In European Criminal Law, the European Arrest Warrant (the "EAW") represents the first and most significant effort to implement the principle of mutual recognition which is an essential concept in judicial cooperation within the EU.
The EAW is a judicial decision issued by one EU Member State (the Issuing State) to a judicial authority in another Member State (the Executing State) ordering the arrest and surrender of a person (the Requested Person). Its purpose is twofold:
- Prosecution,
- Execution of a custodial sentence or detention order.
The legislation governing this procedure is the Framework Decision 2002/584/JHA on the EAW (the "Framework Decision"). It is noted that the Framework Decision includes a restrictive list of grounds for refusing the execution of an EAW (the "List").
While the EAW has significantly expedited the surrender procedure between Member States, it has also raised substantial concerns about the protection of the Requested Person's fundamental rights.
Therefore, the following question arose before the Court of Justice of the European Union (the "CJEU"): Could the Member States refuse to execute an EAW on grounds related to the risk of fundamental rights violation of the Requested Person despite the fact that such grounds are not included in the List?
The CJEU initially ruled against expanding the grounds for refusal of the execution of an EAW beyond those explicitly listed. However, following widespread criticism, the CJEU shifted its case law.
The EU case law now recognizes that Member States may or must refuse to execute an EAW when there is a risk of fundamental rights violation even if such a reason is not included in the List. The relevant EU case law has been developed based on the four considerations below:
- Detention Conditions
The execution of an EAW may be refused if the detention conditions in the Issuing State, where the Requested Person will be held, violate the prohibition of torture and inhuman or degrading treatment.
- Judicial Independence
The lack of judicial independence in the Issuing State may justify the refusal of an EAW's execution, as the right to a fair trial must be safeguarded.
- Risk to Health
The execution of an EAW may be denied if the Requested Person faces serious health issues, as human dignity must be protected.
- Rights of the Child
Considerations regarding the rights and best interests of a child, including respect for family life, may also provide grounds for refusal.
Conclusion
The EAW is a crucial tool in European Criminal Law embodying the principles of mutual recognition and trust among Member States. However, it poses significant risks to fundamental rights of the Requested Person. In the light of the absence of explicit European legislative provisions addressing such risks in the EAW procedure, the CJEU has stepped in to allow or even mandate the refusal of executing an EAW under certain conditions through its case law. The shift in European case law has undoubtedly marked a pivotal development in balancing judicial cooperation with fundamental rights protection.
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