Meanwhile…in Europe…

Stefan Hyman, with thanks to Alex Tinsley for his insight.

Since the UK “departed” the EU legal orbit on  IP completion day (‘IPC’), jurisprudence on the EAW Framework Decision (‘FD EAW’) has continued apace in Luxembourg. The Court of Justice of the European Union (‘CJEU’) has promulgated around ten decisions concerning surrender/extradition since Alex’s round up last year. Following in his footsteps, a summary of the latest judgments and AG opinions follows.

General comment: how, and why, are these decisions relevant?

As to the status of CJEU decisions vis-à-vis FD EAW in the UK, the position is not straightforward. In Wozniak v Poland [2021] EWHC 2557 (Admin) (at §§181-183), the Divisional Court accepted that it was bound by CJEU case law delivered pre-IPC in respect of  “legacy Part 1 cases” (i.e., those commenced before IPC). However, it deliberately left open the question of whether, after IPC, the Supreme Court could depart from CJEU jurisprudence vis-à-vis FD EAW. Much turns on the construction of the European Union (Withdrawal) Act 2018 (‘EU(W)A’).

On one hand, there is an express provision in section 6(4)(a) EU(W)A which allows the Supreme Court to depart from ‘retained EU case law’ in accordance with the principles expounded in Practice Statement [1966] 1 WLR 1234 (section 6(5)). On the other, section 7A(1) and (2) EU(W)A incorporate the Agreement of the withdrawal of the UK from the EU 2019 (‘AW’) in its entirety and without more. Article 62(1)(b) AW preserves the effect of FD EAW (p. 32) of which a conforming interpretation with Union law (including CJEU case law) made pre-IPC is mandatory (Article 4(4) AW at p. 4). There are various other provisions which oblige the UK to conform with EU law as if a Member State vis-à-vis  obligations “commenced” before IPC (see Article 6(1) at p. 5, Article 89(1) at p.45 and Article 127(1), (3) and (5) at p. 60). As explained in Polakowski & Others v Westminster Magistrates’ Court [2021] 1 WLR 2521, Regulation 57(1) of The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 incorporates the saving provision in Article 62(1)(b) WA into domestic law. At some points, these competing arguments require resolution. However, all courts are not ‘bound by any principles laid down, or decisions made’ by the CJEU after IPC but ‘may have regard to anything done on or after…so far as it is relevant to any matter before [them]’ (section 6(2)).

The position is far clearer in respect of those cases which the EU-UK Trade and Cooperation Agreement 2020 (‘TCA’) underpins. The TCA is not retained EU law under the EU(W)A: it creates new EU law obligations amongst the EU Member States from the date of its entry into force, which coincided with IPC, thus there is not and cannot be any ‘retained EU case-law’ relating to the TCA. It is an international agreement, approached in light of the Vienna Convention on the Law of Treaties 1969, but with the particularity that under section 29(1) of the European Union (Future Relationship) Act 2020, UK law has effect with such modifications as are required to implement the TCA. Thus, whatever TCA obligations mean, they have real bite. This matters, because, although the CJEU’s rulings bind only EU Member States in respect of EU law obligations created by TCA, as a matter of international comity, UK courts clearly will have regard to them when interpreting a near identical TCA provision.

Moreover, the case law developed over the twenty years in respect of FD EAW is not stripped away; the courts do not start with a blank slate. This is because the TCA surrender provisions (Articles 596-632) are inherited from, and often substantively identical to, corresponding parts of FD EAW. Thus, although the two are distinct bodies of law born of very different teleological contexts, CJEU judgments on FD EAW provisions (like some of those in this post) offer insight into how the CJEU would interpret similar TCA provisions. This may, in turn, if only as a matter of persuasiveness and comity, may impact on our how our common law develops to interpret “new’ Part 1 cases.

Clearly, then, in relation to both “legacy” and “new” cases, the emerging CJEU judgments remain relevant, but now there is real “wiggle room” for UK courts to take a different view. The extent to which CJEU case-law will be followed (in “legacy cases”) or mirrored (in “new cases”) will depend on the nature of the questions referred and the substance of the corresponding decision. Some areas of CJEU case-law which are informed in part by Schengen principles, such as ne bis in idem, were somewhat overlooked even before Brexit, and it would be surprising if now became their time to shine in the UK. Other lines of authority, such as (say) questions of fair trial rights which rely on the case law developed by the European Court of Human Rights (‘ECtHR’), appear more likely to have continuing relevance.

