Verifying whether there are grounds of refusal is one of the most important tasks for the defence lawyer during EAW proceedings. The likelihood of a refusal ground applying is not only relevant for a final decision on surrender, but may also influence the decision of the court in the Executing State to grant alternatives to detention during the proceedings (see section G.1).

In this section we will outline the relevant refusal grounds, mandatory and optional under the Framework Decision, and the overarching refusal grounds that might apply by way of fundamental rights.

Article 3 EAW FD provides mandatory grounds upon which the Executing State court must refuse to execute an EAW. These mandatory grounds are as follows:

1. Amnesty in the executing Member State;
2. Ne bis in idem pursuant to Article 54 Convention Implementing the Schengen Agreement (CISA);
3. Beneath age of criminal liability at the time of the offence

Article 3(1) will be applicable only if the Executing State has jurisdiction to prosecute the offence under national criminal law. In that event, should the offence be covered by amnesty according to national law, you should invoke this refusal ground.

Article 3(3) applies irrespective of whether the Executing State has jurisdiction over the circumstances underlying the EAW. It will apply, for example, if a person is arrested in Portugal, where the age of criminal responsibility is 18, pursuant to an English EAW for criminal prosecution for an offence committed when he was 14 years old.

These issues may also arise in consideration of the laws of the Issuing State, since the EAW, as noted above, presupposes the existence of a valid national arrest warrant. But the mandatory grounds only refer to Executing State laws. An argument based on Issuing State amnesty or liability must be raised with the Issuing State authority by the ISL in the substantive criminal proceedings (see below section H).

Article 3(2) provides for an EU-wide mandatory refusal ground regulated solely by EU law. It protects the fundamental legal principle that a person cannot be tried twice for the same offence: if the requested person has been subject to a final decision in criminal proceedings for the same acts in another EU Member State, surrender must be refused, pursuant to Article 54 CISA and Article 50 Charter of Fundamental Rights of the European Union (“CFR”). [4] The rule is subject to the proviso that, where there has been a sentence, the sentence has been served or is currently being served, or may no longer be executed under the law of the sentencing Member State.

There is extensive CJEU case law on the topic, which should be taken into account when dealing with EAW cases.

i. Ne bis in idem (Article 3(2) EAW FD and 54 CISA) – definition

In order to invoke this refusal ground you must verify with your client, the ISL and other authorities or defence lawyers in the relevant Member State(s) that:

• The case relates to your client;
• The case relates to the same offence;
• A final decision has been made in an EU Member State;
• Where your client has been convicted, the “execution condition” has been fulfilled.

The “same person”

The “same person” will obviously be the same individual person, but could also relate to a legal person, which may have subsidiaries and other entities.

The “same offence”

Through its jurisprudence, the CJEU has established an autonomous EU law definition of “the same acts” based on the factual approach (idem factum), as opposed to the legal approach (idem crimen). This means that the concept “has been interpreted as referring only to the nature of the acts, encompassing a set of concrete circumstances which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected: Case C-261/09 Gaetano Mantello, Grand Chamber (16^th November 2010), citing Van Esboreck and Van Straaten.
Whether there is an inextricable link between factual circumstances has been assessed through their connection in time, space and subject matter:
Case C-436/04 Van Esbroeck (9^th March 2006) at [38];
Case C-467/04 Gasparini and Others (28^th September 2006) at [56];
Case C-150/05 Van Straaten First Chamber (28th September 2006) at [52];
Case C-288/05 Kretzinger (18th July 2007) at [34];
Case C-367/05 Kraaijenbrink (18th July 2007) at [27][5].

A final decision in an EU Member State

Firstly, it is necessary that two or more criminal proceedings are at stake (in the Issuing State and another Member State). The concept “criminal proceedings” is a material one and may go beyond what is labelled as “criminal” in the national laws of Member States. The CJEU has explicitly adopted the ECtHR case law (Engel criteria) – Engel and Others v. the Netherlands, App. No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, (judgment 8th June 1976) at [80-2], followed in Sergey Zolotukhin v. Russia, App. No. 14939/03, (10th February 2009) at [52-3] – Case C-617/10 Åklagaren v Hans Åkerberg Fransson, Grand Chamber (26th February 2013),  at [35]:

“The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned is liable to incur.”

