The Opinions of the Advocates General of the Court of Justice of the European Union (CJEU), while not anticipating any binding effect, generally anticipate the significance of the later judgments of this body. In fact, the dominant trend in practice is that such conclusions are essentially accepted by the ECJ in its decisions. Starting from this premise and with due caution, it can be said that the recent publication of the Attorney General’s conclusions in response to Judge Llarena’s preliminary ruling in the Puig i Gordi case represents a significant turning point, providing a glimpse into what will be the final outcome of the complex judicial game be that Carles Puigdemont and other pro-independence leaders are playing with the Supreme Court on the European stage?
The facts leading to the conclusions to which we refer are as follows: The Brussels Court of Appeal has refused to execute the Supreme Court’s European Surrender Order for Mr Puig – then an adviser in the Puigdemont government in 2017 judge court in our country. The Belgian judges, on the basis of a report by the United Nations Working Group on Arbitrary Detention, considered that the Supreme Court has no jurisdiction and that therefore extradition of the wanted person would imply a risk of violating his fundamental right to a trial .equitable and the judge appointed by law. Under these circumstances and in accordance with the provisions of Belgian law, the Brussels court refused to execute the Euroorder. Against this decision, Judge Llarena issued a preliminary ruling before the ECJ, asking him to clarify whether it fits within the European norm governing the detention and surrender order (Framework Decision of 2002) or, on the contrary, whether it contravenes it.
In order to understand the relevance of the conclusions now published, it must be emphasized that the European Arrest and Surrender Warrant (Euro Order) is an essential part of criminal cooperation operating in the European Area of Freedom, Security and Justice. Likewise, that its functioning is based on what is considered its “cornerstone”: the principle of mutual recognition and mutual trust between the judicial authorities of the Member States. The existence of a common European culture of fundamental rights, as well as some essential values that underlie the Union and all Member States (democracy, the rule of law and the independence of the judiciary), form the basis of this construction, makes it possible. Consequently, it is logical that the Framework Decision governing the Euroorder establishes its execution as a general rule. Denial, on the other hand, is considered an exception and, for this purpose, is subject to a set of evaluated grounds which states cannot unilaterally change by invoking their own regulations.
However, as the ECJ has pointed out in various judgments, situations in which a judge may refuse a surrender order for reasons not expressly provided for in the Framework Decision cannot be ruled out. In such cases, the same Decision provides a general approach by stating that its application cannot alter “the obligation to respect fundamental rights and fundamental principles of law” recognized in Union law (Article 1(3)). So the question is how this provision is to be understood in order to legitimize the possible refusal of a Euroorder for breach of fundamental rights, and then whether the specific decision of the Brussels Court of Appeal in the Puig i Gordi case is admissible.
In this sense, the CJEU expressly endorsed the decision to refuse a surrender order, regardless of the grounds set out in the Framework Decision, giving priority to the protection of fundamental rights: the prohibition of inhuman and degrading treatment (Aranyosi and Caldararu case, 2016) or the right to a fair trial (Minister for Justice and Equality, 2018 and Openbaar Ministry, 2020). On the other hand, the assumption of bankruptcy of the principle of mutual trust derived from such an approach is linked to the coincidence of two circumstances. First, the state issuing the surrender order must have “systemic or general deficiencies in the functioning of its judicial system.” Recognition of this fact requires a rigorous attitude on the part of the complainant (the requested judge), who must demonstrate that such deficiencies reach “reasonable certainty” as can be deduced from “objective, reliable and duly updated data”. . In addition, it must be demonstrated from an individual point of view that, in the event of childbirth, there is a real and certain risk of violating the fundamental right of the person. A danger that cannot be avoided inside, since there are no opportunities to make amends.
It is this generic frame of reference that the Attorney General uses to verify that the stated requirements have been met by the Brussels Court of Appeal in its decision to refuse the surrender of Mr Puig to the Supreme Court. In developing this task, the conclusions presented indicate that the Belgian judges have never pointed to the existence of serious systemic deficiencies in the Spanish judiciary. They limited themselves to confirming that the Supreme Court has no jurisdiction in the case and, based on that assertion and based on what was found in a report by the UN Arbitrary Detention Group, concluded that the basic right to a fair trial and a fair judge was predetermined by law. The inconsistency of this line of argument from the point of view of European law becomes clear in the conclusions. First of all, it is established that the requirements imposed by the ECJ for approving the rejection of a euro order are of a cumulative nature in these cases. Thus, the absence of evidence of serious systemic shortcomings in the Spanish judiciary, which in no case could be deduced from the above-mentioned report of the UN Committee, would in itself have been enough to disavow the resolution adopted by the Belgian judiciary. However, he does not stop there, the Attorney General in his argument progressively and decisively rejects the existence of the second necessary condition, namely the risk of a violation of the aforementioned fundamental right. In this regard, it is recalled that such a contingency presupposes that, in the appointment of judges, irregularities (both manifest and manifest violations) are so serious that they prevent the accused from obtaining a solution based on the law. That the judge receiving a Euroorder checks the competence of the issuing judicial authority in the absence of such circumstances is a sign of distrust, which “sits at the opposite end of the bases of criminal cooperation: mutual trust and mutual recognition”. According to the Attorney General, admitting such behavior would mean “opening the floodgates to the demolition of a building that was erected with patience.”
That this door is actually closed is in line with the CJEU and for that to happen the judgment answering the preliminary question raised by Judge Llarena should be in line with the roadmap set out by the conclusions set out: repeating the surrender order for Mr Puig, the Belgian court of authority must step in to enforce it. A similar pattern of behavior will apply in relation to the other pro-independence leaders whose court cases are pending. By doing so, the ECJ would not only effectively help to heal the worrying cracks caused by the procedural vicissitudes of these leaders in criminal judicial cooperation in the Union. It would also be a fundamental contribution to overcoming the international disrepute from which our jurisprudence suffers.
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