The strive for effectiveness of EU law versus the protection of Fundamental Rights in European Arrest Warrants proceedings

By Nerea Peris Brines

University of Utrecht

 

Introduction

In March 2011, the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, wrote that ‘there is a need to strengthen the human rights safeguards in European Arrest Warrant (EAW) procedures’.[1] Being mutual recognition a cornerstone of judicial cooperation in criminal matters,[2] the protection of fundamental rights (FR) seems to be of a greater importance.

The mutual recognition principle was first formulated by the Court of Justice of the European Union (CJEU) in Cassis de Dijon.[3] This principle can be found at the core of the European integration process and it entails an “assumption of validity” of foreign decisions in the area of criminal matters,[4] thus providing judicial decisions with an extraterritorial efficiency and preventing Member States (MS) from checking their validity.[5] Accepting this extra-territoriality requires a high level of mutual trust between MS.[6] Thus, when implementing European Union (EU) law, MS ‘may presume that FR have been observed by the other MS’.[7] Membership of the EU presumes the full respect of FR,[8] however, the differences on the protection of these rights among MS arise some concerns that can undermine the mutual trust. In this paper, after a brief overview on the FR in the Area of Freedom, Security and Justice (AFSJ), this tension will be addressed by analysing the case law of the CJEU and its implications regarding the most successful mechanism based on mutual recognition, the EAW. Finally, a reasoned conclusion will be provided.

Fundamental Rights in the AFSJ

Since the entry into force of the Treaty of Lisbon, the Charter of Fundamental Rights of the EU (CFR or Charter) became a binding instrument.[9] However, FR are not self-executing, as the MS are only bound by the Charter when they are applying EU law.[10] The broad approach adopted by the CJEU in the Fransson[11] case can be applied here. According to it, FR as established in the Charter should be respected by MS when acting ‘within the scope of EU law’[12]  i.e. when implementing or derogating from EU Law.[13] Nevertheless, the so-called “division of labour”[14] in protecting FR at EU level gives MS quite an extensive autonomy in this matter, leading to different levels of protection among MS.[15] Opposite to the actual concept, Schallmoser points out that since EU provisions are the legal basis allowing national bodies to interfere in FR within the AFSJ,[16] the European legislator has a positive obligation to minimize the risk of violations of FR.[17] I agree with those authors who consider that this duty should be fulfilled by establishing harmonized minimum standards on the guarantee of FR in the national legal orders.[18] Even though the European legislator is taking steps towards this,[19] the different levels of protection of FR have caused tensions among MS that may undermine the principles of mutual recognition and mutual trust if they are not addressed properly.

The European Arrest Warrant and the protection of Fundamental Rights

The adoption of the Framework Decision on the EAW (FD-EAW) in 2002 was not uncontroversial. Based on mutual recognition, it allows a member state to require from another member state the surrender of a person  who is being prosecuted or has been sentenced under criminal law. The minimal formalities and the exhaustive grounds for refusal, which do not include FR considerations, have created many conflicts since its implementation in 2004 that have led to some important judgements by the CJEU.

In Melloni,[20] the CJEU was asked if the requested country could refuse to execute an EAW on the basis of their higher constitutional protection of FR. In this case, Spain had refused to surrender a person found guilty in Italy, because the trial was conducted in absentia, which is not possible in the Spanish criminal law system. It should be noted that the FD-EAW had been amended in 2009 to include a provision regarding trials in absentia (article 4a) with the aim to enhance the mutual trust between MS. The CJEU ruled that MS cannot impose their higher standards of FR, even if they belong to the constitutional order, when that implies undermining the effectiveness of EU law.[21]  Besides, the Court emphasized that the EAW seeks ‘to enhance judicial cooperation with a view to achieving the objectives of the AFSJ, by basing itself on a high degree of confidence and trust’.[22]

Regarding the Article 53 CFR and the possibility to rely on it in order to make the surrender conditional to a re-trial, the CJEU considered that when there is full harmonisation, the Charter constitutes both the floor and the ceiling of FR protection, whilst when MS are left with some discretion, the Charter becomes a minimum standard.[23] In that case, higher standards for protection of FR are allowed but only when compatible with the primacy, unity and effectiveness of EU law.[24] Consequently, since article 4a FD-EAW is an exhaustive provision which is in line with the CFR, the requested state couldn’t rely on its higher level of protection in order to refuse the request, as it would cast doubt ‘on the uniformity of the standard of protection of FR defined in that FD’ and consequently, it would ‘undermine the principles of mutual trust and recognition […] and, therefore, compromise the efficacy of the FD.’[25] Thus, the CJEU adopted a teleological interpretation of the principle of mutual recognition as well as a restrictive approach to FR, as it ruled that even though the right of the accused to appear in person is an important part of the rights established in articles 47 and 48(2) CFR and 6(2&3) ECHR,[26] it is not absolute.[27] Hence, the CJEU showed ‘a great degree of deference to the European legislator’.[28]

