Mutual Trust – Blind Trust Or Full General Trust Amongst Exceptions? The Cjeu Hears Telephone Commutation Cases On The European Arrest Warrant

Henning Bang Fuglsang Madsen Sørensen, Associate Professor, Department of Law, University of Southern Denmark

Monday xv Feb was a busy 24-hour interval inwards Luxembourg. The Court held a hearing inwards C-404/15, Aranyosi, which was lodged at the Court inwards July 2015. But the Court too received C-659/15, Caldararu, at ix Dec 2015 nether the ‘emergency’ PPU-procedure. The Court decided to bring together the 2 cases equally they were submitted past times the same courtroom - Hanseatisches Oberlandesgericht in Bremen, FRG – as well as concerned the same number – should give upwards on a European Arrest Warrant hold upwards refused if at that spot is ground to fright the wanted individual volition hold upwards exposed to inhumane prison theatre weather condition inwards the requesting state? So the hearing concerned both cases as well as it turned out to hold upwards a busy but too interesting 24-hour interval because the 2 cases touching on upon the application of the regulation of mutual recognition equally the cornerstone of European Union criminal police equally recognized past times recital vi of the Framework Decision establishing the European Arrest Warrant.

During the day, the Court heard the submissions from the lawyers of Aranyosi as well as Caldararu, the referring approximate from Bremen, ix Member States (Germany, Ireland, Spain, France, Lithuania, Hungary, The Netherlands, Romania as well as UK) as well as of course of teaching the Commission.

But what was all the fuss about? Well, permit us take hold a human face at the 2 cases first. Then nosotros volition plough to the submissions of the Member States as well as the Commission.

The cases

Aranyosi is a immature man, living amongst his parents inwards Bremen. He has a girl inwards Germany, amongst whom he has a child. He was arrested inwards Bremen fourteen Jan 2015 equally Republic of Hungary had requested his give upwards on a European Arrest Warrant. Aranyosi is suspected for 2 accounts of burglary. However, Aranyosi resisted the surrender, referring to reports from the Committee on the Prevention of Torture (CPT) as well as instance police from the European Court of the Human Rights, which documented a massive over-crowding inwards Hungarian prisons to an extent that could hold upwards considered a violation of ECHR art. iii (corresponding to Article four of the European Union Charter of Fundamental Rights). The Bremen Court decided to enquire the Grand Duchy of Luxembourg Court if it was possible to read article 1(3) of the EAW Framework Decision (the ‘human rights’ clause) equally an chance to turn down the give upwards inwards instance of strong indications of detention weather condition insufficient to satisfy ECHR art. 3. The Bremen Court too asked if it was possible to asking assurances concerning the prison theatre weather condition from the requesting nation earlier give upwards was allowed. Due to Aranyosi’s connections amongst Bremen, the approximate decided to free Aranyosi patch the instance was pending.

Caldararu is too a immature man. He was sentenced to 8 months inwards prison theatre past times a courtroom inwards Romania for driving without a driver’s license. The instance was heard in absentia. However, Caldararu left Romania earlier the sentenced fourth dimension could hold upwards served as well as Romania issued a European Arrest Warrant for Caldararu. He was arrested inwards Bremen, Germany, on 8 Nov 2015, as well as his give upwards to Romania was as well as then allowed on twenty Nov 2015. He refused silent to consent to the give upwards amongst reference to the detention weather condition inwards Romania. The Bremen Court decided to hold Caldararu inwards custody equally the Bremen Court too sent a asking for a preliminary ruling inwards this case. The asking was sent on ix Dec 2015.

So, 2 cases from the same court, basically concerning the same question: Can a approximate turn down give upwards if it is feared that detention facilities inwards the requesting nation are inadequate?

But the reply to these questions touches upon a number of arguments, as well as the 24-hour interval turned out to hold upwards real intense equally these arguments involves key rights, the regulation of mutual recognition, the human relationship betwixt Member States as well as non to the lowest degree what to do if give upwards is denied. The parties were far from a mutual agreement of how these arguments should hold upwards used, as well as the hearing turned out to hold upwards a real interesting as well as well-spent 24-hour interval inwards Luxembourg.

