The ECHR Preamble vs. the European Arrest Warrant : balancing Human Rights protection and the principle of mutual trust in EU Criminal Law?

As stated in the European Convention on Human Rights Preamble, the aim of the Council of Europe is the achievement of greater unity between its members through the maintenance and realisation of Human Rights and Fundamental Freedoms. Nowadays, the European Union includes the majority of the ECHR signatories (27 of 47) and incorporates the key legal instrument of judicial cooperation in criminal matters, namely the European Arrest Warrant Framework Decision. Nevertheless, the possible effects of the EAWFD on the practice of the European Court of Human Rights remain understudied – despite the crucial need to properly balance the enforcement of the principle of mutual recognition and Human Rights protection in the European Union. Since the first attempts to approach the EAWFD, the Strasbourg Court preferred to find the applications inadmissible (Pianese, Monedero Angora, Stapleton) or to establish a very high threshold for establishing a Convention violation within this context (Pirozzi). It will be argued that the newly developing Strasbourg Court’s case-law on the EAWFD (Castano, Bivolaru/Moldovan, Alosa) could potentially mark a new step in the judicial dialogue between two European Courts. In the Castano and Bivolaru/ Moldovan rulings, the ECtHR – for the first time – found that the EU Member States had breached their obligations under Arts. 2 ( ́right to life ́) and 3 ( ́prohibition of torture ́) ECHR Received: 19 October 2021 | Accepted: 22 April 2022 | Published: 30 May 2022


Introduction
Art. 31 «General rule of interpretation» of the Vienna Convention on the Law of Treaties prominently proclaims that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context. Hence, the text of the legal act including its preamble and annexes is the starting point for determining the object and purpose of treaty drafting and implementation. 1 By underlining the aims of the treaty, the preambles could be of both contextual and teleological significance, 2 as it has been demonstrated in the early decisions of the European Commission of Human Rights. 3 In Austria v. Italy, the analysis of the European Convention on Human Rights (Convention, ECHR) Preamble allowed 1 Vienna Convention on the Law of Treaties adopted on 23 May 1969May , U.N.T.S. 331, 1155May (1969 in the case before it to be «manifestly deficient». 8 Hence, the practice of the Strasbourg Court on the European Arrest Warrant always remained comparably scarce, presumably demonstrating the lack of intention to undermine the interpretative authority of the Court of Justice of the European Union (Luxembourg Court, CJEU). Since the first attempts to approach the EAWFD, the Strasbourg Court preferred to find the applications inadmissible (Monedero Angora, 9 Stapleton, 10 Pianese). 11 The new challenges for the development of the judicial dialogue between the two European Courts in the «mutual trust» area were brought by the CJEU's Opinion 2/13 precluding the EU from the accession to the European Convention 12with the corresponding developments in the ECtHR's Bosphorus doctrine (Avotins). 13 The Avotins case demonstrated the «viability» of the presumption of equivalent protection and the Strasbourg Court's intention to retain a very high threshold for the rebuttal. 14  (Aranyosi/Caldararu), 15 this statement gave rise to discussion on the further limitation of the scope of the Strasbourg Court's review in this area, 16 and enhancing the risk of competition with the CJEU exercising its jurisdiction in the form of preliminary rulings. 17 The aim of this paper is to shed light on the way these premises influenced the development of the Strasbourg Court's jurisprudence with the European Arrest Warrant element, given the spirit and premises of the European Convention Preamble. The main argument presented is that the newly developing ECtHR case-law on the EAWFD (Castano  Bivolaru/Moldovan) 19 could potentially mark a new step in the judicial dialogue between two European Courts. In the Romeo Castano ruling (9 July 2019), the ECtHR -for the first time -found unanimously that Belgium had breached its obligations under Art. 2 ECHR («right to life», procedural limb). The Bivolaru/Moldovan judgment continued and nuanced the Castano approach, which allowed a violation of Art. 3 («Prohibition of torture») of the European Convention within the European Arrest Warrant context. By adopting this approach, the European Court of Human Rights developed a doctrine of positive obligations -proposing an interpretation of Arts. 2 and 3 ECHR which is binding for the European Union Convention signatories due to the res interpretata legal force of the ECtHR´s judgments, 20 hence potentially limiting their discretion in the European Arrest Warrant matters and questioning the rationales of the subsidiarity principle incorporation in the amended Convention Preamble (Protocol No. 15).