The importance given by the CJEU to the effectiveness of EU law had already been seen in Radu.[29] Mr. Radu was arrested in Romania on the basis of four EAW issued by Germany. In the surrender proceedings, he claimed that he had not been heard before the German authorities had issued the EAW, and this breached his fundamental right to a fair trial. The CJEU dismissed this argument by stating that the effectiveness of the EAW requires an element of surprise, otherwise it would be pointless.[30] In focusing its reasoning on the right to a fair trial, the Court avoided the general question on how to deal with FR violations in the issuing Member State.[31]  Thus, the CJEU put the emphasis on mutual trust as a principle underlying action by MS and stressed the importance of assuring the effectiveness of EU law. [32] Indeed, the rejection by the CJEU to the accession of the EU to the ECHR is mainly based on these considerations. Accession would allow Member States to verify in any case whether the other Member States respect FR, which is against the mutual trust.[33]

The aforementioned judgements have led some authors to consider that ‘raising the level of protection of FR in the field of criminal cooperation is not a priority by the CJEU’.[34] However, I disagree with that statement. Even though there are still many shortcomings regarding the protection of FR in the FD-EAW, in its most recent case law the Court has proved to be concerned about it as well.

In April 2016, the Court ruled in Aranyosi and Căldăraru[35] that the risk of violation of FR was a valid ground for postponing the execution of an EAW.[36] These joint cases concerned two citizens to whom Germany was requested to send to Hungary and Romania, where prison conditions are likely to breach Article 4 CFR.[37] The main question was whether an individual risk of violation of FR concerning a specific person was enough to refuse a request.[38] In his opinion, AG Bot favoured the effectiveness of the EAW system over the protection of FR, as ‘a ground for non-execution based on the risk of infringement of FR would substantially undermine the relationship of trust […], therefore nullifying the principle of mutual recognition of judicial decisions’.[39] However, the Court embraced a completely different approach by establishing that ‘in excep­tional circumstances the principles of mutual trust and recognition can be limited’[40] and by emphasizing the binding character of the CFR when MS are implementing EU Law.[41] With this judgement, the CJEU seems to reconcile the protection of FR with the principles of mutual trust by giving them the same importance.[42] However, this reasoning only applies when EU standards for protection of FR are at stake, as the ruling in Melloni still applies regarding national standards, [43] thus preventing MS to assess the risk of violation of FR when there is minimum harmonisation. Moreover, the new ground for postponement can only be adduced when article 4 CFR is involved,[44] so the question of what happens when other FR are at stake remains unclear.

The importance of this judgement cannot be belittled, though. Before this case, the only ground for refusal based on FR violations accepted by the CJEU was the existence of ‘systemic deficiencies’, as stated in NS and others.[45] In Aranyosi, the Court added a new standard for proving a breach of FR: the existence of a ‘real risk’ of inhuman and degrading treatment.[46] Even though some authors have voiced their concerns about this, as it may be difficult to prove that the requested person faces a concrete real risk,[47] in my opinion this new standard is a step closer to a better protection of the FR. Indeed, the central message of this ruling is that mutual confidence is not to be interpreted as blind trust but it can be rebutted when exceptional circumstances arise.[48] These exceptional circumstances refer to the very nature of the rights at stake and especially, the gravity of the infringement.[49] I completely agree with this approach, as I think that it was not logical that the CJEU adopted it for asylum cases but set it aside for those situations falling under the scope of the EAW system. With this ruling, the CJEU seems to suggest that the AFSJ should be subject to similar rules concerning the protection of FR.[50]

Therefore, it seems that MS cannot refuse to execute an EAW on the basis of their higher level of protection of FR, but they can postpone it when the FR at stake are embodied in the Charter. Even though the CJEU didn’t provide a completely clear answer in this matter, as it did not create a new ground for refusal but for postponement, leaving unanswered the question of what to do if the risk of ill-treatment remains after a ‘reasonable time’ has passed,[51] this is undoubtedly a very welcomed step towards the right direction.

