Dorobantu (Police and judicial cooperation in criminal matters - European arrest warrant - Opinion) [2019] EUECJ C-128/18

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(Request for a preliminary ruling from the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany))

(Reference for a preliminary ruling — Area of freedom, security and justice — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 1(3) — Charter of Fundamental Rights of the European Union — Article 4 — Prohibition of inhuman or degrading treatment — Obligation on the part of the executing judicial authorities to assess the conditions of detention in the issuing Member State — Scope of the examination — Criteria)

1. This reference for a preliminary ruling has been made in the context of the examination, by the German judicial authority, of the lawfulness of the surrender of Mr Dumitru-Tudor Dorobantu to the Romanian judicial authority, which issued a European arrest warrant on the basis of Framework Decision 2002/584/JHA. (2) That arrest warrant was issued, initially, for the purposes of conducting a criminal prosecution and, subsequently, for the purposes of executing a custodial sentence.

2. Following the judgments of 5 April 2016, Aranyosi and Căldăraru, (3) and of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), (4) this reference contributes to the definition of the assurances which must be provided in order to ensure respect for the fundamental rights of the person surrendered under a European arrest warrant where there is a general or systemic deficiency in the prison system in the issuing Member State.

3. In particular, this reference requests that the Court specify the level of review which the executing judicial authority is required to carry out in order to assess the real risk of inhuman or degrading treatment to which the person surrendered might be exposed as a result of the conditions of his detention in the issuing Member State, as well as the various factors and criteria which that authority is required to take into consideration for the purposes of that assessment.

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

5. The Explanations relating to the Charter (6) state that ‘the right in Article 4 [of the Charter] is the right guaranteed by Article 3 of the [Convention for the Protection of Human Rights and Fundamental Freedoms], (7) which has the same wording ... By virtue of Article 52(3) of the Charter, it therefore has the same meaning and the same scope as the ECHR Article’. (8)

6. The European arrest warrant established by Framework Decision 2002/584 was designed to replace the traditional extradition mechanism, which involves a decision of the executive authority, with an instrument of cooperation between the national judicial authorities based on the principles of mutual recognition of judgments and judicial decisions and mutual trust between the Member States. (9)

7. That framework decision thus establishes a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law (10) by limiting the grounds for non-execution and setting time limits for the adoption of decisions relating to the European arrest warrant. (11)

‘(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [TEU] and reflected in the Charter ..., in particular Chapter VI thereof ...

(13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

9. Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

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 [TEU].’

10. Framework Decision 2002/584 was transposed into the German legal system by Paragraphs 78 to 83k of the Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual legal assistance in criminal matters) (12) of 23 December 1982, as amended by the Gesetz zur Umsetzung des Rahmenbeschlusses über den Europäischen Haftbefehl und die Übergabeverfahren zwischen den Mitgliedstaaten der Europäischen Union (Law on the European arrest warrant and surrender procedures between the Member States of the European Union) (13) of 20 July 2006.

11. Under Paragraph 29(1) of the IRG, the Oberlandesgericht (Higher Regional Court, Germany) is to give a ruling, at the request of the Staatsanwaltshaft (Public Prosecutor’s Office, Germany), on the lawfulness of the extradition where the individual sought has not consented to simplified extradition. The decision is to be made by order, in accordance with Paragraph 32 of the IRG.

‘Mutual legal assistance and the transmission of information, if not requested, shall be unlawful if contrary to essential principles of the German legal system. If a request is made under Part VIII, mutual legal assistance shall be unlawful if contrary to the principles laid down in Article 6 TEU.’

III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

14. The German authorities received a request for surrender of the person concerned under a first European arrest warrant issued on 12 August 2016 by the Judecătoria Medgidia (District Court, Medgidia, Romania). That warrant was issued for the purposes of conducting a criminal prosecution in respect of offences relating to property and to forgery and the use of forged documents.

