Piecing Together Building Blocks: Untangling Diverging Case Law of the Two European Courts on Extradition and Surrender

Abstract

The protection of fundamental rights in surrender and extradition cases is a complex issue. Both the ECtHR and the CJEU created a line of case law which addresses the so-called fundamental rights exception, a test which allows the executing or requested State to decide whether surrender or extradition should be refused or not executed due to (a risk of) a fundamental rights violation. In this contribution, it is argued that the differences between these lines of case law lead to a higher level of protection of fundamental rights being provided by the ECtHR in cases of surrender and extradition. Through an assessment of substantive and procedural aspects of the fundamental rights exception, referred to as “building blocks”, these differences and their implications for fundamental rights protection are discussed. It is also explained that these differences originate from the different constitutional underpinnings of the two Courts. Where the CJEU applies a shared model of responsibility for fundamental rights protection, the ECtHR applies an individual model of fundamental rights protection. Additionally, the principle of equivalent protection is discussed, and it is demonstrated that this principle does not alleviate the concern of differing levels of protection between the Courts. Finally, in light of the EU Treaties, it is argued that the CJEU should adopt some of the approach of the ECtHR, with the aim of achieving a common approach to fundamental rights protection in surrender and extradition cases.