 

Conclusion

Balancing the necessity of enforcing the effectiveness of EU law with the protection of FR has proven to be very difficult. The difference in the level of protection of FR among MS is one of the main concerns when implementing EU acts in the AFSJ. That is the case of the EAW which, insofar it is an effective instrument to facilitate criminal cooperation between MS, it raises concerns about human rights. The fact that there are no grounds for refusal for the protection of FR nor minimum harmonized standards in this matter is in my opinion a big mistake made by the EU legislator. Even though the principle of mutual trust entails the assumption that all MS respect the human rights, the reality has shown the contrary. Therefore, the application of a blind mutual trust could lead to violations of FR. From my point of view, this situation would be completely inadmissible, as FR as established in the Charter are on the core of the EU. Besides, they are considered primary law since the entry into force of the Treaty of Lisbon and therefore they cannot be set aside by a general principle of EU law.[52] With the new approach taken by the CJEU it seems that there is a shift from a prevailing conception of effectiveness, to a more balanced interpretation that considers the protection of FR of equal importance. However, the possibility to assess whether there is a specific risk of violation of FR should not be limited to situations involving EU primary law, but also when MS are implementing secondary law which contains provisions regarding the protection of FR. In other words, the existence of minimum harmonised standards should not automatically entail a blind trust.

In conclusion, the recent case law seems to suggest that a balance between the effectiveness of EU law and the protection of FR is possible. However, in order to achieve it, it is necessary to establish minimum harmonized standards for the protection of FR, as well as to allow national courts to assess the existence of a real risk of violation of FR when there are sufficient grounds for suspecting it.

 

 

Bibliography

Literature

Anagnostaras, G. (2016). Mutual confidence is not blind trust! Fundamental rights protection and the execution of the European arrest warrant: Aranyosi and Caldararu’. Common Market Law Review, 53(6), 1675–1704.

Bachmaier, L. (2015). Mutual recognition instruments and the role of the CJEU: the grounds for non-execution. New Journal of European Criminal Law, 6(4), 505-526

Bang Fuglsang Madsen Sørensen, H. (2016). Mutual trust – blind trust or general trust with exceptions? The CJEU hears key cases on the European Arrest Warrant. Pecs Journal of International and European Law, 2016/I, 56-62.

Böse, M. (2015). Human Rights Violations and Mutual Trust: Recent Case Law on the European Arrest Warrant. In S. Ruggeri, Human Rights in European Criminal Law (1st ed., pp. 135-145). Springer International Publishing.

Gáspár-Szilágyi, S. (2016). Joined Cases Aranyosi and Căldăraru: Converging Human Rights Standards, Mutual Trust and a New Ground for Postponing a European Arrest Warrant. European Journal Of Crime, Criminal Law And Criminal Justice, 24(2-3), 197-219.

Heard, C. and Mansell, D. (2011). The European Arrest Warrant: the role of judges when Human Rights are at risk. New Journal of European Criminal Law, 2(2), 133-147

Hinarejos, A. (2007). Recent Human Rights Developments in the EU Courts: The Charter of Fundamental Rights, the European Arrest Warrant and Terror Lists. Human Rights Law Review, 7(4), 793-811.

Klip, A. (2016). European Criminal Law. An Integrative Approach (3rd ed.). Antwerp: Intersentia.

Marguery, T. (2012). The Protection of Fundamental Rights in European Criminal Law after Lisbon: What Role for the Charter of Fundamental Rights? European Law Review 37(4), 444-463.

Marguery, T. (2013). European Union Fundamental Rights and Member States action in EU Criminal law. Maastricht Journal, 2, 282-301.

Mitsilegas, V. (2009). The Third Wave of Third Pillar Law: which Direction for EU criminal Justice? European Law Review 34(4), 523-560.

Mitsilegas, V. (2016). Mutual trust, mutual recognition and fundamental rights after Lisbon. In V. Mitsilegas et al., Research Handbook on EU Criminal Law (1st ed., pp. 148-167).

Peers, S. (2008). EU criminal law and the Treaty of Lisbon. European Law Review, 33, 518ff.

Schallmoser, N. (2014). The European Arrest Warrant and Fundamental Rights. European Journal Of Crime, Criminal Law And Criminal Justice, 22(2), 135-165.

Taupiac-Nouvel, G. (2012). The Principle of Mutual Recognition in Criminal Matters: a New Model of Judicial Cooperation Within the European Union. European Criminal Law Review, 2(3), 236-251.

