Human Rights Five The European Arrest Warrant? The Legality Of Give Upwards Detention Afterwards Ninety Days

Joske Graat, PhD student, Utrecht University

The Amsterdam District Court, which has the exclusive jurisdiction inwards the Netherlands to create upwards one's hear on incoming European Arrest Warrants (EAW), currently finds itself stuck betwixt national rules too European Union police trace obligations on detention too provisional release.  According to the Dutch Surrender Act (SA), the requested individual needs to live (provisionally) released xc days later the receipt of the EAW if the courtroom has non delivered a determination yesteryear then. In 2015, the Court of Justice of the European Union (CJEU) decided inwards Lanigan (discussed here) that the Framework Decision on the European Arrest Warrant (FDEAW) does non require the issue of the requested individual later xc days as national courts postulate to live able to ensure that the noun weather condition for give upwards are at all times guaranteed. Consequently, extending the detention beyond this term is allowed inwards compliance alongside national rules. This is, however, just where the problem starts inwards the Netherlands, since article 22(4) SA does non let for such an extension. As a result, the strict obligation nether national police trace to issue the requested individual mightiness clash alongside the European Union obligation to ensure the effectiveness of the give upwards procedure.

We volition run into that the solution of the Amsterdam District Court to this problem, which is to translate Dutch legislation inwards the low-cal of the FDEAW, is itself problematic. In my opinion, the interpretation of the relevant provisions interferes alongside the legal certainty of the requested individual too constitutes a contra legem interpretation. The legal certainty concerns choose inwards fact resulted inwards a preliminary question to the CJEU, but it is questionable whether whatever reply would solve the work at manus or would farther complicate matters. (The CJEU has fast-tracked the case, too an Advocate-General’s catch is due on Nov 6th) Hence, I would combat that it is fourth dimension for the Dutch legislator to mensuration in.

The number of clashing national too European obligations regarding detention has instruct increasingly urgent as it becomes – as a resultant of other European Union police trace obligations - e'er to a greater extent than hard to make a determination on an EAW inside xc days. These obligations include the duty to advert preliminary questions too the obligation established in Aranyosi & Căldăraru (discussed here) to inquire the issuing dry reason for information contradicting a possible violation of article iv Charter of Fundamental Rights of the European Union (CFR). Fulfilling these obligations ofttimes prolongs give upwards proceedings too could resultant inwards the issue of requested persons, fifty-fifty if the conduct chances of absconding is real.  In the latter case, the guild to issue would violate the full general obligation inwards Article 17 FDEAW to ensure that the noun weather condition for give upwards stay guaranteed.

As I stated before, the Amsterdam District Court tried to honour a way out inwards seeking to translate Dutch legislation inwards conformity alongside the FDEAW. It ruled that Article 22 SA non only contains the powerfulness to extend the determination term later 90-days, but too includes the competence to suspend the 90-day term earlier it has lapsed. In representative of the latter, the 90-day term is barred too thus the requested individual mightiness de facto live detained for to a greater extent than than xc days. This possible effect of the novel interpretation of Article 22 SA has been criticized inwards the low-cal of the right to freedom inwards article five European Convention on Human Rights (ECHR) too vi CFR.

A complaint was filed earlier the European Court of Human Rights (ECtHR), questioning whether the interpretation of Article 22 SA violates the requirement of a clear legal footing for detention inwards article 5(1)(f) ECHR. Remarkably, the Dutch regime contended that this requirement has indeed been violated too has offered compensation for the unlawful detention. Unfortunately, though, the ECtHR therefore, struck the case, which was non decided on the merits. Meanwhile the Amsterdam District Court itself has of late requested a preliminary ruling on whether legal certainty as protected yesteryear Article vi CFR is violated yesteryear the electrical current interpretation of Article 22 SA.

In my opinion, this interpretation of Article 22 SA is non only an unjustified interference alongside the regulation of legal certainty; it is too a contra legem interpretation. To possess alongside the former. It is truthful that the electrical current representative police trace of the CJEU interprets legal certainty as a restriction to the duty of conform interpretation (sometimes called ‘indirect effect’) inwards a narrow manner. Legal certainty bars conform interpretation when this would resultant inwards determining or aggravating criminal liability on the footing of the FDEAW alone. In this sense, legal certainty is evidently no barrier to the electrical current interpretation of Article 22 SA.

