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LM case, a new horizon in shielding fundamental rights within cooperation based on mutual recognition. Flying in the coffin corner

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Abstract

In a particularly complex political context, the ruling in the LM case is called to constitute a milestone in the CJEU Jurisprudence regarding the protection of fundamental rights in judicial cooperation within the Area of Freedom, Security and Justice.

With this decision, the Court not only deepens the doctrine drawn up in the Aranyosi-Caldaru and ML cases but also goes beyond by expanding the boundaries of fundamental rights protection and clarifying the conditions and procedures of said safeguard. The freshly opened horizon represents new challenges to combine the requirements of judicial cooperation within the AFSJ and fundamental rights protection.

The turning point marked by this judgment raises different questions, riveting yet somehow disquieting ones too, although emerged in the context of the EAW FD, might apply to all species of judicial cooperation based on mutual recognition.

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Notes

  1. Council Framework Decision 2002/584/JHA of 13 of June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L 190/1.

  2. The Treaty of Amsterdam amending the Treaty on European Union and the Treaties establishing the European Communities and certain related acts [1997] OJ C 340/1, established as a priority objective of the EU the creation of an Area of Freedom, Security and Justice (AFSJ) that would guarantee a homogeneous status throughout the territory of the Union in terms of access to security and justice. This new framework would have as an immediate consequence the modification of the paradigm of international cooperation in criminal matters, which would have to evolve from a regime based on mutual legal assistance to another that works with criteria of mutual recognition. The notion of AFSJ developed in following texts, cf. Arts. 3.2, of the Treaty on European Union, Title V of the Treaty on the Functioning of the European Union and Lisbon Treaty. (Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2016] C 202/1).

    The Tampere Council (Tampere European Council, 15–16 October 1999. Presidency Conclusions, conclusion no. 37, available at: http://www.europarl.europa.eu/summits/tam_en.htm) enshrined the principle of mutual recognition as the cornerstone of judicial cooperation, a hierarchy that would be reflected later in art. 82 of the Treaty on the Functioning of the European Union (TFEU), thus reaching the highest legislative rank within the Union. This provision sets out the need to establish minimum standards applicable in the Member States to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters with a cross-border dimension.

    On this aspect, see González Cano, M.I. [14].

  3. Ralli, E. [27].

  4. There are other CJEU’s judgements on Human Rights scrutiny within EAW’s application such those rendered in the cases C-399/11, Melloni, EU:C:2013:107, and C-396/11, Radu, EU:C:2013:39 (on convictions in absentia and the right to be heard, respectively).

  5. Charter of Fundamental Rights of the European Union, 26 October 2012. OJ C 326/02.

  6. Among many other authors dealing with this topic see Muñoz de Morales Romero, M. [25] 260 et seq.; Montaldo, S. [24], pp. 965–996; Mitsilegas, V. [23], pp. 148–167.

  7. Joined cases C-404/15 and 659/15, Aranyosi-Caldararu, EU:C:2016:198.

  8. Case C-216/18-PPU, LM, EU:C:2018:586. References to this case appear in three different forms, Minister for Justice and Equality v LM, LM, or Celmer. Arthur Celmer is the actual name of the person claimed by Poland, named LM both in the conclusions of the Advocate General and the judgment handed down in this matter.

  9. Case C-220/18-PPU, ML, EU:C:2018:589.

  10. Within this system, the call to due respect for Fundamental Rights is a constant in the respective Framework Decisions and Directives. Particularly in the EAW FD: Recital (12) “This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof…” and in the same sense in its Art. 1 (3) “This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”

  11. Mutual recognition does not imply unconditional execution of cooperation requests, lacking any control or exempts from the verification of respect for fundamental rights, as the authors recall, both generally and specifically in relation to the EAW. Thus, among others: Herlin-Karnell. E. [15], Bay Larsen, L. [4], p. 140; Hoyos Sancho, M. [16], pp. 807–833, Janssens, C. [17], pp. 23–233; Anagnostaras, G. [2], pp. 1675–1704.

  12. Convention for the Protection of Human Rights and Fundamental Freedoms. Rome, 4.XI.1950, available at: https://www.echr.coe.int/Documents/Convention_ENG.pdf.

