Refusal of European Arrest Warrants Due to Fair Trial Infringements

• Date: 10 March 2021
• Year: 2021
• Author: Thomas Wahl
• Pages: 71
• DOI: https://doi.org/10.30709/eucrim-2020-026

I. Background: The Human Rights Exception in European Extradition Law

One of the most controversially discussed but unresolved issues in extradition law is the question of whether – and, if so, to what extent – an extradition request can be denied by the authorities of the requested State if certain fundamental rights standards are not upheld in the requesting State. In legal doctrine, this issue is dealt with under the catchphrases “human rights exception/clause” or “public policy/order reservation” or “ordre public.”¹ Although scholars often advocate the full application of fundamental rights protection in transnational situations,² it can be discerned from the case law of national and European courts that the protection of fundamental rights (as ensured by the system in domestic cases) should not and cannot be transferred to transnational cases. This holds true for extradition cases, in particular, as the most prominent form of international cooperation in criminal matters.³ Courts admit that it is necessary to lower one’s sights concerning the level of fundamental rights protection for the sake of achieving effectiveness in the cross-border fight against crime and fostering the mutual trust inherent to international cooperation in criminal matters. Therefore, courts have developed a formula that strives to strike a balance between the interests of international justice and the individual’s interest in having his/her fundamental rights protected in the extradition scheme. This is especially true when the defence argues that certain procedural safeguards will not be maintained in the requesting State following surrender, as a consequence of which the right to a fair trial would be breached. These safeguards include the right to be tried before an independent and impartial judge, the right to be heard, the right to be present at trial, the right not to incriminate oneself, the right to an effective legal remedy, the right to have access to a lawyer of one’s own choice, etc.

In view of these counterarguments, the European Court of Human Rights (ECtHR) established the “flagrant denial of justice” concept in its landmark judgment in Soering in 1989 and further clarified it in Othman in 2012. Accordingly, a requested CoE Member State must refrain from extraditing if “the circumstances lead the fugitive to suffer or risk suffering a flagrant denial of a fair trial in the requesting country.”⁴ This requires “a breach of the principles of fair trial guaranteed by Article 6 ECHR which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.”⁵

The CJEU only had occasion to establish its concept in relation to potential breaches of the Charter of Fundamental Rights of the European Union (CFR) in 2018. The case is officially referred to as LM but has also been dubbed the “Celmer case,” referring to the person in surrender proceedings in Ireland. Surrender of the person had been requested by Poland on the basis of a European Arrest Warrant for the purpose of conducting criminal prosecutions, inter alia, for trafficking in narcotics and psychotropic substances. In contrast to ECtHR case law at the time, which predominantly dealt with extraditions involving a CoE Member State and a third country (e.g., the USA), the CJEU was concerned with the question of fair trial infringements within the Union’s “new” surrender scheme, which is based on Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States⁶ (hereafter FD EAW). The alarming structural reforms of the Polish judicial system that impinge on the independence and legitimacy of constitutional review as well as on the independence of the ordinary judiciary,⁷ prompted the Irish High Court to seek guidance as to which requirements Union law poses for the test to deny surrender on the grounds of possible fair trial infringements in the requesting (= issuing) State.⁸ The response of the CJEU’s Grand Chamber⁹ (detailed in the following section) was mainly driven by its previous groundbreaking judgment in Aranyosi and Căldăraru.¹⁰ In this judgment, for the first time, the judges in Luxembourg accepted possible fundamental rights refusals of EAWs due to infringements of the absolutely protected prohibition of torture and inhuman or degrading treatment or punishment, as enshrined in Art. 4 CFR (due to insufficient detention conditions in certain EU Member States).

II. The Approach of the CJEU in LM 1. Main parameters of the decision

In its judgment of 25 July 2018, the CJEU first reiterates the cornerstones of its previous case law on the meaning of fundamental rights in the context of judicial cooperation in criminal matters in the EU, based on the principles of mutual trust and mutual recognition:¹¹

• In general, presumption that all EU Member States comply with the fundamental rights recognised by EU law.

