The Bosphorus presumption

Member states of an IO are still liable under ECHR for acts and omissions of its
organs regardless of the origin of underlying legal obligations. Second, we need to
mitigate MS responsibility. How? Through Bosphorus presumption - a state has not
departed from requirements of ECHR when it does not more to implement legal
obligations stemming from obligations under the IO. MS in implementing EU law
have margin of discretion then this doesn’t apply and conduct stems from scrutiny of
the court. If MS are implementing EU law obligations without direction, this
presumption shield them as a rule. However, it is not absolute, since if they
manifestly infringes the ECHR then the presumption is rebuttable

¶ Bosphorus and EU mutual recognition

Avotin [Link] slide

When it comes to mutual recognition instrument the gold rule is recognition and
enforcement. It can be departed from only under specific circumstances that might be
too high. As a consequence of these preliminary arguments the court add these further
points.
The court matches the two sides of the poles. On the one hand we have the Bosphorus
presumption, on the other mutual recognition can be rebutted only in exceptional
circumstances, if they do detect the risk of a concrete individual manifest deficiency,
evidence of critical situation, which reach the threshold and they cannot shield
themselves through mutual recognition. They need to set aside mutual recognition
they have a problem. The relevance of this case has to do with situations where:
- a case doesn’t reach the threshold of exceptional circumstance. However can lead
to manifest deficiency
- Where domestic authority have field to evidence
The ECtHR adds a layer of guarantee. If we don’t reach the exceptionally threshold,
we do have evidence of manifest violation of the convention.

EAW case—> violation of HR in the content of EAW when the presumption is

applicable?

Pirozzi V. Belgium: the Bosphorus presumption is applicable when the execution of

the EAW concern an aspect which has been clearly interpreted by ECJ. For instance
the prohibition of inhuman and degrading treatment.

The Bosphorus presumption don’t apply where the executing authorities (MS) enjoy
discretion and no case law of the ECJ exists

There are different methodologies:

CJEU—> 2 steps test
ECHR—> substantial assessment of the deficiency of the protection in a specific
case.
This adds a possible further layer of the protection in particular by rebutting the
Bosphorus presumption. The system of the convention a level of intensity of
protection which challenges the Bosphorus, it happened in the joint application
Bipolar al Moldovan v. France where France by executing an EAW breached
manifestly the convention, so the court

¶ EU extradition law

We do have an overlap between the eu law of extradition. The core question is what
happens when a MS is requested to extradite a union national to a third country. Is
there anything that eu law can do in this regard?

The legal scenario:

The eu adds a further layer of complexity. It ha its own national principles. The union
has an extradition treaty with the US which covers certain common elements while
MS have their own treaties on extradition with the US. The two layers co-exist

Mr. Petruhhin is an Estonian national who lives in Latvia. Where this situation falls
under the scope of application of EU law? We might consider the Petruhhin exercised
freedom of movement.
1. The ECJ has been depicting union citizenship as the fundamental states of EU
citizens.
2. We have under national law nationality exception. Should the latter entered to
Union nationals living in that particular state?
3. Art.21 TFEU about freedom of movement. A friendly conduct of MS
international nations. Unilaterally refusing as such extradition on grounds of free
movement can be critical, it could deteriorate the relationship. The problem with
avoiding impunity is that the law of the parties involved in the case

Is the measure which restricts a fundamental freedom justified? The court use the
Petrunhhin case to build up an alternative. First we have to address fundamental
rights point. Under art.54 Charter when we need to delimit the scope of a certain right
including the free movement we need to rely on a series of requirements. We need to
rely on general interest of public significance. To do so, the court uses a series of very
broads agreements which have to do with the fact that when implementing of EU law,
the MS are expected to cooperate with the union and among themselves in a sincere
way. It is enshrined in art.3(2) TFEU, it is a paradigm of the conduct of MS. The
latter are always required when implementing or derogating from eu law to sincerely
cooperate between themselves and with the union. Less restrictive alternative to a
plain violation of art.21.
It is under an obligation to inform the MS of nationality. Latvia is under an obligation
to inform Estonia of this pending extradition of a national. Secondly the ball is now
to Estonia, the latter has to take the decision: if the country has jurisdiction
citizenship can trigger such element. It can, not obliged, issue and EAW to get this
person and have him tries to Estonia. There is a first obligation to inform and the state
can decide to issue an EAW. If the state does’t issue an EAW, extradition can be in
principle extradited. This accommodates the two competing interest, for the benefit of
free movement and citizenship. What’s the tole of discrimination on grounds of
nationality which is triggered by eu citizenship? The court also establishes another
key obligation incumbent upon the authorities of the host state.

On the one hand the court outlines the new duties, on the other for the first time the
court uses Art.19 of the Charter which prohibits surrender to third countries inc are of
potential violation of human rights. On that legal basis the court outlines a general
obligation to check whether there are potential problems for the wanted person.
Where such instances are present extradition cannot be executed. This is a general
procedure that must be enacted anytime an eu citizen resides in another state and he is
subject to an extradition request from a third one, this is a very case by case
assessment.

In sum the EU law of extradition:

- Extradition request
- Prior fundamental rights check
- Consultation with state of nationality
- EAW from the state of nationality where not EAW is issued, extradition cannot be
executed