The adoption of a unified surrender procedure among judicial authorities of European Union (EU) member states, based on the principle of mutual recognition and trust, has accelerated and simplified the extradition process while simultaneously limiting the ability of the executing state’s judicial authority to examine claims of potential violations of the fundamental rights of the requested person. Initially, the Court of Justice of the European Union (CJEU) adhered to a doctrinal approach, emphasising the respect for fundamental rights and freedoms by all EU member states. However, in recent years, the CJEU has shown a tendency to recognise exceptions to the principle of mutual recognition for reasons related to the protection of fundamental rights of the requested persons. Consequently, the CJEU has ruled that the presumption of mutual trust is not absolute, and as a result, the executing member state now has the opportunity to conduct an assessment regarding the institutional framework of the issuing member state concerning the protection of fundamental rights, bypassing, in exceptional cases, strict adherence to mutual trust.
The European Arrest Warrant (EAW) constitutes a judicial decision aimed at the surrender of individuals from a Member State (executing state of the EAW) to another (issuing state of the EAW), either for the purpose of prosecuting them or for the enforcement of a custodial sentence imposed on them. The cornerstone of this surrender system is the principle of mutual recognition (between the judicial authorities of the issuing and executing states of the EAW), which is closely intertwined with the highest level of trust among member states regarding the respect for fundamental rights and freedoms.
The objective of establishing a European area of freedom, security, and justice necessitated the introduction of a rapid, simplified, and effective extradition procedure for suspects or convicted individuals between the judicial authorities of the member states.
According to the Framework Decision 2002/584/JHA, Member States are obliged to execute any European Arrest Warrant (EAW) based on the principle of mutual recognition. Articles 3, 4, and 4a of the Framework Decision exhaustively enumerate the grounds for mandatory and optional non-execution of the EAW. In the Framework Decision, non-compliance with fundamental rights is not included among the exhaustively listed reasons for refusing the execution of an EAW, despite the relevant declaration in its preamble.
Given the high level of mutual trust, the respect for fundamental rights was presumed by all Member States, and therefore, the judicial authorities of the executing state of an EAW did not have the right to conduct further scrutiny on this matter. Moreover, the EU Member States are contracting parties to the European Convention on Human Rights and declare respect for fundamental rights based on Articles 6 and 7 TEU and the provisions of the Charter of Fundamental Rights. Consequently, any claim by the requested person regarding the violation of human rights by the issuing state, was considered legally unfounded and ultimately ineffective.
The Court of Justice of the European Union (CJEU), initially through its decisions, followed a doctrinal approach based on which the respect for fundamental rights and freedoms by all EU member states was presumed. Although the respect for fundamental rights constitutes the foundation of the entire Union framework, the CJEU’s adherence to mutual trust resulted in the abandonment of inherent powers of a court, in this case, the judicial authority of the executing state, to examine significant allegations of violation of the requested person’s fundamental rights. Undoubtedly, the initial shaping and interpretation of CJEU case law referred to a passive and inflexible approach, downplaying the importance of protecting fundamental rights as the primary mission of the courts (see Radu & Melloni). It is not coincidental that this stance of the CJEU has been characterised by various commentators as the era of blind trust.
Despite the initially absolute approach, in recent years, the CJEU tends to recognise exceptions to the principle of mutual recognition for reasons related to the protection of the fundamental rights of the requested persons. Consequently, the CJEU ruled that the presumption of mutual trust is not absolute, and therefore, the executing member state now has the possibility to examine a claim of a violation of fundamental rights in the issuing member state, overriding, even exceptionally, adherence to mutual trust.
In the case of P. Aranyosi and R. Caldararu, the Court of Justice of the European Union (CJEU) departed from its previous approach. Unlike previous case law, the CJEU prioritised the protection of human rights, specifically the prohibition of inhuman or degrading treatment, over the proclaimed need for effective and speedy extradition. This marked a shift in the CJEU’s doctrine, challenging the entrenched presumption of respect for fundamental rights by all EU member states. The case concerned European Arrest Warrants (EAWs) issued against P. Aranyosi and R. Caldararu by the judicial authorities of Hungary and Romania, respectively. The competent executing judicial authority in Germany sent preliminary questions to the CJEU in both cases, seeking clarification on whether it could or should refuse to execute an EAW when there is a proven violation of the fundamental right protected by Article 4 of the Charter of Fundamental Rights by the issuing member state.
