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NEWS

Fault lines are appearing in mutual recognition- but does this mean an earthquake for the European Arrest Warrant?

admin - July 27, 2018

This week, the Court of Justice of the European Union (CJEU) ruled that EU Member States should refuse extradition under the European Arrest Warrant (EAW) where there is a real risk that the defendant’s right to a fair trial would be violated because of ‘deficiencies’ in the independence of the judiciary in the state requesting extradition.

The Celmer case concerns an extradition request from Poland for a defendant in Ireland, and the judgement comes in the wake of the European Commission triggering legal proceedings against Poland due to judicial reforms that the EU warns will damage the independence of the judiciary and are contrary to EU law.  

Until now, halting extradition on fundamental rights grounds has been extremely limited. The judgement is therefore a strong statement- not only that there is a more holistic fundamental rights framework in the context of judicial cooperation mechanisms, but also that respect for fundamental rights requires proper judicial review in the country surrendering a defendant, meaning that mutual trust cannot be taken for granted. But if this judgment represents another fault line in the EAW system, what does this mean for the future of the EAW?

Fair Trials has long called for better respect for human rights in cross-border cooperation mechanisms such as the EAW, and our recent report, Beyond Surrender, revealed that the disproportionate use of the EAW is destroying people’s lives. Although Fair Trials welcomes CJEU recognition that challenges to the rule of law should be grounds to halt extradition, the judgement by no means makes it easy for judges to actually stop extradition in practice. The judgement outlines several tests that must be met in order to determine whether there are sufficient ‘deficiencies’ in the independence of the judiciary of the requesting state, and even if these deficiencies are established, there must be a real risk that they would be likely to directly impact on the case of the individual at hand.

At first glance then, this ‘fault line’ may seem more like a tiny crack in an otherwise robust mechanism. However, there is something much deeper at work here. Despite being built on respect for democracy and human rights, the EU is now facing the fact that the rise of right-wing populism within its borders is threatening the very foundations it is built on. The system of mutual recognition that is essential to the functioning of the EAW has always had fundamental flaws for the rights of individuals, but with the introduction of better procedural rights protections through the Roadmap Directives, the EU was able to claim that there was at least an overall trend across the bloc towards better rights protections, strengthening judicial cooperation.

Now, political movements in Poland, Hungary, Italy and Germany, to name just a few, pose a threat to that progress. Unless the EU can find a way to ensure that these rising tides do not erode the rights of people across the bloc, the EAW may well find itself at the epicentre of a future earthquake.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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