APPENDIX 5: SUMMARY OF CASES MENTIONED
IN EVIDENCE
CJEU
Pupino-Case C-105/03
Judgment of 16 June 2005
Measure: Framework Decision 2001/220/JHA on the standing
of victims in criminal proceedings
The case concerned provisions requiring Member States
to enable victims to give evidence in the course of proceedings
and, in the case of vulnerable victims, to give their evidence
in a way which protects them from the effects of testifying in
open court.
Questions were referred to the CJEU by an Italian
court. Italy accepted the jurisdiction of the CJEU to give Preliminary
Rulings in relation to pre-Lisbon police and criminal justice
legislation.
The questions concerned the interpretation of the
Framework Decision, in particular whether it required the Italian
court to permit child victims of alleged assaults by a teacher
the facility to give evidence under a Special Inquiry procedure,
permitted under Italian law for some purposes. The Italian court
considered that, under Italian law, the Special Inquiry procedure
was not available in the specific circumstances of the case.
The CJEU held that—
- National law must be interpreted
so as to give effect to the objectives of the (third pillar) Framework
Decision in the same way as, under long-established case law of
the CJEU, national law must achieve the objectives of a (first
pillar) Directive, since both forms of legislation are binding
on the Member States.
- The obligation on Member States to ensure such
a "conforming" interpretation is limited in certain
important respects—by general principles of law, such as
non-retroactivity, and by the principle that no criminal liability
on the part of an individual may result from a Framework Decision.
- The courts of a Member State may only interpret
national law in accordance with the Framework Decision to the
extent that the wording of national law allows that—it cannot
be required to put a strained interpretation on national law.
- The Framework Decision must be interpreted in
accordance with fundamental rights, notably the right of a defendant
to a fair trial.
The CJEU interpreted the relevant provisions of the
Framework Decision as setting the objective of ensuring that,
where a vulnerable victim needed to be protected from giving evidence
in open court, the victim must be able to testify in a way which
meets the need for that protection. It said it was for the national
court to decide whether the law on Special Inquiry procedure could
be given a conforming interpretation and, if so, whether the use
of such a procedure would prejudice the defendant's right to a
fair trial.
Criminal proceedings against Gueye and Sanchez-Cases
C-483/09 and C-1/10
Judgment of 15 December 2011
Measure: Framework Decision 2001/220/JHA on the standing
of victims in criminal proceedings
The case concerned the interpretation of provisions
requiring Member States to enable victims of crime to be heard
in evidence during proceedings, and to provide suitable level
of protection for victims, as regards their safety and privacy.
Questions were referred to the CJEU by a Spanish
court. Spain accepted the jurisdiction of the CJEU to give Preliminary
Rulings in relation to pre-Lisbon police and criminal justice
legislation.
The questions concerned whether the Framework Decision
precluded the mandatory imposition, under Spanish law on domestic
violence, of an ancillary penalty requiring the convicted person
to stay away from his victim for a prescribed period. In the Spanish
court, the victims had given evidence that they had each voluntarily
resumed cohabitation with the offender.
The CJEU noted that Protocol 36 preserved the Court's
jurisdiction to give Preliminary Rulings in relation to police
and criminal justice measures where a Member State had accepted
such jurisdiction.
The CJEU held that—
- The Framework Decision contains
no provisions on the penalties which Member States provide in
their criminal legislation.
- The Framework Decision must be interpreted having
regard to fundamental rights, in particular the right to respect
for family and private life.
- The obligation to ensure that victims must be
able to give evidence leaves a large measure of discretion to
the Member States. Victims must also be able to express opinions.
But the right to be heard does not include any right in relation
to the form or level of penalty which may be imposed.
- The obligation to protect victims does not restrict
the choice of penalties in national criminal law systems.
- The Framework Decision does not preclude the
imposition of mandatory penalties under national law, particularly
where other interests besides those of the victim (such as the
general interest of society) must be taken into account.
Criminal proceedings against X-Case C-507/10
Judgment of 21 December 2011
Measure: Framework Decision 2001/220/JHA on the standing
of victims in criminal proceedings
The case concerned provisions requiring Member States
to enable vulnerable victims to give their evidence in a way which
protects them from the effects of testifying in open court.
Questions were referred to the CJEU by an Italian
court. Italy accepted the jurisdiction of the CJEU to give Preliminary
Rulings in relation to pre-Lisbon police and criminal justice
legislation.
