Steve Peers*

Since its rushed creation after the 9/11 attacks, the European Arrest Warrant (EAW) has become a cornerstone of EU criminal law. It replaces traditional extradition with a streamlined system lacking most of the usual limitations. This has worried critics concerned about potential miscarriages of justice but pleased supporters who appreciate the faster return of more fugitives to face justice.

Despite concerns from some EU countries’ constitutional courts, the European Court of Justice (ECJ) has long dismissed human rights criticisms of the EAW. It rejected one challenge to the EAW law on human rights grounds and essentially mocked a national court that inquired about refusing an EAW due to human rights concerns, choosing to address a fabricated argument rather than the court’s actual questions. In its Melloni judgment, the ECJ set a limit on how national human rights protections could be used to resist executing an EAW, but it never established a corresponding minimum standard for these rights. The court consistently ruled that national courts could only refuse EAWs on the specific grounds listed in EAW law, focusing entirely on the EAW system’s effectiveness.

However, this strict approach has softened since the Lisbon Treaty came into effect. This is due to the passage of six new EU laws on fair trial rights. Five of these laws provide procedural rights to those fighting EAWs. (The EU’s Fundamental Rights Agency just released a report on the first two laws’ implementation.) Over the past year, the ECJ has begun interpreting these laws (see the Covaci, Balogh, and Milev judgments).

Even excluding these fair trials laws, the ECJ has shown a notable interest in ensuring some human rights protections within the EAW system over the last year and a half. Last year, in Lanigan, the Court ruled that if a fugitive is detained in the receiving country while challenging an EAW, the European Court of Human Rights’ (ECtHR) case law on detention lengths in extradition cases applies under the EU Charter of Fundamental Rights.

This spring, the ECJ focused on detention conditions in the country that issued the EAW. Shortly after the German constitutional court raised concerns on these issues, the ECJ ruled in Aranyosi and Caldaruru that when handling EAWs issued by Hungary and Romania, German authorities must consider the fugitives’ worries about prison overcrowding in those countries, which the ECtHR had previously ruled violated Article 3 of the European Convention on Human Rights (freedom from torture or other cruel, inhuman or degrading treatment or punishment). In such cases, the national court had to follow a two-step procedure: a) determine if those countries systematically failed to ensure acceptable prison conditions and b) determine if there was a ‘real risk’ the fugitive would face those conditions if extradited.

What if these tests were met? The ECJ was reluctant to abandon its stance that the EAW law’s list of reasons to refuse an EAW is comprehensive. Instead, it decided that the receiving country should postpone executing the EAW until the issuing country’s situation improved. (The EAW law is unclear about reasons to postpone EAW execution, and the ECJ had already ruled in Lanigan that execution deadlines could be disregarded if necessary). The Lanigan detention limits applied if the fugitive was detained in the receiving country during this time, with the additional condition that detention could not be indefinite while awaiting EAW execution. (The ECJ later aligned the EAW’s definition of ‘detention’ with the ECtHR’s case law in JZ).

This was merely the start of the ECJ scrutinizing issuing countries’ laws and practices regarding EAWs. In Bob-Dogi, the Court ruled that Hungary couldn’t issue standalone EAWs without a supporting national arrest warrant. One reason was that requiring a prior national arrest warrant helps protect suspects’ fundamental rights. The previously paramount goal of EAW system efficiency, which would have dictated the opposite result, was only briefly mentioned. Moreover, the Court sidestepped its previous refusal to accept new grounds for opposing an EAW by ruling that the EAW had not been properly issued.

Next, in Dworzecki, the ECJ insisted that countries issuing an EAW after a trial in absentia must have demonstrated proper effort to locate the fugitive before the trial. In this instance, the law explicitly permits non-execution of the EAW.

Finally, in three cases decided last week, the Court ruled that issuing countries do not have complete discretion over what constitutes a ‘judicial authority’ for issuing EAWs. The concept broadened beyond judges to encompass those who administer the justice system, such as Hungarian prosecutors (Ozcelik). However, it excludes Swedish police (Poltorak) and Lithuanian justice ministry officials (Kovalkovas). (British readers might compare these rulings to the Supreme Court’s decision in the Assange case).