Let us take hold a human face at some of the major arguments.

The get-go declaration – mutual trust agency blind trust!

One could struggle that mutual trust agency blind trust to such a grade that the executing Member State must execute the European Arrest Warrant without whatever checks for anything else other than the grounds for refusal to execute an EAW mentioned inwards Articles iii as well as four of the Framework Decision (such equally double jeopardy, or historic current of a child).

The Bremen approximate of course of teaching opposed this see equally this would brand his asking for a preliminary ruling obsolete.

Especially Espana supported this argument, proverb that the evaluation of the protection of key rights is a privilege for the courtroom inwards the issuing State equally the courtroom inwards the executing State is non empowered to brand abstract evaluations of the prison theatre weather condition inwards some other Member State. The prior CJEU judgment inwards Melloni was mentioned equally an representative of a situation, where Espana was denied the possibility to brand the give upwards conditional upon specific guarantees. Espana had difficulties aligning the conclusions of Melloni amongst a possibility to brand evaluations of unusual prison theatre systems prior to deciding give upwards as well as and then perchance status the give upwards on guarantees regarding detention conditions. Espana thus held, that the executing State had to give upwards unless Article iii or four of the Framework Decision were applicable as well as it would as well as then hold upwards for the courts of the requesting nation to evaluate whether prison theatre weather condition would sum to a violation of ECHR art. iii / Charter art. 4.

Lithuania presented a similar argument, arguing that the regulation of mutual trust would autumn apart if Member States were given the ability to banking concern check each other inwards regard to prison theatre conditions. Republic of Lithuania farther referred to TEU fine art 7 (on the possible suspension of a Member State from the European Union on human rights grounds) equally the physical care for prescribed past times the treaties inwards instance a Member State is found non to honour key rights. Republic of Lithuania too expressed occupation concern whether the issuing State would hold upwards able to brand its arguments earlier the courtroom inwards the executing State deemed the prison theatre weather condition inwards the issuing State insufficient inwards regards to key rights, as well as it could Pb to a province of affairs where the issuing State would hold upwards denied the possibility to occupation the EAW equally such. This would become far impossible to prosecute absconded criminals as well as would thus threaten the thought of AFSJ equally such.

The remaining States together amongst the Commission were inwards opposition to Espana as well as Lithuania. The parties argued inwards full general inwards favor of agreement mutual trust equally a full general trust inwards opposition to a blind trust. The Bremen approximate reported his difficulties when reading most the prison theatre weather condition inwards Hungary, as well as how he had asked the High German Government inwards vain to obtain guarantees concerning the prison theatre weather condition for Aranyosi. He argued that it would hold upwards unacceptable to demand that a approximate should ignore obvious reasons to fright for violations of key rights as well as the possibility of denying the execution of the EAW had to hold upwards acquaint inwards such a situation. Being a approximate himself, he called upon the Grand Duchy of Luxembourg judges non to position this burden on him.

The High German Government along amongst Ireland, France, Hungary, The Netherlands, Romania, U.K. as well as the Commission presented diverse arguments inwards favor of agreement mutual trust equally a full general trust which solely is rebuttable inwards real exceptional circumstances.

Germany argued that the executing nation cannot hold upwards making assessments of the honour for key rights inwards other Member States, except when nether real exceptional circumstances. Such circumstances could hold upwards several reports from the Council of Europe, CPT, judgements from the ECtHR, reports from NGOs as well as fifty-fifty from the American Secretary of State. FRG farther read recital xiii inwards the preamble together amongst art. 1(3) of the European Union Framework Decision inwards such a way that a chance of violation of key rights is a full general ground for denying execution of the EAW inwards supplement to the specific reasons mentioned inwards Articles iii as well as four of the law. Republic of Ireland supported this declaration amongst a reference to recital 12, patch Republic of Hungary supported the declaration amongst reference to recital 10. The U.K. too argued inwards favor of reference too to recitals v as well as 6, together amongst recital 10, 12 as well as xiii as well as Article 1(2) as well as 1(3).

