I. INTRODUCTION
Mutual recognition has constituted a great challenge to fundamental rights protection in European Union (EU) law. ‘Borrowed’ from the law of the internal market, this principle implies that a judicial order issued in one Member State is recognised and executed in another Member State without further formality. By doing so, it is meant to substitute the previous system of extradition in inter-state cooperation in criminal matters. The implications in terms of fundamental rights – and the right to liberty in particular – are manifold. Firstly, the higher level of automaticity brought about by mutual recognition rests on a legal fiction. This fiction is the principle of mutual trust, ie the presumption that Member States respect fundamental rights throughout the Union. Not surprisingly, such a presumption has been highly contested over recent years, not least because of important judgments showing how critical this fiction can be.Footnote 1
Secondly, mutual recognition is mainly meant to enforce judicial decisions against individuals, with strong emphasis being placed on state demands. This has led to paying higher attention to effectiveness of judicial cooperation at the expense of individual rights protection.Footnote 2 We have seen this especially in the case law of the Court of Justice of the EU (Court or the Luxembourg Court) on the European Arrest Warrant Framework Decision (EAW FD).Footnote 3 Thirdly, there are a number of mutual recognition instruments in EU law involving deprivation of liberty. Automaticity and effectiveness place the right to liberty under pressure, so that its content and protection in the Union have to be carefully assessed. In this article I analyse the relationship between the right to liberty in EU law and the FDs on: the EAW (584/2002/JHA), the Transfer of Prisoners (2008/909/JHA), Probation Measures (2008/947/JHA), pre-trial measures alternative to detention (2009/829/JHA or ESO FD).Footnote 4 The main hypothesis is that the application of mutual recognition to criminal law results in the need to redefine the current content of the right to liberty at EU law level.
To verify this hypothesis, the rest of this article is divided into three sections. In Part II, I set the ground, by outlining the principles of mutual recognition and mutual trust, on the one hand, and the right to liberty in EU law, on the other. With regard to the right to liberty, I distinguish between a ‘default right to liberty’ and an ‘evolutionary right to liberty’. In this first part I address the ‘default right to liberty’, as shaped by: the Charter of Fundamental Rights of the EU (CFREU or the Charter) and its Explanations; the European Convention on Human Rights (ECHR) as interpreted by the European Court of Human Rights (ECtHR or the Strasbourg Court). As clarified by Article 52(3) of the Charter, the CFREU and ECHR relevant provisions on the right to liberty have the same meaning and scope. The ‘evolutionary right to liberty’ is the product of the interaction between the ‘default right to liberty’ and its interpretation by the Court in the context of mutual recognition. As the evolutionary right to liberty logically presupposes the default right to liberty, I deal with the latter in the first part, and focus on the former in the second part of this article. In any case, the right to liberty in EU law and the ECHR firstly – and most importantly – requires that deprivation of liberty be carried out in the cases and according to the procedures established by the law.
In Part III I shall analyse the four FDs that are relevant to the right to liberty, as well as the interpretation given by the Court. I highlight critical aspects of both the legislation and the case law, and show the unbalanced relationship between the smoothness of judicial cooperation, on the one hand, and the level of protection of the right to liberty, on the other. I focus in particular on two flaws of the current content of the right to liberty in EU law. Firstly, the FDs lay down a legal framework that lacks legal certainty. If deprivation of liberty shall be carried out in the cases and according to the procedures established by the law, the rules authorising and governing the deprivation of liberty must be clear, accessible and foreseeable. Secondly, the right to liberty in EU law seems not to take into account detention conditions and penitentiary regimes. However, I submit that the concept of established procedures required by the right to liberty should also include these aspects. Indeed, requiring that ‘one shall be deprived of liberty in accordance with a procedure established by law’ logically involves the phase of enforcement: so long as deprivation of liberty is ongoing, clear and accessible legal procedures must apply.
In conclusion (Part IV), I argue that the application of mutual recognition to criminal matters requires the definition of a new EU test for the right to liberty, capable of balancing the shortcomings described.
II. MUTUAL RECOGNITION IN CRIMINAL MATTERS AND THE RIGHT TO LIBERTY IN EU LAW
A. Mutual recognition and mutual trust in EU Law
Mutual recognition in criminal matters is a principle borrowed from the law of the internal market, where it was introduced by the Cassis de Dijon judgment of the Court.Footnote 5 It requires that a product lawfully produced and marketed in one Member State, should be capable of being marketed in another Member State, unless grounds for refusal apply.Footnote 6 The 1999 Tampere Council adopted the principle of mutual recognition as the cornerstone of judicial cooperation in criminal matters. In criminal law, mutual recognition is used to step up judicial cooperation between Member States within the EU: according to this principle, a judicial order issued by one Member State is to be recognised and executed by another Member State, save where grounds for refusal apply. However, the principle of mutual recognition had already been applied to judicial cooperation in civil justice, where a number of international law instruments had been adopted over the previous decades.Footnote 7 Examples in this respect are the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, and the 1988 Lugano Convention, which extended the application of the Brussels Convention to certain Member States of the European Free Trade Association.Footnote 8
The principle of mutual recognition streamlines the previous system of extradition, by introducing a higher level of automaticity in inter-state cooperation in criminal matters.Footnote 9 It does so by means of three main novelties: firstly, it abolishes the principle of dual criminality (although not in all cases); secondly, it allocates the responsibility for the surrender on judicial rather than political authorities; thirdly, it (almost completely) drops the prohibition for a state to extradite its own nationals (also referred to as ‘nationality exception’ or ‘nationality ban’).Footnote 10 The cooperation on a given order (arrest warrant, probation measure, custodial sentence and the like) is regulated by specific legislative instruments adopted at EU law level. In the cases analysed in this article, the recognition of the judicial decision results in the coercive transfer of the person concerned from the issuing Member State to the executing Member State. The application of mutual recognition to criminal law has drawn criticism over the years, with major concerns being voiced towards the inadequate level of individual safeguards.Footnote 11