  13. Between 2004 and 2013 of 13 new Member States, most of them from Central and Eastern Europe, accessed the EU, which required for all of them to meet the so-called “Copenhagen criteria”, with full adherence to the principles of the rule of law, democracy and fundamental rights promoted by the Union. However, once full accession occurs, there is no mechanism to monitor that these criteria continue to be met, nor to provide sanctions if a Member State does not comply with such an obligation. The cases of Poland and Hungary prove that the so-called dilemma is far from being a purely theoretical approach but an actual problem leading the European Commission to launch formal infringement procedures. Regarding Poland, they are connected to reforms in the statute of its national judges, endangering judicial independence. As for Hungary, proceedings for infringement have been initiated in the wake of the criminalization of activities in support of asylum seekers.

    On this problem see:

    Bárd, P., Carrera, S. Guild, E. and Kocheno, D. [3].

    Dahlerus, J. [10].

    López Aguilar, J.F. [20], pp. 101–142.

  14. European Parliament legislative resolution of 4 April 2019 on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States. (COM(2018)0324–C8-0178/2018–2018/0136(COD)) (Ordinary legislative procedure: first reading) http://www.europarl.europa.eu/doceo/document/TA-8-2019-0349_EN.html.

  15. “On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.”

  16. Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. O J L 237/27.

  17. The ECHR (Art. 2, right to life, and 3, prohibition of torture or inhuman or degrading treatment or punishment), recognizes rights of absolute content, inseparable from human beings existence and dignity, which do not admit limitations, exceptions or derogations of any kind and under no circumstance (Art. 15.2 ECHR).

    Unlike these, other rights contemplated by ECHR (e.g. Art. 8: right to respect for private and family life) allow some limitations should them be provided by Law and are required by the interest of democratic society (national security, public safety, defence of order and prevention of criminal offences, or the protection of the rights and freedoms of others, among others).

    There is a wide consensus regarding the dichotomy of fundamental rights in connection to their intangibility degree, both in the ECHR and the CFREU system (Chapter I, Articles 1 to 5, Human dignity, right to life, right to the integrity of the person, the prohibition of torture and inhuman or degrading treatment or punishment and prohibition of slavery and forced labour), despite the complexity, the notion entails. See in this sense Ado, M.K. and Grief, N. [1], pp. 510–552; and Mavronicola, N. [22], pp. 723–758.

  18. See Marguery, T. P. [21], pp. 704–717, on the links between mutual trust and fundamental rights on the operation of both EAW FD and 909 FD.

  19. The complete and systematized list of the judgments of the Court concerning the EAW is updated periodically by Eurojust. Available at: http://eurojust.europa.eu/doclibrary/Eurojust-Framework/caselawanalysis/Case%20Law%20by%20the%20Court%20of%20Justice%20of%20the%20European%20Union%20on%20the%20European%20Arrest%20Warrant%20(October%202018)/2018-10_EAW-case-law_EN.pdf.

  20. See also Van der Mei, A.P. [33].

  21. Case C-11/70, Internationale Handelsgesellschaft mbH c. Einfuhr und Vorratsstelle für Getreide und Futtermittel, EU:C:1970:114.

  22. The entry into force of the Charter marked a turning point in the legal landscape of the Union, providing a new interpretative reference in all orders. For an exhaustive study regarding the relationship of the CFREU and the EU treaties v. Kellerbauer, M., Klamert, M. and Tomkin, J. [18].

  23. Cases C-305/05, Advocaten voor de Wereld VZW v. Leden van de Ministerraad, EU:C:2007:261; C-467/04, Giuseppe Francesco Gasparini and Others (C-467/04), EU:C:2006:610; C-237/15 PPU, Lanigan; EU:C:2015:474; C-399/11, Melloni, EU:C:2013:107.

  24. Most of the Academics who have studied recitals (12) and (13) of the Preamble and Article 1.3 of the EAW FD conclude that respect for fundamental rights constitutes an additional condition for the enforcement of the extradition request. See among others: Garlick, P. [13], pp. 167–169 or Van Ballegooij, W and Gonzales, G, [36], pp. 163–165.

  25. For a full analysis of this judgment see, among many others, Bustos Gisbert, R. [8] or Lazowski, A. [19].

  26. Opinion 2/13 of the Court (Full Court) 18 December 2014 (Opinion pursuant to Article 218(11) TFEU-Draft international agreement-Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms-Compatibility of the draft agreement with the EU and FEU Treaties), EU:C:2014:2454.

