concluding thoughts
The Study considers the challenges and chances to the prevention of ill-treatment in the context of
the practical application of the FD EAW and the Framework Decisions on detention. In doing so, it
outlines how NPMs and their commitment to the prevention of torture and ill-treatment, together
with the Judiciary as the decision makers that give life to mutual recognition instruments, can play
an essential role to the prevention of ill-treatment, both nationally and in a cross-border context.
Existing challenges to ill-treatment primarily relate to non-refoulment in the application of the EAW
and FD TOP. The authors endeavoured to demonstrate that the future of mutual trust is not in its
automatic acceptance, but in the recognition that despite the best efforts of Member States, there
can be shortcomings that must be addressed, and not ignored. With this in mind, national courts
have increasingly refused surrenders on account of potential Article 3 ECHR /Article 4 CFREU violations. The CJEU in its landmark decision of Aranyosi and Caldӑrӑru, has confirmed that surrenders
must not violate the prohibition of torture and ill-treatment. At the same time, chances to prevent
ill-treatment can be found through the increased application of the FD ESO and FD PAS, which so
far have underused. Although figures suggest that Member States that have been using FD ESO, are
increasingly employing its use.
Overall, throughout the interviews, workshops and conferences undertaken during the context of
this project, there were recurring themes as to what was needed on the ground for better fundamental rights based implementation of the Framework Decisions on detention and FD EAW. These
included easily accessible information as to contact points within EU Member States, greater information on prison and detention conditions across the EU, and guidance on the practical application
of the Framework Decisions and the exact steps that should be taken to ensure that procedures are
carried out without delay. Further clarity has also been sought on the type of information that is
required before a surrender, and Aranyosi II should provide some more detail in terms of the level
of information to be obtained in the case of a surrender for the purpose of investigating an alleged
offence. Member States should also consider and reflect upon the good practices that already exist,
and see how best to endorse and emulate these efforts across the EU.
NPMs could contribute by raising awareness of the issues surrounding the chances and challenges
to ill-treatment in the national context, in connection with the Framework Decisions on detention
and the EAW. Their reports could serve to fill the gap on the lack of information on prison conditions
needed for a decision pertaining to cross-border transfers. At the same time, increased awareness
among the judiciary of NPM reports would also contribute to the NPM’s mandate of preventing
ill-treatment in the domestic context. Reports not only provide judges with useful information on
prison conditions, but any national or international judgments building on NPM reports might considerably support the impact of the NPM’s recommendations. For this endeavour, awareness of judges regarding the role and work of NPMs would however have to be strengthened, as would NPMs’
knowledge of EU law and related developments.
Dissemination of NPM reports, including to the judiciary, in order to foster awareness of their mandate, activities and most importantly, recommendations, would certainly be an important first step
towards engagement. Thereafter information seminars or trainings particularly with regard to the
functioning of the NPM mandate, but also on developments relevant to detention conditions, could
be useful to foster the relationship between NPMs and members of the Judiciary, and provide the
foundations for information sharing.
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