Wednesday, November 14, 2018
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Javier A. González Vega

​The Euro-Order put to the test. Adventures and misadventures of a reasonably effective system of judicial cooperation

Professor of Public International Law. Oviedo University

Who remembers the Pinochet indictment? The one in which -then- Magistrate Baltasar Garzón Real had tried to obtain his extradition from the United Kingdom of the Chilean self-appointed senator-for-life, and was not even much of a dictator of the southern country. The procedure then followed to obtain the extradition from Britain of the unthinking military responsible for the brutal repression coeval and subsequent to the coup of September 1973 ended with a resounding failure that made a leery Spanish Government unnecessary -presided over by a José María Aznar, who still spoke Catalonian in his intimate moments- would activate the "emergency brake" inherent in any extra-procedural procedure; namely the discretionary competence of the Government to manage it in practice.


Pinochet


Twenty years later, the request submitted to the German justice by the Judge of the Criminal Chamber of the Supreme Court, Pablo Llarena Conde, in charge of the investigation of the case for rebellion open to secessionist leaders, with a view to obtaining the surrender the fugitive former president of the Generalitat de Catalonia, Carles Puigdemont i Casamajor, also ended with a resounding failure by the Criminal Chamber of the Superior Court of the Land of Schleswig-Holstein refusing to hand over those fled on charges of rebellion, prompting the subsequent withdrawal by the Spanish judge of the European Order of Detention and Delivery previously completed.


"Twenty years is nothing" goes the famous tango and it would seem that this is the case when two sound criminal procedures made before the Spanish Courts in that period of time, specified in both cases -given the presence of those investigated abroad- of the necessary judicial cooperation for its prosecution, culminate with separate and resounding failures. 


And yet, we should prevent "the wood preventing us from seeing the trees": a lush forest in which in just 15 years has established an effective system of judicial cooperation in the criminal field between the competent jurisdictional instances of the now-28 Member States in the European Union, and specified in the mechanism of the European Order of Detention and Handover; better known as "Euro-order".


THE EURO-ORDER, OVERCOMING THE VENERABLE EXTRADITION


In the principle was extradition, a venerable mechanism anchored in relations between States governed by international law, according to which the Judge of a State could seek through their Government that the Government of a foreign State hand over a fugitive of justice, submitted the surrender in any case to the appropriate judicial control in the State in which they might be found. The peculiarity of this mechanism was that the necessary intervention of the governments offered them -one and the other- the possibility of interfering in the procedure and of aborting it on the basis of mere political considerations or of opportunity. 


It was therefore necessary for the Government to refuse to transmit the request of the Judge, and it might also be that the Government of the foreign State rejected it or, even after admitting it in principle, decided not to cooperate with the requesting State.


Something like this was what happened in 1999, when after the British court decision in favour of the hand-over to Spain of "Senator" Pinochet for prosecution in impossible -ridiculous- terms, the Minister of Justice of the Cabinet of Prime Minister Anthony (Tony) Blair, John W. (Jack) Straw, agreed to release him "for health reasons" to allow him to leave the country, making it impossible for him to be handed over to our Courts. All in all, political discretion constituted -and constitutes, given that extradition continues to rule outside the European Union- a severe limitation to the operation of an international judicial cooperation that is properly understood.


All the more merit to the "Euro-order" because it establishes an agile mechanism in which the necessary diplomatic inter-course of extradition is replaced by direct communication between the judicial authorities, the requesting party and the place of which is the fugitive, discarding outright political whims that from the governments of the respective States could interfere or make the delivery procedure fail. On the other hand, the numbers attest to their indisputable effectiveness: the Euro-order has meant the duplication of requests for cooperation between the Member States, 80% ending in the actual hand-over of those called for and, in general, within a short space of time.


THE DECISION OF THE GERMAN COURT, A FORESEEABLE CONSEQUENCE OF THE SYSTEM


The reason for this success derives from the fact that thanks to this mechanism, the principle of mutual recognition of judicial decisions stands as a new paradigm in criminal judicial cooperation in Europe; or more precisely, within the scope in the European Union. 


This step forward could not be obtained without limitations, proper and logical, of a sensitive area such as the exercise of criminal jurisdiction by States.


In fact, the logical consequence of a full application of this principle would have been the plain and simple automatic recognition of the resolutions issued by the jurisdictional bodies of the Member States, the equivalence of solutions accepted among all of them and making control unnecessary -or being merely a formality- of those.


However, within the European Union -in line with the principle of "progressiveness" that characterizes it (the "gradualism" inherent in its construction, the "small steps" of which R. Schuman spoke in his memorable Declaration)- the convenience of articulating a limited mechanism in terms of its operation, although open to its gradual expansion and reform, was assumed. Nothing else contemplates the current European regulations on the subject and internal developments dictated for compliance; a different question is the greater or lesser rigour with which the latter face the transposition of that one and certainly the German case has not been revealed -the facts have shown so- exeplary with regard to the latter.


Bearing in mind the above, we should understood that the decision of the German Court -undoubtedly controversial and arguable- results in at least one foreseeable consequence of the system -certainly improvable- currently in existence: well equipped to deal with the cases of arrest and hand-over in the case of most common crimes -almost standardized- and not being subject to the principle of "double criminalization" (in one or the other ordering system), but poorly stocked when criminal types of exceptional complexity -even because of their political connotations- are involved.


MANY WEAKNESSES AFFLICT THE SYSTEM


Based on the foregoing, it is debatable whether or not the German jurisdiction should address the substance of the crime submitted to its knowledge, summary or extensive; we can also question whether the similes accepted by the Court in their examination were fortuitous or not. More doubtful is that we can question the capacity of a lower judicial body to hear a case of undoubted political calibre, if it is not for the purpose of breaking the spatial rules in matters of judicial competence provided for in the regulatory framework currently in force; that said, we have to agreed that there will always be time to take note of the supposed lack of unity and include the question in a future and desirable reform of the existing mechanism.


Certainly, the mutual trust between States -and their respective jurisdictions- an idea on which the aforementioned principle of mutual recognition rests, is difficult to establish on firm grounds, when it was preceded by a history of quarrels and disagreements between the parties involved. European states, that the indisputable progress observed does not allow to ignore. Moreover, the weaknesses that still afflict this idea have not needed the "Catalonian crisis" to emerge. Even in more peaceful moments, disparate opinions among European jurisdictions had the opportunity to manifest themselves; we recall as a mere example -there are more- that the relationship between Spain and Belgium -now also affected by the future of "Procès" and its legal Chapter beyond our borders- was already afflicted in the mid-90s by the disagreements purpose of the statute of the members of the terrorist group ETA resident there and called for by our justice system, leading to then a brief crisis between both States.


Even then -when the possible existence of the Euro-order did not even appear- the differences were derived -not from political interference- but from the diversity of judicial criteria. 


Therefore, we believe that, pretending that these disagreements -or others that may arise- should lead to dismantling a laboriously created system, still under construction and successively and eagerly outlined by significant decisions of the Court of Justice in the European Union seems preposterous. Amen in an unwise way of transmitting to the public at large the necessary message about the convenience of an integration project, the European -leaving Euro-order on the margin- is, nowadays more if possible, absolutely imperious.

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