Limiting mutual trust on fundamental rights grounds under the European arrest warrant and lessons learned from transfers under Dublin III
| Published date | 01 June 2020 |
| DOI | 10.1177/2032284419900398 |
| Author | Fenella M. W. Billing |
| Date | 01 June 2020 |
| Subject Matter | Articles |
Article
Limiting mutual trust on
fundamental rights grounds
under the European arrest
warrant and lessons learned
from transfers under
Dublin III
Fenella M. W. Billing
Aalborg University, Denmark
Abstract
The Court of Justice of the European Union (CJEU) has examined the limitation of the principle of
mutual trust in European arrest warrant (EAW) cases in a number of recent decisions. The court
has found that when the executing judicial authority possesses information demonstrating that the
requested person is at a real risk of violation of the right to be free from inhuman or degrading
treatment guaranteed in art 4 of the Charter of Fundamental Rights of the European Union, then
the individual should not be automatically surrendered. Instead, the proceedings should be
postponed to obtain supplementary information or discontinued if the risk cannot be discounted.
The ‘real risk’ test has also been extended to non-absolute rights, such as the right to a fair trial.
However, the CJEU’s reasoning about the limitation of mutual trust is not yet fully formed in
relation to certain aspects concerning the nature of fundamental rights and the EAW procedure.
This article explores these gaps of understanding about the scope of the limitation on mutual trust
in surrender cases and, in doing so, assesses the consistency of similar developments in the area of
transfers of asylum seekers under the Dublin Regulation III.
Keywords
’Mutual trust’, surrender, asylum, security, solidarity
Corresponding author:
Fenella M W Billing, Department of Law, Aalborg University, Fibigerstræde 4, Aalborg, 9220, Denmark.
E-mail: fb@law.aau.dk
New Journal of European Criminal Law
2020, Vol. 11(2) 184–203
ªThe Author(s) 2020
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DOI: 10.1177/2032284419900398
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Introduction
On 5 April 2016, the Court of Justice of the European Union (CJEU) Grand Chamber handed down
its judgment in the joined cases of P´
al Aranyosi and Robert Ca
˘lda
˘raru (Aranyosi).
1
This was a
landmark European Union (EU) criminal justice decision for a number of reasons. In relation to the
surrender of a criminal suspect under the European Arrest Warrant Framework Decision
(EAWFD),
2
the CJEU confirmed the application of the principle of mutual trust as a basis for
mutual recognition, requiring that member states ‘ ...consider all the other Member states to be
complying with EU law and particularly with the fundamental rights recognised by EU law’.
3
In
addition, the CJEU found that the principle of mutual trust was not absolut e but should be limited
in exceptional circumstances based, firstly, on evidence of systematic or generalised deficiencies
in individual protection standards.
4
Secondly, in Aranyosi, such circumstances were found to
exist where there was a real risk that the surrender under the European Arrest Warrant (EAW)
would expose the individuals concerned to inhuman or degrading conditions of detention.
5
These
principles were subsequently extended to cases concerning a real risk of a breach of non-absolute
rights, such as the fundamental right to a fair trial in the case of LM.
6
In the event of ‘exceptional
circumstances’ limiting the principle of mutual trust, the CJEU found that surrender proceedings
must be postponed to obtain supplementary information or discontinued if the risk could not be
discounted.
While the concept of ‘exceptional circumstances’ justifying a limi tation of mutual trust in
surrender cases has been considered in connection with specific factual situations in Aranyosi and
subsequent criminal cases, the precise scope of the limitation remains unclear in certain respects.
The primary goal of this work is to clarify the scope of the limitation on mutual trust according to
the fundamental rights obligations that EU member states have in relation to EAW surrender. It
does so through the lens of EU asylum law under the Common European Asylum System (CEAS)
and the Dublin Regulation III.
7
From the perspective of transferring member states under both the
EAWFD and Dublin III, as a presumption of compliance with EU law, mutual trust enlivens two
potentially conflicting obligations. Firstly, transferring states are under a legal obligation to follow
rules about transferring individuals into the custody of the authorities of another member state, as
required by application of the relevant EU law. Secondly, member states have an obligation to
respect fundamental rights, including ensuring that the transfer of an individual to another member
state will not result in serious violations of fundamental rights, for example, due to the conditions
al Aranyosi and Robert Ca
˘lda
˘raru ECLI:EU:C:2016:198.
2. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between
Member States (2002/584/JHA) OJ L190/1, as amended by Framework Decision 2009/299/JHA (EAWFD).
3. Aranyosi and Ca
˘lda
˘raru (n 1) para 78; Opinion 2/13 EU:C:2014:2454 para 191; and see case C-270/17 PPU Tupikas
EU:C:2017:628 para 49.
4. On the importance of limiting mutual trust and mutual recognition in EU criminal law based on fundamental rights, see
Annika Suominen, ‘Limits of Mutual Recognition in Cooperation in Criminal Matters Within the EU – Especially in
Light of Recent Judgments of Both European Courts’ (2014) 4 EuCLR 210.
5. Aranyosi and Ca
˘lda
˘raru (n 1) paras 77–79 and 82–83.
7. EuropeanParliament and Council Regulation (EU)604/2013 establishing the criteriaand mechanisms for determining the
Member Stateresponsible for examining an applicationfor the internationalprotection lodged in one of the Memberstates
by a third-country national of a stateless person [2013] OJ L 180/31 (Dublin Regulation III or DublinIII).
Billing 185
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