Free at last? Detention, the European Arrest Warrant and Julian Assange

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Friday, 5 February 2016)

by Steve Peers

“Bianca Jagger is here!”

I had just arrived at a meeting in the House of Lords, to give a talk on the European Arrest Warrant (EAW) and human rights. I thought that having the famous human rights activist in the audience when I spoke would be the most exciting thing that could happen to me that day. But I was wrong.

“Bianca Jagger wants to ask you a question, before we start!”

My heart skipped a beat as the beautiful activist walked slowly, catwalkishly, across the room in my direction. Finally, she was right in front of me. My heart stopped beating entirely. And then she asked me her question:

“Will you be speaking for very long?”

Needless to say I subsequently gave one of my shortest talks ever – although I suspect that it seemed endless to Ms. Jagger. Indeed, I imagine that for her, listening to my talk was comparable to the lengthy periods of pre-trial detention which some people face on the basis of EAWs.

This brings me to Lanigan: a key judgment on lengthy pre-trial detention and EAWs, issued by the Court of Justice of the European Union (CJEU) last year. It seems only appropriate that I am discussing this case rather belatedly. On the other hand, though, it is very timely to take the opportunity to discuss also the relevance of this judgment to the UN opinion (released today) on the ‘arbitrary detention’ of Julian Assange – who is also facing an EAW. And just as I promised Ms. Jagger, I won’t detain my beautiful readers for very long.

The Lanigan judgment

Unfortunately EAWs are often issued for the most trivial reasons. A carpenter, removing a wardrobe door until he got paid. (What Would Jesus Do?) The theft of a piglet. And my personal favourite: the friend of a friend who came to a house party and took someone else’s can of beer. That last case makes me pine for the return of the death penalty.

Yet the Lanigan case usefully reminds us that EAWs are also issued for the most serious of crimes. Mr. Lanigan was wanted on murder charges in the UK, which issued an EAW to the Irish Republic. He was detained in Ireland while he fought the execution of the EAW. Finally, the Irish courts decided to ask the CJEU if the months he spent fighting the EAW were a breach of the deadlines to execute it – as set out in the EU Framework Decision which created it – or of human rights law. This was the first Irish reference to the CJEU on criminal issues, following the expiry on the limits of the CJEU’s criminal law jurisdiction in December 2014 (for more on that transitional issue, see here).

According to the CJEU, the continued detention of Mr. Lanigan pending the EAW did not invalidate the EAW itself. Nor was there an obligation to release him. First of all, the Court insisted that the time limits in the legislation (60 days to execute an EAW, with a possible 30 day extension) had to be complied with strictly. This followed its earlier ruling in the Forrest case, which concerned the British schoolteacher who had fled to France with an underage schoolgirl.

But then the Court ate its previous words. The problem was that in this case, strict compliance with the time limits conflicted with the underlying obligation to execute the EAW. The Court referred to its many previous rulings insisting on the limited exceptions to that latter obligation. So it gave preference to the underlying rule, ruling that the EAW remained valid once the deadline expired: the ‘time limit’ was not really a time limit at all. (I wouldn’t advise students, lawyers, journalists or many others to take the same approach to deadlines.)

It got worse for Mr. Lanigan. The CJEU ruled that the expiry of the deadlines did not mean that Ireland had to release him from prison either. It pointed out that the rules on detention in the Framework Decision were very vague: national judicial authorities have to decide on detention; the fugitive may be given bail, if the authorities take steps to stop him or her absconding; and the issue is basically subject to national law. The EU rules do say that fugitives must be released from custody after the execution of an EAW, if the deadlines to surrender the person to the State which issued the EAW are not complied with. But in contrast, there is no such obligation if a State misses the deadline to execute the EAW in the first place.

Yet if there’s no real deadline to execute an EAW, and no obligation to release a fugitive from jail because that ‘time limit’ is a legal fiction, people could effectively end up facing indefinite detention without trial. Rightly realising that this was unacceptable, the Court, for the first time, gave some grudging respect to the many references to human rights set out in the EAW law. In this case, that meant the rules on detention were subject to Article 6 of the EU Charter on Fundamental Rights, which had to be applied consistently with the rules on detention set out in Article 5 ECHR. So the relevant case law of the European Court of Human Rights applied: fugitives can only be detained if the EAW procedure is being carried out with ‘due diligence’. The national court has to consider all the factors, including any lax behaviour by the Irish authorities, the conduct of the fugitive himself, the possible sentence (severe in this case), the risk of absconding and the huge overrun of the deadlines.

The Assange case

In Lanigan, the CJEU wasn’t called upon to deal with the two detention issues that most frequently arise in practice as regards EAWs: (a) the lengthy pre-trial detention that fugitives are often subject to in the issuing State after they are surrendered there, and (b) the poor detention conditions which they sometimes face there. The CJEU will shortly rule on the latter issue, in the cases of Aranyosiand Caldararu.

Nor, obviously, was it called upon to deal with the peculiar circumstances of Mr. Assange: fleeing into a third State’s embassy, to escape the execution of an EAW, because the charges which motivated the issuing of the EAW were allegedly politically motivated, and a further extradition request from the USA was looming. Today we have a new twist: the opinion of a UN body that his ‘detention’ in the embassy is ‘arbitrary’.

How does EU law apply to this issue? In fact, EU law issues were discussed in the earlier UK litigation, up until the Supreme Court judgment. At that point, the UK courts were, like the Irish courts, unable to ask the CJEU questions about EU criminal laws adopted before the entry into force of the Treaty of Lisbon. Now they can. So Assange could bring a fresh challenge in the UK courts to the execution of the EAW in light of the UN ruling. He could either (a) request the UK courts (at any level) to ask the CJEU questions about the EAW law (the CJEU will likely give an emergency ruling, within about three months), or (b) litigate back up to the Supreme Court, then go to the European Court of Human Rights to complain if he loses his case.

What’s the likely outcome? The European Court of Human Rights is usually keen to take into account the opinion of other human rights bodies (for an exception, see the RMT case); but the CJEU is not. In the Grant case, it rubbished the opinion of the UN Human Rights Committee, and in the well-known Kadi line of case law, it deemed that the UN Security Council had not provided enough legal protection when listing people as terrorist suspects.

Applying the Lanigan case to the facts of Assange, there is a strong obligation upon the UK to execute the EAW, which obviously remains valid. His continued ‘detention’ also remains valid, since he has the obvious intention to abscond. There are human rights arguments: the risk of an unfair trial in Sweden or the USA, and the ‘detention conditions’ in the embassy. As I noted above, the CJEU is usually dismissive of human rights arguments in the EAW context, although there was a nod to ECHR case law in Lanigan. On this issue, things should be clearer after the judgments in Aranyosi and Caldararu, which we can expect before Easter.

It might be better, from Assange’s perspective, to fight all the way again through the UK courts without asking for a CJEU reference, and then head to the ECtHR in Strasbourg. That’s not entirely up to him, though: the UK government could ask the courts to send questions to the CJEU. If he does get to Strasbourg, the ECtHR might be torn between its usual enthusiasm to endorse the work of international human rights bodies, and its traditional deference to the CJEU on human rights matters within the scope of EU law. The Assange saga might have awhile to run yet.

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