According to the Advocate General of the Court of Justice of the EU, a judicial authority cannot refuse to execute a European Arrest Warrant (EAW) on the basis of the risk of violation of the right to a fair trial of the person sought, if the existence of systemic or generalised failings in the judicial system of the issuing Member State is not demonstrated, in particular by means of objective, reliable, precise and duly updated elements.
Nor can a refusal to execute be based on the allegation that the issuing court is not competent to issue that warrant and to try the person claimed, the Advocate General added on 14 July in his opinion in Case C-168/21, criticising the Belgian courts’ final decision of 2021 not to execute an arrest warrant issued by the Spanish judiciary against several Catalan leaders, including Lluís Puig Gordi, linked to the illegal referendum in Catalonia on 1 October 2017.
The Belgian Court of Appeal based this refusal on the existence of a risk of violation of the right to be tried by a court established by law, based on the assessment that there is no express legal basis for the jurisdiction of the Tribunal Supremo (Supreme Court) to try Mr Puig Gordi.
It stated that the risk of violation of the presumption of innocence should also be taken very seriously and considered that its refusal to execute would guide its future decisions concerning other defendants.
The Spanish Supreme Court asked the Court of Justice of the EU “whether an executing judicial authority may refuse to execute an EAW on the basis of a ground for non-execution not contained in the Framework Decision (on EAW 2002/584)”.
In his opinion, the Advocate General proposes that the Court reply that the Framework Decision precludes an executing judicial authority from refusing to execute an EAW on the basis of a ground for non-execution which is provided for in its national law but which is not set out in the Framework Decision.
While the decision does not preclude a national provision allowing an executing judicial authority to refuse an EAW if it has substantial grounds for believing that its execution would adversely affect the fundamental rights of the person concerned, this provision must be applied in accordance with the case law of the Court, which lays down the strict conditions under which such a refusal may take place.
“An executing judicial authority cannot therefore rely on such a provision to refuse to execute an EAW in a mandatory and automatic manner in the event of an alleged violation of the fundamental rights of the person concerned”, the Court said.
And unlike the right to be free from inhuman or degrading treatment, protected by Article 4 of the Charter of Fundamental Rights, which is an absolute right, the fundamental right to a fair trial is not absolute and may be subject to limitations, the Advocate General also stresses.
The Framework Decision on the EAW also does not allow an executing judicial authority to control whether an issuing judicial authority is competent under the law of the issuing Member State to issue an EAW.
“Allowing this review would run counter to the principle of procedural autonomy - under which Member States may designate, according to their national law, the judicial authority with jurisdiction to issue an EAW - and the principle of mutual recognition, the ‘cornerstone’ of judicial cooperation in criminal matters.”
Finally, the Framework Decision does not prevent an issuing judicial authority from issuing a new EAW against the same person and to the same judicial authority.
Link to the conclusions (in French): https://aeur.eu/f/2mw (Original version in French by Solenn Paulic)