By Cecilia Rizcallah*

*Research Fellow at the Belgian National Fund For Scientific Research (F.R.S.-FNRS). The author wishes to thank Pr. S. Van Drooghenbroeck. The usual disclaimer applies.

Advocate General Tanchev recently presented his opinion on case C-216/18 PPU. This case involves multiple European Arrest Warrants (EAWs) issued by Polish authorities against an individual, LM, suspected of drug trafficking. The case, brought before the European Court of Justice (ECJ) by the Irish High Court, questions whether an EAW is enforceable if the issuing Member State’s conditions contradict the fundamental right to a fair trial due to systemic rule of law issues within its justice system.

Context of the case

This case arises amidst a “rule of law crisis” stemming from recent reforms in some Member States, including Poland, that challenge fundamental EU values. The Venice Commission and other organizations have observed significant rule of law breaches, particularly in Poland’s judicial reforms, which severely threaten judicial independence. Following these concerns and the lack of improvement in Poland, the Commission submitted a reasoned proposal under Article 7(1) TEU in December 2017, suggesting the Council acknowledge a clear risk of a serious rule of law breach in Poland.

However, no concrete actions have been taken based on this opinion, mainly due to Article 7’s stringent conditions and the absence of alternative tools to address such situations. Consequently, Brussels has been unable to provide a unified and effective response to the crisis, and the initial impacts on EU integration are emerging. For instance, the ECJ recently ruled that Poland violated the Railway Safety Directive due to a lack of independence in its investigative body for railway undertakings and infrastructures. Now, the EAW mechanism faces challenges posed by the rule of law crisis in Poland.

The European Arrest Warrant mechanism, outlined in the Council Framework Decision of 13 June 2002, operates on the principle of mutual trust. This principle assumes all Member States adhere to the EU’s founding values outlined in Article 2 TEU, encompassing the rule of law and human rights. This presumption justifies the near-automatic execution of EAWs and generally prevents the executing Member State from scrutinizing fundamental rights compliance. Essentially, the executing national authority must “trust” the validity of EAWs from other Member States.

According to established ECJ case law, grounds for non-execution of an EAW are exhaustively defined in the Framework Decision and require strict interpretation due to the principle of mutual trust. Notably, fundamental rights are not explicitly listed as grounds for refusal in the Framework Decision. Due to the principle of mutual trust and prioritizing the EAW mechanism’s efficiency, the ECJ has been hesitant to allow national courts to review fundamental rights compliance when executing an EAW.

However, the Aranyosi and Căldăraru judgment created a precedent. The ECJ stated that, in truly exceptional circumstances, EAW execution could be deferred if the individual would face a genuine risk of inhuman or degrading treatment in the issuing Member State due to detention conditions. A two-step process was established to assess such risk. First, the executing authority needs “evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State.” Second, “whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State.”

According to the Court, the requested authority must then “request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State” as per Article 15(2) of the Framework Decision.

The question in C-216/18 PPU

Case C-216/18 PPU questions whether the rule of law crisis and systemic shortcomings within the Polish judicial system justify rejecting an EAW from Poland. Specifically, the Irish judge inquired if the Aranyosi and Căldăraru two-step test, used for suspending EAW executions, should apply in cases of systemic rule of law violations. This case presents an opportunity for the ECJ to provide clarity regarding acceptable limitations to the principle of mutual trust.

Unlike Aranyosi and Căldăraru, case C-216/18 PPU deals with inherent flaws in a Member State’s justice system and potential violations of a non-absolute right – the right to a fair trial (Article 47 of the Charter). Additionally, it touches upon sensitive issues surrounding the controversial reforms in Poland, sparking political reactions.

The Advocate General’s opinion

Advocate General Tanchev’s opinion supports applying the Aranyosi and Căldăraru two-step test in this case. He differentiates the current case’s required assessment from that conducted by the Council under Article 7(1) TEU. The referring court, he argues, asks whether identifying “conditions in the issuing Member State [as] incompatible with the fundamental right to a fair trial because the system of justice itself [of that Member State] is no longer operating under the rule of law” is sufficient to postpone an EAW.

Therefore, the Advocate General believes the ECJ is not tasked with addressing the broader issue of rule of law violations but rather the consequences of violating the right to a fair trial. This approach allows the ECJ to avoid a general pronouncement on the sensitive political matter of Poland’s rule of law crisis. This aligns with the Treaties’ intent, as Article 269 TFEU prevents the ECJ from ruling on the legality of acts under Article 7 TEU, except for procedural aspects.

