OVERVIEW ON EU CROSSBORDER PROCEEDINGS AND FUNDAMENTAL RIGHTS
by Article 6 of the Treaty on European Union
and reflected in the Charter of Fundamental
Rights of the European Union, in particular
Chapter VI thereof. Nothing in this Framework
Decision may be interpreted as prohibiting
refusal to surrender a person for whom a
European arrest warrant has been issued
when there are reasons to believe, on the
basis of objective elements, that the said arrest warrant has been issued for the purpose
of prosecuting or punishing a person on the
grounds of his or her sex, race, religion, ethnic
origin, nationality, language, political opinions
or sexual orientation, or that that person's
position may be prejudiced for any of these
reasons.”
Art 1(3) also is a provision common to all four
framework decisions (“common article”), stating that: “This Framework Decision shall not
have the effect of modifying the obligation to
respect fundamental rights and fundamental
legal principles as enshrined in Article 6 of the
Treaty on European Union.”
In 2021, fundamental rights issues led to 86
refusals reported by ten of the 25 replying
Member States. 64 of these refusals were
registered in Germany alone. By way of
comparison, ten Member States reported 108
refusals in 2020, 73 of those being registered
in Germany alone, as was found by the European Commission for the year 2021.321
Refusal to execute an EAW based on general fundamental rights grounds in 2021
(Article 1.3 EAW FD)322
Austria
Bulgaria
Germany
Italy
Lithuania
Slovenia
0
2
64
4
X
0
3.1.2 EAW AND PERSONS WITH
INTELLECTUAL AND/OR
PSYCHOSOCIAL DISABILITIES
The EAW FD is the only one of the four
framework decisions that does not contain
any provisions concerning persons with
intellectual and/or psychosocial disabilities.
However, the 2013 Recommendation calls
upon Member States to strengthen certain
procedural rights of suspects in situations of
vulnerability or accused persons in criminal
proceedings and of persons in situations of
vulnerability who are subject to European
Arrest Warrant proceedings.323 It provides
that:
“The executing Member State should ensure
that a vulnerable person who is subject to
European arrest warrant proceedings has the
specific procedural rights referred to in this
Recommendation upon arrest.”324
Concerning persons with intellectual and/
or psychosocial disabilities vis-à-vis the
principles established by the UNCRPD and
its Committee, more entry points could be
84
considered at the EU level. For example, the
Charter enshrines fair trials rights, especially
the presumption of innocence and the rights
of defence under Art 48.
In this sense, it may be particularly interesting to note that the CJEU has interpreted
the Directive (EU) 2016/343 as applying
to proceedings covering committal to a
security measure/psychiatric hospital, where
the person is declared to be not criminally
responsible but is subjected to a detention
measure justified on therapeutic and safety
grounds (See Section 2.4.).325
One could thus question if the transfer of a defendant with intellectual and/or psychosocial
disabilities to countries that do not interpret
the presumption of innocence in such a way
could in principle be in violation of Art 48 EU
Charter (presumption of innocence and the
rights of defence) and could thus amount to
a ground for refusal under Art 1(3) EAW FD.
In conclusion, the EAW FD is the most used of
all four FD and does offer protection to individuals involved in these proceedings vis-à-vis
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