To illustrate these developments, the earlier Strasbourg case-law the European Arrest Warrant is analysed in view of its origins, namely the strong impact of the Soering jurisprudence. This paper then probes the reasoning adopted by the European Court of Human Rights in the Castano. The concluding part of the paper contains the author's final remarks on the deriving challenges for the legal systems of the (non-) EU Convention signatories. The author does not, in this paper, pretend to investigate fully the simultaneously developing body of CJEU with the European Arrest Warrant component, but rather focuses on the possible impact of the EAW Framework Decision and pertinent CJEU practice on the ECtHR's «subsidiarity» and «margin of appreciation» doctrines -to demonstrate if and how this EU Law instrument may be reflected within the future jurisprudence of the Strasbourg Court. become evident from Rec. 10 of the EAW FD Preamble which states that the European Arrest Warrant mechanism is based on a high level of confidence between the EU Member States, stemming from the «mutual trust» in each other's compliance with common international obligations. 26 For these reasons, the compulsory/optional refusal grounds are limited to those listed in Arts. 3, 4 and 4(a) of the Framework Decision; these provisions do not contain any provision on non-execution on the basis of a breach of the requested EU Individual's Human Rights in the issuing EU Member State (except for in absentia trials). 27 In light of these considerations, it comes as no surprise that the CJEU´s EAW case-law with the Human Rights component remained rather scarce for quite a while after the Framework Decision adoption due to the lack of political will to invade into this sensitive area -closely intertwined with the application of national Criminal Law. 28 In the seminal Advocaten voor de Wereld case, the CJEU prominently confirmed the validity of the instrument in light of the principles of legality and non-discrimination. The judges stated that the European Arrest Warrant system did not seek to harmonise the criminal offences in question, hence aiming at preventing the double criminality check by its nature. Hence, only the law of the Warrant issuing EU Member State shall be taken into account while defining the offences and penalties in course of the Warrant execution. 29 26 Programme of measures to implement the principle of mutual recognition of decisions in criminal matters (2001), OJ C12/10. 27 The mandatory grounds for non-execution comprise amnesty, ne bis in idem, not reaching the age of criminal responsibility (Art. 3), while the grounds for optional non-execution are the lack of double criminality, prosecution pending in the executing Member State, prosecution for the same offence precluded in the executing Member State, prosecution or punishment statute-barred, final judgment in a third State, the executing Member State undertakes the execution of the sentence, extraterritoriality (Art. 4), or in absentia trials (Art. 4a). 28 In this sense, see for example Samuli Miettinen, Criminal Law  Even though the Advocaten voor de Wereld statement fuelled the discussion on the potential inconsistency of this approach with the ECHR guarantees, 30 the Strasbourg Court seems to have «mirrored» the Luxembourg jurisprudence, finding the first EAW-related applications inadmissible -and hence avoiding a direct scrutiny of the EAW Framework Decision provisions, or the related national practices. 31 It could be seen as a predictable manoeuvre, considering the development of the presumption of equivalent protection (or the «Bosphorus» doctrine), which de facto guaranteed the CJEU's independence from the Strasbourg system interferences. In accordance with this doctrine, if the EU Member State has had no margin of discretion in the implementation of the EU Law provision in question, a rebuttable presumption of equivalent protection applies, allowing the ECtHR to exercise full judicial review only if the protection under European Law has proved to be «manifestly deficient» in the individual case. 32 Another reason for this choice could be the proportionality test developed in the famous Soering judgment. In this case, the ECtHR ruled that, firstly, the extradition could in principle violate Art. 3 («Prohibition of torture»), and, secondly, Art. 6 («Right to a fair trial») of the European Convention -if the requested person «has suffered or risks suffering a flagrant denial of a fair trial in the requesting country». 33  the (potential) violation which could take place outside the jurisdiction of the state processing the extradition request (i.e. in the territory of the requesting state) 34 -a premise which could be considered rather problematic within the «pro-free movement» European Arrest Warrant context.
For instance, the ECtHR has had the first occasion to examine a complaint relating to the EAW Framework Decision in Monedero Angora v. Spain. In this case, the Court was asked to rule on the European Arrest Warrant issued by the French judicial authorities against Monedero Angora, a Spanish national, for executing a custodial sentence (five years' imprisonment) for a drug-related offence. Firstly, the applicant relied on Art. 5 of the Convention, claiming that he had been deprived of his liberty during the procedure for surrendering him under the European Arrest Warrant. Secondly, he alleged a violation of the principle of legality (Art. 7), as well as one of the presumption of innocence and of his right to a fair trial before an independent and impartial court within a reasonable time (Art. 6 ECHR). 35 In the eyes of the ECtHR judges, the substance of the EAW Framework decision could be considered similar to one of the extradition treaties: the European Arrest Warrant serves the same purpose, having no impact on individual criminal liability, but is designed to facilitate the execution of a decision taken in respect of the convicted person.
