The case of Bivolaru and Moldovan is the first one in which the European Court of Human Rights (ECtHR or the Court) found that the execution of a European Arrest Warrant (EAW) entailed the violation of Article 3 of the European Convention on Human Rights (ECHR). As every first-timer, the case attracted the interest of commentators, and one can bet more comments are bound to be published. A careful examination of the case, however, shows that, if its outcome is innovative, the reasoning underpinning it is in line with the well-established case law of the Court concerning extradition. As such, this judgment represents yet another example of the careful development of the Court’s case law as well as of the “souci de symétrie” between the ECtHR and the Court of Justice of the European Union (CJEU).
The facts of the case
The case concerns two EAWs issued by Romania seeking two individual harboured in France, and the evaluation of the risk of Article 3 violations in the receiving State.
The first applicant, Mr Moldovan, who had been convicted in Romania for human trafficking and sentenced to 7 years and six months imprisonment, was reached by a European Arrest Warrant (EAW) and arrested in France in 2016. Before French jurisdictions, he argued that his extradition was barred due to dire conditions of detention in Romania making reference to the CJEU case of Aranyosi and Căldăraru, and invoking 4 judgment of the ECtHR concerning Article 3 violations in connection with conditions of detention in Romanian prisons (Voicu v. Romania; Bujorean v. Romania; Mihai Laurenţiu Marin v. Romania; Constantin Aurelian Burlacu v. Romania).
His case was heard by the Court of Appeal of Riom, which sought assurances from Romanian authorities on the conditions of the applicant’s detention in case of surrender. In reply, Romanian authorities stated that Mr Moldovan was to be detained in the prison of Bucarest Rahova for a 21-days quarantine before being transferred to the prison of Gherla, and that in both prisons the applicant was to be afforded “2-3 m2” of personal space (including furniture).
The Court of Appeal found these assurances to be sufficient, and ordered the surrender of Mr Moldovan with a decision that was confirmed by the Court of Cassation.
The second applicant, Mr Bivolaru, was the leader of the “MISA” (Movement for Spiritual Integration into the Absolute; already known in Strasbourg for the cases of Amarandei and Others v. Romania and MISA v. Romania) and was indicted for several sexual offences involving minors in 2005.
He had already filed an application with the ECtHR in connection with these charges, and obtained a judgment finding that his 10 hour uncalled detention in a police station had infringed his rights under Article 5 ECHR, that his rights under Article 6 § 2 ECHR had been breached as a consequence of the statements by state representatives regarding his guilt, and that there had been a violation of Article 8 ECHR as a result of house searches, telephone tapping, and the disclosure of personal information on him by the media.
In the meantime, Mr Bivolaru fled to Sweden, where he was granted the status of refugee under the Geneva Convention and his extradition to Romania, where had been convicted in absentia and sentenced to 6 years imprisonment in 2013, was refused.
In 2016, Mr Bivolaru was apprehended in Paris, where he was living under a false identity, pursuant to a EAW issued by Romania. Before the Paris Court of Appeal, he claimed to be a victim of political prosecution and argued his extradition was to be refused in light of his refugee status, which implied the acknowledgment of the real risk that, upon surrender, he would be subject to inhuman and degrading treatment as a political opponent. In addition, he also relied on conditions of detention in Romania as a ground to refuse his surrender.
The Paris Court of Appeal sought information from the Swedish authorities, which confirmed that (i) Mr Bivolaru had been granted refugee status under the Geneva Convention; (ii) at the time, Romania was not a EU Member State, even though the Supreme Court which granted the asylum request did take into consideration the fact that Romania would soon join the EU; and (iii) his refugee status had not been withdrawn.
These information notwithstanding, the Court of Appeal granted the applicant’s extradition. To reach this conclusion, it held that (i) the fact that the applicant had been granted refugee status in Sweden (at a time when Romania was not yet a EU Member State) was no obstacle to the extradition; (ii) Romania did not seek the applicant’s surrender in connection with a political offence; and (iii) the applicant’s allegation on prison conditions in the receiving State were so general and vague that they didn’t require the French authorities to get assurances from their Romanian counterparts. The decision was confirmed by the Court of Cassation.
