spot are deficiencies affecting the Polish scheme of justice” (§95), such equally the Venice Commission’s reports or the Commission’s reasoned opinion.

Yet, inwards the Advocate General’s opinion, such finding is nevertheless non sufficient for deciding the postponing of a EAW. The executing judicial authorization must, moreover, ascertain that “in the illustration inwards point”, the private concerned volition hold out exposed to that risk (§104), yesteryear examining the detail circumstances relating either to that mortal or to the offence (113). It should notably hold out ascertained whether the private is a “political opponent or whether he is a fellow member of a social or ethnic grouping that is discriminated against” and/or if “the offence for which the private concerned is existence prosecuted is political inwards nature or whether the powers that hold out take hold made world declarations concerning that offence or its punishment” (§113). The burden of proof shall prevarication on the private concerned (§115). In the assessment of the private risks faced yesteryear the requested person, the executing approximate must moreover request, from the issuing judicial authority, all necessary supplementary information on the ground of Article 15(2) of the Framework Decision “concerning, first, legislation adopted subsequently the Commission’s reasoned proposal together with the opinions of the Venice Commission and, second, the detail features relating to the private concerned together with to the nature of the offence that would hold out liable to expose him to the existent risk of flagrant denial of justice identified” (§128).  Eventually together with “in the calorie-free of the information obtained” the executing judicial authorization must execute the warrant if it considers that the mortal dependent to the EAW does non run a existent risk of suffering a flagrant denial of justice inwards the issuing Member State or, on the contrary, postpone its execution if such risk be (§§130 – 131).

Comments

In spite of electrical flow events attesting the serious endangerment of European Union founding values inwards several Member States, the Advocate General’s sentiment sounds similar a plea for the safeguard at whatever cost of a – yet no longer existing –  trust betwixt Member States. It calls for a few comments. 

First, the Advocate General pleads for distinguishing the exam of the existence of a dominion of police line crisis which systematically threatens the independence of the Polish judiciary together with the assessment of the honour of the correct to a fair trial inwards Poland. It is truthful that both procedures differ from their nature, 1 existence political the other judicial equally good from their object, 1 concerning the serious together with persistent breach of the EU’s founding values together with the other the correct to a fair trial. Nevertheless, the risks inwards price of Human rights inwards the illustration at mitt exactly outcome from the systemic violation of the value of the dominion of law. The alleged risks produce non consist inwards a punctual breach of the correct to a fair trial inwards relation to the specific illustration at hand, but inwards structural deficiencies inwards the Polish judicial scheme presenting risks for the fairness of its trials. If both assessments differ inwards their nature, their object must, inwards our view, non hold out addressed inwards isolation. According to the Advocate General, both procedures produce also trigger unlike consequences. It is exclusively if the Council observes the breach – together with non the mere existence of a risk of breach – of European Union founding values that the EAW machinery could perhaps hold out suspended. This finding suggests depression likelihood that the EAW physical care for would e'er hold out suspended given the inefficiency of the Article seven procedure, attested yesteryear recent events, equally good equally the miserable probability to attain the required unanimity at the Council.  

Secondly, the systemic grapheme of the judicial system’s deficiencies does non suffice inwards the view of the Advocate General to justify the non-execution of Polish EAWs.  Relying upon the ruling inwards Aranyosi together with Căldăraru, he considers that a refusal to give upwards an private may exclusively occur when (i) at that spot exists a risk of breach of the correct to a fair trial’s essential content amounting to a flagrant denial of justice together with (ii) the requested mortal individually faces the risk to hold out dependent to this breach.  In relation to the starting fourth dimension condition, the Advocate General thus clearly gives priority to the regulation of mutual trust over the protection of commutation rights, since non whatever breach of these rights could compromise inwards his view the execution of a EAW. This finding contrasts with the ECJ’s ruling inwards Tupikas, where it held that “the principles of mutual trust together with recognition on which that Framework Decision is based must non inwards whatever way undermine the commutation rights guaranteed to the persons concerned” (emphasis added), equally good equally the Framework Decision’s preamble, which underlines that it respects commutation freedoms.

