SPAIN: An Introduction to Dispute Resolution: Corporate Crime

Some Issues Regarding Re-extradition and Subsequent Delivery Under the European Arrest Warrant

According to paragraph 4 of Article 28 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States (the “Framework Decision”), “a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third state without the consent of the competent authority of the member state which surrendered the person concerned”.

The procedure may become complicated when there is a concurrency between several European arrest warrants, or the concurrency of a European arrest warrant and one or more extradition requests, as contemplated in Article 16 of the Framework Decision – in which case, the priority of delivery must be determined. According to this provision, the Framework Decision leaves the decision on delivery priority to the competent judicial authority (in the case of European arrest warrants) or the competent authority of the executing member state – usually the Ministry of Justice (in the case of a European arrest warrant and an extradition request). The decision will take into account a series of indicative criteria – namely, the place and relative seriousness of the offences, the respective dates of the different orders, as well as the fact that the order has been issued for the purpose of criminal prosecution or for the purpose of executing a sentence or a measure of deprivation of liberty.

It is not established in the rules that the European arrest warrant takes precedence over the extradition request; this is a decision to be taken by the authority concerned in the executing state. As can be seen, chronological order and the date of submission of the different concurrent requests are not decisive criteria – merely additional factors to be taken into account.

In the subsequent delivery procedure, the surrendered person must be heard when the judicial authorities of the issuing member state submit a request for consent in accordance with paragraph 3 of Article 28 of the Framework Decision (CJEU, First Chamber, of 26 October 2021, 45 et seq, joined cases C 428/21 PPU and C 429/21 PPU). In this CJEU judgment, the following preliminary question raised by the District Court of Amsterdam is raised: “The referring court wonders in which member state and in what way the surrendered person should be able to exercise his right to be heard when a judicial authority of the issuing member state presents to the executing judicial authority a request for consent under Article 27, paragraphs 3 (letter g), and 4, of Framework Decision 2002/584.”

Although – as the CJEU acknowledges – Article 14 of the Framework Decision establishes that any detained person who does not consent to their surrender has the right to be heard (and Article 19 establishes rules specifically referring to such a hearing), the Framework Decision does not contain any provision specifically concerning the right of the surrendered person to be heard in the context of either of the two consent requests for the extension of extradition or subsequent delivery. However, the court considers that from Article 1, paragraph 3 of the Framework Decision, in relation to its recital 12, it follows that the Framework Decision respects fundamental rights and observes the principles recognised in Article 6 of the Treaty on European Union (TEU) and reflected in the Charter of Fundamental Rights of the European Union (“the Charter”) – in particular, the provisions of its Chapter VI. Article 47 of the Charter, which is contained in this chapter, enshrines the right to effective judicial protection. Therefore, it is concluded in the aforementioned CJEU judgment that:

• given the right to be heard is part of the right to defence inherent in the right to obtain effective judicial protection, it could never be inferred from the fact that the Framework Decision does not expressly recognise the right of the affected person to be heard in the context of a request for consent under paragraphs 3 (letter g) and 4 of Article 27 of the Framework Decision (or paragraph 3 of its Article 28) that in such circumstances said person is deprived of this fundamental right; and 

• the affected person must enjoy the right to be heard when the judicial authorities of the issuing Member State make a request for consent in accordance with paragraph 4 of Article 27 of the Framework Decision (or paragraph 3 of its Article 28).

Once the right to be heard has been recognised, it is therefore necessary to then determine before which authority the affected person can invoke their right to be heard when such a consent request is made. Even though, according to paragraph 2 (letter b) of Article 28 of the Framework Decision, the issuing judicial authority must hear the affected person in order to obtain their consent to a subsequent surrender to another member state under paragraph 2 of its Article 28, it up – in any case – to the executing judicial authority to hear the surrendered person as competent to give their consent to such subsequent surrender.

However, it is not established how the right to be heard should take place in the executing state when – as in this case – the requested person has already been surrendered. The CJEU considers that effective presence is not required and that what must be ensured at a prior hearing is that the requested person has had the material option to submit to the executing judicial authority all their eventual observations and objections regarding the consent request for subsequent surrender. Infringement of this right entails the nullity of the subsequent surrender decision.

Just as the CJEU has recognised the right of the requested person to be heard despite the fact that the Framework Decision does not expressly address this right in the regulation of the subsequent delivery procedure, it must be considered that the right to appeal is part of the right to defence inherent in the right to obtain effective judicial protection and it could never be inferred from the fact that the Framework Decision does not expressly recognise the right of the affected person to appeal in the context of a consent request under paragraph 3 of its Article 28 that in such circumstances said person is deprived of this fundamental right.

The right to appeal is recognised in Article 13 of the ECHR, which recognises the right of everyone to an effective remedy before a national authority. Consequently, the decision of subsequent surrender can be appealed by the requested person – a right to appeal inherent in the right to effective judicial protection and the right to defence (even though this appeal is not formally contemplated in the Framework Decision).

These and many other issues arise in the matter of re-extradition and subsequent delivery and will surely result in new decisions by the CJEU. However, by way of summary, the following conclusions can be drawn in light of the CJEU’s doctrine.

• In the absence of consent given by the requested person before the authorities of the issuing state, it is up to the authorities of the executing state of the surrender, under Article 28 of the Framework Decision, to give consent for the subsequent surrender and they must give prior hearing to the requested before giving consent for subsequent surrender. Although the procedure for this hearing is not established, the important thing is to ensure that the executing state knows the position of the requested person regarding the surrender request by the issuing state. 

• In the case of concurrent extradition requests and European arrest warrants, it is up to the competent executing authority (the Ministry of Justice) to determine the priority or order of precedence in the subsequent surrender. There are only indicative criteria to determine the order of priority, without the chronological order being decisive – although the principle of greater ease of delivery within the European space may favour the precedence of delivery within the member states.

• The judicial authorities of the country to which the requested person is surrendered are obliged to prevent the violation of fundamental rights, even if such violation is expected from foreign authorities with jurisdiction because of the domain they have over the personal situation of the extradited person. Therefore, they have the duty to refuse subsequent surrender if there is a risk of an actual violation of fundamental rights, even if this risk has not been perceived by the authorities of the member state from which the surrender was made – that is, they must apply the guarantee and humanitarian clauses inherent in their extraterritorial constitutional law, which are applicable not only when it is the executing judicial authority but also in cases of re-extradition or subsequent delivery decided by another member state.

• The decision of subsequent surrender to a state, agreed by the executing court, can be appealed by the requested person – a right of appeal inherent in the right to effective judicial protection and the right to defence recognised in the ECHR and in the Framework Decision.