  27. Paragraphs 191 y 192 Opinion 2/13, paragraphs 191 and 192, and CJEU rulings C:411/10 and C:493/10, NS and others, EU:C:2011:865, paragraphs 78 to 80, and Melloni, paragraphs 37 and 63.

  28. The aspiration to raise the meaning of Article 1 (3) EAW FD to the category of genuine ground of refusal is shared by the European Parliament. Thus, in its Resolution of February 27, 2014, with recommendations for the Commission on the revision of the European arrest warrant (2013/2109 (INL)). Available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2014-0174+0+DOC+XML+V0//ES.

    This document, in its Sect. 7 “…requests the Commission to submit, within a year following the adoption of this resolution, on the basis of Article 82 of the TFEU, legislative proposals following the detailed recommendations set out in the Annex hereto and providing for:... \(d\)) a mandatory refusal ground where there are substantial grounds to believe that the execution of the measure would be incompatible with the executing Member State’s obligation in accordance with Article 6 of the TEU and the Charter, notably Article 52(1) thereof with its reference to the principle of proportionality;...”

    Similarly, in its paragraph 16 “Highlights the link between detention conditions and EAW measures and reminds Member States that Article 3 of the ECHR and the case-law of the European Court of Human Right (ECtHR) impose on the Member States not only negative obligations, by banning them from subjecting prisoners to inhuman and degrading treatment, but also positive obligations, by requiring them to ensure that prison conditions are consistent with human dignity;...”

    And, finally, in the Annex of Recommendations, it advocates for the introduction of a ground for refusal linked to the fundamental rights applicable when “There are substantial grounds to believe that the execution of the measure would be incompatible with the executing Member State’s obligations in accordance with Article 6 TEU and the Charter.”

  29. Pursuant to Article 258 TFEU for failure to fulfil obligations followed before the CJEU at the request of the European Commission, C-619/18, European Commission v Republic of Poland, EU:C:2019:531.

    On 2 July 2018, the Commission launched the infringement procedure. On 24 September 2018, the Commission referred the case to the Court of Justice of the EU and asked the Court to order interim measures, preventing the irreparable damage that would result from the application of the new law, as well as an expedited procedure to obtain a final judgment as soon as possible. On 17 December 2018, the Court of Justice issued a final order imposing interim measures to stop the implementation of the Polish law on the Supreme Court.

  30. As the Advocate General recalls in his Opinion presented on the 11 of April 2019, there are several other cases pending before the Court relating to the reform of the Polish judiciary, including an infringement action (C-192/18) and requests for preliminary rulings submitted by the Polish Supreme Court (C-522/18, C-537/18, C-585/18, C-624/18, C-625/18 and C-668/18), the Polish Supreme Administrative Court (C-824/18) and Polish lower courts (C-558/18, C-563/18 and C-623/18).

  31. Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym. Act on the Supreme Court 8 of December 2017. Available at: http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20180000005/U/D20180005Lj.pdf.

  32. Ustawa o zmianie ustawy—Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Act amending the Law on the system of the ordinary courts and certain other laws) of 10 of May 2018. Available at: http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20180001045/T/D20181045L.pdf.

  33. The provisions referred to above have been repealed, and their effects eliminated, by the ustawa o zmianie ustawy o Sądzie Najwyższym (Act amending the New Act on the Supreme Court), of 21 November 2018 (Dz. U. of 2018, heading 2507), which entered into force on 1 January 2019. According to the amending Act the serving judges of the Sąd Supreme Court who had previously been affected by the lowering of the retirement age under the New Act on the Supreme Court have been retained or re-instated in that court, under the conditions in force before the adoption of that latter Act, the performance of their duties moreover being deemed to have continued without interruption. The provisions allowing the President of the Republic to authorise the extension of the period during which a judge of the Supreme Court may carry out his or her duties when the judge has reached the normal retirement age have also been repealed.

