PPU Lanigan: the Tension between European Arrest Warrants and Right to Liberty

francis-lanigan
Photo credits: Sunday World

On 16 July 2015, the CJEU’s Grand Chamber has given its ruling in Case C- 237/15 PPU Minister for Justice and Equality v Lanigan (EU:C:2015:474) under the Urgent Preliminary Reference Procedure (“PPU”), within 2 months of receiving the reference from the High Court of Ireland.

What is the PPU?

The PPU is of rather recent antiquity, having come into force in March 2008. It allows a reference for a preliminary ruling raising one or more questions concerning the area of freedom, security and justice (“ASFJ”) to be dealt with under an urgent procedure. According to the CJEU’s 2011 report on the PPU, cases using the PPU are completed, on average, within 66 days. Compared to the average duration of 15.0 months for a standard preliminary ruling (as reported for the year 2014), the PPU is nothing less than remarkable, demonstrating the CJEU’s special concern for criminal justice and individual liberty.

According to the CJEU’s Annual Report 2014, from the PPU’s inception in 2008 to 2014, the CJEU has only adopted the PPU 22 times (roughly half of the total number of requests received). Therefore, the use of the PPU is a tell-tale sign of the urgency and importance of the case.

The facts in Lanigan

Francis Lanigan was wanted in connection with the murder of John Knocker, a 19-year-old man from Belfast, back in 1998. Knocker was shot dead in a hotel car park in Dungannon, Co Tyrone. The murder was thought to be related to a dispute over drugs money. 15 years later, Lanigan was arrested on foot of a European Arrest Warrant (“EAW“) in 2013 in a Dublin gym, where he had been working under a pseudonym. He was due to be extradited to Northern Ireland for trial. In fact, Lanigan is an ex-INLA man, and he argued before the High Court of Ireland that extradition to the UK would put him under mortal peril from loyalist and republican paramilitaries.

As if that itself is not interesting enough, there had been successive adjournments, and Lanigan was kept in custody until the substantive hearing in June 2014. Although bail was granted in December 2014, the conditions attached were not satisfied and so Lanigan remained in custody up until the reference to the CJEU and the granting of the PPU in May 2015. As a result, by the time the case was heard before the Grand Chamber in Luxembourg, Lanigan had been held in custody for almost 29 consecutive months.

The legal challenge

The procedure for executing the EAW is governed by Council Framework Decision 2002/584/JHA of 13 June 2002 (“Framework Decision“).

Article 15(1) requires the executing judicial authority “to decide, within the time-limits and in accordance with the conditions defined in the Framework Decision, whether the person is to be surrendered“.

Article 17 further provides that the EAW shall be executed “as a matter of urgency“, and the final decision should be taken within 60 days after the arrest of the requested person. This can be extend for a further 30 days after informing the issuing judicial authority of the reasons for delay, bringing the total duration of custody pending the decision to execute the EAW up to 90 days.

It does not take a rocket scientist to notice that the actual time taken in Lanigan’s case is more than nine times the prescribed duration… and counting! So it is not surprising that Lanigan sought to challenge the execution EAW on the ground that the EAW could not be executed after the stipulated time-limit has elapsed. The High Court of Ireland asked the CJEU to rule on:

(1)  The effect of the failure to observe the stipulated time-limits; and

(2) Whether such failure gives rise to rights on the part of the individual held in custody pending a final decision.

CJEU’s ruling

The CJEU rejected Lanigan’s arguments and held that the delays, no matter how egregious, would only “postpone” the execution of the EAW, since the issuing Member State could issue a second EAW anyway. The crux of the reasoning is summed up in paragraph 37:

Therefore, in the light, first, of the central function of the obligation to execute the European arrest warrant in the system put in place by the Framework Decision and, second, of the absence of any explicit indication therein as to a limitation of the temporal validity of that obligation, the rule set out in Article 15(1) of the Framework Decision cannot be interpreted as meaning that, once the time-limits stipulated in Article 17 of the Framework Decision have expired, the executing judicial authority is no longer able to adopt the decision on the execution of the European arrest warrant or that the executing Member State is no longer required to carry out the execution procedure in that regard.

