Joske Graat, PhD student, Utrecht University
The Amsterdam District Court, solely responsible for handling European Arrest Warrants (EAWs) in the Netherlands, faces a conflict between national and EU laws regarding detention and release. Dutch law mandates the release of a requested individual after 90 days if the court hasn’t made a decision on the EAW. However, a 2015 European Court of Justice (CJEU) ruling stated that national courts can extend detention beyond 90 days to ensure conditions for surrender are met. This creates a conflict, as extending detention beyond this period contradicts Dutch law. Consequently, the obligation to release someone under Dutch law clashes with the EU’s requirement for effective surrender procedures.
The Amsterdam District Court attempts to address this issue by interpreting Dutch law in line with the European Arrest Warrant Framework Decision (FDEAW), but this solution presents its own problems. This interpretation, which aims to reconcile the conflicting laws, raises concerns about legal certainty for the requested individual and potentially contradicts the original intent of the Dutch law. The issue of legal certainty has prompted a request for clarification from the CJEU. However, it remains unclear if the CJEU’s interpretation will resolve the situation or create further complications. Therefore, legislative action might be necessary to address this conflict definitively.
This issue requires urgent attention because fulfilling other EU law obligations, such as addressing preliminary questions and gathering information related to potential human rights violations, often extends surrender proceedings beyond the 90-day limit. This delay could force the release of requested individuals even when there’s a flight risk, contradicting the EAW’s requirement to ensure surrender conditions are met.
The Amsterdam District Court’s solution involves interpreting Dutch law to allow for the suspension of the 90-day detention period, effectively permitting detention beyond 90 days. However, this interpretation has been criticized for potentially infringing on the right to liberty, prompting a complaint to the European Court of Human Rights (ECtHR) and a request for a preliminary ruling from the CJEU on whether this interpretation aligns with the principle of legal certainty.
This interpretation is problematic not only because it might not guarantee legal certainty but also because it contradicts the clear wording and intent of Dutch law, which unambiguously states that release must occur after 90 days. Suspending a term before it ends and extending it after it lapses are distinct concepts, and the Dutch law clearly intends the former.
If this interpretation is deemed incompatible with EU law, the Amsterdam District Court currently lacks alternative solutions to address the conflict. While the CJEU could grant EU law supremacy over national legislation, this raises further concerns about legal certainty. Applying the supremacy rule would create uncertainty about the application of the 90-day rule, potentially undermining the individual’s right to understand the legal grounds for their detention.
Therefore, the CJEU might not be able to offer a solution that balances the Amsterdam District Court’s obligations with the need for legal certainty. Instead, the most straightforward approach would be for Dutch lawmakers to revise the relevant legislation, changing the release requirement after 90 days from an obligation to a discretionary power. This adjustment would effectively address the conflict and provide the court with a clear way to manage such cases.
This blog is based on a publication in Strafblad in May 2018.
J.J.M. Graat, ‘Een dilemma voor de Overleveringskamer’, Strafblad 2018(2) 20.
Barnard & Peers: chapter 25
JHA4: chapter II:3
Photo credit: The Panopticon Chronicles