It was underlined that -just like the extradition -the implementation of the EAW Framework decision «does not concern the determination of a criminal charge» and «the surrender of the applicant to the [competent] authorities [is] not a penalty inflicted on him for committing an offence, but a procedure intended to permit the execution of a judgment». 36 In light of these considerations, the application of Mr. Monedero Angora was declared inadmissible ratione materiae (Art. 35 ECHR), because the procedure did not concern the determination of a criminal charge within the meaning of national law provisions (Arts. 6-7 ECHR), also mentioning that Art. («Right to liberty and security») would not necessarily apply to a related hearing in the executing State. Hence, it could be stated that the ECtHR has carefully avoided discussion on the «flagrant denial of justice» test application within this context, mentioning that the execution of the European Arrest Warrant is practically automatic, with the executing authority not engaging in a new examination of the Warrant to verify its conformity with its own national law. 37 It could be submitted here that the EAW jurisprudence of both European Courts shall be seen in light of evolving legal context. Mirroring an intention «to complete the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing the efficiency and democratic legitimacy of the Union» in its Preamble, 38 the Treaty of Lisbon became one of the milestones in the history of the AFSJ development. The amended text -with its two complementary achievements of a legally binding character of the Charter of Fundamental Rights of the European Union (and in particular Arts. 47-50 CFREU) and a commitment by the EU to accede to the European Convention -had an immediate impact on the CJEU's perception of the ECHR procedural rights, resulting in a significant decrease in the number of CJEU references to the European Convention corresponding provisions. 39 Besides that, the implementation of the EAW Framework Decision proved to be not as simple as expected, due to the intention of some of the EU Member States to insert additional grounds for the Warrant refusal in national legislation, and the need to coordinate the application of the corresponding Human Rights provisions of the national Constitutions, CFREU and the ECHR within this specific context. 40 The cumulation of these factors has led to an increasing number of individual applications to the Strasbourg Court, as all EU Member States were simultaneously Convention signatories. 41 This made the post-Lisbon wave of the ECtHR´s EAW-related jurisprudence surprisingly profound, and fuelled a discussion on the need to reconsider the previously established Monedero Angora «exclusionary» approach. 42 In the subsequent Stapleton case the application concerning the European Arrest Warrant surrender following fraud charges was considered inadmissible (Arts. 5, 6, 8 and Art. 2 of Protocol No. 4 to the Convention). 43 The reasoning of the decision however is quite different from the one chosen in Monedero Angora: the Court preferred to make a sharp distinction between the European Convention signatories and third states. It was emphasised that the compliance with Art. 6 ECHR in the United Kingdom (as an ECHR signatory and not a third state) is already partly guaranteed by the Convention transposition of the Human Rights Act. 44  the EAW issuing state. 45 The subsequent Mann admissibility decision allows for the applicability of the «flagrant denial of justice» test in case of the EAW surrender between the EU-ECHR signatories (Arts. 5, 6, 13 ECHR) in a similar manner. 46 An attempt was also made by the applicant to transpose the Soering approach to the Art. 5 («Right to liberty and security») interpretation in Pianese -the application was however considered inadmissible as well -being out of time and manifestly ill-founded. 47 The issue of the detention conditions in course of the EAW execution was discussed in Ciobanu -leading to finding the violation of Arts. 3 and 5 ECHR within this context, even though the Strasbourg Court preferred to skip the extradition issue, focusing on the Art. 3 ECHR ´severity´ threshold. 48 The Ignaoua case was related to the return of Tunisians to Italy under the European Arrest Warrant where they would be at risk of being returned to Tunisia: the ECtHR skipped the analysis of Arts. 3 and 13 within this context, having stated that «the mutual trust and confidence underpinning measures of police and judicial cooperation among EU Member States» in itself supports «the Court's own general assumption» that the EU-ECHR signatories already respect their international law obligations, including ones stemming from the European Convention. 49 In E.B., the claimant tried to invoke Art. 8 ECHR («Right to respect for private and family life») as a ground for the refusal to execute the Warrant issued against a Polish citizen residing in the United Kingdom -as she was a mother of five children, four of whom were minors. However, since the case evidence demonstrated that the minors were subject to a care order by the local authorities for reasons unrelated to the EAW execution, and that the eldest child was independent, the application was considered manifestly unfounded and discontinued. 50 Finally, the Gray case concerned the scope of the positive obligation to investigate the medical negligence of a German doctor that resulted in the death of a patient in the United Kingdom -followed by the European Arrest Warrant proceedings initiated by the UK courts. The family of the deceased (two British nationals) complained, under the substantive aspect of Art. 2 ECHR («Right to life»), the shortcomings in the British healthcare system had led to their father's death, and the investigations conducted both in the United Kingdom and in Germany had not complied with the procedural requirements inherent in Art. 2 («an obligation to investigate») of the Convention. 51 The Strasbourg Court rejected the complaint relating to Art. 2 ECHR, while -de facto -incidentally (1) recognising the existence of extraterritorial Human Rights obligations 52 and (2) shifting the issue of participation in criminal proceedings to individuals other than the accused (such as the family members) within this specific context. 53

Romeo Castano: questioning the spirit of the amended ECHR Preamble?
