William Julié
WJ Avocats, Paris
wj@wjavocats.com

Juliette Fauvarque
WJ Avocats, Paris
​​​​​​​juliette.fauvarque@gmail.com

Introduction

Over the past few years, the European Union has seen attacks on the independence of several Member States’ judicial authorities intensify. As a result, EU institutions and jurisdictions have endeavoured to sanction some of these Member States through a number of actions or decisions. Most recently, within one week of each other, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) criticised the lack of independence and impartiality of the disciplinary chamber of the Polish Supreme Court.^[2]

^{​​​​​​​}At the same time, the number of national judicial decisions denying the execution of European Arrest Warrants (EAW) on human rights grounds has increased. Among these rulings is the District Court of Amsterdam’s 2020 decision to suspend all cooperation with the Polish judicial authority in this matter, labelling it as no longer independent or impartial.^[3] That approach was, however, rejected by the CJEU, which advocates a case-by-case assessment of the risks of fair trial violations faced by the requested person.^[4]

Another significant decision was the 2021 ECtHR judgment in Moldovan and Bivolaru v France, which for the first time held that the execution of a EAW by a Member State (in this case, a Romanian warrant executed in France), violated the prohibition of torture, inhumane or degrading treatment, in light of the conditions in which the applicant would be detained in Romania.^[5]

These decisions are part of a trend that not only retreats from the mutual trust ideal in EU criminal cooperation, but also raises a more tangible concern: what should happen to international arrest warrants issued by EU Member States that are repeatedly blamed for human rights breaches and/or lack of judicial independence?

After issuing an international arrest warrant against a criminal suspect or convict, a state may seek the circulation of a Red Notice within the Interpol criminal databases or of an alert in the Schengen Information System (SIS) within the Schengen Area.

Interpol and the SIS constitute the world’s largest and most developed instruments for the international dissemination of arrest warrants.^[6] In the EU, an alert in the SIS is equivalent to a EAW.^[7] Outside of the EU, the arrest and surrender of a person to the state that issued an Interpol Red Notice requires a formal extradition request and is contingent on the relations between the two states involved. In both cases, the surrender of the requested person may be barred on the ground of non-execution found in the applicable international, European or domestic law.

Though Interpol Red Notices and SIS alerts constitute the primary basis for extradition requests, they are technically independent from extradition procedures. Consequently, a national judicial decision denying an extradition request, for example on human rights grounds, does not overrule the Red Notice or SIS alert, and the person sought can technically be re-arrested in another state.

Interestingly, Interpol provides for a regulatory mechanism whereby a person against whom a Red Notice has been issued is able to challenge its validity before an independent body – the Commission for the Control of Interpol’s Files (CCF), which may order its deletion from Interpol databases.^[8] As a result, it is possible to seek the removal of a Red Notice from Interpol directly, regardless of the existence of an extradition procedure. Interpol procedures are therefore inherently concerned with the person’s freedom of movement: if the CCF orders the removal of the Red Notice from its databases, the person is effectively cleared for travel and no longer faces the risk of being arrested in each state they travel to.

Surprisingly, there is no equivalent mechanism in the EU. Even though freedom of movement constitutes one of the four fundamental freedoms of EU law under Article 21 of the Treaty on the Functioning of the EU (TFEU), there are no grounds for a person subject to an SIS alert to bring a request for removal of data from the SIS directly before a European independent judge or entity. Consequently, the current SIS framework may give rise to disproportionate breaches of freedom of movement. Because a person who is the subject of an abusive SIS alert may only recover their mobility rights in limited circumstances, the creation of a harmonised mechanism of regulation of SIS alerts at the EU level appears necessary to protect freedom of movement from undue restrictions.

Freedom of movement, SIS alerts and the EAW

Articles 3 and 4 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant (the Framework Decision) respectively provide for mandatory and non-mandatory grounds for execution of the EAW. For example, the EAW must be denied if the requested person has been judged by a Member State in respect of the same acts and the imposed sentence has already been served or may no longer be executed under the law of the sentencing Member State. The EAW may be denied when the requested person is a national of the requested Member State and the request is for execution of a custodial sentence. In addition, the CJEU has ruled that the EAW must be denied when there are substantial grounds to believe that the requested person will be exposed to inhumane or degrading treatment in case of incarceration in the requesting state.^[9] Mutatis mutandis, the execution of the EAW must be refused when there is a real risk of breach of the right to a fair trial on account of a systemic and generalised lack of judicial independence in the issuing Member State.^[10] Finally, surrender may be denied on a technicality if the EAW or the SIS alert lacks certain essential formalities, such as the communication of a translated warrant or alert, of the judgment ordering the person’s arrest, etc.^[11]

Unfortunately, the Framework Decision does not address the consequences of a refusal to execute a EAW. In particular, it does not specify whether such a refusal precludes a future request or affects the validity of a SIS alert in the issuing state or in other EU Member States.

