Creation of a new ground for refusal of execution of the european arrest warrant by case-law: the existence of a serious, chronic and potentially incurable disease - a possible impunity? Effects on public safety.

Abstract

In the Advocate General's view, the executing court must in principle respect the (exhaustive) grounds for non-execution expressly provided for in Framework Decision 2002/584 (Articles 3, 4 and 4a), i.e. grounds strictly related to the offences prosecuted and the progress of the criminal proceedings against them and only in exceptional circumstances, where there are sufficient grounds for assessing a serious risk of a breach of Articles 3 or 4 of the Charter for reasons inherent in the state of health of the sought person, which endangers his life, the executing court may, after receiving relevant information from the issuing court and insofar as the serious risk persists, suspend the execution of the EAW (European Arrest Warrant) already decided, but not lead to its refusal. The exceptional character would result not so much from the general conditions of detention or medical care in the issuing Member State itself, but from the surrender itself, in so far as it could, as such, imminently endanger the life, physical integrity or health of the sought person. Likewise, the circumstances of the case do not allow the surrender to be classified as inhuman treatment, since there are no indications to date to suggest that the wanted person will not receive the necessary medical care in the issuing State.