Compensation for Unjustified Detention and the European Arrest Warrant

• Date: 24 January 2022
• Year: 2022
• Author: Dr. Florentino-Gregorio Ruiz Yamuza
• Pages: 79
• DOI: https://doi.org/10.30709/eucrim-2021-033

I. Compensation for Undue Detention – an Unsolved Problem

In the discussion on the EU’s surrender regime – the Framework Decision on the European Arrest Warrant (hereinafter FD EAW) –, compensation in cases of undue detention as a consequence of the execution of an extradition request has not yet raised much interest or been considered a problematic issue).¹ Official documents have not dealt with this issue to a great extent. References and studies have limited themselves to stating that the need for compensation is a reality; however, it seems that they merely refer to the national sphere in terms of eliciting an opportune response.² Consequently, the problems connected with this type of compensation have not attracted abundant attention in legal literature so far, without prejudice to the existence of some research that I will refer to in this article.

The issue of compensation poses specific challenges. Key concepts deserve a comprehensive approach, and the quest for realistic solutions must be aligned with the scheme of judicial cooperation within the EU’s Area of Freedom, Security and Justice, with the doctrine of the European Court of Human Rights (ECtHR), and with the legal traditions of the Member States.³ Several fundamental questions are still unanswered, such as: ⁴

• Should unjust deprivation of liberty only cover situations in which the detained person is finally acquitted, or can other cases be included?

• Should compensation be granted only in cases of pre-trial detention, or is it also possible to grant it if an unjustified deprivation of liberty has occurred as a consequence of an EAW requesting the surrender of a person to serve a prison sentence passed in the issuing Member State?⁵

• Which Member State should be responsible for the compensation – the issuing State or the executing State?

• What procedure should be followed for compensation?

We will approach these questions in three steps: First, identifying the legal bases by which to establish the obligation to compensate (II.); in order to have a complete picture, this analysis will include references to the national level, briefly mentioning the Spanish legal system. Second, determining (within the casuistry of the EAW) when the deprivation of liberty can be tagged as unjustified (III.). Third, considering whether the obligation to compensate should be attributed to the issuing or to the executing Member State and which procedure is deemed appropriate (IV.). The article is rounded off with some concluding remarks, including my personal views on the problem (V.).

II. Legal Context 1. The supranational instruments

The FD EAW does not specifically provide rules on compensation for persons who have suffered unjustified detention in EAW cases. The regulation on expenses in Art. 30 FD EAW could be considered a possible legal basis, but this is debatable because of the wording, which is as follows:

1. Expenses incurred in the territory of the executing Member State for the execution of a European arrest warrant shall be borne by that Member State. 2. All other expenses shall be borne by the issuing Member State.

It is doubtful whether compensation for unjustified detention is covered by the concept of expenses. The notion of “expenses” seems instead to relate to costs inherent to the processing of the EAW, and, where appropriate, to the enforcement of the surrender. Thus, in the logic of the FD EAW, expenses are distributed according to where the costs have been incurred.

By contrast, compensation for unjustified detention is an enforceable right of the person who has suffered it and who is entitled to claim compensation from the State. Hence, even though the detention might occur in the executing Member State, it is indirectly related to the proceedings in the issuing State, in other words, the arrest is ultimately ordered on the basis of the requesting decision from the issuing Member State. Another disadvantage of using Art. 30 (1) FD EAW as a possible legal basis concerns situations in which the defendant is acquitted or the case is disposed of after the defendant’s surrender to the issuing Member State. In these circumstances, it is not logical to assume responsibility on the part of the executing Member State for compensating the unjustified detention that took place in its territory due to the EAW.