Indeed, mutual recognition in criminal matters implies the extraterritoriality of Member States’ rules and standards, as well as a higher level of automaticity in judicial cooperation.Footnote 12 This may happen only in the context of a general feeling of mutual trust among Member States.Footnote 13 Broadly speaking, mutual trust refers to a sociological perspective, which sees trust as a tool to deal with social complexity, when there are certain values shared within a community, so as to create expectation of regular and honest behaviour.Footnote 14 In EU criminal law, mutual trust rests on the presumption that Member States act in compliance with fundamental rights.Footnote 15 To this end, Article 6 of the Treaty on European Union (TEU) stipulates, on the one hand, that the Charter has the same value as the Treaty; on the other, fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union law.Footnote 16
In the context of this threefold system of fundamental rights protection (CFREU, ECHR, national traditions), the importance of mutual recognition materialises at three levels: a vertical perspective, which raises the issue as to which kind of fundamental rights standard should be applied (that of the Union or that of the Member State); a horizontal dimension, posing the question as to whether a presumption of compliance with fundamental rights by the Member State may be maintained; the EU level, where a Union norm is reviewed against the yardstick of fundamental rights. In the vertical dimension, the most problematic issue concerns the scope of application of the Charter: whether it binds Member States when they implement EU law (as stated in Article 51(1) CFREU), or when they act in the scope of Union law (according to the wording of the Explanations).Footnote 17 A heated debate flourished, fuelled by highly contested judgments of the Court of Justice.Footnote 18 The horizontal dimension takes the form of the duty, for the executing Member State, to recognise the standard of fundamental rights protection of the issuing Member State as equivalent to its own standard.Footnote 19 However, the Court has found that this presumption is a refutable one, and that a conclusive presumption would be incompatible with EU law.Footnote 20 As shown below, the Court has recently confirmed this approach in the Caldararu judgment.Footnote 21 In this case, the Luxembourg judge acknowledged the possibility to postpone implementation of the EAW FD, where there is a serious risk that the person concerned will be subject to inhumane treatment in the issuing Member State. The third scenario concerns the possible review of EU law against the benchmark of fundamental rights. Here, the compliance of EU norms with fundamental rights is at stake. For the purposes of this paper, the Advocaten voor de Wereld case is worth referring to.Footnote 22 The Court upheld the compatibility of the EAW with Article 6(2) TEU, and in particular with the principle of legality. The Court argued that the aim of the FD is to provide Member States with a procedural instrument, and not to harmonise national regimes of substantive criminal law. Indeed, it is still for Member States to define criminal offences and related penalties.Footnote 23
Having set the broader ground on the legal framework concerning fundamental rights protection (with specific regard to mutual recognition in criminal matters), I will now present the content of the benchmark adopted, namely the right to liberty in EU law.
B. The right to liberty in Europe
Article 6 CFREU is devoted to the right to liberty, according to which ‘Everyone has the right to liberty and security of the person’. According to Article 52(3) CFREU and the Praesidium’s Explanations to the Charter, Articles 6 CFREU and 5 ECHR have the same meaning and scope.Footnote 24 Article 5 ECHR states that ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. Among the justified cases of deprivation of liberty, Article 5(1)(f) features ‘the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’. This is the ground regarding inter-state cooperation in criminal matters. As I show below, Article 5(1)(f) – and its interpretation provided by the Strasbourg Court – are the fundamental right references used by the Court to assess the right to liberty in the context of mutual recognition procedures. The ECtHR has interpreted Article 5(1)(f) in the sense that deprivation of liberty is lawful (not arbitrary) where it is: carried out in good faith; closely connected to the grounds of detention relied on by the executing judicial authority; enforced in appropriate place and conditions; and of reasonable length in relation to the purposes pursued. The Strasbourg Court does not require that a decision on deprivation of liberty in this context be necessary and proportionate, but only that extradition procedures be ongoing and carried out with due diligence.Footnote 25
In the context of mutual recognition, the issuing and executing judges have been seen as exempt from the duty of carrying out the proportionality test, when issuing or executing a judicial order. This has drawn the attention of scholars, EU institutions and practitioners.Footnote 26 With specific regard to the position of the issuing judge in relation to the EAW, the Council found that, although the proportionality check does not constitute a legal obligation on the issuing Member State, the competent authorities have to evaluate the proportionality between the aim of the surrender and the fundamental rights implications. It has been argued that imposing an obligation of this kind on the issuing judge would be difficult, since a major difference exists between two groups of Member States: on the one hand, there are those Member States which feature the principle of legality in their systems of criminal justice (the obligation to investigate and prosecute all criminal offences);Footnote 27 on the other hand, a minority of States apply the opportunity principle, according to which the national judiciary retains a certain margin of discretion in this regard.Footnote 28 Therefore, requiring a proportionality test to the former group of states would significantly affect their legal systems. Besides, the case may be that Member States applying the legality principle suffer from over-criminalisation and extensive use of harsh custodial penalties, which in turn are capable of triggering the issuing of an EAW. The combination of these three elements (mandatory prosecution, diffuse criminalisation and frequent recourse to high levels of imprisonment) makes the introduction of a binding proportionality test rather difficult. Weyemberg et al argue that ‘in certain cases, the problem of disproportionate EAWs is self-regulatory’.Footnote 29 The Council’s Handbook and the 2011 Commission Evaluation Report urged Member State to deal with the issue of disproportionate EAWs. Following these recommendations, Poland has adopted legislative reforms to make the national regime comply with the principle of proportionality. Growing attention to proportionality concerns in mutual recognition is confirmed by Directive 2014/41/EU, which makes the issuance of a European Investigation Order subject to an assessment in terms of necessity and proportionality.Footnote 30 It should also be noted that the UK amended the Extradition Act 2003 (which implements the EAW FD) in 2014, by inserting section 21A, entitled ‘Person not convicted: human rights and proportionality’. According to this amendment, the judge called on to execute an EAW is to determine whether the surrender (the text uses the word ‘extradition’) would be disproportionate, by taking into account the seriousness of the offence, the likely penalty that would be imposed, the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition. The judge must order discharge, should s/he make the decision that the surrender would be disproportionate.
