Establishing Mutual Trust in the Application of the European Arrest Warrant - Essay Example

? Establishing Mutual Trust in the Application of the European Arrest Warrant Establishing Mutual Trust in the Application of the European Arrest Warrant With the creation of an Area of Freedom, Security and Justice (AFSJ), the Framework Decision (FD) on the European Arrest Warrant (EAW) indicated growing endeavor by EU Member States (MS) to establish closer cooperation across the territory. As EU Member States seek closer cooperation, mutual trust and confidence appears to determine the effectiveness of the EAW. In the Case of Radu, Case C-396/11, the CJEU emphasized that FD 2002/584 (EAW) seeks to establish effective system for the surrender of requested persons by accelerating cooperation via high level of confidence between MS. The current paper discusses whether the application of the EAW has been successful in establishing mutual trust between Member States in cross border cases involving serious crimes, including acts of terrorism. An important aspect of criminal law in the European Union is the principle of mutual recognition, a principle that has been given effect in the Treaties by Articles 82 (1). Mutual recognition assumes that EU Member States meet undefined standards of human rights as set out in the European Convention for the Protection of Human rights and Fundamental Rights (ECHR).1 It is therefore, expected that human rights violations will and should not occur within Member States of the EU. However, at recent developments, this assumption seems to have opened heated debates and to a certain extent, triggered legal interpretations in light of the growing discontent about mutual trust. The application of mutual recognition has been problematic for Member States with regard to the European Arrest Warrant. “The European Arrest Warrant (EUW) refers to a judicial decision issues by Member States to the surrender or arrest by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”.2 EAW is unique because it differs from the traditional extradition procedures. First, the EAW derives its authority from a judicial sources and its speed of execution is an important feature. Secondly, the EAW abolishes double criminality for various offenses, especially where the state is legally obligated to surrender a requested individual in circumstances where the executing state does not have relevant legal provisions.3 However, the consensus is that the EAW has prompted more challenges than any other law in the EU provoking concerns about insufficiency of guarantees for fair trial, the issue of double criminality and the basis for state punishment.4 It is important to examine the principle of proportionality and the principle of division of powers in an attempt to determine whether the application of the EAW has been successful in establishing Member States trust, particularly on cross border cases. The principle of proportionality examines the question of whether competent judicial authorities can ensure sufficient and impartial controls over proportionality of EAWs decisions through cooperation. On the other hand, the principle of division of powers examines how criminal justice authorities can be expected to handle serious crimes within their respective jurisdictions and the justification for an operational EAW system that if divorced from political influence. This is especially important considering the EAW has been facing challenges including questions about the variations in judicial traditions and heterogeneity of institutional settings across the Member States. In particular, the EAW has revealed deep-seated limitations and misinterpretations regarding the principle of separation of powers and the principles of proportionality. The divergence characteristics demonstrated by the EAW across the Member States could a source of legal failure despite growing formal compliance. With regard to International fight against terrorism, individual sanctions are one effective way of fighting terrorism.56 The evolving nature of terrorism makes terrorism an international concern and a key problem for the EU.7 8 9 Furthermore, terrorism represents one of the challenges facing the EU.10 First, confidence regarding correct application of the EAW is a major concern given the growing criticisms, particularly11 on the systematic issuing of EAWs for the surrender of persons sought for crimes considered not serious enough to justify execution of the relevant warrants. There are arguments that the application of EAW is a dual problem regarding proportionality and separation of powers.12 The proportionality problem has attracted heightened attention in recent years particularly about the compatibility between EAW and the proportionality test. The main issue within the proportionality problem is the use of EAWs in crimes that are deemed lesser in severity by certain Member States. This is a question related to how countries filter EAW cases given the gravity or consequences of crimes. Carrera et al. says, “It could risk undermining the principle of mutual respect which underpins Part 1 of the Extradition Act. Insofar as it is requiring our courts to question or review the appropriateness of the sentence passed by a foreign court…”13 For instance, concerns about disproportionate application by EU members have surfaced in Romania and Poland regarding the mutual evaluation system. Similar problems have also been reported in the UK Council. Accordingly, Carrera et al suggests, “several aspects should be considered before issuing the EAW including the seriousness of the offense, the length of the sentence, the existence of an alternative approach that would be less onerous for both the person sought and the executing authority and a cost/benefit analysis of the execution of the EAW.14 These remarks illustrate the growing concerns about disproportionate application of the EAW by criminal justice authorities in the Member States. Mutual trust is a critical aspect regarding partner rules and the correct application of such rules. In particular, decisions taken by one authority is a particular state, must be accepted as such in another state within the EU framework. This is particularly problematic because a comparable authority may not exist or it may not have the competence to make such decisions. The major question therefore, remains to be how can Member States of the EU give each other mutual trust under such circumstances? More importantly, implementation of the