In all areas, a key difference remains important: the UK is no longer part of the so-called Area of Freedom, Security and Justice (‘AFSJ’) overlapping to a large extent with the Schengen area. The Schengen area spans some twenty-six countries which have removed border controls and in which freedom of movement is prized. This demands a robust tool to ensure security and prevent impunity. It is this concern which underpins the regular CJEU mantra of refusal being the exception to execution (and one which must be interpreted strictly); high levels of mutual trust and confidence resulting in almost unassailable presumptions of compliance with human rights obligations; and a mere endorsement to a European arrest warrant, irrespective of its correctness, serving as the basis for surrender. In the UK, this placed a strain on the EA’s interpretation, not least in respect of section 20 vis-à-vis trials in absence and the entitlement to a retrial. It remains to be seen – particularly in “new cases” – whether the same acrobatics (or contortions) will be performed now that the UK is no longer part of the ‘system’ that demanded them.

With those “opening thoughts” in mind, let’s turn to the cases.

Review of recent judgments

Double Jeopardy

Last week, the CJEU handed down a landmark decision, HF v Generalstaatsanwaltschaft München (C-435/22 PPU), in which the Grand Chamber extended the principle of ne bis in idem (which is akin to double jeopardy in English law, but see Alex’s article on the differences) within the ASFJ. A German court asked whether Article 50 of the Charter of Fundamental Rights of the European Union (‘CFR’) and Article 54 of the Convention implementing the Schengen Agreement (‘CISA’) prevented the extradition of a third-country national from Germany to the US where he had been previously convicted by final judgment in a different EU Member State (Slovenia) of the same acts as the US sought him.

The CJEU explained that, as a matter of Union (and thus national) law, the EU-US extradition Agreement applied even where Member States had concluded a bespoke extradition agreement with a third country. In the present  case, the Germany-USA Extradition Treaty did not contain an express term which prohibited extradition where a requested person had been convicted/acquitted by final judgment of the same acts in a different country other than the Contracting Parties. Nevertheless, the Grand Chamber considered that Article 54 CISA and Article 50 CFR prohibited extradition since the final judgment in Slovenia merited recognition throughout the EU. HF is significant because it constructs the ASFJ as a tangible, consistent entity in which, once inside, people (whether EU/EEA citizens or not) can move freely confident of the same legal rights and guarantees in all Member States. It also moves the EU a step towards the mutual recognition of refusal of surrender/extradition on some grounds.

On the topic of ne bis in idem, AG Szpunar gave an opinion in MR v Generalstaatsanwaltschaft Bamberg (C-365/21) in which he proposed that declarations that EU Member States made under Article 55(1)(b) CISA in relation to the circumstance(s) in which a Member State would not be bound by such principles can no longer be enforced in EU law. In simple terms, the fundamental right enshrined in Article 50 CFR overrides the declarations made almost thirty-five years ago and renders them redundant. In giving his reasoning, the AG held that ‘[the ASFJ] has come a long way since the adoption of the CISA, with the gradual development of the principles of mutual trust and recognition, and the entry into force of [the CFR]’ (§55).

Judicial independence

Earlier this year, in X (C-562/21 PPU) and Y (C-563/21 PPU), the Grand Chamber considered the latest referrals concerning judicial independence (or the lack thereof) in Poland. We are familiar with the Grand Chamber’s previous judgments in LM (C-216/18 PPU) and L (C-354/20 PPU) and P (C-412/20 PPU), the latter of which was handed down just a few weeks before IPC.

In X, Y, the CJEU held that an executing judicial authority (i.e., High Court in the Republic of Ireland), in receipt of evidence of systemic or generalised deficiencies about the independence of the judiciary within an issuing Member State in regard to how judges are appointed (e.g., Poland) may only refuse surrender, (i) where wanted to serve a custodial sentence: if, in the particular circumstances of the case, there are substantial grounds for believing that, having regard to information that a requested person provides concerning the composition of the panel of judges or anything else relevant to its independence and impartiality, there has been a breach of his or her right to a fair trial before an independent and impartial tribunal previously established by law (i.e., contrary to Article 6(1) ECHR); however (ii), where sought for purposes of prosecution: an executing judicial authority must conclude that, based on the information that a requested person provides relating to his or her personal situation, the nature of the offences for which he or she is sought, the context in which the EAWs were issued and/or any other relevant circumstances of how judges will be appointment to hear his or her case, there is a real risk of an Article 6 breach.

