Two important EAW decisions and what they mean to us

In the last two months, the Court of Justice of the European Union (‘CJEU’) has handed down two important decisions on the EAW Framework Decision (‘FD EAW’), one from Spain, Puig Gordi & Ors (C-158/21), the other from Ireland, LU (C-514/21) & PH (C-515/21). In November 2022, I looked at these cases; at that point, we only had the Advocate-General’s Opinion. We now have the final rulings in the cases, each of which merits examination.

Prior to IP Completion Day (the end of the transition period following Brexit), as I explained in a previous article, it would have been our courts’ duty to give a conforming interpretation with EU law. This is no longer the case for arrests which took place on or after 1 January 2021. The Extradition Act 2003 (‘EA’) is not retained EU law. Instead, the TCA surrender provisions (Articles 596-632) take effect as an international treaty outside the EU ecosystem. Thus, the post-IP Completion Day obligation in section 6(2) of the European Union (Withdrawal) Act 2018 (‘EUWA’) to ‘have regard to anything done [by the CJEU]…so far as it is relevant to any matter before the court’ does not bite. Therefore, I analyse the use of these Luxembourg judgments in the UK.

The Spanish case (Puig Gordi)

The Grand Chamber considered various questions arising from a referral from the Supreme Court of Spain concerning criminal proceedings against several prominent Catalan politicians, who organised the independence ‘referendum’ in October 2017. In 2019, the Supreme Court issued European arrest warrants (‘EAWs’) to procure the surrender of those living in other Member States for purposes of prosecution for offences of ‘rebellion’, ‘disobedience’ and misuse of public funds. On foot of these, three persons were brought before an executing judicial authority in Belgium. The arrests attracted significant media attention. Indeed, at the time, two were elected to, and thus members of, the European Parliament which raised separate questions of immunity and waiver under EU law.

In 2020, the executing judicial authority refused surrender since it concluded that the Supreme Court lacked jurisdiction to issue the EAW. In 2021, the Court of Appeal of Brussels dismissed the Public Prosecutor’s appeal. Clearly irked by the Belgian courts’ rebuke – and no doubt seeking to define the approach of any judicial authority called upon to execute a sibling EAW– the Supreme Court referred no fewer than seven questions. This is a rare example of both: (a) a Belgian judicial authority refusing to execute an EAW; and (b) a court in an issuing Member State referring questions to Luxembourg pre-emptively.

The CJEU’s analysis commenced with the predictable allusion to the tension between the requirement to execute an EAW – with refusal thereof constituting an exception to the rule which must be interpreted strictly – alongside the obligation to give effect to the rights enshrined in the EU Charter of Fundamental Rights (‘CFR’), including the right to a fair trial (Article 47) and defence rights (Article 48). The Grand Chamber emphasised that the only grounds on which an executing judicial authority may refuse surrender are the mandatory ones (Article 3), the optional ones (Article 4 & 4a) and in the absence of a requested guarantee (Article 5).

Although not framed as a ‘bar’ per se, the CJEU accepted that where surrender would violate Article 4 CFR (prohibition of torture – Article 3 ECHR) or Article 47 CFR (guarantee of fair trial and effective remedy – Articles 6 & 13 ECHR), under Article 1(3) FD EAW, surrender is precluded. Given the established case law on prison conditions (Dumitru-Tudor Dorobantu v Generalstaatsanwaltschaft Hamburg (C-128/18))and judicial independence (X (C-562/21 PPU) & Y (C-563/21 PPU)), this was an ‘acceptance of reality’ as opposed to a ground-breaking revelation. Indeed, the Grand Chamber was at pains to emphasise that provisions of national law must not ‘go beyond the scope of Article 1(3) FD EAW as interpreted by the Court (emphasis added). As always, the efficacy and consistency of FD EAW defines the CJEU’s approach. Thus, national courts must march alongside, but not further ahead of, Luxembourg.

Referring to its recent jurisprudence on competency (OG (C-508/18) & PI (C-82/19 PPU)), the CJEU observed that an EAW is a ‘judicial decision’ (Article 1(1)) which, accordingly, must be given by a judicial authority. It is for authorities in the Member States to decide which ‘body’ or ‘bodies’ may issue an EAW (Article 6(1)) which they must duly notify to the EU General Secretariat (Article 6(3)). For reasons of consistency and uniformity, an executing judicial authority cannot decide whether an issuing judicial authority is competent. Instead, the remedies are two-fold (the first being explicit in the judgment whilst the second implicit). First, a decision to designate a particular body within a Member State for purposes of Article 6(1) FD EAW may be subject to judicial review nationally. Second, as the frequent Dutch and Irish referrals attests, where there are doubts, a court should refer a question to Luxembourg under Article 267 TFEU.

In relation to the substantive question, the CJEU reaffirmed that the second subparagraph of Article 47 CFR may afford a ground to refuse surrender in certain circumstances. It referenced its recent case law on judicial independence in Poland (X &Y) and the Strasbourg jurisprudence on what is a tribunal constituted by law (see, in particular, Guðmundur Andri Ástráðsson v Iceland (26374/18)).  In terms of approach, it prescribed the familiar pathway, comprising a first, threshold step, followed by a second, a ‘holistic analysis’ step (see Aranyosi (C-404/15) and Căldăraru (C-659/15 PPU)).

