Abstract

     In this article we aim to explain the main concepts regarding the jurisprudence of the Court of Justice of the European Union related to the operation of the European arrest warrant (EAW). We referred to the exceptions that place in the background the principles of mutual trust and recognition, which diminish the level of judicial cooperation between nations, in criminal matters. We are mainly interested in identifying the perspectives that redefine the area of freedom, security and justice in the light of Brexit, simultaneously with the redefinition of the internal and external borders of the EU.

     Key words: jurisprudence CJEU, principles of mutual trust and recognition, European arrest warrant, Brexit, area of freedom, security and justice.

     Introduction

     The area of freedom, security and justice is one of the most important issues when it comes to taking safety measures for the protection of the rights of the citizens in the EU, taking into consideration the allocation of competences between the European Union and the member states (according to Article 4 of the Treaty of the European Union). Overall, the main idea favours strengthening the cooperation between the member states in criminal matters, due to the urgent need to combat human trafficking and contraband, as well as to interconnect the national justice systems.

     Practically, the sacred duty to protect fundamental human rights as proclaimed by the European Convention on Human Rights interferes, whether directly or indirectly, with the legitimate interest of national authorities to ensure the area of freedom and protection of their citizens. At the level of the EU, the fact that there are breaches in the area of freedom, security and justice, affects, as we show in this article, the need to acknowledge and implement decisions at the level of the member states, a situation when the cooperation on criminal issues between the member states becomes (to a certain extent) moot. We are mostly referring to the situations when protecting the rights of a person who has been issued a European Arrest Warrant (EAW) is more important than enhancing state cooperation in the justice field.

     In this article we analyse the jurisprudence of the CJEU on this matter, and we compare it to the dynamic regarding the use of the EAW with the sole purpose of identifying the main breaches in the area of freedom, security and justice, caused by the diminution of the cooperation between the member states in criminal matters. We also cover aspects regarding the perspectives of redefining the area of freedom, security and justice in the light of Brexit.

     The Perverse Effect of the Jurisprudence of the CJEU. The Limitations of the Mutual Trust and Recognition

     Overall the jurisprudence of the Court of Justice of the European Union (CJEU)[1] sees that the law is interpreted and applied uniformly, according to the laws of the European Union, in all its member states, at the same time with making sure that the EU members and their institutions abide by EU laws.[2] We must remember that the CJEU relates to the fundamental rights proclaimed by the Charter of Fundamental Rights of the European Union and to the text of the Convention for the Protection of Human Rights and Fundamental Freedoms. Seeing that it has the same legal value as the Treaty of the EU[3], the Charter of Fundamental Rights of the European Union is the main instrument “available which will be the principal basis on which they carry out its task of ensuring that in the interpretation and application of the law of the Union fundamental rights are observed.”[4]

     Clearly, the decisions of the CJEU are legitimised by their appeal to the moral and spiritual values of the European Union, and thus human dignity is given a sacred dimension, and “must be respected and protected”[5] by guaranteeing the right to life[6], while, at the same time, „no one shall be subjected to torture or to inhuman or degrading treatment or punishment” [7] that leads to the violation of phisical and mental integrity.[8] As proof, collective as well as single surrenders of the convicted persons are forbidden in countries where “there is a serious danger” of violating their human rights, “in the event of removal, expulsion or extradition.”[9]

     After the European Union acceded to the Convention (24 January 2011), the CJEU obtained the necessary instruments to observe the implementation of the principle of subsidiarity and the proper function of the EU judicial system, whose basic principle is “whether there was a presumption of Convention compliance at the relevant time[10]”(Case of Bosphorus).[11] The main challenge was the fact that the judicial system of the European Union was based on a general rule, according to which, “action by the Union takes effect as against individuals only through the intermediary of national measures of implementation or application.”[12]

     The main concept regarding human rights is mentioned in the Preamble of the Charter, which indirectly shows us the limitations of the jurisprudence of the CJEU:

 “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.”[13]

     The appeal to the spiritual and moral values of the European Union is not intended for the sole purpose of legitimising the decisions of the CJEU, but also for recognising the inviolability of human dignity, which “must be respected and protected”[14] by guaranteeing the right to life[15], at the same time with the “prohibition of torture and inhuman or degrading treatment or punishment”[16], which lead to the violation of the right to physical and mental integrity.[17]

     The surrender of the persons who are issued an EAW[18] circumscribes to the above mentioned requirements, which hinders the implementation of the decisions taken by judicial authorities. The perverse effect is that the judicial authorities are able to postpone or refuse the surrender of the “requested person only if one of the grounds for mandatory or optional refusal applies.”[19] So we see that the limitations of the cross-border cooperation in the justice field are roughly in accordance with the inviolability of the human integrity of the “requested person”, a sacred principle that confers a relative dimension to the judicial procedures.