15. In the context of the execution of that warrant, the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) took into account evidence of systemic or generalised deficiencies in the conditions of detention in Romania. In accordance with the principles identified by the Court of Justice in the judgment in Aranyosi and Căldăraru, that court examined the information provided by the Romanian authorities regarding the conditions in which Mr Dorobantu would be incarcerated following his surrender. It is, according to the referring court, apparent from that information that the person concerned would be detained provisionally either in a 4-person multiple-occupancy cell (with an area of 12.30 m², 12.67 m² or 13.50 m²) or a 10-person multiple-occupancy cell (with an area of 36.25 m²). However, in the event of the execution of a custodial sentence, Mr Dorobantu would be incarcerated, for a period of 21 days, in an establishment in which each prisoner has a 3 m² space, and subsequently incarcerated in those same conditions should he receive a custodial sentence in a closed prison. However, should Mr Dorobantu be held in an open or semi-open prison, the personal space per person would be 2 m². (14)

16. The referring court carried out an overall assessment of those conditions of detention on the basis of the case-law of the European Court of Human Rights. In view of the considerable improvements made to the Romanian prison system, both in terms of the infrastructure and the supervisory mechanisms, it concluded that there was no real risk of inhuman or degrading treatment of the person concerned, within the meaning of the judgment in Aranyosi and Căldăraru.

17. Moreover, the referring court held that, should there be a refusal to surrender the person concerned, the offences alleged against him would go unpunished, something which would run counter to the objective of ensuring the effectiveness of the criminal justice system in the European Union.

18. On the basis of the orders of 3 and 19 January 2017 of the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg), the Generalstaatsanwaltschaft Hamburg (Public Prosecutor’s Office, Hamburg, Germany) therefore authorised the surrender of Mr Dorobantu to the Romanian authorities, which was to take effect at the end of the custodial sentence imposed on him in respect of separate offences committed in Germany.

19. However, those orders were set aside by judgment of 19 December 2017 of the Bundesverfassungsgericht (Federal Constitutional Court, Germany). That court ruled that the assessment as to the legality of the surrender of the person concerned required, first, that a request for a preliminary ruling be made to the Court of Justice in order for the latter to rule on the factors relevant to the assessment of the detention conditions in the issuing Member State.

20. By decision of 8 February 2018, the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) In the context of Framework Decision 2002/584, what are the minimum standards for custodial conditions required under Article 4 of the Charter?

(a) Specifically, is there, under EU law, an “absolute” minimum limit for the size of custody cells, pursuant to which the use of cells under that limit will always constitute an infringement of Article 4 of the Charter?

(i) When determining an individual’s portion of a custody cell, should the fact that a given cell is being used for single or multiple occupancy be taken into account?

(ii) When calculating the size of the custody cell, should areas covered by furniture (beds, wardrobes, etc.) be discounted?

(iii) What infrastructural requirements, if any, are relevant for the purposes of compliance of custodial conditions with EU law? Does direct (or only indirect) open access from the custody cell to, for example, sanitary facilities or other rooms, or the provision of hot and cold water, heating, lighting, etc. have any significance?

(b) To what extent do the various “prison regimes”, such as differing unlock times and varying degrees of freedom of movement within a penal institution, play a role in the assessment?

(c) Can legal and organisational improvements in the issuing Member State (introduction of an ombudsman system, establishment of courts of enforcement of penalties, etc.) also be taken into account, as the present Chamber did in its decisions on the permissibility of the extradition?

(2) What standards are to be used to assess whether custodial conditions comply with EU law? To what extent do those standards influence the interpretation of the term “real risk” within the meaning of the judgment of the Court of Justice in Aranyosi and Căldăraru?

(a) In that regard, are the judicial authorities of the executing Member State authorised to undertake a comprehensive assessment of the custodial conditions in the issuing Member State, or are they limited to an “examination as to manifest errors”?

(b) To the extent that, in the context of its reply to the first question referred for a preliminary ruling, the Court of Justice concludes that there are “absolute” requirements under EU law for custodial conditions, would a failure to meet those minimum standards be, in a sense, “unquestionable”, so that, as a result, such a failure would always immediately constitute a “real risk”, thereby prohibiting extradition, or can the executing Member State nevertheless carry out its own assessment? In that regard, can factors such as the maintenance of mutual legal assistance between Member States, the functioning of European criminal justice or the principles of mutual trust and recognition be taken into account?’

21. By order of 25 September 2018, the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) notified the Court of Justice that Mr Dorobantu, in the meantime, had been sentenced by the Judecătoria Medgidia (District Court, Medgidia) to two years and four months imprisonment for crimes committed in Romanian territory. That judgment was delivered in absentia on 14 June 2018. The referring court therefore indicated to the Court that the European arrest warrant issued on 12 August 2016 for the purposes of conducting a criminal prosecution had been ‘substituted’ for a new European arrest warrant issued on 1 August 2018 for the purposes of executing a custodial sentence. Nevertheless, that court indicated that it would maintain its request for a preliminary ruling in so far as the questions were still relevant for the purposes of the main proceedings.