Another important feature of the right to liberty regards legal certainty. Such a right stipulates that deprivation of liberty is to be carried out in the cases and according to the procedures established by the law. This requires that the legal basis authorising and regulating deprivation of liberty be of sufficient quality: clear and accessible legislative provisions are to be laid down. Broadly-worded rules allowing for detention, or vague norms establishing procedures for deprivation of liberty may thus result in a violation of the right.Footnote 31 As I show below, the FDs involving deprivation of liberty leave much to be desired in terms of legal certainty, so resulting in serious concerns over the protection of the right to liberty in EU law.
Thirdly, mutual recognition brings to the fore the issue of the actual scope of the right to liberty. The higher level of automaticity introduced by mutual recognition calls for an enhanced level of protection of individual rights. In particular, the question arises as to what situations should be included in the scope of the requirement that deprivation of liberty be carried out in the cases and according to the procedures established by the law. The cases are those situations that can lawfully result in deprivation of liberty. As shown below, mutual recognition of pre and post-trial measures alternative to detention results in the transfer of the person from one state to another. However, the national regimes on these measures vary considerably throughout the EU. This has to do, mostly, with the consequences ensuing from the breach of these pre or post-trial measures: one state may feature detention, while other states can resort to less harsh sanctions. The inclusion of these situations in the concept of cases can significantly improve the content of the right to liberty in EU law. The same may hold true for the meaning of procedures. The doubt here involves the possible inclusion, in this requirement, of the procedures whereby deprivation of liberty is carried out after the apprehension of the person concerned: namely, the phase of enforcement. The first requirement of the right to liberty is that ‘everyone shall be deprived of liberty according to the procedures established by the law’. Once the individual has been placed in detention, s/he is still being deprived of liberty, and this requires that clear and accessible legal procedures be applied to this continuing deprivation.Footnote 32 This means that penitentiary rules, and more in general detention conditions, can be really relevant to the right of liberty. This is testified by the case-law of the ECtHR, which sees detention conditions as a possible signifier of arbitrary detention, so resulting in a violation of the right to liberty.
III. MUTUAL RECOGNITION AND THE RIGHT TO LIBERTY IN SECONDARY EU LAW
A. The EAW FD
The EAW is the first and most prominent instrument of mutual recognition in EU criminal law, aiming to replace extradition procedures with a smoother and swifter system of surrender between judicial authorities.Footnote 33 The introduction of the EAW FD has been groundbreaking for a number of reasons, including: the abolishment of the principle of dual criminality, the allocation of the responsibility for the surrender on judicial rather than political authorities, the (almost complete) drop of the prohibition for a state to extradite its own nationals.
Though the EAW was preceded by attempts to streamline inter-state judicial cooperation in criminal matters, the terroristic attack to the World Trade Centre on 11 September 2001 urged the Union to put into effect actual EU instruments to fight crime.Footnote 34 This is confirmed by the circumstance that, before 9/11, the EAW was not the highest priority on the EU agenda on mutual recognition in criminal matters.Footnote 35 The Commission, in its EAW proposal, explicitly established a link by the FD and EU citizenship, with the latter status eroding the importance of nationality links even with regard to the surrender for detention purposes.Footnote 36 The implementation of the EAW at the national level has followed a difficult path,Footnote 37 and constitutional courts across the EU have ruled on the compatibility of the EAW with their constitutional systems.Footnote 38
According to the wording of the FD, the EAW is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. While Member States shall execute any EAW on the basis of the principle of mutual recognition, the FD does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU.Footnote 39
The final decision on the execution should be taken within 60 days after the arrest, which term can be postponed by further 30 days. The surrender must be carried no later than 10 days after the final decision.Footnote 40 The executing judge must decide whether the person arrested must be kept in detention pending the decision on the recognition. Release may be ordered, provided that measures are taken so as to ensure that the person will not abscond.Footnote 41 The issuing state must deduct the period of detention already served by the person from the total period of detention to be served therein.Footnote 42
With regard to the rights of the individual in the context of the procedures of recognition and execution, the FD provides the following. The person concerned has the right to be heard by the executing judge in accordance with the law of the executing Member State. In case of an EAW issued for prosecution, the executing judge must either agree that the requested person should be heard, or temporarily transfer him/her to the issuing state. In the first case, the requested person must be heard by a judicial authority, assisted by another person designated in accordance with the law of the Member State of the requesting court. The requested person shall be heard in accordance with the law of the executing Member State and with the conditions determined by mutual agreement between the issuing and executing judicial authorities.Footnote 43 In the latter situation, conditions and duration of the transfer are determined by the states involved, and the person must be able to return to the executing Member State to attend hearings concerning him/her as part of the surrender procedure.
The FD provides that the recognition and execution of the EAW can be refused on the basis of mandatory and optional grounds for refusal of execution. Within the first category are included grounds such as the ne bis in idem, or the fact that the offence on which the EAW is based is covered by amnesty in the executing Member State.Footnote 44 Article 4 establishes optional grounds for refusal, among which there is the possibility not to execute the EAW where ‘the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law’.Footnote 45
Having presented the main features of the EAW, I now move on to the interpretation given by the Court in three preliminary rulings relevant to the right to liberty. In Radu, the Court dealt with the possibility to refuse the execution of an EAW on the basis of fundamental rights violation (in particular, the breach of the right to liberty). In such a judgment, the Court denied that the EAW FD allows for such a possibility. The Lanigan case shows a different approach on the part of the Court, with higher attention being paid to individual rights. The Court clarified that the EAW FD must be interpreted in light of Articles 6 and 52 CFREU. The former provision lays down the right to liberty in EU law, whereas the latter stipulates that limitations of the Charter rights are subject to the principle of proportionality. The recent ruling issued by the Court in the Caldararu case revolved around the thorny issue of detention conditions and mutual recognition. By this decision, the Luxembourg Court has opened the door to the non-execution of an EAW, should detention conditions in the issuing state prove to be capable of resulting in inhumane or degrading treatment.
