Castaño avoids a clash between the ECtHR and the CJEU,but erodes Soering. Thinking human rights transnationally

Silence in human rights law about cooperation in criminal matters

This piece is about the balance between human rights and cooperation in criminal matters. It is about the fact that the European Convention on Human Rights (ECHR) ¹ remains mostly silent on the issue of the human rights of extradited persons. It is also about how Soering ² introduced safeguards for human rights in extradition proceedings that were absent from the Convention. It is about how the European Court of Human Rights (ECtHR) later appeared to have changed its policy priorities in Güzelyurtlu ³ and Castaño ⁴ and how this brought it closer to the position of the Court of Justice of the European Union (CJEU) concerning human rights filters to extradition. In short, this piece is about the priorities of the Court between human rights protection and easing judicial cooperation among states and, in particular, about the dangers of automatising extraditions in the name of human rights protection.

The second section will address the question of whether and how the human rights of extradited persons are protected by the ECHR. The third section will then turn to how, with Soering, the ECtHR subordinated extraditions to human rights concerns. The fourth and fifth section will then scrutinise the Güzelyurtlu and Romeo Castaño cases where the ECtHR established that in fact proper respect of human rights requires, in some cases, a positive obligation to extradite. These developments mirror to some extent the rationale traditionally followed by the CJEU and how the two Courts have come to resolve the growing tension between their different approaches. The final section contrasts the approach in Güzelyurtlu and Romeo Castaño with that in Soering and draw the relevant conclusions as to the Court pushing towards an automatisation of extradition procedures.

Need for specific fundamental rights for individuals caught in transnational cooperation. Going beyond ne bis in idem?

Treaty-based provisions protecting the human rights of people facing extradition or international investigations are not exactly lining up in the ECHR. Admittedly, the 1957 Convention on Extradition ⁵ lists a number of grounds for refusal, or principles regulating extradition, which could potentially be construed as individual rights of the person whose extradition is being requested. These include the ne bis in idem principle, in art 9 of the Convention on Extradition, which is a commonly agreed principle enshrined in the criminal law of most States and according to which one cannot be tried for the same offence twice. ⁶ This rationale follows two objectives: the protection of people against the ius puniendi of the states, ⁷ and respecting the res judicata of the final judgment. ⁸ Other examples include the rule of specialty, enshrined in art 14 of the Convention on Extradition, and the prohibition to extradite someone in the case of capital punishment, protected by art 11. Last but not least, art 3 of the Convention hits two birds with one stone, as it includes both a political offence exception clause (art 3§1) and a discrimination clause (art 3§2):

Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.

These principles can be indirectly connected to the protection of fundamental rights, such as the right to a fair trial when it comes to non-extradition in the event of capital punishment. However, only the ne bis in idem principle has explicitly been elevated to the status of a fundamental right. Although the initial text of the ECHR did not actually foresee anything regarding the ne bis in idem principle, its 1984 Protocol 7 did; the latter included a right not to be tried or punished twice. ⁹ This principle is traditionally and mostly applied at the national level, but not without complications, however, as the question of how to understand both the bis and idem parts of the clause continues to torment judges. The ECtHR provided guidance on how to apprehend them, as well as the general scope of the principle, ¹⁰ so as to facilitate its domestic application and harmonise its understanding as much as possible. The ratification rate of the Protocol being shockingly low, however, this principle is in fact not so much protected by the ECHR as it is by the European Convention on Extradition. ¹¹

This is disappointing. One would have expected more fundamental protection for individuals caught in transnational litigations than just a ne bis in idem principle that is not even properly protected by the ECHR. Current developments in Europe call into question the reigning optimism about progress in terms of the rule of law, democracy and human rights and cast doubt on the idea that extradition and mutual assistance can smoothly take place between European countries without concerns for the fundamental rights of extradited and suspected people. A case in point is that over a fifth of the Council of Europe Contracting Parties are today on the monitoring list of the General Assembly for ‘persistent failure to honour commitments freely entered into’, ¹² the latter referring to the respect of the values of the Council of Europe: democracy, the rule of law and the respect of human rights. ¹³

Classic principles from extradition law, such as the political offence exception or the discrimination clause, are therefore far from outdated. The Council of Europe could have taken the idea of Europe more seriously in its most banal sense: its scope, its differences in legal cultures and languages. Can extradition between states and a displacement of a person within a state really be put on an equal footing? Can moving a suspect from Paris to Rouen be compared with moving a suspect from Lisbon to Oslo? Hardly. In terms of social-economic rights and the effective exercise of defence rights, intra-state and inter-state transfers cannot be compared. More attention to the different fundamental rights protection that each scenario requires was thus necessary at the moment of drafting the ECHR. ¹⁴ None of the drafting authors seem to have had the courage to break with or to innovate the state-based human rights tradition that we know from the French Revolution and early modernity. What was drafted was a catalogue of classical rights, and extradition between these countries was deemed possible on the assumption that each country would respect those rights. Thinking transnationally – namely of the rights of those individuals caught between two jurisdictions which might apply the ECHR standards differently – proved to be a bridge too far. ¹⁵ Human rights protection in extradition and mutual assistance cases is thus left to be dealt with at the domestic level, as the ne bis in idem safeguard presented above is not enough to protect the rights of an extradited person.