22. Before examining the questions which the national court has referred to the Court, it seems to me necessary to make two preliminary observations.

23. The first concerns the ‘substitution’ of European arrest warrants, to which the national court made reference in its order of 25 September 2018. The second relates to the previous case-law of the Court which, in my view, establishes the framework within which the questions referred for a preliminary ruling should be answered.

24. As I have stated, in its order of 25 September 2018, the referring court notified the Court that the European arrest warrant issued by the Judecătoria Medgidia (District Court, Medgidia) against Mr Dorobantu for the purposes of conducting a criminal prosecution was ‘substituted’ during the main proceedings with a new European arrest warrant issued by the same court, this time for the purposes of giving effect to a custodial sentence.

25. Although the questions submitted by the referring court remain entirely relevant in the context of the execution of that second European arrest warrant — a fact confirmed by all the parties at the hearing — it is necessary, nevertheless, that the executing judicial authority give a decision on the expiry of the first European arrest warrant as soon as possible, and resume the procedure for the execution of the second warrant ab initio. This is necessary in order to guarantee observance of the principle of legal certainty and the protection of the rights and guarantees conferred by Framework Decision 2002/584 on the requested person.

26. Indeed, by its very nature and by reason of the legal and material conditions of its implementation, the second European arrest warrant cannot be executed merely by substituting the first.

27. According to Article 1(1) of Framework Decision 2002/584, ‘the European arrest warrant is a judicial decision’. The alleged ‘substitution’ cannot therefore mask the fact that the second European arrest warrant issued for the purpose of executing a custodial sentence is based on a new national judgment and constitutes a judicial decision which is separate from the decision on which the first European arrest warrant was based, and which, accordingly, must meet specific legal and material conditions. It is sufficient, therefore, to point out that the execution of that second European arrest warrant could lead to a further period of detention which will not be treated in the same way as a provisional pre-trial detention measure — which was the case under the first European arrest warrant —, but as the beginning of the serving of the sentence, since the period thus served must be deducted from the sentence to be executed. (15)

28. The execution of the second European arrest warrant therefore requires, on the one hand, that the executing judicial authority give a decision on the expiry of the first European arrest warrant and, on the other hand, that it resume the execution procedure ab initio, thereby checking the validity of all the conditions governing execution of that second warrant, which is what appears to emerge, in the case in the main proceedings, from the order of 25 September 2018 notified by the referring court.

29. The second observation concerns the rules and principles which the Court identified, first, in the judgment in Aranyosi and Căldăraru, and, subsequently, in the judgment in Generalstaatsanwaltschaft. That case-law establishes the framework within which the present questions referred for a preliminary ruling should be analysed and answered.

30. In the judgment in Aranyosi and Căldăraru, for the first time, the Court allowed a limitation on the principles of mutual trust and mutual recognition between Member States by requiring the executing judicial authority to carry out a review of the conditions of detention in the issuing Member State if, by reason of deficiencies in the prison system of that State, the person surrendered is liable to be exposed to a real risk of inhuman or degrading treatment, contrary to Article 4 of the Charter.

31. In that judgment, the Court set out the framework within which that review must be carried out, determining the legal basis for that review and the purpose, typology, nature and implications thereof.

32. That review is based on Article 1(3), Article 5 and Article 6(1) of Framework Decision 2002/584, and has the aim of ensuring compliance with Article 4 of the Charter, which, as the Court recalled, enshrines ‘one of the fundamental values of the Union and its Member States’ (16) and ‘is absolute’. (17)

33. That review is to be carried out only when the executing judicial authority finds, on the basis of information that is objective, reliable, specific and properly updated, that there are deficiencies in the prison system of the issuing Member State, which may be systemic or generalised, or which may affect certain groups of people, or certain places of detention. (18)

34. In those circumstances, the executing judicial authority is required to make an assessment, which must be ‘specific and precise’, as to whether there are substantial grounds to believe that the person surrendered will be exposed to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. (19)

35. A finding of a general deficiency in the prison system of the issuing Member State is therefore followed by a detailed, individual assessment of the risk to which the person surrendered will be exposed.

