European arrest warrant (Case C‑216/18 PPU) Stukanov Nikolay 14.04.2019

Relevance of the topic

Fundamental rights of people Edmond Arapi (TheJudicial Authority in Genoa, Italy v Edmond Arapi, City of Westminster Magistrates' Court, unreported) Edmond Arapi was tried and convicted in his absence of killing Marcello Miguel Espana Castillo in Genoa, Italy, in 2004. He was sentenced to 19 years‘ of imprisonment. Edmond had no idea that he was wanted for a crime or that the trial or appeal had even taken place. In fact, the first that Edmond knew of the conviction in Italy was when he was arrested under an EAW in June 2009 at Gatwick Airport in the UK while returning from a holiday in with his family. The next issue at Edmond's hearing was whether he would be granted a retrial if surrendered to Italy. All appeals had been exhausted in Italy by a court-appointed public defence lawyer who had acted for without his knowledge. Thus, he could wait for years for a retrial. On 15 June 2010, the day Edmond's appeal against extradition order was due to be heard at the UK's High Court, the Italian authorities decided to withdraw the EAW, admitting that they had sought Edmond in error.

Fundamental rights of people (2) Andrew Symeou, then a 20-year-old student from the UK, was extradited to Greece under an EAW in July 2009 on manslaughter charges. He was denied release pending trial by a Greek court on the basis Andrew was a non-national and therefore was assumed to represent a flight risk. He spent 11 months on remand in Greece. Andrew argued that his extradition should be refused on the grounds that he would be kept in prison conditions in Greece which would breach his human rights. The Committee for the Prevention of Torture had reported the previous year that persons deprived of their liberty in Greece "run a considerable risk of being ill-treated“ (Report to the Government of Greece on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 23 to 29 September 2008, p. 12) This evidence was held insufficient as a bar to extradition. The UK court stated: "[T]here is no sound evidence that the Appellant is at a real risk of being subjected to treatment which would breach article 3 ECHR, even if there is evidence that some police do sometimes inflict such treatment on those in detention. Regrettably, that is a sometime feature of police behaviour in all EU countries.“ (Symeou v. Public Prosecutor's Officaet Court ofAppeals, Patras, Greece [2009] EWHC 897 (Admin) at para 65.)

European arrest warrant (EAW) The European arrest warrant ("EAW") is a simplified cross- border judicial surrender procedure – for the purpose of prosecuting or executing a custodial sentence or detention order. A warrant issued by one EU country's judicial authority is valid in the entire territory of the EU. It has been operational since 1 January 2004. It has replaced the lengthy extradition procedures that used to exist between EU countries. (multilateral agreements on extradition between States).

Features of European arrest warrant How is it different to traditional extradition? Strict time limits The country where the person is arrested has to take a final decision on the execution of the European arrest warrant within 60 days after the arrest of the person. If the person consents to the surrender, the surrender decision must be taken within 10 days. The person requested must be surrendered as soon as possible on a date agreed between the authorities concerned, and no later than 10 days after the final decision on the execution of the European arrest warrant No political involvement Decisions are made by judicial authorities alone, with no political considerations involved. Surrender of nationals EU countries can no longer refuse to surrender their own nationals, unless they take over the execution of the prison sentence against the wanted person. Guarantees The country that executes the EAW may require guarantees that: a. after a certain period the person will have the right to ask for review, if the punishment imposed is a life sentence. b. the wanted person can do any resulting prison time in the executing country, if they are a national or habitual resident of that country.

Features of European arrest warrant (2) Double criminality check – no longer required for 32 categories of offences For 32 categories of offences, there is no verification on whether the act is a criminal offence in both countries. The only requirement is that it be punishable by a maximum period of at least 3 years of imprisonment in the issuing country. For other offences, surrender may be subject to the condition that the act constitutes an offence in the executing country. Limited grounds for refusal A country can refuse to surrender the requested person only if one of the grounds for mandatory or optional refusal applies:  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 Article 2(2) of the Framework Decision of EAW  – territorial jurisdiction – pending criminal procedure in the executing country  – statute of limitations, etc.

Legislation relevant for LM case Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, article 1(3) – this act 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. The first instrument implementing the principle of mutual recognition replaced the extradition system among the Member States of the EU Charter of Fundamental Rights of the European Union ( article 47 – right of access an independent tribunal) the European Convention on Human Rights (article 6 - everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law).

Facts of the case Polish courts issued three European arrest warrants (‘the EAWs’) against the LM in order for him to be arrested and surrendered to those courts for the purpose of conducting criminal prosecutions (trafficking in narcotic drugs and psychotropic substances). LM was arrested in Ireland on the basis of those EAWs and brought before the referring court, the High Court (Ireland). He informed Irish court that he did not consent to his surrender to the Polish judicial authorities and was placed in custody waiting a decision on his surrender to them. He said that his surrender could lead him to the infringement of his right of justice in contravention of Article 6 of the ECHR. He explained it by referring to the recent legislative reforms of the system of justice in the Republic of Poland deny him his right to a fair trial.

