Wednesday, November 14, 2018
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< view full issue: Is European justice in crisis?
Juan F. López Aguilar

​The European arrest warrant and the European area of justice

Socialist MEP

The Area of Freedom, Security and Justice (AFSJ, Chapter V of the TFEU [Treaty on the Functioning of the European Union], arts.67 to 89) establishes -constitutionalises, in EU law- the rules of mutual trust, mutual recognition of judicial decisions among the Member States, and the duty of police and judicial cooperation in the prosecution of cross-border crime in the EU (arts.82, 83, and 85 to 88 TFEU). and this entails the duty to avoid impunity for those who flee the justice of a Member State, escaping to the territory of another EU Member State.


Unidad Solidaridad


The AFSJ is the highest expression of the political and constitutional dimension of the EU since the entry into force of the Treaty of Lisbon (TL). Matters previously reserved for the sovereignty of the European Member States -fundamental rights, criminal and procedural legislation, rules and regulations of judicial cooperation- have come to conform the scope of powers of the EU. and consequently, they are subject to what is now called ordinary legislative procedure (previously "co-decisions") in which, for the first time in its history, the European Parliament (EP) becomes a legislator on an equal footing with the Council.


It is true that the blockade of the Council restrains the legislation; but without the consent of the EP no agreement (political, commercial or Strategic Partnership) or EU international treaty can enter into force; and that the EP now has the last word in the European legislative process (negotiation mandate and final vote in first or second reading).


The AFSJ is structured on binding principles. United and shared responsibility are the founding principles of the integrated management of external borders and public resources management of migratory flows and asylum defends. 


In parallel, mutual trust and recognition of legal decisions (mutual recognition) are the founding principles of judicial cooperation (essentially in criminal matters) between EU Member States.


THE EUROPEAN ARREST WARRANT REMAINS IN FORCE AND IS BINDING


We understand that the European arrest warrant ("European Detention Mandate or more commonly called the European Arrest Warrant", first introduced in 2002 and Framework Decision; and its "lisbonization" completed in 2009) is based on trust and mutual recognition between the European Member States and their systems based on common values and shared principles. Its scope and objective scope is preferably deployed on 32 criminal defined types and their scope on other adjacent types that require or advise the overcoming of the complex technique of extradition between the European Member States of a European Space of Justice in which the so-called "prevailing Copenhagen criteria" (Constitutional Rule of Law, separation of powers, representative democracy, rule of law, rights and freedoms guaranteed by an independent judiciary, protection of minorities and political pluralism), currently enshrined in Art. 2 TUE.


In this way, the European arrest warrant is a legislated European Law, entirely binding and fully in force: Framework Decision 2002/584/JHA, of 13th June 2002, (in force, I insist, since 2004, and revised and reinforced by Framework Decision 2009/299/JHA of 26th February 2009, being the Chairman of the Committee on Freedoms, Justice and Home Affairs of the EP) not only foresees but also orders European Member States to replace the strenuous requirements of extraditions for an open channel to an agile (and tendentially automatic) mechanism of inter-judicial cooperation based on the recognition by the judges required of the requirements issued by the requesting judges: its purpose is not only to avoid impunity, but to send a message of shared and mutualised trust, which discourages anyone under investigation for their alleged criminal liability from the temptation to escape to the territory of another Member State within the EU itself.


Moreover, the operative principle -without which it is void of meaning and becomes inoperative- is mutual trust: the judicial organs of the Judicial Power (JP) of each requested Member State undertake to take the valid orders from the judicial organs of the JP of the Member State applicant, without examining the merits or prejudging the final prosecution that case might merit. The mechanism, then, is not and could not consist in get to the issue of examining the quality of the JP of the requesting Member State, but rather trust in it from the presumption (mutual trust) that it is a question in any case of a Rule of Law in which there are sufficient guarantees (right to defence of the relevant evidence; contradiction and equality of arms) and jurisdictional remedies (appeal, annulment, appeal before the ECHR and the CJEU). 


In this way, any discrepancy regarding the criminal qualification advanced by the judicial organ of the requesting Member State may be substantiated (and, if necessary, corrected) according to its own regulations.


