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Upholding Fundamental Rights in National Arrest Warrant Proceedings in Practice: a Need for Third Level of Judicial Protection?

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Abstract

The European Commission has repeatedly attempted to introduce EU legislation on pre-trial detention but has so far met with an overwhelming reluctance of Member States to address the issue. The latest initiative proposes to adopt an EU recommendation on the rights and conditions in pre-trial detention. This article seeks to highlight gaps in the protection of fundamental rights in national arrest warrant proceedings and whether standards on pre-trial detention alone will offer a solution for the full protection of fundamental rights in a cross-border context. It draws the link between the national arrest warrant, the EAW and the responsibility of the issuing state to guarantee the legality and validity of the national arrest warrant. The article finds that currently, compliance of judicial decision-making with the existing ECHR standards on pre-trial detention cannot be presumed in practice. This compliance also cannot be verified in an adversarial and equal judicial process until after the requested person has been surrendered. In the absence of a judicial process to challenge the legality of a national arrest warrant before the execution of an EAW, protection of the requested person’s rights and access to an effective remedy remains problematic.

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Notes

  1. Call for Evidence for an Initiative, Pre-Trial Detention – EU Recommendation on Rights and Conditions, No. Ref. Ares(2022)2,202,649, 25 March 2022.

  2. Ibid.

  3. C. Heard and H. Fair, Pre-trial detention and its overuse, Institute for Crime & Justice Policy Research 2019; Fair Trials, Protecting fundamental rights in cross-border proceedings: Are alternatives to the European Arrest Warrant a solution?, 2021.Fair Trials, A Measure of Last Resort? The practice of pre-trial detention decision making in the EU, 2016.

  4. This article will only look at the EAW procedures insofar as they concern EAWs issued for the purpose of criminal prosecution.

  5. Fair Trials is a global criminal justice watchdog, campaigning for fairness, equality and justice in Europe, Latin America, the UK and the USA.

  6. The Legal Experts Advisory Panel (LEAP) is Fair Trials’ network of fair trial defenders. The network brings together lawyers, academics, civil society representatives, activists, and people with lived experience in the criminal justice system. LEAP works to uphold human rights, fairness and justice in criminal justice systems across Europe, focusing on both the operation of these systems and the theories and issues that drive them.

  7. Council Framework Decision 2002/548/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJL 190, 18.7.2002, p.1–20.

  8. CJEU, Case C-241/15, Bob-Dogi, 01.06.2016, paras. 22–23.

  9. ECtHR, Stephens v. Malta (No.1), No. 11956/07, 21.04.2009, para. 59.

  10. CJEU, Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru v. Generalstaatsanwaltschaft Bremen, 05.04.2016, para. 79.

  11. CJEU, Case C-220/18 PPU, ML, 25.07.2018, para. 50.

  12. V. Mitsilegas (2015), The symbiotic relationship between mutual trust and fundamental rights in Europe’s area of criminal justice, NJECL, Vol. 6(4), p.472.

  13. T. Coventry (2017), Pre-trial detention: Assessing European Union competence under Article 82(2) TFEU, NJECL, Vol. 8(1), 43–63.

  14. European Commission’s proposals to legislate on pre-trial detention were discussed and overwhelmingly rejected by Member States in 2011 and 2021, see Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention, Brussels, COM(2011) 327 final, 14.6.2011; Council of the European Union, Non-paper from the Commission services on detention conditions and procedural rights in pre-trial detention, No. 12161/21, 24 September 2021.

  15. Outcome of the Council meeting, 3816th Council meeting Justice and Home Affairs Brussels, 7 and 8 October 2021, p.4.

  16. Ibid.

  17. Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, OJ 2010 L 280, p. 1; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, OJ 2012 L 142, p. 1; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ 2013 L 290, p. 1; Directive 2016/800 of the European parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects and accused in criminal proceedings, OJ L 132, 21.5.2016, p.1; Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ L 65, 11.3.2016, p. 1; Directive 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, OJ L 297, 4.11.2016 p.1.; corrigendum OJ L91 5.4.2017, p.40.

  18. Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, ft. 19, Article 3(2)(c) and Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, ft. 19, Article 7(1).

  19. CJEU Case C‑653/19 PPU, Criminal proceedings against DK, 28.11.2019, paras. 39–42., see also Martufi A. and Peristeridou C. (2020), Pre-trial detention and EU law: Collecting fragments of harmonisation within the existing legal framework, European Papers, Vol.5, No.3., pp.1486–1489.

  20. CJEU Case C‑653/19 PPU, Criminal proceedings against DK, 28.11.2019, para. 42.

  21. Ibid.

  22. Recital 38 of the Directive 2016/800 states: “The competent authorities should take information deriving from an individual assessment into account when determining whether any specific measure concerning the child is to be taken, such as providing any practical assistance; when assessing the appropriateness and effectiveness of any precautionary measures in respect of the child, such as decisions on provisional detention or alternative measures; and, taking account of the individual characteristics and circumstances of the child, when taking any decision or course of action in the context of the criminal proceedings, including when sentencing.”.

