Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
With regard to the European Arrest Warrant (EAW) for purposes of conducting a criminal prosecution (not for EAW executing a sentence), the complaint of a violation of the rights to a fair trial - on the ground that the requested person was not heard in the issuing Member State, as a refusal ground was rejected in favour of the principle of mutual trust and recognition.
Mr Radu, a Romanian national had four European Arrest Warrants issued by the German authorities for the purpose of conducting criminal prosecution on the charges of robbery. The defendant did not consent to his surrender. The Romanian court decided to execute three of the four arrest warrants for the defendant. The reason for not executing the fourth arrest warrant was that the defendant was on trial in Romania for the same act on which the warrant was based. It deferred that the surrender of the defendant would be pending on the conclusion of the ongoing trial in Romania.
At a hearing in 2011 the defendant opposed the warrants issued against him. According to the evidence submitted to the Court, Mr Radu argues that the EAWs were issued by the issuing judicial authorities without him having being heard beforehand, in breach of Articles 47 and 48 of the Charter and of Article 6 of the European Convention of Human Rights (ECHR).
Further, the defendant pointed out that at the time the Framework Decision was adopted, neither the fundamental rights laid down in the ECHR nor those set out in the Charter had been specifically incorporated into the founding treaties of the European Union. Following Article 6 TEU, the provisions of both the Charter and of the ECHR became provisions of primary European Union law and the Framework Decision should henceforth be interpreted and applied in accordance with the Charter and the ECHR. Judicial authorities must thus guarantee that the rights provided for in the Charter and the ECHR would be respected in the issuing Member State. If that were not the case, the authorities would be justified in refusing the to execute the EAW, even if that ground for non-execution is not explicitly provided for by the Framework Decision.
The preliminary reference from Curte de Apel Constanţa raised a series of questions. The Court in particular addressed the question if the judicial authority can refuse to execute a EAW issued for the purpose of conducting a criminal prosecution on the ground that the issuing judicial authorities did not hear the requested person before that arrest warrant was issued.
The Court said that the Member States must in principle execute an EAW. Only in the cases stipulated in the Framework Decision, the Member States have to (Art. 3) or can chose to (Art. 4 and 4a) disregard this obligation. Not among these exceptions is an infringement of the right to be heard by the authorities issuing an EAW for the purpose of conducting a criminal prosecution.
Further, the Court states that contrary to Mr Radu´s arguements, the observance of Article 47 and 48 Charter does not require to refuse to execute a EAW for the purpose of conducting a criminal prosecution on the ground that the person was not heard by the issuing authority before the EAW was issued. In any event, it is ensured that the right to be heard will be observed in the executing Member State in such a way as not to compromise the effectiveness of the EAW system.
The Court did not carry out any detailed assessment of the requirements under the rights to a fair trial and liberty enshrined in the Charter and ECHR but focused soleley on the question whether the execution of the warrant could be refused on the ground that the issuing judicial authorities did not hear the requested person before the arrest warrant was issued.
To this end, the Opinion of AG Sharpston demonstrates the tension between mutual trust and the respect of fundamental rights. In particular, it adresses that:
“The record of the Member States in complying with their human rights obligations may be commendable, it is also not pristine. There can be no assumption that, simply because the transfer of the requested person is requested by another Member State, that person’s human rights will automatically be guaranteed on his arrival there. There can, however, be a presumption of compliance which is rebuttable only on the clearest possible evidence. Such evidence must be specific; propositions of a general nature, however well supported, will not suffice.”
In this opinion, AG Sharpston also noted that the decision on the warrant did not affect the obligation to respect fundamental rights and fundamental principles. Accordingly, although not an explicit refusing ground in the Framework Decision, it is implicit that those rights must be taken into account in founding a decision to not execute a warrant. Therefore, according to AG Sharpston, a Member State may refuse to execute a warrant only in "exceptional cases".
For the further development of the relationship between mutual trust and fundamental rights see the cases Aranyosi and Căldăraru.
Framework Decision on the European arrest warrant 2002/584/JHA
Stefano Melloni v Ministerio Fiscal
Article 47 Right to an effective remedy and to a fair trial