In Memoriam. To María Poza Cisneros, Senior Magistrate and Deputy National Member for Spain at Eurojust.
The European Arrest Warrant (EAW) Framework Decision (FD) 2002/584/JHA was designed to provide a speedy and efficient extradition procedure among EU Member States (MS). However, sometimes the actual surrender happens to be impossible within the legal deadlines. These cases can be of very different nature (force majeure or humanitarian reasons – including COVID-19 related cases –, deficiencies in the justice systems, prison conditions, etc.) and the practical consequences vary, sometimes bringing a significant impact for the persons subject to surrender, for the justice system in general, or even for society. Some cases can be easily solved by the mere passage of time, while others have a more complicated solution, or none at all, so legislative reforms might be the only way forward. In this post we will look into these different scenarios, analysing them from the viewpoint of the CJEU case law, and explore legal solutions to some of them, including the possible reform of the current EAW legal framework. Such reform seems necessary to create the tools to address some of the most serious situations.
A. Types of cases involving problematic surrender
1. Cases of force majeure or humanitarian reasons
A first group of cases, whose number has significantly increased recently by the COVID-19 pandemic, are those connected to unexpected circumstances preventing a surrender already granted, due to health risks for persons involved in a surrender (this can affect the person subject to surrender, the police officers escorting this person, or even third persons, such as other passengers) or simply because of the lack of means of transport. On other occasions, the requested person’s health problems makes surrender not advisable.
A second group of cases where surrender may be impossible, involves the unforeseeable resistance of the person to be surrendered. The CJEU has established in Vilkas (C-640/15) that the force majeure of Article 23(3) EAW FD is applicable to situations where surrender “proves impossible on account of the repeated resistance of that person” and that authorities “remain obliged to agree on a new surrender date if the time limits prescribed in Article 23 have expired”(para.74).
This had already been declared by the Court in Lanigan (C-237/15), both as regards the need to continue the EAW proceedings even after the deadlines have been passed, as well as regards the existence of limits to the extension of measures like preliminary custody, as such extension would be possible “provided that that duration is not excessive” (operative part of the judgment). This idea was stressed again in Vilkas, indicating the extension of preliminary custody can take place “only in so far as the surrender procedure has been carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the custody is not excessive” (para. 43).
All these cases result in a de facto impossibility to surrender persons, thus triggering the exceptional solution the EAW FD provides for such circumstances under Article 23(3) and (4) (force majeure and humanitarian reasons): the postponement of the surrender. Usually, these problems are more of a logistic than a legal nature and, as soon as they are solved, the surrender can take place. Nevertheless, in cases of serious health conditions, the situation can last for much longer and additional measures might be needed to solve the problem.
2. Cases connected to breaches of fundamental rights
A different group of cases relate to situations where respect for fundamental rights are at stake. Some can be related to general deficiencies in a given justice system, while others are more specifically linked to prison conditions.
a. General deficiencies in the system of justice
This sub-group of cases connected to fundamental rights is very far-reaching. As shown in Deficiencies in the system of Justice (C-216/18), the CJEU has expanded its attention to the actual functioning of the MS’ judiciaries in order to tackle risks concerning breaches of fundamental rights (such as the right to an independent tribunal and to a fair trial). However, this ruling deals with a theoretical situation (how an executing authority should react in case such deficiencies in the system of the issuing MS were confirmed), but the final decision taken by the executing authority in the concrete case was to deem those deficiencies not sufficiently proven, so surrender eventually took place.
In any case, if such situations were to be faced in practice, the solution would be difficult, as it would not depend on concrete measures or decisions to be taken by individual authorities, but rather on MS dealing with systemic failures resulting in a lack of the minimum guarantees that are the underlying fabric on which mutual trust is based. Therefore, the only acceptable course of action for the executing judicial authority would simply be not to execute the EAW, as neither surrendering the requested person (for prosecution purposes or for execution) nor taking over execution would be acceptable solutions, because both would imply relying on a system without the necessary minimum guarantees.
b. Prison conditions
In other cases, the bad prison conditions in the issuing MS create an obstacle to surrender. This problem has already resulted in several rulings of the CJEU (Aranyosi/Caldararu (C-404/15 and C-659/15), ML (C-220/18) and Dorobantu (C-128/18)). In essence, the Court ruled that whenever prison conditions to be faced by the person subject to the EAW are deemed to be of such nature as to endanger his/her fundamental rights (in particular the risk to be subject to inhuman or degrading treatment), the executing authority can withhold its decision or postpone surrender until the proper conditions are met.
In practice, following direct contacts between competent authorities (sometimes with the involvement of Eurojust), a solution is to obtain guarantees from the issuing authority that the person will be sent to a facility with acceptable conditions. Nevertheless, when this is not possible, alternative solutions (beyond short-term postponement or refusal options) should be available for the executing judicial authorities.
