One of the French NPM reports was referred to in a case before Westminster Magistrate Court, which resulted in a refusal to extradite an individual to Guadeloupe on account of the conditions of detention violating Art. 3. 3.5. monitoring assurances: prevention of ill-treatment beyond npms’ mandate, yet relevant to the The decision to execute an EAW is taken by the executing State once it has reason to believe that the surrender will not lead to any breach of the prohibition of torture and ill-treatment and that the person will be treated in conformity with fundamental rights. If the issuing State has given assurances that the person will be treated in accordance with Art. 3, as in the case of extraditions to non-EU States, the question arises whether, and by whom, the compliance with these assurances would be monitored. Relying on assurances can clearly be problematic as they rest on trust and are not enforceable. As the former UN Special Rapporteur on Torture emphasised, assurances are not legally binding and often do not provide for sanctions in case they are violated.346 Their fulfilment solely depends on the willingness of the authorities. In the vast number of EAWs, it can be expected that these assurances are fulfilled. However, in States displaying systemic and generalised failures of conditions of detention, if the executing State nevertheless decides to execute the EAW on foot of assurances that the individual would not be victim of ill-treatment, it would be essential to carry out monitoring to ensure that the situation is, and remains satisfactory. Whether the judicial authorities of the executing State can ask for assurances was raised during the hearing before the CJEU in Aranyosi/Caldӑrӑru. While the referring German Court argued for the right of the court of the executing State to seek guarantees, most countries as well as the Commission objected, arguing that the concerns of the court should be resolved in a dialogue between the two Member States.347 The CJEU is silent in its judgment on the potential monitoring of assurances in EAW cases. It therefore seems to be the responsibility of each Member State to establish its modalities. The ECtHR however has pronounced itself on several occasions on the issue of diplomatic assurances against refoulement and found that, “assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.”348 346 UN Special Rapporteur on Torture, Report to the Commission on Human Rights, UN Doc. E/CN.4/2006/6, 23 December 2005, para. 31. 347 For a summary of the discussions during the hearing see: Henning Bang Fuglsang Madsen Sørensen, ´Mutual trust – blind trust or general trust with exceptions? The CJEU hears key cases on the European Arrest Warrant´(EU Law Analyses, 18 February 2016) available at www.eulawanalysis.blogspot.co.at/2016/02/mutual-trust-blind-trust-or-general.html. 348 Othman (Abu Qatada) v The United Kingdom, Appl. No. 8139/09 (ECtHR, 17 January 2012) para. 187. 94