Issues arising from mutual recognition of judicial decisions in Europe

Transcription

1 Issues arising from mutual recognition of judicial decisions in Europe Introduction Mutual Recognition The creation of an area of free movement, largely without border controls, in the European Union since the 1990s created inequality of arms between organised criminals, operating freely across borders, and prosecutors and judges for whom international cooperation remained cumbersome. EU police and prosecutors needed new, simpler ways to work together. The question was: how to achieve enhance cooperation, without assimilating the Member States justice systems? The solution was the concept of mutual recognition, according to which judicial decisions from one EU state would be recognised and acted upon in other EU states, without delay or red tape. The underlying assumption was that, although EU countries have their own laws and procedures, they all comply with the same essential standards key among them, the European Convention on Human Rights and can be trusted to respect these. (1) The European Arrest Warrant To consider the issues arising from mutual recognition of judicial decisions, one has to start with the flagship mutual recognition measure, the European Arrest Warrant ( EAW ), which has received the most attention from the courts. The EAW regime provides only limited grounds for surrender (and, with some exceptions, this is reflected in national laws), the assumption being that there is a high level of mutual confidence between Member States. Judges dealing with EAWs across Europe have faithfully adhered to this principle, looking beyond structural differences in their justice systems in a spirit of international cooperation (A). The mutual recognition concept has however left courts executing EAWs powerless to refuse disproportionate EAWs (B), and the underlying foundations of the concept, the assumption of equivalent protection of human rights in all Member States, have revealed themselves to be somewhat shaky (C). (A) Cosmopolitanism The courts have sought to ensure that differences between criminal justice systems do not pose an obstacle to the operation of the EAW. For instance, the British courts have interpreted the term judicial authority in the Extradition Act 2003 as including a public prosecutor, despite the words not 1

2 bearing that broad meaning in plain English (Assange [2012] UKSC 22), ensuring that the UK can cooperate with countries where prosecutors, and not judges, have the function of issuing EAWs. Similarly, English and Irish courts have developed a flexible approach to the question whether a person is being prosecuted, an essential condition of an EAW issued in order to secure the return of a person to face trial. The point at which a prosecution is considered to start differs according to the country. In England and Wales, for example, this would be when a person has been charged. There is no precise equivalent in countries with an inquisitorial tradition (which includes most EU Member States), where in many cases a judge is in charge of a preliminary investigation before the case proceeds to trial. In dealing with these issues the courts have sought to keep proceedings swift and uncomplicated, so they will normally assume that if an EAW states that a person is sought for prosecution, the case has indeed reached that stage. In exceptional cases, they will look at external evidence to assess whether this is actually the case, but at this point the cosmopolitan approach comes into play again: the courts will have regard to the different procedures in other countries, and order extradition if, broadly speaking, a decision has been taken to proceed to trial. Thus the Irish courts have executed EAWs issued by Sweden, where the person must be present in order to be charged, on the basis that there was a clear intention to prosecute (Olsson [2011] IESC 1). This approach avoids imposing local approaches to criminal procedure on other countries and facilitates cooperation. (B) Proportionality The effectiveness of the EAW system has been undermined by the use of EAWs in respect of minor offences theft of a piglet, for instance which trigger costly extradition procedures in the executing state, and often entail a disproportionate human impact. This raises no issue in terms of recognition of the judicial decision: no one doubts that the accusation is valid and should be recognised. The issue arises more from the mutual recognition legislative approach: the preoccupation with ensuring effective international cooperation, expressed by the scarceness of refusal grounds, means courts have no power to refuse EAWs whose execution would lead to disproportionate consequences. Courts in the UK have begun to weed out the most grossly disproportionate cases, for instance where extradition would deprive young children of their only parent for the sake of a trivial offence committed a long time ago (see F-K [2012] UKSC 25). However, these decisions also reflect a spirit of international cooperation: the courts assume a very high public interest in honouring extradition 2

