Fighting an EAW on Fair Trial Grounds in the Requesting Member State

The whole EAW system runs on an assumption: that every member state's courts are fundamentally trustworthy, that a fair trial in Athens is as reliable as one in Amsterdam, and that surrender should proceed on that basis without a court in the executing state second-guessing its counterpart's justice system. For most of the system's history, that assumption held up reasonably well in practice, or at least wasn't seriously tested in most cases. Then it got tested, and the CJEU had to work out what happens when the assumption breaks down.

The turning point was a pair of cases most EAW lawyers refer to by shorthand — Aranyosi and Căldăraru — decided in 2016. They dealt with prison conditions, not trial fairness directly, but they set the template that later fair trial cases followed: a two-step test. Step one, is there evidence of systemic or generalized deficiencies in the requesting state — not a one-off bad incident, but a real pattern, backed by credible sources like Council of Europe reports, NGO findings, or prior judicial rulings. Step two, even if such deficiencies exist generally, is there a real, specific, individualized risk that this particular person would be affected by them. Both steps have to be satisfied. Neither alone is enough.

That same framework got extended to judicial independence in a case usually called LM, arising from concerns about judicial reforms in Poland that critics argued undermined the independence of courts there. The CJEU held that where there's evidence of systemic problems with judicial independence in the issuing state, an executing court has to go on and assess whether, in the specific case at hand, there are substantial grounds to believe this particular person would face a real risk of an unfair trial if surrendered. It's a genuinely difficult, evidence-heavy inquiry, and courts across the EU have reached different conclusions on similar facts depending on how the specific evidence was presented.

Building one of these challenges properly takes real preparation, and it isn't something you assemble the week before a hearing. You need country-condition evidence — reports, rulings, expert commentary — that goes beyond "the system there has problems" toward "the system there has problems that would concretely affect this case." Has the specific court involved been the subject of independence concerns? Is there something about the charge, the defendant's profile, or the political sensitivity of the case that makes a generic risk into a specific one? Courts want to see that connection made explicitly, not assumed.

It's worth being honest about the odds here too. These challenges succeed less often than people hope, precisely because mutual trust is the system's foundation and courts are reluctant to undermine it without strong, specific evidence. A generalized complaint that "the courts there are political" rarely gets far. A well-documented showing that this defendant, in this case, given this charge and this court, faces a concrete and substantiated risk — that's a different conversation, and it's one some executing courts have taken seriously enough to refuse or postpone surrender pending further assurances from the issuing state.

Increasingly, executing courts will pause proceedings and request additional information or specific assurances from the issuing judicial authority before deciding, rather than refusing outright. That intermediate step — assurances, sometimes involving diplomatic guarantees about detention conditions or trial arrangements — has become a common feature of these cases, and it's often where the real leverage in a fair trial challenge actually sits, rather than in an outright refusal.

This article is provided for general informational purposes only and does not constitute legal advice. Extradition, INTERPOL, and international criminal matters are highly fact-specific. Readers facing an actual or anticipated matter should seek advice from qualified counsel before making decisions.