Tinsley, A. (2012). The Reference in Case C-396/11 Radu : When does the Protection of Fundamental Rights Require Non-execution of a European Arrest Warrant? European Criminal Law Review, 2(3), 338-352.

Vervaele, J. (2013). The European Arrest Warrant and applicable standards of fundamental rights in the EU. Review of European Administrative Law, 6(2), 37-54.

 

Case Law

Case C-399/11 Stefano Melloni v Ministerio Fiscal, of 26 February 2013. ECLI:EU:C:2013:107

Case C‑617/10 Åklagaren v Hans Åkerberg Fransson, of 26 February 2013. ECLI:EU:C:2013:105

Case C-396/11 Ciprian Vasile Radu, of 29 January 2013. ECLI:EU:C:2013:39

Joined Cases C-404/15 and C-659/15 PPU Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, of 5 April 2016. ECLI:EU:C:2016:198

 

Legal documents

Consolidated version of the Treaty on European Union (2012) OJEU C326/13

Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) amended by Framework Decision 2009/299/JHA of 26 February 2009. OJL 81, 2009, p. 24

 

Others

Council of Europe. (2011). Overuse of the European Arrest Warrant – a threat to human rights. Retrieved from https://wcd.coe.int/ViewDoc.jsp?p=&id=1760139&Site=DC&direct=true

Opinion of Advocate General Bot on Cases C‑404/15 and C‑659/15 PPU, 3 March 2016. ECLI:EU:C:2016:140

Opinion 2/13 on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 18 December 2014. ECLI:EU:C:2014:2454

 

 

[1] See: https://wcd.coe.int/ViewDoc.jsp?p=&id=1760139&Site=DC&direct=true

[2] See for instance: Vervaele 2013, p. 38

[3] Idem

[4] Taupiac-Nouvel 2012, p. 244

[5] Ibid., p. 242

[6] Mitsilegas 2016, p. 150

[7] Opinion 2/13 on the accession of the EU to the ECHR, para. 192

[8] Mitsilegas 2016, p. 150

[9] Article 6 TEU

[10] Marguery 2013, p. 287

[11] Case C‑617/10 Åklagaren v Hans Åkerberg Fransson

[12] Ibid, para. 21

[13] Marguery 2013, p. 291

[14] According to this concept, the EU legislator only has to omit, but not to prevent fundamental rights infringements through legislation. See: Schallmoser 2014, p. 141-142.

[15] Heard & Mansell 2011, p. 135

[16] Schallmoser 2014, p. 151

[17] Ibid, p.156

[18] Taupiac-Nouvel 2012, p. 249

[19] For instance, with the adoption of the Framework Decision 2009/299/JHA: On decisions rendered in absentia of 26 February 2009

[20] Case C-399/11 Stefano Melloni v Ministerio Fiscal.

[21] Ibid, para. 59

[22] Ibid, para. 37; Case C-396/11 Radu, para. 34

[23] Anagnostaras 2016, p. 1685

[24] Melloni, para. 60

[25] Melloni, para. 60

[26] Right to an effective judicial remedy and to a fair trial and right of defence

[27] Melloni, para. 49

[28] Mitsilegas 2016, p. 158

[29] Case C-396/11 Ciprian Vasile Radu

[30] Ibid, para. 40

[31] Böse 2015, p. 138

[32] Mitsilegas 2016, p. 158

[33] Opinion 2/13, para. 194

[34] Bachmaier 2015, p. 524

[35] Joined Cases C-404/15 and C-569/15 PPU Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen

[36] Ibid, para. 98

[37] Prohibition of torture and inhuman or degrading treatment or punishment

[38] Bang Fuglsang Madsen Sørensen 2016, p. 59

[39] Opinion of Advocate General Bot on Cases C‑404/15 and C‑659/15 PPU, para. 122

[40] Aranyosi, para. 82

[41] Aranyosi, para. 84

[42] Gáspár-Szilágyi, 2016, p. 209ff.

[43] Ibid, p. 212

[44] Ibid, p. 213

[45] In the joined cases C-411/10 and C-493/10 N.S. & M.E. and others, the Court considered that the presumption that all MS respect fundamental rights is rebuttable, and therefore risks of violation of fundamental rights should be taken into account

[46] Gáspár-Szilágyi, 2016, p. 217

[47] See for example: ibid, p. 218

[48] Anagnostaras 2016, p. 1683 and p. 1692

[49] Ibid, p. 1691

[50] Ibid, p. 1683

[51] Gáspár-Szilágyi 2016, p. 216

[52] Bang Fuglsang Madsen Sørensen 2016, p. 58

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