3 agreements, and intervene only in the most extreme cases on the basis that it is for the issuing country to decide whether a particular offence merits prosecution. The judicial approach is in large part due to the legal constraints, and it is the legislative approach which falls to be criticised. (C) Human Rights Mutual recognition relies on Member States having mutual trust in each other s compliance with common international obligations, primarily the European Convention on Human Rights ( ECHR ). National courts have accepted this theory and generally not entertained the idea that extradition might lead to a breach of a person s human rights. Each country has its own approach. Some national laws do not recognise human rights as an independent refusal ground (setting aside provisions on convictions in absentia which are the subject of specific regulation). In 2010 FTI asked Allen & Overy to survey national laws implementing the EAW, and we found that many of the countries did not have any explicit human rights refusal ground (Czech Republic, Hungary, Spain). Of course, requested persons can raise constitutional arguments against extradition, but human rights are essentially excluded from routine consideration. In France, the legislation includes a discrimination clause protecting those facing persecution, but not a generalised human rights protection, and the Cour de Cassation has refused, for instance, challenges to EAWs alleging evidence in the prosecutions was obtained by torture (Cass. crim ; ; ). It has, however, recognised some human rights limitations on the execution of EAWs, annulling orders executing EAWs where the requested persons alleged a risk of onward refoulement to Turkey and Iran and the judicial authority had failed to obtain undertakings from the issuing state (Cass. Crim ; ). The picture is thus one of in extremis intervention: human rights can only become an issue where there is a risk of something very, very serious going wrong. This is reflected in the flagrancy concept: if you allege that you risk being tried unfairly in another Member State, you can only succeed if you show a risk of a flagrant denial of justice, in line with the European Court of Human Rights s Soering case-law. But demonstrating the existence of any sort of risk will be difficult, as other Member States are presumed capable of protecting individuals from fair trials violations in absence of overwhelming evidence (the approach derived from the case-law concerning the transfer of asylum-seekers around the European Union (KRS; M.S.S. (ECtHR); Case C-411/10 N.S. (CJEU)). These presumptions sit awkwardly with the real picture of human rights compliance by EU Member States. For instance, FTI s 2012 report Defence Rights in the EU reveals that between 2007 and 3

4 2012, Bulgaria was held to have violated Article 5 of the European Convention on Human Rights (the right to liberty) at the pre-trial stage 37 times, while Greece was held to be in violation of Article 6 (the right to a fair trial) in criminal cases 93 times (Fair Trials International, 2012). Being signatory to the ECHR does not mean countries comply with it in practice. As a result, many EAW cases have given rise to grave human rights concerns. For example, Garry Mann was convicted and sentenced to two years imprisonment for involvement in a riot during the Euro 2004 football championship, following a trial described by a British police officer who attended as a farce, and by a British as so unfair as to be incompatible with [the] right to a fair trial. He was allowed to return to the UK but an EAW was later issued. The High Court allowed Mr Mann s extradition. The serious injustice that befell him was due to many causes, but it seems unlikely that the human rights protection recognised at the time under English law would have protected him. It is important to point out that idea of presumptions and a hands-off approach to human rights is not necessarily new. In the United States, when an extradition request is received, a court gives a preliminary decision before referring it to the executive for a final decision. The court will follow the so-called rule of non-inquiry, which precludes it from considering risks of prospective human rights violations a doctrine based in part on the assumption that, if there is an extradition agreement in place, it indicates confidence in the requesting country s system. The big difference is that in the US, the decision then goes to the Secretary of State, who has discretion to take into account human rights arguments, and whose decision is judicially reviewable. The EAW scheme removes the state from the whole process, but also narrows the judge s powers to the minimum. (2) Mutual recognition and detention Issues in the mutual recognition of judicial decisions have often arisen from detention. In line with the approaches described above, challenges on these grounds have had limited success. On the one hand, the cosmopolitan approach has played a hand. For example, in Italy, legislation implementing the EAW prevents execution of an EAW where the requesting country s laws do not place a maximum time limit on pre-trial detention. Faced with an EAW from Germany, where no such limit would apply but where detention would be reviewed periodically and with increasing intensity, the Corte di Cassazione took the view that the law should be broadly interpreted so as also to cover the German system, ensuring continuing cooperation between the two countries (Sezioni Unite, Ramoci ). In so doing, the court was relying on the Court of Justice of the EU s Pupino doctrine, discussed later. 4