principle of mutual recognition requires significant level of trust across the member states based on their shared commitment to principles of law. This includes consideration of human rights, democratic principles and freedom. Further, common standards, especially regarding fair trial, interpretation and legal defense must be established to facilitate application of EAWs. It is therefore imperative that the failure to develop an effective framework for the establishment of such legal mechanisms has led to diminishing mutual trust among Member States. Another important issue in determining whether the EAW has been successful in establishing mutual trust between EU Member States in serious crimes is the issue of separation of powers. For instance, the case of Julian Assange of Wiki leaks and efforts by the UK and Swedish governments to trigger the EAWs highlighted major flaws in the law. Assange challenged Swedish EAW before UK’s Supreme Court on the basis that the public prosecutor who issued the EAW was not a judicial authority because of impartiality considerations. If Assange’s case is seen as a test, it appears that the problem with the EAW is a problem of mutual recognition and by extension a problem of mutual trust and separation of powers. The principle of separation of powers is an important element in governance because it is legally unacceptable to have an authority prosecute, judge and serve as the jury at the same time. This is particularly important given that executive authorities are generally prohibited from getting involved in direct criminal justice activities. With its background, it is very clear that one major problem with the EAW is its implementation across Members States. More importantly, this is a question of mutual trust among the EU members and the relative legitimacy of each state’s claim based on the constitutional promise made to its people. There is a challenge in the allocation of trust in EU Member State’s criminal justice systems, particularly considering that the design of justice systems across the EU are constructed to operate in distrust of the various authorities and actors within such systems. The case of Mr. Radu in the Court of Justice of the European Union (CJEU) proved this argument. The CJEU delivered its judgment on the applicability of the EAW decision framework in the Radu case based on considerations of human rights principles as outlined in the EU.15Radu a Romanian national has been issued with EAWs by the German judiciary for acts of robbery. Radu did not surrender, but he triggered Article 6 of the European Convention of Human Rights (ECHR) and Articles 47 and 48 of the Charter of Fundamental Right of the European Union, allegedly because he had not been summoned and he had not been given an opportunity to hire a defense lawyer.16 From this perspective, Redu’s case highlighted three main issues regarding the EAW. First, is the interpretation of the FDEAW based on the EU Charter and secondly, the liberty deprivation in the execution of EAW. The third fundamental issue concerns whether execution of EAW could be upheld given violations of human rights. In its ruling, the CJEU reiterated that the EAW envisioned simpler extradition based on the principles of mutual recognition.17 In the ruling, the issue of mutual trust was emphasized. On the issue of Redu’s right to security and liberty based on the arrest process, the Court referred the case to the defense rights. A critical analysis of the ruling shows that the CJEU omitted the issue of presumption of innocence, interference, right to liberty, proportionality, and right to fair trial. It appears that the Redy case had given the Court the opportunity to give light on the interpretation of the principle of proportionality as envisaged in the EU criminal law. A critical analysis of the concept of mutual recognition and its application in criminal justice shows that it is a well understood principle. However, the problem with the EAW is that mutual recognition appears to have developed a new meaning within the context of the EU. On one hand, all criminal proceedings appear to have an extension of the principle of mutual recognition. This is particularly significant given that civil and criminal matters within the EU jurisprudence appear to rely on mutual recognition as the pillar for judicial cooperation. One problematic area is the lack of a harmonized law in the EU for addressing cases of serious crimes including terrorism.18 For instance, there is no single EU immigration system, common Criminal or Civil Code or universal procedure for asylum and refugee status. Preliminary investigations show that emphasis has been placed on developing cooperation systems between authorities in member states to compensate for abolition of border controls. Accordingly, a major challenge within this context is how national legal systems could be designed to interact in the areas of justice, security and freedom.19 Member States have declined unification of law, perhaps contributing to the problem under discussion. From the onset, the concept of mutual trust is a key pillar for cooperativity, which is presumed by Member States of the EU. However, cooperative systems insofar have privileged the interests of the state resulting into extensions of the powers of each state.20 While the EAW decision framework symbolizes the application of the principle of mutual recognition, trust in European criminal law remains a major challenge. In particular, there is an enormous challenge in accommodating the EU law abolition regarding prohibition to surrender individuals requested within national constitutional dispensations.21 This particular challenge has been met by national courts, which have attempted to interpret national laws based on the EAW decision framework.22 This is especially critical because there are provisions within the decision framework to shield nationals, under certain circumstances, from being surrendered. Another challenge is the issue of executing authorities to refuse to execute EAW based on allegations of incompatibility between the decision framework and principles of fundamental human rights. Such a choice would indicate contradictions in the Framework Decision. The European Union Court of Justice (EUCJ) does not view synchronization of national criminal law as a prerequisite for the application of the principle of mutual recognition or even the specific functioning of EAW. Nevertheless, the EUCJ believes that Member States have mutual