OVERVIEW ON EU CROSSBORDER PROCEEDINGS AND FUNDAMENTAL RIGHTS UNCRPD in EU jurisdictions by following the Convention’s definition of “disability”, stating it was “a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a longterm one.” 299 The obligation to respect the rights of persons with disabilities is further strengthened by Art 21 of the Charter, which focuses on non-discrimination. It states that “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”300 Following the UNCRPD provisions, the term “disability” is defined as “long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder (the) full and effective participation (of persons) in society on an equal basis with others.”301 Art 53 of the Charter also provides for the minimal level of protection provided vis-à-vis EU law, stating notably that the Charter cannot be interpreted as “restricting or adversely affecting human rights and fundamental freedoms as recognized (…) by the European Convention for the Protection of Human Rights and Fundamental Freedoms.”302 The jurisprudence of the ECtHR represents the lowest threshold for protection and has been relied on by the CJEU in cases involving cross-border proceedings. The EU fundamental rights framework thus relies on different international instruments, which were interpreted in the context of several CJEU judgements. The most relevant caselaw developed in the context of cross-border proceedings in relation to fundamental rights was Aranyosi and Căldăraru303 (and later ML304 and Dorobantu,305 among others). They all involve the use of the EAW FD, as no cases could be identified that relied on the TP, ESO and PAS FDs and fundamental rights. In Aranyosi and Căldăraru, the Court stated that, if there is a real risk that a specific 82 fundamental right of the requested person will be violated by surrendering him or her to the issuing State, the national court of the executing State should refuse to do so.306 When doing so, the Court expressly stressed that such decision constituted an exceptional derogation to the principle of mutual trust between Member States.307 In the judgement, the Court created a two-step approach to guide national jurisdictions. At the outset, it must be established that there are systemic and generalised deficiencies in the state of the issuing authority (step 1); and that there are good grounds to believe that the specific person that is subject to the European Arrest Warrant will indeed suffer a breach of the a fundamental right (step 2). The CJEU later indicated that, in order to apply the two-step approach, the first step needs to be confirmed before the instance can demonstrate the second.308 If both steps are completed, the executing authority may refuse to surrender the individual under Art 1(3) EAW. Art 8 EAW FD lays out the information to be transmitted by the issuing state to the executing state in the context of the EAW.309 However, such a list does not include specific guarantees for the transfer of arrested individuals who suffer from intellectual and/ or psychosocial disabilities. Based on the principle of mutual trust, states should rely on the presumption of good treatment. However, the EAW FD provides for the ad hoc possibility of the executing state to request additional information to the issuing state if the former finds it insufficient to allow the surrender.310 In the cases of Aranyosi and Căldăraru, Dorobantu and E.D.L.,311 the fundamental right not to be subjected to inhuman or degrading treatment, as found in Art 4 of the Charter, had been violated. The cases relied also on the European Convention on Human Rights provisions, under Art 3 (prohibition of torture) and Art 15 (derogation in time of emergency), as well as on ECtHR jurisprudence. Read in combination with Art 23(4) of the EAW Framework Decision, which stipulates that “the surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the