European Arrest Warrant: a serious risk to the requested person’s health is not a ground for refusal (CJEU AG Opinion)

In his opinion on case C-699/21, delivered on 1 December 2022, CJEU Advocate General (AG) Manuel Campos Sánchez-Bordona argues that a serious risk to the requested person’s health does not constitute grounds to refuse the execution of a European Arrest Warrant (EAW). This risk must however be assessed and can constitute grounds for the postponement of the EAW, as foreseen in the Council Framework Decision 2002/584 (the Framework Decision).

Should the Court follow this opinion, it would close the door to an extension of the Aranyosi and Căldăraru jurisprudence, with which the Court created an obligation for the executing authority, under specific circumstances, “to bring the surrender procedure […] to an end where surrender may result in the requested person being subjected to inhuman or degrading treatment” within the meaning of Article 4 of the Charter of Fundamental Rights (Case C‑128/18, Dorobantu, 15 October 2019, para. 50, see also joined cases C‑404/15 and C‑659/15 PPU, Aranyosi and Căldăraru, 5 April 2016).

As noted by the AG, the case at hand (which concerned an individual requested by Croatia, residing in Italy and suffering from a serious chronic psychiatric disorder) differs from previous cases in which the Aranyosi jurisprudence was followed. While the fundamental rights exception to EAW surrenders has been until now implemented “in the context of systemic and generalised deficiencies [in detention conditions] in issuing Member States” (para. 33), none of the parties involved argued that there were such deficiencies in the provision of healthcare to prisoners in Croatia.

The requested person’s situation was also not considered to be serious enough to suggest that the surrender itself might cause an irreversible deterioration of his health – which would constitute a ground for refusal even in the absence of systemic deficiencies in the issuing state. As a result, the materialisation of the risk to the requested person’s health depends on the treatment he would receive upon his transfer.

No “new ground” for refusal to execute an EAW

Instead of creating new a ground for refusal of an EAW (which are exhaustively enumerated in the Framework Decision), AG Campos Sánchez-Bordona recommends the Court make use of the existing mechanism laid down in the Framework Decision to postpone a surrender “for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health” (Framework Decision, Article 23(4)).

The decision to postpone the surrender lies with the executing authority and shall be based on explanations received by the issuing authority “regarding the medical treatment available in places of detention or imprisonment, in line with the medical needs of the requested person” (para. 83).

Two significant differences between the proposed solution and the Aranyosi jurisprudence need to be underlined. Firstly, while in the latter case the executing authority was called on to assess the existence of eventual deficiencies in the issuing Member State’s prisons prior to authorising the EAW, in the case at hand, the communication channel between judicial authorities aiming to assess the quality of prison healthcare in the issuing state is established only after the EAW has been authorised.

Secondly, and consequently, while in the application of Aranyosi, the executing authority had to refuse the EAW if it was convinced that the requested person’s rights would be violated upon transfer, with the solution proposed it could only postpone the EAW’s enforcement. In this case, it is indeed up to the issuing authority to withdraw or maintain the EAW.

Priority to the “combat against impunity”

The solution proposed is not without drawbacks. As rightly pointed out by the referring court, the postponement of the execution of an EAW is meant to be temporary and is therefore not suitable for chronic pathologies whose duration cannot be determined (para. 68-69). Not only would this permanent state of uncertainty encroach on the requested person’s right to liberty, it could also negatively impact his mental health – the fragility of which is the primary reason for the Italian Constitutional Court’s request for a preliminary ruling.

Furthermore, the adopted approach reflects the primacy given to the preservation of the EAW mechanism and the combat against impunity over the protection of fundamental rights in cooperation in criminal matters. Significantly, a central argument against the creation of a new ground for refusal to execute an EAW for reasons related to health was that it “would lead to multiple claims by those affected” (para. 64).

This is probably true, in view of the inadequacy of healthcare provision in prison settings reported in most EU countries (see FRA’s 2019 report on detention conditions in the EU). While the AG’s opinion sees this possibility as a major threat to the EAW mechanism, one could argue to the contrary that it would strengthen its fundamental rights compliance.

The CJEU judgment is expected in the coming months. Read the AG’s opinion here: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62021CC0699

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