What happens after refusing surrender: the Court of Justice in Rugu and Aucroix

• 

For years, European arrest warrant litigation on prison conditions has usually revolved around one question: can the requested person be surrendered?

With Aranyosi and Căldăraru (CJEU, judgment of 5 April 2016, Joined Cases C-404/15 and C-659/15 PPU), the Court of Justice changed the terms of that question. Mutual trust could no longer mean pretending that detention conditions are equivalent across all Member States. If surrender exposes the person to a real risk of inhuman or degrading treatment, then the executing court cannot just look away and must refuse surrender.

Later cases, from ML (CJEU, judgment of 25 July 2018, C-220/18 PPU) to Dorobantu (CJEU, judgment of 15 October 2019, C-128/18), then filled in the practical details: what information must be requested, how specific the assessment must be, when assurances may be relied on, and how the executing court should look at the actual prison where the person is likely to be held.

With Rugu and Aucroix, judgment of 4 June 2026 (Joined Cases C-722/23 and C-91/24), the CJEU takes the issue to the next level, or rather to the next question. The point is no longer whether can we refuse surrender, but what happens after we refuse. Because impunity following refusal of surrender is no longer considered a viable end point.

The Belgian cases

The judgment came from two Belgian cases. One concerned a Romanian national (Mr. Rugu) residing in Belgium, wanted by Romania to serve a prison sentence for trafficking of human beings. The other concerned a Belgian national (Mr. Aucroix), also in Belgium, wanted by Greece for the enforcement of a custodial sentence. In both cases, Belgian courts refused surrender because of the risk linked to detention conditions in the issuing States.

So far, nothing surprising, as this is the familiar Aranyosi scenario.

However, the refusal created a second problem, a far too common one. The persons could not be surrendered, but their sentences remained in force. If Belgium had stopped there, the result could be simple non-enforcement and, thus, impunity.

Yet, the referring Belgian court cited the CJEU’s judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C-354/20 PPU and C-412/20 PPU), in support of the observation that the objective of the mechanism of the EAW is in particular to combat the impunity of the requested person who is present in a territory other than that in which he or she has allegedly committed an offence.

Therefore, the referring court asked the CJEU whether Article 4(6) of FD 2002/584 – which allows enforcement of the sentence in executing Member State based on the conditions of residence of the requested person – must be interpreted as meaning that an executing judicial authority, where it has refused on the basis of Article 1(3) to execute an EAW issued for the purposes of enforcing a custodial sentence, may or must apply, in addition, the ground for optional non-execution provided for in that Article 4(6) in order to prevent the impunity of the requested person.

No unsafe surrender, but no automatic impunity either

The Court’s answer is quite direct: if the executing State refuses to execute a European arrest warrant because surrender would expose the requested person to detention conditions contrary to Article 4 of the Charter, it is “required actively to seek to ensure that the requested person does not go unpunished as a result of that refusal” (§ 57).

That means turning to the other instrument in the EU toolbox, notably Framework Decision 2008/909 on the recognition and enforcement of custodial sentences.

In practical terms, the executing Member State that refused surrender must, on its own initiative, ask the issuing Member State to forward the judgment imposing the sentence, together with the certificate required under Framework Decision 2008/909, so that the sentence may be recognised and enforced in the executing State (§ 79).

This is where the judgment becomes more nuanced.

The Court is not saying that the executing State can go as far as to unilaterally take over enforcement. That would sit uneasily with its earlier judgment in C.J. (CJEU, judgment of 4 September 2025, C-413/23), where the Grand Chamber made clear that a Member State refusing surrender in order to enforce the sentence itself must comply with the procedure laid down in Framework Decision 2008/909, including the consent of the issuing State. Without that consent – expressed through the forwarding of the judgment and certificate – the executing State cannot simply substitute itself for the sentencing State.

Nor is the sentenced person's consent irrelevant. Under Framework Decision 2008/909, enforcement of a custodial sentence in a Member State other than the one that imposed it generally requires the consent of the person concerned, except where the person has left the State of conviction in order to avoid enforcement of the sentence or is a national of the executing Member State.

Why the judgment matters

The judgment changes the practical meaning of a successful prison-conditions objection.

For the requested person, winning on conditions of detention may no longer mean that the sentence disappears in practice. It may mean something different: no surrender to unsafe detention conditions, but possible enforcement in the executing State.

That still matters a great deal, because serving a sentence in Belgium rather than in a prison system found to present a real risk of inhuman treatment is not a minor difference. It may also affect rehabilitation, family life, language, access to counsel, sentence adaptation and prison regime, something of which the CJEU is conscious. But the Court is also not comfortable with a system in which a successful detention-conditions objection simply leaves a final sentence without effect.

In conclusion, Rugu and Aucroix confirms that a fundamental-rights refusal is not necessarily a dead end anymore. If surrender is blocked because detention conditions are unsafe, the executing State must actively explore domestic enforcement of the sentence.