- Matteo Zamboni
Another "tale of two courts": The CJEU on prison conditions in the context of the EAW
Updated: Jun 9, 2022
With the judgment issued on 15 October 2019, in case C-218/18 (Dorobantu), the Grand Chamber of the Court of Justice of the European Union (CJUE) seized the opportunity to clarify the principles and standards to be applied by the executing judicial authorities in deciding whether to refute the execution of a European Arrest Warrant (EAW) on account of the dire conditions of detention in the issuing Member State.
The questions put to the CJUE
The preliminary ruling of the CJUE was sought by the Higher Regional Court of Hamburg in the context of the execution, in Germany, of a EAW issued by the Court of First Instance of Medgidia, in Romania, to seek the surrender of a Romanian national who had to face trial in his home country on count of forgery and property offences.
A detailed account of the facts underlying the case can be found here, but what matters for our purposes is that the German court doubted that the conditions of detention to which Mr Dorobantu would have been subjected in Romania measured up to the standards established in EU law and in the European Convention on Human Rights and, accordingly, sought the guidance of the CJUE referring to it three questions (with sub-questions, see § 36 of the judgment).
In essence, these questions concern the way the judicial authority of the executing Member State should assess whether to refute the execution of a EAW on ground of dire conditions of detention. In detail, as pointed out by the Grand Chamber, these questions resolve around four main issues:
- in the first place, the Hamburg Court sought guidance on the ‘extent and scope of the review which the executing judicial authority […] must […] undertake for the purpose of assessing whether […] following the surrender […] the [requested] person will run a real risk of being subjected to inhuman or degrading treatment, within the meaning of Article 4 of the Charter’ and, in particular, ‘whether that review must be comprehensive or, on the contrary, limited to cases of manifest inadequacies in those conditions of detention’;
- in the second place, the German judges asked the CJUE whether EU law dictates ‘minimum requirements as to the space per detainee in a prison cell’ and, if so, what are the ‘rules for calculating that space’;
- in the third place, the questions referred to the Luxembourg Court aimed at clarifying ‘whether the existence of legislative and structural measures relating to the improvement of the review of detention conditions in the issuing Member State must be taken into account for the purpose of that assessment’;
- in the fourth place, the Hamburg Court inquired whether a negative assessment on prison conditions ‘may be weighed against considerations relating to the efficacy of judicial cooperation in criminal matters and to the principle of mutual trust and recognition’ (see §§ 41-44 of the judgment).
The findings of the CJUE
In replying to these questions, the Grand Chamber of the CJUE felt the need to reiterate, at the outset, that the principles of mutual trust and mutual recognition are the ‘cornerstone of judicial cooperation in criminal matters’, including the system of surrender established under the European Arrest Warrant Framework Decision; that they bind the judicial authority of the requested State to ‘presume that fundamental rights [are] observed’ in the issuing Member State; and that, accordingly, the former ‘may not check whether [the latter] has actually, in a specific case, observed the fundamental rights guaranteed by the European Union’ (see §§ 45-48 of the judgment).
At the same time, the CJUE reminded that ‘limitations may be placed on the principles of mutual trust and mutual recognition in “exceptional circumstances”’, including ‘where surrender may result in the requested person being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter [of Fundamental Rights of the European Union]’ (see §§ 49-50). In so doing, the CJUE clarified that whenever ‘the [requested] judicial authority […] is in possession of information showing there to be a real risk of inhuman and degrading treatment of individuals detained in the issuing Member State […] that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender’ (see § 51 of the judgment).
Moreover, among its preliminary considerations, the Court reasserted the importance of the case law of the European Court of Human Rights , generally, in the interpretation of the Charter and, more specifically, in the interpretation of Article 4, which ‘corresponds in essence to the meaning conferred on Article 3 of the ECHR by the European Court of Human Rights’ (see § 56 of the judgment).
The nature of the review to be undertaken by the executing judicial authority
Turning to the first limb of the questions referred to it by the Hamburg Court, the Grand Chamber of the CJUE stated that the assessment required in “exceptional circumstances” by EU law to the udicial authority of the requested Member State to establish whether to refute the execution of a EAW on account of inhuman conditions of detention in the issuing Member State is two-fold.
In the first place, when it is confronted with reliable information as to the dire conditions of detention in the requesting Member State, that judicial authority ‘must’ take an ‘overall assessment of the relevant physical conditions of detention’ which cannot be confined to ‘obvious inadequacy only’ (see §§ 61-62 of the judgment).
