An executing judicial authority cannot, in principle, refuse to execute a European arrest warrant on the basis of the lack of jurisdiction of the court called upon to try the requested person in the issuing Member State, the Court of Justice of the European Union ruled on Tuesday 31 January (case C-158/21). However, it does not exclude certain exceptional cases.
After the illegal referendum on Catalan self-determination was held in October 2017, European arrest warrants (EAWs) were issued for several Catalan separatist leaders who had left Spain, including Lluís Puig i Gordi and the three MEPs Carles Puigdemont, Clara Ponsatí and Toni Comín.
In the context of criminal proceedings against seven Catalan political leaders, the Spanish Supreme Court is challenging the decision of the Belgian courts to refuse to execute the EAW issued against Mr Puig i Gordi on the grounds that the latter’s rights of defence may be violated, as the Spanish judicial authority that issued the warrant was not competent to try the person sought.
According to the Court of Justice of the EU, in order to ensure uniform application of Framework Decision 2002/584 establishing the European Arrest Warrant, a judicial authority cannot refuse to execute an EAW on the basis of a ground for non-execution which derives solely from the law of the executing country. Furthermore, a judicial authority may not verify whether an EAW has been issued by a judicial authority with jurisdiction for that purpose under the law of the issuing Member State and refuse to execute it when it considers that this is not the case.
On the other hand, the Court notes, where the requested person believes that his or her surrender to the country issuing the EAW will expose him or her to an infringement of his or her fundamental right to a fair trial, the executing authority must assess the merits of this allegation according to a two-step examination procedure established by European case-law.
The authority must consider in particular: (1) whether there is a real risk of an infringement of the right to a fair trial due to systemic failures in the functioning of the justice system of the issuing country or failures in the judicial protection of an objectively identifiable group of persons to which the person concerned belongs, and, if so; (2) whether, in a concrete and precise manner, having regard to the personal circumstances of the person sought, the nature of the offence and the factual context, there are substantial and well-founded grounds for believing that that person would not be entitled to a fair trial if surrendered to that Member State.
A refusal of enforcement on the basis of a lack of jurisdiction of the court called upon to try the requested person should remain exceptional and can only be made if the executing judicial authority concludes that there are systemic deficiencies in the issuing Member State and that that court clearly lacks jurisdiction.
Under the obligation of sincere cooperation between Member States, such a refusal to execute the EAW will have to be preceded by a prior request for additional information made to the authority issuing the warrant, in accordance with the framework decision.
Lastly, the Court rules that it is possible for Spain to issue several successive EAWs for a requested person with a view to obtaining his or her surrender after the execution of a first EAW concerning that person has been refused.
See the Court’s judgment (in French): https://aeur.eu/f/551 (Original version in French by Mathieu Bion)