In the circumstance where the request is denied on a technicality, for example because the issuing authority failed to provide the executing authority with essential information in due course, there is no reason why the issuing authority should not be able to issue a new EAW, unless the prosecution’s case or the execution of the sentence is statute-barred. However, if the decision denying the execution of the EAW is based on substantive grounds, in particular on the risk of human rights violations in the requesting state, should it make a difference? If mutual trust is the principle, a refusal to execute a EAW on human rights ground should be binding on all Member States. For instance, a person whose surrender was refused in one Member State on account of the issuing judicial authority’s lack of independence should not be the subject of a subsequent EAW in a different Member State. To judge otherwise would create a serious, undue restriction on EU citizens’ freedom of movement within the Schengen Area.

Even in the absence of a EAW, a restriction on freedom of movement may also arise where a person is the subject of an international arrest warrant issued by a non-independent and/or non-impartial judicial authority and the person has reason to believe that they will likely face a breach of fair trial rights or unlawful detention if arrested. If that person knows that a SIS alert has been issued, they may well be reluctant to travel in the Schengen Area, for fear of being arrested and subsequently surrendered to the issuing state.

Yet this issue is not clearly addressed by EU law and it appears as though it has not been raised before the CJEU. As a result, the freedom of movement of a person against whom an abusive SIS alert has been issued, or who has successfully fought a EAW, is significantly restricted within the EU. For the affected persons, losing the ability to travel within the Schengen area is likely to cause great harm, personally and/or professionally. At times when mutual trust in the EU is seriously threatened by the deterioration of prison conditions in some Member States as well as the increased concern over certain judicial authorities’ independence and impartiality, this situation is far from illusory and is likely to target an increasing number of EU citizens.

In these circumstances, it must be concluded that the absence of a specific remedy against SIS alerts issued in violation of the requested person’s human rights constitutes a serious breach of the EU citizens’ freedom of movement. As a matter of fact, EU law currently only provides for limited and somewhat ineffective avenues of redress against abusive SIS alerts.

The lack of an effective remedy against abusive SIS alerts under EU law

A person subject to a SIS alert may exercise their personal data rights in order to seek the correction or deletion of data in the SIS. If a Member State refuses to execute an EAW, there are also a number of actions it can consider to help the requested person recover his or her freedom of movement.

The personal data rights of a person subject to a SIS alert

A person subject to a SIS alert can seek the deletion of such data from the SIS on the basis of personal data rights.

Under Article 59(3) of Regulation 2018/1862 of 28 November 2018, ‘only the issuing Member State shall be authorised to modify, add to, correct, update or delete data which it has entered into SIS’. The issuing Member State therefore has exclusive jurisdiction over the removal of the alert from the information sharing system. In other Member States, such as the state which refused to execute the EAW, the requested person may only ask for access to data contained in the SIS. Under Article 67 of the same Regulation, the requested Member State may grant a request for access to data but it must first give ‘the issuing Member State an opportunity to state its position’. As a result, information about the subsistence of a SIS alert can only be given with the knowledge of the issuing Member State.

If the requested person submits a request for the removal of the alert in the issuing Member State under Article 59(3) of the Regulation, the issuing authority may be reluctant to give up its SIS alert based on the finding by a foreign judge that in case of surrender, the requested person would face a risk of inhumane or degrading treatment or a flagrant denial of justice. These provisions therefore only provide the requested person with limited and arguably ineffective possibilities of redress.

There are however a number of things that the executing state may do, if its judicial authority has denied surrender, in order to help protect the requested person’s freedom of travel.

The possible intervention of a Member State other than the issuing Member State

Regulation 2018/1862 provides the executing Member State with two means of action to challenge certain data in the SIS: 1) it may request the addition of a flag in the SIS; or 2) and refer the matter to the European Data Protection Supervisor.

The addition of a flag next to the alert in the SIS

Under Article 24 of Regulation 2018/1862, if a Member State considers that to give effect to an alert issued by another Member State is ‘incompatible with its national law, its international obligations or essential national interests’, it may request that a flag be added to the alert in the SIS, thereby neutralising the effect of this alert on its territory.^[12] ‘Article 24 flags’ therefore provide a warning to foreign authorities that the authorities of a particular Member State will not take action on the basis of the alert. While this is an interesting provision for the data subject, Article 24 flags seem to be an entirely discretionary prerogative of the state, and in any case their effects are limited to the territory of the state which decides to issue such a flag.

More interestingly, the Regulation also contains a provision specific to EAWs. Article 25 of the Regulation, entitled ‘Flagging related to alerts for arrest for surrender purposes’”, provides that where the Framework Decision applies:

‘a Member State shall request the issuing Member State to add a flag preventing arrest as a follow-up to an alert for arrest for surrender purposes where the competent judicial authority under national law for the execution of a European Arrest Warrant has refused its execution on the basis of a ground for non-execution and where the addition of the flag has been required’.

