Respect to human rights in European arrest warrant proceedings

Abstract

This paper puts under the microscope the inevitable nexus that exists between the protection of fundamental rights and the proceedings of the European Arrest Warrant, which has become a major tool for judicial cooperation in criminal matters between the Member States of the European Union. Its extensive use, coupled with the several instances whereby the Court of Justice of the European Union (herein referred to as ‘CJEU’ or ‘Court’) was asked to weigh in to interpret ambiguous concepts and notions it contains, merit a sincere discussion on its implementation and how human rights of accused and convicted persons are being safeguarded in such proceedings. Building upon a thorough review of contributions made by several authors, this paper takes a snapshot of the Court’s evolving viewpoint by looking at judgements handed down in relation to three important themes, namely (i) Judicial authorities, decisions and effective protection; (ii) Trials in absentia; and (iii) Detention conditions. In respect to each of these themes, the reader can observe how references for preliminary rulings made by the domestic Courts allowed the CJEU to interpret, shape and evolve the Framework Decision on the European Arrest Warrant in a manner that explained, and in some instances, created new safeguards for the protection of the fundamental rights of the concerned persons. However, from this analysis it emerges that the Court, or rather the Union, needs to get its priorities straight and do some soul searching. It is shown how the Court is still heavily prioritising the principles of mutual recognition and mutual trust, and the overall efficacy of the proceedings, arguably at the expense of unequivocal fundamental rights standards and protection. This matter is also discussed against the backdrop of the Union’s pending accession to the European Convention on Human Rights and the possible ensuing implications.