  34. Both the opinion and de judgment are built around well known CJEU rulings on human rights and judicial statute, standing out among them those handed down in cases C-159/10 and 160/10, joined cases Fuchs y Köhler, EU:C:2011:508; C-286/12, Commissión v Hungary, EU:C:2012:687; C-288/12, Commissión v Hungary, EU:C:2014:237; C-64/16, Associação Sindical dos Juízes Portugueses EU:C:2018:117; C:284/16, Achmea, EU:C:2018:158; C-49/18, Escribano Vindel, EU:C:2019:106.

  35. Article 19(1) TEU provides: ‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.

    Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’

  36. See European Commission for Democracy through Law (Venice Commission), paragraphs 34 and 47 of its opinion 904/2017 Adopted by the Venice Commission at its 113th Plenary Session (8–9 December 2017). Available at: https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2017)031-e.

  37. v. Frackowiak-Adamska, A. [12] underlining that the issue addressed by the CJEU was the judicial independence in one Member State but the “…but from the perspective of the protection of an individual. It did not determine any systemic consequences of limiting the judicial independence for judicial cooperation. The issue of judicial independence was thus treated as a part of a right to a fair trial protected by Article 47 of the Charter. The answer was based on the interpretation of Article 1 (3) of the EAW framework decision, which states that this act shall not modify “the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6” [TEU].”

  38. C-216/18, Minister for Justice and Equality v. LM (C-216-18). Opinion of the Advocate General, delivered on 28 June 2018. EU:C:2018:517.

  39. CJEU judgments handed down in Aranyosi-Caldararu, C-410/11, N.S., EU:C:2011:865; C-578/16 PPU, C.K., EU:C:2017:127; C-490/16, A.S., EU:C:2017:585; C-646/16, Jafari, EU:C:2017:586.

  40. C-551/15, Pula Parking, EU:C:2017:193. In this case of a civil nature, the CJEU declared that “Compliance with the principle of mutual trust in the administration of justice in the Member States of the European Union which underlies that regulation (Brussels I bis) requires, in particular, that judgments the enforcement of which is sought in another Member State have been delivered in court proceedings offering guarantees of independence and impartiality and in compliance with the principle of audi alteram partem” (paragraph 55).

  41. Advocate General Sharpston opinion delivered in C-396/11, Radu, EU:C:2012:648; Advocate General Bobek opinion delivered in C-271/17, Zdziaszek, EU:C:2017:612.

  42. Soering v United Kingdom; Al-Saadoon and Mufdhi v United Kingdom, 17 January 2012, CE:ECHR:2010:0302JUD006149808; Othman (Abu Qatada) v United Kingdom, 24 July 2014, CE:ECHR:2012:0117JUD000813909; Al Nashiri v Poland, 15 June 2017, CE:ECHR:2014:0724JUD002876111; Harkins United Kingdom, 15 June 2017, CE:ECHR:2017:0615DEC007153714.

  43. Öcalan v Turkey, 12 May 2005. CE:ECHR:2005:0512JUD004622199.

    Othman (Abu Qatada) v the United Kingdom. CE:ECHR:2012:0117JUD000813909.

  44. “…Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that person’s position may be prejudiced for any of these reasons.”

  45. Such a position corresponds to the position of the European Court of Human Rights, cited in footnote 83 of the opinion: “ECtHR, 27 October 2011, Ahorugeze v. Sweden (CE:ECHR:2011:1027JUD003707509, § 116); ECtHR, 17 January 2012, Othman (Abu Qatada) v. the United Kingdom (CE:ECHR:2012:0117JUD000813909, § 261); and ECtHR, 19 February 2013, Yefimova v. Russia (CE:ECHR:2013:0219JUD003978609, § 220).”

  46. C-452/16 PPU, Poltorak, EU:C:2016:858.

  47. On the links between Associação Sindical dos Juízes Portugueses and LM cf Bonelli, M. and. and Claes, M. [5], pp. 622–643.

  48. C-34/17, Donnellan, EU:C:2018:282.

  49. Avotins v Latvia, 26 May 2016, CE:ECHR:2014:0225JUD001750207.

    Pirozzi v Bélgium, 17 April 2018,CE:ECHR:2018:0417JUD002105511.

    Stapleton v Ireland, 4 May 2010, Court decision declaring the application inadmissible, CE:ECHR:2010:0504DEC005658807.

    Romeo Castaño v Belgium, 9 July 2019, CE:ECHR:2019:0709JUD000835117.

