Stream repository

Poltorak, C-452/16 PPU (10 November 2016)

Keywords: meaning of ‘issuing judicial authority; ’independence of issuing judicial authority; central police service not an issuing judicial authority; separation of powers

The Court of Justice ruled that a central police service (the Swedish National Police Board) is not an ‘issuing judicial authority’. The term ‘issuing judicial authority’ is broader than only courts and tribunals and includes actors ‘participating in the administration of justice’. But the police service was an actor falling within the executive branch, and not considered as falling within that wider notion of judiciary. This was important in the light of the principle of the separation of powers (the rule of law).

Özçelik, C-453/16 PPU (10 November 2016)

Keywords: meaning of ‘arrest warrant’; national arrest warrant issued by police service and confirmed by a public prosecutor; Article 8(1)(c) of the Framework Decision

The Court of Justice ruled that it is irrelevant if a national arrest warrant has been issued by a police service if the public prosecutor’s office verifies and validates it. Doing so makes it the authority responsible for issuing the national arrest warrant. As a public prosecutor can fall within the term ‘judicial authority’ where it administers criminal justice, it is covered by the term ‘judicial authority’, and its decision is a ‘judicial decision’ under Article 8(1)(c) of the Framework Decision.

Kovalkovas, C-477/16 PPU (10 November 2016)

Keywords: meaning of ‘arrest warrant’; national arrest warrant issued by a police service and confirmed by a public prosecutor

The Court of Justice confirmed its ruling in Poltorak: organs belonging to the executive branch such as ministries could not be an ‘issuing judicial authority’. 

Radu, C-396/11 (29 January 2013)

Keywords: Right to be heard at the EAW-issuing stage; grounds for refusal to surrender person subject to EAW

This ruling is an early EAW case that is significant because it restricted the scope of the right to be heard in the context of EAW proceedings: there was no such right before the judicial authorities in the issuing Member State: there was a possibility rather for the executing judicial authority to scrutinize the EAW. In this case Mr Radu argued that the EAW should not have been issued without his being able to exercise his right to a fair trial, in breach of Articles 47 and 48 of the EU Charter of Fundamental Rights, and Article 6 of the ECHR.

The judgment is well-known for being restrictive with respect to fundamental rights not only in that context but also as a whole: the Court of Justice followed the letter of the law and concept of mutual trust in the Framework Decision strictly, in a way that did not open the door for fundamental rights concerns to serve as a grounds for refusal to surrender a person subject to an EAW under Article 1(3) of the Framework Decision. It did not consider the issue raised concerning the constitutional principle of proportionality where a breach of fundamental rights had been alleged (the right to a fair trial: presumption of innocence, right to be heard, and right to liberty). In that respect this case is now out of date, as the Aranyosi and LM judgments of 2016 and 2018 establish and develop a fundamental-rights test which means the principles of mutual trust and recognition can in specific circumstances be limited for fundamental rights reasons. It made a point of making  the distinction between EAWs issued for prosecution purposes (as in this case) and EAWs issued for sentenced persons to carry out their sentence.

Melloni, C-399/11 (26 February 2013)

Keywords: person sentenced in absentia; right to be present at trial; right to a fair trial; surrender conditional on possibility to review the judgment; higher national standards than EU standards for fundamental rights do not apply; Article 4a(1) of the EAW FD; Articles 47, 48(2), and 53 of the Charter.

The Court of Justice ruled that the executing judicial authority cannot make surrender conditional on the fulfilment of higher, additional national (fundamental rights) requirements which are not foreseen in exhaustively harmonised EU law (Framework Decision 2009/299). This was in the context of the executing authority intending to make surrender conditional on the issuing authority enabling a review where there was an in absentia sentencing of the person subject to the EAW.

Refusal on fundamental grounds (constitutionally protected) did not apply if the right had been expressly or implicitly waived. That waiver of the right to be present at trial occurs if established unequivocally, there were minimum safeguards in place, and it is not contrary to public interest. There is no violation of the right if the person was informed of the date and place of the trial, or was defended by counsel they instructed, and the person did not appear.

Aranyosi, C-404/15 (5 April 2016) 

Keywords: refusal to surrender on fundamental rights grounds; prohibition of inhuman and degrading treatment; detention conditions in the issuing Member State 

For the first time the Court of Justice ruled that a possible violation of a fundamental right – in this case the right not to be tortured or subjected to inhuman and degrading treatment as a result of poor prison detention conditions – could be an exception to the principles of mutual trust and mutual recognition. It established a two-step test to prove that there was a risk of facing such breach under Article 4 of the Charter if the person in question was surrendered, based on ‘objective, reliable, specific, and properly updated information on the detention conditions’ that (1) demonstrates the existence of systemic or generalised deficiencies; and (2) a specific and precise assessment of the conditions in which the person will be detained. 

The threshold for inhuman and degrading treatment was determined by reference to the European Court of Human Right’s jurisprudence on Article 3 ECHR., including Varga and Others v. Hungary finding that prison conditions in Hungary violated that right. To evaluate the risk, the space available to an individual, including in a multi-occupancy cell, sanitary conditions, the possibility of free movement within the prison, as well as the ‘cumulative effects of all aspects of life in detention’ had to be taken into account. The risk could not be ruled out by the mere existence of a legal remedy to challenge detention conditions. The Court of Justice developed the duty of the executing judicial authority to request additional information from the issuing Member State: if then it concluded there was a real risk of breach of that right, it must refuse to surrender the person in question.