However, the full general ambit of the regulation of legal certainty is non restricted to establishing or aggravating criminal liability. The regulation is too purpose of Article five ECHR too vi CFR which demand that the physical care for for detention pending extradition is sufficiently accessible, precise too foreseeable to preclude arbitrary interferences alongside the right to liberty. Even though the wide concept of ‘the law’ inwards Article five ECHR, which includes both formal statutes too representative law, allows the interpretation of a written dominion inwards jurisprudence, the ECtHR has decided inwards yesteryear cases that a violation of Article five ECHR may occur when the national authorities create non translate or utilise the rules on extradition detention inwards a uniform manner. These cases concerned diverging opinions of national judicial authorities regarding the application of time limits too the exercise of a detail national provision as a legal footing for detention. The province of affairs at manus is slightly different, since it concerns a divergence inwards catch betwixt the courtroom too the Dutch legislator, who stated explicitly that the requested individual should live released later xc days. However, I would combat that a similar conduct chances of arbitrariness too threat to legal certainty exists inwards this situation. Can nosotros actually verbalize of a sufficiently foreseeable too accessible physical care for for give upwards detention when the judiciary too the legislator disagree on the interpretation of Article 22 SA?

In representative the CJEU were to honour the interpretation of Article 22 SA compatible alongside legal certainty, it should soundless live considered contra legem. This restriction to the duty of conform interpretation is ofttimes connected to the legal certainty regulation but constitutes essentially a dissimilar test. In my opinion, the electrical current interpretation of Article 22 SA contradicts the wording of the provision. The text as good as the intention of the legislator are crystal clear. Release later xc days agency issue later xc days. In addition, suspending a determination agency inwards mutual parlance ‘halting or stopping’ an ongoing term which has non yet lapsed, whereas extending agency ‘adding’ fourth dimension to a term which has already lapsed. Hence the wording too pregnant of Article 22 SA just does non let the interpretation as it follows from the representative police trace of the Amsterdam District Court.

Lastly, nosotros should too catch the consequences of a rejection of the electrical current interpretation of Article 22 SA. Is the Amsterdam District Court provided alongside the agency to solve the remaining clash betwixt its duties when an interpretation of the Dutch dominion inwards conformity alongside the FDEAW is impossible? The reply is – at to the lowest degree for at i time - that it is not. This could modify if the CJEU inwards the time to come decides that the primacy dominion too applies to sometime third-pillar framework decisions. This question has as been pose earlier the CJEU yesteryear the Amsterdam District Court, but has remained yet unanswered (the representative is soundless pending).

Application of the primacy dominion would convey along its ain problems however. It would resolve the clash betwixt European Union obligations too national police trace but mightiness at the same fourth dimension terms the legal certainty of the requested person. After all, it volition depend on the concrete circumstances of each representative whether the decision-term volition live suspended or non and, therefore, whether Article 22 SA volition live applied or not. If this effect would live corrected yesteryear a legal certainty exception to the primacy rule, legal certainty may live ensured, but the clash betwixt European Union police trace too national police trace would kicking the bucket along to exist.

The devilish dilemma for the Amsterdam District Court may thus non easily live solved yesteryear the CJEU. It is indeed hard to run into how whatever determination of the CJEU would non farther complicate matters rather than solve them. Most probable the CJEU volition non live able to furnish the Amsterdam District Court alongside a way out of its impasse spell at the same fourth dimension protecting legal certainty. This brings approximately other dry reason potency inwards the picture: the Dutch legislator. This potency could inwards fact quite easily solve the problem. Influenza A virus subtype H5N1 unproblematic adaption of Article 22(4) SA changing it into a discretionary competence instead of an obligation would suffice. In other words, it is fourth dimension for the national legislator to come upwards to the rescue of the Amsterdam District Court.

This spider web log is based on a publication inwards Strafblad inwards May 2018.

J.J.M. Graat, ‘Een dilemma voor de Overleveringskamer’, Strafblad 2018(2) 20.

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: The Panopticon Chronicles

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