  50. Some authors point out, assessments we do not necessarily share, that the solution given by the CJEU is a safe and somewhat comfortable bet with respect to viable alternatives, even as a step backwards from previous sentences such as the one issued in the Associação Sindical dos Juízes Portugueses case. Cf Van Ballegooij, W and Bárd. P [34]; Frackowiak-Adamska, A. op. cit. synthesizes some of the criticism “The Luxembourg court is praised by some for confirming its competence to tackle the issue of the independence of judiciary and for its judicial prudence. It is criticized by others for not setting systemic consequences of the breach of independence but also for a definition of judicial independence which is too detailed and disconnected from the ECHR’s.”

    Also seeFrackowiak-Adamska, A. [11].

    Sarmiento, D. [29], pp. 385–387, describes the judgement as “…in the best tradition of the CJEU, an imaginative but carefully constructed balancing act.”

  51. Cf Bonelli, M. [6].

  52. And all of the above is done in a thoughtfully, noting from the outset that this possible expansion of the doctrine drawn up in Aranyosi-Caldararu, even in the presence of an exceptional situation like the one presented in Poland, cannot be applied in a generalized or automatic way. “Therefore, it is only if the European Council were to adopt a decision determining, as provided for in Article 7(2) TEU, that there is a serious and persistent breach in the issuing Member State of the principles set out in Article 2 TEU, such as those inherent in the rule of law, and the Council were then to suspend Framework Decision 2002/584 in respect of that Member State that the executing judicial authority would be required to refuse automatically to execute any European arrest warrant issued by it, without having to carry out any specific assessment of whether the individual concerned runs a real risk that the essence of his fundamental right to a fair trial will be affected” (paragraph 72 LM judgement).

    In other words, even in critical circumstances in which the signs of systemic crisis are of remarkable strength with art. 7 (1) TUE already activated, the presumption of compliance with the requirements of the Rule of Law in the issuing State is not affected. Precisely this is the first element that the Irish executing authority should verify is whether the systemic deficiencies revealed by the referred by the proposal of the European Commission to the Council of activation of art. 7 TEU genuinely affect the independence of the Polish Courts responsible for hearing about the case concerning the claimed person.

  53. Independence of the courts grants a proper functioning of the justice system, and an adequate preservation of the right to a fair trial. Those two notions encompass many others from the statutory, organizational perspective to the procedural rights attached to the core concept of fair trial. Even, the ruling issued in the Associação Sindical dos Juízes Portugueses case, which recalls that independence of national courts is “…in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU, in that, in accordance with the settled case-law referred to in paragraph 38 above, that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence” (paragraph 43).

  54. Simonelli, M. A. [30].

  55. Judgment of Ms. Justice Donnelly delivered on the 19th day of November, 2018. [2018] IEHC 639. Available at: http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/1792edc8d00027238025834a0048bb42?OpenDocument.

    In the same, the Court, after carrying out the individual verification test established in LM, decided that the specific risk for Mr. Celmer of a violation of the essence of his right to a fair trial had not occurred, granting his surrender to Poland.

  56. Othman (Abu Qatada) v Reino Unido, 9 May 2012, CE:ECHR:2012:0117JUD000813909.

  57. Cf Guide on Article 6 of the European Convention on Human Rights. Right to a fair trial (criminal limb). Available at: https://www.echr.coe.int/Documents/Guide_Art_6_criminal_ENG.pdf.

  58. Ramphal, T. [28] recalls that in LM the CJEU declares that an EAW can be refused if systemic deficiencies related to judicial independence in the issuing Member State involve a real risk of violation of the essential content of the right to a fair trial for the requested person. Thus, the CJEU deviates from the parameter used by the ECHR case-law. “The ECtHR takes a different approach, since it ruled that a Member State can refuse the execution of the EAW in accordance with the ECtHR’s test of ‘a flagrant denial of justice’ (Pirozzi v Belgium). This test seems more in line with the underlying principles of EU Law than the CJEU’s test since the limitations to the execution of the EAW should be interpreted strictly. By adopting the test of ‘a flagrant denial of justice’, the limitations to the execution of the EAW are strict and coherent with the right to a fair trial.”

