{"id":2902,"date":"2023-12-05T14:56:22","date_gmt":"2023-12-05T13:56:22","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=2902"},"modified":"2023-12-06T16:59:37","modified_gmt":"2023-12-06T15:59:37","slug":"two-steps-of-unequal-weight-judgment-of-the-cjeu-in-the-case-of-staatsanwaltschaft-aachen","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/de\/two-steps-of-unequal-weight-judgment-of-the-cjeu-in-the-case-of-staatsanwaltschaft-aachen\/","title":{"rendered":"Two steps of unequal weight? Judgment of the CJEU in the case of Staatsanwaltschaft Aachen"},"content":{"rendered":"\n

In the case of Staatsanwaltschaft Aachen<\/a> <\/em>(C-819\/21, 9.11.2023), the CJEU addressed the concerns of a German Regional Court regarding the enforcement in Germany of a custodial sentence<\/strong> imposed on a Polish national (M.D.), resident in Germany, by a Polish District Court after a hearing in absentia<\/em><\/strong>.<\/p>\n\n\n\n

The referring court asked the CJEU whether, under Framework Decision 2008\/909<\/strong> (on the application of the principle of mutual recognition<\/strong> to judgments in criminal matters imposing custodial sentences<\/strong> or measures involving deprivation of liberty), it could refuse to declare the custodial sentence imposed on M.D. in Poland to be enforceable in Germany, because of systemic or generalised deficiencies<\/strong> in the Polish judicial system, in violation of the second paragraph of Article 47 of the Charter and of Article 2 TEU. The referring court relied inter alia on the reasoned proposal of the European Commission of 20 December 2017 submitted on the basis of Article 7(1) TEU regarding the rule of law in Poland (COM(2017) 835 final), and to the recent case-law of the CJEU on that matter (\u00a7 14).<\/p>\n\n\n\n

Drawing a parallel between Framework Decision 2008\/909, at stake in the present case, and Framework Decision 2002\/584 on the European arrest warrant, the CJEU first recalled its case-law about the limitations of the principles of mutual recognition and mutual trust<\/strong> which can be made in exceptional circumstances<\/strong> and which derive from the obligation to respect fundamental rights and fundamental legal principles<\/strong> as enshrined in Article 6 TEU, notably the prohibition of ill-treatment<\/strong> enshrined in Article 4 of the EU-Charter ( as in Aranyosi und C\u0103ld\u0103raru<\/em><\/a>) and the right to a fair trial<\/strong> laid down in the second paragraph of Article 47 of the EU-Charter (as in Minister for Justice and Equality (Deficiencies in the system of justice)<\/em><\/a>, and Openbaar Ministerie (Tribunal established by law in the issuing Member State)<\/em><\/a>).<\/p>\n\n\n\n

Addressing the methodology <\/strong>to be applied in such cases, the CJEU recalled the well-known obligation on the competent authority of the executing Member State to carry out a two-step examination<\/strong>. <\/p>\n\n\n\n

As a first step<\/strong>, that authority must \u201cdetermine whether there is objective, reliable, specific and duly updated material indicating that there is a real risk of breach<\/strong>, in the issuing Member State, of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies<\/strong> so far as concerns the independence of that Member State\u2019s judiciary<\/strong><\/em>\u201d. (\u00a7 29, emphasis added)<\/p>\n\n\n\n

The CJEU then went on to say: \u201cIf that is the case, the competent authority of the executing Member State must, as a second step<\/strong>, determine, specifically and precisely, to what extent the deficiencies identified in the first step may have had an impact <\/strong>on the functioning of the courts of the issuing Member State which have jurisdiction over the proceedings brought against the person concerned<\/strong> and whether, having regard to that person\u2019s personal situation, the nature of the offence for which he or she was tried, and the factual context of the sentence in respect of which recognition and enforcement are requested, and, where appropriate, to additional information provided by that Member State pursuant to that framework decision, there are substantial grounds for believing that such a risk has actually materialised <\/strong>in the present case<\/em>\u201d. (\u00a7 30, emphasis added)<\/p>\n\n\n\n

The opening words \u201cif that is the case<\/strong>\u201d in the above quotation read as a condition <\/strong>and suggest that it is only if the existence of systemic or generalised deficiencies<\/strong> is confirmed in the context of the first step of the examination that, as a second step, it can be assessed whether these deficiencies may <\/em>have had a concrete impact on the individual concerned<\/strong> in terms of the fairness of the criminal proceedings which led to his conviction.<\/p>\n\n\n\n

