i. General Legal Framework
Overarching the express grounds of refusal that the Executing State can be requested to consider under the Framework Decision is the fundamental rights protection referenced in Article 1(3) of the Framework Decision, the European Convention on Human Rights (“ECHR”) and the Charter of Fundamental Rights of the EU (“CFR” or “Charter”). These instruments provide additional grounds of refusal where fundamental rights have been or are likely to be violated by surrendering the person to the Issuing State.
Article 1(3) EAW FD makes clear that the Member States’ obligations to respect fundamental rights are not modified by anything contained in the Framework Decision. Recital 12, which can be used to assist interpretation of the operative articles of the Framework Decision, clarifies that it respects and observes fundamental rights set out under article 6 of the Treaty on the European Union and Charter of Fundamental Rights. It states that surrender may be refused where it is shown that the EAW will cause discrimination on grounds of sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation. It also asserts that the Framework Decision does not prevent Member States applying constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.
Whilst a number of Member States have expressly provided a refusal ground in their domestic implementing acts based upon respect for fundamental rights, others have not done so. However, the absence of an express refusal ground does not prevent fundamental rights being relied upon. You can request the Executing State court to refuse surrender by invoking the Charter or, subsidiarily, the ECHR. If there is a real risk that a specific fundamental right of the requested person will be violated by surrendering him or her to the Issuing State, the court should refuse to do so: Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru (5th April 2016).
You must bear in mind that invoking a fundamental right as a ground for refusal is a very difficult task in most Member States. Therefore it is of utmost importance to prepare your case and to show strong prima facie evidence to convince the Executing State court to hear your arguments and evidence and to apply this refusal ground.
You should bear in mind the possibility of making a reference to the CJEU for a preliminary ruling where the interpretation of the above EU fundamental rights norms requires clarification (see section G.3.ii).
Charter of Fundamental Rights of the European Union
The Charter is binding upon Member States as well as the EU Institutions and holds equal value with the Treaties, as set out in Article 6(1) TEU. It applies whenever a matter falls within the scope of EU law, and when Member States and their courts apply national legislation that gives effect to that law. The EAW FD is a piece of EU law and therefore the Charter applies to its application in the Member States. It continues to apply when Member States fail to properly implement EU law, or specifically derogate from optional provisions. The Charter should be invoked instead of the ECHR because not only is there potential to provide wider protection of rights under it, but where EU or national legislation is held to be in violation of a Charter right, the national court must disapply the conflicting legislation. It is not necessary that this be referred to the domestic parliament or lawmakers for the consideration of legislative or constitutional amendment, as many Contracting States to the ECHR must: Case C-617/10 Åklagaren v Hans Åkerberg Fransson, Grand Chamber (26th February 2013).
ii. Three “Key Rights”
In EAW proceedings, there are three Charter rights relevant to the consideration of whether surrender will violate fundamental rights:
- Article 4 CFR on the prohibition of torture and inhuman and degrading treatment or punishment, and
- Article 7 CFR on the right to respect for private and family life.
- Articles 47-50 on the right to a fair trial
The first two replicate the similarly titled ECHR provisions. The third differs from the ECHR by providing more detailed protection. The General Provisions in Title VII of the Charter explain how these rights should be applied (arts 51-54). Although the Charter should be pleaded rather than the ECHR, article 52(3) CFR explains that where rights in the Charter correspond with rights guaranteed by the ECHR, the meaning and scope will be the same as that provided by the ECHR and the jurisprudence of the European Court of Human Rights (ECtHR). However the article also says that the ECHR ‘shall not prevent Union law providing more extensive protection’.
Article 52(1) CFR accepts that limitations may be imposed on the exercise of rights, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
The three key rights are likely to be relevant in relation to arguing how the requested person will be affected upon their return, through imprisonment during trial, and through absence from their family and community ties forged in the Executing State.
One of the most important concerns in the surrender of a requested person to the Issuing State will be whether they are going to be detained there, and under what conditions. The prohibition on inhuman or degrading treatment under article 4 CFR (and article 3 ECHR) is absolute. The Executing State court cannot therefore surrender someone to conditions that will amount to inhuman or degrading treatment. This has been confirmed explicitly by both ECtHR and the CJEU (See Aranyosi, above).
To ascertain if this issue is relevant to your case you will need to look for evidence on the conditions in the Issuing State prison. In the first instance, your client may have a view on whether there is anything to be concerned about, either through anecdote or experience. However, even if they have no knowledge about the prison system, you should ensure that the conditions are adequate as they may not be aware of a problem persisting.