As in Bob-Dogi, the Court avoided the “exhaustive grounds for non-execution” issue it created by ruling in Poltorak and Kovalkovas that those EAWs were never valid. The Court also ruled, in an intriguing use of ‘soft law,’ that Sweden and Lithuania could not argue for those invalid EAWs to stay valid for a limited time while they revised their laws. This is because the Council warned them in a 2007 evaluation report that these practices violated EAW law. In this light, criminal defense attorneys and justice ministry officials may want to review the Council evaluations of all member states in detail, as they contain many other critiques of EAW implementation.

Comments

Has the Court shifted from undermining to safeguarding human rights in EAW cases? Certainly, miscarriages of justice involving the EAW remain a concern (see, for example, the Fair Trials website). However, the rulings imply a major shift that addresses some concerns and may pave the way for addressing others. What could explain this change?

One reason could be the German constitutional court’s decision on detention conditions in the EAW context, though the ECJ has never been receptive to constitutional courts’ EAW concerns. Another factor could be a willingness to compromise following the ECJ’s debatable ruling on EU accession to the ECHR. In that ruling, the ECJ criticized the draft accession treaty for, among other things, failing to adequately consider the ECJ’s case law on mutual recognition in Justice and Home Affairs matters. This case law allowed human rights to override mutual recognition only in “exceptional” cases. Having asserted its dominance in that judgment, the ECJ may have felt comfortable adopting a more flexible approach on its own (and under its control), which could help talks on renegotiating the accession agreement.

Concerns about adequate human rights and rule of law protections in several member states may also be at play. Article 7 of the Treaty on European Union (TEU) outlines the formal procedure for punishing or warning Member States about such concerns, but the EU is hesitant to use it currently. The EAW law’s preamble states that the EAW system can only be completely suspended for an entire member state if Article 7 is invoked. In Aranyosi and Caldaruru, the ECJ acknowledged that provision but then devised a compromise: postpone EAW executions in specific cases until detention conditions improve. This is a measured, individualized solution for these specific EAW human rights issues.

Furthermore, recent judgments’ emphasis on judicial oversight of EAWs is explicitly justified by “the separation of powers, which characterizes the rule of law.” Despite the EU’s reluctance to punish member states for systemic rule of law issues, the ECJ’s rulings ensure that any general human rights concerns are addressed when EU law is applied.

Indeed, these recent judgments could be just the beginning: they could be used to argue for postponing, invalidating, or opposing EAWs based on other human rights concerns. Fugitives may argue, for example, that the possibility of lengthy pre-trial detention in another Member State justifies delaying EAW execution — though this argument only makes sense if the fugitive is not detained in the executing State. The Aranyosi and Caldaruru judgment already raises concerns about judging another country’s prisons, so much so that the German courts have referred the Aranyosi case back to the CJEU with new questions. Postponing an EAW does not solve the underlying problem of prison overcrowding and raises the possibility that criminals will relocate to another Member State to avoid punishment.

This emphasizes the need for EU legislation addressing prison conditions and pre-trial detention lengths in EAW cases. The Commission issued a Green Paper on this issue in 2011, but member states were not enthusiastic. However, the Commission has indicated in light of recent rulings that it may make a proposal in the future. (The EU Fundamental Rights Agency also published a new report on these topics.) This would be an ideal opportunity to reform the EAW system by requiring a proportionality check before issuing EAWs – so that no one is sought for stealing a piglet or someone’s beer at a house party – and by promoting the use of European Supervision Orders (“Euro-bail”), EU laws on prisoner transfers and sentences, and modern technology to conduct more criminal proceedings with the suspect’s virtual (but not physical) presence (see the Ludford report on potential EAW system reforms). There is a better way to balance effective prosecutions with human rights.

Barnard & Peers: chapter 9, chapter 25

JHA4: chapter II:3, chapter II:4

Photo credit: picture – alliance/Horst Galuch

* This post is based on a keynote speech I gave on 10th November 2016, at a conference on criminal justice and human rights organised by the EU Fundamental Rights Agency in Bratislava