B. Practical and legal problems when surrender is not possible
In each of the above scenarios, the impossibility to surrender may require a reviewing of the personal situation of the requested person, e.g. because the time limits for preliminary custody are not enough to absorb the delay caused by the postponement of surrender. This can result in situations that are very worrying from the perspective of possible impunity areas, as well as of the adequate protection of European citizens, as we will see below.
A fundamental distinction must be made depending on whether the EAW was issued “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”, as indicated by Article 1(1) EAW FD. Problems stemming from the impossibility to carry out surrender affect both types of EAW, but the consequences are nonetheless very different and possible common solutions are hard to find.
When an EAW is issued for prosecution purposes, it is less difficult to accept a situation where a sustained impossibility to surrender leads to the suspect’s release from custody. Firstly, because the subject is still presumed innocent and situations where preliminary custody needs to be discontinued are a normal possible outcome (sometimes even the most correct one). Secondly, because it will not always be possible to think of mechanisms of transferring the prosecution to the executing MS, as jurisdictions may not simply be interchangeable (an executing authority may simply lack jurisdiction to prosecute somebody who cannot be surrendered to the issuing MS, as the jurisdictional rules do not always allow, for instance, to prosecute crimes committed abroad).
In the second scenario, where the EAW is issued for executing a custodial sentence, a convicted person, perhaps for very serious crimes, might have to be released from custody due to the impossibility to surrender and to extend such provisional measure any further. Although, in line with Lanigan and Vilkas, the CJEU stresses in Aranyosi/Caldararu – and maintains this position in ML, Deficiencies in the Justice system and Dorobantu – that the execution “must be postponed but it must not be abandoned” (Aranyosi/Caldararu, para. 98) and that new provisional measures might be imposed, this cannot mislead us into thinking the suspension of the surrender procedure can be prolonged forever.
Indeed, the CJEU indicates clearly that one possible outcome is precisely that, after consultations between competent authorities and within a reasonable time, “the executing judicial authority must decide whether the surrender procedure should be brought to an end” (Aranyosi/Caldararu, para. 104). The CJEU does not clarify whether the surrender procedure being “brought to an end” equals a formal refusal of the surrender, but the practical consequences will be very similar, including ending precautionary measures imposed. While this may not be seen as a very serious problem when we consider certain types of lesser crimes or persons with very poor health conditions, the situation might look very different in other cases.
Let us consider, for instance, a person convicted for particularly heinous crimes (e.g. a terrorist, a serial killer, a child abuser, etc.) who cannot be surrendered because of a structural lack of compliance with the minimum standards of the penitentiary system of the issuing MS. Given it is not possible for the executing MS under the current legal framework to take over execution (except for a few cases under Article 4(6) EAW FD, connected to the nationality of the perpetrator), the convicted felon would have to be released from custody and allowed to walk free – with the possible limitations of temporary, but not permanent, alternative measures imposed on him (such as an obligation to report at specified times to a specific authority, or to inform the authorities about the place of residence).
Moreover, this situation could promote in practice an undesired and unacceptable double-standard for the executing authorities, as it might be perceived as an incentive to be more flexible when it comes to assessing the impact of prison conditions or other fundamental rights-related issues, depending on what the practical consequences would be in the concrete case (e.g. releasing convicted terrorists vs releasing lower-risk criminals).
C. Possible legislative solutions
The EAW FD currently lacks a mechanism that can provide a solution to the problems mentioned above and therefore it might be worth devoting some time to try to find a legal solution – even if it is de lege ferenda – either using the window of opportunity that a future amendment of the EAW legal framework might open, or through other instruments like Framework Decision 2008/909/JHA on custodial sentences (909 FD).
As regards the EAW legal framework, some stakeholders have been advocating the need for amendment, although the problems highlighted above do not seem to be among the arguments to call for such a revision. The European Parliament favours such revision, and the European Parliamentary Research Service has presented two in-depth reports on the implementation of the EAW (the first one in February 2020, the second one on 15 June 2020) where this is specifically recommended. Furthermore, the European Commission might also consider this revision, as a Commission assessment on the EAW is expected shortly. Policy discussions could be further fuelled during German Presidency as its Programme (which has just been published) indicates “the COVID-19 pandemic is posing major challenges to international cooperation on criminal matters, particularly in connection with extradition and rendition” and might therefore include this topic.