    The author reminds us that the Advocate General noted in his opinion in LM that the real risk of violation of the right to a fair trial might not be sufficient to refuse an EAW, on account of mutual recognition principle. “Despite this, the CJEU gives Member States the opportunity to refuse an EAW more easily than extradition requested by a third State since the strictest criteria of the ECHR would apply to the latter....The LM judgment, on the one hand, provides for strong action against Member States who do not adhere to the rule of law, on the other hand, it provides for a degrading effect on the application of the principle of mutual recognition on which the EAW is based.

    Nevertheless, the impact of these seemingly divergent test will depend on how the following questions are answered by the Member States: Does all the systemic or general deficiencies concerning the independence of the judiciary constitute a flagrant denial of justice?; and Does the real risk of a breach of the right to a fair trial test adopted by the CJEU apply to every aspect of the right to a fair trial? If the first question is answered negatively and/or the second in the affirmative by one or more Member States, the divergence could lead to differences (a) in the application of the right to a fair trial between the Member States and (b) between EAW and non-EAW extradition cases in a way which does not promote the efficient judicial cooperation between Member States.”

  59. Even the information requested from the issuing Member State. In this regard, the decision issued on October 4, 2018 by the Retchsbank of Amsterdam, ECLI: NL: RBAMS: 2018: 7211 is particularly instructive. Before ruling on an EAW, the Retchsbank applied the LM doctrine and pursuant to Article 15 (2) EAW FD, orders the Prosecutor’s Office to request Poland (issuing Member State), so that within four weeks, it sends in detail information about a) which courts shall have jurisdiction over the matter in Poland, for each of these courts if there have been changes in its composition; b) distribution and handling of cases; c) disciplinary procedures or other measures that would have been taken against the judges; d) procedures established to protect the right to an independent judge; and e) possibility of extraordinary remedies before the Supreme Court.

  60. In Spain, the system for the annulment of judicial proceedings requires a two-tier set of requisites: first, the breach of legal substantive or procedural provision, and second, that such circumstance causes the individual inability to defend him or herself.

    Accordingly, Article 238(3) of the Organic Act on the Judiciary, July 1985 (official translation at the Council for the Judiciary website) reads: “Procedure acts will be null and void in the following cases: Three. When the basic rules of procedure have not been observed provided that his may have caused defencelessness.”

    http://www.poderjudicial.es/cgpj/en/Subjects/Compendium-of-Judicial-Law-/Laws/Organic-Law-6-1985-of-1-July–on-the-Judiciary.

  61. Brkan, M. [7], pp. 332–368.

  62. Note that judgment in Aranyosi-Caldararu, as usually, contains in its operative part the answer to the questions raised in the preliminary ruling. Conversely, the judgment in LM does not include in its operative part any reference to the refusal of the surrender. It is inferred by the commentators, pretty accurately since it is so intrinsic in its rationale (see paragraphs 33, 47, 59, 73 and 78) that there is no other way to integrate its operative part except with the refusal of the surrender.

  63. Frackowiak-Adamska, A., op. cit. [12].

  64. We must stress that Mr Tanchev’s position, in his opinion, was more cautious than that of the Court, which went further in its conclusions. The Advocate General does not use in his opinion the notions of refusal, denial or refraining from executing the EAW, instead repeatedly resorts to the concept of postponement of execution and proposes the procedural guideline for checking the situation of risk for the fundamental right of the requested person. Nevertheless, the opinion also broaches the dilemma of whether to execute the EAW concluding that the warrant must be executed “If, in the light of the information obtained on the basis of Article 15(2) of the Framework Decision, the executing judicial authority considers that the person subject to a European arrest warrant does not run a real risk of suffering a flagrant denial of justice in the issuing Member State…” (paragraph 130).

    Conversely, and aligned with Aranyosi-Caldararu ruling, in paragraph 131, if “the executing judicial authority considers in the light of that information that the individual concerned runs a real risk of suffering a flagrant denial of justice in the issuing Member State, the execution of that warrant must be postponed but it cannot be abandoned. In this case, the executing Member State must, in accordance with Article 17(7) of the Framework Decision, inform Eurojust of the delay, giving the reasons for the postponement. If the existence of such a risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.”

  65. The judgments handed down in LM and ML cases are of the same day. In the second one, there are copious references to the first one (see paragraphs 48 to 58) regarding the ontological level of the debate and to Aranyosi-Caldararu ruling (paragraphs 59 to 66, 90 and 115) as regards the procedure.

