Resisting a European Arrest Warrant: A social rights perspective
| Author | Neža Šubic |
| Date | 01 September 2020 |
| Published date | 01 September 2020 |
| DOI | 10.1177/2032284420948619 |
| Subject Matter | Special Issue Articles |
Special Issue Article
Resisting a European
Arrest Warrant: A social
rights perspective
Neˇ
za ˇ
Subic
University College Dublin, Ireland
Abstract
This article starts from the premise that social rights should be taken seriously in the context of the
European Arrest Warrant (EAW). Historically neglected, social rights have slowly gained recog-
nition as legal entitlements. The article focuses on the protection of social rights – understood
here as the rights to an adequate standard of living, healthcare and education – in regard to one
aspect of the EAW: resisting its execution due to a real risk of a breach of social rights in detention
in the issuing Member State. The social rights–based argument for resisting an EAW is premised on
the Court of Justice of the European Union’s jurisprudence on ‘exceptional circumstances’ in
which mutual trust can be rebutted, in particular Aranyosi and LM. The article identifies three ways
for protecting social rights in the context of resisting an EAW. First, elements of social rights can be
protected through resisting an EAW on the basis of a real risk of a breach of the prohibition of
inhuman and degrading treatment. Second, social rights could be protected by resisting an EAW on
the grounds of those non-absolute civil rights that indirectly protect elements of social rights.
Third, the option of resisting an EAW by relying directly on social rights is also examined. Taking a
social rights perspective expands the type of cases in which an individual can resist surrender due
to a risk of facing poor detention conditions; this includes certain situations where the potential
breach does not reach the high threshold of the prohibition of inhuman and degrading treatment.
However, the article concludes that the rigid framework for balancing mutual trust and funda-
mental rights established by Aranyosi and LM ultimately creates a ceiling for the protection of social
rights and prevents them from being fully respected and protected in the context of resisting an
EAW.
Keywords
Mutual trust, mutual recognition, detention conditions, social rights, fundamental rights, European
Arrest Warrant, LM,Aranyosi
Corresponding author:
Neˇ
za ˇ
Subic, UCD Sutherland School of Law, Belfield, Dublin 4, Dublin, Ireland.
E-mail: neza.subic@ucdconnect.ie
New Journal of European Criminal Law
2020, Vol. 11(3) 299–312
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/2032284420948619
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