The ambiguous language in this provision seems to suggest that the executing Member State must ask the issuing Member State to add a flag next to the alert in the SIS: 1) when its domestic judicial authority has refused surrender based on a ground for non-execution; and 2) where ‘the addition of the flag has been required’. Unfortunately, it is not clear what this second condition entails, as the text does not specify who can require the addition of a flag, and there is no literature on this issue. A possible interpretation is that the requested person or the judicial authority that has refused execution of the EAW is entitled to request the addition of a flag and may therefore compel the executing state to make use of this provision. Such an interpretation is however uncertain in the absence of an express provision conferring the requested person or the judge a specific ability to request the addition of a flag. Another possible interpretation is that the flag referred to in the second condition is that of Article 24, which would mean that Article 25 may only be used where the executing Member State has first made a finding, pursuant to Article 24, that the alert is incompatible with its national law, international obligations or essential interests. In that case, the provision appears overly complex and hardly workable in practice, as Article 25 does not make it an obligation for the issuing state to add the purported flag preventing arrest if it is requested to do so by another Member State. Unfortunately, no public data can be found about whether Article 24 and 25 of the Regulation are being used.

Consequently, while these provisions attempt to bring a solution to the issue identified in this article, they are quite unsatisfactory. In both cases, it appears that the flag added to an alert at the request of a Member State does not create any obligation for other Member States, which are not bound by such flag. As a result, even if the requested state has decided not to give effect to the alert, the requested person’s freedom of travel is effectively impaired across the rest of the EU unless the issuing authority decides that the alert in the SIS should be removed.

Referring the matter to the European Data Protection Supervisor

A second action that a Member State other than the issuing Member State might take is to bring a dispute with the issuing Member State before the European Data Protection Supervisor (EDPS). In the event of disagreement on the lawfulness of data stored in the SIS between two states, the state that did not enter the alert must submit the matter to the EDPS for a decision, in accordance with Article 59(5) and 59(6) of Regulation (EU) 2018/1862 on data quality in the SIS.^[13] Again, this provision is dependent on state action and it does not confer the requested person an individual right to file a complaint before the EDPS. It is also uncertain whether the EDPS has the power to compel a Member State to modify or remove data entered in the SIS.

It appears that the above mechanisms are largely unhelpful for a person seeking removal of a SIS alert. It is hard to see why a Member State would have an interest in initiating a dispute with another Member State regarding a SIS alert (unless, perhaps, the alert concerns a national of that Member State). The CJEU would arguably be in a much better position to assess whether a SIS alert should subsist in cases where the judicial authority of a Member State has found that the execution of the EAW would violate the requested person’s human rights, or where there is a concern that the alert was issued by a judicial authority that lacks the necessary independence.

In light of the extremely limited rights of the person subject to a SIS alert and the relatively inadequate prerogatives of other Member States to limit the impact of such alerts, this article takes the view that an independent, harmonised mechanism should be created at the EU level to regulate the issuance and subsistence of alerts in the SIS, in consideration not only of mutual trust in criminal matters, but also freedom of movement and the rule of law.

The need for a harmonised mechanism of regulation of SIS alerts at the EU level

Based on the above, it is urgent to consider the creation of a new legal remedy allowing a person subject to a SIS alert to request the removal of such data before an independent judge such as the CJEU, or a European entity specialised in criminal cooperation. The designated body would be entrusted to make a final determination on the compatibility of a disputed SIS alert with the Charter of Fundamental Rights and general principles of EU law.

Such a mechanism could easily draw from the well-established Interpol rules on the validity of Red Notices. Under Article 29 of the Statute of the CCF, anyone can submit directly to the CCF a request for access to, correction and/or deletion of data processed in the Interpol Information System.^[14] As a result, it is possible to seek the removal of a Red Notice directly from Interpol. Requests for removal are assessed by the CCF after hearing the requested person and the state which issued the notice, on the basis of Article 82 (et seq) of Interpol’s Rules on the Processing of Data, governing the validity of Red Notices. In particular, Article 83 on ‘specific conditions for publication of Red Notices’ requires the notice to be issued in respect of an ordinary law crime and specifically excludes certain categories of offences (those related to ‘behavioural or cultural norms’ or to ‘family/private matters’). It also imposes a minimum penalty threshold and requires the issuing state to provide minimum data, including juridical data, about the requested person, the charges, and the national procedures against that person.

CCF decisions are increasingly reasoned and published, in the manner of judicial decisions. Practice also tends to show that when a national judge has already handed a decision against the extradition of a person subject to a Red Notice, the CCF is attentive to and considerate of that decision. It will generally consider the reasons stated for refusing extradition by the national judge in assessing whether or not to grant the request for removal of the Red Notice. As a result, a person who is the subject of a Red Notice has a real prospect of obtaining redress through Interpol proceedings.

Conclusion

Considering the above, it must be concluded that a person subject to an international arrest warrant effectively has more rights under the Interpol system than under the EAW system. This situation is quite paradoxical if one considers the highly integrated nature of European law, by contrast to the generally low level of harmonisation in criminal matters at the broader international level. This divergence could in any case provide the basis for reflection at European level on the possibility of establishing a jurisdictional or quasi-jurisdictional mechanism capable of ruling on requests for removal of SIS alerts, along the lines of the Interpol CCF model. In the meantime, one might consider asking the CJEU by means of a prejudicial question whether the lack of a direct right to seek the removal of a SIS alert before an independent body is compatible with the fundamental freedom of movement which European citizens derive from the TFEU.