chapter 2. the framework decisions on detention as challenges for the prevention of ill-treatment This chapter will consider the fundamental rights challenges with regard to Art. 3 ECHR and Art. 4 CFREU arising from the Framework Decisions on detention. To this end, it will provide an overview of the definition and scope of the absolute prohibition of torture and ill-treatment. Thereafter, the challenges associated with Framework Decisions on detention with particular emphasis on non-refoulement will be considered, firstly in terms of the case law emanating from the Court of Justice of the European Union, (CJEU) and the European Court of Human Rights (ECtHR) and finally, in the national context. The common challenge regarding the prevention of ill-treatment attributed to Framework Decisions on detention, in particular the FD EAW and FD TOP as relates to non-refoulement, remains central to this chapter. The above mentioned rights are key not only in their own right, but the duties contained for example in the right to liberty and the right to a fair trial are highly relevant to the prevention of torture and ill-treatment. The connection between arbitrary detention, inhuman treatment, and an absence of due process cannot be overlooked. As discussed in chapter 1, the principle of mutual recognition is based on the existence of mutual trust between Member States, which is premised upon the presumption that all Member States fully respect fundamental rights as enshrined in both the ECHR and the CFREU. This mutual recognition is in the context of an understanding that although criminal justice systems may vary amongst EU Member States, they remain equivalent. Article 6 TEU mandates that all EU institutions including the Council must act in accordance with fundamental rights derived from the ECHR and standards common to Member States. In the AFSJ context, Article 67(1) TFEU mandates that “The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.” The CFREU provides for legally binding standards that must be applied when implementing and interpreting EU law. As previously noted, the Framework Decisions discussed in this Study do not include an explicit fundamental rights refusal ground, beyond references contained within the recitals and broader remarks in the operative clauses.68 There are only two mutual recognition instruments that expressly include such a ground for refusal of a request: the Framework Decision on the Mutual Recognition of Financial Penalties69 and the recent Directive on the European Investigation Order (EIO).70 In relation to the latter, Recital 19 is noteworthy as it explicitly stresses the rebuttable character of the presumption of compliance with fundamental rights and mandates that “if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, 68 See Recital 12-13 FD EAW 69 Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, OJ 2005/L 76/16. Article 20 (3) provides that ‘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.’ This formulation has been criticised by Peers, who argues that when read literally, it would be impossible to apply the provision in practice as there is no way that a standard form certificate, that includes only boxes to be ticked and lines to be filled with factual information in order to ensure the judgement to be enforced, could easily raise concern about a possible human rights infringement. Steve Peers, Justice and Home Affairs Law, Third Edition. Oxford: Oxford University Press, 2011, 725. 70 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (EIO), OJ 2014/L 130/1. 25