One could invoke the age of the 1950 ECHR as a justification for this lack of transnational thinking. However, when we look to the other Europe – the European Union (EU) – and its 2000 EU Charter of Fundamental Rights, ¹⁶ legally binding since the Lisbon Treaty, ¹⁷ things are only marginally better. The EU Charter replicates the catalogue of rights we find in the ECHR with a number of additions, but we do not find any additional specific safeguard for extradited people or persons caught in international investigations either.

Like in the ECHR, we do find the ne bis in idem principle mentioned in the EU Charter. Therefore, this one ground for refusal of extradition, which is meant to protect, among other aspects, the position of the extradited person, has also been elevated to a human right in the EU catalogue of fundamental rights. Interestingly, the integration of the Schengen Acquis into the EU legal framework, via the Convention on the Implementation of the Schengen Agreement, coupled to the development of the mutual recognition principle, and of the Area of Freedom, Security and Justice went even further than in the Council of Europe framework and gave the ne bis in idem principle a more transnational scope. ¹⁸ Article 3 of the Convention indeed states that

A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.

So, when applying the ne bis in idem principle, including when considering whether the application of this principle can stop the extradition of a person present on its territory, a domestic judge must consider convictions not only in one state but in all states of the Schengen Area. The EU thus shaped the ne bis in idem principle, taking into account free movement of persons across the EU and the general idea of mutual recognition, which requires states to consider judicial decisions taken by foreign authorities as equivalent to the ones taken by domestic authorities. ¹⁹

Although there is still no common European standard on the application of the ne bis in idem principle, ²⁰ this basic observation stands: with the recognition of ne bis in idem as a transnational right in the Charter and the ECHR, we – the Western legal system – finally obtained the first fundamental or human right that is genuinely transnational and meant to address possible injustices to individuals confronted with transnational cooperation mechanisms between states. Beside this principle, however, there is no provision in either the ECHR or the EU Charter explicitly proscribing specific protection for individuals caught in extradition or mutual assistance proceedings.

One would have expected more fundamental protection for individuals caught in transnational litigations than just the ne bis in idem principle, both from the ECHR but also – even more so – from the EU Charter, which is the foundation text for a transnational community. Most of its content represents no more than a copy-paste of the human rights legacy as developed at the state level in the 18th and 19th century. This strikes as being both peculiar and uninspired, especially at the level of the EU that developed a more ambitious programme of creating a single European justice space: Is ne bis in idem really all that can be said at the level of fundamental rights for this unique project of thinking a larger than large space, transcending state levels and building on transnational constitutionalism? ²¹ The first time this question of transnational fundamental rights protection was addressed in a non-superficial way was in 1989, by the ECtHR in Soering.

Introducing human rights filters to extradition (Soering)

The Soering case concerned a German national, who was a student at the University of Virginia. In 1985, he was accused of having killed his girlfriend’s parents in Bedford County, Virginia. Soering and his girlfriend disappeared in October 1985 and they were later arrested for cheque fraud in the United Kingdom in 1986. Following their arrest, they were interviewed by the Bedford County police in the United Kingdom, which led to Soering’s indictment for murder. ²² The United States then issued an extradition request to the United Kingdom under the Extradition Treaty of 1972 between the two countries, ²³ an extradition that the United Kingdom accepted after American authorities gave assurances that, in the event of his extradition, Soering would not face the death penalty or that, if that sentence is passed, it would not be executed. ²⁴ During the course of the proceedings, however, the Virginia authorities notified the United Kingdom that the Attorney for Bedford County did intend to seek the death penalty for Soering. ²⁵ In March 1989, Soering seized the ECtHR and contended that, if executed, his extradition would lead to a breach of art 3 ECHR on the prohibition of torture ²⁶ ; art 6 ECHR on the right to a fair trial ²⁷ ; and art 13 ECHR on the right to an effective remedy. ²⁸

In examining the case, the Court considered the assurances given by the Virginia authorities to the UK authorities that accepted it. The Court noted, in this regard, that never in the past had the effectiveness of such assurances been tested by UK authorities. ²⁹ The Court further scrutinised the criminal law applicable in Virginia, as well as the prison conditions in the prison where Soering would be serving his sentence. Because German authorities had also tried to get Soering back to Germany due to his nationality, the Court then looked at the German practice in terms of extradition. It noted that where there is a risk that a death sentence will be carried out, German authorities only granted extradition in the case of unequivocal assurances that the death sentence would not be imposed or carried out. Finally, the Court considered the alleged breaches of human rights of which Soering claimed he would be the victim, if extradited to the United States.