     For example, the judgment of the Court in the cases Pál Aranyosi and Robert Căldăraru,[20] faithfully reflect the consequences of the EU’s accession to the Convention. In these cases, the Court dealt with issues regarding the execution of the EAW.[21] The preliminary rulings from the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court of Bremen, Germany)[22] regarding the inhuman detention conditions in Hungary and Romania highlighted the way in which the execution mechanism of the EAW doesn’t necessarily relate to the principles of mutual trust and recognition, the member states admitting to the fact that “their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level.”[23]

     In the two joint cases, the argument used by the attorney general Yves Bot was based, however, on the execution right of the judicial authorities to refuse the surrender of the requested person because the member state that issued the warrant faces a “systemic deficiency of the prisons.”[24] The attorney general Yves Bot highlighted the fact that creating the area of freedom, security and justice of the European Union[25] - present in the handbook on how to execute an EAW - cannot prevail over the obligation of protecting the fundamental human rights of the surrendered person.[26] Even if he admitted to the existence of “a clear and obvious risk that the offence would remain unpunished and that its perpetrator would reoffend, thus infringing the rights and freedoms of the other citizens of the Union”[27], the attorney general, Yves Bot appealed to the “the unwanted effects of excessive overcrowding.”[28] Based on his opinions, the CJEU admitted to the fact that the execution of the warrant should have been postponed if there was “evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State.”[29] The executing judicial authority must comply with this decision “until it obtains the supplementary information that allows it to discount the existence of such a risk.”[30] The CJEU left it up to the executing judicial authority to evaluate the need to bring the surrender procedure to an end should it come to the conclusion that the risk cannot be discounted in a reasonable time.[31]

     This judgement made the CJEU set, for the first time, the limits of the implementation of the transnational cooperation principle in the field of justice, bringing into the forefront the rights of the person whom the judicial authorities from a member state issued an EAW. The implementation of justice must follow the letter of the Convention to allow unitary law enforcement in the European Union.

     Furthermore, we mustn’t forget the fact that the limits concerning transnational judicial cooperation over criminal matters are defined according to the situation the wanted person is in, but also according to the capacity of the country that issued the EAW to follow the letter of the Convention. Practically, between 2005 and 2017 the number of executed EAW increased from 12% to 36%, at the same time with the issued EAW, which were 2.5 higher. (See Table contents no. 1) At the same time, this tendency highlights the decreased efficiency of the judicial authorities in controlling the EU’s internal and external borders.

     Table 1 - Statistics on EAW Use[32]

     Redefining the Area of Freedom, Security and Justice in the Light of Brexit

     In the case C-327/18 PPU,[33] the CJEU shed some light on the execution of the EAW in accordance with Article 50 of the Treaty of the European Union; the members of the Court came to the conclusion that the judicial system would be changed solely in the case of the withdrawal of a member state from the EU, which is why, the executing EAWs cannot be refused or postponed for this reason.[34] Moreover, as long as the country which has issued the warrant is part of the EU, the principle of mutual trust and recognition continues to be applicable.[35]

The framework decision of the CJEU falls under the conclusions of the attorney general, Maciej Szpunar,[36] out of which two are worth mentioning; they deal with the perspectives of redefining the area of freedom, security and justice after the withdrawal of a member state from the EU. On one hand, mutual trust, and recognition are the cornerstones of judicial cooperation, a fine example of complying with EU law. The attorney general concluded that exceptional circumstances in the CJEU’s judicial framework limited the principle of mutual trust, which is why member states don’t share this “blind trust”.[37] On the other hand, the attorney general Maciej Szpunar highlighted the fact that Brexit means Brexit[38] denoting that, following the withdrawal from the European Union, the rights and obligations included in the framework decision do not apply to the country that is no longer a member of the EU.[39] The exception is using more exceptions from the withdrawal agreement and if not otherwise, the extradition rules will apply.