The arguments put forward by the applicants before the ECtHR
Before the Court, both applicants argued that the presumption of equivalent protection did not apply to their cases, as the EAW Framework Decision does not entail any automatism, but leaves discretion to the Member States. On this basis, they claimed that, by ordering the extradition in spite of credible information pointing to a real risk of ill treatment upon surrender, the French courts breached Article 3 ECHR.
The assessment of the Court
Faced with these allegations, the V section of the Court summarised the principles to be applied as regards the presumption of equivalent protection established in its case law, by reference to the cases of Bosphorus, Michaud v. France, and Avotiņš v. Latvia.
In so doing, the Court reiterated that, as a general rule, when they apply EU law State Parties to the ECHR remain bound by the obligations therein established, but these need to be assessed in the light of the presumption of equivalence, the operation of which is subject to two conditions. First, the absence of discretion on the part of the domestic authorities. Second, the deployment of the full potential of the supervisory mechanism provided for by EU law.
As regards the second condition, and consistently with precedent, the Court clarified that this needs not be applied with excessive formalism. As a result, the Court repeated that domestic courts are not bound to refer any question concerning the application of EU law to the CJEU, more specifically where no genuine and serious issue arises with regard to the protection of fundamental rights by EU law, or where the CJEU has already stated precisely how the applicable provisions of EU law should be interpreted in a manner compatible with fundamental rights.
Moreover, the Court reiterated that, even when these two requirements are met, the Bosphorus presumption can still be rebutted every time that the principle of mutual recognition leaves gaps which would render the protection of the human rights guaranteed by the Convention manifestly deficient.
The V section then applied these principles to the cases governed by the EAW Framework Decision, taking the judgments issued in the recent cases of Pirozzi v. Belgium and Romeo Castaño v. Belgium as a starting point.
As already clarified, in these judgments the ECtHR established that it follows from the general non-refoulement principle under Article 3 ECHR, dating back to Soering, that, when the allegations of ill-treatment as a result of poor conditions of detention in the receiving State are substantiated, domestic courts must proceed to a careful assessment of the “actual” situation and establish whether the risk of ill-treatment is “real and individualised”.
On this basis, the Court assessed the two complaints while also making it clear that its control was confined to the decision given by French courts, and did not extend to the “respect, par la Roumanie, des obligations qui découlent de la Convention”.
On the application of the presumption of equivalence as regards the EAW Framework Decision
The V section considered that, under the jurisprudence of the CJEU (and specifically the Aranyosi and Caldararu case law), the executing judicial authority is allowed to derogate from the principles of mutual trust and mutual recognition, and refuse to execute a EAW, where there are serious allegations of a real risk of ill-treatment in the receiving State.
This reasoning is equivalent to the one stemming from the Court’s case law under Article 3 ECHR.
However, the Court also stated that domestic jurisdictions are bound to perform this assessment pursuant to the strict case law of the Luxembourg Court (“dans le cadre strictement défini par la jurisprudence de la CJUE”), so that the executing authorities are not left with a margin of discretion wide enough to question the existence of the first condition relevant to the application of the Bosphorus presumption.
In other words, while acknowledging that the domestic courts faced with a request of execution of EAW have the possibility to refuse the EAW based on the need to ensure that fundamental rights are not violated in the receiving jurisdiction, they still cannot be regarded as exercising discretion for the purpose of ruling out the operation of the presumption of equivalence in general terms.
This seems to be due, in substance, to the “convergence” between the case law of the CJEU concerning extradition and ill-treatment, and the one consistently put forward by the European Court of Human Rights.
Secondly, the Court established that also the second requirement of the Bosphorus presumption was met, as there was no genuine doubt as to the interpretation of the Framework Decision requiring a referral to the ECJ.
It follows that, in the Court’s opinion, the presumption of equivalence is to be applied in the case.
The rebuttal of the presumption of equivalent protection
Based on this conclusion, the Court was called to investigate whether, in the specific case, the decisions of the French courts was affected by such insufficiency in the protection of human rights to rebut the presumption of equivalence. To do so, the Court looked at whether the executing judicial authorities had at their disposal sufficient elements (“de bases factuelles suffisamment solides”) to establish that there was, indeed, a real risk of Article 3 violation upon surrender.
