Understanding new actors in European Arrest Warrant cases concerning detention conditions: The role, powers and functions of prison inspection and monitoring bodies
| Author | Mary Rogan,Eva Aizpurua |
| Published date | 01 June 2020 |
| DOI | 10.1177/2032284420923410 |
| Date | 01 June 2020 |
| Subject Matter | Articles |
Article
Understanding new actors
in European Arrest
Warrant cases concerning
detention conditions:
The role, powers
and functions of prison
inspection and
monitoring bodies
Eva Aizpurua
Trinity College Dublin, Ireland
Mary Rogan
Trinity College Dublin, Ireland
Abstract
Prison inspection and monitoring bodies are becoming central players in European Arrest Warrant
(EAW) decision-making. These bodies write reports on prison conditions and examine their
compliance with fundamental rights. Now that poor prison conditions can be a basis to refuse an
EAW’s execution, these bodies are becoming increasingly important actors in EAW decision-
making process. While this is so, there is a remarkable lack of analysis on the legal structures
and activities of such bodies. This article addresses this absence by presenting findings from the
first European Union (EU)-wide study of prison inspection and monitoring bodies, providing new
insights into the nature of these bodies. It provides both empirical insights into these structures for
overseeing detention conditions and doctrinal analysis. It assesses the implications of an increased
role for such bodies in the Area of Freedom, Security and Justice.
Keywords
European Arrest Warrant, mutual trust, detention conditions, fundamental rights, prison
inspection and monitoring bodies, OPCAT, NPM
Corresponding author:
Mary Rogan, School of Law, Trinity College Dublin, College Green, Dublin 2, Ireland.
E-mail: mary.rogan@tcd.ie
New Journal of European Criminal Law
2020, Vol. 11(2) 204–226
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/2032284420923410
njecl.sagepub.com
NJECL
NJECL
Introduction
Poor prison conditions are now a well-established threat to mutual trust. Where prison conditions
breach fundamental rights, it is possible for a judicial authority to postpone and, in extreme
circumstances, refuse the execution of a European Arrest Warrant (EAW). The seminal decision
of Aranyosi and Ca
˘lda
˘raru,
1
and the subsequent clarifications and affirmations in LM,
2
ML
3
and
Dorobantu,
4
have made it clear that executing judicial authorities must seek objective and up-to-
date information about prison conditions in EAW cases when an issue about the compliance of
those conditions with fundamental rights arises. Since that decision, a number of executing judicial
authorities have used of reports by prison inspection and monitoring bodies when making assess-
ments of the prison conditions in a Member State. Reports of these bodies are becoming much
more common as well as more influential in EAW decision-making when prison conditions are
being used as a basis to resist the execution of an EAW. Very little is, however, known about the
legal frameworks which govern then, and their operation in practice. This gap in the literature is
striking in the light of the decisive role their reports can play in consequential decisions affecting
mutual trust and cooperation.
Prisons are by their nature far from public view, contain many people with histories of disadvan-
tage, mentalillness and drug addiction,and where there is a power imbalancebetween the authorities
and those detained. Oversight of what happens in prisons is necessary to ensure that fundamental
rights are protected and the rule of law is upheld. It is often challenging to obtaininformation about
prison conditions, especially when those conditions are in another Member State. Prison inspection
and monitoring bodies can play a crucial role in addressing this information deficit. Generally, their
role is to visit prisons, write reports on their findings and issue recommendations to the prison
authorities concerning suggested improvements. Such bodies exist in all Member States and the
United Kingdom, and they therefore have a potentially significant role in EAW decision-making
concerning detention conditions. This role raises several questions. Most fundamentally, we need to
know what kinds of prison inspectionand monitoring bodies exist withinthe European Union (EU),
what their functions are, what powers theypossess and what kinds of information they provide. The
article argues that,with a new and potentially important rolefor prison oversight bodies emerging in
the Area of Freedom,Security and Justice, it is essential to understand the kinds of bodies whichwill
be called upon for information. Executing judicial authorities need good information about bodies
which can provide useful, and perhaps decisive, informationin consequential decisions. This article
seeks to fill the gapin knowledge about prison oversight bodies in the EU.Drawing on the first EU-
wide survey of prison oversight bodies, the article provides an overview of prison inspection and
monitoring structures in the EU. It then examines the powers which such bodies have, finding
considerable variability across states. The article focuses attention on the types of reports these
bodies produce,noting that it is through reports thatsuch bodies are likely to have the most influence
in EAW cases. The article proceeds to explore examples where national judicial authorities have
already used such reports in their EAW judgments. The increased understanding on how prison
inspectionand monitoring bodies operatein Member States offered by thisstudy will be of benefit to
al Aranyosi and Robert Ca
˘lda
˘raru v Generalstaatanwaltschaft Bremen,
ECLI:EU:C:2016:198.
3. Case C-220/18 PPU, ECLI:EU:C:2018:589.
4. Case C-128/18.
Aizpurua and Rogan 205
To continue reading
Request your trial