The principle of mutual recognition is based upon the presumption that each Member State lives up to the common standards and complies with its obligations under the ECHR. However, there are reasons to believe that this presumption is rebuttable and that a violation of human rights may suspend a Member State’s obligation to recognize and execute a European Arrest Warrant in individual cases as well. The Framework Decision explicitly states:

Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person […] when there are reasons to believe […] that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation […].²

Furthermore, Article 1(3) of the Framework Decision recalls the Member States’ obligation to respect fundamental rights and fundamental principles of the Union.³

Under the regime on mutual recognition of decisions imposing financial penalties, the corresponding Framework Decision is more clear on that point and explicitly provides for a refusal ground based upon the “European ordre public.” Article 20(3) of the Framework Decision on the application of the principle of mutual recognition to financial penalties⁴ states:

Each Member State may, where the certificate referred to in Article 4 gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 of the Treaty may have been infringed, oppose the recognition and the execution of decisions.

The tension between the obligation to respect human rights and mutual recognition has recently been addressed by the Court of Justice in the area of common asylum policy. Like cooperation in criminal matters, the Common European Asylum System is based upon the principle of mutual recognition and the assumption that each Member State abides by fundamental rights as enshrined in Article 6 TEU.⁵ Therefore, the Court held that it can be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the EU FRCh and the ECHR (presumption of compliance). In the eyes of the Court, even a violation of these rights by the Member State responsible will not as such affect the obligations of the other Member States under the Common European Asylum System because otherwise these obligations would be deprived of their substance.⁶

However, the presumption that Member States comply with their obligations under the EU FRCh and the ECHR is not conclusive but allows for evidence to the contrary.⁷ The Court concluded that the Member States may not transfer an asylum seeker to another Member State in which systemic deficiencies amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment (Art. 4 EU FRCh).⁸

The reasoning of the Court’s judgment reaches beyond common asylum policy. Its impact on cooperation in criminal matters, the EAW in particular, has recently been addressed in the Radu case.⁹

Mr. Radu was suspected of aggravated robbery and was arrested in Romania on the basis of four European Arrest Warrants issued by Germany. In the surrender proceedings, Mr. Radu raised several objections against the execution of the European Arrest Warrants. In particular, he claimed that the executing state had to ascertain that the issuing state observes the fundamental rights guaranteed by the ECHR and the Charter of Fundamental Rights. If that was not the case, the executing authority would be entitled to refuse to execute the European Arrest Warrant.¹⁰

However, Mr. Radu referred rather generally to the right to a fair trial but did not specify the alleged violation of this right. In fact, he only raised one point, stating that he had not been given the opportunity to hire a lawyer and to present his defense before the German authorities had issued the European Arrest Warrants.¹¹

Not surprisingly, the Court rejected this argument. It can be inferred from the national criminal justice systems that a person wanted for arrest need not be heard before an arrest warrant is issued. Otherwise, it would be impossible to issue an arrest warrant against persons absconding from justice. The Court rightly pointed out that an arrest warrant requires an element of surprise, in particular in order to stop the suspect from taking flight.¹²

On the other hand, the right to be heard is fully respected at a later stage of the proceedings. The Framework Decision on the EAW explicitly states that the arrested person is entitled to be heard by the executing authority (Art. 14), and he will fully enjoy his defense rights after being surrendered to the issuing state. Therefore, the Court concluded that the executing authority cannot refuse to execute a European Arrest Warrant on the ground that the requested person was not heard by the issuing authority.¹³ In focusing its reasoning on the right to be heard, the Court carefully avoided to address the general question on how to deal with human rights violations in the issuing Member State.

By contrast, Advocate General Sharpston further elaborated on that issue. In her opinion on the Radu case, she came to conclusions quite similar to the Court’s reasoning in the asylum case. Referring to Article 1(3) of the Framework Decision and to the case law of the European Court of Human Rights in extradition cases,¹⁴ she stated:

the competent judicial authority […] can refuse the request for surrender […] where it is shown that the human rights of the person […] have been infringed, or will be infringed, as part of or following the surrender process. However, such a refusal will be competent only in exceptional circumstances. In cases involving Articles 5 and 6 of the Convention and/or Articles 6, 47 and 48 of the Charter, the infringement in question must be such as fundamentally to destroy the fairness of the process. The person alleging infringement must persuade the decision-maker that his objections are substantially well founded […].¹⁵

Although the Advocate General referred to the Court’s judgment in the asylum case,¹⁶ she did not subject the exception to mutual trust subject to “systemic deficiencies” in the issuing Member State. Moreover, she explicitly rejected the minimum (evidential) standards of the European Court of Human Rights (“flagrant” violation of human rights “beyond reasonable doubt”) but emphasized that the criteria must be defined in such a manner that it is not practically impossible for the arrested person to challenge the legality of surrender (“fundamental” violation, “substantially well founded objections”).¹⁷

Thus, the conclusions of Advocate General Sharpston can be considered to create an additional refusal ground that can be derived from primary EU law (the Charter) and that goes beyond the grounds provided for in Articles 3–5 of the Framework Decision. This line of reasoning is valid for any fundamental right enshrined in Art. 6 TEU. In her opinion, the Advocate General explicitly referred to the proportionality of criminal sanctions [Art. 49(3) EU FRCh] but did not examine whether a disproportionate sanction could give rise to a refusal of surrender (see infra Sect. 5).¹⁸

The implicit refusal ground as construed by Advocate General Sharpston will be based upon EU law only. It is rooted in the priority of the Treaties and the Charter over EU legislation. This reasoning does not apply to human rights standards that can be derived from the Member States’ constitutions. So the question is whether, if the execution of a European Arrest Warrant does not violate the Charter of Fundamental Rights, a Member State can still refer to constitutional principles in order to refuse surrender. In another most recent judgment, the Melloni case, the European Court of Justice has addressed the impact of constitutional principles on the decision on whether to execute a European Arrest.¹⁹

Mr. Melloni was tried in absentia