The questions concerned the interpretation of the
Framework Decision, in particular whether it required the Italian
court put aside provisions of Italian law which (a) did not require
a Public Prosecutor to make a request to use a Special Inquiry
procedure, in order to take the evidence of a child victim, alleged
to have been assaulted by a parent, in a preliminary investigation
(instead of at trial), and (b) did not give the victim a right
of appeal against the Prosecutor's decision. In this case, the
procedure was available in law but the Prosecutor had not requested
its use.
The CJEU noted that Protocol 36 preserved the effects
of the Framework Decision and the Court's jurisdiction to give
Preliminary Rulings where a Member State had accepted such jurisdiction.
The CJEU held that—
Since the Framework Decision does not lay down specific
provisions for achieving its objectives, national authorities
had a large measure of discretion in relation to the means by
which they implemented those objectives.
- The Framework Decision does not guarantee a victim
a right to require that criminal proceedings are brought.
- The Framework Decision does not require the use
of any particular national procedure and did not rule out national
arrangements under which the Public Prosecutor is to make the
decision on a victim's request to use a particular procedure.
The absence of a right of appeal did not affect that conclusion.
- The Public Prosecutor is a judicial body with
responsibility for bringing prosecutions in the national criminal
law system and that system must be respected.
- The Court noted that there were other ways in
which the victim could be protected under Italian law.
Criminal proceedings against Giovanardi-Case C-79/11
Judgment of 12 July 2012
Measure: Framework Decision 2001/220/JHA on the standing
of victims in criminal proceedings
The case concerned provisions requiring Member States
to ensure that victims are able to obtain a decision on compensation
from an offender within a reasonable time in criminal proceedings,
except where national law provides for compensation to be awarded
in a different manner.
Questions were referred to the CJEU by an Italian
court. Italy accepted the jurisdiction of the CJEU to give Preliminary
Rulings in relation to pre-Lisbon police and criminal justice
legislation.
The questions concerned the interpretation of the
Framework Decision in relation to a claim for damages, for injuries
sustained in a workplace accident, from legal persons who had
administrative liability under Italian law distinct from the criminal
liability. Italian law did not provide for a person to become
a civil party in criminal proceedings against a body charged with
administrative liability.
The CJEU noted that Protocol 36 preserved the effects
of the Framework Decision and the Court's jurisdiction to give
Preliminary Rulings where a Member State had accepted such jurisdiction.
The CJEU held that—
- The aim of the Framework Decision
is to provide minimum standards of protection for victims in criminal
proceedings. It does not require Member States to make legal persons
liable in criminal law.
- Persons harmed as a result of an administrative
offence, as defined in Italian law, are not to be regarded as
victims of a criminal act for the purposes of the Framework Decision.
Advocaten voor de Wereld-Case C-303/05
Judgment of 3 May 2007
Measure: Framework Decision 2002/584/JHA on the European
Arrest Warrant
The case in the national court concerned the validity
of the Belgian law implementing the European Arrest Warrant. That
depended on the validity of the Framework Decision.
Questions were referred to the CJEU by a Belgian
court. Belgium accepted the jurisdiction of the CJEU to give Preliminary
Rulings in relation to pre-Lisbon police and criminal justice
legislation.
The CJEU held that—
- The purpose of the Framework Decision
is to replace the multilateral system of extradition between Member
States with a system of surrender, as between judicial authorities,
of convicted person and suspects.
- The mutual recognition of arrest warrants is
an instance of judicial cooperation in criminal matters.
- The Council was entitled to adopt the arrest
warrant by Framework Decision and was not required to adopt a
Convention merely because the measure replaced corresponding provisions
of an earlier Convention. The Treaty did not establish an order
of priority between the forms of legal instrument available in
the third pillar.
- The abolition of the requirement for dual criminality
in relation to arrests for certain offences is not contrary to
the principle of legal certainty (which requires that a citizen
must know whether behaviour will make her criminally liable).
The definition of the offences and penalties concerned were determined
by the national law of the issuing Member State.
- Nor did the Framework Decision breach the principles
of equality and non-discrimination.
- Nothing in the relevant Treaty provisions makes
the application of the European Arrest Warrant conditional on
the harmonisation of the criminal laws of the Member States.
