Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The obligation to surrender on the basis of an European Arrest Warrant (EAW) does not cease to exist after the the time-limits stipulated in Article 17 of the Framework Decision have expired. Although these time-limits can exceed, the person concerned can only be kept in custody within the limits of Article 6 (Right to Liberty and Security) of the Charter.
A EAW was issued for the defendant on charges he incurred in the United Kingdom of murder and possession of a firearm with intent to endanger life. He was arrested in Ireland and brought before the High Court (of Irelenad) in which he did not consent to his surrender and was placed in custody awaiting a decision on his surrender. The High Court began to examine the defendants’ case due to procedural incidents, and then on the basis of claims made by the defendant that his surrender to the United Kingdom could endanger his life.
The defendant made a bail request which was denied by the High Court based on certain terms, and since those terms have not been reached the defendant remained still in custody. The defendant also submitted a request for the surrender to be rejected because the time limits stipulated for in the Framework Decision were not complied with. The referring court provided justification for the request by stating that the defendant had been held in custody since January of 2013 as it was then December of 2014.
What is the effect of a failure to observe the time limits stipulated for in Article 17 of the Council Framework Decision (stipulating precise time-limits and authorises the extension of those time-limits) in conjunction with the provisions in Article 15?
Does the failure to comply with the time limits stipulated for in Article 17 provide for rights on the part of the individual that has been held in custody pending on the decision of their surrender for an excess of those time periods?
The final decision on the execution of an EAW has to be taken, in principle within the time-limits stipulated in Article 17. However, it is not only the wording but also the context that has to be considered. Thus the obligation to execute the EAW does not cease to exist once the time-limits stipulated in the Framework Decision have expired. Accordingly, Article 15 and 17 must be interpreted as meaning that the executing judicial authority remains required to adapt a decision on the execution of the EAW after expiry of the limits.
The court ruled that a person can be held in custody for periods exceeding the limits laid down in Art 17 of the Framework Decision. Nevertheless, the decision on the execution of the EAW is not to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU and the Charter. Thus, the requested person can only be kept in custody within the limits of Article 6 Charter. In accordance, the limitation of the right to liberty needs to be provided by law, respect the essence of the right and be proportional, necessary and genuinely meet the objectives of general interest. The custody must not be excessive in the light of the character of the procedure. Further, if the execution of the EAW is not carried out with due diligence, the detention ceases to be justified.
If the judicial authority decides to bring the custody to an end, it has to attach to the provisional release any measure it deems necessary to ensure an effective surrender if adequate and to prevent absconding.
In Lanigan, the Court stated that the person cannot be detained unless the EAW procedure is, and continues to be, carried out with due diligence. Otherwise, the person must be released or an appropriate alternative to detention has to be used. In this context, the report "A Measure of Last Resort? The practice of pre-trial detention decision making in the EU" by Fair Trials provides a critical assessment about the extensive use of pre-trial detention.
Framework Decision on the European arrest warrant 2002/584/JHA