Simultaneously, the so-called «Interlaken process» was initiated within the Strasbourg system of Human Rights protection, in order to address the issue of the growing number of individual applications to the European Court of Human Rights, 54 which -as mentioned above -originated from the cases appearing in the EU «mutual trust» area as well. The subsidiarity concept was seen as one of the key tools to address these challenges,  the cost of protecting Fundamental Rights. 60 As this strong statement -predictably -attracted a lot of critique in academia and among practitioners, the CJEU was forced to respond to the concerns revolving around the Fundamental Rights-related grounds for non-execution of the European Arrest Warrant 61 in the joined cases of Aranyosi and Caldararu 62 -rather soon after the CJEU Opinion 2/13 release. In this judgment, the CJEU ruled that the mutual trust principle may be -in principle -reviewable both when executing the Warrant for prosecution or custodial sentence purposes and, as a result, an execution of an EAW may be postponed/abandoned in an exceptional case -thus recognising that the «mutual trust (in the EU) must not be confused with blind trust». 63 In both cases, the CJEU was asked to clarify whether the national judicial authority may or shall refuse tout court execution where there is solid evidence that detention conditions in the issuing EU Member State are incompatible with fundamental rights, in particular with Art. 4 («prohibition of inhuman or degrading treatment») in conjunction with Arts. 6 («right to liberty and security») and 48 («presumption of innocence and rights of defence») CFREU. The CJEU heavily relied on the abovementioned EU Charter provisions to conclude that if an executing judicial authority has evidence which demonstrates that there is a real risk that detention conditions 60 CJEU Opinion of 18 December 2014, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Case Opinion 2/13 (Opinion 2/13), ECLI:EU:C:2014:2454, paras. 166-172, 191-195. 61 In this sense, see for example Alex Tinsley in the issuing Member State infringe Art. 4 of the Charter, the executing judicial authority must assess that risk using a two-stage test. 64 Firstly, the executing judicial authority must assess whether general detention circumstances in the issuing Member State constitute a real risk of an Art. 4 CFREU violation; 65 such an assessment in itself is not sufficient to render surrender impermissible. 66 Several sources can be used, such as the decisions of the ECtHR, the decisions of courts of the issuing Member State or reports drawn up by the organs of the Council of Europe or the UN. 67 Secondly, the executing judicial authority judges whether there are substantial grounds for believing that the requested person in question will be subjected to a real risk of Art. 4 CFREU violations. 68 If, after its two-stage assessment, the executing judicial authority finds that there is a real risk of an Art. 4 CFREU violation for the requested person once surrendered, the executing judicial authority is in principle enabled to decide whether or not to postpone/terminate the EAW procedure. 69 It could be said that the Aranyosi and Căldăraru judgment is one of «reconciliation» between various competing values and interests as well as a step towards thawing the relationship between the CJEU and the ECtHR, following Opinion 2/13, however aimed at strengthening the EU Charter position within the EU legal order architecture. The judgment presumably revealed the intention of the CJEU to bring its case-law on Art. 4 of the EU Charter in line with the ECtHR's jurisprudence on Art. 3 ECHR in accordance with Art. 52(3) of the Charter. It could be stated however that the EU Court of Justice also nuanced the meaning of mutual trust on the basis of Arts. 4, 6 and 48 CFREU, as it had done before in EU Asylum Law (N.S. line of reasoning) 70 and opted for an alternative interpretation in which Fundamental Rights violations (can) constitute an exception to this trust. 71 Moreover, the parallel response to Opinion 2/13 «mutual trust» concerns was given by the European Court of Human Rights in the Avotins case -which originated in an application by a Latvian national complaining about the violation of Art. 6 of the European Convention on Human Which, allegedly occurred in the course of proceedings for the declaration of enforceability of a Cypriot judicial decision before Latvian courts. 72 The Avotins judgment reiterated the Bosphorus orthodoxy, mentioning that the two criteria shall still be considered for the possibility of the Strasbourg intervention: (1) the «absence of any margin of manoeuvre» on the part of the domestic authorities implementing the EU Law obligation, and (2) the «deployment of the full potential of the supervisory mechanism» provided for under EU Law. 73 While reaffirming its commitment to the needs of European cooperation, the European Court of Human Rights expressed its general concern about the compatibility of mutual recognition mechanisms established under EU Law with the European Convention, insofar as they are to be «applied automatically and mechanically». However, the specific circumstances -and in particular the applicant's inactivity -defined the conclusion that the protection of Human Rights by the Latvian judges was not manifestly incomplete. 75 Consequently, the Bosphorus presumption was not rebutted and, therefore, no violation of Art. 6 ECHR was established against the defendant State. 76 This statement -presumably -reflects the spirit of the ECHR Preamble as amended by Protocol No. 15 text, limiting the scope of the Strasbourg Court's review in respect to the EU Member States ('subsidiarity'). This may be justified since the EU ensures, independently, at the judicial level, the protection of the rights guaranteed by the ECHR; in general, it is reasonable to assume that fundamental rights, including the right to a fair trial guaranteed by Art. 6 of the European Convention within the EU-specific «mutual trust» legal context, are respected. 