by Enrico Pelosato*

The issue of the relationship between the enforcement of the European Arrest Warrant (EAW) mechanism[1] and the protection of fundamental rights got its momentum with the entry into force of the Treaty of Lisbon, which led to the granting of the Treaty-like status to the Charter of Fundamental Rights (Charter)[2].  Nevertheless, the EAW Framework Decision does not mention the non-compliance with fundamental rights amongst the ground for (mandatory or optional) non-execution. An important reference to the problematic relationship between the mutual recognition[3] of judicial issued by the foreign judge and the obligation to respect fundamental rights can be found in a recent judgement delivered by the European Court of Justice: the Aranyosi and Căldăraru joined-cases[4].

In the first case, the Hungarian investigation judge of the Sub District Court of Miskloc (Miskolci járásbíróság) issued two European Arrest Warrants for the surrender of Pál Aranyosi, a Hungarian national requested for two counts of burglary. The Sub-District Court of Miskloc issued an alert in the Schengen Information System, because Aranyosi’s location was unknown, and in mid-January 2015 he was located in Bremen. The Public Prosecutor of Bremen (Generalstaatsanwaltschaft Bremen) asked the Hungarian authority in which facility Aranyosi would be detained if surrendered, as detention conditions of Hungarian prisons do not satisfy the European minimum standard, however the Public Prosecutor of Miskolc District stated that only Hungarian authorities are competent to decide on sanctions. In April 2015, the Public Prosecutor of Bremen declared possible the surrender of Mr. Aranyosi: although, the Public Prosecutor of Miskolc did not designate the prison where the applicant would be placed in case of surrender, there was no evidence of risks of torture or other cruel, inhumane or degrading treatment. Nevertheless, based on a number of ECHtHR cases and a report of the European Committee for the Prevention of Torture, the Higher Regional Court Bremen (Hanseatische Oberlandesgericht Bremen) thought that there was a high risk of violation of Article 4 Charter in case of detention. Regarding the second case, in April 2015, the Romanian Court of Instance of Făgăraş (Judecătoria Făgăraş) sentenced the Romanian national Robert Căldăraru to a custodial sentence of 20 months for driving without a valid driving licence. Six months later, the abovementioned Court issued an European Arrest Warrant and in November 2015 Căldăraru has been arrested in Bremen. Like in the Aranyosi case, the Public Prosecutor of Bremen authorized his surrender to the Romanian authorities even if these latter were not able to designate a correctional facility. Also in this case, the Higher Regional Court Bremen received some evidence that raised  doubts about the respect of fundamental rights in case of surrender[5]. Accordingly, the Higher Regional Court Bremen, in both cases, was not able to decide if the surrender in Hungary and Romania was possible, so it asked the Court of Justice for a reference for preliminary ruling.[6]

In his Opinion on this case, Advocate General Bot affirmed that interpreting Article 1(3) Framework Decision 2002/584/JHA[7] as a ground of non-recognition of a European Arrest Warrant would damage mutual trust between homologous judicial authorities, making the principle of mutual trust meaningless. Rather, he proposed the use of the principle of proportionality as an alternative tool to find a balance between fundamental rights of the person concerned and the achievement of the so-called Area of Freedom, Security and Justice. As explained by Koen Bovend’Erdt:

“This obligation [of ensuring compliance with the principle of proportionality] rests first of all on the issuing judicial authority: he or she must ensure that detention of the person surrendered, and the condition thereof, is proportional. If the issuing judicial authority does not fulfil its obligation, the executing judicial authority serves as a safety net. If this latter authority finds that circumstances of detention in the issuing Member State are structurally deficient, based on factual and trustworthy information, this judicial authority must assess whether in the individual case before him/her, the person to be surrendered would be exposed to disproportionally grave detention (conditions). If the executing judicial authority encounters a problem with the determination whether surrender would be proportional, it should start a preliminary reference procedure”.[8]