Crucially, the CJEU further took a rather semantic approach when it comes to the analysis of Lanigan’s rights upon expiry of the time-limits. It held that, whereas Article 23(5) of the Framework Decision provides that the executing State shall release the person if he/she is not surrendered within the time-limit following the decision to execute the EAW, no such mandatory language could be found in Articles 15 and 17 (paragraphs 46-48). Therefore, there is no obligation to release Lanigan just because the execution of the EAW has been delayed.

The CJEU justifies this result by relying on Article 26(1) of the Framework Decision (paragraph 51):

[T]he issuing Member State is to deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in that State, thereby ensuring that all periods of detention, even those resulting from possibly being held in custody after the time-limits stipulated in Article 17 of the Framework Decision have expired, will duly be taken into account if a custodial sentence is executed in the issuing Member State.

The CJEU recognised that the detention of Lanigan had to be consistent with his right to liberty as protected by Article 5 of the ECHR and Article 6 of the EU Charter of Fundamental Rights. This is subject to the principle of proportionality and the presence of a legitimate objective of general interest (paragraph 55).

The CJEU observed that the executing judicial authority has to take into account the justification for the duration of the procedure, the potential sentence faced by the requested person, the risk of absconding, and the fact that the stipulated time-limit has been exceeded. If it is necessary to bring the person’s custody to an end, the executing judicial authority should attach conditions to the provisional release to prevent the person from absconding.

Commentary

The most positive aspect of the ruling is that the CJEU has shown a willingness to consider Strasbourg case law concerning the right to liberty. It referred to the European Court of Human Right’s judgments in Quinn v France (1995) and Gallardo Sanchez v Italy (2015)and acknowledged that the requested person could remain in detention “only in so far as the procedure for the execution of the European arrest warrant has been carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the custody is not excessive.”

However, the CJEU’s decision on the effect of the delays effectively renders the stipulated time-limits otiose. Without any concrete consequences attached to non-compliance with the time-limits, Article 17 of the EAW has been construed as no more than mere guidelines that has no bite at all. As the old Hobbesian adage goes, “covenants, without the sword, are but words“.

Even if the EAW itself is justified and the requested person is suspected of a serious offence, one must not forget that he is presumed innocent until convicted after extradition, and enjoys a fundamental right to liberty – that is the purpose of placing a time-limit on the procedure for execution. The Framework Decision stipulates a requirement, a right to timely consideration of the EAW, and a breach of that right necessitates a reciprocal remedy. As Holt CJ said in Ashby v White (1703) 1 Sm LC (13th ed, 1929) 253 at 273:

If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.

Although the CJEU took the view that the requesting Member State could deduct the period of excessive detention from the ultimate sentence, this wrongly assumes that the requested person would invariably be found guilty. Not only does this violate the presumption of innocence, it leaves acquitted individuals without an adequate remedy.

The CJEU did acknowledge that the executing judicial authority may in some cases decide to bring the detention to an end, but it fell short of stating that there could be a right to damages for the breach of a right in EU law, in line with the principles of an effective and equivalent remedy set out in Case C-6/90 Francovich v Italy (EU:C:1991:428) at paragraphs 33-34:

The full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible.

The possibility of obtaining redress from the Member State is particularly indispensable where, as in this case, the full effectiveness of Community rules is subject to prior action on the part of the State and where, consequently, in the absence of such action, individuals cannot enforce before the national courts the rights conferred upon them by Community law.

The right to compensation for wrongful detention is not foreign at all, and in the UK, false imprisonment is an actionable tort. There is no reason why the same principles do not apply to excessive detention due to non-compliance with EU law. This would have had the salutary effect of encouraging Member States to strictly adhere to the time-limit. As the law currently stands, it would be up to the EU legislature to amend the EAW provisions and provide for more adequate remedies.

Aftermath

The case went back to the High Court of Ireland, with the CJEU’s ruling clearing the way for extradition. In September 2015, the High Court rejected Lanigan’s arguments about the danger he would face in Northern Ireland. Permission to appeal has been refused, and the order was finally made to execute the EAW and surrender Lanigan to the UK. One can only hope that the trial would be prosecuted diligently upon extradition.

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