An EAW can be issued for the purpose of conducting a criminal prosecution as well as to execute a detention order or a custodial sentence.36 Accordingly, an EAW might also entail pre-trial detention for the person surrendered. The warrant can be issued for crimes punishable in the issuing Member State by a maximum period of at least 12 months, where a sentence has been passed or a detention order has been made, for sentences of at least four months.37 There are mandatory and optional refusal grounds listed in the FD EAW, whereby the executing State can refuse to surrender the requested person. Mandatory refusal grounds serve as an amnesty by the executing State or a situation whereby the person to be surrendered was already sentenced by another Member State for the same crime and has served the sentence. One of the optional refusal grounds would be that the person is prosecuted for the same act in the executing State. Whereas recitals 10 and 12 in the FD EAW refer to Article 6 of TEU and thus to fundamental rights and Recital 10 also indicates that a serious and persistent breach of fundamental rights by a Member State may undermine mutual trust and have an effect on mutual recognition, fundamental rights are not explicitly included in either the mandatory nor the optional refusal grounds (Article 3 and 4 FD EAW). The absence of such an explicit provision in the FD EAW, however, has not prevent Member States from interpreting it as allowing for the introduction of mandatory fundamental rights refusal grounds not specifically included in the text (see chapter 3 below). Numerous challenges with the implementation of the FD EAW have been reported by the Commission38 and the European Parliament,39 such as the lack of entitlement to legal representation in the issuing State during the surrender proceedings in the executing State as well as unacceptable detention conditions and lengthy pre-trial detention.40 One of the main concerns regarding the application of the FD EAW relates to the fact that certain Member States issue EAWs often for minor offences, thus not fully respecting the principle of proportionality41 as set out in Article 2(2) that only certain severe or serious crimes can form the basis of the EAW.42 As was indicated in the introduction, while not discounting other fundamental rights that come into play when implementing the Framework Decisions on detention, this Study will focus on issues of ill-treatment. In the survey of judges conducted in the framework of the project, by far the most common concern was described to be the poor conditions of detention in some Member States that were requesting 36 Article 1 (1) FD EAW. 37 Article 2 (1) and (2) FD EAW. 38 European Commission, Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States, COM (2005) 63 final, 23 Feb.2005. At the time when this report was adopted only half of the Member States had transposed the FD into their legal order. See also European Commission, Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (revised version)’ COM (2006) 8 final, 24 Jan. 2006 [hereinafter: European Commission, COM (2006) 63 final]; European Commission, Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’, COM (2007) 407 final, 11 July 2007; European Commission, Report to the European Parliament and the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States COM (2011) 175 final, 11 April 2011 [hereinafter: European Commission, COM (2011) 175 final]. 39 European Parliament, Study on the Implementation of the European Arrest Warrant and Joint Investigation Teams at EU and National Level, PE 410.671 (January 2009) [hereinafter: European Parliament, Implementation of the EAW (2009)]; Anne Weyembergh, `European Added Value Assessment - The EU Arrest Warrant. Critical Assessment of the Existing European Arrest Warrant Framework Decision`, PE 510.979 (Jan. 2014) available at www.europarl.europa.eu/RegData/etudes/ etudes/join/2013/510979/IPOL-JOIN_ET(2013)510979(ANN01)_EN.pdf [hereinafter: Weyembergh (2014)]. 40 European Commission, COM (2011) 175 final, p.7. 41 Weyembergh (2014), pp.32-37. 42 See about this Luisa Marin, `Effective and legitimate? Learning from the Lessons of 10 Years of Practice with the European Arrest Warrant` in New Journal of European Criminal Law (2014) Vol.5 (3). 20