The Advocate General refers to the ECtHR illustration police line virtually extradition procedures inwards monastic say to attain this conclusion. The ECtHR indeed several times relied upon the “flagrant denial of justice” concept inwards monastic say to determine the responsibleness of a Contracting Party which indirectly enabled or gave effect to the breach of of import components of commutation freedoms yesteryear 3rd parties (see, for instance, ECtHR 26 June 1992, Drozd together with Janousek v. French Republic together with Spain, § 110,). Nevertheless, it is worth naught that the case-law on this number is non consistent, equally shown yesteryear the judgment inwards Pellegrini v Italia where the fact that the judgment was rendered yesteryear a 3rd political party – the Vatican –  justified, according to this to the ECHR, a total command of the honour of Article half dozen yesteryear the executing Italian judge.

Moreover, this examine was exclusively used inwards regard to extradition procedures with 3rd States, based on the reasoning that “the Convention does non regulation the actions of US non Parties to it, nor does it purport to hold out a agency of requiring the Contracting US to impose Convention standards on other States” (ECtHR seven July 1989, Soering v. United Kingdom, § 86). Yet, the illustration at mitt concerns the cooperation betwixt 2 Member US of the Council of Europe together with moreover, of the European Union. Moreover, 1 should wonder why violations (not mere restrictions) of Article 47 of the Charter must, for the sake of the regulation of mutual trust, hold out accepted inwards the European Union piece this regulation is exactly founded on the presumption of compliance, yesteryear all Member States, with commutation rights equally enshrined inwards the Charter. The ECtHR seems nevertheless to consent to the regulation of mutual trust inwards its Avotins sentence (discussed here), at to the lowest degree equally long equally Member US are “empowered to behaviour a review commensurated with the gravity of whatever serious allegation of a violation of commutation rights inwards the State of origin, inwards monastic say to ensure that the protection of those rights is non land deficient” (ECtHR 23 May 2016, Avotins v. Latvia, §114). This illustration did non concern the EAW machinery but the mutual recognition inwards civil proceedings, where guarantees contained inwards Article half dozen apply less stringently than to criminal proceedings.  

As far equally the minute status is concerned, the Advocate General requires the maintenance of an private assessment consisting inwards first, the exam of the nature of the alleged offence together with the individual’s profile and, secondly, inwards an commutation of information betwixt 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 business office of the opinion.  First, regarding  the object of this assessment. The executing approximate would indeed hold out required to postpone the execution of a EAW, according to the Advocate General, “only where it finds non exclusively that at that spot is a existent risk of flagrant denial of justice on concern human relationship of deficiencies affecting the scheme of justice of the issuing Member State but also that the private concerned volition hold out exposed to that risk”.

It must inwards that regard consider notably the nature of the alleged offence equally good equally the profile of the mortal dependent to the EAW, together with especially, whether he is a political opponent or whether he is a fellow member of a social or ethnic grouping that is discriminated against inwards the issuing solid ground (§113). Yet, the possibility to reject to give upwards persons convicted for political offences has been peculiarly removed from the Convention on Extradition betwixt Member US of the European Union concluded inwards 1996 – when replaced yesteryear the Framework determination (see word here). Furthermore, requesting the private to demonstrate the lack of independence of the tribunal inwards his or her specific illustration seems to disregard the traditional illustration police line of the ECHR, according to which serious doubts that an private volition non produce goodness from a fair trial yesteryear an independent together with impartial tribunal may atomic number 82 to a violation of Article half dozen 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 courtroom proceedings, fifty-fifty if they take hold non been effectively used inwards the illustration at hand, suffice, inwards the view of the ECtHR, to let on a breach of the correct to a fair trial (ECtHR, xix Apr 1994, Van De Hurk v. The Netherlands, §50 together with ECtHR, 25 July 2002, Sovtransavto Holding v. Ukraine, §§ 77 together with 80). The approach proposed yesteryear the Advocate General also contravenes the “doctrine of appearance” (ECtHR, 17 Jan 1970, Delcourt v Belgium, §31 together with Kress v France, seven June 2001, §81), unremarkably adopted yesteryear the ECtHR, which attaches neat importance to “appearances together with to the increased sensitivity of Earth to the fair direction of justice” (ECtHR, xxx Oct 1991, Borgers v. Belgium, §24).