In the second place, the judicial authority ‘must determine specifically and precisely whether, in the circumstances of a particular case, there is a real risk that that person will be subjected in the issuing Member State to inhuman or degrading treatment’ (see § 63 of the judgment). Such an assessment – in the CJUE’s own words – ‘cannot […] concern the general conditions of detention in all the prisons in the issuing Member State in which the individual concerned might be detained’, as that would be ‘clearly excessive’ and even ‘impossible to fulfil […] within the period prescribed in Article 17 of [the] Framework Decision’, but will only have to focus on the specific prison in which the requested person will be detained upon surrender (see §§ 63-64 of the judgment).
The obligation to trust the assurances given by the requesting Member State and its limits
Here comes the first problem with the judgment. How should the requested judicial authority determine the specific prison in which the individual sought pursuant to a EAW will actually be detained upon surrender?
The answer, according to the CJUE, is simple. The requested judicial authority will only have to ask: ‘the executing judicial authority must, pursuant to Article 15(2) of [the] Framework Decision […] request the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is actually intended that the individual concerned will be detained in that Member State’. Once the information is received, the requested judicial authority will ‘solely [be] required to assess the conditions of detention in [that] prison’ (see §§ 66-67 of the judgment).
This is, of course, an application of the principle of mutual trust, which demands the requested Member State to ‘rely’ on the information and the assurances given by the requesting State ‘at least in the absence of any specific indications that the detention conditions in [that] particular detention centre are in breach of Article 4 of the Charter’ (see § 68).
In fact, the Court is mindful in clarifying that the obligation of the requested judicial authority to rely on the information and the assurances given by its requesting counterpart in the issuing Member State finds a limit in ‘exceptional circumstances’, and that, assurances notwithstanding, ‘on the basis of precise information […] the executing judicial authority can find that […] there is a real risk of the person concerned being subjected to inhuman or degrading treatment […] because of the conditions of that person’s detention in the issuing Member State’ and, consequently, refute to execute the EAW (see § 69 of the judgment).
But it is plain to see that such a reasoning on the information and the assurances to be given by the requesting Member State borne us back into the dialectic between the principles of mutual trust and mutual recognition, on the one hand, and the need to guarantee a human rights compliant procedure of surrender under the EAW mechanism, on the other hand.
With the judgment under review, the CJUE has admittedly clarified the duty of the requested judicial authority to seek information and assurances from the requesting Member State, but at the same time it has opened the door to brand new questions concerning the limits on which these information and assurances are to be trusted. To be sure, this is not a problem in itself: EU law has developed in the past and keeps developing today thanks to the ever more precise preliminary rulings of the CJUE. However, the fact that, to address the question on assurances, the CJUE goes back to the principles of mutual trust and mutual recognition and their exceptions raises doubts as to whether the principles established in EU law to deal with the execution (and the refusal) of a EAW are self-sufficient, or if they are merely empty formula to be reiterated while the national authorities decide cases based on other grounds.
On a more practical note, it is also to be noted that the CJUE construes the obligation to seek information and assurances on the requested authorities alone, without stating that the authorities of the requiring Member State are under a symmetrical obligation to provide the information sought. In the absence of a clear stance by the CJUE, this judgment can thus be read as authority to argue that, if the information are not received ‘as a matter of urgency’, or, at the most, within the time-limit established by Article 17 of the Framework Decision, the requested judicial authority can take its own assessment based on the information available and refute to execute of the EAW.
The “minimum space” rule
Admittedly, the task of the CJUE was easier with regard to the second limb of the questions referred to it by the Hamburg Court, notably on the existence, in EU law, of ‘minimum space requirements in terms of personal space for detainees’ (see § 70 of the judgment).
To answer this question, the Luxembourg judges referred to the jurisprudence of the European Court of Human Rights, and specifically to the judgment handed down in the case of Muršić v Croatia, in which the Grand Chamber of the Strasbourg Court established that ‘a strong presumption of a violation of Article 3 of the ECHR arises when the personal space available to a detainee is below 3 m2 in multi-occupancy accommodation’ (see § 72 of the judgment).
Applying the reasoning developed by the European Court of Human Rights, the CJUE clarified that this ‘strong presumption’ can ‘be rebutted only if (i) the reductions in the required minimum personal space of 3 m2 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 are no other aggravating aspects of the conditions of the individual concerned’s detention’ (see § 73 of the judgment).
The Luxembourg judges further seized the opportunity to give ‘detailed rules on calculating […] the minimum space that must be available to a detainee in a multi-occupancy prison cell containing furniture and sanitary infrastructures’ (basically, the space is to be divided per any individual inmate, the area occupied by sanitary facilities is not to be taken into account while the calculation should include the space occupied by furniture; see §§ 75-79 of the judgment).
