- The provisions of the Charter of Fundamental Rights of the European Union, including Articles 6, 48 and 52 thereof, form part of the primary law of the Union. Fundamental rights, as guaranteed by the European Convention for the Protection of Fundamental Rights and Freedoms, including the rights set out in Articles 5(1), (3) and (4) and 6(2) and (3) of the Convention, constitute general principles of Union law.
- The deprivation of liberty and forcible surrender of the requested person that the European arrest warrant procedure entails constitutes an interference with that person’s right to liberty for the purposes of Article 5 of the Convention and Article 6 of the Charter. That interference will normally be justified as ‘necessary in a democratic society’ by virtue of Article 5(1)(f) of the Convention. Nevertheless, detention under that provision must not be arbitrary. To avoid being arbitrary, such detention must be carried out in good faith; it must be closely connected to the ground of detention relied on by the executing judicial authority; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued. Article 6 of the Charter falls to be construed in the same way as Article 5(1) of the Convention.
- The competent judicial authority of the Member State executing a European arrest warrant can refuse the request for surrender without being in breach of the obligations authorised by the founding Treaties and the other provisions of European Union law, where it is shown that the human rights of the person whose surrender is requested have been infringed, or will be infringed, as part of or following the surrender process. However, such a refusal will be competent only in exceptional circumstances. In cases involving Articles 5 and 6 of the Convention and/or Articles 6, 47 and 48 of the Charter, the infringement in question must be such as fundamentally to destroy the fairness of the process. The person alleging infringement must persuade the decision-maker that his objections are substantially well founded. Past infringements that are capable of remedy will not found such an objection.
- The competent judicial authority of the State executing a European arrest warrant cannot refuse the request for surrender on the ground that the State issuing the European arrest warrant has failed to transpose or fully to transpose or has incorrectly transposed the Framework Decision without being in breach of the obligations authorised by the founding Treaties and the other provisions of European Union law.