77 It could be submitted that these premises created a background for the Strasbourg Court´s intervention in the most sensitive area indicated by Opinion 2/13 and the «cornerstone» of the EU's judicial cooperation in criminal matters, namely the European Arrest Warrant Framework Decision. In Pirozzi, the claimant raised an issue of the standard of protection to be afforded by Art. 6 ECHR in course of the EAW execution in case of the in absentia trials. 78 The Strasbourg Court took this opportunity to respond to the concerns expressed by Opinion 2/13, and -at least partly -to the questions raised by the post-Monedero Angora case-law (such as Stapleton, Mann or Pianese), by developing further the proportionality test for assessing violations within this context. The Pirozzi case concerned the applicant's detention by the Belgian authorities and his surrender to 75 ECtHR Judgement of 23 May 2016, Case Avotiņš v. Latvia, application no. 17502/07, hudoc.int, paras. 124-125. 76 ECtHR Judgement of 23 May 2016, Case Avotiņš v. Latvia, application no. 17502/07, hudoc.int, paras. 126-127. 77 In this sense, see for example Dissenting Opinion of Judge Andras Sajò, ECtHR Judgement of 23 May 2016, Case Avotiņš v. Latvia, application no. 17502/07, hudoc.int, para. 7: ´It is indeed reasonable to assume that where States transfer their sovereignty to an international organisation that recognises the fundamental rights of the Convention. As provided for in the directly applicable Charter of Fundamental Rights (Art. 52(3)), the rights will be protected´. 78 ECtHR Judgment of 17 April 2018, Case Pirozzi v Bélgium, application no. 21055/11, hudoc.int. the Italian authorities under a European Arrest Warrant with a view to enforcing a conviction for drug-related crimes. 79 The applicant complained that the Belgian authorities had failed to review the EAW legality, although it had been based on a conviction resulting from a trial during which he had not been present, even though being notified properly of the trial in question, and his position was represented by defence counsel. The Strasbourg Court recognised that arrest for the purposes of extradition, such as the EAW proceedings, is in principle covered by Art. 5, 80 the judges seemed to have given weight to the abovementioned arguments, hence finding no violation of Arts. 5 and 6 of the European Convention. 81 Having referred to the Soering lines of reasoning, the ECtHR has also held that the surrender of the plaintiff under the case facts cannot be considered a «flagrant denial of justice» -and the EAW execution by the Belgian courts had not been manifestly deficient -at least within the meaning of the Bosphorus presumption of equivalent protection. 82 In so doing, the Court has confirmed that -in principle -the domestic courts are enabled to review the risk of Fundamental Rights violations in the requesting State in course of the EAW Framework Decision implementation. 83 Finally, in the prominent Castaño case, 84 the Strasbourg Court was requested to check compliance of the refusal to enforce a European Arrest Warrant with the procedural obligations stemming from Arts. 2 («Right to life») and 6 («Right to a fair trial») ECHR. The application originated  v Bélgium, application no. 21055/11, hudoc.int, paras. 57-72. 83 In this sense, see for instance Johan Callewaert, "Do we still need Article 6(2) TEU? Considerations on the absence of EU accession to the ECHR and its consequences, Moreover, relying on Art. 6 of the Convention, the applicants also see in this situation a problem of access to the Belgian courts. All other members of the commando unit were already sentenced in Spain in 2007, while N.J.E. had fled to Mexico and then moved to Belgium. Referring to a report by the European Committee for the Prevention of Torture (CPT) concerning the latter's periodic visit to Spain, the Belgian courts refused the surrender as there were serious grounds for believing that the execution of the European Arrest Warrant would have the effect of infringing the ap-plicant´s Fundamental Rights under Art. 6 TEU, presumably amounting to the breach of Art. 3 («The prohibition of torture») ECHR. 85 The Strasbourg Court prominently preferred to discuss the case facts from the perspective of Art. 2 («Right to life»), namely that the Belgian authorities' refusal to execute the EAW made impossible the prosecution of their father's alleged murderer. 86 It was suggested to consider Castano in light of the recent Güzelyurtlu judgment concerning criminal investigations with a transnational dimension, entailing an obligation on States to cooperate effectively. 87 The factors which arguably convinced the judges to choose this strategy could be the similarities in the factual 85 ECtHR Judgement of 9 July 2019, Case Romeo Castaño v. Belgium,application no. 8351/17,hudoc.int, Mattia Pinto, "Romeo Castaño: ‹meticulously elaborated interpretations› for the sake of prosecution, " Strasbourgobservers, accessed September 20, 2021, https://strasbourgobservers.com/2019/09/10/romeo-castano-meticulously-elaborated-interpretations-for-thesake -of-prosecution. 87 ECtHR Judgement of 29 January 2019, Case Güzelyurtlu and others v. Cyprus and Turkey,application no. 36925/07,hudoc.int, circumstances of these cases: in Güzelyurtlu, the applicants were the relatives of the deceased victims, who complained that both the Cypriot and Turkish authorities have failed to co-operate and conduct an effective investigation into the killing of their family members. 88 Moreover, the ECtHR could be willing to avoid the discussion on the potential applicability of the Soering/Bosphorus formulae within the European Arrest Warrant context (which seemed possible in light of the Avotins/Pirozzi outcomes).