He posits that triggering Article 7 should have different consequences than applying the Aranyosi and Căldăraru judgment. On one hand, a finding of a genuine risk of violating the prohibition of inhuman or degrading treatment compels the executing judicial authority to postpone the EAW. On the other hand, suspending the entire EAW system with a Member State rests solely with the Council, under Article 7(3) TEU, based on an actual breach, not just a risk, of EU founding values.

The Advocate General then outlines how to apply the Aranyosi and Căldăraru test in this case. He addresses the possibility of delaying EAW execution to safeguard non-absolute rights, arguing that past limitations on the principle of mutual trust based on Article 4 of the Charter do not prevent a similar conclusion for other rights like the right to a fair trial. However, given the significance of mutual trust, he argues that “it is not sufficient that there is a real risk of breach of the second paragraph of Article 47 of the Charter in the issuing Member State” to postpone an EAW.

Delaying an EAW is only justified when there’s a “real risk of breach not of the right to a fair trial but of the essence of that right,” which amounts to “a flagrant denial of justice.” Regarding judicial independence, he emphasizes that a “lack of independence and impartiality of a tribunal can be regarded as amounting to a flagrant denial of justice only if it is so serious that it destroys the fairness of the trial.” To assess this risk, the executing judicial authority should utilize “objective, reliable, specific and properly updated” information on the issuing Member State’s situation, like reports from the Venice Commission or the Commission’s reasoned opinion.

However, according to the Advocate General, such findings are insufficient for postponing an EAW. The executing judicial authority must also ascertain that “in the case in point,” the individual will face that risk by examining their specific circumstances or the offense. This includes determining if the person is a “political opponent or a member of a discriminated social or ethnic group,” or if “the offense is political or if authorities have made public statements about it or its potential punishment.” The burden of proving this risk falls on the individual.

When assessing individual risks, the executing judge should request all necessary supplementary information from the issuing judicial authority based on Article 15(2) of the Framework Decision. This information should concern “legislation adopted after the Commission’s reasoned proposal and the opinions of the Venice Commission, and the particular features relating to the individual concerned and to the nature of the offence that would be liable to expose him to the real risk of flagrant denial of justice identified.” Finally, based on this information, the executing judicial authority must either execute the warrant if they believe the person will not face a genuine risk of a flagrant denial of justice, or postpone it if such a risk exists.

Comments

Despite current events highlighting the serious threat to EU founding values in some Member States, the Advocate General’s opinion seems to prioritize preserving the – arguably diminished – trust between Member States at all costs. This raises several points of contention.

Firstly, the Advocate General differentiates between assessing the existence of a rule of law crisis that jeopardizes the Polish judiciary’s independence, and evaluating compliance with the right to a fair trial in Poland. While these procedures are distinct in nature (one political, the other judicial) and scope (one addressing persistent violations of EU values, the other focusing on the right to a fair trial), the human rights risks in this case stem directly from systemic violations of the rule of law. The concern isn’t a singular breach of the right to a fair trial but rather systemic flaws within Poland’s judicial system that potentially compromise the fairness of all trials. Therefore, while the assessments differ, their subject matter should not be treated in isolation.

The Advocate General suggests that each procedure carries different consequences. Only if the Council determines a breach – not just a risk – of EU values can the EAW mechanism be potentially suspended. Given the current ineffectiveness of the Article 7 procedure and the difficulty in achieving the required Council unanimity, this implies a low probability of ever suspending the EAW procedure.

Secondly, the Advocate General believes the systemic nature of the Polish judicial system’s flaws is not enough to justify rejecting Polish EAWs. Referencing the Aranyosi and Căldăraru ruling, he argues that refusal to surrender an individual is only warranted if (i) there’s a risk of violating the essence of the right to a fair trial, constituting a flagrant denial of justice, and (ii) the requested individual faces this risk. Regarding the first condition, he prioritizes mutual trust over safeguarding fundamental rights, arguing that not all violations of these rights should prevent an EAW’s execution.

This contradicts the ECJ’s Tupikas ruling, which stated that “the principles of mutual trust and recognition on which that Framework Decision is based must not in any way undermine the fundamental rights guaranteed to the persons concerned,” and the Framework Decision’s preamble, emphasizing its respect for fundamental freedoms.

