The Project
Effective and coherent application of mutual recognition instruments in cases where detention conditions are an issue.
Background
Within the European Union, the traditional extradition procedure has been replaced by the European Arrest Warrant (EAW, FD 2002/584/JHA), which makes it considerably easier and faster to hand suspected and already convicted offenders over to another Member State. Poor prison conditions in the destination country, however, have often proved an obstacle to cooperation. According to the case law of the European Court of Justice, a surrender is ruled out where (1) there are systemic deficiencies in detention conditions in the requesting State and (2) the person concerned would face a real risk of inhuman or degrading treatment there (CJEU, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198).
This two-step test causes considerable difficulties in practice. It not only delays the surrender procedure — and so prolongs detention — but is also applied inconsistently across the Member States. As a result, the person sought is either wrongly surrendered or a surrender is unlawfully refused. At the same time, other cooperation instruments that could serve as alternatives to the European Arrest Warrant have so far received little consideration. These include the transfer of criminal proceedings under Regulation (EU) 2024/3011, the enforcement of sentences under FD 2008/909/JHA, and cross-border measures to avoid detention such as the European Supervision Order under FD 2009/829/JHA.
Objectives
The project aims at an effective and coherent application of the relevant EU instruments, enabling effective cross-border criminal prosecution and preventing impunity of offenders, while ensuring that they are not subjected to inhuman or degrading detention conditions.
Effective and coherent application means…
- using clear and uniform standards throughout the EU with regard to detention conditions;
- considering, on the issuing side, instruments that do not involve deprivation of liberty — the European Supervision Order (FD 2009/829/JHA), the recognition and enforcement of probation decisions and alternative sanctions (FD 2008/947/JHA) and the transfer of proceedings (Regulation (EU) 2024/3011);
- considering, on the executing side, the transfer of proceedings, FD 2008/909/JHA or the institution of national proceedings whenever judicial cooperation does not yield the desired result on account of bad detention conditions — in order to prevent, as much as possible, a risk of impunity.
Methodology
Through transnational cooperation, uniform standards are to be developed and alternatives to deprivation of liberty examined. The research consortium combines academic expertise with judicial practice. The management team — composed of the University of Bonn and the District Court of Amsterdam — drafts the European legal analysis, coordinates the research and compiles the final report. The national researchers in Germany, the Netherlands, France and Poland complete comparative country reports and together develop the recommendations.
To ensure that the outputs are useful EU-wide and do not merely reflect the perspective of the participating Member States, the project sets up a Sounding Board of 23 practitioners from the non-participating Member States.
Expected outputs
- A final report containing:
- an examination of the CPT reports and of the case law of the ECtHR and the CJEU, identifying the human rights standards that govern detention conditions and how they affect cooperation in criminal matters;
- national reports giving an up-to-date picture of the situation and of any obstacles in the participating Member States;
- concrete recommendations and practical guidelines.
- Academic publications and contributions to expert journals
- A European symposium bringing together academics, judges and prosecutors