Indeed, according to this doctrine, “justice must non exclusively hold out done, it must also seem to hold out done”, together with “importance should hold out given to the confidence which the courts inwards a democratic social club must inspire inwards Earth together with to a higher house all, equally far equally criminal proceedings are concerned, inwards the accused” (ECtHR, ix June 1998 Incal v. Turkey, §71). Speculations virtually the effective independent grapheme of a tribunal inwards a specific illustration should thus non hold out needed when of import deficiencies inwards the dominion of police line such equally those at number exist.  The inadequacy of such examine is furthermore strengthened yesteryear the way the requested approximate should determine the existence of a risk of breach of the correct to a fair trial. The sentiment indeed proposes to require from the executing authority, earlier deciding upon the execution of the EAW, “to inquire the necessary information to that terminate to the issuing judge”. One may indeed wonder how a approximate - whose independence is challenged – would furnish reliable information on…his or her ain independence!

New playground, novel rules of the game?

The regulation of mutual trust constitutes an of import tool of European Union integration, used both inwards the internal marketplace together with inwards the Area of freedom, safety together with justice. In relation to the EAW system, it enables effective together with smoothen criminal cooperation betwixt Member US without the merging of their national criminal systems of justice nor uniformisation of their national criminal law. Nevertheless, this regulation was developed on the presumption that exclusively democratic systems, respecting EU’s founding values including commutation rights were involved. The importance of the honour of the dominion of police line was inwards that feel of late recalled yesteryear the ECJ inwards its illustration police line Associação Sindical dos Juízes Portugueses (ECJ, 27 Feb 2018, discussed here). One must nevertheless Federal Reserve annotation the lack of dependent land of around Member US to comply with this value, despite numerous diplomatic attempts to halt the crisis. Should nosotros nevertheless hold the obligation for Member US to trust inwards each other’s scheme of justice notwithstanding these events?

The regulation of mutual trust, of commutation importance to European Union law, relies upon the presumption that Member US portion together with honour a gear upwards of mutual values (ECJ, xviii Dec 2014 Opinion 2/13, §168). Firmly upholding this regulation piece its foundations are undermined seems problematic. Once the playground has changed, shall the initial rules of the game hold out kept? Besides existence equally such problematic for the State concerned yesteryear the crisis, imposing mutual trust to other US entails an of import risk of contagion inwards all the European Union since national judgments are mutually recognised. In addition, 1 should deport inwards hear the rights at stake, which include the correct of judicial protection rightly referred to equally “the correct to take hold right”.  This correct furthermore amounts to, according to the ECJ, the essence of the dominion of police line (ECJ, 27 Feb 2018, Associação Sindical dos Juízes Portugueses, §36).

Admittedly, the electrical flow “rule of police line crisis” constitutes starting fourth dimension together with foremost a political number that has to hold out dealt with yesteryear political bodies such equally the Council equally provided yesteryear Article seven TEU. Nonetheless, the ECJ must ensure the honour of European Union police line and, inwards particular, of the Charter of Fundamental Rights which is business office of primary law. When construing the Framework Decision, the Court shall hence – at to the lowest degree theoretically – ensure the honour of European Union Fundamental Rights together with inwards detail of the correct to an effective judicial protection. In our view, the regulation of mutual trust, existence it a commutation principle, shall non justify restrictions to commutation rights that produce non honour the weather condition put downwards inwards Article 52 of the Charter which non exclusively requires the honour of the essential content of commutation rights, but, also, a to a greater extent than full general proportionality assessment.

Barnard & Peers: chapter ix

JHA4 : chapter II :3

Photo credit : Human Rights Watch

Share this post