The reasoning of the Castano judgment hence presents a special interest: basing itself on Güzelyurtlu, the Court developed its case-law on the scope of a State's procedural obligation to cooperate with another State investigating a crime committed within the latter's jurisdiction -within the context of the European Arrest Warrant enforcement. 89 At the same time, the Court de facto transposed the Aranayosi/Caldararu benchmarks developed in the EU's legal order -which can be considered a further step towards a symmetry between the interpretation of the EU Charter and the ECHR rights. 90 The Strasbourg judges emphasised that Castano continues to follow not only the Güzelyurtlu but the Pirozzi line of reasoning as well -which however shall be interpreted in light of the parallel developments in EU Law, and in particular the CJEU´s jurisprudence. Direct reference was made to the Aranayosi/Caldararu judgment in the «Relevant Domestic Law And Practice» section, in order to shed light on the assessment test which the executing EU Member State had to undertake where it had evidence pointing to systemic or generalised deficiencies with regard to the conditions of detention in prisons in the EAW issuing State, in light of Art. 4 CFREU («Prohibition of torture and inhuman or degrading treatment or punishment») -as interpreted by the EU Court of Justice. 91 Even 88 ECtHR Judgement of 29 January 2019, Case Güzelyurtlu and others v. Cyprus and Turkey,application no. 36925/07,hudoc.int, Matteo Zamboni, "Romeo Castaño v Belgium and the Duty to Cooperate under the ECHR, " Ejiltalk, accessed September 20, 2021, https://www.ejiltalk.org/romeo-castano-v-belgiumand-the-duty-to-cooperate-under-the-echr though the children of Colonel Romeo focused primarily on the violations of the right to a fair trial in their application (Art. 6), the Strasbourg Court prominently switched the focus on the infringement of Art. 2 («The right to life») of the European Convention. 92 Importantly, the judges made a statement concerning the ratione loci objection raised by the Belgian Government: a jurisdictional link with Belgium was established, due to «the context of the mutual undertakings given by the two States in the sphere of cooperation in criminal matters, in this instance under the European arrest warrant scheme… the Belgian authorities were subsequently informed of the Spanish authorities' intention to institute criminal proceedings against N.J.E., and were requested to arrest and surrender her». 93 In view of these considerations, the Strasbourg Court proposed to apply the two-stage proportionality test in order to assess if the Belgian authorities responded properly to the Spanish request for the surrender on the basis of the EAW Framework Decision, and whether the refusal to cooperate could be considered legitimate. 94 It will be submitted that the judges -predictably -made all effort to avoid possible conflict and the clash of jurisdictions with the EU Court of Justice, referring to the Aranyosi/ Căldăraru criteria of the assessment for the legality of the EAW refusals. 95 Considering these criteria, the Strasbourg judges assessed if the refusal of the Belgian authorities to extradite N.J.E. was compatible with obligations 92 Erin Lovall, "European Court of Human Rights Released Judgment in Romeo Castaño v. Belgium Case Holding Belgium Failed to Uphold Obligations Under Article 2 of the European Convention on Human Rights, " ASIL, accessed September 20, 2021, https://www. asil.org/ILIB/european-court-human-rights-released-judgment-romeo-casta%C3%B1ov-belgium-case-holding-belgium. 93 ECtHR Judgement of 9 July 2019, Case Romeo Castaño v. Belgium,application no. 8351/17,hudoc.int,para. 41. In this sense, see for example Hélène Tigroudja, "Procedural Developments at International Human Rights Courts and Bodies, " The Law & Practice of International Courts and Tribunals 19, no. 2 (2020): 326. 94 ECtHR Judgement of 9 July 2019, Case Romeo Castaño v. Belgium,application no. 8351/17,hudoc.int,para. 82. 95 In this sense, see for instance Luc von Danwitz, "In Rights We Trust: The ECtHR's judgment in Romeo Castaño v. Belgium and the relationship between the ECHR and the principle of mutual trust in EU law, " Verfassungsblog, accessed 20 September, 2021, https://verfassungsblog.de/in-rights-we-trust; Callewaert, Johan, "Judgment of the ECHR in Romeo Castaño v. Belgium, " Johan Callewaert, accessed September 20, 2021, https://johan-callewaert.eu/ de/judgment-of-the-echr-in-romeo-castano-v-belgium. stemming from the procedural limb of Art. 2 of the European Convention. Firstly, the ECtHR examined whether the European Arrest Warrant request issued by Spanish courts was granted a proper response. 