The dispositive part of the CJEU’s decision is (arguably) cleaner and clearer than L, P. However, the Grand Chamber still resisted calls to reverse the evidential burden so that an issuing judicial authority must adduce evidence in each case concerning the appointment of judges who heard or will hear a particular case. In EU law the position is in lockstep within the retained domestic case-law in Wozniak in which the Divisional Court held that a requested person must adduce evidence of a specific “threat” to his/her case before an extradition judge at Westminster Magistrates’ Court must seek further information under Article 15(2) FD EAW.

In W O, J L (C-480/21), which X, Y overtook, the CJEU arrived at the same conclusion. At least for now, the position is settled in EU law. The challenge for lawyers in this jurisdiction will be to demonstrate why our courts should not follow the CJEU’s approach.

Conviction in absence

Of late, section 20 EA has received much attention in England & Wales with two pending applications for permission to appeal before the Supreme Court, namely Bertino v Italy (SC/2022/0103) and Merticariu v Romania (SC/2022/0127). CJEU case law on the equivalent provision under FD EAW (Article 4a) has been less frenetic. There are two cases of note.

First, in IR (C-569/20), a court in Bulgaria asked whether it could try a person in his absence where he had not been informed of the contents of an indictment preferred against him. Specifically, it asked about the obligations which Articles 8(4) and 9 of Directive (EU) 2016/343 (‘the Directive’) imposed on the Member State and whether an executing judicial authority would be bound to refuse surrender under Article 4a(1) FD EAW if an EAW were issued. The CJEU refused to answer the second question because it was hypothetical. The person had not been tried; thus, no EAW had been issued and there was no referral from an executing Member State.

However, regarding the first, the Fourth Chamber held that Article 8 of Directive 2016/343 does not preclude a Member State from trying a person in his absence. Nevertheless, when he or she returns to the Member State, its courts must afford the person a fresh examination of the merits of the case in his or her presence which they may only where it concludes ‘from precise and objective indicia that he or she received sufficient information about to know that he or she was going to be brought to trial and, by deliberate acts or with the intention of evading justice, prevented the authorities from informing him or her officially of that trial’ (§59). The CJEU underscored that the Directive confers rights on individuals on which they can rely before national courts. However, as the CJEU held in TR (C-416/20 PPU), where a requested person has been tried in his absence, the rights in the Directive cannot preclude an executing judicial authority from verifying whether and which circumstance(s) in Article 4a(1) FD EAW apply to his or her case. Neither TR nor IR is likely to be the last word on the interaction between Articles 8 and 9 of Directive 2016/343 and Article 4a FD EAW.

The second case is AG Ćapeta Opinion in LU (C-514/21) and PH (C-515-21). This revisits the “trilogy” of Tadas Tupikas (C-270/17 PPU), Sławomir Andrzej Zdziaszek (C-271/17 PPU) and Samet Ardic (C-571/17 PPU) which concern, for purposes of FD EAW, which hearings are trials resulting in the decision and thus confer the rights enshrined in Article 6 ECHR.

In both cases, a requested person had been convicted of an offence at a trial at which he was present and received a suspended sentence order. Subsequently, each was convicted of another offence which activated suspension; however, in neither case was the requested person present at the trigger offence trial or sentence hearing. Nor did each respective EAW seek his surrender in respect of that conduct. The referral asked whether Article 4a(1) FD EAW attaches to court hearings in respect of the trigger offence if the commission of this activated a suspended sentence order.

The AG held that it did. Interestingly, he expanded the definition of a trial resulting in the decision for purposes of Article 4a(1) FD EAW (and presumably Article 601(i) TCA) as ‘any step of the proceedings which has the decisive influence on the decision on the deprivation of a person’s liberty. That is so because the person in question must be given the opportunity to influence the final decision concerning his or her liberty’ (§141).