The Commission argued for the demand of a residual betwixt mutual trust as well as the protection of key rights, requiring Member States to take hold a full general trust inwards each other amongst a possibility to essay the protection of key rights if at that spot seems to hold upwards a existent chance for a violation of key rights. The Commission found back upwards for this inwards Art. 19(2) of the Charter (non-removal from a Member State to human face upwards torture et al), equally the Commission supported the Bremen approximate past times finding it unacceptable to strength a Member State to give upwards to a known chance of violation of key rights without taking activeness to protect key rights. The Commission farther stressed that if the regulation of mutual recognition would prevail over the protection of key rights, as well as then a regulation had been given to a greater extent than weight than key rights. Fundamental rights, beingness a business office of primary police as well as the ground for the Union equally such, could non hold upwards educate aside past times a full general regulation within European Union law.

When is the obligation to examine a potential chance triggered?

If detention facilities inwards the requesting Member State may hold upwards examined prior to the determination of surrender, as well as then how much is needed for triggering such an examination?

The primary enquiry was whether an exam should hold upwards accepted solely inwards instance of systemic failures inwards the requesting nation or whether an private chance concerning the specific individual should hold upwards enough. The get-go situation, where an exam solely is acceptable inwards cases of systemic failures, tally to the conclusions of the Grand Duchy of Luxembourg Court inwards the cases of N.S. (on the Dublin system inwards Greece). as well as Melloni, as well as too paragraphs 191-194 of Opinion 2/13 (on ECHR accession). The 2nd province of affairs corresponds to the conclusion of ECtHR inwards Soering (on extradition to ‘death row’ inwards the USA).

Germany, U.K. as well as Kingdom of the Netherlands argued inwards favor of the private approach, exemplified past times a individual who may hold upwards kept nether harsh detention weather condition due to religious belief or sexual orientation. Republic of Ireland argued together amongst France, Romania as well as Republic of Hungary inwards favor of the systemic approach, as well as too stressing that the threshold that has to hold upwards met had to hold upwards educate rather high inwards honour for the regulation of mutual trust. Espana argued against both approaches, equally Espana found the exam to hold upwards directed against the detention facilities of the requesting nation as well as equally such non covered past times whatever of the terms. Republic of Lithuania referred to fine art 7 TEU equally the right method to grip suspicions concerning violation of key rights inwards a Member State, as well as concluded on this ground that the exam conducted inwards the executing Member State should hold upwards limited to an exam of whether or non art. 7 had been activated inwards regards to the issuing Member State.

The Commission found it relevant to initiate an investigation if an private chance were present.

The parties were thus dissever inwards one-half on the enquiry of whether an exam was allowed solely inwards instance of systemic failures or whether the exam should hold upwards allowed based on the private chance of the individual wanted for surrender. The submissions of the Member States were silent too influenced past times the enquiry of what to do if the exam leads to the conclusion of a acquaint as well as relevant chance inwards instance of give upwards – should the requesting nation hold upwards given the chance to eliminate the found chance through guarantees or should the give upwards hold upwards conditioned upon guarantees? The spot of the Member States on this number volition hold upwards reported below. First, nosotros must plough our attending to how the Member States would examine a existent as well as acquaint danger of a violation of a key right inwards instance give upwards is allowed.

How volition the Member States examine a claimed chance of violation of key rights?

The job of how a courtroom inwards i Member State tin obtain data on the detention scheme inwards some other Member State inwards monastic tell to institute whether or non these detention facilities may hold upwards seen equally a violation of key rights were too included inwards the submissions of the parties.

Germany referred to reports from the CPT as well as the Council of Europe, together amongst the instance police of the ECtHR, reports from NGOs as well as fifty-fifty the American Secretary of State. FRG stressed that these sources had to hold upwards published within a reasonably brusque fourth dimension earlier the national courtroom was to determine on the enquiry of surrender. The U.K. too supported the occupation of reports from international organs, the instance police of the ECtHR, private claims as well as testimonies as well as reports from national experts. Republic of Ireland as well as Kingdom of the Netherlands too argued for the occupation of reports from the CPT as well as the instance police of the ECtHR, patch French Republic considered specially the instance police of the ECtHR equally relevant. Republic of Hungary elaborated on the fact that reports from the CPT are at to the lowest degree i yr underway, patch a sentence of the ECtHR refer to facts equally they were at the fourth dimension of the claimed violation. That could hold upwards several years prior to the sentence were handed down. These sources thus had to hold upwards used amongst non bad care.

