Protecting specific fundamental rights in light of the Charter Dr Jana Gajdosova EJTN-FRA 19–20 April 2018

Charter of Fundamental Rights of the EU Preamble Peace – common values Universal values Diversity, etc Rights more visible Reaffirms const. and int’l rights Rights, duties, responsibilities Rights, freedoms and principles I Dignity (Articles 1–5) 1 Human dignity 2 Life 3 Integrity of the person 4 Torture and inhuman degrading treatment or punishment 5 Slavery and forced labour II Freedoms (Articles 6–19) 6 Liberty and security 7 Private and family life 8 Personal data 9 Marry and found family 10 Thought conscience and religion 11 Expression and information 12 Assembly and association 13 Arts and sciences 14 Education 15 Choose occupation and engage in work 16 Conduct a business 17 Property 18 Asylum 19 Removal, expulsion or extradition III Equality (Articles 20–26) 20 Equality before the law 21 Non-discrimination 22 Cultural, religious and linguistic diversity 23 Equality: men and women 24 The child 25 Elderly 26 Integration of persons with disabilities IV Solidarity (Articles 27–38) 27 Workers right to information and consultation 28 collective bargaining and action 29 Access to placement services 30 Unjustified dismissal 31 Fair and just working conditions 32 Prohibition of child labour and protection of young people at work 33 Family and professional life 34 Social security and assistance 35 Health care 36 Access to services of general economic interest 37 Environmental protection 38 Consumer protection V Citizens’ rights (Articles 39–46) 39 Vote and stand as candidate to EP 40 Vote and stand as candidate at municipal elections 41 Good administration 42 Access to documents 43 European ombudsman 44 Petition (EP) 45 Movement and residence 46 Diplomatic and consular protection VI Justice (Articles 47–50) 47 Effective remedy and fair trial 48 Presumption of innocence and right of defence 49 Legality and proportionality of criminal offences and penalties 50 Ne bis in idem VII General provisions (Articles 51–54) 51 Application 52 Scope and interpretation 53 Level of protection 54 Prohibition of abuse of rights

What is it “the Charter”? an EU law document forming part of EU Primary law a full fledged bill of human rights a list drafted in competence-neutral language while bound by competence limits Taking the above in consideration, how to assess the Charter’s character? Is it inspiring & innovative, conservative or frustrating?

Does the Charter apply in a given situation? The relevant Charter rights alone are not sufficient to trigger its application. Is there a provision of EU law that is relevant to the judicial case in some significant way?

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant (FDEAW) to speed up the surrender of accused or convicted persons from one Member State to another a European arrest warrant (EAW) issued by one Member State (the ‘issuing’ Member State) must be executed by another Member State (the ‘executing State’), unless the FDEAW demands or permits non-execution.

Limited grounds for refusal Mandatory grounds – the person has already been judged for the same offence (ne bis in idem) – minors (the person has not reached the age of criminal responsibility in the executing country) – amnesty (the executing country could have prosecuted them, and the offence is covered by an amnesty in that country). Optional grounds – such as: – lack of double criminality for offences other than the 32 listed in FDEAW – Final judgment in a third State – pending criminal procedure in the executing Member State – prosecution or punishment statute-barred, – executing Member State undertakes the execution of the sentence, – trial in absentia, etc. FDEAW does not contain any provision on non-execution on the basis of a breach of the requested person’s fundamental rights in the issuing Member State.

Case study XY was sentenced to 10 years in prison by a court in country A for possession of drugs XY left country A before the sentenced time could be served Country A issued an EAW and XY was arrested in country B XY is invoking their Charter rights with reference to the detention conditions You are a judge in country B (executing Member State) and you have to decide on surrender. Please, provide arguments for and against surrendering XY: Does the Charter apply? (NB: FDEAW does not contain any provision on non-execution on the basis of a breach of the requested person’s fundamental rights in the issuing Member State) If yes, which Charter right(s) is/are concerned and what Charter’s role would be in this case in general?

Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru

Mutual trust means blind trust For surrender Against surrender Mutual trust means blind trust Mutual trust as a general trust (rebuttable) in opposition to a blind trust FDEAW does not contain any provision on non-execution on the basis of a breach of the requested person’s fundamental rights If the principle of mutual recognition would prevail over the protection of FRs in the Charter, then a principle had been given more weight than fundamental rights. Fundamental rights, being a part of primary law (Charter). The right concerned is prohibition of inhuman and degrading treatment which is absolute in nature Refusal to execute could lead to a situation where the issuing State would be denied the possibility to use the EAW as such, without the possibility to defend its position Unacceptable to demand that a judge should ignore obvious reasons to fear for violations of FRs and the possibility of denying the execution of the EAW had to be present in such a situation No possibility of another state to make evaluations of foreign prison systems prior to deciding Systemic problems + the need to make investigations in even individual cases, using a variety of sources: the use of the case law of ECtHR, reports from international organisations, statistics on the over-crowding of prisons in the requesting State and even any other relevant source The importance of dialogue between Member States – the concept of guarantees http://eulawanalysis.blogspot.sk/2016/02/mutual-trust-blind-trust-or-general.html

Aranyosi I-assessment Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru Aranyosi I-assessment Real risk No real risk Initial assessment – real risk Objective, reliable, specific, up to date Postponement (not abandoned) Execute the EAW Judgments of int’l courts (ECtHR) Inform Eurojust (Art. 17 (7) with reasons Possible to challenge detention conditions in issuing Member State Judgments of nat’l courts Proportionality of detention while pending Decisions, reports, etc from UN or CoE mechan. Discontinuation of the proceedings Further assessment – substantial grounds Exposed to risk is real or not real? Real risk Requesting information (Art. 15 (2) of the EAW) No real risk Aranyosi II Scope of ‘real risk’ assessment

Breach Charter rights: an unwritten ground for non-execution? A separate ground for the possible suspension or non-execution of EAWs (Aranyosi and Căldăraru) or for refusing extradition to a third country (Petruhhin). Other types of impacts of the Charter on FDEAW ‘shadow effect’ (not mentioned explicitly, FRs may be pervading CJEU reasoning or interpretation of provisions of FDEAW): cases in which the CJEU interpreted concepts like ‘EAW’ (Bob-Dogi), ‘judicial authority’ (Poltorak, Kovalkovas, Özcelik) or ‘trial resulting in the decision’ (Tupikas, Zdziaszek). FRs as a tool for interpreting the FDEAW: cases concerning time limits contained in the FDEAW (Lanigan, JZ) or non-execution of an EAW in in absentia cases on the ground that fair trial are not respected (Tupikas, Zdziaszek).

Trust Cross-border justice Fundamental Rights Mutual recognition European Arrest Warrant Fundamental Rights

To be continued ... CJEU only expressed itself on the prohibition of inhuman and degrading treatment which is absolute in nature (what about other absolute rights and hot non-absolute, such as right to an effective remedy? The intensity or the seriousness of the breach may play a role here) Fueling arguments for the postponement or invalidity or EAWs due to other human rights concerns too ? PR from the Irish High Court in the in the case Minister for Justice and Equality v Artur Celmer: whether EAWs issued by Poland must be executed, in light of rule of law concerns ?

Thank you! Jana.Gajdosova@fra.europa.eu