The judgment of the European Court of Justice (ECJ) released this Tuesday answers each of the preliminary questions raised by the Spanish judge Pablo Llarena after the refusal of Belgian justice to execute a European Arrest Warrant (EAW) against exiled Catalan minister Lluís Puig, and relate to all the exiled Catalan pro-independence leaders and the warrants which Spain issued for their extradition. The text, 37 pages long, responds to the seven questions that the Supreme Court judge put to the court, of which it admitted 6, because question number 2 depended on the response to the first one, and the court's response made it inapplicable. Here are the questions raised and the responses they received.
1. Can an EU member state's court take into account its own national law and refuse to hand over a person sought via a European Arrest Warrant?
Response: No, but this is not the case of Lluís Puig. The refusal to hand over a person who is sought via an EAW warrant is, says the ECJ, "an exception, which must be subject to a strict interpretation". However, it notes that EAWs must respect "the minimum requirements" to be considered "valid" so that they can then be executed. The specific reasons under which a court "has to or can" refuse extradition are contained in the Framework Decision 2002/584 (European legislation), but "the existence of a risk of violation of fundamental rights" also allows it to refrain from executing the warrant, and this is set out in the legislation itself, although it should only be applied in "exceptional" cases. Therefore, EU member states cannot "freely determine the scope" of the EAWs, because "such an interpretation would hinder the proper functioning of the simplified system" of extradition. In the case of Puig, however, the ECJ states that Belgian justice refused to extradite him because of the risk to his fundamental rights that he faced, rather than because of Belgian law.
(2. Not applicable)
3. Under this law, can a court refuse to extradite someone if it believes that the authority issuing the EAW lacks jurisdiction to do so?
Response: No. The law of each EU member state will dictate which "judicial authority" has jurisdiction to issue an EAW.
4 and 5. How can a court know when there is a risk of infringement of the person's rights?
Response: The criterion is if "there are serious and well-founded reasons to believe" that handing over the person sought via a European warrant will involve putting them at "a real risk of infringement of the fundamental right" to a fair trial. The court that must execute the EAW "will have to verify, in a specific and precise manner, whether, taking into account the individual situation of this person, the nature of the offence that the person is accused of and the factual context in which the European warrant was issued, there are serious and well-founded reasons to believe that this person will run such a risk if extradited." While the executing court cannot decide who has jurisdiction to issue an EAW (as set out in response number 3), it can take into account whether the person is to be tried by a court that does not have the competence to do so when deciding whether there is a risk of violation of rights and, therefore, whether to refuse to hand over the person sought. As well, "the development of the proceedings" relative to EAWs that have been issued in the country requesting the person's extradition "must be taken into account", and the lack of jurisdiction must be "manifest", without discrepancies between the issuing state and the recipient of the EAW.
In this regard, the court "must determine if there are objective, reliable, accurate and duly updated elements that tend to demonstrate the existence of a real risk" that the right to a fair trial will be infringed "due to systemic or generalized deficiencies or deficiencies that affect an objectively identifiable group of persons to which the interested party belongs", after "carrying out an overall assessment of the functioning of that state's judicial system". In order to decide that the risk is real, it will have to be shown "that defendants are, in general, in this member state, deprived of an effective legal foundation that allows the competence of the criminal jurisdictional body that must judge them to be to assessed, by way of an examination of its own competence by this jurisdictional body or by an appeal before another body". In addition, the court that must execute the handover must assess to what extent the "systemic deficiencies" identified "could affect the proceedings to which [the defendant] will be subjected".
Be that as it may, the ECJ considers that the report of the UN Working Group on Arbitrary Detention "does not directly refer" to the case of Puig and therefore "cannot be sufficient", by itself, to constitute all of the elements set out, although it "may be part of the elements that can be taken into account" when demonstrating "systemic deficiencies". The Court of Justice also considers "international judicial resolutions", reports and documents from bodies such as the United Nations, the European Court of Human Rights and the Council of Europe to be valid.
Above, the full judgement in Spanish of the European Court of Justice on the questions relating to the Catalan pro-independence exiles. At the time of publication the English version of the judgement was not yet available on the court's website, here.
6. Can a court refuse to execute an EAW so that the defendant is not tried in a court that does not have the jurisdiction to do so, without first having requested additional information about this from the judicial authority that issued the order?
7. Can judge Llarena issue new EAWs against the Catalan exiles?