European court in the spotlight

The Court of Justice of the European Union has thrown up a few juicy stories recently.

The most significant is a judgment in a case - in fact two joined cases, C-404/15 and C-659/15 - concerning the European arrest warrant. The only coverage I could find in the British papers was in the Daily Mail, which ran a remarkably straight account of the decision under the headline ‘Suspected criminals should not be deported from Britain to other European states if they might suffer bad treatment in jail, EU’s top court rules’.

There were 1,400 comments underneath. I didn’t have time, or inclination, to read more than a handful of those, but I soon got the drift.

There are various newsworthy aspects to the case. First, it was dealt with under Article 107 of the court’s rules of procedures, allowing for an urgent decision in a preliminary ruling application. The relevant priority was given in August and December 2015 respectively to the two. They were then joined, and a decision issued in April – pretty speedy for the court.

Second, the judges effectively made new law. One of the problems with the European arrest warrant has been that there were no grounds for refusing to execute it, apart from the strict criteria laid out in the framework decision itself – and breach of fundamental rights was not among them. The European Commission’s initial proposal had envisaged fundamental rights’ violations as a potential bar to surrender, but no express grounds for such refusal found their way into the final legislation.

Article 1 of the framework decision reminds member states that the law ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union’ – but that is not quite the same thing as express grounds for refusal.

The right at issue in the joined cases was Article 3 of the European Convention on Human Rights – ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. The cases concerned a Hungarian and a Romanian, both sought by their national governments for crimes (forced entry and theft in one case, driving without a licence in the other).

They were both arrested in Germany, and the court in Bremen asked the European Court whether it could refuse to return them to their respective countries because of the very poor prison conditions in each of them.

The European court confirmed that an absolute prohibition on inhuman or degrading treatment or punishment is part of the fundamental rights protected by EU law. Where the authority responsible for the execution of the warrant has evidence of a real risk of such treatment, it must assess the risk before deciding on the surrender of the individual. If the risk comes from general detention conditions, that, in itself, should not lead to the execution being refused. It is necessary to show that the individual will be personally affected.

Therefore, the executing authority must ask the issuing authority to provide, as a matter of urgency, all information necessary on detention conditions. If, after this, there continues to be real risk of inhuman or degrading treatment, the execution must be deferred until additional information has been obtained. If the risk still cannot be discounted within a reasonable time, the authority must decide whether the surrender should be brought to an end.

As with all decisions, there are good and bad consequences. The bad is the Daily Mail line: that criminals might not be sent back to face justice. The good is that the decision may pressure some countries to improve their detention conditions.

There have been other recent European court stories, usually linked to the recent controversy over its request to increase the number of judges in the General Court. The court published its most recent annual statistics last month, and was very proud to announce that new records have been set in terms of productivity, and indeed new cases submitted.

Just a few days later, it announced the new structure into which the General Court judges will be absorbed. But the shine was rather taken off this bout of self-promotion by an attack on the whole idea of the judicial increase by one of its own judges, who declared publicly that it was misconceived.

But I predict that peace will now break out, since the contentious president Skouris from Greece, who led the push for reform, is no longer in charge.

Of course, this may soon become ‘a quarrel in a faraway country between people of whom we know nothing’. But at least until 23 June (and for some time thereafter), the rulings of the European court govern significant aspects of our country, and we should know of its doings.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs