Postponing surrender because of serious illness: Medical evidence that matters

Two alternatives are provided by § 25 Abs. 1 Z 1 EU-JZG: lack of fitness for transport and serious grounds to believe that surrender could endanger life or physical safety. These questions are not answered by a serious diagnosis alone. What matters is the connection of the diagnosis with the planned surrender, for example with a journey, flight or interruption of necessary treatment. An application by the person concerned or the public prosecutor, or the court's own initiative, is the basis on which the court decides. Even after surrender has been authorised, a newly arising health danger or one only now supported by evidence remains legally relevant.

The current state of health, necessary treatment, and the risk associated with the proposed surrender are described by a useful medical report. Help can be provided by specialist reports, hospital discharge letters, and a current medication plan. Whether transport is possible, what accompaniment or care would be necessary, and what interrupting treatment would entail should be explained by the medical assessment. Where medically predictable, the duration of the obstacle should also be addressed. These are practical pointers for presenting evidence, not a statutory checklist of forms. Postponement is decided on by the court; its decision is not replaced by a medical certificate.

The competent Austrian court should receive the postponement application from defence counsel, accompanied by the file reference, issuing state, and known surrender date. The specific ground under § 25 Abs. 1 Z 1 EU-JZG must be explained and linked to the supporting evidence. An additional examination or expert assessment may be necessary if key medical details are missing. Where transport is imminent, a prompt court decision and notification of the authorities carrying it out should be sought. That transport stops is not guaranteed by filing an application alone. Relatives can gather records and medical contacts, and extensive health information should be shared through an agreed secure channel.

§ 18 Abs. 2 EU-JZG in conjunction with § 29 ARHG governs surrender detention. Whether continued detention is justified may be affected by illness and the length of postponement, and detention requires its own review. Its purpose, proportionality, possible less restrictive measures, and assured medical care constitute relevant issues. Release rules where the person is not taken over, including exceptions and further arrangements about the surrender date, are also contained in § 24 Abs. 3 EU-JZG. Neither the passing of a calendar date nor postponement alone establishes a right to release. Counsel must assess the orders, agreed dates, and specific basis for detention together.

In C-699/21, E. D. L., the Court of Justice of the European Union, on 18 April 2023, explained the limits of surrender in cases of serious illness. Chronic illness alone does not justify refusal. Surrender must be suspended if there are serious and substantiated grounds for a real risk of significantly reduced life expectancy or a rapid, serious and irreversible deterioration in health. The executing judicial authority must obtain information about treatment, procedural conditions and possible adjustments in the issuing state. Execution must be refused if a comprehensive assessment shows that this risk cannot be ruled out within a reasonable period. This high fundamental-rights threshold is distinct from temporary postponement under § 25 EU-JZG.

A specific obstacle is addressed by health-related postponement. Within the statutory framework, surrender may proceed when the grounds cease to apply; subject to its conditions, § 25 Abs. 2 EU-JZG refers to § 24 EU-JZG. Therefore, updated reports, continuing treatment, and any need for medically accompanied transport should be reassessed. If appropriate conditions in the receiving state avert a serious danger within a reasonable period, the CJEU judgment also requires a new surrender date to be agreed. Against the individual treatment needs, a general assurance of care must be examined. The specific information and current state of health remain decisive.