B. Execution of EAWs and fundamental rights
The case law of the Court on the EAW FD defines essential aspects of the functioning of this instrument. These decisions cover a broad spectrum of highly sensitive issues, such as the specialty rule, the principle of ne bis in idem, the right to appeal and fair trial.Footnote 46 In three judgments, the Court has been faced with questions bearing a direct relevance to the right to liberty: refusal of execution of an EAW on the basis of breach of the right to liberty (Radu), the relevance of the right to liberty and proportionality to the interpretation of the EAW FD (Lanigan), the role of detention conditions in the EAW system (Caldararu).
Radu concerned the issuance of EAWs against a Romanian national who claimed that his defence rights had been violated.Footnote 47 The Court was asked whether the EAW must satisfy the requirements of necessity and proportionality, and whether its execution can be refused in the case of (actual or potential) violations of Articles 5 and 6 ECHR or Articles 6, 48 and 52 CFREU. The Advocate General (AG) recalled the arbitrariness test elaborated by the ECtHR (good faith; connection to detention relied on by the judicial authority; appropriate detention conditions; reasonable length). Furthermore, the AG suggested that the execution of an EAW may be refused on fundamental rights grounds (in particular Articles 5 and 6 ECHR and/or Articles 6, 47 and 48 CFREU), but this could occur where ‘the deficiency or deficiencies in the trial process [are] such as fundamentally to destroy its fairness’.Footnote 48 Breaches that are remediable would not justify a refusal to transferring the requested person to the Member State where those rights are at risk. The Court, unlike the AG, paid very little attention to the right to liberty. Though acknowledging that the right to be heard is enshrined in Articles 47 and 48 CFREU, it placed much more emphasis on the ‘enforcement’ objectives of the EAW FD, and rejected the possibility, for the executing judge, to refuse the execution of an EAW on fundamental rights grounds.Footnote 49 Admittedly, Mr Radu argued that his rights had been violated because he had not been summoned by the issuing judge before the EAW was issued. On the other hand, the question posed by the referring court had to do, more broadly, with the possibility to refuse the execution of an EAW on the basis of a fundamental rights breach. Granted, references for preliminary rulings always arise from a concrete case, and the violation of fundamental rights in the case of Mr Radu could be questioned. Unlike the AG, the Court seemed to completely close the door, at least at that moment, to considering breaches of fundamental rights as a basis for refusing the execution of an EAW.
In Lanigan, the questions referred concerned the interpretation of Article 17, read in conjunction with Article 15, and Article 12 EAW FD. Articles 17 and 15 establish procedures and time-limits for the decision on the execution of an EAW, whereas Article 12 provides for the possibility, for the executing judge, to order the provisional release of the person concerned during execution procedures.Footnote 50 The doubts raised by the national court had to do with the effects deriving from the executing Member State’s failure to comply with the time-limits and the possibility to envisage a right for the person to be released, in light of that failure. The Court found that the expiry of the time-limits neither precludes the execution of the EAW, nor creates a general and unconditional obligation to release the person. Such an interpretation ‘could limit the effectiveness of the surrender system put in place by the FD and, consequently, obstruct the attainment of the objectives pursued by it’.Footnote 51 Once again, the Court placed a strong emphasis on effectiveness. However, the Court found that Article 1(3) determines an obligation to interpret the EAW FD in compliance with the Charter. As far as that specific case was concerned, the relevant provisions to take into account were Articles 6 and 52 CFREU.Footnote 52 As for the right to liberty, the Court relied on the ECtHR’s case-law on Article 5(1)(f) ECHR (which, however, refers to the right to liberty in the context of extradition procedures). In particular, the right to liberty would result in the duty, for the executing judge, to hold that person in custody so long as the procedure for the execution is carried out in a sufficiently diligent manner. In order to ensure that this is the case, the executing judge is required to consider factors such as: the possible failure to act on the part of the authorities of the Member States concerned; any contribution of the requested person to that duration; the sentence potentially faced by the requested person; the potential risk of that person absconding; the fact that the requested person has been held in custody for a period the total of which greatly exceeds the time-limits stipulated in Article 17. Should the judge opt for release, s/he should adopt any measures to ensure that the material conditions necessary for the surrender remain fulfilled. Article 52(1) CFREU requires that limitations of Charter rights be provided for by law, respect the essence of those rights and, subject to the principle of proportionality, be necessary and genuinely meet objectives of general interest. The Lanigan judgment is important, as it reveals higher consideration for the right to liberty and the principle of proportionality, on the part of the Court of Justice.
A further step forward towards a more balanced interpretation of the EAW FD has been taken by the Court in the Caldararu judgment, where the Court had to deal with the possibility to refuse the execution of an EAW on the basis of the risk of inhumane treatment in the issuing Member States (Romania and Hungary), due to poor detention conditions.Footnote 53 The AG’s Opinion was characterised by heavy reliance on the principle of mutual trust. The AG stated that introducing systematic grounds for refusal, based on the risk that the person concerned will be subject to inhumane detention conditions in the issuing state, would undermine the mutual trust that founds judicial cooperation within the EU. Article 19 CFREU and Recital 13 EAW FD state that ‘No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’. By not mentioning the surrender, these provisions would reveal the intention of the Union legislature to leave the EAW system outside their scope of application. The Union legislature, when establishing the grounds for refusal enumerated in the FD, did not provide for refusal of execution based on violations of fundamental rights. The application of a systematic check on detention conditions, performed by the executing judge, would be incompatible with the principle of mutual trust, according to which Member States are presumed to respect fundamental rights.