     To reduce the effects of Brexit on judicial cooperation, the United Kingdom of Great Britain and Northern Ireland modified its domestic legislation, regulating the temporary status of the EAW, together with the judicial cooperation related issues, which were pending at the time of Brexit. The British set a series of transitional withdrawal arrangements including a no-deal scenario.[40] More specifically, in pending cases, the EAW will not be replaced by extradition request.[41] In fact, the principle of mutual trust and recognition will continue to function for a certain period of time, in case of the EAWs issued before the UK leaves the EU. Following Brexit, judicial cooperation will make use of the requests for extradition, lest Article 5 of the European Convention on Human Rights should be breached.

     The text of the Withdrawal Agreement lays down maintaining mutual assistance in criminal matters, before the end of the transition period.[42] An exception is made when an EU member state “raises reasons related to fundamental principles of national law”, which forbid the surrender of their own nationals to the United Kingdom, if the EAW was issued during the transition period.[43] In this case, “the United Kingdom may declare, no later than 1 month after the receipt of the Union’s declaration that its executing judicial authorities may refuse to surrender its nationals to that Member State.”[44] So, the provisions in the Withdrawal Agreement do not provide guarantees regarding the proper function of the area of freedom, security and justice during the transition period.

     Taking Brexit into account, narrowing down the area of freedom, security and justice implies, according to our point of view, the redefinition of the limitations and exceptions in which the member states may postpone or refuse the surrender of a wanted person. This endeavour is against the intensification of the transnational cooperation, which is problematic, because it limits the access to justice and hinders the enforcement of a high security level due to lack of predictability, as far as the execution of the EAW is concerned. The main challenge is a more rigorous border control, both at the internal, as well as at the external borders of the EU (redefined borders, after the UK withdraws from the EU), and, at the same time, taking extra surveillance measures, should the execution of the EAW be postponed or refused by a judicial authority within an EU member state.

     Conclusions

     In this article we have highlighted the limits of transnational judicial cooperation in criminal matters between the members of the EU, with regard to the execution of the EAW. Our actions have shown the way in which the jurisprudence of the CJEU gave an inviolable dimension to human dignity, which prevails over the interests of the member states to execute the judgements of the judicial authorities. Maintaining public order and ensuring national security become relative issues, as they are dependent upon how a country is capable of protecting the rights of the wanted person. Should the surrendered person be exposed to torture and inhuman or degrading treatments, the EAW can be postponed or refused. The principle of mutual trust and recognition is applied only when the fundamental rights of the wanted person are protected.

     When referring to Brexit, we have identified the tendency to gradually narrow down the area of freedom, security and justice and we have provided you with a different framework for the function of the EAW during the transition period. After the end of this stage, a new transnational judicial framework is subjected to the provisions regarding extradition. At the same time, we have identified the need to redefine the internal and the external borders of the EU.

     Bibliography

·                     Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 I/01).

·                     Opinion of advocate general Maciej Szpunar, 7 August 2018, Case C‑327/18 PPU.

·                     Opinion of advocate general Yves Bot, 3 March 2016 (1) in the Cases Pál Aranyosi (C 404/15) and Robert Căldăraru (C 659/15 PPU).

·                     The Court of Justice of the European Union, „Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms”, 5 May 2010.

·                     The Court of Justice of the European Union, Judgment of the Court, joint cases, Pál Aranyosi (C 404/15) and Robert Căldăraru (C 659/15 PPU), 5 April 2016, ECLI:EU:C:2016:198.

·                     The Court of Justice of the European Union, Judgment of the Court C-327/18 PPU, 19 September 2018.

·                     The European Court on Human Rights, Judgement Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) c. Ireland [GC], nr. 45036/98, CEDH 2005-VI.

·                     Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA,) (JO L 190, p. 1, Special edition, 19/vol. 6, p. 3).

·                     European-Justice, “The European Arrest Warrant” (EAW).

·                     The Government of Romania, “Substantiation note on the Emergency Ordinance no. 70/2019 enacting various measures applicable in the case of a no-deal Brexit”, 13 November 2019.

·                     European Parliament, the Council of the European Union and the European Commission, Charter of Fundamental Rights of the European Union, 2012/C 326/02, Official Journal of the European Communities, 26 October 2012.