As mentioned, Soering argued that, should it take place, his extradition to the United States would lead to a breach of art 3 ECHR. More specifically, he contended that he would be subject to the ‘death row phenomenon’ if sentenced to death in Virginia. The ‘death row phenomenon’ refers to the circumstances surrounding the death sentence that subject the prisoner to such a level of distress that it is considered to be, in some cases, comparable to torture and/or inhumane and degrading treatment under art 3 of the ECHR. ³⁰ The Court clarified, however, that the Convention does not foresee or at least should not be understood as providing a right to prohibit extradition in the case of a potential death sentence. In the present case, however, the Court did consider that due to the way post-sentence procedures took place in the specific context of Virginia, a prisoner ‘ha[d]? to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death’. ³¹ Adding to this the personal circumstances of Soering (his young age – he was 18 years old at the moment of the murder – and his mental state at the time of the offence – about which psychologists have said that he was suffering from an ‘abnormality of mind due to inherent causes as substantially impaired his mental responsibility for his acts’ ³² ) and the fact that Germany was willing to take him back (meaning that there was, in fact, a scenario where he could undergo punishment and where the risk of suffering linked to the death row phenomenon would be eliminated), the Court decided to rule that the extradition of Soering would give rise to a breach of art 3 ECHR. ³³ The Court rejected, however, the claims linked to potential breaches of his right to a fair trial (art 6 ECHR) and to an effective remedy (art 13 ECHR) that the applicant had also raised.

The reason why this ruling was so revolutionary at the time (and still is today) is because the Court, for the first time, conditioned an extradition upon the respect of the fundamental rights of the person to be extradited, and this in a rather far-reaching way. Indeed, it did not suffice that the United Kingdom sought diplomatic assurances, it was also irrelevant that the potential breach would be committed by a third state and not by a Contracting Party, and it did not matter that Soering was sent to a State that the Court viewed as democratic ³⁴ : the ruling effectively extended the responsibility of Contracting Parties with regard to the fundamental rights of the person they have in their hands all the way until the very last result of their action has revealed itself. The responsibility of the Contracting Parties is thus engaged not only until the person leaves their jurisdiction but until all consequences deriving from their action have unfolded. This ruling thus introduced major human rights filters to extradition. The Court was very careful, however, in clarifying that this should not be understood as a prohibition to extradite unless the Convention standards are respected by all countries who wish to cooperate with the Council of Europe’s Contracting Parties. The purpose of this ruling was thus by no means to ‘impose Convention standards on other States’. ³⁵ It was to engage the Contracting Parties’ responsibility ‘for all and any foreseeable consequences of extradition suffered outside their jurisdiction’ so as to ‘make the safeguards [of the Convention] practical and effective’. ³⁶ This rationale applies not only to extradition but also to deportations where other articles of the Convention are potentially engaged, as has been demonstrated by subsequent cases, the most notable of which being the one of Othman (Abu Qatada) v The United Kingdom. ³⁷

With Soering, the Court did not impose clear transnational standards as to when fundamental rights can actually come in the way of extradition either. Although it stated that extradition can be hampered if a ‘flagrant denial of a fair trial’ is observed by the requested Contracting Party, ³⁸ it gave no indication as to what constitutes a flagrant denial of respect of fundamental rights. Furthermore, the Court only mentioned arts 3 and 6 of the Convention in that respect, which raises questions over potential denials of other rights in the course of extradition proceedings. The threshold established by the Court in this judgment for fundamental rights to impede extraditions thus remains very high and unclear overall, despite its groundbreaking character. ³⁹

The unprecedented nature of this ruling also derives, and this should not be overlooked, from its exceptionality, in the sense that it is unusual for the Court to adopt such a position. There is, more often than not, a bargain between the ideal application of the Convention and the pragmatic situations faced by the Contracting Parties in their application of the Convention, leading the Court to position itself somewhere in between, usually drawing a line that should not be passed, but also refraining from hampering cooperation altogether.