To this end, the issuing and executing states have a key role to play in preserving that trust and the functioning of mutual recognition. On the one hand, and except for the cases laid down in Articles 3 to Article 4a, the executing judge is to surrender the person even if the provisions of his national law, including constitutional ones, would provide a higher level of protection of fundamental rights.Footnote 54 What the executing judge can (has to) do in the case of systemic deficiencies is assess, through an exchange of information with the issuing judge, whether the person will be detained in proportionate conditions. On being a general principle of EU law, proportionality could be relied on to refuse the execution of an EAW. Detention conditions would be proportionate where: they do not result ‘in the detachment from society of the person concerned’, in the case of an EAW issued for execution purpose; they remain strictly related to the aim of prosecution, in the case of an EAW issued for that purpose. The issuing judge, on his part, is called on to apply a proportionality check, and issue an EAW by taking into account the nature of the offence and the regime of execution. Broadly, the issuing Member State should take all necessary measures, including reforms of criminal policy, to ensure that that person serves his/her sentence in conditions which respect fundamental rights.
The Court decided differently to the AG, by according Article 1(3) a major role in fundamental rights protection. The Court found that Article 1(3) obliges Member States to respect the prohibition of inhumane and degrading treatment, as stated in Article 4 CFREU. This implies that, where the executing judge has objective, reliable, specific and properly updated evidence showing that there are deficiencies, which may be ‘systemic or generalised, or which may affect certain groups of people, or which may affect certain place of detention, with respect to detention conditions in the issuing Member State’, that judge must, pursuant to Article 15(2) EAW FD, request that the issuing judge provide supplementary information (emphasis added). The evidence at the basis of the request under Article 15(2) may be obtained from, inter alia, ‘judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN’. The decision on the surrender must be postponed until supplementary information is obtained, allowing it to exclude the risk of inhumane treatment. Should that risk cannot be discounted within a reasonable time, the executing judge is to decide whether the surrender procedure should be brought to an end. Meanwhile, the person concerned should be held in custody only in so far as the duration of the detention is not excessive, on the basis of the requirement of proportionality laid down in Article 52(1) of the Charter.Footnote 55
C. Proportionality and detention conditions in the right to liberty
The EAW FD and its interpretation by the Court have important implications in terms of the right to liberty. In Radu, the Court rejected the possibility not to execute an EAW on fundamental rights grounds. The Lanigan and Caldararu judgments improve the protection of the individual. Firstly, it is clarified that the EAW FD is to be interpreted in light of the right to liberty and Article 52 CFREU, which makes restrictions of the Charter rights conditional upon the proportionality principle. Secondly, the execution of an EAW must be deferred – or even abandoned – where there are serious reasons to believe that detention conditions in the issuing state would expose the person concerned to the risk of inhuman or degrading treatment.
Three main issues related to the right to liberty emerge from the EAW FD and its interpretation on the part of the Court: the refusal of execution of an EAW on fundamental rights grounds; the application of the proportionality test; the role of poor detention conditions in the issuing state. As for the first issue, the Court was rather reluctant to admit such a possibility in earlier judgments, but the latest development in the case-law has increasingly opened the door to it. I submit that it is EU law that authorises the refusal on fundamental rights grounds. Even though fundamental rights violations are not included in the possible grounds for refusal enumerated in the EAW FD, Article 1(3) explicitly states that the FD has not the effect of modifying Member States’ obligation under Article 6 TEU. In other words, the Member States cannot apply the FD, where the latter would result in a fundamental rights violation. Furthermore, the Court has explicitly affirmed that EU secondary law should not be implemented, where this can bring about the breach of a general principle of EU law or a Charter right.Footnote 56
Also the possible application of the principle of proportionality in the context of the EAW has been largely debated.Footnote 57 For what concerns primarily the right to liberty, I argue that the proportionality test should be applied by the executing Member State, when deciding whether or not to hold the person in detention. Indeed, it is the executing judge that firstly decides on deprivation of liberty. The test would always apply. It constitutes a preliminary requirement of any limitations of the Charter rights (then also the right to liberty) under Article 52 CFREU, and should relate the proportionality of opting for detention to the aim of ensuring the enforcement of the EAW. To this end, circumstances such as the seriousness of the offence, the time of its (alleged) commission, as well as the personal situation of the person concerned in the executing Member State (in terms of family, working and social links), should be taken into account.
Detention conditions constitute a thorny issue as well, as shown by the recent Court judgment in Caldararu.Footnote 58 The case law of both the ECtHR and the Court have acknowledged that poor detention conditions may result in violations of fundamental rights.Footnote 59 The traditional legal reference in this respect is Article 3 ECHR, which prohibits torture and inhuman and degrading treatment. However, this requires a high threshold to be met, and the case may be that bad detention conditions are too poor to be lawful, but not poor enough to invoke Article 3 ECHR.Footnote 60 Another legal anchor is needed, in order to better protect individual rights. I submit that this anchor is the right to liberty. The ECtHR has stated that detention conditions can be symptom of a possible violation of Article 5 ECHR.Footnote 61 The requirement that one shall be deprived of liberty according to the procedures established by the law means that, until deprivation of liberty is ongoing, the legal procedures are to be abided by. This regards in particular the rules on the enforcement. Poor detention conditions may not violate Article 3 ECHR, but be unlawful and create a situation of arbitrariness all the same, so giving rise to breach of the right to liberty. The Caldararu judgment could have far-reaching consequences in this respect. Firstly, the Court established a link between Article 1(3) EAW FD and the obligation to respect fundamental rights in relation to the execution of an EAW. The Court explicitly opened to the non-implementation of EU law, in case of risk of fundamental rights violation. Granted, what was at stake in Caldararu was an absolute prohibition, such as that enshrined in Article 4 CFREU. Other fundamental rights can be balanced, as is the case of the right to fair trial. One could not expect the application of the Caldararu test to any fundamental right violations. Probably, the Court will have the opportunity to clarify the actual reach of the principles stated in this judgment. Nonetheless, the Court acknowledged that Article 1(3) EAW FD can give the basis for limiting the implementation of mutual recognition. Furthermore, the conditions set out by the Court for the request of supplementary information (which may in turn lead to postponement and non-execution of the EAW) are not cumulative, as the deficiencies can be systemic or affect certain groups of people or places of detention. The question arises as to what consequences this can have for the right to liberty. The right to liberty can indeed be limited, as shown by the cases of lawful detention enumerated in Article 5(1) ECHR. However, deprivation of liberty is not lawful for the mere fact that it is carried out in one of the cases provided for in the ECHR. It has to be not arbitrary. The ECtHR test revealed that inappropriate detention conditions can result in a situation of arbitrariness and, therefore, a violation of Article 5 ECHR. It is helpful to recall that the instant case was a very particular one, revolving around an absolute prohibition such as that of Article 4 CFREU. However, nothing in the Court’s judgment precludes the application of the Caldararu test to those situations of unlawfulness that violates the right to liberty, while not meeting the threshold of Article 4 CFREU.