Wolzenburg-Case C-123/08
Judgment of 6 October 2009
Measure: Framework Decision 2002/584/JHA on the European
Arrest Warrant
The case concerned provisions setting out the grounds
for refusing to execute a European Arrest Warrant, in particular
the ground allowing a Member State to refuse execution of a warrant
against its own nationals or residents in the state, where the
warrant is issued against a convicted person for the enforcement
of a custodial sentence and that state undertakes to enforce the
sentence in accordance with its own law.
Questions were referred to the CJEU by a Netherlands
court. The Netherlands accepted the jurisdiction of the CJEU to
give Preliminary Rulings in relation to pre-Lisbon police and
criminal justice legislation.
The questions concerned an arrest warrant issued
by a German court seeking the return from the Netherlands of a
German citizen who was due to serve a prison sentence. Netherlands
law implemented the option in the Framework Decision not to return
residents but limited its scope to those who had resided in the
Netherlands for at least five years. The defendant, the subject
of the warrant, did not satisfy that residence test.
The CJEU held that—
- The defendant, as an EU citizen,
was entitled to rely on the principle of non-discrimination on
grounds of nationality under the EU Treaties to challenge the
Netherlands law.
- Demonstrating five years residence does not depend
on possession of a residence permit.
- When implementing the options in the Framework
Decision concerning the grounds for refusing execution of an arrest
warrant, Member States have a margin of discretion.
- If a state chooses to limit the situations in
which its judicial authorities may refuse to execute an arrest
warrant that reinforces the objective of the Framework Decision.
- The limitation in national law based on five
years residence was proportionate to the objective of the optional
ground, namely, to aid the reintegration into society of the defendant
on completion of his sentence. The limitation was not discriminatory.
Radu-Case C-396/11
Judgment of 29 January 2013
Measure: Framework Decision 2002/584/JHA on the European
Arrest Warrant
The case concerned the implications of the fundamental
right to a fair hearing for the operation of the European Arrest
Warrant system.
Questions were referred to the CJEU by a Romanian
court. Romania accepted the jurisdiction of the CJEU to give Preliminary
Rulings in relation to pre-Lisbon police and criminal justice
legislation.
The questions were raised in proceedings brought
in Romania by a Romanian national, residing there, against four
arrest warrants issued in Germany seeking his surrender to Germany
for trial on charges of aggravated robbery. The defendant claimed
that the Romanian court should refuse to execute the warrants
on a ground not found in the Framework Decision but based on the
right to a fair hearing, because he should have had the opportunity
to be heard by the judicial authorities of the issuing state.
The CJEU held that—
- The purpose of the Framework Decision
is to establish a simplified and more effective system for the
surrender of convicted persons and suspects, to facilitate and
accelerate judicial cooperation.
- In principle, Member States are obliged to act
on a European Arrest Warrant. Execution of an arrest warrant may
only be refused on the grounds set out in the Framework Decision.
- The fact that the subject of a European Arrest
Warrant has not been able to state a case to the authorities of
the issuing state is not a ground for refusing to execute the
European Arrest Warrant. A right to be heard in those circumstances
is not implied from the Charter of Fundamental Rights. Indeed,
an obligation on the issuing state to hear the subject of the
request for an arrest warrant would defeat the purpose of the
system of surrender.
- The person subject to a European Arrest Warrant
must be heard by the court in the executing state.
Metock-Case C-127/08
Judgment of 25 July 2008
Measure: Directive 2004/38 on the right of EU citizens
and their family members to move and reside freely in the territory
of the Member States
The case concerned the right of residence in Member
States of third country nationals (i.e. non-EU citizens) who are
family members, as defined in the Directive, of an EU citizen
who has relied on Treaty rights of free movement within the EU.
Questions were referred to the CJEU by an Irish
court. The measure was adopted under the Treaty establishing the
European Community and was subject to the full jurisdiction of
the CJEU.
The questions concerned the interpretation of the
Directive in the context of Irish law which required third country
family members to have resided lawfully in another Member State
before arriving in Ireland, in order to benefit from a right of
residence. Proceedings were brought by third country spouses of
EU citizens who had moved to Ireland from other Member States,
following the refusal to provide residence cards to the spouses.
The national court found that none of the marriages was a marriage
of convenience.
The CJEU held (inter alia) that—
- The Directive aims to facilitate
the right of free movement conferred on EU citizens by the EC
Treaty. It should not be construed restrictively.
- The Directive, and earlier EU legislation, recognises
the importance of protecting the family life of nationals of the
Member States in order to eliminate obstacles to one of the fundamental
freedoms guaranteed by the EC Treaty, namely free movement of
people. All Member States are parties to the European Convention
on Human Rights which enshrines respect for family life.
