Detention Conditions in the Issuing Member State as a Ground for Non-Execution of the European Arrest Warrant: State of Play and Challenges Ahead

Abstract

In its Aranyosi and Căldăraru judgment, the Court of Justice of the EU (CJEU) recognized explicitly for the first time the possibility for executing judicial authorities to deny the execution of European Arrest Warrants (EAWs) when there is a risk of breach of the requested person’s fundamental rights in the issuing Member State, more specifically, a risk relating to inhuman or degrading treatment because of the detention conditions. Two subsequent CJEU judgments brought complementary clarifications in this respect. These decisions have been welcomed as they have helped define the limits of the principle of mutual trust and finding a fair balance between the effectiveness of judicial cooperation in criminal matters and the protection of fundamental rights. However, they have also posed crucial challenges in EAW proceedings. Indeed, the CJEU’s Aranyosi and Căldăraru case-law raised for instance concerns as to the exact scope of this new ground for non-execution of EAWs and the risk of variable geometry in its implementation because of the wide margin of manoeuvre left to the competent national authorities. This article highlights those and other challenges and investigates whether there is a need for further EU action in the field. It defends the view that various EU interventions of a non-legislative nature are necessary but it calls also for a reflection on EU legislative actions, especially defining minimum standards in the field of detention conditions.