Secondly, a final decision need not necessarily be a court decision but must constitute the exercise of the ius puniendi of a Member State, which presupposes: (i) that the state had jurisdiction to adjudicate in the first place; (ii) the absence of voluntary relinquishment of jurisdiction over the acts; (iii) the application of the national criminal justice system, either by a standard trial and judgment, or by alternative means. The decision must follow a determination of the “merits” of the case. The judgment may be based on the merits of the case stricto sensu or on a lack of evidence (Van Straaten), or statute limitation (Gasparini and Others) and may have been imposed in absentia: Case C-297/07 Bourquain (11^th December 2008). [6]

A decision which does not, under the national law of the deciding Member State, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another Member State: Case C-398/12 M. (5th June 2014) and  Case C-486/14 Kossowski (29^th June 2016).

Execution condition

There are three conditions of enforcement relevant to the execution condition: (1) the sentence has been served; (2) is currently being served; or (3) may no longer be executed under the law of the sentencing Member State.

If the sentence has been fully served, it is considered to have been enforced. For example, the payment of a fine by a person also sentenced to a custodial sentence that has not been served in the deciding Member State is not sufficient to consider that the penalty has been enforced (nor that it is ‘actually in the process of being enforced’) because the sentence is not fully served: Case 129/14 PPU Zoran Spasic (27th May 2014).

When does a sentence start to be enforced for the purposes of ‘being served’? The CJEU has confirmed that the sentence commences as soon as it becomes enforceable, and that this includes any probation period. Once the probation period has come to an end, the sentence is to be regarded as having been enforced (Kretzinger).

If the penalty is actually being enforced in the deciding Member State, no prosecution can be brought in another Member State. This means that it might be disproportionate under EU law for a Member State to start or continue a second set of proceedings for the same acts where the Member State making the first decision has not yet started to enforce it, but is in the process of doing so. Should this circumstance occur, you should consider whether an attempt to activate the execution of the first decision is favourable to your client being prosecuted for the second time in the Issuing State.

The final condition, that the sentence can no longer be enforced in the deciding Member State, includes pardon or amnesty, as well as statute limitation (Bourquain).

The execution condition set out in Article 54 CISA has been held to be compatible with Article 50 CFR (Zoran Spasic at [65-74]).

ii. Ne bis in idem (Article 3(2) EAW FD and 54 CISA) – how to invoke it

You should ask your client whether they have already been subject to criminal proceedings in another Member State for the same offence.

If you have reason to believe that this is the case, you should verify whether the conditions set out in Article 54 CISA and Article 3(2) EAW FD are satisfied. You should ask an ISL or a lawyer in the relevant Member State to provide you with copies of the relevant case materials, as well as with an expert opinion of the “final” character of the decision, if necessary.

In certain cases you need only provide a copy of the indictment and final decision of that Member State to the Executing State court in order to prove this refusal ground. In other cases the final decision might not specify the facts of the case or the motives for closing it and it might be necessary to add further case materials to your submissions.

Should you have difficulties in obtaining these materials, you should request that the Executing Authority obtain such materials from the deciding Member State (Article 15(2) EAW FD and Article 57 CISA), directly or through a further request to Eurojust (see below section J on Eurojust).

iii. Ne bis in idem (Article 3(2) EAW FD and 54 CISA) – what to do after a decision not to surrender

If surrender is refused pursuant to Article 3(2) EAW FD you should request that the ISL lodge a request for the EAW to be withdrawn in the Issuing State and for criminal proceedings in that State to be closed, according to Articles 54 CISA and 50 CFR. This will create a bar to prosecution in Issuing State national criminal proceedings, irrespective of whether that national law has explicit provision on the matter.

This request should include the evidence used in the EAW proceedings of a final decision in the deciding Member State.

***

If any of these grounds are present in your case, you should consider with your client refusing execution of the warrant and making an application for the warrant to be discharged on the basis of the relevant ground.