  23. CJEU Case C-237/15 PPU, Lanigan, 16.07.2015, para. 54.

  24. Ibid.

  25. CJEU, C-358/16, UBS Europe SE and Alain Hondequin and Others v DV and Others, 13 September 2018, para. 51.

  26. CJEU Case C‑653/19 PPU, DK, ft. 21, paras. 40–42.

  27. Leandro Mancano (2021), The use of charter and pre-trial detention in EU law: Constraints and possibilities for better protection of the right to liberty, European Papers, pp. 138–139.

  28. Ibid., p. 133.

  29. ECtHR Michalko v. Slovakia, No.35377/05, 21.12.2010, para 145.

  30. ECtHR Merabishwilli v. Georgia, No.72508/13, 28.11.2017, para. 222.

  31. ECtHR Bykov v. Russia, No. 4378/02, 10.03.2009, para. 64.

  32. ECtHR Abdulkhanov v. Russia, No. 14743/11, 2.10.2010, para. 209.

  33. ECtHR, Ladent v. Poland, App. No. 11036/03, 18 March 2008, para. 55.

  34. CJEU, Case C‑396/11, Radu, 29.01.2013, para. 39.

  35. Ibid., para. 40.

  36. W. Van Ballegooij (2017), The cost of non-Europe in the area of procedural rights and detention conditions, study, European Parliamentary Research Service, p. 6.

  37. Ibid.

  38. Fair Trials (2016), Measure of Last Resort, ft. 3, p. 18.

  39. Ibid., p. 20, see also Van Ballegooij W. (2017), ft. 39, p. 28.

  40. Fair Trials (2016), Measure of Last Resort, ft. 3, p. 12.

  41. Ibid.

  42. Ibid.; see also Fair Trials, Protecting fundamental rights in cross-border proceedings: Are alternatives to the European Arrest Warrant a solution?, ft. 3, 2021.

  43. Fair Trials (2016), Measure of Last Resort, ft. 3 p. 12.

  44. CJEU, Case C-64/16, Associação Sindical dos Juízes Portugueses, 28.02.2018, para. 35.

  45. Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, Explanation on Article 47.

  46. ECtHR Çelik and İmret v. Turkey, No. 44093/98, 26.10.2004, para. 59.

  47. ECtHR Csüllög v. Hungary, No. 30042/08, 7 June 2011, para. 46., see also CJEU, Case C‑300/11, ZZ v. Secretary of State for the Home Department, 4.06.2013, para. 65.

  48. ECtHR Hasan and Chaush v. Bulgaria, No. 30985/96, 26.10.2000, para. 96.

  49. ECtHR Pine Valley Developments Ltd and Others v. Ireland, No. 12742/87, 29.11.1991, see also CJEU Case T-720/14, Arkady Romanovich Rotenberg v Council of the European Union, 30.11.2016, para. 71.

  50. ECtHR Kudla v. Poland, No. 30210/96, 26.10.2000, para. 158.

  51. CJEU Case C-649/19, Criminal proceedings against IR, 28 January 2021, paras. 61, 77–79 and Case C-396/11, Ciprian Vasile Radu, 29.01.2013, paras. 38–40.

  52. CJEU Case C-649/19, Criminal proceedings against IR, ft. 56, paras. 61, 77–79.

  53. L. Mancano (2021), The Use of Charter and Pre-Trial detention in EU Law: Constraints and Possibilities for Better Protection of the Right to Liberty, ft. 29, p. 137.

  54. CJEU, Case C-105/21, IR, Summary of request for a preliminary ruling pursuant to Article 98(1) of the Rules of Procedure of the Court of Justice, 22 February 2021.

  55. Ibid.

  56. Ibid.

  57. Ibid, para. 22.

  58. ECtHR, Stephens v. Malta (No.1), ft. 10, para. 59.

  59. ECtHR, Vasiliciuc v Republic of Moldova, No. 15944/11, 02.05.2017, paras. 21–25.

  60. Ibid., para. 21.

  61. Ibid., para 239.

  62. V. Mitsilegas (2015), The symbiotic relationship between mutual trust and fundamental rights in Europe’s area of criminal justice, ft. 12, p.472.

  63. Ibid.

  64. See, e.g., Proposal for a Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the judicial cooperation, 2021/0394 (COD), 01.12.2021, Article 8.

  65. Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L 130, 1.5.2014, p. 1, Articles 10 and 13(3).

  66. Council of the European Union, Presidency Conclusions, Tampere European Council, 16 October 1999, para. 7.

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Acknowledgements

The author is grateful to her colleagues at Fair Trials for their tireless work on improving the application of pre-trial detention across the world and especially to the Legal Director for Europe, Laure Baudrihaye-Gérard, for her comments on earlier drafts.

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    Ilze Tralmaka

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Tralmaka, I. Upholding Fundamental Rights in National Arrest Warrant Proceedings in Practice: a Need for Third Level of Judicial Protection?. Eur J Crim Policy Res 28, 451–464 (2022). https://doi.org/10.1007/s10610-022-09518-6

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