Resisting a European Arrest Warrant: A social rights perspective

Abstract

This article starts from the premise that social rights should be taken seriously in the context of the European Arrest Warrant (EAW). Historically neglected, social rights have slowly gained recognition as legal entitlements. The article focuses on the protection of social rights – understood here as the rights to an adequate standard of living, healthcare and education – in regard to one aspect of the EAW: resisting its execution due to a real risk of a breach of social rights in detention in the issuing Member State. The social rights–based argument for resisting an EAW is premised on the Court of Justice of the European Union’s jurisprudence on ‘exceptional circumstances’ in which mutual trust can be rebutted, in particular Aranyosi and LM. The article identifies three ways for protecting social rights in the context of resisting an EAW. First, elements of social rights can be protected through resisting an EAW on the basis of a real risk of a breach of the prohibition of inhuman and degrading treatment. Second, social rights could be protected by resisting an EAW on the grounds of those non-absolute civil rights that indirectly protect elements of social rights. Third, the option of resisting an EAW by relying directly on social rights is also examined. Taking a social rights perspective expands the type of cases in which an individual can resist surrender due to a risk of facing poor detention conditions; this includes certain situations where the potential breach does not reach the high threshold of the prohibition of inhuman and degrading treatment. However, the article concludes that the rigid framework for balancing mutual trust and fundamental rights established by Aranyosi and LM ultimately creates a ceiling for the protection of social rights and prevents them from being fully respected and protected in the context of resisting an EAW.