10.08.2018 - - Legislation
CJEU Judgments on EAW – Fundamental rights/Prison conditions

On 25 July 2018 the CJEU released two judgments concerning the European Arrest Warrant (EAW).

In the first case, C-216/18, Polish authorities issued three EAW with regard to a Polish national, LM, who was arrested in Ireland. The High Court in Ireland however doubted that he would receive a fair trial in Poland because of the recent changes in their system of justice. The court then asked the CJEU if it is sufficient to determine that there are deficiencies in the system of a state in order to refrain from carrying out the EAW, or if, even in case of identified deficiencies, a real risk for the person in the specific case has to be asserted.

Regarding the systematic deficiencies in Poland, the High Court referred to the Proposal of the Commission for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law on the basis of Art. 7(1) TEU.

The CJEU first stated that not carrying out an EAW is an exception to the principles of mutual trust and mutual recognition and must therefore be interpreted strictly. Further, it stated that the executing state not only has to ascertain that there is a risk of breach of fundamental rights in the system, but also that the person that is the subject of the EAW is exposed to that risk.

Thus the Court is following its ruling in the Case Aranyosi and Caldararu (C-404/15 and C-659/15), where it stated that refraining from executing the EAW requires two steps: determining the risk of breach of fundamental rights in general and the exposition of the individual in the specific case to that risk. When assessing the concrete risk for the individual, the Court clarifies that the executing authority must have regard to the personal situation of the requested person, the nature of the offence and the factual context that form the basis of the EAW.

In the second case, C-220/18, a Hungarian National, ML, was the subject of a Hungarian EAW after he was convicted in absentia. He was arrested in Germany, where the competent court was concerned about the prison conditions in Hungary with regard to the judgments of the CJEU in Aranyosi and Caldararu (C-404/15 and C-659/15). Therefore the German Court found it necessary to have more information in order to decide on the execution of the EAW. The Court then asked the CJEU which steps it has to take to obtain information about the conditions in which ML would be detained by the Hungarian authorities.

The CJEU stated that the executing authority has to ascertain whether the conditions of detention are a risk of inhuman or degrading treatment. This assessment however is limited to the prisons in which the person that is subject to the EAW will be held. In order to do so, the executing authority can question the issuing authority about the prison conditions, as long as this does not lead to a standstill of the expediting process.

When the issuing authority provides information and assurance, the executing member state has to rely on that assurance, unless there are specific indications for inhuman or degrading treatment. This is in accordance with the principles of mutual recognition and mutual trust. Moreover, the risk of inhuman or degrading treatment cannot be ruled out only because legal remedies exist in the issuing state to review the legality of detention conditions from the perspective of the fundamental rights.

With both judgments, the CJEU reinforces the principle of the rule of law in the European Union, although it emphasizes that the principle of mutual recognition only allows refraining from carrying out an EAW as an exception and when there is a real risk of inhuman or degrading treatment in the specific case.

Further reading

Judgments: C-216/18 and C-220/18

Press releases: C-216/18 and C-220/18

Related document: Conclusions of Plenary meetings of the EJN concerning case law on the EAW (Council doc 15207/17)

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