From the interaction between the proportionality test and the right to liberty as outlined above, it seems rather safe to assume that the executing judge should take into account detention conditions in: the executing state, when it comes to decide as to whether detaining the person concerned during EAW procedures; the issuing state, where the execution of the EAW and the surrender of the individual are at stake.
The present discussion paves the way for the analysis of the FDs on the Transfer of Prisoners, the Probation Measures and the ESO.
D. The FDs on the Transfer of Prisoners, Probation Measures and the ESO
The three FDs on the Transfer of Prisoners, Probation Measures and pre-trial measures alternative to detention are particularly relevant to the right to liberty.Footnote 62 They all result in deprivation of liberty (the coercive transfer) of the person concerned, once the judicial decision at stake has been recognised. After the transfer is completed, the individual will be subject to a new legal regime, which will differ from that of the issuing state, with the possibility of different rules concerning the substantive basis for detention and the procedural measures for deprivation of liberty. For example, the breach of a pre or post-trial measure alternative to detention may have different penalties in each member state. Procedures for the deprivation of liberty, concerning the enforcement of detention, the penitentiary regime and detention conditions, may also vary significantly. The FDs lay down no guarantees to ensure that each individual is adequately informed of the potential alteration in the content of their right to liberty.
The FD on the Transfer of Prisoners creates a mechanism of mutual recognition of custodial sentences and judgments involving deprivation of liberty between Member States. When the judgment is recognised by the executing Member State, the prisoner is consequently transferred therein. The purpose of the FD is to increase prisoners’ chances of rehabilitation. However, in the preamble it is stated that the consent of the person concerned should no longer be dominant, for the purposes of recognition and enforcement of the sentence imposed.Footnote 63 The FD does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU.Footnote 64 The person can be transferred even where s/he has not provided the consent, where the executing Member State is: the Member State in which the sentenced person lives; where the sentenced person will be deported, once s/he is released from the enforcement of the sentence on the basis of an expulsion or deportation order consequential to the judgment; where the sentenced person has fled or otherwise returned in view of the criminal proceedings pending against him/her in the issuing State or following the conviction in that issuing State. In the absence of the possibility to give his/her consent, the person concerned is provided with a generic ‘opportunity’ to express his/her opinion, which in turn must be taken into account.Footnote 65 However, the FD lays down no rules to ensure an appropriate level of participation of the person concerned in the procedures of recognition and execution.
The FD on Probation Measures provides for the application of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and sanctions alternative to deprivation of liberty.Footnote 66 The aim of the FD is enhancing the prospects of the sentenced person’s being reintegrated into society and improving monitoring of compliance with probation measures and alternative sanctions.Footnote 67 The FD involves the recognition of judgments and probation measures, and the consequent transfer of responsibility for the supervision of probation measures and alternative sanctions from the issuing to the executing Member State. The issuing State may forward a decision to the state where the sentenced person is lawfully and ordinarily residing, when the sentenced person has returned or wants to return to that State. The law applicable is that of the executing Member State, which has the jurisdiction to decide on: modification of the measure; revocation of the suspension of the execution of the judgment or revocation of conditional release; the imposition of a measure involving deprivation of liberty.Footnote 68 If so requested, the executing State shall inform the issuing State of the maximum duration of deprivation of liberty foreseen in the executing State for the offence that could be imposed in case of breach of the probation measure or alternative sanction.Footnote 69 The executing State shall immediately notify of any finding which may bring about the revocation of the alternative measure, or the imposition of a measure involving deprivation of liberty. Also in this case, the FD provides no rights or rules on the participation of the person concerned in the procedures of recognition and transfer.
The ESO FD establishes a system of recognition of supervision measures as alternatives to detention. Studies have showed that Member States’ judicial authorities are rather reluctant to provide persons not living therein with bail. This is mainly due to the circumstance that those persons do not have stable residence or an address in that Member State. These individuals are consequently placed in pre-trial detention when, in a comparable situation, a national or resident would not. This creates a state of play in which there are two alternative choices at the disposal of Member States’ judiciary: provisional detention or unsupervised movement. In most cases, the national judges opt for deprivation of liberty. However, the persons affected by this framework have not been tried. Therefore, the right to liberty and the presumption of innocence of most EU citizens (and others) are under threat throughout the EU.Footnote 70 To address this thorny issue, the EU has adopted an FD on the mutual recognition of decisions on supervision measures alternative to provisional detention. The ESO FD has a twofold aim: to monitor the defendants’ movements; and to enhance the right to liberty and the presumption of innocence of the persons concerned.Footnote 71 Should the person concerned not return to the issuing State voluntarily, he or she may be surrendered to the issuing State in accordance with the EAW FD, so that the provisions of the latter apply.