Both cases were litigated together as they shared a common element of the conditions of detention to which the requested persons might be subjected if the EAWs were executed. Based on the evidence presented to the competent judicial authority of the executing state and previous judgments of the European Court of Human Rights (ECtHR) regarding Romania, it became apparent that the detention conditions in both countries fell below European standards and norms, to the extent that they constituted inhuman or degrading treatment. In this particular case, in contrast to its previous approaches, the CJEU ruled that if the competent judicial authority of the executing state has evidence indicating a real risk of inhuman or degrading treatment of detainees in the issuing member state, it must assess whether such a risk exists for the requested person in the event of EAW execution.
Essentially, for the first time, the CJEU engaged in a process of weighing and balancing the need for the effectiveness of the EAW and mutual trust on one hand, and the protection of the fundamental right to be free from inhuman or degrading treatment on the other. This marked a significant departure from its previous doctrinal approach.
The CJEU indicated that in such cases, the judicial authority of the executing member state must conduct a dual assessment. Firstly, it needs to establish, based on objective and reliable evidence, that there are systemic and generalised deficiencies that may affect the independence of the judicial system in the issuing member state. Secondly, it must determine whether there are reasonable grounds to believe that the requested person will actually face a violation of the fundamental right to a fair trial.
The CJEU, even though it followed the same approach in its subsequent decisions, nevertheless demonstrates an effort to safeguard the principle of mutual trust and the effective functioning of the EAW system, even in cases involving potential violations of Article 4 of the Charter of Fundamental Rights. In the cases of Generalstaatsanwaltschaft and Dorobantu, the CJEU points out that the possibility for a Member State to examine a possible violation of fundamental rights by another Member State is allowed only in exceptional circumstances.
The cornerstone of mutual trust in the field of judicial cooperation among Member States is the independence of the judiciary. Any violation of this, for example through interventions by the executive authority, could undermine the principle of mutual trust. The continuous violations of the principle of judicial independence and the rule of law by Poland in recent years led to the following case where executing Member State, which had before them EAW issued by Polish judicial authorities, submitted preliminary questions to the CJEU about whether they had the possibility or obligation to refuse execution on this ground. Particularly in the LM decision, Poland issued three EAWs against the requested person for the purpose of prosecution. The executing judicial authority, namely the Supreme Court of Ireland, referred a preliminary question to the CJEU, asking whether if, in a situation where the executing judicial authority has evidence indicating that the independence of the judicial authority of the issuing Member State is compromised, it must examine whether there are serious reasons to believe that the requested person would face a real risk of violation of their fundamental right to a fair trial in case of execution of the EAW. The CJEU, based on the information before it, including the European Commission’s proposal dated 20.12.2017 regarding Poland, found that the recent reforms of the judicial system in Poland violated the rule of law and the independence of the country’s judiciary, and consequently there was a risk of violating the requested person’s fundamental right to a fair trial in case of executing the EAW. Within this judgment, the CJEU ruled that the executing judicial authority of the Member State must not execute if it believes that the requested person is at risk of having their fundamental right to an independent tribunal violated and, consequently, their right to a fair trial, due to deficiencies that might affect the independence of the judiciary in the issuing Member State. The CJEU adopted the same approach in the P. Aranyosi and R. Căldăraru case, effectively extending the obligation of control by the executing Member State to cases where there is a real risk of violation of the fundamental right to a fair trial. The CJEU emphasised the heightened level of trust that Member States must show, that the criminal courts of the other Member States which will conduct the criminal case meet the requirements of effective judicial protection, including the independence and impartiality of the courts. This CJEU decision is equally significant as it extended the possibility of control and suspension of the absolute mutual trust in the fundamental right to a fair trial.
It is evident that the CJEU’s jurisprudence on these issues is still in its nascent stage, undergoing an evolutionary process. While initially the CJEU prioritised the purpose of effective and speedy surrender of individuals and mutual trust, a new trend has emerged, focusing on the effective safeguarding of certain fundamental rights of the requested persons, free from blind trust.
The CJEU’s approach represents a significant departure from previous interpretations, as it introduces a more nuanced and balanced approach, taking into account both the need for efficient extradition procedures and the protection of fundamental rights. It marks a turning point in the Court’s jurisprudence, highlighting the evolving nature of its role in shaping the legal landscape of the European Union.