The ECJ did not share AG Bot’s approach. Indeed, the Court opened its judgement recalling the need to achieve a fair balance between effective law enforcement (through mutual recognition) and the respect of fundamental rights and freedoms. Is then observed that the aim of the EAW Framework Decision is to make the surrender easier and more effective, in a framework based on mutual trust, which obliges Member States to presume that other Member States respect fundamental rights. Member States must execute the European Arrest Warrant unless non-execution grounds listed in Article 3 EAW Framework Decision. However, relying on Article 1(3) of the Framework Decision, the Court stated that the latter shall not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as granted by the Charter. At the same time, however, the principles of mutual trust and mutual recognition can be limited only in exceptional circumstances, which include the risk of violation of Article 4 Charter. In effect, this provision, which reflects Article 3 ECHR, contains an absolute right.[9] Therefore, when there is evidence of a real risk that detention conditions could infringe Article 4 EU Charter, the executing judicial authority must assess the risk using a two-stage test: first, if general detention circumstances in the issuing State constitute a real risk of violation of this provision and second if there are substantial grounds to think that the requested person will run a real risk of violation of Article 4 EU Charter.[10] This last point has an important consequence: when detention conditions in a Member State violate the requirements established by the European Court of Human Rights,[11] the judicial authorities of the executing Member State are obliged to arrange a risk assessment but they are not obliged to refuse the execution of the European Arrest Warrant. In this regard, further evaluations have to be done, nevertheless if the existence of a risk is confirmed (or there are still doubts), the executing judge must terminate the proceedings.

One may wonder whether if there are other limits to mutual trust in the European Arrest Warrant system, due to the violation of fundamental rights.[12] An indication in this sense can be found in Recital 12 of the Framework Decision, which contains a limit to mutual trust when the requested person run a risk of inhuman or degrading treatment because her personal position and to detention conditions in the issuing state.

It is also important to mention another case related with Aranyosi and Căldăraru: Generalstaatsawaltschaft.[13] This case concerns a Hungarian national, ML, subject to a EAW issued by the District Court of Nyiregyhéza (Hungary) and sentenced in absentia for alleged offences of bodily harm, fraud and theft. ML was also subject to a previous EAW issued by the same court and he was already detained (due to this first warrant) in Germany. In order to decide on the execution of the warrant, the Higher Regional Court in Bremen asked the Hungarian authorities to provide as regards detention conditions, without receiving an answer by the data set. Thus, it made a reference for preliminary ruling asking some clarifications on the case-law contained in Aranyosi and Căldăraru, in particular on whether potential infringements of the right not be subject to inhuman or degrading treatment in a Member State’s detention facilities, which issued a EAW, can be remedied by its own courts.[14]

Recalling that mutual recognition is the ‘cornerstone’ of the system of surrender between judicial authorities, Advocate General Sánchez-Bordona observed that the situation may be changed in comparison with Aranyosi and Căldăraru after the introduction of safeguards offering the opportunity to concerned persons to complain about their detention conditions and due to the fact that the European Court of Human Rights. Furthermore, in the Opinion, it is affirmed that the receipt of a EAW cannot lead the executing judicial authority to judge on the quality of detention conditions in the issuing Member State, and the sole test possible is Article 4 Charter. The existence of domestic judicial remedies able to guarantee, in practice, the protection of not be subjected to inhuman or degrading treatment during the detention period constitutes a relevant factor in the evaluation of the risk to suffer such a treatment in presence of systemic or generalized deficiencies affecting certain groups of persons or certain detention facilities. However, the Advocate General recognized that, in this case, the introduction of remedies could be not fully effective (to render the risk to be exposed to inhuman or degrading treatment an exception), therefore the executing judicial authority would be justified in asking the conditions under which the requested person would be detained.[15] In this respect, relying on Aranyosi and Căldăraru, the Advocate General clarified that, in its evaluation, the executing authority should consider also any assurance given by the issuing State by which it undertakes that the person would not be subjected to inhuman or degrading treatment during the detention period and the information accepted or endorsed by issuing judicial authority must prevail in the assessment made by the executing judicial authority.[16]

On 25 July 2018, the Court stated on this case, based on the urgent preliminary ruling procedure. Whilst, recalling the importance of shared common values (according to Article 2 TEU), mutual trust among Member States[17] and the fact that mutual recognition constitutes a cornerstone in judicial cooperation in criminal matters,[18] the Court reiterated its conclusion in Aranyosi and Căldăraru that the principle of mutual recognition can be limited in exceptional circumstances, especially on grounds of fear of inhuman or degrading treatments prohibited by Article 4 EU Charter. Regarding the new issue raised by the reference, on the existence of a remedy, the Court observed that, in 2016, Hungary introduced a remedy enabling prisoners to claim against detention conditions, which may constitute an effective judicial remedy for the scope of Article 47 Charter. However this is not sufficient to exclude that a person, following to the surrender, will be subjected to inhuman or degrading treatment during the detention period. By contrast, even when a legal remedy formally exists, the executing authority is still bound to assess the situation of the individual concerned.[19]