The Advocate General draws on ECtHR case law on extradition procedures to support his conclusion. The ECtHR has used the “flagrant denial of justice” concept to establish responsibility of a Contracting Party indirectly facilitating or enabling violations of fundamental freedoms by third parties. However, the case law on this issue is inconsistent, as seen in Pellegrini v Italy, where a judgment by a third party (the Vatican) justified full scrutiny of Article 6 compliance by the Italian judge.

Furthermore, this test was only used for extraditions with non-Council of Europe states based on the reasoning that the Convention doesn’t govern non-party states nor compel Contracting States to impose Convention standards on other states. However, this case involves cooperation between two EU Member States, both part of the Council of Europe. It’s questionable why violations (not just limitations) of Article 47 should be tolerated within the EU to preserve mutual trust, when this principle relies on the presumption that all Member States uphold fundamental rights as enshrined in the Charter.

The ECtHR, in its Avotins judgment, seems to accept the principle of mutual trust, at least as long as Member States can “conduct a review commensurated with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient.” This case concerned mutual recognition in civil matters, where Article 6 guarantees apply less strictly than in criminal proceedings.

Regarding the second condition, the Advocate General requires an individual assessment, examining the alleged offense and the person’s profile, followed by information exchange between the issuing and executing authorities. He places the burden of proving the risk on the individual. This is arguably the opinion’s most problematic aspect.

The Advocate General proposes that the executing judge should only postpone an EAW if they find both a genuine risk of a flagrant denial of justice due to the issuing Member State’s flawed justice system, and that the individual will be subjected to this risk. Factors to consider include the nature of the offense and the person’s profile, particularly if they are a political opponent or belong to a group facing discrimination in the issuing state.

However, the option to refuse surrender of individuals convicted for political offenses was specifically excluded from the Convention on Extradition between Member States in 1996, when replaced by the Framework Decision. Moreover, demanding the individual prove a lack of tribunal independence in their specific case contradicts established ECtHR case law, where serious doubts about a fair trial by an independent and impartial tribunal can constitute a violation of Article 6 of the ECHR.

The ECtHR posits that the mere existence of mechanisms allowing the executive to influence court proceedings, even if not used in the specific case, is enough to establish a violation of the right to a fair trial. The Advocate General’s proposed approach also disregards the “doctrine of appearances,” frequently invoked by the ECtHR, which emphasizes the importance of public perception regarding the fair administration of justice.

This doctrine suggests that justice must not only be served but also be seen to be served, and emphasizes the need for public trust in the judicial system, particularly from the accused. Speculation about a tribunal’s actual independence in a specific case should be unnecessary when significant rule of law deficiencies are evident.

The Advocate General suggests that, before deciding on an EAW, the executing authority should request necessary information from the issuing judge. This raises concerns about objectivity, as it would involve a judge, whose independence is in question, providing information about their own independence.

New playground, new rules of the game?

Mutual trust is a vital tool for EU integration, employed in both the internal market and the Area of freedom, security, and justice. For the EAW system, it allows effective criminal cooperation between Member States without requiring the merging of national criminal justice systems or harmonization of criminal law. However, this principle was developed assuming all involved states were democratic and respected EU founding values, including fundamental rights. The ECJ recently reaffirmed the importance of respecting the rule of law. However, some Member States’ disregard for this value persists despite diplomatic efforts to address the crisis.

The question arises whether this obligation of mutual trust should remain when its foundation is compromised. Persisting with the initial rules of the game after the playing field has changed seems illogical. Besides being problematic for the state experiencing the crisis, compelling other states to maintain mutual trust risks a contagion effect across the EU, as national judgments are mutually recognized. Furthermore, the rights at stake, including the right to judicial protection (the “right to have rights”), considered by the ECJ as the essence of the rule of law, should be considered.

The principle of mutual trust, while fundamental to EU law, operates on the premise that all Member States share and respect a common set of values. Upholding this principle while its foundation is shaken seems contradictory. While the current “rule of law crisis” is primarily a political issue for institutions like the Council to address under Article 7 TEU, the ECJ must ensure compliance with EU law, particularly the Charter of Fundamental Rights. When interpreting the Framework Decision, the Court should, in principle, guarantee adherence to EU fundamental rights, especially the right to an effective judicial remedy. The principle of mutual trust, while crucial, should not allow limitations on fundamental rights that contradict Article 52 of the Charter. This article mandates respecting the essence of fundamental rights and requires a broader proportionality assessment.

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Photo credit : Human Rights Watch