Prison Break? The CJEU rules on clashing EU and national law obligations on detention time limits


Joske Graat, PhD candidate,
Utrecht University

If EU law provides
for a longer period of detention of a person subject to a European Arrest
Warrant, and national law provides for a shorter period, which prevails? If
national law is vague about the issue, is that a violation of the ECHR (and
therefore also the EU Charter of Fundamental Rights), which provides that
detention needs to be ‘lawful’, and so relevant national laws must be precise?

In the recent TC
judgment the Court of Justice of the European Union (CJEU) provided an answer
to the preliminary
question
posed by the Amsterdam District Court in July 2018, which raised
these issues. The preliminary ruling was supposed to aid in resolving the
devilish dilemma in which the Amsterdam District Court and Amsterdam Court of
Appeal currently find themselves. As described in an earlier contribution,
these national courts are stuck between national rules and EU law obligations
regarding detention pending surrender proceedings. Article 22 of the Dutch
Surrender Act (SA) transposes Article 12 of the Framework
Decision on the European Arrest Warrant
(FDEAW) into an automatic and
absolute obligation to release the requested person if no decision on the
execution of the EAW is made after 90 days have passed.
In other words, the
decision to extend the time to rule on the execution of an EAW after 90-days
have lapsed needs to be accompanied by the decision to (provisionally) release
the requested person. The application of this national rule became problematic
after the Lanigan
judgment wherein it was established that national judicial authorities are not
obliged to provisionally release the requested person after 90 days as this may
threaten the effectiveness of the FDEAW. To avoid a violation of the obligation
in article 17 FDEAW, which requires that the substantive conditions for
surrender are guaranteed at all times, both the Amsterdam District Court and
the Amsterdam Court of Appeal adopted – on the basis of different legal
reasonings – a broad interpretation of article 22 SA. They concluded that
article 22 SA not only contains the power to extend the decision term after
90-days, but also includes the competence to suspend the 90-day term before it
has lapsed. In case of the latter, the 90-day term is barred, which may result
in a de facto detention duration beyond 90 days. In its request for a
preliminary ruling the Amsterdam District Court asked whether this new
interpretation violates legal certainty as protected by Article 6 Charter
of Fundamental Rights
of the European Union (CFR), which lays down the
right to liberty, and which corresponds to Article 5 ECHR.
In its preliminary
ruling
the CJEU first determines that the FDEAW precludes the unconditional
obligation to release after 90 days as it undermines the effectiveness of the
FDEAW. As we will see, this determination plays an important role in relation
to the second conclusion, which is that Article 22 SA and its current
interpretation by the national courts does not constitute a sufficiently clear
and predictable legal basis for continued detention after 90 days. In my view
the legal reasoning underlying this conclusion gives rise to certain questions
and does in the end not provide the necessary solution to the dilemma in which
the national courts find themselves. 
The CJEU bases its
violation of Article 6 CFR on two main arguments; the variation in the legal
reasonings of the national courts that may result in different periods of
continued detention and the fact that the current national case law does not
ensure full conformity with the FDEAW. 
With regard to the second argument it is, in my view, first of all
interesting that the CJEU does not only consider the clarity and predictability
of Article 22 SA, but of the relevant provisions in the FDEAW, as interpreted
in Lanigan, as well. This gives rise
to the question in what way the individual is concerned with the clarity of the
rules in the FDEAW, as it is an instrument that imposes obligations on the
member states, is not directly applicable and does not have direct effect? Does
this mean that an individual should be able to understand the rules on the
duration of detention as they follow from the FDEAW interpreted in the case law
of the CJEU? Absent legal counsel this seems like an almost impossible
task. 
Secondly, in the
context of the second argument the CJEU concludes that ensuring clear and
predictable rules on the duration of detention requires a broader application
of the power to suspend the decision term by the national courts. The CJEU
firmly reminds the national courts of their obligation to do all within their
jurisdiction to interpret Article 22 SA in conformity with the FDEAW as
explained in Lanigan. The current
interpretation fails in this regard as it only allows for a suspension in three
particular situations, including the referral or awaiting of a preliminary
ruling and when the issuing state is requested to provide information
contradicting a possible violation of article 4 or 47 CFR. However,
when the preliminary ruling is made or information is provided by the issuing
state the suspension is lifted, and the 90-days term once again applies.
According to the CJEU, in order to ensure full conformity with the FDEAW,
national law should allow for a suspension of the decision term in all cases in
which a serious risk of absconding cannot be sufficiently limited by
non-custodial measures.
An obligation to
(provisionally) release only arises when after balancing the factors laid down
in Lanigan continued detention
becomes excessive. This message of the CJEU brings the national courts, in my
opinion, back to square one. Despite the CJEU’s firm emphasis on the duty of
conform interpretation (indirect effect) and the fact that a suspension of the
decision terms is not prohibited by the FDEAW, it is still for the national
courts to determine whether a conform interpretation is in fact possible. In
this light, I would argue that interpreting Article 22 SA in full conformity with
the FDEAW would clash with the intent of the Dutch legislator to establish an
unconditional obligation to release after 90 days and would be contra legem. Suspending a decision
means in common parlance ‘halting or stopping’ an ongoing term which has not
yet lapsed, whereas extending means ‘adding’ time to a term which has
already lapsed. Hence a fully conform interpretation of Article 22 SA would
require a contra legem explanation of
this provision, which would in itself not contribute to the protection of an
individual’s legal certainty. In other words, the national courts are still
stuck between EU obligations and national rules whose wording do not allow a
conform interpretation. As the CJEU did not answer the question whether the
primacy rule applies to the FDEAW as well, this preliminary ruling does not
provide the necessary solution for the dilemma of the national courts. However,
this may change when the CJEU answers this question in the Poplawski II case which is still pending
(Opinion
of the AG November 27, 2018).
It can be concluded
that the CJEU seems to use the TC
case to send a message of its own. Despite the clear fundamental rights angle
of the initially referred question, the judgment is, in my view, predominantly
a slap on the wrist of the Dutch legislator and the national courts for not
ensuring full compatibility with EU law. In addition, the dilemma in which the
national courts find themselves is not solved. This reaffirms the conclusion made
in my previous contribution,
which is that the Dutch legislator needs to step in to solve this situation as
it is the only public authority with the necessary means to do so. To end on a
more positive note, the strong focus on the incompatibility of national law
with EU law might just be the necessary push for the Dutch legislator to come
to the rescue of the national courts by adapting article 22 SA in conformity
with the FDEAW.
Barnard & Peers:
chapter 25



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