The AG reminded that, as a matter of EU law, where a requested person is not tried in his presence and one of the circumstances in Article 4a(1) FD EAW does not apply to his or her case, an executing judicial authority may still surrender him or her to the issuing Member State so long as it is satisfied that his or her surrender would not violate Article 6 ECHR/Article 47 CFR. This is because, in EU law, there is an obligation to surrender where one of the circumstances in Article 4a(1) FD EAW applies (Stefano Melloni v Ministerio Fiscal (C-399/11)), but a discretion (not least since Article 4a is an optional bar) where it does not (Paweł Dworzecki (C-108/16 PPU). In UK law, section 20 places a burden of proof which must be discharged to the criminal standard (section 206(1) and (2)) on the issuing judicial authority to prove one of three circumstances, none of which directly correlate to Article 4a FD EAW. Further, there is no general, overriding discretion which can be exercised. Thus, if a case does not fit into one of three “boxes”, a person cannot be extradited.

The AG’s proposed response curtails the right of the executing judicial authority to actively adjudicate on whether a requested person received a fair trial in the issuing Member State. This is precluded except in cases of ‘systemic deficiencies in the judicial system in the issuing Member State’. If the CJEU were to approve this formulation, then it would create another “category” of cases in which persons requested by a particular Member State could seek to gather evidence to ebb away at the presumption of compliance with the ECHR.

Making representations at consent hearings

In HM (C-428 21 PPU) and TZ (C-429/21 PPU) (which is available in all EU languages apart from English), the CJEU held that the second subparagraph of Article 47 CFR, which encapsulates  Article 6 ECHR in EU law (and applying Article 6 principles to extradition procedures to which they do not otherwise generally apply under settled ECtHR case-law), obliged an executing judicial authority to ensure that a surrendered person be permitted to make representations at a hearing convened before it to consider whether it should consent to his/her prosecution for further offences in accordance with Articles 27(3)(g) and 28(3) FD EAW (the equivalents of which are Articles 625(3)(g) and Article 626(3) TCA).

Given the strict time-limits in which an EAW must be executed, of which there is a long-stop of 90 days (Article 17 FD EAW), the CJEU was not too prescriptive about how Member States should give effect to that right. For instance, it suggested that the requested person could participate over video-link or make written representations.

In this jurisdiction (section 54-57 EA), the Westminster Magistrates’ Court convenes a public hearing in each case. Prior to its commencement, under sections 54(4) and 56(4) EA, the UK court must notify the requested person of the request for consent and furnish him or her with an opportunity to make representations. The CJEU’s decision would not appear to change our practice.

Double criminality

In KL (C-168/21) (which is not available in English) the CJEU considered a French referral concerning double/dual criminality under Article 2(4) FD EAW. The Third Chamber held that it created a conduct-based test in which the executing judicial authority should focus on the facts as described in the EAW as opposed to an exacting transposition exercise. Nevertheless, where at least part of the conduct in the EAW is criminal in the executing Member State, the executing judicial authority must execute it; it cannot refuse surrender (under Article 4(1) FD EAW) merely because other elements of conduct do not meet the double criminality test.

Time limits for surrender and deferral

In an Opinion given on 27 October 2022 (CJ (C-492/22 PPU)), AG Kokott held that a public prosecutor who is not a judicial authority in EU law (yes, that again) cannot postpone a requested person’s surrender and continue his or her remand in custody. Under Articles 12 and 24(1) FD EAW, these functions are properly reserved to the executing judicial authority. In CJ, the public prosecutor postponed the requested person’s surrender to Poland since he was subject to a live domestic charge in The Netherlands.

Interestingly, the AG suggested that the sequencing of which we are accustomed in this jurisdiction (finalise domestic criminal proceedings and then consider surrender request) may not be correct. First, unlike sections 8A, 22, 36B EA, surrender proceedings should not (necessarily) be halted due to a live criminal charge in the issuing Member State. Second, the executing judicial authority should decide whether it should “prefer” proceedings within its jurisdiction or those for which the EAW was issued. Under our law, a UK Court is obliged to defer or suspend extradition proceedings. In reality, there is no effective mechanism through which our courts can consider whether (say) UK criminal proceedings should be deferred and, in the interim, a person temporarily transferred to the issuing Member State.

In C, CD (C-804/21 PPU), the CJEU considered a referral from the Supreme Court in Finland requesting an interpretation of the meaning and scope of Article 23 FD EAW. This relates to the requirement to surrender a requested person within ten days of final decision to the issuing Member State (sub-article 2), the force majeure clause (‘circumstances beyond the control of any of the Member States’) (sub-article 3) and an obligation to release a requested person from custody where he or she has not been so surrendered (sub-article 5). Notably, whilst Parliament transposed the time-limits into UK law, it did not incorporate the concept of force majeure, nor an obligation to release from custody.

