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The European Arrest Warrant: between mutual recognition and fundamental rights

The European Arrest Warrant (EAW) is an exclusively judicial cooperation instrument replacing the traditional extradition system, which was criticised for the slowness entailed by its political and administrative phases. Based on the principle of mutual recognition, the EAW has accelerated surrender procedures and reinforced the free movement of citizens within the EU. According to this principle – which implies a high level of mutual trust between them – MS have to execute each other’s arrest decisions unless they can invoke the exceptions laid down by law. In order to enhance mutual trust between MS, the Court has repeatedly underlined their obligation to comply with fundamental rights even in situations that fall outside the scope of EU law (ex: Jeremy F. v Premier Ministre C-168/13).

Controversy surrounding the EAW dates back to before its adoption and is based on the fear that its simplicity and rapidity could have a negative impact on the judicial protection of suspects’ fundamental rights. These concerns have been raised by the omission of fundamental rights aspects among the grounds for non-execution of an EAW. Recitals 12, 13 and 14 of the EAW framework decision (EAWFD) refer indeed to fundamental rights of the person subject to an EAW. Nevertheless, the preamble of the FD is not legally binding. Also, Article 1(3) of the EAWFD refers to the respect of fundamental rights as recognised by Article 6 TEU. However, as fundamental rights protection is not explicitly included among the grounds for non-execution of the EAW, MS had total discretion as to introducing it in their implementing legislation. This has led to divergent practices among MS. The Court of Justice of the EU (CJEU) has dealt with this ambiguous relationship between mutual recognition and fundamental rights on several occasions.

Gavel and handcuffs isolated on white

© Valeriy / Fotolia

Fundamental rights and the principle of mutual recognition underlying the EAW: recent case-law

In the Radu (C-396/11) case, the CJEU was expected to shed light on the interpretation of the EAWFD and to answer the question on the refusal to execute an EAW in the event of risks of fundamental rights violations. Several governments intervened in the proceedings highlighting that, in their view, the execution of an EAW could exceptionally be refused if there are “serious reasons to believe” that the execution would lead to infringements of the requested person’s fundamental rights. The Court however limited its judgment to a less far reaching question, namely if before issuing an EAW, the authorities of a MS are obliged to give the suspect the opportunity to be heard. It held that such an obligation would “inevitably lead to the failure of the very system of surrender provided for by the EAWFD” as it would slow it down and possibly reduce its efficacy – an arrest warrant needs to preserve its unpredictable nature to avoid for instance the risk that the suspect may flee.

The CJEU maintained the same line of thought in its Melloni (C-399/11) ruling. Once again, the grounds for refusal of an EAW listed in the FD were regarded as exhaustive. Furthermore, the Court stressed that a MS cannot avail itself of Article 53 of the EU Charter of Fundamental Rights and refuse the surrender of a person for the reason that the standard of protection of the right to a fair trail in its national constitution is higher than the one established in the national legislation of the issuing MS. As can be noticed in the explanations relating to the Charter, Article 53 is meant to ensure that the Charter does not undermine the levels of fundamental rights protection already recognised nationally and internationally. According to the Court, the possibility of invoking Article 53 in order to refuse the execution of an EAW would “undermine the principles of mutual trust and recognition” guaranteed by the homogeneous level of fundamental rights protection defined in the FD. This led a number of scholars to affirm that the Melloni case can be considered as a step towards the centralisation of standards of fundamental rights protection in areas where MS are implementing EU law.

A parallel with the EU asylum system: N.S. and others v Secretary of State for the Home Department C-411/10

The Dublin II Regulation establishes the criteria to decide which European state is responsible for deciding on an asylum application and provides for the transfer of an asylum seeker to that MS. Similarly to the EAW, this system is based on mutual trust, therefore on the presumption of compliance, by all MS, with EU law and, in particular, fundamental rights. Nevertheless, in its N.S. ruling, the Court explained that this presumption should be regarded as rebuttable. Therefore, whenever there are “substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment“, the transfer cannot be executed. A new Dublin III Regulation entered into force on 19 July 2013. The new instrument includes an early-warning mechanism and an express reference to the protection of asylum seekers’ fundamental rights.

Interestingly, in her Radu opinion, Advocate General Sharpston referred to the N.S. ruling and argued that fundamental rights violations should constitute grounds for EAW non-execution. According to the AG, the non-execution in circumstances similar to the ones in the Radu case should be justified by deficiencies that affect the trial’s fairness. Nevertheless, the Court did not take the same view in the Radu judgment, leaving numerous question marks behind its ruling.

Reactions by stakeholders and academics

Commentators criticised the Court’s choice for the narrow approach it has taken despite the general nature of the questions that were being asked. Furthermore, some academics see the Radu judgment as a lost opportunity to confer a more fundamental-rights oriented interpretation of the EAWFD. Some argued that the Court opted for this narrow analysis in order to avoid the possible “domino” impact of a different interpretation on the principle of mutual recognition.

For further reading:

From mutual trust to the full effectiveness of EU laws: 10 years of the European arrest warrant / Herlin Karnell, E., in European Law Review, vol. 38, no. 1, 2013, pp. 79-91. Click on “skip” when you are asked to log in

Extradition, the European arrest warrant and human rights / Spencer, J.R. in Cambridge Law Journal, vol. 72, no. 2, 2013, pp. 250-253. Click on “skip” when you are asked to log in

Library Briefing, Revised rules for treatment of asylum-seekers / Eva-Maria Poptcheva, 2013.

The reference in Case C-396/11 Radu: when does the protection of fundamental rights require non execution of a European arrest warrant? / Tinsley, A. in European Criminal Law Review, vol. 2, no. 3, 2012, pp. 338-352. Click on “skip” when you are asked to log in

Library Briefing, Implementing the European Arrest Warrant Decision / Piotr Bakowski, 2012.

Library Briefing, European Arrest Warrant: fundamental rights and constitutional guarantees / Piotr Bakowski, 2010.

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