 

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[4] The CJEU has clarified that “an interpretation of that concept given in the context of the CISA is equally valid for the purposes of the Framework Decision”- Case C-261/09 Gaetano Mantello, Grand Chamber (16^th November 2010)

[5] The meaning of “subject-matter” is not very clear. The wording in the original language of Van Esbroeck states “verbonden zijn naar tijd en plaats en wat het voorwerp ervan betreft”.

[6] About trials in absentia see below section E.2 viii. Article 4A Trial in absentia.

Article 4 of the Framework Decision provides optional grounds for refusing to execute an EAW.  Upon implementation, Member States could choose to either incorporate some or all of the optional grounds into national law as mandatory grounds of refusal or leave the decision to refuse surrender to the discretion of the Executing State court. Both routes have been applied across the Member States.

The optional grounds are as follows:

1. Dual criminality
2. Precedence of domestic prosecution
3. Domestic decision not to prosecute
4. Limitation due to the passage of time
5. Ne bis in idem in non-EU (“third”) states
6. Nationality/residence
7. Territoriality
8. Trials in absentia

i. Article 4(1) – Dual Criminality

Generally, if the conduct on which the EAW is based does not constitute an offence in the Executing State, then that Member State should refuse to execute the EAW.

Dual criminality is assessed by verifying whether the factual elements underlying the offence, as described in the EAW, would also be subject to a criminal sanction in the Executing State if they had taken place there. In this analysis it is irrelevant whether the laws infringed concern a legal interest of the Issuing State, but rather whether, if the conduct had been committed in the territory of the Executing State, ‘it would be found that a similar interest, protected under the national law of that State, had been infringed’ (C-289/15, Joszef Grundza (11^th January 2017) , §§47, 49). This case law refers to FD 2008/909/JHA but will be highly likely be applied in EAW proceedings.

There is an exception, however for 32 categories of offence, for which there is no requirement that the act is a criminal offence in both countries. The only requirement for these categories is that the offence must be punishable by at least 3 years of imprisonment in the issuing country. The CJEU has held that “in so far as it dispenses with verification of the requirement of double criminality in respect of the offences listed in that provision, Article 2(2) of the Framework Decision is not invalid on the ground that it infringes the principle of the legality of criminal offences and penalties” and “is not invalid inasmuch as it does not breach Article 6(2) TEU or, more specifically, the principle of legality of criminal offences and penalties and the principle of equality and non-discrimination” (Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad at [49-50], [52-54] and [57-60]).

The Issuing State will have indicated in the EAW if it considers that the offence falls within one of these categories, and its assessment will bind the Executing State court. However you may assess whether the conduct described in the EAW is capable of falling within the category in question; if there is a manifest inconsistency, depending on the national practice you may be able to argue that the EAW is invalid (see section D.1 above) or that the dual criminality check should be performed.

ii. Article 4(2) – Precedence of domestic prosecution

If the requested person is already being prosecuted in the Executing State for the same act, then it may be possible to  invoke this optional ground for refusal.

You may have to persuade your Executing Authority that your jurisdiction is best placed to prosecute and that this refusal ground should apply (see section J on conflicts of jurisdiction).

You should also consider whether national law prevents your State from waiving jurisdiction, which would make this a mandatory refusal ground.

iii. Article 4(3) – Domestic decision not to prosecute

Article 4(3) EAW FD states that surrender may be refused “where the judicial authorities of the Executing State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings.”

This provision will apply in cases where, despite there being (or having been) proceedings for the same acts in the Executing State: i) there is no final decision; or ii) there is a final decision but it does not fall within Articles 54 CISA and 3(2) EAW FD (see section E.1 above for a definition of what falls under these provisions).

Examples that could fall under this provision are:

• The prosecution authorities exercised their discretion under national law not to prosecute;
• A case was closed because the person cooperated with the police and was exempted from prosecution;
• There is a final conviction in the Executing State, but it has not been enforced yet and may still be enforced.