96 As regards the first question, the Court found that the Belgian authorities provided their Spanish counterparts with a sufficient legal reasoningon the basis of the implementing national legislation, i.e. section 4(5) of the Belgian European Arrest Warrant Act and the observations previously made by the Human Rights Committee (HRC) in 2015 which demonstrated the potential risk that N.J.E. would be detained in Spain in conditions contrary to Art. 3 («The prohibition of torture») ECHR. The Belgian authorities' conduct was also found compliant with the requirements of the previous EAW jurisprudence (Pirozzi, Avotiņš) which underlined that the EU's mutual recognition mechanism should not be applied automatically to the detriment of fundamental rights. 97 Secondly, the legitimacy of the grounds for such a refusal -in particular a sufficient factual basis in the case at hand -was assessed. 98 The Court stated that the Belgian courts based their decisions mainly on international reports and on the context of Spain's contemporary political history, considering the abovementioned HRC documentation. However, in the eyes of the ECtHR, the Belgian authorities failed to conduct a detailed and updated examination of the situation prevailing in 2016 and hence did not seek to identify a real and individualised risk of a detainee's Convention rights or any structural shortcomings with regard to conditions of detention in Spain. Moreover, it was emphasized that the N.J.E. EAW was handled differently in comparison with the previous Warrants issued by Spain in respect of suspected members of ETA: they had been executed by Belgium successfully and without identifying any risk of a violation of the Fundamental Rights of the persons being surrendered. 99  these concerns, the Strasbourg judges found it possible to conclude that the conduct of the Belgian authorities handling the European Arrest Warrant issued by Spain for the surrender of N.J.E. was contrary to the positive obligations stemming from the procedural limb of Art. 2 («The Right to Life») of the European Convention. 100 Even though the judgment is unanimous, the Concurring Opinion of Judges Spano and Pavli presumably sheds light on the underpinning rationales of the choice made by the Strasbourg Court. Two judges underlined the pressing nature of the 27 versus 47 discourse, and the deriving need to harmonise the minimum standard of protection guaranteed by the Convention with one proposed by the Charter of Fundamental Rights of the European Union, in cases invloving the interpetation of the corresponding rights. 101 Despite the lack of the judges' intention to reconsider their well-established «exclusionary» approach to Art. 6 ECHR guarantees within the European Arrest Warrant context, this outcome presumably opens a possibility for extending the Castano approach to other categories of crimes covered by the EAW Framework Decision (Art. 2), such as for instance participation in a criminal organisation, terrorism, trafficking in human beings, counterfeiting and piracy of products, forgery of administrative documents and trafficking therein, forgery of means of payment, rape etc. At the same time, the pre-Castano Strasbourg case-law has already demonstrated the (predictable) intention of the persons being requested in course of the European Arrest Warrant proceedings to defend their rights which are potentially affected by its execution (E.B., Mann, Ciobanu). Since the number of the EAW-related applications to the Strasbourg Court is likely to increase significantly after Castano, the floor is open for the applications related, for instance the prohibition of torture (Art. 3), right to liberty and security (Art. 5), the right to respect for private and family life (Art. 8), freedom of thought, conscience and religion (Art. 9), freedom of expression (Art. 10), freedom of assembly and association (Art. 11), the right to an effective remedy (Art. 13) etc. In case of Mr. Moldovan (charged with trafficking in human beings), the Strasbourg Court ruled that the Bosphorus presumption was applicable as the French authorities were not afforded any margin of manoeuvre acting within the strict Aranyosi/Căldăraru (Art. 4 CFREU-based) framework, and the scope of protection afforded by this two-stage test was in principle equivalent to one proposed by Art. 3 ECHR. 109 However, shortcomings were established leading to the violation of Art. 3 ECHR, as the French courts failed to request and examine additional information on the Romanian detention conditions in light of the previously formed ECtHR case-law. This was considered problematic as several early Strasbourg rulings (Stanciu, Porumb, Pop) had already showed that some of the Romanian prisons were overcrowded and that there was a real risk that the applicant would be detained in a prison cell where he would have less than 3 square meters of personal space, lack of hygiene, inadequate ventilation or lighting etc. 110 In light of these considerations, the French courts presumably failed to investigate properly a sufficiently reliable factual basis -given the personal situation of Mr. Moldovan -which demonstrated the existence of a real risk that the applicant would be exposed to inhuman and degrading treatment as a result of his detention conditions in Romania. 