2.2.2. national practice Implementation of Framework Decisions into national legislation Following on from the considerations of Art. 4 CFREU/Art. 3 ECHR relating to the Framework Decisions on detention on a regional level, it is interesting to note how Member States have addressed fundamental rights during the course of implementation. Many Member States have criticised the lack of stronger references to fundamental rights in the FD EAW.125 This omission has been partly addressed at the national level through its implementation. In particular, it appears that a significant number of Member States seem to understand the FD EAW as allowing the non-execution of an EAW on the basis of fundamental rights. In this context, it has been reported that around two thirds of Member States have gone beyond the letter of the EAW and have introduced a fundamental rights ground for refusal in various forms.126 Some Member States have introduced an explicit ground. For example, in the United Kingdom, Section 21 of the Extradition Act 2003 provides for a review of whether the surrender is compatible with the ECHR within the meaning of the Human Rights Act 1998, thereby providing an additional ground upon which surrender may be refused. Greece and Finland have converted Recital 12 into a mandatory ground for refusal.127 Other Member States have used a general fundamental rights clause similar to Article 1(3) EAW, which can however be used as a ground for refusing to execute an EAW. An example of this can be found in Section 73 of the German Mutual Legal Assistance and Extradition Act, even though it is used only for serious cases where human rights have been abused.128 Finally, the Italian implementing legislation provides that the ‘supreme principles’ of the Italian constitutional order with regard to fundamental rights prevail.129 National jurisprudence During the course of a survey conducted with judges across the EU in the framework of this project, a majority of judges were of the view that the ECHR, combined with the Charter formed sufficient protection without the requirement to include an explicit reference in the Framework Decisions. Most of the judges surveyed added that their national legislation contained a specific or general fundamental rights clause, and that on receipt of a request to enforce an EAW, issues of fundamental rights are addressed. Despite human rights refusal grounds in the majority of EU Member States’ national legislation and this understanding of judges, there have for quite a while been very few cases where these were applied in practice by judges.130 This finding is corroborated by a Study undertaken by the Centre for European Policy Studies (CEPS), whereby the refusal on the fundamental rights grounds is not listed among the most common grounds of non-execution of a request.131 In this regard, it has been pointed out that the option to challenge an EAW on the basis of human rights violations (e.g. that the requesting State has a negative record of poor detention conditions or unfair trials) would be 125 European Parliament, Implementation of the EAW (2009) p.19. 126 European Commission, COM (2011) 175 final, p.5. 127 Council of the European Union, ‘Evaluation Report on the fourth round of mutual evaluation “The practical application of the European Arrest Warrant and corresponding surrender procedure between Member States” – report on Greece.’, 13416/2/08 REV2, 13416/1/08 REV1 (3 December 2008) p. 38; Council of the European Union, ‘Evaluation Report on the fourth round of mutual evaluation “The practical application of the European Arrest Warrant and corresponding surrender procedure between Member States” – report on Finland’, 11787/2/07 REV2, 11787/1/07 REV1 (16 November 2007) p.36. 128 Vermeulen et. al (2012) p.100. 129 European Parliament, Implementation of the EAW (2009), p.19. See Corte di Cassazione Case, No. 1654 (15 May 2006). 130 Vermeulen et. al (2012) p.100. 131 Sergio Carrera, Elspeth Guild and Nicholas Hernanz, ‘Europe’s Most Wanted? Recalibrating Trust in the European Arrest Warrant System’ in CEPS (March 2013) Paper no. 55, p.10. 35