Ömsesidigt erkännande på bekostnad av rätten till frihet och säkerhet? - En uppsats om den europeiska arresteringsorderns tvångsmedel ur ett svenskt perspektiv

Sammanfattning: The ECJ ruling in Aranyosi and Caldararu restricts the application of the principal of mutual recognition in the Framework Decision. If an executive authority finds that there is a real risk of a violation of the ban on torture in the specific case, an EAW shall be suspended but not refused. If it is proportionate, a sought-after agent may remain detained after the deadlines in the Framework Decision has been passed. Otherwise, the agent can be released with guarantees that the person will not deviate. The purpose of this thesis is to investigate the consequences of the just mentioned position for a Swedish executive authority when using personnel coercive measures pursuant to domestic law (Överlämnandelagen) and if competence to refuse the issuing EAW should have been given in regard to the sought-after agent’s right to freedom and security in Article 6 EU Charter. A custodial measure that falls within the scope of the article, is preformed according to law and is regarded as part of an expulsion or extradition process may be allowed under the EU Charter if it is executed sufficiently quickly. The Swedish executive authority may, in accordance with domestic law (Överlämnandelagen), enforce an arrest, a detention, a notification duty to the police and a travel ban when a EAW is received. The thesis concludes that the four coercive measures in Swedish domestic law (Överlämnandelagen) may be permitted under the EU Charter. However, if it takes a long time for the issuing state to remedy an obstacle to enforcement, there is a risk of violation. In addition, the lack of proportionality assessment in non-custodial coercion seems to be contrary to the legality requirement of the EU Charter. Thus, it can be argued that the position of Aranyosi and Caldararu gives priority to the principle of mutual recognition over human rights in some cases. In principle, the Swedish executive authority cannot remedy this - something that would have been possible if a ground for refusal was introduced in Aranyosi and Caldararu.