The FD does not confer any rights on the person to the use, in the course of criminal proceedings, of a non-custodial measure. A decision on supervision measures may be forwarded to the Member State where the person is lawfully and ordinarily residing, so long as s/he consents to return to that State. The law applicable is the law of the executing Member State.Footnote 72 The issuing State has the competence on all subsequent decisions relating to a decision on supervision measures, and in particular: the renewal, review, withdrawal and modification of the supervision of the measures; the issuing of an arrest warrant or any other enforceable judicial decision having the same effect.Footnote 73 The issuing Member State must be immediately informed of any finding which can lead to the adoption of any of those measures. If the competent authority of the issuing State has issued an EAW or any other enforceable judicial decision having the same effect, the person shall be surrendered in accordance with the EAW FD.
In this brief summary of the main features of the FDs under consideration, their relevance to the right to liberty is twofold. Firstly, they all entail deprivation of liberty of the person concerned, due to the transfer from the issuing to the executing Member State. Secondly, a lack of clear rules concerning the participation of the individual in the procedures of recognition emerges. This is highly relevant to the right to liberty not only because the individual can be subject to the coercive transfer. The transfer to another state results in the application of rules possibly different from those of the issuing state, with regard to cases and procedures of deprivation of liberty. In the following section, I argue that the minor involvement of the individual in procedures of recognition can significantly affect the awareness of how his/her right to liberty can be limited in the executing state.
E. The right to liberty and coercive movement of people within the EU
The three FDs bring to the fore other significant aspects concerning the relationship between the right to liberty, and the higher level of automaticity in inter-state cooperation in criminal matters introduced by mutual recognition. In the following, I shall present two key points: the inadequate level of individual rights in procedures that give rise to deprivation of liberty; the lack of legal certainty concerning possible cases and procedures of deprivation of liberty that can arise on the basis of the application of these FDs.
1. Procedural rights of the individuals
With regard to the lack of procedural guarantees in the context of procedures of mutual recognition, the FD on the Transfer of Prisoners seems to be the most problematic. It removes the consent of the person concerned for the purposes of the transfer, in particular where the executing State is where the person lives or where s/he should be returned on the basis of an expulsion order.Footnote 74 The FD establishes only that the opinion of the person concerned must be taken into account. Furthermore, the FD is completely silent as to the procedures to be followed when adopting the decision on the transfer: no individual rights are provided for in this respect. The FD on Probation Measures and the ESO FD are ‘triggered’ at the request of the person concerned. Also in these cases the individual will be subject to deprivation of liberty, as s/he will be transferred to the executing Member State. However, these instruments do not ensure an adequate level of participation of the person concerned in the procedures of recognition. What emerges from the analysis of the three FDs is a sharp contrast in individual rights protection between criminal proceedings, on the one hand, and mutual recognition procedures, on the other. Mutual recognition procedures have an uncertain nature: they cannot be considered part of criminal proceedings, but have significant impact on personal liberty all the same. The EU has adopted three Directives on: translation and interpretation;Footnote 75 informationFootnote 76 ; and access to a lawyer in criminal proceedings.Footnote 77 As scope of application, the Directives lay down rules concerning these rights in: (1) criminal proceedings; and (2) proceedings for the execution of an EAW.Footnote 78 Therefore, the EU legislature acknowledges the difference between these two kinds of procedures. These instruments aim to reduce the existing distance of standard of protection between criminal proceedings on the one hand, and the EAW on the other. Unfortunately, this improvement has not involved the other three FDs. However, they have significant implications in terms of the right to liberty as well, so that there is no good reason for this discrepancy in terms of individual guarantees.
This uneven state of play is worsened by the problems which arise with regard to the right to liberty and legal certainty, which I shall deal with in the next section.
2. Legal certainty
In terms of legal certainty, the FDs leave much to be desired. However, this article focuses on the impact of mutual recognition on the right to liberty, so I shall highlight the aspects concerning this specific right.
The FDs on Probation Measures and pre-trial measures alternative to detention stipulate that the decision on recognition is to be taken within 60 days. However, they also provide that this time-limit may not be complied with, where exceptional circumstances occur.Footnote 79 No further deadlines are laid down, so that the transfer of the person concerned can be suspended sine die.Footnote 80 This is highly problematic. As shown, the ESO FD usually applies where the person concerned is in pre-trial detention just for not being in his/her country of residence. The transfer to the executing state would be conducive to setting him/her free. The same logic underlies the FD on Probation Measures. Allowing for continuing detention of the individual on a very broadly-worded legal basis (exceptional circumstances), without a term for a decision being set, could be highly detrimental to the right to liberty.
The impact of these instruments on the right to liberty also involves the lack of legal certainty with regard to cases and procedures of deprivation of liberty. To this end, the ECtHR has clarified that the right to liberty presupposes legal certainty: the law authorising and regulating deprivation of liberty is to be of sufficient quality. The automaticity introduced by mutual recognition in inter-state cooperation in criminal matters calls for deeper application of the requirement that deprivation of liberty take place in the cases and according to the procedures established by the law. In the previous section, I highlighted the relevance of the FDs to the right to liberty, since they result in the coercive transfer of the person. The following asymmetry can be discerned. On the one hand, the FDs confer upon the States the power to deprive a person of liberty; on the other, the procedures on the basis of which this deprivation should be carried out, as well the participation of the individual in these procedures, are not regulated at all.
The phase that follows the transfer to the executing state is not less problematic. Once the transfer is completed, the person will be subject to a different legal regime. This regards both the cases and the procedures of detention. The cases of deprivation of liberty are understood to be situations that can lawfully give rise to deprivation of liberty. For instance, the executing state can feature stricter rules than the issuing state in case of breach of a pre or post-trial measure alternative to detention, and sanction these infringements with deprivation of liberty (as a punishment or more severe pre-trial measure). The lack of involvement of the person in the procedures of recognition can seriously affect awareness of these aspects, capable of resulting in deprivation of liberty. Such uncertainty involves also the procedures of detention, and in particular the phase of enforcement. As clarified at the outset of this paper, the requirement that deprivation of liberty be carried out according to the procedures established by the law logically includes the phase that follows the apprehension of the person concerned. So long as deprivation of liberty is ongoing, clear legal procedures are to be established and abided by. In this context, significant differences may exist between the procedures of penitentiary regimes in the issuing and executing States. This is particularly problematic as far as the FD on the Transfer of Prisoners is concerned, since this instrument provides for the transfer of the person even without his/her consent. The FDs allow for and regulate – to a very small extent – deprivation of liberty and transfer of the person concerned, on the one hand. On the other, they provide no guarantees that the individual is made aware of his/her rights with regard to transfer procedures, as well as the difference in legal regimes that can affect his/her right to liberty. This has to do with those situations that can give rise to deprivation of liberty, and the way in which deprivation of liberty is enforced in the executing state.
