Euroorder, the last frontier

On Wednesday of last week we had the opportunity to hear about an obstructive decision of a Spanish European arrest warrant (OEDE) by a British police authority (SIRENE), based on its alleged disproportion. This resolution, quickly corrected, was surprising for two reasons: first, because it came from an administrative office , when the fundamental axis of the Euro-order is direct communication between judicial authorities, without any governmental interference; second, for the claim itself.

That a chief negotiator has competence in the matter under a national law reveals the extent to which the founding instrument of the European order - Framework Decision of June 23, 2002 - has as its main lack the impossibility of demanding accounts from the implementing State when the national regulations deviate from the text of the European rule, unlike what happens with the directives, which allow the Court of Justice of the Union to examine the possible breach of the State in question at the time of its transposition, as nonexistent or defective

Moreover, the alleged lack of proportion of the euroorder issued is difficult to fit into European regulations. The question has two different facets. On the one hand, whether it is possible to allege the absence of proportionality as a cause of refusal of the euroorder if there are other, more adequate and less harmful instruments of the right to freedom (proportionality in a formal sense); on the other hand, if said allegation can be based on the fact that the infraction for which the issuing judicial authority requests the delivery is punished in a notoriously excessive way compared to the equivalent criminal norm of the executing judicial authority (proportionality in material sense).

With regard to the former, the European Manual for the issuance and execution of arrest warrants states that the European arrest warrant must be proportional to its objective, advising - it is the expression used - to the issuing judicial authorities that Consider whether the issuance of an OEDE is justified in a specific case, given the consequences that its execution has for the freedom of the claimed person. A series of factors are suggested that the courts of a country should consider before issuing it. However, it is not required, according to the Framework Decision of 23 June 2002, that the issuing Member State carry out a proportionality check . Although the European order should only be issued for the prosecution of especially serious or harmful crimes, the system currently does not impose a proportionality test, even though its use is recommended.

Consequently, from the point of view of the executing judicial authority, the disproportionate use of the OEDE, as there are less burdensome alternatives, nor is it and cannot be a reason for refusal, as it does not appear in current legislation as a cause that enables it. The Framework Decision, in accordance with the principle of mutual recognition, does not provide for the possibility for the executing judicial authority to assess the proportionality of an OEDE. The control, therefore, cannot be carried out at the time of the execution, but via recourse before the court that has issued it, a possibility that often goes unnoticed, although it was already pointed out by the Constitutional Court in its STC 24 / 2018, of March 5.

With regard to the second facet, proportionality in a material sense, the doctrine has indicated that this problem is innate to the system from the moment it is the qualification and the penalty of the issuing State that must be taken into account at the time of the inclusion of a fact in the 32 categories exempt from the control of double criminality. Since criminal policy is a national and not a European issue, this translates into a disparity of criteria about the seriousness of the crimes. However, the European legislator, although aware of the difficulty, never wanted to introduce the lack of proportionality as a reason for refusing the European arrest and surrender order , but as an inspiring source of other causes of rejection, such as the principle of punitive minimum , also called the principle of oblivion or marginalization of minor acts, or the conditioning of the order in cases of excessive penalty, which is the life sentence. That is why the STJUE of May 30, 2013 already limited the possibility of refusal of the OEDE to the cases expressly provided for in the Framework Decision, without others legally or jurisprudentially created.

Beyond the foregoing, the control of material proportionality by the executing judicial authority would introduce a source of judicial arbitrariness that would break the principle of mutual trust and recognition that is the axis of the Euroorder. The assumption of such a possibility would place us on the last frontier of the European arrest warrant, and on its definitive collapse.

The uncontrolled generalization of this power by the executing court, without any limitation and put into practice, would make the entire system unfeasible. To begin with, it is not known what is excessive and what parameters should be used to determine it. It is thought that a crime can be considered socially serious in one country and motivate the imposition of harsh penalties, while in another State of the Union it can be described as a minor infraction. That is why the European courts, in general, have refused to enter this path of rejection. As Judge Elias of the High Court of London stated in the Sandru v Government of Romania case of October 28, 2009 (2009) EWHC 2879 (Admin), concerning the theft or death of 10 chickens: "The appropriate sentence is, in part, a function of culture ... It may be, for example, that in this case the Romanian courts treat theft of livestock and its subsequent destruction far more seriously than English courts would typically do. to be too high, the answer is to challenge it in Romania ". [The appropriate sentence is, in part, something cultural ... It may be, for example, that in this case the Romanian courts deal with the theft of cattle and their subsequent destruction much more seriously than the English courts would. If the sentence is believed to be too high, the answer is to appeal it in Romania.]

One last point: it is shocking that this issue has been raised by a country in the process of leaving the Union . As an old Castilian saying goes, you leave as much peace as you leave.

Carlos Bautista is a prosecutor.

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