Henning Bang Fuglsang Madsen Sørensen, Associate Professor, Department of Law, University of Southern Denmark
The Court of Justice of the European Union (CJEU) held a hearing on February 15th, 2016, concerning two cases, Aranyosi and Caldararu, both addressing whether surrender under a European Arrest Warrant (EAW) should be refused if there are concerns about potential inhumane prison conditions in the requesting state. These cases, originating from the same German court, delve into the balance between the principle of mutual recognition in EU criminal law and the protection of fundamental rights.
The lawyers of both Aranyosi and Caldararu presented their arguments, along with the referring judge, representatives from nine Member States, and the Commission. The day proved to be significant, as it grappled with the application of mutual recognition, fundamental rights, the interplay between Member States, and the implications of denying surrender.
The Cases
Aranyosi, residing in Bremen, was apprehended based on a Hungarian EAW for alleged burglary. However, he contested the surrender, citing reports of severe overcrowding in Hungarian prisons, potentially violating the European Convention on Human Rights (ECHR) Article 3. The Bremen court sought guidance from the CJEU on whether such concerns could justify refusing surrender based on the EAW Framework Decision’s “human rights” clause and if assurances regarding prison conditions could be sought beforehand.
Similarly, Caldararu, sentenced in Romania for driving without a license, was arrested in Bremen based on a Romanian EAW. He objected to the surrender, also citing concerns about Romanian prison conditions. This led the Bremen court to request a preliminary ruling from the CJEU.
Both cases raise a crucial question: Can surrender be refused if there are apprehensions about inadequate detention facilities in the requesting state?
The arguments presented during the hearing were multifaceted, highlighting the tension between upholding fundamental rights and respecting the principle of mutual recognition.
Differing Interpretations of Mutual Trust
One perspective posits that mutual trust implies unquestioning acceptance, requiring the executing Member State to execute EAWs without scrutiny beyond the specific refusal grounds outlined in the Framework Decision. This view was countered by the argument that mutual trust should not equate to blind faith, particularly when there are substantial grounds to fear potential human rights violations.
While Spain and Lithuania advocated for a stricter interpretation of mutual trust, emphasizing the issuing state’s role in safeguarding fundamental rights, other Member States and the Commission favored a more nuanced approach. They argued that exceptional circumstances, evidenced by reports from international organizations, ECtHR judgments, or other credible sources, could warrant an examination of potential risks to fundamental rights.
Threshold for Examining Potential Risks
The debate extended to the conditions under which an assessment of potential risks should be triggered. Should it be limited to systemic failures in the requesting state, as exemplified in the N.S. and Melloni cases, or should individual risks, akin to the ECtHR’s stance in Soering, be considered?
Germany, the UK, and the Netherlands supported the individual risk approach, arguing that factors like religion or sexual orientation could expose individuals to harsher detention conditions. Conversely, Ireland, France, Romania, and Hungary favored the systemic approach, highlighting the importance of a high threshold to preserve mutual trust.
The Commission deemed an individual risk assessment pertinent when necessary, further emphasizing the need for a balance between mutual trust and fundamental rights protection.
Assessing Claimed Risks and the Role of Guarantees
The hearing also addressed how a court in one Member State could effectively evaluate the detention system of another. Germany and the UK, supported by the Commission, proposed relying on reports from international bodies, ECtHR case law, expert testimonies, and other relevant sources.
The concept of guarantees, their role, and implications were central to the discussion. Germany and France proposed allowing the executing state to seek guarantees from the issuing state to alleviate concerns about potential fundamental rights violations, potentially leading to surrender refusal if such guarantees were not provided. Other Member States, while acknowledging the importance of dialogue, expressed reservations about conditioning surrender on guarantees, citing concerns about inconsistency and potential undermining of EU law uniformity.
Consequences of Denying Surrender
The final point of contention revolved around the ramifications of denying surrender. The Bremen judge highlighted the practical difficulties of continuing criminal proceedings in Germany if surrender was denied, potentially resulting in impunity. This concern was echoed by several Member States and the Commission.
The hearing concluded with diverse perspectives on the central issues, showcasing the complexity of balancing mutual trust with the imperative to protect fundamental rights within the framework of the EAW.
Barnard & Peers: chapter 25
JHA4: chapter II:3
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