The German Constitutional Courtroom As Well As The European Arrest Warrant: The Latest Twist Inwards The Judicial Dialogue

Daniel Sarmiento, Professor of European Union Law at the University Complutense of Madrid*

The German linguistic communication Constitutional Court (GCC) has fired again, in addition to straightaway inwards the e'er sensitive expanse of key rights. In an Order published yesterday, the GCC has undertaken an “identity control” over the implementation of a European Arrest Warrant (EAW) issued past times Italian government in addition to intended to live on executed inwards Germany. The individual concerned, a the U.S.A. national convicted inwards Italy in absentia, claimed that his conviction had been ruled without whatsoever guarantees, in addition to now, nether Italian law, cipher tin bathroom halt the enforcement of his conviction. Italian procedural constabulary does non render a remedy at this point.

The GCC has applied, for the start time, its “identity control” to a instance fully covered past times European Union Law. Therefore, the review past times the GCC of the challenged judgment, which implemented the Framework Decision in addition to the German linguistic communication implementing act, entailed an indirect review of the Framework Decision itself. The GCC reminds the reader of its traditional case-law on “identity control” in addition to comes to the conclusion that inwards this detail instance it is perfectly possible to create it. In the end, it quashes the determination of the instance courtroom but it states that the Framework Decision in addition to the German linguistic communication implementing human activity are perfectly inwards describe of piece of job alongside the solution it comes to.

I completely agree.

The trial in absentia that took house inwards Italy was clearly inwards breach of Convention (ECHR) rights, because the defendant had non been informed of the appointment of the hearing, he was non represented past times a lawyer, etc… In other words, the trial was a mess. This contrasts alongside the facts inwards the instance of Melloni, inwards which the CJEU ruled that the Castilian Constitutional Court could non apply the higher standards of its national constitutional constabulary inwards social club to block the execution of an EAW issued past times Italy. On that case, Mr. Melloni had been sentenced in absentia but scrupulously next the minimal weather condition required past times the Convention. The instance earlier the GCC is a practiced illustration of how not to handgrip a trial in absentia. Therefore the Framework Decision entitles Member U.S.A. to spend upward the enforcement of decisions enacted nether such terms.

Therefore, what is the fuss? Why has the GCC made an “identity control” when the Framework Decision solves the instance anyway inwards the same terms?

It seems every bit if the GCC is sending a message to Luxembourg: it is non willing to purchase the Melloni case-law. Therefore, the Court of Justice’s approach inwards that instance to Article 53 of the Charter, which imposes Charter levels of protection inwards cases totally determined past times European Union Law (i.e., alongside no discretion for Member States), is non going to live on an slowly ride. The GCC is clearly stating that it volition undergo “identity control” inwards whatsoever instance covered past times European Union Law, including inwards areas totally determined past times European rules that lower the levels of protection enshrined nether national law.

Therefore, it is a harmless judgment on the facts, but a real of import i on the symbolic side. In fact, the determination is perfectly inwards describe of piece of job alongside the determination of the Castilian Constitutional Court inwards Melloni, inwards which the Castilian courtroom decided to lower the domestic score of protection of the correct to a fair trial, but non on the grounds of European Union Law. The Castilian courtroom highlighted that the judgment of the Court of Justice inwards Melloni was “a real useful reference”, but non a binding decision. In the end, the Castilian courtroom followed the Grand Duchy of Luxembourg criteria, but on the sole grounds of the Castilian Constitution. Now the GCC is proverb pretty much the same thing, but through the sophisticated way of “identity control”.

This is an unsurprising plow of events. Constitutional Courts conduct maintain been protagonists of the key rights narrative for to a greater extent than than one-half a century inwards Europe. In the instance of Germany, Spain, Portugal or Italy, Constitutional Courts conduct maintain been the guardians of human rights inwards U.S.A. alongside a dubious past times track-record inwards this matter. These are thence powerful in addition to relevant courts alongside an of import tradition, in addition to they are non willing to stride back. European integration is side-lining them, but the events taking house inwards Europe (and everywhere inwards the world) are in addition to so serious that Constitutional courts experience a duty to move past times away on acting every bit guardians. This mental attitude mightiness live on interpreted every bit a sign of nationalism, but it tin bathroom also live on the confirmation of the importance of the issues beingness straightaway handled past times the EU: information protection, the struggle against terrorism, immigration, the euro in addition to fiscal assistance of Member States, etc… Why would these courts create upward one's hear to larn irrelevant now, at a fourth dimension inwards which the challenges ahead are every bit relevant or fifty-fifty to a greater extent than of import than those they conduct maintain faced inwards the past?

In my opinion, this should non live on a drive of concern, but solely every bit long every bit the Court of Justice handles the province of affairs alongside attention in addition to intelligence. It did a practiced undertaking inwards the OMT instance (discussed here), but it is obvious that the expanse of key rights is a thorny i that poses many challenges. Akerberg Fransson in addition to Melloni were a brave but risky start, soon followed past times to a greater extent than or less cautious decisions. However, Opinion 2/13 in addition to the inability of the Court of Justice to adapt to a futurity ECHR accession of the EU, including Strasbourg external control, is a damaging in addition to clumsy motility that has solely made Constitutional courts frown. If they are dependent champaign to Strasbourg control, why can’t the Court of Justice convey it too? Many Constitutional Courts are perfectly entitled to recall “what are they scared of inwards Luxembourg?”.

It volition non live on slowly for the Court of Justice to come upward out of the province of affairs created past times Opinion 2/13. However, the Charter is nonetheless a real valuable instrument, a source of endless inspiration that could aid the Court seduce national Constitutional Courts inwards the years to come. Also, the electrical flow events taking house inwards Poland are to a greater extent than or less other practiced chance for the Court of Justice to test how far it is willing to move past times away inwards assisting national Constitutional courts that come upward nether attack. The electrical flow province of affairs is a hard one, but the Court of Justice has the authority, prestige in addition to background needed to seem upward the challenge.

The GCC has fired i time again, but it would live on a real reductionist reaction to only say that it is a mindless in addition to nationalistic claim from Karlsruhe. On the contrary, this is yet to a greater extent than or less other reminder for the Court of Justice of the importance of key rights, in addition to of the importance of its component subdivision every bit interpreter of the Charter. In other words, this is to a greater extent than or less other chance for the Court of Justice to forget that phrase in addition to so oft used past times its judges inwards populace lectures, according to which “we are non a key rights court”. Whether they similar it or not, they conduct maintain larn one. The longer they stubbornly resist this reality, the to a greater extent than painful the awakening volition be.

*Reblogged from the ‘Despite our Differences’ blog

Barnard & Peers: chapter 9, chapter 25

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