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European human rights law: the war of judges?

2021-04-01T17:59:01.297Z

DECRYPTION - By condemning France for having handed over a Romanian national, targeted by a European arrest warrant, to the authorities of his country, the ECHR is interfering a little more in the control of the conditions of detention.



On Thursday March 25, the European Court of Human Rights (ECHR) condemned France for having handed over to Romania a man subject to a European arrest warrant, on the grounds that he incurs in his country of possible poor conditions of detention.

This is the first time that the execution of a European arrest warrant has been condemned by the Strasbourg Court.

To read also: From Montebourg to Mélenchon, sovereignty moves on the left

The seven judges unanimously considered that the French authorities had violated Article 3 of the European Convention on Human Rights prohibiting inhuman and degrading treatment.

The "

information gathered (on the applicant's future conditions of detention in Romania, editor's note) nevertheless constituted a sufficiently solid factual basis for them to refuse to carry out the disputed EAW

," explained in a press release. judicial body of the Council of Europe.

The ECHR therefore considered that France should not have surrendered the applicant to the Romanian authorities, despite the European arrest warrant against him.

The man in question was sentenced in 2015 to seven years and six months in prison for facts, ironically, "

of trafficking in human beings committed during 2010 in Romania and France

”, indicates the ECHR.

Legal conflict

The judgment of the Court in particular made jump the mayor (LR) of Cannes David Lisnard, who wrote on his Twitter account: "

we are today hampered in our policy of fight against immigration, terrorism or insecurity by the jurisprudence of this body, often contrary to our national interests

”, calling for a revision of the treaties binding France to the ECHR.

Contacted by

Le Figaro

, he added: “

we have a legal conflict which is to the detriment of the capacity of States to exercise their sovereignty.

I am attached to human rights, but treaties must not come into conflict with popular sovereignty.

Other politicians, like Eric Ciotti, Bruno Retailleau or even Georges Kuzmanovic have also criticized this judgment of the ECHR, which they consider to be infringing on French sovereignty.

To fully understand what this is about, we have to go back to 2004, when the European arrest warrant came into force.

This was adopted by the Council in 2002, and constitutes a simplified judicial and police procedure which allows a Member State of the Union to have an individual present in another Member State handed over to be tried or come to court. execute his sentence.

A warrant issued by a judicial authority of a country of the European Union is valid throughout the territory of the EU.

This European arrest warrant operates on the basis of mutual recognition of judicial decisions in criminal matters, and is therefore based on the “

presumption of equivalent protection

”: EU countries consider a priori that fundamental rights are respected by all Member States.

The subtlety is that the European arrest warrant is a procedure provided for by the European Union, the law of which is controlled by the Court of Justice of the European Union (CJEU) based in Luxembourg;

but that European countries are also subject to the European Convention on Human Rights controlled by the Strasbourg Court, and which depends on the Council of Europe, another European institution independent of the EU.

They each adopted their own text relating to respect for human rights, since the European Union proclaimed in 2000 a Charter of Fundamental Rights, the content of which is deemed to be at least as firm as that of the ECHR.

The two institutions therefore exercise complementary, and sometimes concurrent, control over respect for human rights.

A margin of interpretation of States

With regard to the European arrest warrant, the CJEU nevertheless recognized by a judgment in 2016 that each member state remains free to refuse to execute it if it has serious reasons to believe that the conditions of detention in the country issuer are contrary to fundamental rights.

The execution of a European arrest warrant is therefore not necessarily automatic and there is a margin of interpretation left to the discretion of the States.

For its part, the ECHR had already considered in the past that it was its responsibility to control this assessment of States.

What it did therefore by condemning France last week, considering that the French authorities should have taken more account of the risks of violations of fundamental rights which weighed on the detainee that it handed over to Romania (the ECHR has already condemned Romania on several occasions, for its overcrowded prisons or its unworthy conditions of detention).

Relations between the two courts are not always in good shape.

Is this a call to order from the ECHR addressed to the judges of the CJEU?

Rather of a complementary control which comes in addition to the guarantees already offered by the Court of Luxembourg, since here the judges of Strasbourg cite in their judgment a previous decision of the judges of Luxembourg ... However, the relations between the two courts are not always in good shape: their relations are similar to a "

I love you, me neither

" already estimated in a famous article published in 1996 the associate professor of law Denys Simon.

If all the countries of the European Union are also signatories to the European Convention on Human Rights, the question of accession by the Union itself to the Convention, regularly mentioned in the debates, has once again been raised. dismissed in December 2014 by the Luxembourg Court despite the progress of negotiations.

The ego quarrels between judges are not foreign ...

In the midst of this legal imbroglio which is sometimes difficult to understand for the layman, and against a background of indictment of the Romanian prison system by the judges of Strasbourg even though the French judges have found nothing to complain about, this judgment once again reveals the sometimes difficult relations between the various national and supranational courts in Europe.

Source: lefigaro

All news articles on 2021-04-01

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