22 Oct 2016, 06 mins ago

The execution of a European arrest warrant must be deferred if there is a real risk of inhuman or degrading treatment because of the conditions of detention of the person concerned in the Member State where the warrant was issued

There are wildly differing prison conditions to be found throughout the European Union. Chronic overcrowding is commonplace and many facilities are simply not fit for purpose. In some member states prison conditions have been found to be so bad that they amount to a breach of Article 3 of the European Convention on Human Rights (‘ECHR’) and in a handful of cases the Strasbourg Court has even instituted its Pilot Judgment procedure in respect of prison conditions in certain member states. These Pilot Judgments amount to a recognition by the Strasbourg Court that there are systemic failings in some Member States’ prison systems.

It is therefore, little wonder that individuals facing extradition under the European Arrest Warrant (‘EAW’) scheme frequently seek to raise ‘prison conditions’ as a bar to extradition. In the UK these arguments are increasingly hard to successfully mount but nobody here doubts the principle that poor prison conditions can, in the appropriate case, amount to a bar to extradition by virtue of the risk of a breach of Article 3 of the ECHR.

The 2002 European Arrest Warrant Framework Decision established the EAW scheme. Member States then enacted their own domestic legislation to implement the scheme. The Framework Decision provided for a number of mandatory and discretionary grounds for refusing to execute an EAW. These grounds do not explicitly include refusal on the grounds of a breach of human rights. However, Article 1(3) provides, “This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union”. Based on this Article, two thirds of Member States have chosen to introduce grounds for refusing extradition on the grounds of breaches of fundamental rights.

In February 2016 the CJEU in Luxembourg heard two important cases concerning fundamental rights, prison conditions and the EAW scheme. The cases of Aranyosi and Caldararu are requests from a German Court for a preliminary ruling from the CJEU and both concern the question of whether an EAW can be refused on the basis of poor prison conditions in the requesting state.

The Court heard argument from nine Member States plus the Commission. The issue raises a significant tension between the concepts of mutual respect and trust and respect for fundamental rights.

Spain and Lithuania argued that mutual trust throughout the EU meant that Member States must execute EAWs without any checks for anything other than the mandatory grounds for refusal in the 2002 Framework Decision. This would exclude many grounds for refusing extradition included in the UK legislation, which are not found in the Framework Decision such as Proportionality, Forum, Trial Readiness and most fundamentally – Human Rights.

The remaining seven Member states (including the UK) and the Commission argued that mutual trust was not blind trust and that it can be rebutted in exceptional circumstances. The Commission argued that there needed to be a balance between mutual trust and the protection of fundamental rights.

After the hearing in February the Advocate General (‘AG’) Yves Bot submitted his Opinion to the Court. The AG’s Opinion in this case, published in March, was that, “Article 1(3) … must be interpreted in a way that it does not create a ground for non-execution of an Arrest Warrant … on the basis of a risk of a violation in the requesting state of the human rights of the requested person”.

The AG’s Opinion in this case caused significant consternation amongst the legal community in the EU. On 10 March 2016 Fair Trials wrote to the EU Commissioner for Justice Ms Vera Jourova to express their concerns over the Opinion of AG Bot. They urged the Commissioner to re-emphasise that mutual recognition should not undermine fundamental rights in the EU and, if the Court followed the AG’s Opinion, to introduce EU legislation which makes it explicit that EAW Framework Decision is subject to proper protection for human rights.

The role of the AG is to present Opinions on cases brought before the Court. Although the Court will usually follow the advice of the AG, it does not always do so.

On 5 April 2016 the Court gave judgment. The Court stated that the absolute prohibition on inhuman or degrading treatment or punishment is part of the fundamental rights protected under EU law. Accordingly, where the authority responsible for the execution of a warrant has in its possession evidence of a real risk of inhuman or degrading treatment of persons detained in the Member State where the warrant was issued, that authority must assess that risk before deciding on the surrender of the individual concerned. Where such a risk derives from the general detention conditions in the Member State concerned, the identification of that risk cannot, in itself, lead to the execution of the warrant being refused. It is necessary to demonstrate that there are substantial grounds for believing that the individual concerned will in fact be exposed to such a risk because of the conditions in which it is envisaged that they will be detained. In order to be able to assess the existence of that risk in relation to the individual concerned, the authority responsible for the execution of the warrant must ask the issuing authority to provide, as a matter of urgency, all the information necessary on the conditions of detention.

If, in the light of the information provided or any other information available to it, the authority responsible for the execution of the warrant finds that there is a real risk of inhuman or degrading treatment, the execution of the warrant must be deferred until there additional information has been obtained on the basis of which that risk can be discounted. If the existence of that risk cannot be discounted within a reasonable period, that authority must decide whether the surrender procedure should be brought to an end.

In short the CJEU has confirmed the duty of the executing state to make enquiries as to the prison conditions in the requesting state. The assumption will always be one of satisfactory compliance. However, where there is an issue (which will need to be raised by the requested person – with evidence) assurances must be sought from the requesting state. If those assurances are insufficient then the executing authority may terminate the extradition proceedings.

Gherson has extensive experience in representing individuals facing extradition under the EAW scheme and also in bringing cases before the Courts of the EU. If you wish to discuss any of the issues raised in this blog please do not hesitate to contact us.


© Gherson 2016