EKMR som (o)befintligt verkställighetshinder - EKMR som grund för att neka överlämning enligt en europeisk arresteringsorder

Sammanfattning: The European Arrest Warrant, EAW, is an instrument for cooperation between the member states of the European Union, regulating the surrender of individuals from one member state to another for criminal prosecution or enforcement of a penal sentence. It’s purposes are to prevent individuals from evading penal sentences or prosecution by using the free movement and to offer a high level of security and justice within the European Union by enabling for an efficient surrender procedure. Fundamentally, an EAW should be recognized and executed by the receiving member state. However, this thesis examines whether and to what extent the Swedish courts consider The European Convention for the Protection of Human Rights and Fundamental Freedoms, ECHR, as a ground for non-execution of a surrender request from another member state. Accordingly, this thesis contrasts the purpose of the EAW to the idea that individuals under Swedish jurisdiction are to be effectively guaranteed certain human rights, and that Swedish penal proceedings should be predictable, equal, justice and governed by the proportionality principle. Specifically, this thesis examines two articles of the ECHR and whether they may entail an obstacle to the effective enforcement of surrender requests pursuant to issued EAW:s . Firstly, I highlight to what extent article 3 ECHR in relation to overcrowded prisons and poor prison conditions in the issuing member state may provide a ground for non-execution of a surrender request. Secondly, I highlight to what extent article 6 ECHR and the right to a fair trial within a reasonable time may constitute obstacle to a surrender request pursuant to an EAW. This thesis concludes that article 3 ECHR may provide for a ground for non-execution of a surrender request. However, this exception has been applied too restrictively in Swedish courts, meaning that serveral individuals have been surrendered to member states with known problems, such as overcrowded prisons and poor prison conditions, that in effect violate article 3 ECHR. The analysis of the Swedish case law thus highlights that article 3 ECHR as non-execution ground is interpreted narrowly by the Swedish courts, giving rise to certain concerns that article 3 ECHR is not duly guaranteed in Sweden within the EAW proceedings. Finally, this thesis concludes that article 6 ECHR and the right to a fair trial within a reasonable time is a symbolic and theoretical right. The analysis of the Swedish case law shows that article 6 ECHR has never been used as ground for non-execution of a surrender request. According to Swedish case law, violations of the right to a fair trial within a reasonable time should be assessed by the issuing state, meaning that the right to a fair trial within a reasonable time never provides grounds for non-execution of a surrender request.