The implementation of the CJEU’s Joined Cases Aranyosi and Caldararu by the UK and Irish Courts – A real impact on the protection of fundamental rights in surrender proceedings?

AuthorZara Gilbert
DOIhttp://doi.org/10.1177/20322844221119604
Published date01 September 2022
Date01 September 2022
Subject MatterArticle
Article
New Journal of European Criminal Law
2022, Vol. 13(3) 314332
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/20322844221119604
journals.sagepub.com/home/nje
The implementation of the
CJEUs Joined Cases Aranyosi
and Caldararu by the UK and
Irish Courts A real impact on
the protection of fundamental
rights in surrender
proceedings?
Zara Gilbert
Durham University Law School, Durham, UK
Abstract
This article explores the subsequent change in balance between efciency and fundamental right s
protection in surrender proceedings following the Joined Cases Aranyosi and Cald araru. The impact of
Aranyosi and Caldararu on the UK courts examines the UKs implementation of the two-tier test in
surrender proceedings prior to Brexit under the EAW system and Extradition Act 2003. It argues
that despite Aranyosi institutionalising the use of assurances, the system does not lead to an actual
improvement of fundamental rights protection as rstly, assurances are often breached, and
secondly, the UK Courts do not attribute weight to such breaches, maintaining trust in the relevant
country in future cases. The impact of Aranyosi and Caldararu on the Irish courts analyses judicial
decisions pre-Aranyosi and post-Aranyosi. It illustrates that by setting a very high threshold for the
respondent to overcome to nd a violation of fundamental rights successfully, there has not been
a real impact on the protection of fundamental rights in surrender proceedings. Exploring how
these national courts apply the CJEUs standards of fundamental rights checks in surrender
procedures provides real insight into whether Aranyosi has had a revolutionary impact in practice.
Keywords
Aranyosi and C˘
ald˘
araru, fundamental rights, european arrest warrant, mutual recognition,
detention conditions
Corresponding author:
Zara Gilbert, Durham University Law School, Palatine Centre, Stockton Road, Durham, DH1 3LE, UK.
Email: zaraemmagilbert@gmail.com
Introduction
As is well known, sovereign states can enter extradition agreements, allowing them to transfer
persons accused or convicted of a crime from one State to another, to prosecute the individual or
enforce a sentence handed down by its courts.
1
Yet, they also have fundamental rights obligations
that prevent them from extraditing. The rst landmark case in ECHR law is Soering v UK,
2
es-
tablishing that extradition must be refused if there are substantial groundsto believe that the person
concerned faces a real risk of torture or to inhuman or degrading treatment or punishment in the
requesting country.
3
While this is a standard for extradition among sovereign countries, specic regional regimes have
introduced more efcient systems. In particular, the European Union (EU) adopted the Framework
Decision on the European Arrest Warrant (FD EAW).
4
The European Arrest Warrant (EAW) is
based on the principle of mutual recognition and represents a faster, semi-automatic procedure,
whereby checks are eliminated, and the procedure is entirely judicial. Grounded on the mutual trust
that exists among Member States, the EAW represents a signicantly more integrated framework
than traditional extradition.
5
While the Court of Justice has traditionally upheld the efciency of the
system, illustrated for example in Radu
6
and Melloni
7
, there has been a change in approach recently
in the Joined Cases Aranyosi and Caldararu.
8
Focusing on Aranyosi and Caldararu
9
, this article will explore the subsequent change in balance
between efciency and fundamental rights protection in surrender proceedings following this
ruling. It will expand on literature written by academics such as Lazowski and Bard
10
, by analysing
the reaction of national courts to this landmark case. It will focus specically on the UK and Ireland
as case studies, as both countries are particularly keen on relying on fundamental rights grounds for
refusal
11
; the UK has transposed a general fundamental rights ground for non-execution in their
implementing legislation, and Ireland has actively raised these questions before the ECJ in the
1. Tony Marguery, Mutual Trust Under Pressure, The Transferring Of Sentenced Persons In The EU: Transfer Of
Judgments Of Conviction In The European Union And The Respect For IndividualsFundamental Rights (1st edn, Wolf
Legal Publishers 2018).
2. [1989] 11 EHRR 439.
3. Soering v UK [1989] 11 EHRR 439 [91].
4. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender
procedures between Member States [2002] OJ L 190/1.
5. Yanhong Yin and Irene Wieczorek, What Model For Extradition Between Hong Kong And Mainland China? A
Comparison Between The 2019 (Withdrawn) Amendment To Hong Kong Extradition LawAnd The European Arrest
Warrant[2020] New Journal of European Criminal Law.
6. C-396/11 Ciprian Vasile Radu.
7. Case C-399/11 Melloni ECLI:EU:C:2013:107.
8. Joined Cases C-404/15 and C-659/15 PPU P´
al Aranyosi and Robert Caldararu ECLI:EU:C:2016:198.
9. ibid.
10. ValsamisMitsilegas, Alberto di Martino and Leandro Mancano, The Court OfJustice And European Criminal Law (1st
edn, Bloomsbury Publishing 2019).
11. See Sections 2 & 3 for further detail on the strict fundamental rights checks in these countries.
Gilbert 315

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