I have described many times in my essays and writings about the deterioration of the AFSJ in recent years, closely linked to the crisis of political will in Europe unleashed in the wake of the prolonged and deep Great Recession that began in 2008. As a result, the cases of mutual disinformation and lack of unity between the EU's Member States have multiplied (that is, the exact opposite of what the TL advocates and mandates), which are particularly damaging in terms of the operation of the AFSJ and its rules of configuration and functioning (Framework Decisions implemented to Regulations and Directives according to the rules of the TL).


PRIMACY TO ACTIVE, DIRECT AND AUTOMATIC COOPERATION


The collapse of the European arrest warrant (EAW) is part of the collateral damage of this lack of confidence and lack of political will and leadership in the EU. The use of clever but unsound reasoning grows, and also the (binding) jurisprudence of the CJEU, which is particularly evident in the Melloni Case, of February 26th, 2013, relevant to Spain. The deterioration of the European arrest warrant was news and object of abundant doctrinal and journalistic comments on the criminal procedure initiated in the High Court (because of the national or extraterritorial scope of the factual assumption) against those responsible for the "October events" of 2017 in connection with the Catalonian secessionist Procés, in light of the denial of judicial cooperation from other jurisdictions of other European Member States (Scotland/United Kingdom, Schleswig-Holstein/Germany, Brussels/Belgium...).


But it is not only that. There is more. The Court of Justice of the EU, which is the supreme guarantor of the respect of EU law against the laws of the member countries, was clear in its judgments about the European arrest warrant's force of obligation: thus, in the Melloni Case, the CJEU explicitly and forcefully (before a question raised in a preliminary ruling by the Spanish Constitutional Court) the primacy of their direct and automatic mandates of active cooperation between judges and judicial systems, whatever their level or jurisdictional scope. This is in turn determinant of its binding effectiveness and its uniform application, preferably over heterogeneities or differences between the different criminal and procedural systems of their respective national laws.


Some exalted voices have suggested that Spain should opt for an exaggerated reaction and dismiss them "denouncing" the European arrest warrant, and "withdraw" from it.


It would be a bizarre response that should be dismissed, without further ado: the European arrest warrant is not an international treaty that one can "denounce" (Article 94 CE) in accordance with the rules of general international law (Vienna Convention on the Law of Treaties 1969). It is European law in force that has to be complied with and applied by the European Member States (and its internal powers, whatever the territorial organization that is empowered) and be invoked and required by its legal bodies and its operatives (judges, prosecutors, lawyers, and ultimately, by the people themselves).


The Supreme Court's examining magistrate (who has become known as "Judge Llarena") has reformulated his own investigative activity by renouncing the European arrest warrant (withdrawing the specific requirement on ex-President Puidgemont), but that does not amount to questioning the European arrest warrant! 


One last reminder: iIt is difficult to repeat that the fugitives are not "exiled". Their crimes are not "political".


We are many of us jurists and experts in international humanitarian law, as there are many who still respect truth and rigour, who incessantly repeat the obvious: in democratic constitutional Spain there are no "political prisoners" nor are there "exiles" as there were during the Franco dictatorship precisely because they were denied their rights and freedoms that are guaranteed in the Constitution. However, above all, the testimony of the victims of the brutal repression of dictatorships and regimes without guarantees or respect for the Law, for those who have really been, or are, authentic political prisoners, persecuted and exiled.


We have to relaunch the ELSJ, as we are all "Guardians of the Treaties". This is true. However, primarily the European Commission is (by initiating a case of infringement for violation of the rules of the European order: Spain could initiate against Belgium for flagrant breach of the principles and objectives established by European law when adopting the Euroorder). Additionally the CJEU, which is a jurisdictional guarantee of primacy and direct effectiveness of European Law. and that should as soon as possible unequivocally delimit the scope and scope of its legislative nature and its binding effect on the European Member States subject to the ELSJ and the TL, that is, to the current Law.


The primordial thing, here and now, is to denounce and criticize the deterioration of the AFSJ, the European Justice Area with which the TL, which came into force in 2009, which marked a giant step in the political and constitutional dimension of a European supranational construction based on the Rule of Law and the Rule of Law (arts. 2 and 3) TUE).

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