Romania did non elaborate on the enquiry of how to brand an examination. Also Espana as well as Republic of Lithuania opposed the full general thought of letting unusual courts examine domestic prison theatre conditions, but did non elaborate on how this may hold upwards done inwards instance the Grand Duchy of Luxembourg Court would allow it.

The Commission supported the occupation of the instance police of ECtHR, reports from international organisations, statistics on the over-crowding of prisons inwards the requesting State as well as fifty-fifty whatever other relevant source. The Commission was thus inwards line amongst specially FRG as well as UK.

The importance of dialogue betwixt Member States – the concept of guarantees

Several parties stressed the importance of dialogue betwixt the requesting Member State as well as the executing Member States.

The Bremen judge, FRG as well as French Republic argued inwards favour of giving the approximate of the courtroom inwards the executing Member State the possibility to telephone telephone for guarantees from the issuing Member State. The guarantees would hold upwards able to withdraw the fright for a violation of key rights, as well as the give upwards should thus hold upwards denied if the required guarantees were non provided.

Ireland as well as Kingdom of the Netherlands found no ground for refusing to give upwards due to the lack of diplomatic guarantees. The executing Member State had to brand its hear upwards whether or non at that spot would hold upwards a existent as well as acquaint chance for a violation of key rights as well as grip the asking for give upwards inwards accordance amongst this.

Spain argued against the occupation of guarantees, equally the approximate calling for the guarantees may hold upwards setting the criteria that has to hold upwards met earlier he or she volition allow surrender. This would generate a chance of huge variations inwards the way the Member States occupation this possibility, as well as would thus threaten the uniformity of Union Law. Republic of Lithuania too argued against the occupation of guarantees past times elaborating on the fact that the guarantee is non worth much if the requesting Member State decides non to fulfill its obligations inwards accordance amongst the guarantee after the give upwards has taken place.

Especially Republic of Hungary stressed the importance of Article 15(2) of the Framework Decision. If a Member State is afraid of surrendering due to the fright of violation of key rights, as well as then the 2 involved states must engage inwards a dialogue for the occupation of removing the reasons for this fear. Republic of Hungary saw the chance of violations equally a specific as well as concrete problem, which could hold upwards handled amongst specific as well as concrete solutions. Such solutions could hold upwards choice detention measures, a determination to hold the surrendered individual inwards custody inwards some other prison theatre or perchance exhibit the executing courtroom that the reasons are obsolete due to for instance the constructions of novel prisons next e.g. a judgment from the ECtHR. This line of arguments was supported past times the U.K. equally good equally Republic of Ireland as well as The Netherlands. These arguments were too supported past times Romania past times stating that the chance for a violation of key rights may hold upwards existent as well as acquaint but nevertheless possible to eliminate inwards the specific case. The Commission too supported this view.

Especially Romania too raised some other number concerning equal treatment, equally Romania mentioned that if sure as shooting inmates where kept nether custody nether to a greater extent than beneficial weather condition due to guarantees patch other inmates were kept inwards custody nether normal conditions. Romania pointed to the unproblematic fact that if prisoners amongst guarantees were to hold upwards given to a greater extent than space, as well as then the remaining prisoners would take hold fifty-fifty less space. This motivated the referring approximate to enquire Romania, FRG as well as French Republic to elaborate on this chance concerning unequal treatment. Romania found this chance to hold upwards non-acceptable, patch French Republic argued that the chance of unequal handling were a less evil than the chance of violating key rights. FRG stated, that FRG did non desire unequal treatment, but appropriate prison theatre conditions. The chance of unequal handling was silent the solely way to honour the Soering judgment of the ECtHR.

Thus, at that spot were dissimilar views on whether give upwards could hold upwards conditioned upon guarantees or whether guarantees should hold upwards seen to a greater extent than equally a dialogue comforting the executing approximate inwards the removal of a chance of violation of key rights. However, at that spot seemed to hold upwards full general consensus when it came to how guaranties should hold upwards issued, equally the parties found this should hold upwards regulated inwards national police of the specific Member State.