While this principle is applied to both complaints, the solution adopted in respect of the two applicants differs.
As regards Mr Moldovan, the Court stated that the French authorities had at their disposal sufficient element to assess whether a real and individualised risk of ill-treatment existed, and criticised the superficial conclusion that they had taken.
Indeed, the Court reminded that the applicant had produced precise and consistent information as to the dire conditions of detention in the prison of Bucarest Rahova (where he was to be quarantined for 21 days) and in the prison of Gherla (where he was to serve the rest of his sentence).
In this respect, the Court recalled that, in the cases of Voicu and Constantin Aurelian Burlacu, it had been found that the cells of the former prison did not afford sufficient space to detainees. Moreover, in the case of Axinte v. Romania, it had already established that the prison of Gherla was affected by systemic overcrowding.
Against this background, the Court repeated that, according to its well-established case law (see, for example, Mursic v. Croatia), 3 m2 is the minimum space to be afforded to prisoners under Article 3 ECHR, and criticised the decision of the French courts ordering the applicant’s extradition in spite of the official notification by Romanian authorities that, considering furniture and toilet, the applicant would not have been granted that minimum space in the prisons where he was to be detained.
The Court thus concluded that, based on the elements put forward by the applicant as well as the information provided by the Romanian authorities, the French courts should have realised that in the case there was a strong presumption of a violation of Article 3 ECHR upon surrender.
The presumption of Article 3 violation was not revered in the case. Quite the contrary, it was reinforced by the consideration that, in the Court’s opinion, the assurances given by the Romanian authorities were stereotyped and anyway insufficient to rule out the real risk of ill-treatment in the receiving State.
The conclusion is different in the case of Mr Bivolaru.
In fact, the Court denied that the applicant had given sufficient factual information to the executing judicial authorities to assess whether there existed a real and individualised risk of ill-treatment as a result of poor conditions of detention in the receiving State, effectively blaming him for failing to substantiate his claim beyond general allegations on the state of prison establishments in Romania.
The fact Mr Bivolaru enjoyed refugee status in Sweden did not suffice to overcome this assessment. As a matter of fact, and while acknowledging that the granting of refugee status indicated that, at the time, Swedish authorities established there was a risk of prosecution of the applicant in his country of origin, the Court did not rule on the relationship between the protection afforded by the Geneva convention and the EAW Framework decision.
Instead, the Court confined itself at noting that the executing judicial authorities carefully evaluated the applicant’s argument in this regard, and sought additional information from their Swedish counterparts.
In conclusion, the Court ruled that the decision to surrender to Romania Mr Moldovan triggered the responsibility of France under Article 3 ECHR, while confirmed that no Article 3 issue arose in connection with the execution of the EAW seeking Mr Bivolaru.
A first reading of the judgment seems to call for the following (provisional) conclusions.
In the first place, the case does not exclude the application of the presumption of equivalence as regards execution of EAWs in general terms. Quite the contrary, the case constitutes direct authority to hold that the Bosphorus presumption applies under the Framework Decision, but that it can be rebutted on a case-by-case basis.
In the second place, the case further evidences the progressive alignment between the case law of the ECtHR and that of the CJEU on the grounds to refuse the execution of a EAW due to prison conditions in the receiving State.
In the third place, the judgment confirms that, in extradition cases, the role of the ECtHR is confined to the review of the reasons adduced by domestic courts in order to grant (or refuse) the applicant’s surrender. In other words, the Court does not proceed to an assessment of the reality of the matter (in that it does not really investigate conditions of detention in the receiving State), but simply looks at whether the conclusion reached by the judicial authority executing the EAW is supported by sufficient materials and evidence.
In this sense, Bivolaru and Moldovan is the mirror case to Romeo Castaño v. Belgium, and shows the way forward in EAW litigation in Strasbourg.
Time will allow a more careful evaluation of the consequences of this approach, but it seems that the existing case law prompts the conclusion that the approach followed by the Strasbourg Court places requested persons under the duty to present all their arguments already in the domestic case, and to do so in a way that resonates with the Court’s case law under Article 3 ECHR.