Assuming this interpretation is correct, it would mean that conversely, in the absence of such systemic or generalised deficiencies<\/strong>, no such individual assessment<\/strong> would be permissible. This would be in line with the CJEU\u2019s approach in Puig Gordi and Others<\/a> <\/em>where a similar question was asked to the CJEU in relation to the execution of a European arrest warrant for the purpose of conducting criminal proceedings against the person concerned. In that case too, the CJEU denied the possibility for the executing authority to apply an individual test in the absence of systemic or generalised deficiencies (\u00a7 111), the only difference being that in Staatsanwaltschaft Aachen <\/em>the referring court had itself found such systemic or generalised deficiencies to exist.<\/p>\n\n\n\n

Applied in this way, the two steps of this methodology appear of unequal weight<\/strong> and not on the same footing<\/strong>. Rather, the individual test seems subordinated <\/strong>to the general test, performing an ancillary function<\/strong> compared to that of the general test. Unlike the general test, the individual test is indeed not autonomous<\/strong> in the sense that it could on its own justify a conclusion as regards the existence of a risk of breach of a fundamental right \u2013 here the right to a fair trial \u2013 in the issuing State, as it can do under the European Convention on Human Rights. <\/p>\n\n\n\n

Under this approach the individual test can only operate to validate or not the findings under the general test<\/strong> that systemic or generalised deficiencies do exist. But if the general test is negative about the existence of such deficiencies, this is the end of the story<\/strong>: no assessment of the individual situation of the person concerned can be allowed to rebut the conclusions regarding the general situation.<\/p>\n\n\n\n

This, in fact, amounts to allowing the general test to replace the individual test<\/strong> and strongly reminds of the position taken by the CJEU in N.S. and Others<\/a><\/em> to the effect that only systemic flaws<\/strong> could justify an exception based on Article 4 of the EU-Charter to the Dublin Regulation (\u00a7\u00a7 82-86). Here too, efficiency considerations<\/strong> were allowed to prevail over fundamental rights<\/strong>. <\/p>\n\n\n\n

In essence, however, fundamental rights<\/strong> are individual rights<\/strong> and call for an autonomous individual assessment<\/strong>. It can be complemented but not replaced by a general assessment. This is also reflected in the central position<\/strong> in the Convention system of the right of individual petition <\/strong>which, by definition, calls for an individual assessment<\/strong>. The way to handle this in a mutual recognition context<\/strong> has been set out by the ECtHR in Avoti\u0146\u0161 v. Latvia<\/a><\/em>, in the following terms:<\/p>\n\n\n\n

[The Court] must verify that the principle of mutual recognition is not applied automatically and mechanically \u2026 to the detriment of fundamental rights<\/strong> \u2013 which, the CJEU has also stressed, must be observed in this context \u2026. Where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism<\/strong> established by EU law, they must give full effect<\/strong> to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint<\/strong> is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law<\/strong>.<\/em> (\u00a7 116, emphasis added)<\/p>\n\n\n\n

The CJEU argues that \u201callowing the competent authority of the executing Member State to suspend, on its own initiative, the mechanism laid down in Framework Decision 2008\/909 by refusing, in principle, to give effect to all the requests seeking recognition of judgments and enforcement of criminal sentences from the Member State concerned by those deficiencies would call into question the principles of mutual trust and mutual recognition which underpin that framework decision<\/em>\u201d (\u00a7 34). <\/p>\n\n\n\n

However, this is no answer to the question why an individual test should not be allowed to be applied in the absence of systemic or generalised deficiencies. By definition, the result of such a test would be limited to the individual case<\/strong> concerned and could therefore not call into question the entire system of mutual recognition. Under the Avotins <\/em>approach referred to above, it would at the same time remain exceptional<\/strong>, in line with the CJEU\u2019s doctrine on mutual recognition.<\/p>\n","protected":false},"excerpt":{"rendered":"

In the case of Staatsanwaltschaft Aachen (C-819\/21, 9.11.2023), the CJEU addressed the concerns of a German Regional Court regarding the enforcement in Germany of a custodial sentence imposed on a Polish national (M.D.), resident in Germany, by a Polish District Court after a hearing in absentia. The referring court asked the CJEU whether, under Framework […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,19],"tags":[],"class_list":["post-2902","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"de","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/2902","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/comments?post=2902"}],"version-history":[{"count":10,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/2902\/revisions"}],"predecessor-version":[{"id":2919,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/2902\/revisions\/2919"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/media?parent=2902"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/categories?post=2902"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/tags?post=2902"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}