The Court of Justice of the European Union (CJEU) has today placed limits on the ability of a member state to deny the execution of a Eurowarrant issued by another country, as Belgium did with the request for surrender sent by Spain in relation to former Minister Lluis Puig, when he alleged that the Supreme Court was not the competent judicial body to make such a claim and also alleged the risk of violation of the fundamental rights of the person in question. The ruling also points the way to the Supreme Court to once again demand that the Belgian judicial authorities hand over Puig, Carles Puigdemont, Toni Comín and Clara Ponsatí.
“An executing judicial authority cannot, in principle, refuse to execute a European arrest warrant (EAW) based on the lack of jurisdiction of the court that will prosecute the person sought in the issuing Member State,” the ruling states. issued today by the CJEU in response to the preliminary questions sent by Judge Pablo Llarena to Luxembourg after seeing his request for the delivery of Puig denied by Belgium. “A refusal decision, adopted after an adequate examination, must be of an exceptional nature,” the ruling states. It would only be possible to reject it if it came to the conclusion, after an examination, that the lack of competition “is manifest”, he affirms.
The other key point on which the CJEU has ruled is the ability of a member state to determine if, in the event of executing a Eurowarrant, there is a risk of violation of the fundamental rights of the affected person in the state of destination, such as argued Belgium in its day. “An executing judicial authority does not have the power to refuse to execute an EAW based on a reason for non-execution that derives exclusively from the Law of the executing Member State,” says the sentence, which recalls that otherwise the framework decision by which the Euroorder was created in 2002 would not be applied uniformly throughout the EU “and the Member States could freely determine the scope of the obligation to execute the ODEs”.
The CJEU points out, however, that “the executing judicial authority may apply a national provision that provides that the execution of a European arrest warrant will be denied when that execution would lead to the violation of a fundamental right”, a conclusion to which only it can be reached through a “two-phase” examination, as established by the jurisprudence of the CJEU. In other words, when it is first established that there are “systemic or generalized deficiencies in the functioning of the judicial system of the issuing State” and, then, the personal risk for the affected party is determined “in a concrete and precise manner”. But, he qualifies, the scope of the national provision in question “should not exceed the obligation to respect fundamental rights established in the Framework Decision” by which the Euroorder was created.
Finally, the CJEU clarifies that “several successive ODEs may be issued against a wanted person in order to obtain his surrender by a Member State after said State has refused to execute a first ODE directed against that person”, thus aligning with the Llarena’s thesis, which plans to request the surrender of Puig, Puigdemont, Comín and Ponsatí again. The sentence points out, however, that the execution of the new Euroorder “should not give rise to a violation of the fundamental rights of said person and its issuance must be proportionate.”
“The principles of mutual trust and recognition between the member states constitute the cornerstone of the judicial cooperation system of the Euroorder”, recalls the ruling of the High Court, more restrictive in its conclusions than the preliminary ruling report of the Advocate General published in July last year. However, the CJEU “also underlines the paramount importance of the fundamental right to a fair trial”. Although the trigger for the CJEU’s pronouncement is Puig’s situation, the importance of the sentence published today lies in the fact that it also makes it possible to clarify the procedural situation of Puigdemont, Toni Comín and Clara Ponsatí when determining the margin of appreciation that the judicial authorities have of a member state, Belgium in this case, when assessing and possibly rejecting a delivery request.
Once the opinion of the European courts has been established on the potential reasons for rejecting a Euro-warrant, the other major case that remains to be resolved in Luxembourg is the immunity of Puigdemont, Comín and Pontsatí, after they appealed to Luxembourg the plenary decision of the Eurocámara to accept the request of the TS and lift this legal shield. The sentence will be known in the coming months. Puig, prosecuted for a crime of embezzlement, did not appear in the elections to the European Parliament and therefore does not have this legal protection, so his case could be resolved more quickly once Llarena re-issues the Euro-order to claim against Belgium your delivery.
The recent reforms in the Spanish Criminal Code led the magistrate of the TS to reformulate the indictment against Puigdemont to suppress the crime of sedition, already repealed, and annulled the Euro-orders already issued, pending today’s sentence and that the issue of their immunity as MEPs be resolved in order to issue new ones soon against Puigdemont, Comín and Puig for embezzlement.