The CJEU held that force majeure must be interpreted strictly and the issuing of legal actions (in this case claims for international protection against the issuing Member State) does not fall within that concept. Therefore, the time-limits for surrender are not suspended where such applications are made. The Second Chamber opined that an application for humanitarian protection is not a ground to refuse to execute an EAW, the grounds being exhaustively adumbrated in Articles 3, 4 and 4a FD EAW. This is rather curious since, even amongst the Member States, there is a limited scope for seeking an asylum from one Member State in another. This, at the very least, would seem to oblige the requested Member State to consider the application. The CJEU held that an executing judicial authority (and not a competent authority, in our case this would be the NCA) is the body with discretion to extend the time for surrender (indeed, CJ built on this line of authority). Where a requested person has not been surrendered in time, there is an obligation under Article 23(5) FD EAW to release him or her from custody. This begs two questions. First, whether those who make asylum applications should be kept in detention whilst they are processed? Second, should our courts demand a more exacting approach to applications for “relief” where a requested person has not been removed in time and an extension of time has not been granted (see sections 35(5), 36(8) and 47(4) EA and R (Mechlinski) v Westminster Magistrates’ Court [2015] EWHC 2043 (Admin).

Who decides where a court is competent to issue an EAW and can EAWs be reissued?

If Assange is the cause célèbre for UK extradition proceedings, then Carles Puigdemont is the one for Belgium. In Ministerio Fiscal and Ors v Various (C-158/21), the Supreme Court in Spain sought a preliminary ruling on various questions after the execution of EAWs which a Spanish Court had issued to procure the surrender of various “Catalan separatists” had been refused. AG La Tour guided that (i) an executing judicial authority cannot refuse to execute an EAW except on a ground of refusal set out exhaustively in FD EAW; (ii) however, it can be “inferred” from the case law that an executing judicial authority may refuse surrender based on human/fundamental rights considerations per Article 1(3) FD EAW; (iii) an executing judicial authority lacks competence to assess whether an issuing judicial authority is “competent” for the purposes of Article 6(1) FD EAW; therefore (iv), the logical extension of this proposition is, as per the references concerning German and Bulgarian public prosecutors, it is only the CJEU which can decide whether an authority is judicial; (v) the principles in Aranyosi (C-404/15) and Căldăraru (C-659/19 PPU)can be applied to circumstances in which a requested person argues that there is a real risk of a violation of Article 6 if he or she is surrender to the issuing Member State. (vi) there is no principle in EU law which prevents an issuing judicial authority from re-issuing an EAW which is addressed to the same executing Member State in relation to the same individual where surrender has previously been refused.

The status of the Withdrawal agreement/TCA

Almost a year ago, in SN, SD (C-479/21 PPU), the Grand Chamber ruled on a reference from the Irish Supreme Court concerning the status in Ireland of the EU’s “post-Brexit” law enforcement and security cooperation arrangements with the UK. At the time, the case near paralysed surrender between the UK and Ireland for the best part of four months.

The applicants, whom were in prison in Ireland following their arrest on an EAW either pre- or post-IPC, sought relief from the High Court through an application for habeas corpus made under Article 40(4) of the Irish Constitution. Both argued that the EU had concluded the law enforcement provisions of the Agreement on the withdrawal of the UK from the EU/EURATOM 2019 (‘WA’) and Part III TCA (law enforcement and security cooperation – which includes the title on surrender) on an insufficient legal basis to bind Ireland to the measures. They reasoned that Ireland (like the UK, whilst a Member State) negotiated a general opt out to ASFJ which meant that its Government’s express opt-in was required before it could be bound to any ASFJ measure.

Unsurprisingly, the CJEU disagreed with applicants’ argument (this is not least since the Government of Ireland advanced its support for the WA and Part III TCA before the Luxembourg Court). Both the WA, which was concluded under Article 50(2) TEU, and the TCA, agreed under Article 217 TFEU, had a sufficient legal basis to encompass law enforcement and judicial cooperation in respect of all Member States. Indeed, the Grand Chamber noted that both the WA and TCA were approved by all Member States. Whilst the referral certainly set the cat amongst the pigeons at the Criminal Courts of Justice in Dublin and Westminster Magistrates’ Court, the judgment will be most relevant to jurisprudence concerning the legal bases on which the EU can agree cooperation agreements with third countries or other institutions, agencies, or bodies.

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