- If EU citizens were prevented from being joined
by family members when they move between Member States, this would
prevent them leading a normal family life and seriously impede
their freedom of movement.
- The Court's decision in the case of Akrich
(in 2003)—that in order to benefit from provisions in a
different measure on free movement, a third country spouse must
be lawfully resident in a Member State—should be reconsidered.
- The Directive contains no provision making its
application to family members conditional on their having previously
resided in a Member State and cannot be interpreted so as to include
such a requirement. It must be interpreted as conferring rights
of entry and residence on all third country family members, regardless
of whether they have previously resided in another Member State.
- The EU has competence to adopt measures to bring
about freedom of movement for EU citizens, including regulating
the rights of family members. Member States do not have exclusive
competence in this area.
- Member States may refuse entry on grounds of
public policy, public security or public health, or in cases of
abuse or fraud, such as marriages of sham marriages.
Association belge des Consommateurs Test-Achats-Case
C- 236/09
Judgment of 1 March 2011
Measure: Directive 2004/113 implementing the principle
of equal treatment between men and women in the access to and
supply of goods and services
The case concerned the validity of provisions of
the Directive on equal treatment in relation to insurance services.
Questions were referred to the CJEU by a Belgian
court. The measure was adopted under the Treaty establishing the
European Community and was subject to the full jurisdiction of
the CJEU.
The questions concerned a provision which enabled
Member States that permitted the use of sex as an actuarial factor
for calculating insurance premiums and benefits, to continue to
do so. This was an exception to the general rule in the Directive
providing for "unisex" premiums and benefits. Member
States taking that option would have to review their decision
after five years.
The CJEU held that—
- The Treaty on European Union and
the EU Charter of Fundamental Rights provide that fundamental
rights are recognised as general principles of EU law. The rights
include equality between men and women and the prohibition of
discrimination based on sex.
- Article 19 TFEU confers power to combat discrimination
based on sex (and other factors). It is for the EU legislature
to decide when to exercise that competence but, when it does so,
the action must contribute to the achievement of the objective.
- Since the use of sex as an actuarial factor was
widespread, it was permissible for the EU legislature to allow
appropriate transitional periods for the application of "unisex"
premiums and benefits.
- But the Directive permits an exception without
limit of time, thereby creating a risk that the exception would
persist indefinitely. Such a provision worked against the achievement
of the objective of equal treatment.
The Court held that the provision creating the exception
was invalid but deferred the application of its decision on invalidity
for "an appropriate transitional period" ending on 21
December 2012.
UK Supreme Court
Assange v The Swedish Prosecution Authority-[2011]
UKSC 22
Judgment of 30 May 2012
Measure: Framework Decision 2002/584/JHA on the European
Arrest Warrant
Reproduction of press summary from Supreme Court
website
JUSTICES: Lord Phillips (President), Lord Walker,
Lady Hale, Lord Brown, Lord Mance, Lord Kerr, Lord Dyson
Background to the Appeals
The appellant, Mr Assange, is the subject of
a request for extradition by the Swedish Prosecuting Authority
for the purposes of an investigation into alleged offences of
sexual molestation and rape.
Mr Assange is in England. A domestic detention
order was made by the Stockholm District Court in Mr Assange's
absence, and was upheld by the Svea Court of Appeal. A prosecutor
in Sweden thereafter issued a European Arrest Warrant ('EAW')
on 2 December 2010 pursuant to the arrangements put in place by
the Council of the European Union in the Framework Decision of
13 June 2002 on the EAW and the surrender procedures between Member
States (2002/584/JHA)('the Framework Decision'), which were given
effect in the United Kingdom in Part 1 of the Extradition Act
2003 ('the 2003 Act').
Mr Assange challenged the validity of the EAW
on the ground (amongst others) that it had been issued by a public
prosecutor who was not a 'judicial authority' as required by article
6 of the Framework Decision and by sections 2(2) and 66 of the
2003 Act. Sweden had designated prosecutors as the sole competent
authority authorised to issue EAWs in accordance with article
6(3) of the Framework Decision. Mr Assange contended that
a judicial authority must be impartial and independent both of
the executive and of the parties. Prosecutors were parties in
the criminal process and could not therefore fall within the meaning
of the term. If, contrary to this argument, prosecutors could
issue EAWs under the Framework Decision, then he still submitted
that they fell outside the definition in the 2003 Act, as it was
clear that Parliament had intended to restrict the power to issue
EAWs to a judge or court.
