Extradition injustice remains despite European ruling in Radu – Alex Tinsley
12 February 2013
Case C-396/11 Radu  ECR I-0000 – Read judgment
The European Court of Justice’s Grand Chamber has ruled that the Charter of Fundamental Rights does not allow refusal to execute a European Arrest Warrant (EAW) on the basis that the person was not heard by the issuing authority.
With reform of the EAW at the centre of the debate concerning the UK’s big 2014 opt-out decision, all eyes were on the Court of Justice of the EU (CJEU) when it gave judgment in this case widely seen as an opportunity for it to address some key issues in the operation of the EAW system. There is some disappointment at the outcome.
Why the long face?
For several years, charities, politicians and lawyers have been highlighting the serious flaws in the operation of the EAW, a valuable law-enforcement instrument but one which, in practice, gives rise to two big issues.
The first relates to human rights. EAWs see defendants shipped off to serve sentences despite glaring flaws in the trial process, or to face prosecution where there are real doubts about trial fairness. Throughout the EU, human rights arguments prove unsuccessful: in France, the grounds for refusing extradition do not include human rights and the Cour de cassation has insisted that they are exhaustive. The UK and many other countries have generalised human rights bars, but they are not very useful in practice.
Try resisting extradition to Lithuania arguing you may be tried unfairly, and the judge will tell you that extradition can be stopped only if you risk a ‘flagrant denial of justice’; it is presumed that Lithuania, as a signatory to the ECHR, can readily be expected to protect you against unfairness unless there are ‘reliable reports’ indicating otherwise (Janovic v Lithuania  EWHC 710 Admin at ).
The other big issue is proportionality. EAWs are issued for trivial offences, triggering costly extradition procedures in the executing country, and often with drastic human impact. Save in some extremely rare cases where extradition would deprive young children of their primary carers (see F-K v Poland  UKSC 25), the courts consider themselves bound to extradite no matter how trivial the offence as there is no proportionality check provided in law.
The Radu opportunity
The reference in Radu appeared to provide the CJEU with an opportunity to address at least some of these issues: a Romanian court, seised of a challenge to a German EAW, referred six generalised questions to the CJEU asking about its obligations under the Charter of Fundamental Rights.
A reminder: the Charter is a document with the same legal force as the EU Treaties (free movement, etc), which draws together and spells out the basic common standards which Member States – including the UK (-) – must respect when they are operating within an area governed by EU law.
The Romanian court supplied extremely limited background but appeared to ask whether a Member State executing an EAW must observe the Charter, in particular Articles 6, 47 and 48 which protect the rights to liberty and fair trials, and when these might require it to refuse extradition. It also appeared to ask whether the Charter entailed some form of proportionality assessment.
These were potentially big questions. The case was handed to the Grand Chamber, and various Member States intervened. Some suggested that human rights breaches in the issuing state could never prevent extradition; others, and the European Commission, suggested that the Charter might, on an ‘exceptional’ basis, require refusal where there was a ‘manifest’, or ‘flagrant’ breach in the issuing state. It was an issue crying out for guidance.
Advocate-General Sharpston QC answered the call in her Opinion. She confirmed that the limited grounds for refusing extradition in the EAW Framework Decision were not exhaustive: judicial authorities were ‘bound to have regard to the fundamental rights set out in the Convention and Charter’ (at ).
She went further, suggesting when those rights might require refusal of extradition: the ‘flagrant denial’ test was ‘too nebulous’ () and for Charter purposes it made more sense to look for a ‘substantially well-founded’ () risk of a breach ‘such as to fundamentally destroy the fairness of the trial’ (), which seemed a more workable test. She even added that the use of the EAW in minor offences which would not, in a purely national context, justify pre-trial detention provokes a disproportionate interference with the right to liberty ().
However, the CJEU took a narrower view. Despite the general nature of the Romanian court’s questions, the CJEU decided that the underlying issue was Germany’s failure to subpoena Radu before seeking his extradition. It found that Articles 47 and 48 of the Charter did not allow refusal of an EAW for this reason (), since (according to the CJEU) the effectiveness of the EAW depended on surprise ([40)], and the person had a chance to be heard in the executing state (-).
The CJEU did not, therefore, state as a matter of principle whether a court executing an EAW must do so having regard to the person’s Charter rights – which would have been helpful given the legislative picture in some countries – and whether it may have regard to matters in the issuing state, past or future, when deciding whether those rights are respected. Nor did it say anything about proportionality, which is surely relevant where the heavy-handed approach of extradition has been preferred to the lighter touch of first summoning the person.
The CJEU can be a helpful force and Fair Trials International will continue to encourage courts to make references for preliminary rulings (as in this Czech intervention). However, the CJEU has not yet taken opportunities to read safeguards into the EAW system and Radu puts the ball firmly back in the Member States’ court to adopt legislative reforms. The Framework Decision needs recasting with an emphasis on human rights protection and a formal proportionality check. Related laws designed to make the system work better (like the European Supervision Order, enabling a defendant extradited prematurely to be bailed back home instead of sitting on remand) should be implemented. Without these improvements, the EAW will continue needlessly to cause injustice.
Alex Tinsley is the Strategic Caseworker at Fair Trials International, a human rights charity which provides assistance to people arrested outside their own country and campaigns for fair trials according to recognised international standards.
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