The evolution of European Union criminal law (1957-2012)

To be sure, concerns with fundamental rights in general, although not enumerated as
grounds for refusal to surrender, are mentioned in the preamble of the Framework
Decision:
“(12) This Framework Decision respects fundamental rights and observes the principles
recognised by Article 6 of the Treaty on European Union and reflected in the Charter of
Fundamental Rights of the European Union, in particular chapter VI thereof. Nothing in
this Framework Decision shall be interpreted as prohibiting refusal to surrender a
person for whom a European arrest warrant has been issued when there are reasons to
believe, on the basis of objective elements, that the said arrest warrant has been issued
for the purpose of prosecuting or punishing a person on the grounds of his sex, race,
religion, ethnic origin, nationality, language, political opinions or sexual orientation, or
that that person’s position may be prejudiced for any of those reasons (...)
(13) No person should be removed, expelled or extradited to a State where there is a
serious risk that he or she would be subjected to the death penalty, torture or other
inhuman or degrading treatment or punishment.” 725
Furthermore, Article 11 of the Framework Decision details the rights of the requested
person: the latter shall be informed of the EAW and its contents and of the possibility of
consenting to surrender; it shall furthermore have the right to be assisted by a legal
counsel and by an interpreter in accordance with the law of the executing Member State.
These elements, according to Morgan, should be a reassurance of the satisfactory level
of protection offered by the Framework Decision and EU law as there are at least three
categories of safeguards for a person subject to a European Arrest Warrant: the fair trial
guarantees enshrined in the ECHR and other international instruments, additional
measures by the Commission such as the proposal for a Framework Decision on certain
procedural rights (whose negotiations failed – see chapter 3) and finally the safeguards
built in the Framework Decision on the EAW itself, such as the reference to
725 Intend (12) and (13), Preamble of the Framework Decision 2002/584/JHA, note 383. This
enunciation largely mirrors the European Court of Human Rights (EcHR) case law, namely its
fundamental decision in 1989 prohibiting extradition when the person to be extradited would be
likely to suffer inhuman or degrading treatment or torture. More significantly this prohibition
concerned extradition from the UK to the USA, regardless of the latter not being signatory of the
ECHR, Soering v. UK, No 14038/88, judgment of 7 July 1989.
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