If your national law protects people in these situations from further criminal prosecution for the same acts, you should argue that this refusal ground must be applied.

iv. Article 4(4) – Statute of limitation

Where the Executing State has jurisdiction to adjudicate the facts underlying the EAW and the prosecution of the offence would be statute-barred in the Executing State, this ground provides another avenue to refuse to execute the EAW.

v. Article 4(5) – Ne bis in idem in non-EU (“third”) states

If your national law in general protects people from further criminal prosecution for the same acts where there has been a decision in a third state, you should argue that this refusal ground must be applied. The same conditions and process as set out in E1 will apply.

You should also check whether your Member State has any treaty arrangements with the relevant third state whereby it recognises the ne bis in idem effect of such decisions. If so, you should argue that this refusal ground must be applied.

vi. Article 4(6) – National or resident of the Executing State

This provides a ground for an Executing State to refuse execution of an EAW which has been issued for the purpose of enforcing a custodial sentence, where the requested person is a national or resident of the Executing State. The CJEU has confirmed that it is permissible for Member States to restrict the availability of this provision either to nationals or those lawfully resident in the Member State for at least five years: Case C-123/08 Wolzenburg [2009] ECR I-9621.
A person is ‘resident’ for the purposes of this ground of refusal if he has established his actual residence there, is living there and, following a stable period of residence, he has acquired connections (such as family or employment) to the Executing State similar to those resulting from nationality: Case C-66/08 Kosłowski, Grand Chamber (17^th July 2008).

Note, however, that the Framework Decision requires the Executing State to assume responsibility for execution of the sentence or detention order in accordance with its domestic law in place of the Issuing State. Therefore you will need to consider which jurisdiction has the most favourable sentencing regime before seeking that this be applied.  The execution of foreign judgments is regulated by Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (27^th November 2008) (Article 25).

vii. Article 4(7) – Territoriality

Article 4(7)(a) provides a ground of refusal where the offence for which the person is sought is committed either in whole or in part in the territory of the Executing State.

Article 4(7)(b) deals with extra-territorial offences, and allows an Executing State to refuse execution where the offence is committed outwith the territory of the Issuing State and the Executing State has no law to allow that offence to be prosecuted in the same circumstances.

viii. Article 4A – Trials in absentia

Framework Decision 2009/299/JHA (26^th February 2009) [7] is the only legislation so far to have amended the EAW FD. The Framework Decision concerns decisions rendered without the requested person having been present and lays down the conditions upon which a further optional refusal ground to a conviction EAW can be based. It recognises that the right to be present at one’s trial is an integral part of the right to a fair trial protected by Article 6 ECHR.
The amended conditions comply with the Charter of Fundamental Rights, and are the only basis upon which an in absentia decision can be refused; no stronger national constitutional principles may be invoked:  Case C-399/11 Melloni (26^th February 2013). The Framework Decision inserts Article 4a into the EAW FD, deleting the previous requirement for a guarantee under Article 5 EAW FD that a retrial could be sought. Article 4a enhances the procedural safeguards of the requested person.

The EAW may be refused unless the requested person:

• In due time was informed in person of the scheduled date and time of the trial, or “actually received” official notification in such a manner that it was “unequivocally established” that he or she knew about it, and that a determination could be made in his or her absence; or
• Having been so informed, instructed a lawyer to appear in his or her defence, who did represent them; or
• Having been convicted, was served with the decision and informed about the right to a retrial, and expressly accepted the conviction or did not request a retrial within the timeframe specified; or
• Having been convicted, has not yet been informed of the right to a retrial, but will be served with the decision and notice of the right as soon as they are surrendered.

Article 4a specifies that a retrial, or appeal, must enable the merits of the case, including fresh evidence, to be re-examined, during which the requested person can participate and which may result in an acquittal.

