Exploring mutual trust through the lens of an executing judicial authority: The practice of the Court of Amsterdam in EAW proceedings
| Author | Adriano Martufi,Daila Gigengack |
| DOI | 10.1177/2032284420946105 |
| Date | 01 September 2020 |
| Published date | 01 September 2020 |
| Subject Matter | Special Issue Articles |
Special Issue Article
Exploring mutual trust
through the lens
of an executing judicial
authority: The practice of
the Court of Amsterdam
in EAW proceedings
Adriano Martufi
Leiden University, Netherlands
Daila Gigengack
District Court of Amsterdam, Netherlands
Abstract
In the groundbreaking decision Aranyosi and Ca
˘lda
˘raru, the Court of Justice of the European Union
(CJEU) recognised that in exceptional circumstances, the risk of a possible breach of the right not
to suffer inhuman or degrading treatments may qualify as a ground to suspend a European arrest
warrant (EAW) and, ultimately, bring the surrender procedure to an end. In this judgment (and in
the subsequent decision in LM, dealing with the right to a fair trial), the Court has devised a two-
tier test to assess the real risk of a violation of fundamental rights after surrender. Yet the Court
has left significant discretion to executing authorities in conducting their assessment of risk, thus
raising questions as to how the two-tier test would be implemented at the national level. To
address some of these questions, this article examines the practice of the executing authority for
the Netherlands (the District Court of Amsterdam) concerning decisions on EAWs that may entail
a real risk for fundamental rights. To do so, we analyse the judicial reasoning of decisions issued
between June 2016 and June 2020 which implement the tests designed by the CJEU in Aranyosi and
LM. The results of this analysis indicate that the Court of Amsterdam has gradually shifted the
emphasis from mutual trust to fundamental rights. However, the Dutch court resists automaticity
and scrutinises the relevance of any information attentively. This attitude indicates a readiness to
engage in a dialogue with the issuing authorities together with resistance to indulge in ‘blind trust’.
Corresponding author:
Adriano Martufi, Universiteit Leiden, Faculteit der Rechtsgeleerdheid, Steenschuur 25, Leiden, 2300 RA, Netherlands.
E-mail: a.martufi@law.leidenuniv.nl
New Journal of European Criminal Law
2020, Vol. 11(3) 282–298
ªThe Author(s) 2020
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DOI: 10.1177/2032284420946105
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Keywords
European arrest warrant, framework decis ion 2002/584/JHA, mutual recognition, inhuman or
degrading treatments, judicial independence, executing judicial authority of the Netherlands
Introduction
The Court of Justice of the European Union (CJEU) has long relied on the notion of mutual trust to
cement the effectiveness of judicial cooperation within the European Union (EU). In its earlier case
law, the Luxembourg Court has consistently emphasised the importance of this principle for the
interpretation of the Fra mework Decision on the European arrest warran t (FDEAW).
1
In the
CJEU’s view, the notion that Member States’ authorities should trust each other would preclude
an extensive application of the FDEAW’s grounds for refusal.
2
The Luxembourg judges made
clear that the grounds listed in the FDEAW had to be regarded as exhaustive, despite the absence of
a general ground for refusal that would apply in the event of risks of a violation of the requested
person’s fundamental rights. The CJEU went as far as to interpret the principle of mutual trust as a
‘presumption of compliance’, that is, a presumption that while applying EU law, national author-
ities comply with fundamental rights.
3
Yet, in the landmark decision Aranyosi and Ca
˘lda
˘raru the Luxembourg Court took a more
nuanced approach.
4
In essence, the CJEU ruled that if a real risk exists for a requested person to
suffer inhuman and degrading treatments in the issuing State, surrender may be postponed and,
where no supplementary information can discount such risk, eventually brought to an end. By
doing so, the CJEU has espoused an innovative interpretation of the relevant EU legal framework,
expanding on the existing rules of the FDEAW to create a new procedure dealing with specific
fundamental rights concerns. In order to assess whether a surrender may expose the requested
person to a risk of inhuman and degrading treatment, thereby violating Article 4 of the Charter of
fundamental rights of the EU (the Charter), the executing authorities need to engage in a delicate
test.
Firstly, if these authorities are in possession of evidence pointing to a risk of ill-treatment, they
need to verify whether a conceptual risk exists as a result of the general detention conditions in the
issuing State: this is referred to as a risk in abstracto, in that it may be triggered by widespread or
structural issues affecting the prison system of the issuing State or some parts thereof. The CJEU
has indicated the sources of evidence an executing authority may rely on to find the existence of
such a risk. This authority can only use information that is ‘objective, reliable, specific and
properly updated’ concerning detention conditions ‘prevailing’ in the issuing State. These sources
of information should prove the existence of deficiencies which may be systemic or generalised, or
which may affect certain groups of people, or which may affect certain places of detention.
5
In the
paragraphs that follow, we refer to the finding of an abstract risk as ‘step 1’.
1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender pro-
cedures between Member States [2002] L 190/1.
3. Opinion 2/13 of the Court pursuant to Article 218(11) TFEU [2014] ECLI: EU: C:2014:2454, paras 191–192.
˘lda
˘raru [2016] ECLI: EU: C:2016:198.
5. Aranyosi and Ca
˘lda
˘raru, para 89.
Martufi and Gigengack 283
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