• As a rule, no fundamental rights check in a specific case by other Member States;

• Refusal only on the grounds for non-execution expressly and exhaustively listed in Arts. 3, 4, 4a, and 5 of the FD EAW.

The judges in Luxembourg accept, however, that limitations to these principles may be placed in “exceptional circumstances,” i.e., on the grounds of non-respect for fundamental rights on the basis of the general fundamental rights clause in Art. 1(3) FD EAW.¹² The CJEU admits first that not only the fundamental rights embodied in Art. 4 CFR but also those laid down in Art. 47(2) CFR are suitable for enabling the executing authority to refrain from executing an EAW. The main reasons are as follows:

• A simplified surrender system involving only judicial authorities can only work if the independence of the authorities in the issuing State is guaranteed;

• The high level of mutual trust between Member States is founded only on the premise that the criminal courts of the other Members States meet the requirements of effective judicial protection, particularly including the independence and impartiality of these courts.

Second, the CJEU largely extends the application of the “Aranyosi & Căldăraru test” to the right to a fair trial, i.e., a two-step assessment is necessary:¹³

• First step: Based on objective, reliable, specific, and properly updated material concerning the operation of the system of justice in the issuing Member State, the executing authority must assess whether there is a real risk of the fundamental right to a fair trial being breached that is connected to a lack of independence of the courts in the issuing Member State, on account of systemic or generalised deficiencies there.¹⁴ In other words, the executing court must be convinced that an danger to the fundamental rights of the individual exists in abstracto (as standardised in Art. 47(2) CFR).

• Second step: The executing authority must specifically and precisely assess whether, in the particular case, there are substantial grounds for believing that the requested suspect will run the real risk of being subject to a breach of the essence of his fundamental right to a fair trial, as laid down in Art. 47 CFR.¹⁵ In other words, the executing authority must examine whether there is a probability that the danger will be realised in concreto.

In contrast to Aranyosi & Căldăraru, where the CJEU only required the national judge to ascertain the presence of an individualised risk, the test in LM requires the national judge to consider all the individual circumstances of the case and obliges the judge to carry out two sub-steps:¹⁶

• Asking first whether the risk established in the first step applies at the level of the court with jurisdiction over the criminal proceedings to which the requested person (extraditee) will be subject;

• Asking secondly whether the risk exists in the case of the requested person himself/herself, having regard to his/her personal situation, as well as to the nature of the crime for which he/she is being prosecuted.

As set out in Aranyosi & Căldăraru, the CJEU further establishes the necessity of a dialogue between the executing State and the issuing State: Pursuant to Art. 15(2) FD EAW, the executing judicial authority must request from the issuing judicial authority any supplementary information that it considers necessary for assessing whether there is such a risk. The issuing authority should particularly have the task to provide any objective material on any changes concerning the conditions for protecting the guarantee of judicial independence in the issuing State, material which may rule out the existence of that risk for the individual concerned.¹⁷

2. Interim conclusion

For the first time, the CJEU explicitly admits that rights which are not also absolute in nature are capable of limiting the operativeness of mutual recognition. From this point of view, the CJEU’s judgment in LM can indeed be considered a “genuinely ground-breaking decision, a new milestone leading to a turning point in the jurisprudence of the CJEU in the matter [of having the technical possibility to refuse an EAW on the grounds of a hazard for procedural rights].”¹⁸ On closer inspection, the judgment reveals some parallels to the approach of the ECtHR briefly described above: It resembles the ECtHR’s rulings in that fundamental rights can only limit surrender in exceptional circumstances.¹⁹ Both the ECtHR and the CJEU rule out the refusal of extradition in case of mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Art. 6 ECHR / Art. 47 CFR if occurring within the State itself.²⁰ In addition, both courts established that general irregularities in the judicial system of the requesting State do not suffice for a refusal. Instead they established the “real risk doctrine:” A specific and precise individual assessment as to the existence of a real risk is necessary. In LM, the CJEU clarified that there must be a substantial link...