111 In the Bivolaru case (related to the accusations of sexual relations with a minor), the ECtHR concluded that the presumption of equivalent protection was not applicable. The Strasbourg judges emphasised that the factual circumstances posed new questions of EU Law, in particular the fact that the applicant had previously been granted asylum by Sweden prior to Romania's accession to the EU, and Romania was now seeking his surrender under the European Arrest Warrant Framework Decision. As this circumstance presumably required submitting the request for a preliminary reference to the Court of Justice of the European Union (which was not done), the full potential in the protection of the applicant's Fundamental One could hence ask the question of how the Castano judgment could influence the Aranyosi/Caldararu formula where the CJEU clarified that the list of the refusal grounds is exhaustive, and maintained this position in the subsequent judgments. Even though the references to Castano have already appeared sporadically in several CJEU acts, 118 the Luxembourg Court judges seem to avoid the profound analysis of this problematic Strasbourg judgment -the Dorobantu 119 judgment can be mentioned in this regard. However, regardless of the unclear future of the Castano formula in the EC-tHR´s/CJEU´s case-law, one could definitely state that this judgment could be seen as an attempt to coordinate the CFREU/ECHR standards of protection in the European Arrest Warrant area -in order to strengthen a link between the Convention and Union Laws, and to defend the rights of the EU individual in a more coherent and efficient manner. 120

Conclusion
In this paper, an attempt was made to shed some light on the proportionality tests being proposed by the European Court of Human Rights case-law with the European Arrest Warrant component, in light of the corresponding developments in the EU Court of Justice practice (Aranyosi/Căldăraru). The main argument presented was that the recent Castano/Bivolaru and Moldovan rulings of the Strasbourg Court seem to indicate a new step in the judicial dialogue between two European courts as they incorporated a new proportionality test in the Law of the European Convention, at least in the EAW-related lines of reasoning.
Even though the Strasbourg Court refused to reconsider the «exclusionary» approach to the applications of Art. 6 («The Right to a Fair Trial») ECHR within the EAW context, it was recognised in Castano that the requested State should have still fulfilled its procedural obligation to cooperate under Art. 2 («The Right to Life») ECHR. It was interpreted within this 118 In this sense, see for example Opinion of Advocate General Campos Sánchez-Bordona delivered on 12 November, 2020, L. and P. context as a need to support the investigation in the requesting State by conducting the two-stage assessment of the situation of the EAW detainee in light of Art. 3 («The prohibition of torture») ECHR severity threshold by (1) assessing the factual basis demonstrating the risk of the ill treatment in the requesting State and (2) the exposure of the Warrant detainee to this risk under the factual circumstances of the case.
Hence, one could conclude that the CJEU's benchmarks of the EAW refusals legality assessment -i.e. a risk of inhuman or degrading treatment in the requesting State (Aranyosi/Căldăraru) -were transposed to the Strasbourg practice in Castano. This presumably demonstrates the ECtHR´s unwillingness to conflict with the CJEU in a sensitive area (i.e. a «cornerstone» of judicial cooperation in the European Union). The subsequent Bivolaru and Moldovan judgment developed the Castano formula, by demonstrating the applicability of the «Bosphorus» doctrine to the European Arrest Warrant-related cases and even the rebuttal of the presumption of equivalent protection within this context.
For now, the scrutiny concerns only the charges of murder, manslaughter, trafficking in human beings, sexual assault and terrorism (Castano, Bivolaru and Moldovan, Alosa). At the same time, this interpretation opens the floor to the discussion on potential applicability of other Convention provisions within this context (Arts. 4,5,8) to other offences listed in Art. 2(2) of the EAWFD (such as, for instance, corruption, fraud, computer-related crime etc.). Hence, the EU Member States´ courts can be forced -de facto -to consider an additional (ECHR-based) criterion for assessing the legality of refusals to execute an EAW as an integral part of the (CFREU-based) Aranyosi/Căldăraru formula.
This can arguably pose further questions upon the entry into force of Protocol No. 15 ECHR (August, 2021), as it amends the ECHR Preamble in order to favour the most effective realisation of the «subsidiarity» principle within the Convention system. From the broader perspective, it could be stated here that the Strasbourg Court de facto reflected the spirit of the TEU Preamble («facilitating) the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice'), 121 while -maybe -undermining to some ex- tent the spirit of the ECHR Preamble as amended by Protocol No. 15 («the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation»). 122