In order to do this, you should:
- Look at Article 3 ECHR decisions of the Strasbourg court;
- Look at Committee for the Prevention of Torture and UN Committee Against Torture reports;
- Look at any international or local NGO or academic reports;
- Contact an ISL to ask if there is a problem with conditions of detention that could be relevant to your case.
Depending on how much evidence is revealed by your search, you may have enough to at least raise the issue with the Executing State court. You may need to obtain an expert report to ensure that the information is up to date and sufficiently relevant to the requested person’s situation.
It is not sufficient to raise the issue in court without providing any evidence on the underlying prison conditions. Therefore, if you want the court to inquire further as to the prison conditions in the Issuing State, you must not only argue this refusal ground, but submit relevant evidence.
Prison conditions will be relevant if they are a cause of concern in the Issuing State, be it systematically across all prisons; in particular types of prison or regions in the Issuing State; or for a person with the requested person’s characteristics (which may encompass a broad range, such as their age, ethnicity, gender, sexual orientation, religion, political status, medical condition or other potential distinction).
It is not sufficient to assert that some prisons have inhuman conditions if it is not clear that the requested person will be sent there, nor to make an assumption that the prison authorities cannot manage their characteristics. You may need to take steps to ascertain in which prison your client is likely to be held. There must be specific and precise risks affecting that requested person:
“In order to ensure respect for Article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the Issuing State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of Article 4,” Aranyosi .
The CJEU in Aranyosi held that, should there be evidence of this kind, pursuant to article 15 EAW FD, the court must seek supplementary information from the Issuing State to ascertain the current risk posed by the prison conditions. If, following that information it cannot discount the risk, the court must decide whether the surrender procedure should be brought to an end  –  and , and you will be in a strong position to argue that the EAW should be refused at that stage.
If there is evidence of a real risk of inhuman treatment, it is highly likely that this process will involve the assessment of diplomatic assurances given to the Executing State by the Issuing State that although conditions may not be appropriate in general, it will guarantee conditions that do not amount to inhuman treatment for this requested person.
You should ensure that the court assesses in some detail the veracity of the proposed arrangement, bearing in mind the inadequate conditions that persist for all other prisoners.
The following factors, set out in Othman (Abu Qatada) v UK, App. No. 8139/09 (judgment 17th January 2012), at , should be ascertained before accepting an assurance:
(i) Whether the terms of the assurances have been disclosed to the Court;
(ii) Whether the assurances are specific or are general and vague;
(iii) Who has given the assurances and whether that person can bind the receiving State;
(iv) If the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them;
(v) Whether the assurances concern treatment which is legal or illegal in the receiving State;
(vi) Whether they have been given by a Contracting State (of the Council of Europe and not a third country where the person is to be sent on to);
(vii) The length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances;
(viii) Whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers;
(ix) Whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;
(x) Whether the applicant has previously been ill-treated in the receiving State; and
(xi) Whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State.
Another area where fundamental rights are often invoked to prevent surrender is the protection of family life, in particular the effect on any children left behind. Article 7 CFR is the equivalent of Article 8 ECHR. Article 24 CFR also expressly sets out the rights of the child as a fundamental right – which includes protection and care, and maintaining a personal and direct relationship with their parents. In particular the best interests of the child must be a primary consideration. There are no CJEU or ECtHR decisions as yet on this issue, although there have been many in some Member States, in particular the UK.
Some helpful guidance might be provided by the ECtHR case law in the context of expulsion. This follows a similar framework to the consideration that should be made by the Executing State court in EAW proceedings, with obvious adaptations, see Boultif v Switzerland App. No. 54273/00 (judgment 5th October 2000) and Üner v Netherlands App. No. 46410/99 (judgment 18th October 2006) at [57-58]), as well as CJEU case law concerning the free movement directive (Directive 2004/38); see Case C-145/09 Land Baden-Württemberg v Panagiotis Tsakouridis (judgment 23rd November 2010), at , applying the ECtHR’s reasoning to the application of Article 7 CFR).
