Steve Peers

The recent Court of Justice of the European Union (CJEU) decision in the Lanigan case, which deals with prolonged pre-trial detention and the European Arrest Warrant (EAW), is especially noteworthy given the UN’s recent statement regarding Julian Assange’s “arbitrary detention.” Assange, who is also facing an EAW, presents a unique situation. What can we learn from each of these cases about the intersection of detention length and the EAW?

The Lanigan Judgment

It’s unfortunate that EAWs are often issued for trivial offenses, but the Lanigan case highlights that they can be utilized for serious crimes as well. This case involved Mr. Lanigan, who was wanted for murder in the UK. When an EAW was issued to Ireland, where he was located, Mr. Lanigan fought against it, resulting in a prolonged detention period. The Irish courts ultimately turned to the CJEU to determine if this extended detention, while contesting the EAW, violated the execution deadlines outlined in the EU Framework Decision or breached human rights laws. This was a landmark case, as it was the first time Ireland had referred a criminal matter to the CJEU after the expiration of the court’s jurisdiction over criminal law in December 2014.

The CJEU determined that Mr. Lanigan’s detention during his EAW challenge did not invalidate the warrant itself, nor did it necessitate his release. The Court emphasized the strict adherence to the 60-day (with a possible 30-day extension) time limit for executing an EAW, mirroring its previous stance in the Forrest case, which involved a British teacher who had fled to France with a minor.

However, the Court then deviated from its previous stance, recognizing that strict adherence to the time limits in this particular case could undermine the obligation to execute the EAW. Given the limited exceptions to the execution obligation, the Court prioritized the underlying rule, stating that the EAW remained valid even after the deadline. Essentially, the “time limit” wasn’t truly a time limit.

The situation worsened for Mr. Lanigan when the CJEU ruled that the expiration of the deadlines didn’t automatically necessitate his release from custody. They pointed to the vague nature of the Framework Decision’s detention rules, which largely defer to national judicial authorities to determine detention, bail, and other related matters. While EU regulations mandate the release of fugitives after an EAW’s execution if surrender deadlines aren’t met, there’s no such obligation if a State fails to execute the EAW within the initial timeframe.

However, the Court recognized that the lack of a concrete deadline, coupled with no obligation to release a fugitive due to this legal loophole, could lead to indefinite detention without trial. This realization led the Court to acknowledge, for the first time, the importance of human rights considerations embedded within the EAW law. Applying Article 6 of the EU Charter of Fundamental Rights in line with Article 5 of the European Convention on Human Rights (ECHR) meant that detention was only permissible if the EAW procedure was conducted with “due diligence,” considering all relevant factors, including the actions of both the Irish authorities and the fugitive, the potential sentence, the risk of absconding, and the significant delay.

The Assange Case

The Lanigan case didn’t address two key issues often encountered in EAW cases: extended pre-trial detention in the issuing State after surrender and inadequate detention conditions. The CJEU is expected to rule on the latter issue shortly in the Aranyosi and Caldararu cases.

The CJEU also wasn’t tasked with addressing Mr. Assange’s unusual situation, specifically seeking refuge within a third country’s embassy to avoid EAW execution due to allegations of politically motivated investigations and the possibility of extradition to the US. This already complex case has taken another turn with the UN’s recent opinion deeming Assange’s embassy “detention” as “arbitrary.”

How does EU law come into play here? EU law, particularly the EAW, was discussed in the earlier UK litigation, notably in the Supreme Court’s judgment. Unlike previously, UK courts can now refer questions about EU criminal law adopted before the Lisbon Treaty to the CJEU. This allows Assange to potentially challenge the EAW’s execution in light of the UN’s opinion within the UK court system. He could request the UK courts to refer questions about the EAW law to the CJEU, which would likely result in an expedited ruling. Alternatively, he could pursue the case through the UK Supreme Court and, if unsuccessful, file a complaint with the European Court of Human Rights.

What is the likely outcome? While the European Court of Human Rights generally considers opinions from other human rights bodies, the CJEU does not. In the Grant case, the CJEU dismissed the opinion of the UN Human Rights Committee, and in the well-known Kadi case, it found the UN Security Council’s legal protections regarding individuals listed as terrorist suspects to be insufficient.

Based on the Lanigan case and applying it to Assange’s circumstances, the UK has a strong obligation to execute the still-valid EAW. His “detention” remains valid due to the clear risk of absconding. Human rights arguments exist, including the potential for an unfair trial in Sweden or the US and the “detention conditions” within the embassy. However, the CJEU tends to dismiss human rights arguments related to EAWs, despite acknowledging the ECHR case law in Lanigan. The judgments in the Aranyosi and Caldararu cases, expected before Easter, should provide more clarity on this matter.

From Assange’s perspective, it might be more strategic to navigate the UK court system without requesting a CJEU referral and then take the case to the ECtHR in Strasbourg. However, the final decision doesn’t solely rest with him, as the UK government could also request the courts to refer questions to the CJEU. If the case reaches Strasbourg, the ECtHR will likely face a dilemma between its inclination to uphold the positions of international human rights bodies and its historical deference to the CJEU on human rights issues within the scope of EU law. The Assange saga, it seems, is far from over.

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