Human Rights As Well As The European Arrest Warrant: Has The Ecj Turned From Poacher To Gamekeeper?

Steve Peers*

From its panicked innovation inward the febrile months next the 9/11 terrorist attacks, the European Arrest Warrant (EAW) has been the flagship of European Union criminal law. Replacing traditional extradition law amongst a fast-track arrangement which scraps most of the traditional restrictions on extradition, it has alarmed critics concerned past times miscarriages of justice, but thrilled supporters who welcomed the speedier furnish to justice of a greater number of fugitives.

Despite qualms past times national constitutional courts, the ECJ has long been insouciant almost the human rights critique of the EAW. It dismissed a challenge to the validity of the EAW law on human rights grounds, together with (in effect) ridiculed a national courtroom which asked if it was possible to turn down to execute an EAW due to human rights concerns, answering a ‘straw man’ declaration the ECJ invented instead of the serious questions sent past times the other court. In its Melloni judgment, the ECJ placed a ceiling on the application of national human rights protection to resist execution of an EAW; but it never enforced a corresponding flooring for those rights. Again together with again, the Court ruled that national courts could only turn down to execute EAWs on the limited grounds expressly mentioned inward the EAW law, instead focussing only on the demand to brand the EAW arrangement every bit effective every bit possible.

However, since the entry into forcefulness of the Lisbon Treaty, this staunch approach has been mitigated past times the adoption of vi novel European Union laws on diverse aspects of fair trial rights – 5 of which also confer procedural rights on fugitives challenging the application of an EAW. (On the implementation of the foremost 2 of these laws, reckon the report exactly adopted past times the EU’s Fundamental Rights Agency). In the lastly year, the ECJ has begun to translate these laws (see the judgments inward Covaci, Balogh together with Milev).

But fifty-fifty apart from these fair trials laws, the ECJ inward the lastly 18 months has begun to exhibit a hitting concern for ensuring at to the lowest degree roughly protection for human rights inside the EAW system. Last year, inward Lanigan (discussed here), the Court ruled that if a fugitive was kept inward detention inward the executing State spell contesting an EAW there, the limits on the length of detention inward extradition cases laid out inward the example law of the European Court of Human Rights (ECtHR) apply, past times virtue of the European Union Charter of Fundamental Rights.

This spring, the ECJ turned its attending to detention atmospheric condition inward the Member State which issued the EAW. Following shortly after concerns expressed past times the High German constitutional courtroom on these issues (discussed here), the ECJ ruled inward Aranyosi and Caldaruru that the High German authorities, when executing EAWs issued past times Republic of Hungary together with Romania, had to consider concerns raised past times the fugitives almost prison theatre overcrowding inward those countries, which had led to ECtHR rulings finding violations of Article iii ECHR (freedom from torture or other inhuman or degrading handling or punishment). The national courtroom had to apply a two-step physical care for inward such cases, assessing whether at that topographic point was a) a systemic failure to ensure decent prison theatre atmospheric condition inward those States, together with b) a ‘real risk’ that the private fugitive would live discipline to such atmospheric condition if the EAW was executed.

What if these tests were satisfied? The ECJ was unwilling to backtrack from its set that the listing of grounds to turn down to execute an EAW laid out inward the EAW law is exhaustive. Instead, it ruled that the executing State’s government had to postpone execution of the EAW until the province of affairs inward the issuing State had improved. (The EAW law is vague almost grounds for postponing the execution of an EAW, together with the ECJ had already ruled inward Lanigan that the deadlines to execute an EAW laid out inward the law could, inward effect, live ignored if necessary). If the fugitive was detained inward the executing State inward the meantime, the limits on detention laid out inward Lanigan applied, amongst the additional proviso that a fugitive could non live detained indefinitely pending execution of an EAW. (In the afterward example of JZ, the ECJ aligned the Definition of ‘detention’ inward the EAW amongst the ECtHR example law on this issue).

This was only the get-go of the ECJ’s scrutiny of issuing States’ laws together with practise inward the EAW context. In Bob-Dogi, the Court ruled that Republic of Hungary could non only number EAWs every bit a stand-alone measure, amongst no underlying national arrest warrant, inter alia because the role of requiring the prior number of a national arrest warrant was to ensure the protection of the suspect’s cardinal rights. The previously paramount objective of efficiency of the EAW arrangement – which would apparently take away hold dictated the contrary decision – was mentioned only inward passing. Moreover, the Court side-stepped its prior refusal to take away hold additional grounds for refusal to execute an EAW, final that the EAW had non been validly issued inward the foremost place.

Next, inward Dworzecki, the ECJ insisted that a Member State issuing an EAW next a trial held in absentia had to take away hold made proper efforts to respect the fugitive earlier the trial. In this case, the law expressly allows for non-execution of the EAW.

Finally, inward a trilogy of cases decided lastly week, the Court ruled that issuing Member United States of America don’t take away hold total discretion to produce upward one's heed what a 'judicial authority' is, for the role of issuing EAWs. The concept extended beyond judges to include those administering the justice system, such every bit Hungarian prosecutors (Ozcelik). However, it does non extend to the Swedish police line (Poltorak), or to officials inward the Lithuanian justice ministry building (Kovalkovas). (British readers may wishing to compare these rulings to the Supreme Court’s ruling inward the Assange case).