In 2019, however, with the Güzelyurtlu and Castaño judgments, the Court actually used the human rights argument to create an obligation to cooperate, thus envisaging a different relation between fundamental rights and cooperation than the one which had guided the judges when delivering the Soering judgment.

Using human rights to create an obligation to extradite (Güzelyurtlu and Castaño)

Convergence of ECtHR and CJEU approaches

The Castaño case encapsulated, and to a certain extent reconciled, a long-standing tension between the ECHR approach and the EU law approach to human rights protection and extradition. Indeed, with Soering, the ECtHR had established the importance of prioritising concerns of human rights over cooperation. This prioritisation was not absolute, but the fact that the Court swam against the tide to set that standard tells us about the ambition of the Court in terms of human protection. The Court thus made a statement in reference to Soering.

The approach of the CJEU to the relation between concerns of human rights and cooperation in criminal matters had traditionally been a different one. The mutual trust principle was indeed supposed to enable EU Member States to bypass the human right screening process in extradition proceedings and pre-approve extradition requests. Because the mutual trust principle was in the DNA of the European arrest warrant in the sense that it was a sine qua non condition for the European arrest warrant to even exist in the first place, questioning the respect of fundamental rights of EU Member States in their application of the European arrest warrant would have amounted to casting doubt over the mutual trust principle itself. This had not been the option for the CJEU for a long time. The blind trust policy, however, proved to be unsustainable regarding the dual obligation of EU Member States towards both the CJEU and the ECtHR. EU Member States were indeed caught between their conflicting obligations deriving from the two jurisdictions. ⁷⁵ Had they surrendered people to a place where their human rights might be breached, they risked a condemnation before the ECtHR; had they not automatically surrendered these people, they risked a condemnation before the CJEU. As Irene Wieczorek pointed out, these paradoxical obligations resulted in a variety of responses by EU Member States confronted with such situations. ⁷⁶ This was not only problematic for the general coherence between the legal systems of the EU and the Council of Europe, it also resulted in a messy and inconsistent (non-)application of EU law.

This tension decreased in recent years, as the CJEU increasingly nuanced the automatisation of surrenders in the EU by subordinating them to human rights concerns. ⁷⁷ With cases like Aranyosi or LM, the CJEU indeed outlined the circumstances under which the principle of mutual trust can be rebutted and the application of European arrest warrants prevented. ⁷⁸ In Aranyosi, the CJEU designed a two-step approach to determine whether the human rights of the person would be endangered in the case of surrender. The first step consists of an assessment of whether or not there were systematic deficiencies observed in one EU Member State regarding the application of the EU Charter on fundamental rights. The second step then seeks to gauge how these deficiencies apply to the individual case of the person sought. ⁷⁹ To that purpose, the issuing Member State is encouraged to request supplementary information. ⁸⁰ This more compromising stance is said to contrast with the one it had adopted in the past, where it focused on automatising surrenders. ⁸¹

With Güzelyurtlu and Castaño, the ECtHR also met the CJEU half-way and sought to ensure consistency across the two jurisdictions. The ECtHR judges in Castaño were indeed concerned with the symmetry between the two legal systems. ⁸² As Judge Pavli outlined in his concurring opinion to the ECtHR’s ruling in Castaño, ‘the European Convention on Human Rights does not live in isolation within its regional context of application’. ⁸³ He further explained that

the ‘challenge of symmetry’ between Convention law and European Union law is an ongoing enterprise which requires carefully crafted interpretative solutions so as to retain, as far as possible, the principled character and integrity of the former without upsetting the delicate institutional balance and fundamental elements inherent in the latter. ⁸⁴

Accordingly, the ECtHR took a similar path to the one of the CJEU by establishing rather stringent standards as to when it can be considered that human rights are endangered with regard to the application of a European arrest warrant. Mirroring the approach of the CJEU in Aranyosi, the ECtHR fashioned a two-step test in the Castaño case to determine when a refusal to extradite is compatible with the ECHR. It first examined whether the extradition request granted a proper response. It then assessed if the refusal to cooperate was based on legitimate grounds. ⁸⁵ Doing so, it subordinated the application of European arrest warrants to the respect of human rights. The ruling, however, does not risk having a particularly high impact in practice, as the threshold is set very high for when European arrest warrant requests can be refused on human rights grounds.

The paths taken by both Courts thus seem to have eventually converged. That is perhaps good news, but the ECtHR, however, should be careful not to make too many concessions to the criminal policy ambitions of the EU. Indeed, the question is, can Güzelyurtlu and Castaño be reconciled with the revolutionary Soering judgment? What do these cases do for the rights of the extradited person?