In in absentia cases, the Issuing Judicial Authority may assert that a condition of Article 4a(1) is satisfied, such that the requested person may be surrendered despite their absence from trial. The CJEU has held that Article 4a(1) contains an autonomous concept of EU law and that it cannot be ‘unequivocally established’ that a person was aware of the date and place of their trial where the summons was served upon a third person (e.g. their grandfather), in the absence of any conclusive evidence that the person himself received the required notification (see Case C-108/16 PPU Dworzecki (24^th May 2016)). The same judgment underlined, however, that where the Article 4(1) exceptions are inapplicable, the residual refusal ground is merely optional, such that an Executing Judicial Authority might nevertheless be able to satisfy itself that the requested person’s defence rights would not be infringed by surrender in such circumstances, e.g. if it was apparent that they had deliberately avoided service and would have a right to apply for a retrial once in the Issuing State, on the basis that they had not received service.

At the time of publication, there are references for preliminary rulings pending before the CJEU as to the question whether Article 4a applies to proceedings other than the substantive ‘trial’, namely: appeal proceedings where the original sentence is altered, suspended and/or activated (Case C-376/17 Lipinski); and proceedings aggregating separate custodial sentences or varying an aggregate sentence, or appeal proceedings involving an examination of the merits resulting in a new sentence or confirmation of a sentence at first instance (Case C-271/17 Zdziaszek). You may need to take specific instructions from your client as to his or her knowledge of and presence or representation at any appeal proceedings depending on the rulings in these cases.

If the EAW is for the execution of a sentence, you should ask your client if they were present at their trial or any of the first three conditions are satisfied. If not, the fourth condition effectively replicates the guarantee previously required by Article 5 EAW FD and you should consult with your client about whether to seek refusal of the EAW.

In the first instance, you should ascertain whether the judgment rendered in absentia is final, i.e. the deadline for appeal or retrial has expired. If this is not the case, you should also ascertain whether your client was, or would have been, placed in pre-trial detention pending the outcome of the case. If this has not been ordered you should seek to oppose surrender on the ground that the EAW is disproportionate, and mutual legal assistance or a European Investigation Order should have been used by the Issuing State instead.

Article 4a(2) enables the requested person to have sight of the decision resulting in their conviction prior to deciding whether to consent to surrender. You should assist in obtaining a copy of this in order to advise fully on whether the requested person should consent to surrender. You should also ask the ISL for evidence as to whether a full retrial is possible in the Issuing State, and if not, seek refusal on this basis (see section H below on the role of the ISL).

Directive 2016/343/EU (9^th March 2016) has since further regulated the right to a retrial in the Member States, specifying that a new trial or other legal remedy must allow effective participation and exercise of defence rights (Article 9). The CJEU has yet to comment on the relationship between this provision and Article 4a of the EAW FD, but it appears that Article 9 confers an enforceable right to a new trial for a person whose extradition is required under Article 4a(1)(d) (i.e. who was not present at trial but will have the right to a new trial). It will be prudent to explore with the ISL whether the ‘new trial’ procedure available in the Issuing State offers full the full guarantees of Article 9, particularly in light of further interpretation of that provision by the CJEU after the Directive’s transposition deadline on 1 April 2018.

***

If any of these grounds are present in your case, you should consider with your client refusing execution of the warrant and making an application for the warrant to be discharged on the basis of the relevant ground.

Since these grounds for refusal may be optional, and at the discretion of the court in your Member State, you will have to convince the court that it is appropriate to refuse surrender in your case (for example, you may bolster your argument by stating that there is a better chance of rehabilitation in the Executing State, or because it is more appropriate to prosecute there – see sections below on fundamental rights and section J on conflicts of jurisdiction).

 

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[7] Council Framework Decision 2009/299/JHA amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. In the future, Articles 8 and 9 of Directive 2016/343/EU will also become relevant – Directive 2016/343/EU of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, which must be implemented by 1st April 2018.

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 (5^th 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 (26^th 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.

Prison conditions

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.

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 [94].

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 [95] – [98] and [104], 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.

Family Life

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.[8] 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 5^th October 2000) and Üner v Netherlands App. No. 46410/99 (judgment 18^th 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 23^rd November 2010), at [50], 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 [62]; and Case C-306/09 I.B. (judgment 21^st 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).

Fair Trial

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:

Guidance on interpreting these articles can be found in the Explanations to the Charter.[9]  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 8^th 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 4^th 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).

 

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[8] 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.

[9] OJ C 303/17 (14.12.2007).