  66. See paragraphs 98 and 99. “If, in the light of the information provided pursuant to Article 15(2) of the Framework Decision, and of any other information that may be available to the executing judicial authority, that authority finds that there exists, for the individual who is the subject of the European arrest warrant, a real risk of inhuman or degrading treatment, as referred to in paragraph 94 of this judgment, the execution of that warrant must be postponed but it cannot be abandoned (see, by analogy, judgment in Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 38)” (paragraph 98).

  67. In general, the opinion of authors dealing with this judgment tend to be moderated weighing its possible influence in a more modest way, cf among others Wahl, T. [37].

  68. A new and fascinating debate appears in front of us: to what extent this jurisprudence entails a different approach in other areas? Broaching it would be the topic for a new paper, but we would like to just note that.

  69. The UE is going through an upheaval period in which some advocate for more energetic solutions than just the dialogue to safeguard the rule of law. See Uitz, R. [32].

  70. There is no doubt that Aranyosi-Caldararu jurisprudence might be directly applicable to the rest of rights of absolute content, those included in the Chapter One of the CFREU, Articles 1 to 5, namely, Human dignity, Right to life, Right to the integrity of the person, Prohibition of torture and inhuman or degrading treatment or punishment and Prohibition of slavery and forced labour (Articles 2 to 4 of the European Convention on Human Rights).

  71. Van Ballegooij, W. and Bárd, P. [35].

  72. In this respect the doctrine remains expectant, v. among others, Subic, N. [31] pp. 98 to 109.

  73. The wording of Article 47 (2) CFREU seems to connect the right to a fair trial to a limited set of aspects: public hearing within a reasonable time, independent and impartial tribunal previously established by law and possibility of being advised, defended and represented.

    Nonetheless, we uphold the view that the right to a fair trial somehow encompasses all the rights of procedural nature, being the foundation and premise of their existence. Besides, or inside it, different procedural rights coexist: effective remedy, a presumption of innocence and right of defence, legality and proportionality of criminal offences and penalties, right not to be tried or punished twice in criminal proceedings for the same criminal offence (Articles to 50 CFREU) The breach of some of those rights is reflected explicitly in EAW FD as a ground for refusal.

  74. The Avotins v Latvia case brought together the functioning of the civil cooperation system within the Union based on mutual recognition (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. OJ L 351/1) and the fundamental right to a fair process referred to in art. 6.1 of the ECHR. In the ruling issued therein, the ECHR reinforces the validity of the so-called Bosphorus presumption; but pointing out that, manifest deficiencies in the protection of the rights enshrined in the Convention, could cast doubt on automatism in cooperation based on mutual recognition. Due to procedural issues related to the specific case, the ECHR did not reach a final position on the substance of issues, and its final verdict is postponed until the Court deals with a case in which the Bosphorus presumption is rebutted, and there is a manifest deficiency in the protection of the rights contained in the ECHR (among them the right to a fair trial) in a cooperation context based on mutual recognition.

    On this particular cf Plantinga, B. [26] and on the Bosphorus presumption, Cortés Martín, J. M. [9], pp. 819–858.

  75. The Criminal Bar Association (ECBA) Handbook on the European Arrest Warrant for Defence Lawyers claims, in light of the recent jurisprudence of the CJEU, the need to consider fundamental rights such as respect for private and family life relevant to the consideration of whether surrender will violate fundamental rights. European Criminal Bar Association ECBA Handbook on the European Arrest Warrant for Defence Lawyers in its chapter E, Sect. 3. E.3 Refusal on the grounds of Fundamental Rights. Available at http://www.ecba.org/content/index.php/124-featured/727-ecba-handbook-on-the-eaw-for-defence-lawyers.

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F.-G. Ruiz Yamuza is Senior Judge of the Appeal Court of Huelva (Spain). Member of the Spanish Judicial Network for International Cooperation (REJUE), Criminal Division.

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Ruiz Yamuza, FG. LM case, a new horizon in shielding fundamental rights within cooperation based on mutual recognition. Flying in the coffin corner. ERA Forum 20, 371–404 (2020). https://doi.org/10.1007/s12027-019-00593-7

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