In the subsequent case of Tagijevas,142 prison conditions in Lithuania were raised again. The Court
distinguished Tagijevas from the McGuigan decision in light of the evidence submitted, and found
that it was not “satisfied that there are substantial grounds for believing that there is a real risk of
[…] being subjected to inhuman and degrading treatment.”143 Furthermore, the court considered
that the findings of other bodies and courts as to the inhuman conditions in remand prisons alone
would not be definitive to satisfy the test which is whether the individual subjected to the EAW in
that particular case is at real risk of being “subjected to inhuman and degrading conditions […] on
surrender to Lithuania.”144
The jurisprudence suggests that each case will turn on its own merits, Edwards J was clear in McGuigan, that the case was decided on the particular facts and the strength of the evidence adduced. It
demonstrates the cross-border reliance on the reports of Ombuds institutions and NPMS, and the
thirst and interest of the Courts for current and reliable information on prison conditions.
The Netherlands
As regards the Netherlands, Section 11 of the Surrender Act, which is the FD EAW implementing
legislation provides that surrender is not permitted where there is a justifiable suspicion based on
facts or circumstance that the surrender would lead to a flagrant breach of fundamental rights. In the
first years of implementation, some challenges to the EAW on the basis of fundamental rights were
successful,145 since then no refusals have been based on fundamental rights concerns.146 Recently, a
court in Amsterdam refused to decide on Hungarian EAW’s provisionally, due to poor detention conditions in Hungary.147 On the 26th January 2017 a Court in Amsterdam dealt with a case relating to a
surrender request from Romania. In that case the Court specifically referenced the decision in Aranyosi and Căldăraru, the test of a real risk to inhuman treatment on surrender, and considered the
requirement to seek further information from the issuing authority. In applying this test, the Court
refused to execute the warrant as it had not received the information within the specified time.148
United Kingdom
In Krolik v Regional Court in Czestochowa, Poland149 the Court relied on the presumption of respect
of fundamental rights and held that a clear cogent and compelling evidence to the contrary would
be required to have the presumption rebutted.
An example where an individual subjected to an EAW was not surrendered on account of prison conditions was the case of Campbell. In that case, Mr Campbell faced extradition to Lithuania in order to
be prosecuted for terrorist offences.150 On the basis of multiple findings of poor prison conditions in
Lithuania, the High Court of Northern Ireland refused the execution of the request.
142
The Minister for Justice and Equality v. Tagijevas [2015] IEHC 455.
143
Ibidem at para 78.
144
Ibidem at para 20.
145
Weyembergh (2014) p.9 refer to RB Amsterdam, 1 July 2005, ECLI:NL:RBAMS:2005:AT8580, and RB Amsterdam, 19 Aug.
2005, ECLI:NL:RBAMS:2005:AU1314.
146
Weyembergh (2014) p.9 refer to these judgments: ECLI:NL:RBAMS:2013:5374, ECLI:NL:RBAMS:2013:7540 or
ECLI:NL:RBAMS:2011:BV0505.
147
For further information, see De Internationale Rechtshulpkamer (IRK), ´Voorlopig geen beslissingen over overleveringsverzoeken Hongarije´ (de Rechtspraak, 31 Dec. 2015) available at www.rechtspraak.nl/Organisatie-en-contact/Organisatie/
Rechtbanken/Rechtbank-Amsterdam/Nieuws/Paginas/Schending-mensenrechten-in-Hongaarse-gevangenissen.aspx.
148
Case Number 13/751069-16 RK/1510 Rechtbank Amsterdam 26 January 2017 Available at https://uitspraken.rechtspraak.
nl/inziendocument?id=ECLI:NL:RBAMS:2017:414&showbutton=true&keyword=%22RBAMS%3a2017%3a414%22.
149
[2012] EWHC 2357, [2013] 1 W.L.R. 490.
150
High Court of Justice in Northern Ireland Lithuania v Liam Campbell [2013] NIQB 19.
39
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