The Deputy Registrar of the Grand Chamber of the European Court of Human Rights, Johan Callewaerthas raised his critical voice against the opinion of the attorney general of the Court of Justice of the European Union (TWENTY), Richard de la Touron the European orders issued by the Spanish judge paul larena to be able to extradite exiled pro-independence leaders from Belgium. De la Tour made a report last July concluding that the Belgian justice cannot reject the delivery of those accused by the Procés claimed by the magistrate of the supreme court Spanish, including the president in exile, Carles Puigdemont, based on the risk that their fundamental rights will be violated if they do not demonstrate systemic and generalized deficiencies in Spain. In his report, the general counsel of the CJEU also said that Belgium could not question the powers of the Supreme Court as the authority to issue European orders.
In his report, De la Tour added that, in the absence of systemic or generalized deficiencies in the functioning of a judicial system of a member state that issues the European warrant, there is no reason for a judicial authority that has to execute it to carry out a review because that, he stressed, “would be a demonstration of distrust in the courts of that country.” In short, the attorney general thus defended the principle of trust between the member states of the EU so as not to question the judicial system of any of them. It is at this point that Callewaert criticizes him in an article that he has published on his website. The author considers that the CJEU Advocate General’s approach may raise some concerns about compliance with the European Convention on Human Rightsand remember that the judges of each country are also responsible for its application.
Take into account the individual risks of each case
Callewaert underlines that, according to the Convention, the general situation of the country of destination of the extradited person is always the starting point, “but it is never the end of the story”. Furthermore, he points out, unless the general test works already to the applicant’s advantage, “if widespread risks of abuse in the country of destination cannot be demonstrated, the European Court of Human Rights allows applicants to demonstrate the existence of relevant personal circumstances that put them at risk of being mistreated.”
The Deputy Clerk of the Grand Chamber of the ECHR adds that “while evidence of widespread deficiencies in a country can be a very useful background to examine the information of an individual request of this type, the absence of this evidence or the gaps” cannot exempt the judge of any state from having take into account the serious allegations about the risk of individual violations that someone could suffer in the country where they could be extradited. Callewaert reaches a conclusion that refutes the main idea of de la Tour’s report: “The assessment that has to be done under the Convention cannot stop after the finding that the alleged risk is not systemic or widespread enough.”