trust on each other besides recognizing application of criminal justice systems with divergent effects. The issue of mutual trust has been the cornerstone of cooperation of EU Member States. However, a critical analysis suggests that it is not possible to achieve cooperation among Member States in the absence of trust. To attest to this notion, it is important to analyze rulings delivered by the CJEU using the principle of mutual recognition. Generally, mutual trust reflects the belief that Member States have in each other’s legal systems and procedures. The principle of mutual recognition emanates from the belief in such systems. From this matrix, it is clear how the issue of mutual trust became a central issue within the field of justice, security and freedom.23 Imperatively, mutual trust has emerged as a critical element if cooperation is to be achieved with the EU Member States. However, it should also be highlighted that trust among EU Member States cannot be achieved without harmonization. On one hand, there is conflict between mutual trust and the level of harmonization in the Member States.24 First, mutual trust should be seen as a tool to be applied in areas where Member States are reluctant to have harmonized rules or for the achievement of specific goals pursuant to EU objectives. However, it is very clear that a minimum level of a harmonized approached is required to cover areas such as recognition standards, security requirements and protection of fundamental human rights. These are main areas that call for increased cooperation not only in criminal matters but also in legislative matters such as developing migration law.25 The case of Walsenburg illustrates the application of the principle of non-discrimination of citizens of the EU to the EAW.26 In the case, Walsenburg and his wife lived and worked in the Netherlands as German nationals with an insurance coverage. Mr. Walsenburg was arrested in the Netherlands pursuant to EAWs issued by Germany’s public prosecutors for allegedly importing marijuana to Germany. Mr. Walsenburg requested to serve his sentence in the Netherlands and refused to surrender to the Germany authorities citing Dutch law implementing Article 4 (6) of the Framework Decision, and which gives competent authorities the power to refuse executing EAW in particular grounds. The major question in this case was the compatibility of the Dutch legal provisions with the European law pursuant to EAW. This is especially important because the surrender of Dutch nationals is by design sought in national law, for purposes of executing custodial sentence imposed by final judgment.27 However, in case the person under such circumstances is not a Dutch national, the Court must verify possession of residence permit of indefinite duration.28 One of the critical questions raised by the national court is “whether the national law implementing the Framework Decision falls within the material scope of the EC Treaty…and the compatibility of the national law with principles of non-discrimination on grounds of nationality provided in Article 12 EC”.29 The ECJ ruled that Mr. Walsenburg had the right to invoke Article 12 EC against the Dutch law implementing the Framework Decision.30 With regard to compatibility of Dutch law, the Court observed that Framework Decision introduces the principle of mutual recognition as the essential rule, and thus Member State have the right to limit circumstances for the surrender of requested person.31 Indeed, legal analysts agree that the law is clear about the obligation of Member States and requires relevant authorities to act within the EU law. For instance, EU citizens are entitled to the rights and freedoms described in the general principles of the EU law. More importantly, in exercise of their rights, EU citizens must not experience discrimination because of nationality.32 Conclusion Cross border law enforcement remains critical for the progress and development of the EU, especially in cases involving serious crimes. However, the existing EU law fails to give national judicial authorities a harmonized scope and procedure for request for surrender of persons suspected to have been involved in serious crimes. This is principally imperative considering that the grounds for non-execution of the EAWs, as it concerns national judicial authorities, provide a lot of space for discretion application. Currently, it is very clear that MS have shown low levels of confidence and trust to each other. A critical analysis of the status of the FD shows that the future of the EAW will depend primarily on mutual trust among Member States in law enforcement. To achieve this, MS must focus on harmonization based on the principle of mutual recognition as the central pillar of EU judicial cooperation. References A Corsei, and B. Rocsin and M. Truscan, ‘The European Arrest Warrant: An expression of the mutual trust principle’ Web. Accessed 7 April 2013. B Saul, Terrorism (Oxford University Press, 2012). C Eckes, EU Counter-Terrorism Policies and Fundamental Rights: The case of Individual Sanctions (Oxford University Press, 2009). C Murphy, EU Counter-Terrorism Law: Pre-emption and the Rule of Law (Hart, 2012). Case C-123/08, Dominic Wolzenburg, Judgment of the Court of Justice of the European Union (Grand Chamber) of 6 October 2009 [2009] ECR 1-9621 Case C-396/11 Ciprian Vasile Radu [2013] judgment of 29 January 2013, ECR-0000. D Chalmers and G Davies and G Monti, European Union Law: cases and materials (2nd Cambridge University Press, Cambridge 2010). E Brouwer, ‘Mutual trust and the Dublin Regulation: Protection of fundamental right in the EU and the burden of proof’ (January 2013) 9 1 Utrecht Law Review H Duffy, The ‘War on Terror’ and the Framework of International Law, (Cambridge University Press, 2007). M O’Neill, The Evolving EU Counter-Terrorism Legal Framework (Routledge, 2011). O Bures, EU Counter-Terrorism Policy (Ashgate Publishing, 2011). S Carrera and E Guild and N Hernanz, ‘Europe’s most wanted? Recalibrating trust in the European arrest warrant system’ CEPS Paper in Liberty and Security, no. 55 (March 2013). Web accessed 7 April 2013. T Marguery, EU citizenship and European Arrest Warrant: the Same Rights for all? Utrecht Journal of International and European Law 28/73 84. V Mitsilegas, ‘The limits of mutual trust in Europe’s area of freedom, security and justice: from automatic inter-state cooperation to the slow emergence of the individual’ (2012) 31, 1 Yearbook of European Law 319. Read More