The assessment on detention conditions, due to the fact it has to be specific and precise, cannot concern all the prisons in the issuing Member State in which the individual concerned might be detained, because it would be clearly excessive and it would be impossible to fulfil this obligation within the period prescribed in Article 17 of the Framework Decision (substantially, a similar request would delay the individual’s surrender, rendering the EAW mechanism ineffective).[20] The executing judicial authority is only required to verify detention conditions in prisons in which, on the basis of information available, it is actually probable that the person concerned will be detained (including on temporary basis): in this case, the executing judicial authority has to assess the compatibility of the prison in Budapest (where the application will initially be held for a 1-3 weeks) and the detention center in Szombathely.

Regarding the assessment of detention conditions, the Court has observed that, in absence of minimum standards imposed by EU Law, Article 3 of the ECHR imposes to national authorities to detain a prisoner “in conditions which guarantee respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured”.[21] More specifically, in order to fall within the scope of Article 3 ECHR, an ill-treatment must attain a minimum level of severity, depending on specific circumstances of the case (duration of the treatment, physical and mental effects and sometimes also gender, age and state of health of the victim) and regarding space, the personal space available to a detainee should not be below 3m2 in multi-occupancy accommodation.[22]. Finally, the Court stated that executing judicial authorities can take into account also information provided by the issuing Member State authorities other than the issuing judicial authority.

* Enrico Pelosato: Enrico was born in Verona in 1994, he obtained a Bachelor’s Degree in Political Sciences, International Studies, Public Administration at the University of Padua. He recently graduated with honors in International Relations and European Studies at the University of Florence, after spending a semester at the University of Luxembourg and three months at the Tuscany Region Brussels Liaison Office thanks to the Erasmus+ programme. His main interests are Public International Law, European Union Law and European Affairs as a whole.

References: 

[1] Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA, 13 June 2002). For a general overview  on the mechanism, see also: S. LAUGIER-DESLANDES, Les incidences de la création du mandate d’arrêt européen sur les conventions d’extradition, Annuaire Français de Droit International, No. XLVII (2002), pp. 695-714.

[2] Treaty on the European Union, Article 6(1).

[3] ECJ, judgement of 01 December 2008, case C-388/08, Leymann and Pustarov, para. 49: “[…] the European Arrest Warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition, which the European Council has referred to as the ‘cornerstone’ of judicial cooperation”. Moreover, the principle of mutual recognition in criminal matters found its consecration in the Article 82 TFEU.

[4] ECJ, judgement of 05 April 2016, joined cases C-404/15 and C-659/15, Aranyosi and Căldăraru.

[5] K. BOVEND’EERDT, The Joined Cases Aranyosi and Căldăraru: A New Limit to the Mutual Trust Presumption in the Area of Freedom, Security and Justice?, Utrecht Journal of International and European Law , Vol. 32 No. 83 (2016), pp. 113-115; C. RIZCALLAH, European and International Criminal Cooperation: A Matter of Trust?, College of Europe: Case Notes (2017)(1), pp. 1-29.

[6] ECJ, Aranyosi and Căldăraru, questions for a preliminary ruling: “1. Is Article 1(3) FDEAW to be interpreted as meaning that surrender for the purposes of prosecution or the execution of a custodial sentence or detention order is impermissible for the purposes of prosecution is impermissible where there are strong indications that detention conditions in the issuing Member State infringe the fundamental rights of the person concerned and the fundamental legal principles as enshrined in Article 6 TEU, or is it to be interpreted as meaning that, in such circumstances, the executing Member State can or must take the decision on the permissibility of extradition conditional upon an assurance that detention conditions are compliant? To that end, can or must the executing Member State lay down specific minimum requirements applicable to the detention conditions in respect of which an assurance is sought? 2. Are Articles 5 and 6(1) of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA) to be interpreted as meaning that the issuing judicial authority is also entitled to give assurances that detention conditions are compliant, or do assurances in this regard remain subject to the domestic rules of competence in the issuing Member State?”.

[7] Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA, 13 June 2002), Article 1(3): “This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on the European Union”.

[8] K. BOVEND’EERDT, The Joined Cases Aranyosi and Căldăraru: A New Limit to the Mutual Trust Presumption in the Area of Freedom, Security and Justice?, p. 116.