The CJEU set the bar high. To sustain an argument, a person must first show objective, reliable, specific and properly updated evidence regarding systemic or generalised deficiencies in the issuing Member State’s justice system, or which affects ‘an objectively identifiable group of persons’ of which the requested person forms part, in light of the Strasbourg jurisprudence on a tribunal constituted by law, and which means that the person will not be afforded an effective legal remedy to challenge the jurisdiction of the trial court. If the threshold is met, then, after seeking a response from the issuing Member State, second, the executing judicial authority must evaluate, in all the circumstances, including the nature of the person’s personal situation and the offence of which he/she is accused, whether there are substantial grounds for believing that the trial court manifestly lacks jurisdiction. The first stage is particularly restrictive since it requires a person to demonstrate that there is no effective remedy in the issuing Member State, be it the ability of the trial court to entertain arguments over its own jurisdiction or the possibility of a review before another judicial authority.

Before the executing judicial authority in Belgium, reliance was placed on the UN Working Group on Arbitrary Detention (‘WGAD’)’s report into the detention of other politicians involved in the independence referendum. The CJEU came to the unsurprising conclusion that this is evidence of which the executing judicial authority was entitled to take account but, within itself, could not constitute the basis of refusal and that it was not bound by WGAD’s conclusions (not least since these related to different people). Next, the CJEU held that prior to refusing surrender, an executing judicial authority must seek supplementary information from an issuing judicial authority under Article 15(2) FD EAW. This flowed from the duty of sincere cooperation between Member States as set out in the first subparagraph of Article 4(3) TEU.

Lastly, the Grand Chamber held that, where an executing judicial authority refuses surrender, an issuing Member State is not precluded from issuing a further EAW to procure a person’s surrender for the same conduct. It noted that there is no express prohibition in FD EAW and, perhaps with a wink to Madrid, it may be necessary to re-issue an EAW where factors which prevented execution have been ‘ruled out’ or where refusal was based on an error of EU law. However, a Member State should not re-issue where the ground for refusal was the violation of the right to a fair trial. Prior to reissue, moreover, the issuing judicial authority should consider the proportionality thereof given the consequences on a person’s freedom. The issuing judicial authority should take account of the nature and gravity of the offence, the individual consequences, and the prospects of successful execution.

The Irish case (LU & PH)

The CJEU considered two referrals from the Court of Appeal (Ireland) concerning Article 4a FD EAW, the equivalent of section 20 EA. This section is of particular interest in the UK, as the UK Supreme Court has recently granted permission to appeal in two cases (Bertino (SC/2022/0103) and Merticariu (SC/2022/0127)). Listed on 29 and 30 November 2023, this will be the first time the statutory provision has travelled all the way.  

In 2005, a court in Hungary convicted LU in proceedings in which he was represented and imposed a sentence of one year’s imprisonment which it suspended for two years. In 2010, a different court in Hungary convicted LU of an offence committed during probation. LU appeared at two hearings but not the one at which the decision was given.

In 2012, LU’s case came before a higher court in Hungary. This sentenced him to five months’ imprisonment for the second offence and activated the suspended term in full (NB: the Fourth Chamber noted that it was unclear whether the court had discretion not to activate the sentence or to activate in part). LU was not summonsed before the court, but a lawyer was appointed to represent him who appeared and made representations (e.g., for clemency).

In 2012, a judicial authority in Hungary issued an EAW. For reasons unknown, the High Court in Ireland refused execution. Afterwards, LU instructed a lawyer to apply to re-open proceedings. In 2016, a Hungarian court refused the application which, in 2017, was upheld on appeal. Thereafter, in 2017, a judicial authority in Hungary issued a further EAW.

Turning to PH’s case, in 2015 a Polish court sentenced him to a term of imprisonment of one year which it suspended for five years subject to conditions. In 2017, a different court in Poland tried and convicted PH in his absence of another offence and imposed a term of imprisonment of fourteen months. In respect of the latter but not the former, PH was neither summonsed to, not represented at, the substantive criminal proceedings. Later the same year, a different Polish court activated the sentence imposed for the first offence. The Fourth Chamber noted that this court lacked discretion not to activate the sentence.

Once again, the CJEU’s analysis commenced with the familiar refrain of execution over refusal and the purpose of Article 4a FD EAW and Box D of the Annex (‘if the box is ticked you must execute it’). It held that the phrase ‘trial resulting in the decision’ includes a judicial decision which finally sentences a person for whom an EAW is issued. The test is whether that decision is decisive. On the contrary, following previous authority, namely Samet Ardic (C-571/17 PPU), a decision to activate a suspended sentence order does not constitute a trial within the meaning of Article 4a FD EAW unless it affects the determination of guilt, or its purpose or effect is to modify the nature or quantum of the sentence and the court enjoyed a margin of discretion. Thus, where a person violates an objective term of a suspended sentence order, the presumption is that the activation decision does not engage Article 4a FD EAW.