His challenge failed before the Senior District Judge
at the extradition hearing and on appeal before the Divisional
Court. The Supreme Court granted permission to bring an appeal
on this ground as the issue was one of general public importance.
Judgment
The Supreme Court by a majority of 5 to 2 (Lady Hale
and Lord Mance dissenting) dismisses the appeal and holds that
an EAW issued by a public prosecutor is a valid Part 1 warrant
issued by a judicial authority within the meaning of section 2(2)
and 66 of the 2003 Act.
Reasons for the Judgment
References in square brackets are to paragraphs
in the judgment
Article 34 (2)(b) of the Treaty on European Union
provides that Framework Decisions are binding on member states
as to the result to be achieved but that national authorities
may choose the form and method of achieving this. For the reasons
given by Lord Mance in his judgment [208-217] the Supreme Court
is not bound as a matter of European law to interpret Part 1 of
the 2003 Act in a manner which accords with the Framework Decision,
but the majority held that the court should do so in this case.
The immediate objective of the Framework Decision was to create
a single system for achieving the surrender of those accused or
convicted of serious criminal offences and this required a uniform
interpretation of the phrase 'judicial authority' [10][113]. There
was a strong domestic presumption in favour of interpreting a
statute in a way which did not place the United Kingdom in breach
of its international obligations [122]
An earlier draft of the Framework Decision would
have put the question in this appeal beyond doubt, because it
stated expressly that a prosecutor was a judicial authority. That
statement had been removed in the final version. In considering
the background to this change, the majority concluded that the
intention had not been to restrict the meaning of judicial authority
to a judge. They relied, as an aid to interpretation, on the subsequent
practice in the application of the treaty which established the
agreement of the parties. Some 11 Member States had designated
public prosecutors as the competent judicial authority authorised
to issue EAWs. Subsequent reviews of the working of the EAW submitted
to the European Council reported on the issue of the EAWs by prosecutors
without adverse comment and on occasion with express approval
[70][92][95][114-119][160-170].
Lord Phillips felt that this conclusion was supported
by a number of additional reasons: (1) that the intention to make
a radical change to restrict the power to issue EAWs to a judge
would have been made express [61], (2) that the significant safeguard
against the improper use of EAWs lay in the preceding process
of the issue of the domestic warrant which formed the basis for
the EAW [62], (3) that the reason for the change was rather to
widen the scope to cover some existing procedures in member states
which did not involve judges or prosecutors [65] and that the
draft referred to 'competent judicial authority' which envisaged
different types of judicial authority involved in the process
of executing the warrant [66]. Lord Dyson preferred not to infer
the reasons for the change [128] and did not find the additional
reasons persuasive [155-159]. Lord Walker and Lord Brown also
found these reasons less compelling [92][95]. Lord Kerr relied
on the fact that public prosecutors in many of the Member States
had traditionally issued arrest warrants to secure extradition
and a substantial adjustment to administrative practices would
have been required [104].
Parliamentary material relating to the debates before
the enactment of the 2003 Act were held by the majority to be
inadmissible as an aid to construction under the rule in Pepper
v Hart [1993] AC 593, given the need to ensure that the phrase
'judicial authority' had the same meaning as it had in the Framework
Decision [12][92][98]. Lord Kerr remarked that that it would be
astonishing if Parliament had intended radically to limit the
new arrangements (thereby debarring extradition from a number
of Member States) by use of precisely the same term as that employed
in the Framework Decision [115][161].
Lord Mance, dissenting, held that the common law
presumption that Parliament intends to give effect to the UK's
international obligations was always subject to the will of Parliament
as expressed in the language of the statute [217]. In this case,
the correct interpretation of 'judicial authority' in the Framework
Decision, a question of EU law, was far from certain [244]. Thus
if Parliament had intended to restrict the power to issue EAWs
to judges or courts, that would not have required a deliberate
intention to legislate inconsistently with the Framework Decision.
As the words in the statute were ambiguous, it was appropriate
to have regard to ministerial statements, and those statements
showed that repeated assurances were given that an issuing judicial
authority would have to be a court, judge or magistrate [261].
Lady Hale agreed with Lord Mance that the meaning of the Framework
Decision was unclear and that the Supreme Court should not construe
a UK statute contrary both to its natural meaning and to the evidence
of what Parliament thought it was doing at the time [191].
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