Facts of the case (2) LM relied on Commission’s reasoned proposal of 20 December 2017 (problems of Polish judicial system). The lack of an independent and legitimate constitutional review The threats to the independence of the ordinary judiciary — and, finally, invites the Council to determine that there is a clear risk of a serious breach by the Republic of Poland of the values referred to in Article 2 TEU and to address to that Member State the necessary recommendations in that regard Grounds: The Minister for Justice is now the Public Prosecutor, he is entitled to play an active role in prosecutions, he has a disciplinary role in respect of presidents of courts Supreme Court of Poland «is affected by compulsory retirement and future appointments, new composition is dominated by political appointees The integrity and effectiveness of the Trybunał Konstytucyjny (Constitutional Court of Po;and) have been greatly interfered with, so there is no guarantee that laws in Poland will comply with the Polish Constitution

Questions of Irish court for a preliminary ruling Does the court obliged to find other grounds that the individual would be exposed to the risk or the Commission’s decision, that the rule of law generally is bridged is enough (Irish court asked about circumstances in which the executing judicial authority may refrain from giving effect to EAW)? Is the national court, as executing judicial authority (Irish court), is obliged to ask the issuing judicial authority (Polish courts) for any further necessary information that could enable the national court discount the existence of the risk to an unfair trial. What guarantees as to fair trial would be required.

First question There are two main principles which are “cornerstone” of judicial cooperation Mutual trust - each Member State shares with all the other Member States a set of common values on which the European Union is founded and these values have to be recognized, and therefore the EU law that implements them has to be respected. Mutual recognition - Member States recognize legal actions of other Member States (including EAW). These two principles leads to the notion that execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly. Also it means that we have a presumption that there is no real risk of infringement of an individuals right in issuing Member State

Answer to the first question Court said that executing judicial authority (Irish court) is required to make an analyze whether there is a real risk that the individual concerned will suffer a breach of that fundamental right. Court is required to make a two-steps test where 1) a person concerned asked for this 2) Member State has been the subject of a reasoned proposal adopted by the Commission (like Poland) 3) executing judicial authority possesses material showing that there are systemic deficiencies at the level of Member State’s judiciary. By the first step, , the executing judicial authority must assess on the basis of material that is objective, reliable, specific and properly updated concerning the operation of the system of justice in the issuing Member State. Information in a reasoned proposal recently addressed by the Commission to the Council is particularly relevant for the purposes of that assessment. By the second step, court assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that the person will run that risk. Thus, by the first, step we analyze whether there are some serious problems with judiciary system of MS in general. By the second step, we have to find a link between those problems and real risk of infringement.

The requirements of independence Without these there is no fair trial The court exercises its functions wholly autonomously (no hierarchical constraint or subordinated to any other body; no orders or instructions from any source whatsoever) Guarantees against removal from office Their receipt of a level of remuneration commensurate with the importance of the functions that they carry out (in simple words, decent salary) Objectivity and the absence of any interest in the outcome of the proceedings and strict application of the rule of law Composition of the body and the appointment Length of service and grounds for abstention from voting Dismissals of judges should be determined by express legislative provisions

The second question Judicial authority must assess, in the light of the specific concerns expressed by the individual concerned and any information provided by him, whether there are substantial grounds for believing that he will run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant. The executing judicial authority must request from the issuing judicial authority any supplementary information that it considers necessary for assessing whether there is such a risk.

Additional information It is for the European Council to determine a breach in the issuing Member State of the principles set out in Article 2 TEU, including the principle of the rule of law, with a view to application of the European arrest warrant mechanism being suspended in respect of that Member State. As long as such a decision has not been adopted by the European Council, executing judicial authority may refrain to give effect to a European arrest warrant only in exceptional circumstances where that authority finds, after carrying out a specific and precise assessment of the particular case, that there are substantial grounds for believing that the person run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial.

Conclusion We understand the notion of European arrest warrant Features of European arrest warrant The circumstances in which the executing judicial authority may, on the basis of Article 1(3) of Framework Decision 2002/584, refrain from giving effect to European arrest warrant, in particular, infringement of right to a fair trial Two-steps analyze whether there is a real risk that the individual concerned will suffer a breach of his fundamental right What information the executing court should take into consideration (a reasoned proposal recently addressed by the Commission to the Council (material that is objective, reliable, specific and properly updated), decision of the Council, information provided by the individual, his personal situation, supplementary information from issuing judicial authority,)

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