The termination of denying surrender

The terminal major number touched upon past times the parties was the enquiry of what should hap if give upwards were refused.

The Bremen approximate explained how High German police made it possible to permit FRG proceed the criminal proceedings if give upwards was denied, but practical problems inwards regards to witnesses etc. made this theoretical possibility an illusion inwards existent life. In regards to Aranyosi, a determination non to give upwards would thus inwards existent life too hold upwards determination to discontinue the criminal proceedings. In regards to Caldararu, who was sentenced inwards Romania, a determination to non give upwards could render the ground for letting Caldararu serve the sentence inwards Germany, but this would too termination inwards a number of practical problems equally Caldararu solely had stayed a real brusque fourth dimension inwards Germany. He thus does non talk the linguistic communication nor would whatever initiatives to rehabilitate him into the High German monastic tell take hold whatever likelihood for success.  So it was too questionable whether it would hold upwards relevant to transfer the sentence to FRG inwards the acquaint case. The Bremen approximate made it clear that it would non hold upwards satisfactory if a denial to give upwards the sought individual would hateful crimes would become unpunished.

The High German regime shared this view, patch French Republic noted that it was for each Member State to determine whether they would permit their courts take hold jurisdiction inwards cases inwards which give upwards had been denied. Romania too made it clear, that it would hold upwards unacceptable if criminal activities were going un-punished because of a determination to deny surrender. If the executing Member State denies surrender, as well as then the executing Member State must deport the responsibleness to encounter justice fulfilled. Republic of Lithuania pointed to the fact that a determination non to give upwards due to unsatisfactory detention facilities would inwards practise do areas within the AFSJ it which it would hold upwards impossible to punish crimes equally the criminals would hold upwards able to commit their crimes inwards such areas as well as and then flee to other parts of the AFSJ without risking surrendering afterwards.

A number of parties too underscored this equally the major deviation betwixt asylum police as well as the essay used inwards the N.S. instance against criminal police as well as the essay that may hold upwards used inwards the acquaint cases. If the homecoming of an asylum seeker is impossible, as well as then the Member State inwards which the asylum seeker is at the instant volition hold upwards able to physical care for the application for asylum. It is of lesser importance for the asylum seeker whether i or the other Member State processes the application for asylum equally asylum police is almost fully harmonized. The termination of non surrendering a suspect inwards a criminal instance could real good hold upwards that crimes would become unpunished, which is a rather dissimilar termination as well as of course of teaching non acceptable.

What next?

The Advocate General promised to denote within 24 hours when his persuasion volition hold upwards submitted to the Court. The cases were heard on xv Feb 2016 but the Curia-webpage silent do non incorporate whatever novel data past times the terminate of the 17 Feb 2016. Nonetheless, Caldararu is a PPU-case equally Caldararu is kept inwards custody, as well as nosotros must thus await the persuasion of the full general advocate within few days. The determination of the Court volition as well as then hold upwards expected within a few weeks or perchance a month, so the excitement volition presently hold upwards released.

It seems apparent that specially Espana as well as Republic of Lithuania were real skeptical equally to whether i Member State should hold upwards allowed to examine the detention facilities inwards some other Member State at all. The other 7 Member States seemed to observe it appropriate to take hold the possibility inwards real exceptional circumstances. France, Romania as well as Republic of Hungary seemed to bound the possibility to cases amongst systemic problems, patch the remaining Member States too wanted to hold upwards able to demeanour an exam inwards cases amongst private problems. FRG wanted to permit the executing Member State demand guarantees from the issuing Member State so give upwards could hold upwards denied if the requested guarantees were non delivered. The remaining Member States seemed to take hold that the 2 Member States had to engage inwards a dialogue to institute whether at that spot was a job inwards the specific instance at all as well as whether a job could hold upwards solved past times for instance choice detention measures. It is too worth noticing the spot of the Commission equally a rather pragmatic approach, where the Commission supported the demand to brand investigations inwards fifty-fifty private cases, using a diversity of sources.

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: www.romania-insider.com

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