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Clarifications on the conditions of refusal of execution of an European Arrest Warrant in relation to the right to a fair trial

Alicja Slowik , 9 février 2023

On 31st January 2023 the Court of Justice of the EU (the “CJEU”) delivered judgment in the case Puig Gordi (C-158/21) concerning the interpretation of the Framework Decision 2002/584 on the European arrest warrant (the “EAW”) and the surrender procedures between Member States (the “framework decision”). The Grand Chamber ruled that an executing judicial authority may not, in principle, refuse to execute an EAW, on the ground that the court of the issuing Member State which will try the surrounded person lacks jurisdiction to rule upon his or her criminal proceedings.

In October 2019, the Spanish Supreme Court issued European arrest warrants against three politicians Mr Comín Oliveres, Mr Puig Gordi and Ms Ponsatí Obiols who were involved in the organisation of 2017 Catalan independence referendum. Belgium initiated proceedings for the execution of these EAWs. Proceedings with regard to two politicians were suspended as they acquired status of members of the European Parliament. As for the third concerned politician, Mr Puig Gordi, the Belgian court refused to execute the EAW against him. It based its refusal on the assessment that the Spanish Supreme Court did not have jurisdiction to examine the criminal proceedings and to issue the EAW against Mr Puig Gordi. This assessment was made on the basis of, inter alia, the case law of the CJEU and of the European Court of Human rights, as well as on the relevant provisions of Belgian and Spanish law.

Confronted with the refusal of the Belgian jurisdiction to execute the EAW, the Spanish Supreme Court was unsure whether it should issue a new EAW against Mr Puig Gordi and whether it should maintain or withdraw the EAWs issued against two other defendants. In these circumstances, the Spanish Supreme Court decided to address to the CJEU a whole set of questions regarding the interpretation of the framework decision. It wanted to know, in particular, whether an executing authority may refuse the execution of the EAW on the ground that the surrendered person will be tried before a court which lacks jurisdiction to hear his or her case.

The CJEU recalled that the execution of the EAW is the rule and the refusal to execute constitutes an exception which should be interpreted strictly. The execution may be refused solely under circumstances provided for in the framework decision. The Court emphasised that a Member State may not add grounds of non-execution other than those foreseen in the framework decision. Consequently, the execution of an EAW cannot be refused on the ground which arises solely from the law of the executing Member State.

Referring to its well-established case law (Joined Cases X and Y v Openbaar Ministerie (C‑562/21 PPU and C‑563/21 PPU), see Actualité CEJE of 31 March 2022), the Court observed that under Article 1(3) of the framework decision, an executing authority may refrain from giving effect to the EAW if the surrender would result in the infringement of the person’s right to a fair trial guaranteed by Article 47 of the Charter. In order to establish the existence of a real risk of the breach of the fundamental right to a fair trial justifying the refusal of the EAW’s execution, an executing authority shall proceed to a two-step examination. It should first, determine whether there is a real risk of breach, in the issuing Member State, of the right to a fair trial, on account of “systemic or generalised deficiencies so far as concerns the independence of that Member State’s judiciary”. Secondly, the authority must conduct a specific examination of the personal situation of the concerned person to assess whether such a risk exists in the concrete case.

If the risk of breach of the right to a fair trial results from the fact that after the surrender, the person concerned could be tried by a court lacking jurisdiction for that purpose, the existence of such a risk can be established only if the court called upon to hear the case manifestly lacks jurisdiction. Moreover, before taking decision on the refusal of execution of the EAW on the ground that the issuing authority manifestly lacks jurisdiction, an executing authority should, in the full respect of the principle of mutual trust, ask the court of the issuing State to provide supplementary information in accordance with the procedure foreseen in Article 15 of the framework decision.

Finally, the Court observed that it is possible to issue several warrants for a requested person in case the first issued EAW has been refused by the executing authority. Nonetheless, before issuing a subsequent warrant the competent authority shall examine whether the execution of the warrant would not result in the breach of fundamental rights of the person concerned and that the issuing of the EAW would be proportionate.

Puig Gordi is new illustration of the recent rulings rendered by the CJEU raising the sensitive question of the tensions between the principle of mutual trust and the aim of protection of fundamental rights (see e.g. cases LM (C-216/18 PPU), X and Y v Openbaar Ministerie (C‑562/21 PPU and C‑563/21 PPU), Commissaire général aux réfugiés et aux apatrides (C-483/20)). In the present judgment, the CJEU recognised that an executing authority may refuse the execution of the EAW in situation where a court called to hear the criminal proceedings of the requested person clearly lacks jurisdiction for that purpose. By reiterating strict conditions of such a refusal, the Court puts strong emphasis on the crucial role of the principle of mutual trust, “the cornerstone of judicial cooperation”, in the functioning of the area of freedom, security and justice.


Alicja Słowik, Clarifications on the conditions of refusal of execution of an European Arrest Warrant in relation to the right to a fair trial, actualité du CEJE n° 3/2023, 9 février 2022, disponible sur www.ceje.ch