The CJEU handed down its decision in Ministerul Public – Parchetul de pe lângă Curtea de Apel Constanţa v Ciprian Vasile Radu last week. In summary, the Court was asked to clarify the extent to which countries are required to take into account rights to a fair trial and liberty when considering whether to execute an a European Arrest Warrant (EAW). It is a short and somewhat surprising judgment, which does not sit well either with the Court’s decision in NS v Secretary of State for the Home Department last year, the original opinion of Advocate General Sharpston, or indeed the questions referred for preliminary ruling.
The European Arrest Warrant framework was designed to streamline procedures for the surrender of persons convicted or suspected of having infringed criminal law. The system is based on the principle of mutual recognition and a high level of confidence between Member States. Its implementation may be suspended “only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [EU], determined by the Council pursuant to Article 7(1) [EU] with the consequences set out in Article 7(2) thereof” (Recital 10 of the of Council Framework Decision 2002/584/JHA as amended by Council Framework Decision 2009/299/JHA). Articles 3 and 4 of the Decision outline the mandatory and optional grounds upon which a Member State may refuse to execute a warrant. These grounds are generally procedural, and include whether the individual is already serving a sentence for the offence on which the warrant is based, or if the offence does not constitute an offence under the law of the executing State.
On 25 May and 3 June 2009, the Curte de Apel Constanţa in Romania received four European Arrest Warrants for Mr Radu. Mr Radu opposed the execution of the warrants. He argued that at the time Framework Decision 2002/584 was adopted, neither the fundamental rights laid down in the European Convention of Human Rights nor those set out in the Charter of Fundamental Rights had been specifically incorporated into the founding Treaties of the European Union. Following Article 6 TEU, the provisions of both the Charter and of the ECHR became provisions of primary European Union law and Framework Decision 2002/584 should henceforth be interpreted and applied in accordance with both instruments. Judicial authorities of the executing Member State were thus obliged to ascertain whether the fundamental rights guaranteed by the Charter and the ECHR were being observed in the issuing State. If that were not the case, those authorities would be justified in refusing to execute the European arrest warrant concerned, even if Framework Decision 2002/584 does not expressly provide for that ground for non-execution.
The Curte de Apel Constanţa decided to stay the proceedings and to referred six questions to the Court, the substance of which were:
- Whether Articles 5(1) [of the ECHR] and 6 [of the Charter], read in conjunction with Articles 48 and 52 [of the Charter], with reference also to ECHR Articles 5(3) and (4) and Article 6(2) and (3), are provisions of Primary European Union law.
- Does the execution of a warrant, entailing deprivation of liberty and forcible surrender, without the consent of the requested person, constitute interference on the part of the executing State with the right to individual liberty of the person, which is authorised by European Union law?
- Must the interference on the part of the executing State satisfy the requirements of necessity in a democratic society and of proportionality in relation to the objective actually pursued?
- Can the executing State refuse the request for surrender by reason of a failure to observe all the cumulative conditions under the relevant Charter and ECHR rights?
- Can the executing State refuse the request for surrender on the ground that the issuing State has failed to transpose or fully to transpose or has incorrectly transposed Framework Decision 2002/584?
- Is the domestic law of Romania incompatible with the relevant ECHR and Charter rights and have they been properly transposed into national law?
The Court ruled that the first four questions and the sixth were admissible.
The judgment is surprisingly short given the nature of the questions referred. This is due to the Court drastically narrowing its frame of reference within the judgment and effectively sidestepping the fundamental issues raised by the questions. The Court found that:
“29 According to the evidence submitted to the Court, as set out in paragraph 26 above, it appears that, in the dispute in the main proceedings, the requested person, Mr Radu, argues, in order to oppose his surrender, that the European arrest warrants were issued by the issuing judicial authorities without his having been heard beforehand, in breach of Articles 47 and 48 of the Charter and of Article 6 of the ECHR.
30 Admittedly, in its questions, the referring court also mentions Article 6 of the Charter and Article 5 of the ECHR. However, the decision making the request does not contain any explanation in that regard. The documents attached as an annex to the decision making the request show at most that, before the referring court, Mr Radu claimed that that court should refuse to execute the European arrest warrants ‘by which [he] was deprived of his liberty’ in so far as they were issued in breach of his rights of defence. Those arguments submitted by Mr Radu concerning the alleged infringement of Article 6 of the Charter and of Article 5 of the ECHR in the issuing Member State are thus indissociable from his arguments relating to the infringement of his rights of defence in that Member State.
31. The view must therefore be taken that, by its first four questions and its sixth question, which it is appropriate to examine together, the referring court is essentially asking whether Framework Decision 2002/584, read in the light of Articles 47 and 48 of the Charter and of Article 6 of the ECHR, must be interpreted as meaning that the executing judicial authorities can refuse to execute a European arrest warrant issued for the purposes of conducting a criminal prosecution on the ground that the issuing judicial authorities did not hear the requested person before that arrest warrant was issued.”
The Court thus obviates the need to carry out any detailed assessment of the requirements under the rights to a fair trial and liberty contained in the Charter and ECHR and focuses solely on whether the executing authorities could refuse the warrant on the grounds that the issuing authorities did not hear the requested person before the arrest warrant was issued.
The Court then goes on to restate that the EAW was put in place to facilitate a new simplified and effective system for the surrender of persons. According to the provisions contained in the Framework Decision, Member States may refuse to execute such a warrant only on the grounds provided for in Articles 3 and 4. As the fact that a warrant has been issued without the requested person having been heard by the issuing judicial authorities does not feature amongst such grounds, it cannot be the basis for refusing a warrant.
In conclusion, “Having regard to the foregoing, the answer to the first four questions and the sixth question is that Framework Decision 2002/584 must be interpreted as meaning that the executing judicial authorities cannot refuse to execute a European arrest warrant issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard in the issuing Member State before that arrest warrant was issued.” (at para. 43)
The judgment provided an answer, but not to the questions referred. The Court did not engage with the substance of any of the issues bought before it and simply reiterated the need for an efficient EAW system and the principle of mutual recognition. The judgment suggests that any considerations outside those laid out in Articles 3 and 4 of the Framework Decision may not be grounds for a refusal to execute a warrant. As long as procedure is adhered to then other concerns are irrelevant. This runs counter to previous decisions by the Court, most particularly NS. NS was a decision regarding the EU asylum system rather than the EAW system, but there are clear parallels between the two frameworks. Both are predicated on the principle of mutual recognition and a need for greater efficiency. When asked whether Member States should take into account the ability of other States to fulfil their Charter obligations the CJEU clarified that the EU asylum system cannot operate on the basis of a “conclusive presumption” that all EU Member States “observe the fundamental rights of the European Union” (at para. 105). The CJEU held that there was a “rebuttable presumption” that asylum seekers will be treated in a way that complies with fundamental rights in all EU Member States, but that this presumption was not conclusive. The decision in Radu suggests the opposite: that the EAW system does operate on the conclusive presumption that Member States will observe ECHR and Charter obligations.
For a sense of what the judgment might have been it is well worth looking at the opinion from Advocate General Sharpston. The opinion offers a clearly reasoned response to the questions referred. First the Advocate General notes that the Framework decision took fundamental rights into account when enacting the Framework Decision, incorporating express references to rights in recitals 10, 12 and 13. The Decision also provided that it was not to have the effect of modifying the obligation to respect fundamental rights and legal principles as enshrined in what is now Article 6 TEU. Therefore, Article 6(1) and (3) TEU represent a ‘codification’ of the pre-existing position and there is no argument that the Decision must be given a different interpretation with their coming into force (at para.51).
However, the Advocate General made it clear that human rights principles may be considered by an executing State when considering whether to allow the warrant:
“41. While the record of the Member States in complying with their human rights obligations may be commendable, it is also not pristine. There can be no assumption that, simply because the transfer of the requested person is requested by another Member State, that person’s human rights will automatically be guaranteed on his arrival there. There can, however, be a presumption of compliance which is rebuttable only on the clearest possible evidence. Such evidence must be specific; propositions of a general nature, however well supported, will not suffice.”
Accordingly, a Member State could refuse to execute a warrant on the basis of non-compliance with fundamental rights. AG Sharpston recognised that such considerations fell outside of the list of grounds for refusing a warrant laid out in Articles 3 and 4, and as such it might be thought that human rights were not a valid ground for refusing a warrant:
“69. However, I do not believe that a narrow approach – which would exclude human rights considerations altogether – is supported either by the wording of the Framework Decision or by the case-law.
70. Article 1(3) of the Framework Decision makes it clear that the decision does not affect the obligation to respect fundamental rights and fundamental principles as enshrined in Article 6 EU (now, after amendment, Article 6 TEU). It follows, in my view, that the duty to respect those rights and principles permeates the Framework Decision. It is implicit that those rights may be taken into account in founding a decision not to execute a warrant. To interpret Article 1(3) otherwise would risk its having no meaning – otherwise, possibly, than as an elegant platitude.”
Therefore, according to the Advocate General, a Member State may refuse to execute a warrant, but only in “exceptional circumstances”. In cases involving liberty and fair trial rights the infringement must be such as fundamentally to destroy the fairness of the process.
It is unclear why the CJEU chose not to adopt the reasoning of the Advocate General, but instead adopted a purely procedural position. One possibility is an awareness of the controversy already surrounding the European Arrest Warrant and an unwillingness to sanction further possibilities for the challenge of such warrants. Another is that the court was divided on the true merits of the questions referred. In its reluctance to engage with such issues however, it is respectfully submitted that the Court has shirked its obligation to provide clear answers and guidance to Member States via preliminary rulings. The relationship between the national courts and CJEU is often referred to as one of ‘dialogue’. Unfortunately, upon reading this judgment the dialogue that springs to mind is that of the Two Ronnies’ famous ‘Mastermind Sketch’:
“Q: Your chosen subject was answering questions before you are asked. This time, you’ve chosen to answer the question before last, each time, is that correct?
A: Charlie Smithers.”