Searching for a legal basis in relevant (implementing) national legislation is also not a successful approach. Although the Spanish Act 23/2014 on Mutual Recognition of Judicial Decisions in Criminal Matters in the EU (hereinafter AMR),⁶ for example, contains some references to “compensation”, they always refer to the compensation of victims of crime, third parties, or Member States for damages that might have been caused in conjunction with international cooperation (Arts. 15, 25, 173.2 b) and 3, 175.1, and 2 of the AMR). Further, the legal basis for the establishment of a compensation scheme for unjustified detention is found indirectly in supranational fundamental rights law to which the FD EAW, the Spanish AMR, and other acts transposing the FD EAW into the Member States’ legal systems refer.⁷

In this context, Art. 6 TEU refers to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Charter of Fundamental Rights of the European Union (CFREU), and the constitutional traditions of Member States – thus, a closer look at these instruments is necessary in order to find the applicable legal framework for the question of compensation at issue:

• Art. 5 ECHR sets out the right to liberty and security as well as the situations justifying the deprivation of liberty, including extradition detention (para. 1, letter f)). Para. 5 of Art. 5 ECHR explicitly guarantees the right to compensation for persons arrested in contravention of the provision of Art. 5 ECHR.

• Art. 6 CFREU briefly recognizes that “[e]veryone has the right to liberty and security of person.” However, scope and limitations of Art. 6 correspond to Art. 5 ECHR,⁸ and Art. 52 (3) CFREU clarifies that the corresponding guarantees of the Charter have the same meaning and scope as those laid down in the ECHR. Consequently, the limitations that might legitimately be imposed on the right to liberty and security set out in the Charter cannot exceed those permitted by Art. 5 ECHR.

2. Compensation for unjustified detention in Spain

A proper understanding of compensation in cases of unjustified detention within the scope of the EAW requires, as pointed out above, an analysis both at the supranational and national levels. Considering that compensation mechanisms should be articulated through European Union law from a procedural point of view, the question remains which substantive legislation should be established on this matter. National laws can serve as a model; however, they are heterogenous regarding the viability and amount of compensation. In the following I outline the Spanish compensation system which, due to its originality and complexity, can illustrate, by way of comparison with other systems, the variety and heterogeneity of the possible regulations.

The Spanish Constitution⁹ establishes the basis of the compensation system for losses caused by the activities of public officials and services, making a distinction between damages due to the (mis)functioning of public services (Art. 106.2)¹⁰ and damages caused by judicial error (Art. 121)¹¹. The Organic Act on the Judiciary specifies constitutional rules and explicitly addresses compensation for unjustified detention in its Art. 294:¹²

1. Individuals who have been under preventive imprisonment¹³ and are subsequently absolved from the alleged charge (due to the non-existence of the fact they were accused to have committed) or if a non-suit writ has been issued with regard to those criminal proceedings may claim compensation, provided that they have sustained any damages therefrom. 2. Compensation will be determined considering the time they were remanded in custody and in view of the personal and family consequences…

The scope of compensation under this precept is doubly restricted: first, it is limited to pre-trial detention situations; second, it is limited to those cases in which it cannot be proved that the actual event constituting a crime has occurred (non-existence of the fact). These limitations show that tackling compensation issues in the context of the EAW is very difficult, given that compensation rules differ from one Member State to another.¹⁴

However, the Spanish Constitutional Court and the Spanish Supreme Court developed a broader interpretation of this concept of compensation in Spanish law after and in light of several ECtHR judgments against Spain.¹⁵ Accordingly, the principle of presumption of innocence should not be undermined by a legal framework (and case law) making compensation dependent on a previous decision not to prosecute or stop criminal proceedings or acquitting the accused person on the basis of the non-existence of the fact. There should be no qualitative difference between the acquittal or dismissal of a case on the grounds of insufficient evidence of the defendant’s participation in an ontologically existing fact and in those situations in which the commission of the crime itself cannot be proved.¹⁶

In my view, this broader interpretation of Art. 294 by the highest Spanish courts is correct. In principle, any person deprived of his/her liberty in criminal proceedings should be compensated for the detention suffered if the case ends with an acquittal or a decision of dismissal. When the person’s arrest takes place, he/she must be considered innocent (due to the legal presumption enshrined in Art. 6(2) ECHR, Art. 48(1) CFREU, and Art. 24.2 of the Spanish Constitution). In other words, considering that after the proceedings no guilt has been proven, the defendant had to be presumed innocent before the criminal proceedings were initiated and...