Dr Leandro Mancano, Senior Lecturer in EU Law, Edinburgh Law School
This blog post builds upon Leandro Mancano’s work, ‘You’ll never work alone: A systemic assessment of the European Arrest Warrant and judicial independence’, published in Common Market Law Review, Volume 58, Issue 3 (2021) pp. 683 – 718
Introduction
The European Arrest Warrant Framework Decision (EAW FD) has significantly altered cooperation between EU states on criminal justice matters (for its effects beyond the EU, see the Court of Justice’s judgments in Petruhhin – discussed here – and IN).
The EAW applies the concept of mutual recognition to criminal matters. This means that if Member State ‘A’ issues an arrest warrant for an individual ‘X’ to Member State ‘B’, State ‘B’ must recognize and execute this warrant. Subsequently, ‘X’ should be surrendered from ‘B’ to ‘A’ without further procedures unless specific grounds for refusal are present. This automatic cooperation relies on mutual trust: the presumption that, barring exceptional circumstances, member states uphold fundamental rights. Unlike extradition, the EAW, along with mutual recognition in criminal matters, puts the judiciary in complete control of cooperation.
Therefore, judicial independence is crucial for this mechanism to work effectively. When trust and surrender are the norm, understanding the exceptions to these rules and how they function is essential. The continuous undermining of judicial independence in Poland by its government has, either directly or indirectly, shaped a body of law concerning judicial independence within the EAW framework. This body of law has far-reaching implications. This post examines the role and significance of judicial independence within the EAW.
The Concept of Judicial Authority: Balancing Independence and Effective Protection
The importance of judicial independence in judicial cooperation logically starts with the issuance of the EAW. Firstly, independent judicial supervision must be guaranteed throughout the entire EAW process, from issuance to execution, ensuring effective legal protection. Secondly, the issuing judicial authority must meet specific requirements to issue a valid EAW.
Since a national arrest warrant is the basis for an EAW (Article 8(1)(c) EAW FD), effective legal protection must be ensured for procedures related to both the national and European arrest warrants. The judicial authority issuing an EAW must confirm that the warrant meets the necessary conditions, including proportionality. This level of protection is vital even when a judge or court’s national decision underpins the EAW. If a judicial authority that is not a court or tribunal issues the EAW, the decision must be subject to judicial review.
Public prosecutors can be considered judicial authorities, though not courts themselves, as long as laws and institutional structures exist to guarantee their independence. This ensures they are free from external influence. Even if there’s a risk of executive interference influencing a public prosecutor in a specific case that forms the basis of an EAW, the warrant can still be validly issued if effective judicial supervision is in place (contrast this with the approach taken in cases involving the European Investigation Order). This oversight, potentially through judicial review of the EAW decision, must be established in the issuing State and enacted before the EAW is carried out.
The Exceptional Circumstances Doctrine: The Two-Step Test’s Required Level of Probability
The EAW FD mandates (Article 3) or permits (Article 4) the executing judicial authorities to deny the execution of an arrest warrant and subsequent surrender under specific circumstances. While most of these exceptions relate to fundamental rights (e.g., protection against double jeopardy), their phrasing suggests potential issues like conflicts between the laws of different states. They do not cover instances where a Member State systematically fails to protect fundamental rights. The EAW FD’s Recital 10 (not legally binding) mentions the European Council’s ability to suspend the EAW for a Member State. However, this requires a finding of serious and persistent violations of EU values. This indicates a belief by EU lawmakers in the capacity of Member States to uphold the rule of law standards necessary for EU membership. The FD doesn’t include specific or general clauses allowing national courts to refuse surrender due to concerns about fundamental rights violations in the issuing state.
Based on Article 1(3) EAW FD, the Court established a two-step test to address challenges to the presumption of mutual trust. Initially used in cases related to inhuman or degrading treatment (see the judgment in Aranyosi and Căldăraru), it’s now used when there are concerns about the independence of the authority issuing the EAW. In the first step, the executing judge assesses if systemic deficiencies exist within the issuing state’s justice system regarding the right to an independent tribunal. Secondly, there must be clear and specific evidence indicating that these deficiencies could affect the courts handling the proceedings in that state. Furthermore, there should be substantial grounds to believe that, considering the individual’s circumstances, the crime, and the EAW’s context, the individual faces a genuine risk (see judgment in LM, discussed here).
This test has drawn criticism for being excessively difficult to satisfy, especially considering the Court’s recent ruling stating that systemic deficiencies alone aren’t enough to warrant refusal of execution. This article argues that while the burden of proof for establishing real risk is substantial, it shouldn’t be misinterpreted as requiring near certainty. The Court’s language suggests a distinction between these two levels of probability. The required characteristics of the evidence (precise and specific) should be considered alongside the less stringent level of probability attached to their potential consequences (likely to impact the competent court). Moreover, the areas where these substantial grounds should originate (personal circumstances, the nature of the offense, and factual context) are illustrative, not mandatory. The test is not as restrictive as it may appear, and executing authorities have some flexibility in assessing the potential risk to an individual’s right to a fair trial.
Conclusion
Judicial independence is fundamental to the rule of law and judicial cooperation in criminal justice, including the EAW. At a minimum, independence must be guaranteed for the judicial authority that oversees the EAW process, both in issuing and executing warrants, and for the authority with jurisdiction over the proceedings in the issuing state after an individual is surrendered. The Court demands that the issuing authority’s independence be safeguarded by legal rules and institutional frameworks; otherwise, an EAW cannot be considered valid. Conversely, the ECJ differentiates this situation from a lack of independence stemming from systemic issues within the issuing state, in which case the EAW is generally considered valid, and the executing court applies the two-step test to potentially refuse surrender. These situations are distinct and involve different entities (the issuing authority versus the trying authority).
Systemic considerations likely explain, even if they don’t fully justify, the Court’s approach. However, maintaining the distinction between statutory rules and systemic deficiencies might become increasingly difficult, especially as the erosion of judicial independence in Poland persists. A related issue with the potential to cause disruption, but not yet prominently addressed, is the scenario where the supervising body in the issuing state lacks adequate legal and institutional safeguards. These questions, along with accurately interpreting the two-step test’s probability threshold, are central to the EAW mechanism and may become key issues in the ongoing discussion around judicial independence and EU cooperation in criminal justice.
Barnard & Peers: chapter 25
JHA4: chapter II:3
Photo credit: Jebulon, via Wikimedia Commons