Freedom security and justice area and the European

Freedom, security and justice area and the European Arrest Warrant: when (no) mutual trust on the conditions of detention justifies their non-implementation 23 November 2017 Fátima Pacheco Dora Alves IMP. GE. 90. 0

2 Instituto Superior de Contabilidade Administração do Porto (ISCAP) https: //www. iscap. ipp. pt/ do Instituto Politécnico do Porto https: //www. ipp. pt/ Universidade Portucalense Infante D. Henrique http: //www. upt. pt/ IMP. GE. 90. 0 e

Freedom, security and justice area and the European Arrest Warrant: when (no) mutual trust on the conditions of detention justifies their nonimplementation or just simplifying European Arrest Warrant: when the general conditions of detention in the issuing Member State prevent to its execution

TREATY ON EUROPEAN UNION (TEU) - 1992 TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU) - 1957 TREATY OF LISBON (LT) - 2007 OJ C 202, 07. 06. 2016 http: //eur-lex. europa. eu/collection/eu-law/treaties. html

Article 3 1. The Union's aim is to promote peace, its values and the well-being of its peoples. 2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

CHAPTER 4 JUDICIAL COOPERATION IN CRIMINAL MATTERS Article 82 1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to: (a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions; (b) prevent and settle conflicts of jurisdiction between Member States; (c) support the training of the judiciary and judicial staff; (d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions. 2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States. They shall concern: (a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament. Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals. http: //eur-lex. europa. eu/resource. html? uri=cellar: 9 e 8 d 52 e 1 -2 c 70 -11 e 6 -b 497 -01 aa 75 ed 71 a 1. 0006. 01/DOC_3&format=PDF

7 European arrest warrant ("EAW") The European arrest warrant ("EAW") is a simplified cross-border judicial surrender procedure – for the purpose of prosecuting or executing a custodial sentence or detention order. A warrant issued by one EU country's judicial authority is valid in the entire territory of the EU. IMP. GE. 90. 0

Official website of the European Union http: //europa. eu Access to European Union law http: //eur-lex. europa. eu European Arrest Warrant http: //ec. europa. eu/justice/criminal/recognitiondecision/euro pean-arrest-warrant/index_en. htm https: //e-justice. europa. eu/content_european_arrest_warrant -90 -en. do

9 COUNCIL FRAMEWORK DECISION of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (OJ L 190, 18. 7. 2002, p. 1) Amended by: Council Framework Decision 2009/299/JHA of 26 February 2009 L 81 24 27. 3. 2009 http: //eur-lex. europa. eu/legal-content/EN/TXT/? qid=1510750518486&uri=CELEX: 02002 F 0584 -20090328 The European arrest warrant has been operational since 1 January 2004. It has replaced the lengthy extradition procedures that used to exist between EU countries. IMP. GE. 90. 0

10 COMMISSION NOTICE of 28. 9. 2017 HANDBOOK ON HOW TO ISSUE AND EXECUTE A EUROPEAN ARREST WARRANT Brussels, 28. 9. 2017 C(2017) 6389 final file: ///C: /Documents%20 and%20 Settings/Propriet%C 3%A 1 rio-de. HP/Os%20 meus%20 documentos/Downloads/Handbook%20 on%20 issuing%20 EAW_EU_en%20(2). pdf IMP. GE. 90. 0

11 On portuguese law: https: //dre. pt/ Lei n. º 65/2003 de 23 de Agosto Aprova o regime jurídico do mandado de detenção europeu (em cumprimento da Decisão Quadro n. º 2002/584/JAI, do Conselho, de 13 de Junho). Lei n. º 35/2015 de 4 de maio Primeira alteração à Lei n. º 65/2003, de 23 de agosto, que aprova o regime jurídico do mandado de detenção europeu, em cumprimento da Decisão -Quadro 2009/299/JAI, do Conselho, de 26 de fevereiro de 2009, que reforça os direitos processuais das pessoas e promove a aplicação do princípio do reconhecimento mútuo no que se refere às decisões proferidas na ausência do arguido. IMP. GE. 90. 0

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2016/C 202/02) OJ C 202 07. 06. 2016

Article 52 Scope and interpretation of rights and principles (…) 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

Article 53 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.

15 JUDGMENT OF THE COURT (Grand Chamber) 26 February 2013 (Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person concerned has not appeared in person – Execution of a sentence pronounced in absentia – Possibility of review of the judgment) Case C‑ 399/11, REQUEST for a preliminary ruling under Article 267 TFEU • Stefano Melloni • v • Ministerio Fiscal http: //curia. europa. eu/juris/liste. jsf? language=en&jur=C, T, F&num=399/11&td=ALL IMP. GE. 90. 0

So, According to the Melloni judgment, once the executing judicial authority can not rely on one of the grounds for non-execution exhaustively listed, it is obliged to surrender the requested person to the judicial authorities of issue even where the provisions of its national law, even if constitutional, confer a higher level of protection of fundamental rights than that arising from the provisions of the Framework Decision. 16

17 5 April 2016 JUDGMENT OF THE COURT (Grand Chamber) (Reference for a preliminary ruling — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Grounds for refusal to execute — Charter of Fundamental Rights of the European Union — Article 4 — Prohibition of inhuman or degrading treatment — Conditions of detention in the issuing Member State) Joined Cases C‑ 404/15 and C‑ 659/15 PPU, REQUESTS for a preliminary ruling under Article 267 TFEU • Pál Aranyosi (C‑ 404/15) • Robert Căldăraru (C‑ 659/15 PPU) http: //curia. europa. eu/juris/liste. jsf? language=en&jur=C, T, F&num=404/15&td=ALL IMP. GE. 90. 0

The problem: Allowing a Member State to invoke the highest standard of protection of fundamental rights to subordinate the delivery of a convicted person in default could jeopardize the principles of mutual recognition and mutual trust on which the EAW is based and, consequently, its effectiveness. 18

As the importance of the protection of fundamental rights, it is necessary to be aware that the last case-law makes it possible to introduce a systematic exception to the execution of European arrest warrants issued by States which do not comply with the minimum requirements laid down by international law, which would lead to a standstill of the mechanism, and could jeopardize one of the objectives of the area of freedom, security and justice. 19

Thank you for your attention. Fátima Pacheco fatima_pacheco@live. com. pt Dora Resende Alves dra@upt. pt

21 IMP. GE. 90. 0