Refusal of European Arrest Warrants Due to Fair Trial Infringements : Review of the CJEU’s Judgment in “LM” by National Courts in Europe
2021
One of the most controversially discussed and unresolved issues in extradition law, namely whether extradition can be denied
because elements of a fair trial will not be ensured in the requesting (issuing) State, gained new momentum after the CJEU’s
judgment in “LM” of 25 July 2018 (C-216/18 PPU). This judgment relates to the framework of the European Arrest Warrant – the
surrender system established in the EU in 2002. After briefly classifying the problem doctrinally and discussing the approach
taken by the ECtHR, the article explains the CJEU’s line of arguments in LM. The analysis focuses, in particular, on the necessary test phases that the executing judicial authority must carry out in order to find out possible fundamental rights breaches in
the issuing EU Member State. The article then analyses the reviews of this judgment by national courts. The follow-up decision
of the referring Irish court is compared with court decisions addressing, in detail, this specific problem of fair trial infringements in the United Kingdom, Germany, and the Netherlands. In doing so, the practical challenges that are encountered by the
national courts in applying the CJEU’s required test are also identified.
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