[9] A. SACCUCCI, The protection from removal to unsafe countries under ECHR: not all that glitters is gold, Questions of International Law (http://www.qil-qdi.org/the-protection-from-removal-to-unsafe-countries-under-the-echr-not-all-that-glitters-is-gold/, 14/07/2014).

[10] ECJ, Aranyosi and Căldăraru, paras. 91-93; To conclude, paragraph 104 of the Judgement states: “It follows from all the foregoing that the answer to the questions referred is that Article 1(3), Article 5 and Article 6(1) of the Framework Decision must be interpreted as meaning that where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalized, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European Arrest Warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State. To that end, the executing judicial authority must request that supplementary information be provided by the issuing judicial authority, which, after seeking, if necessary, the assistance of the central authority or one of the central authorities of the issuing Member State, under Article 7 of the Framework Decision, must send that information within the time limit specified in the request. The executing judicial authority must postpone its decision on the surrender of the individual concerned until it obtains the supplementary information that allows it to discount the existence of such a risk. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end”.

[11] Regarding this point, see: ECtHR, judgement of 08 January 2013, Torreggiani and Others v. Italy, application n° 43517/09; G. DELLA MORTE, La situazione carceraria italiana viola strutturalmente gli standard sui diritti umani (a margine della sentenza Torreggiani c. Italia), Diritti Umani e Diritto Internazionale (2013)(7), pp.147-158; G. DELLA MORTE, I rimedi predisposti nell’ordinamento italiano per contrastare gli effetti del sovraffollamento carcerario al vaglio del Comitato dei Ministri del Consiglio d’Europa, in S. SIMONETTA (Ed.), Utopia e Carcere (Editoriale Scientifica, Napoli, 2015), pp. 89-99.

[12] N. LAZZERINI, Gli obblighi in materia di protezione dei diritti fondamentali come limite all’esecuzione del mandato di arresto europeo: la sentenza Aranyosi e Căldăraru, Diritti Umani e Diritto Internazionale, Vol. 10 No. 2 (2016), pp. 450-452. See also: N. LAZZERINI, Questo matrimonio (così?) non s’ha da fare? Il parere 2/13 della Corte di Giustizia sull’adesione dell’Unione Europea alla Convenzione Europea dei Diritti dell’Uomo, Osservatorio sulle Fonti (2015)(1), pp. 1-26.

[13] ECJ, case C-220/18, Generalstaatsanwaltschaft.

[14] Opinion of Advocate General Campos Sánchez-Bordona of 04 July 2018, Generalstaatsanwaltschaft, paras. 13-22.

[15] Ibid, paras. 43-45.

[16] Ibid, paras 69-71. Moreover, in paragraphs 75-79, the Advocate General states that the information required by the executing authority must be limited to the strict necessary for the purposes of the evaluation of the risk of inhuman or degrading treatment and collected information should concern probable detention centers for the sought person in order to serve the sentence

[17] ECJ, Minister for Justice and Equality, para. 35.

[18]ECJ, judgement of 25 July 2018, case C-220/18, Generalstaatsanwaltschaft, para. 54.

[19] Ibid, para. 75. In the following paragraph, the Court further clarifies its position: “The interpretation is not in any way inconsistent with was held by the European Court of Human Rights in its judgement of 14 November 2017, Domján v. Hungary. In that judgement the European Court of Human Rights, first, merely found that, since the remedies introduced by the 2016 Law guaranteed in principle genuine redress for ECHR infringements originating in prison overcrowding and other unsuitable conditions of detention in Hungary, the application brought before it in that case had to be dismissed as inadmissible as long as those domestic avenues of redress had not been exhausted. Secondly, it made clear that it reserved the right to re-examine the effectiveness of those remedies in the light of their application in practice”.

[20] Ibid, paras. 77-84.

[21] Ibid, para. 90. In this regard see also: ECtHR, judgement of 25 April 2017, Rezmiveş and Others v. Romania, applications n° 61467/12, 39516/13, 48213/13 and 68191/13 .

[22] Ibid, para. 92. Further clarifications are exposed in the following paragraph: “The strong presumption of a violation of Article 3 of the ECHR will normally be capable of being rebutted only if (i) the reductions in the required minimum personal space of 3m2 are short, occasional and minor, (ii) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities, and (iii) the general conditions of detention at the facility are appropriate and there no other aggravating aspects of the conditions of the individual concerned’s detention”. In this regard, see also: ECtHR, judgement of 20 June 2016, Muršić v. Croatia, application n° 7334/13

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