Where the Court will not refuse to execute a warrant on the grounds of family life, you should nevertheless make an application for a guarantee from the Issuing State that the person be able to serve any ensuing sentence in the Executing State where they live and their family resides, so as to increase the possibility of reintegrating into society: Article 4(6) or 5(3) FD; Wolzenburg at ; and Case C-306/09 I.B. (judgment 21st October 2010) at [57 and 58] (in the context of judgments rendered in absentia). (See section F on guarantees).
The issue of family life can also be raised in the Issuing State as a ground for substituting the EAW for another measure pending criminal proceedings, such as a European Supervision Order (see section H).
The third key right relates to the proceedings that will take place once the requested person is returned for trial. Articles 47-50 CFR provide as follows:
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
Presumption of innocence and right of defence
- Everyone who has been charged shall be presumed innocent until proved guilty according to law.
- Respect for the rights of the defence of anyone who has been charged shall be guaranteed.
Principles of legality and proportionality of criminal offences and penalties
- No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.
- This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations.
- The severity of penalties must not be disproportionate to the criminal offence.
Right not to be tried or punished twice in criminal proceedings for the same criminal offence
No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.
Guidance on interpreting these articles can be found in the Explanations to the Charter. The Explanations state that article 48 CFR is to be interpreted in accordance with article 6(2) and 6(3) ECHR. Article 49 CFR follows the traditional rule of non-retroactivity, unless it is a more lenient penal law, in accordance with article 15 of the International Covenant on Civil and Political Rights and article 7 ECHR.
Article 50 CFR is to be read in accordance with article 4 of Protocol 7 to the ECHR and Articles 54 to 58 CISA. The ne bis in idem rule already applies in Union Law and has been repeatedly interpreted by the CJEU (see section E.1 above).
These rights will be significant where the requested person or the ISL raises concern about certain aspects of the trial process in the Issuing State. Some of these concerns have already been identified expressly in the Framework Decision, for example the right not to be tried in absentia or twice for the same proceedings (see section E.2 above).
In addition to the protections offered by the CFR, the Directives on minimum procedural rights may apply. Examples of protections offered by these Directives include a limitation of the right against self-incrimination (Directive 2016/343/EU strengthening certain aspects of the presumption of innocence and the right to be present at one’s trial in criminal proceedings) or on the right of access to a lawyer during police detention or other stages where the accused is asked questions, limited or no access to the case file in the pre-trial stages or allowing the court to see evidence obtained in breach of procedural safeguards.
However, the procedural safeguards instruments established in the EU are in their early days of implementation and there has as yet been no guidance from the CJEU of what remedy should be available for the breach of these safeguards.
The ECtHR has ruled that in extradition proceedings, there is a high bar to be met to persuade an Executing State that a fair trial cannot take place in the Issuing State. There must be a real risk of a flagrant denial of justice. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures that result in a breach of Article 6 ECHR. What is required is a breach of the principles of fair trial that is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article: Othman (Abu Qatada) v UK (supra) (risk of reliance at trial on evidence obtained through torture), see also Bader and Kanbor v Sweden, App. No. 13284/04 (judgment 8th November 2005) (a trial that is summary in nature and conducted with total disregard for the rights of the defence). It will be very difficult to demonstrate that another EU Member State satisfies this test, without substantial and convincing evidence. ECtHR case law suggests that, as between Contracting Parties to the Convention, it is more appropriate for the Issuing State court to determine whether there is any unfairness:
The Court notes, in this regard, that the United Kingdom is a Contracting Party and that, as such, it has undertaken to abide by its Convention obligations and to secure to everyone within its jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 6. (Stapleton v Ireland App. No 56588/07 (admissibility decision of 4th May 2010)), concerning a claim of inordinate delay in the proceedings).
The above arguments apply in respect of prospective violations of the right to a fair trial if the person is sought to face prosecution in the Issuing State, where the requested person will seek to rely upon systemic risks likely to affect his or her case on return. If the requested person is sought to serve a sentence for a historic conviction, in respect of which there is no retrial available because they attended or were represented, this argument may be more appropriately framed according to Article 6 CFR (right to liberty): imprisonment on the basis of a concluded trial which was flagrantly unfair, with no right to a retrial upon return, would constitute a flagrant violation of that right (Othman (Abu Qatada) v UK (supra) confirms such an argument is available under Article 5 of the Convention (at 232), and therefore as a minimum under Article 6 CFR).
 The UN Convention on the Rights of the Child provides detailed provision on ensuring children can maintain the relationship with their parents post separation, including for deportation and exile, see in particular article 9.
 OJ C 303/17 (14.12.2007).