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

text of the preamble does not amount to actually granting States the option of
introducing a human rights exception in domestic laws. 732
The absence of a human rights clause coupled with its statement in the preamble
conveys the idea that the standard of protection of human rights across the European
Union is satisfactory - the same basis that in any case allowed for the assumption of
mutual trust between Member States. Nonetheless, this is not always the case. Alegre
and Leaf point out in this regard that there is no mechanism for monitoring or ensuring
that ECHR rights are respected and enforced across the EU. 733 Additionally, many
Member States have at times in fact struggled with meeting the Convention’s
standard. 734 The CJEU has recently clearly acknowledged so in case N.S. noting that the
ratification of the ECHR by a Member State “…cannot result in the application of a
conclusive presumption that that State observes those conventions.” 735 Moreover, the
Commission itself has voiced concerns on the relationship between the EAW and human
rights. This was noted recently in the last implementing report:
“From the issues raised in relation to the operation of the EAW it would seem that,
despite the fact that the law and criminal procedures of all Member States are subject to
the standards of the European Court of Human Rights, there are often some doubts
human rights exception as a mandatory ground for refusal, see page 9; in relation to Italy, who
introduced a human rights exception as an optional ground for refusal see page 16.
732 It will be interesting to see if in the future a case concerning the introduction of these human
rights provisions into national legal orders reaches the CJEU. This is so as the Court often refers
to the preamble of legislation for guidance in its teleological reasoning. In doing so it requires
that the object, scheme and purpose of the legislation be taken into account when interpreting
specific provisions. In West, for example, an EAW related case, the CJEU commented on recitals
5 and 7 of the preamble of the Framework Decision holding that: “(...) as is clear from recitals 5
and 7 in the preamble to the Framework Decision, the purpose of the Framework Decision is to
replace the multilateral system of extradition between Member States with a system of surrender,
as between judicial authorities, of convicted persons or suspects for the purpose of enforcing
judgments or of criminal proceedings, that system of surrender being based on the principle of
mutual recognition (…)”; Case C-192/12 PPU Proceedings concerning the execution of a
European arrest warrant issued in respect of Melvin West, not yet published, 54.
733 S. Alegre and M. Leaf, European Arrest Warrant – a solution ahead of its time (London:
Justice, 2003) 14.
734 P. Garlick, “The European Arrest Warrant and the ECHR”, supra note 726, 177.
735 Joined Cases C-411/10 and C-493/10 N.S. v Secretary of State, Judgment of the Court of 21
December 2011, not yet published, para 103. The case concerns the transfer of asylum seekers
from the UK back to Greece (their point of entrance). The Court further stated that the
assumption that asylum sekeers will be treated in a way which complies with fundamental rights
must be rebutable, hence allowing in particular circunstances the reassesment of the conditions
according to which, in this case asylum seekers, will be treated in the State where they would be
returned to (see para 104-107). Hence, the Court found that the transfer of an asylum seeker to
another Member State should not take place if the there are substantial grounds that the asylum
seeker would face real risk of being suject to inhuman or degrading treatment which the Court
found to be the case in this articular dispute.
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