F. Guarantees to be given before a requested person can be surrendered

The Framework Decision also provides in Article 5 that two specific guarantees may be demanded from the Issuing State before the requested person can be surrendered.[10]

Article 5 EAW FD applies when other mandatory or optional grounds have been considered and the court is satisfied that they do not create a bar to surrender. However, when making your application for refusal, you should include a subsidiary application that, where applicable, these guarantees be given, since in some Member States there is no opportunity to request them at a later stage. The guarantees must be given by the Issuing State prior to surrender. Your role includes not only requesting that the guarantees be given, but also making sure that they are reliable. These are:

Article 5(2) – review of life sentence

Where a life-time custodial sentence or detention order has been imposed, the Member State must have a provision in its legal system for review of the sentence on request or at the latest after 20 years, or for the application of measures of clemency.

You will want to check with an ISL if this is the case in practice. The Framework Decision states that such guarantee may be demanded if the law of the Executing State so requires. Nevertheless, since this guarantee involves fundamental rights laid down in the ECHR and Charter, it should be noted that these instruments require it and therefore you should apply for it to be given.

The ECtHR has held that a life sentence will remain compatible with Article 3 ECHR only if domestic law and procedure provides both a prospect of release and a possibility of review. The fact that in practice a life sentence might be served in full does not make it irreducible, for example if a life prisoner has the right under domestic law to be considered for release but that is refused on the ground that he or she continues to pose a danger to society: Hutchinson v United Kingdom App. No. 57592/08 (3rd February 2015).

Article 5(3) – transfer of sentence

Where the person is wanted for prosecution and is a national or resident of the executing state, if convicted, they may request to return there to serve their sentence.

Framework Decision 2008/909/JHA[11] gives practical effect to this process and enables the state where the person is convicted to request transfer to the Executing State for serving the sentence, either of its own volition or upon the request of the person. It is possible to transfer the person without their consent. Certain conditions apply to this process.

The transfer request may only be lodged after there is a final conviction in the Issuing State. However, if you act to ensure that there is a guarantee in place, the Issuing State will not be able to deny a transfer request, which will assist the ISL to instigate transfer proceedings should the Issuing State not do so upon conviction. This guarantee also applies following a decision rendered in absentia to which a retrial following surrender is guaranteed: Case C-306/09 I.B. (21st October 2010).

 

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[10] Article 5(1) no longer applies since it was revoked by FD 2009/299/JHA of 26 February 2009. See the consolidated version.

[11] See also EU Commission summary Detention and transfer of prisoners for a brief explanation of its operation and also Council Framework Decision 2008/947/JHA of 27 November 2008 on probation decisions and alternative sanctions relating to the post-trial stage, which allows for transfers for sentences on non-imprisonment.