One could object that the rules are still provided at national level, so that EU law would not be involved in such considerations. It is for national laws to determine the rules regarding prison regimes, or the consequences of breach of probation measures.Footnote 81 However, the person concerned is subject to a different legal framework after s/he has been forcedly transferred to another Member State. That transfer is based on a procedure regulated by EU law; a procedure in which the person concerned has no specific rights or guarantees. Either by directly providing for deprivation of liberty (eg the coercive transfer), or by giving the basis for further and different deprivation (rules on pre and post-trial measures), these EU law instruments are undeniably relevant to the right to liberty, and create an unbalanced legal framework at the expense of individual rights.
IV. CONCLUSIONS
In this article I have discussed the relationship between the right to liberty in EU law and the application of mutual recognition to criminal matters. In particular, I analysed the possible impact that four FDs can have on the right to liberty. Namely, the FDs on the EAW, the Transfer of Prisoners, Probations Measures, and pre-trial measures as an alternative to detention. The main claim is that the high level of automaticity in judicial cooperation introduced by mutual recognition requires an appropriate and better balance between effectiveness of judicial cooperation and individual guarantees. The right to liberty in EU law is protected by Article 6 CFREU, which has the same meaning and scope as Article 5 ECHR, resulting from the interpretation of the ECtHR. This right to liberty requires that deprivation of liberty be carried out in the cases and according to the procedures established by the law. This implies the need for legal certainty: the law is not to be framed in such a way as to provide the authorities with an unbounded power. I argue that the cases of deprivation of liberty should include all those situations capable of resulting in deprivation of liberty, such as breach of probation measures. The procedures logically involve the enforcement of deprivation of liberty, in particular detention conditions and penitentiary regimes. This is confirmed by the test elaborated by the Strasbourg Court, according to which deprivation of liberty in the context of inter-state cooperation in criminal matters is lawful where it is: carried out in good faith; closely connected to the grounds for detention relied on by the executing judicial authority; enforced in appropriate place and conditions; and of reasonable length in relation to the purposes pursued.
When it comes to assess the right to liberty in the context of mutual recognition procedures, the fundamental right provision referred to by the EU’s institutions is Article 5(1)(f) ECHR. However, the ECtHR’s interpretation thereof poses three main problems: that test regards extradition, which is rather different from mutual recognition; it provides for no requirements in terms of proportionality and necessity of detention, but only that extradition procedures be ongoing and carried out with due diligence; detention in the context of extradition has been granted a lower standard of protection than detention on remand, for example. The EU at legislative, and judicial, levels has stated that mutual recognition procedures (and the EAW in particular) may not be considered a mere variant of extradition. For all these reasons one could call into question the choice of Article 5(1)(f) as the suitable fundamental right reference for the right to liberty in the context of mutual recognition.
To this end, the Court’s approach to the right to liberty has improved over the years. Even though the Court initially denied the possibility not to execute an EAW in case of breach of the right to liberty, the Court has since stated the need to interpret the EAW FD in light of Articles 6 (the right to liberty) and 52 (the principle of proportionality) CFREU. Furthermore, the Court has recently opened the door to the non-execution of an EAW on the basis of inhumane or degrading detention conditions: namely, for violations of Article 3 ECHR. Against this background, in this paper I have argued the following. The proportionality test should always be applied by (at least) the executing judge to the decision on the detention of the person concerned, while the procedures of recognition and execution of the EAW are ongoing. Poor detention conditions that do not reach the threshold required by Article 3 ECHR, but result in a situation of arbitrary detention all the same, should lead to the non-implementation of mutual recognition. It would be so on the basis of the violation of the right to liberty. As for the assessment of detention conditions in the issuing state, the Caldararu test would be applicable. Firstly, the executing judge could rely on evidence provided by international and state courts, as well as reports of bodies under the Council of Europe or the United Nations. Secondly, the judge could ask for additional information from the issuing judge, and decide on the possible postponement and/or non-execution of the EAW.
These two arguments would be valid also for the other three FDs analysed. They explicitly allow for and regulate deprivation of liberty. They establish procedures which imply deprivation of liberty (eg to operate the transfer of the person concerned). Due to those procedures and the transfer, the person concerned may be faced with adverse and unknown consequences, such as harsher penitentiary regimes or sanctions ensuing from the infringement of pre and post-trial measures alternative to detention. However, the FDs lack rules concerning the participation of the person concerned in the procedures of recognition and execution. The distance between rights in criminal proceedings and in mutual recognition procedures has been reduced with regard to the EAW, thanks to the three procedural rights Directives. However, such an uneven legal framework remains, as far as the other three FDs are concerned.
The prison regime, or the consequences attached to the violation of a probation/supervision measure in the executing Member State, are strictly related to EU law. The person concerned would face adverse consequences in light of a procedure established at Union level. Those procedures are vague and confer no rights upon the individual. The high degree of automaticity introduced by the principle of mutual recognition increases such criticality, and significantly reduces the margin of intervention for the person concerned. In conclusion, mutual recognition currently has a preoccupying impact on the right to liberty in EU law: the role of the principle of proportionality is not clear at all, legal certainty on cases and procedures of deprivation of liberty is challenged by secondary EU law, and the position of the individual in procedures seriously affecting his/her right to liberty does not ensure an adequate standard of protection.