The relevance of general measures to improve the monitoring and review of prison conditions at national level
In the third place, while considering it an ‘important factor’, the CJEU stated that ‘the adoption in the issuing Member State of measures, such as the establishment of an ombudsman system’ or other national mechanisms aimed at ‘reinforc[ing] the monitoring of detention conditions in that Member State’, is not ‘in itself capable of averting the risk of [the requested] person being subjected, following his surrender, to treatment that is incompatible with Article 4 of the Charter’ and, accordingly, does not rule out the need, for the executing judicial authority to undertake the two-fold assessment described above (see §§ 80-81 of the judgment).
The (in)existence of other factors to be weighed against considerations on dire prison conditions in the requesting Member State
Finally, the CJUE came to the crucial question concerning the existence of other factors to be weighed against the possibility to refute to execute a EAW on account of the harsh conditions of detention to which the requested person would be subjected upon surrender; and namely if the requested judicial authority called to decide whether to execute a EAW should take into consideration the “risk of impunity” that would be entailed by a decision to refute the said execution.
In answering this question, the CJUE recalled that, in the recent case of Romeo Castaño v Belgium the European Court of Human Rights ‘has ruled that a court of a Member State party to the ECHR could not refuse to execute a EAW on the ground that the requested person was exposed to a risk of being subjected, in the issuing State, to detention conditions involving inhuman or degrading treatment if that court had not first carried out an up-to-date and detailed examination of the situation as it stood at the time of its decision’ (see § 57 of the judgment).
As it has been noted, in the last-mentioned case the ECtHR was very mindful in clarifying that the findings of a violation of Article 2 of the Convention against Belgium were by no means to be read as loosening the obligations on the Contracting States under Article 3 of the Convention, thus reiterating the absolute nature of the right not to be subjected to torture or to inhuman or degrading treatment or punishment and clearing all doubts as to the fact that the relevant threshold was not varied in comparison to other extradition cases.
Following this precedent, in the case under review, the Grand Chamber of the CJUE stressed that ‘Article 4 of the Charter is absolute’ and concluded that:
‘a finding, by the executing judicial authority, that there are substantial grounds for believing that, following the surrender to the issuing Member State of the person concerned by a European arrest warrant, that person will run a real risk of being subjected to such treatment, because of the conditions of detention prevailing in the prison in which it is actually intended that he will be detained, cannot be weighed, for the purposes of deciding on that surrender, against considerations relating to the efficacy of judicial cooperation in criminal matters and to the principles of mutual trust and recognition’ (see § 84 of the judgment).
The conclusion is impeccable, although its hasty formulation leaves some doubts as to its rationale.
In the ECtHR case of Romeo Castaño, there was no real issue under Article 3 of the Convention. The assessment by the Belgian jurisdictions as to the risk of ill-treatment to which the applicant would have been exposed upon surrender to Spain was so superficial that the non-refoulement obligation incumbent on Belgium was not even engaged (nor, accordingly, examined by the European Court). The case resolved around Article 2 of the Convention alone (to be precise, around the procedural obligation to cooperate under Article 2). As such, the case of Romeo Castaño examines the EAW proceedings from the point of view of the victim alone. This is the main reason that allowed the Second section of the ECtHR to conclude unanimously for the violation of that article.
On the contrary, the prohibition of refoulement is at the centre of the CJUE case under review, which is to be examined with the eyes of the accused, rather than those of the victim. Therefore, the mere reference to Romeo Castaño does not entirely justify the conclusion as to the impossibility to weigh the right of the requested person against other factors.
Fortunately, this lacuna in the judgment of the Court of Justice of the European Union is filled by the Opinion of the Advocate General, which gives a clear and legally sound reason for excluding any possibility to balance the absolute right of the requested person (under Article 4 of the Charter) to go clear from inhumane and degrading treatment upon surrender as a result of the dire conditions of detention in the requesting Member State with considerations relating to the need to avoid the “risk of impunity”.
The Advocate General argument moves to the assumption that the “risk of impunity” is but another corollary of the principles of mutual trust and mutual recognition. The whole case under review, however, resolves around one of the exceptions to these principles; namely the exception that applies to cases where there are substantial grounds for believing that, following the surrender to the issuing Member State, the requested person would run a real risk of being subjected to such treatment, as a result of the conditions of detention prevailing in the prison in which he is to be detained. It follows, in the Opinion of the Advocate General, that considerations pertaining to the principle of mutual trust cannot find their way into this exceptional review.
The conclusion is persuasive. While it relies on the case law of the European Court of Human Rights, it also takes into account the specific feature of the EU acquis and the operation of the Framework Decision. Indeed, the matter is delicate and the CJUE cannot simply replicate the reasoning of the Strasbourg Court, in yet another Tale of Two Courts, but will have to develop original solutions to keep with the principles underlying the Framework Decision while at the same time ensuring respect for the fundamental rights guaranteed at EU and ECHR level.