Again, every bit inward the Bob-Dogi judgment, the Court side-stepped the ‘exhaustive grounds for non-execution’ work which it had previously created for itself, past times ruling (in Poltorak together with Kovalkovas) that the relevant EAWs had never been validly issued at all. Also, inward an interesting usage of ‘soft law’, the Court ruled that Sweden together with Republic of Lithuania could non combat that those invalid EAWs should rest valid for a limited menses until they changed their laws, since the Council had warned them dorsum inward 2007 inward an evaluation written report that these practices infringed the EAW law. Criminal defense forcefulness lawyers – together with justice ministry building officials – may desire to await at the Council evaluations of all Member United States of America inward particular inward this light, since they incorporate many other criticisms of national implementation of the EAW.

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Has the Court turned from poacher to gamekeeper of human rights inward the EAW context? Certainly at that topographic point are nevertheless many concerns almost miscarriages of justice every bit regards the EAW (see the Fair Trials website, for instance). But the rulings advise a pregnant alter of direction, which addresses roughly concerns together with may take away hold opened upward the door to addressing others. What powerfulness explicate this turn-around?

One element may live the ruling of the High German constitutional courtroom on detention atmospheric condition inward the EAW context, although it’s notable that the ECJ was never previously receptive to constitutional courts’ concerns almost the EAW. Another element may live a willingness to compromise after the ECJ’s controversial ruling on European Union accession to the ECHR, inward which it lambasted the draft accession treaty for (among other things) non taking sufficient concern human relationship of the ECJ’s example law on usual recognition inward Justice together with Home Affairs matters, which only allowed for human rights to trump usual recognition inward ‘exceptional’ cases. It’s possible that having marked its territory inward that judgment, the ECJ felt it could relax together with adopt a to a greater extent than flexible approach of its ain testament (and nether its ain control), which powerfulness facilitate discussions on renegotiation of the accession agreement.

Another expression of the background to this example law may live concerns almost the adequate protection of human rights together with the dominion of law inward a number of Member States. The formal physical care for for sanctioning or warning Member United States of America almost such concerns is laid out inward Article vii TEU, but the European Union is unwilling to usage it at the moment. The preamble to the EAW law says that the EAW arrangement tin dismiss only live fully suspended every bit regards an entire Member State if Article vii is invoked. The ECJ clocked that provision inward Aranyosi together with Caldaruru, but together with so concocted the compromise set of postponing execution of EAWs inward private cases until concerns almost detention atmospheric condition could live addressed: a measured, individualised solution for these particular human rights problems amongst the EAW.

Furthermore, the guarantee of judicial command of the number of EAWs inward recent judgments is expressly justified past times reference to ‘the separation of powers which characterises the functioning of the dominion of law’. Despite the reluctance of the European Union to chastise Member United States of America for systematic concerns almost the dominion of law, the CJEU’s rulings at to the lowest degree ensure that whatever full general human rights concerns are addressed at the grade of application of European Union legislation.

Indeed, these recent judgments powerfulness non live the halt of the story: they tin dismiss fuel arguments for the postponement or invalidity or EAWs due to other human rights concerns too. In particular, fugitives could combat that the prospect of long pre-trial detention inward roughly other Member State is also a argue to postpone execution of an EAW – although this declaration is only coherent if the fugitive is non existence detained inward the executing State inward the meantime. Already the Aranyosi together with Caldaruru judgment raises awkward questions almost how to gauge what happens inward roughly other Member State’s prisons – so much so that the High German courts take away hold referred the Aranyosi example back to the CJEU amongst farther questions.  Postponing the execution of an EAW does not, past times itself, tackle the underlying work of prison theatre overcrowding, together with it leads to the run a hazard that those who take away hold committed crimes may consider moving to roughly other Member State to growth their odds of enjoying de facto impunity for them.

This strengthens the example for European Union legislative intervention every bit regards prison theatre atmospheric condition together with length of pre-trial detention inward the EAW context. The Commission issued a Green Paper on this number dorsum inward 2011, together with Member United States of America were non enthusiastic. But the Commission has indicated inward calorie-free of the recent rulings that it may brand a proposal inward future. (See also the novel report of the European Union Fundamental Rights Agency on these issues). This would live a skillful chance to brand farther reforms to the EAW system, to require a proportionality cheque earlier issuing EAWs inward the foremost house – so that no 1 is discipline to an EAW for the theft of a piglet, or someone else’s beer at a household political party – together with to produce inward to a greater extent than frequent usage of European Supervision Orders (a cast of ‘Euro-bail’), the European Union laws on transfer of prisoners together with sentences, together with the usage of modern technology scientific discipline to deport to a greater extent than criminal proceedings amongst the virtual (but non the physical) presence of the suspect (see mostly the Ludford report on possible reforms of the EAW system). There is a ameliorate residuum betwixt effective prosecutions together with human rights concerns waiting to live struck.

Barnard & Peers: chapter 9, chapter 25

JHA4: chapter II:3, chapter II:4

Photo credit: pic – alliance/Horst Galuch

* This ship is based on a keynote oral communication I gave on 10^th Nov 2016, at a conference on criminal justice together with human rights organised past times the European Union Fundamental Rights Agency inward Bratislava

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