.svg)
The following text focuses on the European Arrest Warrant (EAW), which establishes both mandatory and optional reasons for the refusal to surrender a person to another country. The mandatory grounds for refusal include pardon, acquittal, minority, prescription, and immunity, while the optional grounds include lis pendens, nationality or residence with family or economic ties, among others. Furthermore, although not considered explicit grounds, the CJEU has recognized the possibility of invoking the risk of inhuman and degrading treatment or the violation of fundamental rights. It is essential to know these grounds for refusal to ensure respect for fundamental rights in the European context.
According to the European Court of Justice, the list of grounds for refusal is exhaustive and subject to strict interpretation (paragraph 68 of the CJEU Grand Chamber ruling of January 31, 2023). There is, therefore, a general obligation to execute (Article 1, paragraph 2), and the grounds for refusal (Articles 3 and 4 and 4bis) are expressly provided, being mandatory or optional in nature (if the grounds are present, surrender may or may not be made). The internal regulations of each member country must include the grounds for refusal, so they cannot be invented.
The mandatory grounds for refusal include pardon for the same offense (Article 48.1a)), acquittal (Article 48.1b)), non bis in idem for having been tried in a European Union or third-country (Article 48.1c), d) and 32.1 a)), minority (Article 48.1 e)) when the person cannot be considered criminally responsible for the offense, prescription (Article 32.1 b)) if the order relates to offenses over which the Spanish courts have jurisdiction (by extension or ubiquity principles) and has prescribed according to the legal system of that state, formal defects (Article 32.1 c)) when the form is incomplete and does not allow for the identification of the core elements or is manifestly incomplete, or immunity (Article 32.1 d)).
In the optional grounds for non-execution, the judicial authority can only invoke those grounds transposed into its legislation, such as lis pendens (identity of proceedings) taking into account circumstances such as the location of the victims, evidence, nationality, or in cases of residence with family or economic ties (KozlowskiC 66/08 case of July 17, 2008, Wolzenburg C 123/08 case of October 6, 2009, Lopes da Silva C42/11 case of September 5, 2011), or in cases of extraterritoriality when the offense was committed abroad and the Spanish State does not allow cases to be tried outside its territory (Article 48.2 Law 23/14). A surrender procedure may also be suspended if there has been a prior denial of criminal action or acquittal, as well as in the case of a person who is in Spain and has a pending criminal proceeding there. In the latter case, the judge must analyze the circumstances that are present (Article 56). If the person is deprived of liberty in Spain, surrender will not normally be made. If the person is in liberty the decision will be taken having into account many circumstances (imminent oral trial, etc.).
There are non-explicit causes that the CJEU recognizes, but they are not considered as grounds for refusal in the EU regulation. These grounds for refusal may be invoked when the requested person would face a real risk of inhuman or degrading treatment (prohibition of torture and inhuman or degrading treatment) in the requested country (CJEU, Grand Chamber, ruling of 6 April 2016, Case C-404/15 and Robert Caldadaru C619/15 PPU and CJEU, Grand Chamber, 15 October 2019, Case Dorobantu), or, exceptionally, would face a violation of fundamental rights in the State issuing the Charter of Fundamental Rights of the European Union (CJEU, Grand Chamber, ruling of 31 January 2023). Although this circumstance is not included in national transposition law, it may be invoked (Article 1.3 of Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender procedures between Member States). It must be evaluated whether there is a real risk of violation of fundamental rights in the light of the overall situation in the Member State and whether there is a specific and precise real risk in the person sought. The defense must provide evidence, and the authority may request additional information (CJEU, ruling of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU).
Finally, in the event of failure to comply with decision deadlines (Art. 17 of the Framework Directive), the court will still have the obligation to rule, which does not entail refusal. However, if the person is in pre-trial detention, the established deadlines should not be excessively exceeded (Art. 12 FD and Art. 6 ECHR) and should, in that case, be released. A different issue arises in cases of failure to comply with surrender deadlines (Art. 23 of the Framework Directive): a new surrender deadline must be set, and in the meantime, the person will be held in custody or released depending on the circumstances of the case. If the deadline is not extended, the person must be released.
The European Arrest Warrant (EAW) provides both mandatory and optional grounds for the refusal to surrender a person to another country. The mandatory grounds include pardon, acquittal, minority, prescription, formal defects, and immunity, while the optional grounds include lis pendens, nationality or residence with family or economic ties. It is essential to understand these grounds to ensure respect for fundamental rights in the European context. Additionally, there are non-explicit grounds recognized by the CJEU, such as the risk of inhuman and degrading treatment or the violation of fundamental rights, which may be invoked in certain circumstances. Failure to comply with decision and surrender deadlines must also be taken into account. Overall, the EAW aims to balance the need for effective cross-border criminal justice cooperation while safeguarding fundamental rights.
.svg)