Should a revision of the EAW FD be decided, it remains to be seen whether the FD will be replaced by a Directive or rather a Regulation. In the recent past, the EU legislator opted, somehow surprisingly, to replace another (pre-Lisbon) FD, Framework Decision 2003/577/JHA on freezing orders, by a Regulation. Still, as Recital 53 of Regulation (EU) 2018/1805 on freezing and confiscation orders declares,
“The legal form of this act should not constitute a precedent for future legal acts of the Union in the field of mutual recognition of judgments and judicial decisions in criminal matters. The choice of the legal form for future legal acts of the Union should be carefully assessed on a case-by-case basis taking into account, among other factors, the effectiveness of the legal act and the principles of proportionality and subsidiarity.”
It is hard to anticipate whether the conditions found by the EU legislator to resort to a Regulation rather than to a Directive in the area of freezing and confiscation – Recital 11 mentions only that in order to ensure effective orders, the rules “should be established by a legally binding and directly applicable act” – would also be present in the field of the EAW, but it is not hard to foresee difficulties if a Regulation would be used for a legal procedure like surrender which relates so much to the core of criminal proceedings – and therefore to national sovereignty – and with such direct consequences for the rights of citizens.
Considering this legislative context, it might be advisable to explore what possibilities are open to tackle the problems connected to situations where surrender is impossible.
1. Aut dedere aut iudicare as an option?
One of the possible alternatives would be to insert in the new EAW instrument a brand new overarching principle based on aut dedere aut iudicare for all EAWs where surrender proves impossible, allowing the executing MS to undertake the prosecution or the execution of the penalty on behalf of the issuing MS.
However, such a wide principle, which makes perfect sense in the extra-EU extradition framework, would endanger the very essence of the EAW system, based on mutual trust and where the protection of own nationals does not play a role as important as it does in extraditions. The EAW seeks to facilitate surrenders among the MS, and would hardly be compatible with mechanisms or principles under which some MS might end up taking over the prosecution of offences or execution of penalties from other MS, as a general rule, based solely on the impossibility to carry out surrenders.
Additionally, it could also be perceived as a disincentive to improve prison conditions or deficiencies in the justice systems, as those non-compliant MS would know the burden and the costs of criminal prosecution or execution would be taken over by others.
2. A more targeted approach: amending current Art. 4(6) EAW FD
Another option would consist in amending the legal framework adding an optional ground for refusal. This practical solution (already mentioned by one participant at the Eurojust College Thematic Discussion on Prison Conditions of 14 February 2017, published as Council document 9197/17) would result in a wording similar to current Article 4(6) EAW FD but also covering cases where the need to preserve fundamental rights or to react to humanitarian or force majeure cases has led to a situation where surrender is not possible.
Based on the current wording and underlining the new parts, the new provision could look like this:
Grounds for optional non-execution of the European arrest warrant
The executing judicial authority may refuse to execute the European arrest warrant:
- if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State; as well as when the executing authority finds substantial grounds to believe that the requested person, if surrendered to the requested Member State, will be exposed to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, or whenever surrender is not possible due to reasons stated under Articles 23(3) or (4); and that executing Member State undertakes to execute the sentence or detention order in accordance with its domestic law;
3. FD 2008/909/JHA (909 FD) as an option?
Yet another possible alternative, this time outside the EAW framework and not useful for EAWs for prosecution purposes, would be to resort to 909 FD, the instrument allowing execution of a penalty by another MS. Thus, the issuing authority unable to get the person via EAW could consider transferring the execution of the sentence to the executing MS, where the convicted person happens to be. However, this option might prove more complicated than it seems, and is not always useful.
Firstly, because the social rehabilitation principle enshrined in Article 3 909 FD will not necessarily be present in the cases we are referring to, and therefore application of this FD might not be possible.
Secondly, because 909 FD requires obtaining the consent of the transferred person, except for the very specific cases under the conditions set by Article 6(2) 909 FD (connected to the person being a national of the executing MS, being subject to possible deportation to that MS, or having fled or returned to it to avoid prosecution).
The above-mentioned shortcomings would, of course, disappear if 909 FD is replaced by a new instrument in order to specifically accommodate these situations but, in my view, such a revision would affect so much the essence and the underlying principles of 909 FD that the resulting instrument would have very little in common with the current FD. Nevertheless, it remains an open policy option as an alternative to the revision of the EAW FD for these matters.
Based on the above analysis, the most adequate way forward would probably be to introduce a new provision along the lines suggested under point C.2. Admittedly, this solution would not solve all the problems related to the cases we have been looking into, in particular because:
- it leaves out EAWs for prosecution purposes,
- it would remain an optional ground,
- it would require to adapt domestic legislations of the MS to enable the execution of the penalties, and
- it would not help overcome obstacles to surrender that are due to wider deficiencies in justice systems (as these deficiencies might imply convictions reached without guarantees and therefore not acceptable for taking over them).
Nevertheless, this solution would allow to tackle at least the most worrying cases mentioned, and thereby address the concern of impunity expressed above.