5 The main issue is, however, the question of material conditions of detention. The survey of practitioners in Justice s 2012 report Achieving Best Practice in EAW Cases revealed that detention conditions in the issuing state was one of the most common causes of concern. Conditions have, however, rarely given rise to refusal of an EAW. Lukiškės remand prison, in Lithuania, has been the subject of some attention. In 2008, the European Court of Human Rights found conditions in that prison had systematically violated Article 3 (Savenkovas v. Lithuania), noting that the applicant s cell provided just 1.16m of floor space per person, with an open toilet meaning inmates had to relieve themselves without privacy. The English High Court, considering these conditions (in Janovic [2011] EWHC 710 (Admin)) found that although they were troubling it was not inevitable that there would be a breach of Article 3 ECHR, in part because the Lukiškės conditions did not compare with the (even worse) condition in another ECtHR case against Russia. In a recent decision (Campbell [2013] NIQB 19), the High Court of Northern Ireland considered the conditions in Lukiškės, but differed from the English court on the basis of the same evidence, concluding that there were substantial grounds to believe the requested person faced a real risk of being subject to contrary to Article 3 ECHR. The difference in approach shows the difficulty of the issue raised by refusing extradition on the grounds of prospective ill-treatment, which if it became routine would risk frustrating certain Member States efforts to bring offenders to justice. However, it can be noted that courts in the UK and France have readily rejected extraditions to Russia also a signatory to the ECHR and thus a state presumed to comply with that convention in absence of contrary proof on the grounds of prospective human rights violations. There is clearly a greater faith in EU Member States, with membership of the Union differentiating them from mere members of the Council of Europe. (3) The input of the CJEU The CJEU has undoubtedly played a part, albeit a limited one, in ironing out the issues involved in recognising judicial decisions. It has, on the one hand contributed indirectly to the cosmopolitan approach by its Pupino doctrine, encouraging Member States to read their legislations in such a way as to achieve the objectives of framework decision (the Pupino principle was a key pillar of the reasoning in the Ramoci case discussed above). On the other, it has allowed only limited scope for Member States to apply fundamental rights protections in accordance with their constitutions: in Case C-168/13 Jeremy F., it held that, in the absence of specific regulation in the text of the EAW, Member States could provide for a judicial decision against a decision to consent to a prosecution not specified in the EAW, but only within the confines of the overall time limits set out in the framework decision. In Case C-399/11 Melloni, it held that Member States could not apply 5

6 constitutional rules on the protection of those convicted in absentia which differed from those in the EAW Framework Decision, as this would impede the effectiveness of the instrument. This approach could cause serious disappointment. For instance, German courts are able to apply a proportionality test in the execution of EAWs (see, for example, Prosecutor v. C, Oberlandesgericht Stuttgart), an approach widely endorsed as a useful safeguard. Given that proportionality is to some extent addressed in the text of the framework decision by the use of a minimum sentence threshold, there are real fears that the freedom to apply such a test might be curtailed in the name of the effectiveness of the EAW if the question were referred to the CJEU. In any case, it appears relatively clear that the CJEU will not be quick to address the major issues faced by defence lawyers in dealing with EAWs (indeed, in Case C-396/11 Radu, the CJEU declined to tackle some of the human rights issues discussed here, as proposed by Advocate General Sharpston in her Opinion). (4) The Roadmap In the absence of judicial solutions to the issues arising in the mutual recognition system, initiative rests with policy-makers. With the most recent mutual recognition measure, the proposed European Investigation Order, the legislator appears to have learned some lessons, including a proportionality test in the draft text of the instrument. Meanwhile, the EU has belatedly began acting to raise standards in criminal justice within the EU via the Roadmap. Indeed, the EU has recognised that mutual recognition must be based on genuine trust, not blind faith. The Lisbon Treaty created a new power for the EU to legislate, to the extent necessary to facilitate mutual recognition, to adopt minimum rules on the rights of individuals in criminal procedure (Article 82(2)). Under this power, the EU has started to pass a series of Directives, each protecting a key aspect of the right to a fair. However, the construction of a real basis for mutual trust remains a long way off. As yet, only two of the Directives envisaged by the Roadmap have been passed (the first on the right to interpretation and translation, the second on access to information), and the third Directive (on access to a lawyer) is still under negotiation, with some Member States resisting a strong measure. Other promised measures have not been published at all. It is to be hoped that the CJEU will play a role in enforcing these standards. Unlike the EAW case-law, the effect of robust rulings on human rights issues would not have the effect of undermining the effectiveness of cross-border cooperation, as in the EAW context, but would instead give EU law and, in particular, the Charter of Fundamental Rights real teeth in the new field of criminal procedure. There is, accordingly, not necessarily cause for anxiety based on the existing case-law, 6

7 and FTI will be encouraging lawyers to seek the CJEU s guidance on the Charter (as at a recent ERA workshop in Edinburgh on 4 June 2013). The Commission also has a major role to play. With the possibility of infringement actions, Member States will be more driven to comply with the roadmap measures. The Member States have a long, hard task ahead in implementing these legal safeguards effectively, so they give meaningful protection in practice. Ultimately, if they fail to do so and the Commission exercises its powers, the CJEU could find them in violation of their obligations. Courts asked to extradite people to such countries might, in turn, lack the trust needed to apply the principle of mutual recognition. Conclusion The issues raised in the recognition of judicial decisions are essentially the legislator s own making: a model was chosen (without the effective participation of the European Parliament, which proposed some sensible safeguards but was ignored by the Council at the time the EAW was adopted) which prioritised cooperation and this has been more or less entirely subscribed to by the courts. The defence must keep looking for ways to infer human rights safeguards into these predominantly prosecution-friendly instruments, and the legislator should ensure effective implementation of the existing Roadmap and consider further useful legislation to create better conditions for mutual trust. Alex Tinsley Fair Trials International alex.tinsley@fairtrials.net 3 June