Limiting mutual trust on fundamental rights grounds under the European arrest warrant and lessons learned from transfers under Dublin III

Abstract

The Court of Justice of the European Union (CJEU) has examined the limitation of the principle of mutual trust in European arrest warrant (EAW) cases in a number of recent decisions. The court has found that when the executing judicial authority possesses information demonstrating that the requested person is at a real risk of violation of the right to be free from inhuman or degrading treatment guaranteed in art 4 of the Charter of Fundamental Rights of the European Union, then the individual should not be automatically surrendered. Instead, the proceedings should be postponed to obtain supplementary information or discontinued if the risk cannot be discounted. The ‘real risk’ test has also been extended to non-absolute rights, such as the right to a fair trial. However, the CJEU’s reasoning about the limitation of mutual trust is not yet fully formed in relation to certain aspects concerning the nature of fundamental rights and the EAW procedure. This article explores these gaps of understanding about the scope of the limitation on mutual trust in surrender cases and, in doing so, assesses the consistency of similar developments in the area of transfers of asylum seekers under the Dublin Regulation III.