The Cour de cassation has had to rule on the commitments made, in the context of a European arrest warrant, by the prosecuting authority of the issuing state not to expel the wanted person to his country of origin, where he could face human rights violations.
Thus,
The Swedish judicial authorities issued a European arrest warrant for Mr. X., an Afghan national prosecuted in Sweden for rape, in order to obtain his surrender by the French authorities.
Mr. X., who was granted refugee status in France, was arrested on French territory.
The Examining Chamber of the Court of Appeal granted Mr. X.’s surrender to the Swedish judicial authorities. to the Swedish judicial authorities, considering, under the terms of the arrest warrant issued, that “ a person granted refugee status in France can only be handed over to a third State if the authorities of that State give a firm and unequivocal undertaking to guarantee that the person will not be expelled or deported to his or her country of origin at the end of the trial or the execution of his or her sentence”; that the investigating chamber itself noted that the Swedish National Migration Board had issued an opinion to the effect that there was no obstacle in principle to the deportation of Mr. X, prosecuted under the name of Yvon. X, who was prosecuted under the name of Y, while the prosecutor of the Swedish National Prosecutor’s Office, when questioned again about the safeguards available to Mr. X, was only able to give an undertaking, in his capacity as the person in charge of the investigation, “not to demand” his deportation to Afghanistan; that in the light of these findings, which showed that the Swedish authorities had not given any firm and unequivocal undertaking guaranteeing that Mr. X would not be deported to Afghanistan, the prosecutor of the Swedish National Prosecutor’s Office was able to give an undertaking, in his capacity as the person in charge of the investigation, “not to demand” his deportation to Afghanistan. X. would not be expelled or deported to Afghanistan, the Investigating Chamber violated articles 695-22 of the Code of Criminal Procedure, 33 of the Geneva Convention of July 28, 1951, 18 and 19 of the Charter of Fundamental Rights of the European Union, together with article 3 of the European Convention for the Protection of Human Rights.”
The Investigating Chamber merely noted that the Swedish Public Prosecutor’s Office had undertaken not to demand the deportation of Mr. X., considering this undertaking to be firm and unequivocal, and guaranteeing Mr. X. the respect of his rights in the event of surrender.
The examining magistrate’s chamber cited the case law of the French Supreme Court (Cass. crim., February 7, 2007, n°07-80.162; Cass. crim., January 31, 2024, n°24-80.014) in support of the steps taken with the Swedish judicial authorities to ensure that Mr. X. was never returned to his home country.
According to the Cour de cassation, the investigating chamber was unable to ascertain whether the undertaking given by the Swedish public prosecutor’s office would be binding on other administrative or judicial authorities likely to intervene in the criminal proceedings brought against Mr. X..
However, it did not consider that the judgment would be subject to cassation, as the European warrant system is based on a principle of mutual recognition which establishes mutual trust between Member States as to the fact that their national legal systems and judicial systems ensure the protection of fundamental rights for all individuals, under the conditions laid down in the various European Union texts.
The executing State, called upon to hand over a wanted person, is therefore not obliged, unless there is a systemic or generalized failure in the issuing State, to check that the latter respects fundamental rights. As the issuing state is bound by international conventions and rules of law specific to European Union member states, it is subject to obligations guaranteeing respect for the fundamental rights invoked by the wanted person (CJEU, judgments of April 5, 2016, Aranyosi and Caldararu, C-404/15 and C-659/15 PPU; Cass. crim., May 10, 2022, pourvoi n° 22-82.319).
As a member of the European Union, Sweden is a party to the European Convention on Human Rights and the Geneva Convention relating to the Status of Refugees of July 28, 1951. It is also bound by Articles 18 and 19 of the Charter of Fundamental Rights of the European Union and by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification and status of third-country nationals or stateless persons as beneficiaries of international protection, to a uniform status for refugees or persons eligible for subsidiary protection.
As a result, France, as the issuing State, cannot assess the risk of expulsion to its State of origin of a person handed over under a European arrest warrant. Except in the event of a systemic failure on the part of the issuing State, the examining magistrate’s chamber cannot therefore make the surrender of a refugee pursuant to a European arrest warrant conditional on an undertaking by that State not to return the person concerned to his or her State of origin at a later date.
Cass. crim., November 5, 2024, n° 24-85.705