In these cases, the Fourth Chamber noted that PH and LU’s convictions in the second set of proceedings were decisive since their effect led to the activation of the sentences imposed in the first. Thus, they were a condition precedent to issue. Applying a principled approach, the CJEU held that an executing judicial authority may refuse surrender unless the issuing judicial authority has included a statement in accordance with Article 4a(1)(a)-(d) EAW FD in respect of those proceedings. Where such a statement is given, the executing judicial authority must not look behind it. This is because an executing judicial authority should not review procedural decisions taken in an issuing Member State (see Tadas Tupikas (C-270/17 PPU)). Nor may it seek a guarantee of a retrial/hearing (see Stefano Melloni v Ministerio Fiscal (C-399/11)).

Application in the UK post-Brexit

A decision in Luxembourg need not define or affect the approach in London. However, given the UK’s ‘history’ with FD EAW and the similarities between it and the TCA, it is unrealistic to consider the case law to be of no effect. This is particularly so when its rationale is rooted in Strasbourg principles as opposed to those of Union efficacy.

The approach in PH and LU should be equally applicable for section 20 EA. Thus, the cases should embolden UK courts to find that the section bites where the activation of a person’s suspended prison sentence was occasioned by a conviction for which there is no section 20 information, or it cannot be shown that he/she was present, deliberately absent or entitled to a retrial. The question of whether an activation hearing is a trial is more difficult. The CJEU presumes that a court in the issuing Member State enjoys no discretion as to nature or quantum. In PH, it held that the Polish court did not whereas the position in LU is unclear. Given the burden and standard of proof in relation to section 20 EA, a UK court’s approach is unclear. Moreover, whilst the ‘box is ticked’ has, in theory if not in practice, been the norm since Cretu v Romania [2016] 1 WLR 3344, it remains to be seen whether the approach, shrouded as it is in principles of mutual trust, will survive Brexit. Indeed, Fordham J alluded as such (albeit obiter) in Badea v Romania [2022] QB 828.

With respect to Puig Gordi, various points merit attention. The CJEU’s dictamen that executing judicial authorities cannot ‘create’ additional bars to surrender does not apply to the UK. If it were still a Member State, it is likely that the UK would be subject to enforcement proceedings since it unilaterally introduced further bars to surrender not foreseen in FD EAW (for instance, section 12A EA or 21A EA). Further, the fact that violation of the very essence of the right to a fair trial may preclude extradition is mere recognition of the status quo (see for instance Rwanda v Nteziryayo & Ors [2017] EWHC 1912 (Admin) or Popoviciu v Romania [2021] EWHC 1584 (Admin), the latter of course would, strictly speaking, represent a further shift forward not sanctioned by Luxembourg).

That an executing judicial authority may not decide whether an issuing judicial authority is competent is already reflected in domestic law (seeShirnakhy & Ors v Germany [2020] EWHC 1103 (Admin)); however, post-Brexit, where there is no possibility of referring a question to the CJEU (section 6(1)(b) EUWA), our senior courts must decide these questions for themselves, with the real prospect of divergence from EU law. Practitioners should remain cautious since, famously, the UK Supreme Court held that the Ministry of Justice in Lithuania was an issuing judicial authority for purposes of Article 6(1) FD EAW in Bucnys & Ors v Lithuania [2013] 3 WLR 1485, only for the CJEU to reach the opposite conclusion in Openbaar Ministerie v Ruslanas Kovalkovas (C-477/16 PPU). However, where Luxembourg jurisprudence develops, it is unrealistic that the UK courts will not follow a line of authority which declares a court in a Member State incompetent. This is not least for purposes of uniformity.

Perhaps the greatest difference will be between the CJEU’s guidance on reissuing EAWs. Luxembourg found no difficulty with re-issuance after (re)consideration of proportionality (i.e., whether to exercise discretion to re-issue an EAW) so long as the reason for refusal is not permanent (for instance, that fair trial rights would be breached or perhaps on account of ne bis ad idem). However, errors of law or transient conditions which give rise to refusals (perhaps because of incompliant prison conditions) should not preclude re-issuance. The UK’s ‘extraordinary’ abuse of process jurisdiction (R (USA) v Bow Street Magistrates’ Court [2007] 1 WLR 1157) derives not from FD EAW or another extradition instrument, but from the common law. In Jasvins v Latvia [2020] EWHC 602 (Admin), the High Court held that where a fresh extradition request seeks to make a collateral attack against a court’s decision to discharge a requested person on an extradition request, it offends the rule on finality enshrined in Henderson v Henderson (1843) 3 Hare 100. Thus, where a decision to re-issue an extradition request seeks to undermine a previous judicial finding or relieve the issuing judicial authority (or its representatives, the CPS Extradition Unit) from censure due to a litigation failure, this is likely to abuse a UK court’s process whereas, in EU law, it would not (and in some cases would be positively encouraged).

Stefan Hyman, 9BR Chambers

Updated on

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