Make no mistake, the Court has not explicitly overruled Soering. Castaño in particular reiterates the possibility of halting extradition to protect the fundamental rights of the accused. However, firstly, it sets a very high threshold for that. And secondly, more generally, Güzelyurtlu and Castaño highlight a different additional function for human rights, namely that justifying and actually requiring extradition. The priority for the Court seems to have changed, with the emphasis being put on what human rights can be protected by extradition (such as the right to life as at stake in Güzelyurtlu and Castaño), rather than on what human rights can extradition affect (such as fair trial rights, but also the right not to be subject to inhuman and degrading treatment like in Soering). One could therefore argue that Güzelyurtlu and Castaño have eroded the spirit of Soering.

Advancing human rights to the detriment of the rights of defence (conclusion)

This article in a journal issue dedicated to Scott Crosby, founder of the journal, sought to unveil how, with Güzelyurtlu and Castaño, the ECtHR backtracked to some extent on the approach it had adopted under Soering, as far as the relation and hierarchy between extradition and fundamental rights are concerned, and how this brought it closer to the position of the CJEU. It started by outlining that the ne bis in idem principle was the sole provision contained in the ECHR (and the EU Charter) that explicitly protects human rights in transborder cases. It then outlined how, with the Soering case, the ECtHR in part remedied that lacuna by subjecting cooperation to the respect of human rights. It then turned to Güzelyurtlu and Castaño to show how the Court today sets cooperation as a precondition for human rights protection. It then looked at how this new rationale was one that allowed it to align human rights protection in transborder criminal cases with the one of the CJEU and how the latter also tempered its originally unbending approach to cooperation. It is against this general backdrop that this article warns against a too compromising attitude with regard to human rights in the field of cooperation in criminal matters.

The different rulings of the ECtHR discussed above have not helped to shape clear transnational standards to human rights protection. Although Soering did establish a hierarchy between human rights protection and cooperation in criminal matters, favouring the former over the latter, it did not, however, create clear and unequivocal human rights standards to be applied in cooperation in criminal matters. The net result of Soering is a balancing act: allowing cooperation between states (even non-European states), while excluding actions that could result in flagrant violations of some very important human rights. The mere fact that this balance exists also enabled the Court to actually later turn away from the path it had initially followed, or at least to nuance it.

With Güzelyurtlu and Castaño, the Court has effectively established a positive obligation for States to cooperate flowing from the duty to respect fundamental rights. Here, the rationale is very much different than the one followed in Soering because, while in the latter human rights were prioritised over cooperation, with Güzelyurtlu and Castaño, the logic followed by the Court is one where cooperation will enable human rights protection. The most cynical could even say that, here, human rights protection is put at the service of cooperation in criminal matters. The development of a supranational judicial supervision has therefore not led to a reconceptualisation of human rights in a truly transnational space.

Safeguards like the ne bis in idem principle or the ones deriving from Soering (or, for that matter, Aranyosi and Căldăraru) thus need to be commended, but one should be cautious regarding the positive obligation of the states to cooperate created by the Strasbourg Court, as the latter yields immense potential to reverse the initial relationship of human rights and cooperation in criminal matters set under Soering. Cooperation should happen if human rights are respected, not the other way around. Let us not forget, in this regard, that before cooperation was presented as paramount to human rights protection, the political offence exception conversely offered Contracting Parties the possibility to refuse extradition in cases where the requesting State was deemed to be unable to offer a fair trial for the person sought. ⁸⁶ A similar message lurks behind the discrimination clause. ⁸⁷ Unquestionably, States have and should have obligations to carry out a human rights check before sending suspects away. It is more questionable whether human rights can be the right source for creating extra layers of obligations to cooperate between states. ⁸⁸ Sending Basque political militants to Spain with the abundance of international evidence on poor detention conditions in that country can, in our view, not be justified as a positive human rights obligation.

Our plea for more conceptualisation of European fundamental rights in a truly transnational European perspective transcending the state level has very little to do with the new doctrine developed in Güzelyurtlu and Castaño. Human rights should protect individuals, rather than regulate state cooperation. A hardcore defence lawyer like Scott Crosby would certainly comprehend this dangerous use of positive human rights obligations in the said cases. Later on in his career, Scott became a human rights law professor at the Vrije Universiteit Brussel. Students were privileged to benefit not only from his knowledge of human rights broadly speaking but also from his expertise and long-standing experience as a defence lawyer. Perhaps there is a need for more defence lawyers among the human rights judges in Strasbourg. Victims of crime, like Romeo Castaño and his father are, of course, entitled to human rights protection too, but, –and this is the contribution of defence lawyers to human rights law –, never at the expense of the rights of the accused.