Camino Mortera-Martinez / Apr 2019
The European Arrest Warrant (EAW) is meant to enable near-automatic extradition within the European Union whereby suspects are transferred from one member-state to another as if the bloc were one single jurisdiction. But a handful of recent challenges at the Luxembourg-based European Court of Justice (ECJ) have highlighted the limits of judicial co-operation in the EU and indicate a worrying growing trust gap between member-states.
The EAW breaks with the legal tradition of sovereign state control over extradition: in most cases, it mandates the rapid arrest and transfer of wanted suspects, so long as the requesting state complies with some basic conditions. There is no other multilateral extradition treaty in the world that allows for this degree of automaticity. Mutual trust in each other’s systems is key. And by giving more power to the courts than to governments, the EAW was designed to bypass political rows between countries over extradition cases. However, politics is creeping in to the issue. In recent months the ECJ has had to rule on EAW cases that involved Brexit and Poland’s rule of law issues. And soon it will probably have to consider an EAW case related to Catalan separatism.
In July 2018, the ECJ allowed an Irish court to suspend the extradition of a Polish national because of the deteriorating protection of fundamental rights in Poland. The ruling came a few months after the European Commission initiated one of its stiffest punishments –known as Article 7– against Poland for introducing legal reforms it said harmed the rule of law. The court’s ruling is by no means a blanket prohibition on surrendering people to Poland – but the decision, which was taken quickly, stirred tensions between the Polish government and the EU. Then in September 2018, the ECJ was asked to rule on whether an Irish national could be extradited to Britain to serve a sentence that would continue after Brexit. In an equally swift ruling, it said Ireland could not use the UK’s notification of Article 50 as grounds to refuse extradition, as Britain was still an EU member.
The case of fugitive Catalan separatist leader Carles Puigdemont has not reached the ECJ yet, but it is likely to raise some interesting questions when it does. Puigdemont fled Spain to Belgium after facing charges related to his role in declaring Catalan independence. He was eventually arrested in Germany under an EAW, but a German court ruled that he could be extradited for misuse of public funds, but not on the more serious charge of rebellion.
Spain has said it will contest the ruling which it argues is rewarding criminal behaviour. Puigdemont chose Belgium because he knew the laws and the politics there were likely to make it harder for Spain to extradite him. In the jargon, he was ‘forum shopping’ –moving jurisdiction to get a more favourable court judgment. The problem was he was doing it in the EU, where the EAW is supposed to prevent criminal suspects from using free movement to find safe havens. Spanish government lawyers believe the German court breached EU law because it did not treat Puigdemont as it would have treated a German citizen accused of committing the same crime in Germany. The ECJ will have to consider whether the Spanish lawyers are right. But the case, like the Article 7 and Brexit-related one, show how judicial co-operation within the EU is facing some tricky challenges.
There is no reliable EU-wide data on how many EAWs member-states issue per year and to which countries. But a recent study using evidence from Ireland and the UK indicated member-states tend to surrender more people to countries with higher standards of rule of law or better human rights records. Most of the EU’s landmark projects, from the euro to Schengen, have experienced some sort of crisis over the last ten years. Even membership of the club is now in question. So perhaps it is unsurprising that such testing times have led to an erosion of trust between member-states which has also weighed on the workings of the EAW.
There can be no meaningful reform of judicial co-operation within the EU until the Brussels institutions acknowledge this trust gap. It is crucial that the European Commission and member-states monitor the rule of law in Europe. The Commission’s attempt at keeping track of the independence, quality, and efficiency of national court systems, through the so-called EU justice scoreboard, has largely failed because many governments saw it as a way to name and shame and refused to play ball. A recent Belgian proposal for member-states to peer-review each other’s legal systems shows more promise. The EU should also improve trust between the judges, lawyers and court officials that use the system, to help them rise above any political noise. The only ones to benefit from a breakdown in the execution of the EAW would be eurosceptic parties and fugitives on the run across Europe.