36. That review could have a major impact on the execution of the European arrest warrant. The Court has confirmed that it may lead the executing judicial authority to postpone, or even bring to an end, the surrender of the person concerned. (20)

37. Following the judgment in Aranyosi and Căldăraru, the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen, Germany) made two further references for a preliminary ruling to the Court. The first, made on 12 September 2016 in the context of the procedure for the execution of two European arrest warrants issued against Mr Pál Aranyosi, led to the adoption of an order that there was no need to adjudicate, since the European arrest warrants issued against the concerned party had been withdrawn before the Court gave its judgment. (21)

38. The second, made on 27 March 2018 in the context of the execution of a European arrest warrant issued against ML, enabled the Court, in its judgment in Generalstaatsanwaltschaft, to clarify the scope and reach of the principles which it identified in the judgment in Aranyosi and Căldăraru, (22) in particular, in the context of the detailed, individual assessment of the risk of inhuman or degrading treatment.

39. Accordingly, the Court held, in the judgment in Generalstaatsanwaltschaft, that Article 1(3), Article 5 and Article 6(1) of Framework Decision 2002/584 must be interpreted as meaning that ‘when the executing judicial authority has information showing there to be systemic or generalised deficiencies in the conditions of detention in the prisons of the issuing Member State, ...:

– the executing judicial authority is required to assess only the conditions of detention in the prisons in which, according to the information available to it, it is likely that [the person in respect of whom a European arrest warrant has been issued for the purpose of executing a custodial sentence] will be detained, including on a temporary or transitional basis;

– the executing judicial authority must assess, to that end, solely the actual and precise conditions of detention of the person concerned that are relevant for determining whether that person will be exposed to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter];

– the executing judicial authority may take into account information provided by authorities of the issuing Member State other than the issuing judicial authority, such as, in particular, an assurance that the individual concerned will not be subject to inhuman or degrading treatment within the meaning of Article 4 of the [Charter].’

40. The judgment in Generalstaatsanwaltschaft was delivered on 25 July 2018, a few months after the present request for a preliminary ruling had been submitted. In my view, that judgment answers most of the questions asked by the referring court in the present case.

41. It is preferable to analyse the questions in a different order from that in which the national court has set them out.

42. Although, by its first question and paragraph (b) of its second question, the referring Court asks the Court to rule on the various factors which the executing judicial authority must take into account in order to make a specific and precise assessment of the conditions of detention in the issuing Member State, I believe that it is essential to determine, at the outset, the level of that review, as the referring court requests in paragraph (a) of its second question.

A. The level of review of the conditions of detention in the establishment in which the person surrendered is likely to be incarcerated

43. By paragraph (a) of its second question, the referring court asks the Court, in essence, to specify the level of review which the executing judicial authority must carry out when it makes a detailed, individual assessment of whether the person surrendered is at risk of being subjected to inhuman or degrading treatment as a result of the conditions of his detention in the issuing Member State.

44. In particular, the referring court wishes to know whether the executing judicial authority must carry out a ‘comprehensive’ assessment of the conditions in which the person surrendered will be detained in the issuing Member State, or rather whether it must conduct a ‘light touch’ review of those conditions, limited to ‘manifest errors’. In that context, the referring court appears to be asking whether the executing judicial authority can accept the issuing Member State’s assurance that the person concerned will not be subjected to any inhuman or degrading treatment as a result of his conditions of detention.

45. As I have pointed out, those questions can be answered on the basis of the rules and principles which the Court identified, first, in the judgment in Aranyosi and Căldăraru and, subsequently, in the judgment in Generalstaatsanwaltschaft.

46. Although, in the judgment in Generalstaatsanwaltschaft, the Court was able to limit the scope ratione loci of the review which the executing judicial authority is required to carry out by restricting it to an assessment of the conditions of detention in the prisons in which ‘it is likely’ (23) or ‘it is actually intended’ that that person will be detained, including on a temporary or transitional basis, (24) it nonetheless took particular care to demonstrate that that review involves an examination of all relevant material aspects of the detention.

47. It is common ground that the right not to be subjected to inhuman or degrading treatment, within the meaning of Article 4 of the Charter, is an absolute right which may be found to have been infringed only on the basis of an assessment which takes into account all the relevant circumstances of the case.

48. That principle was stated implicitly, first of all, in the judgment in Aranyosi and Căldăraru, since the Court required the executing judicial authority to make a ‘specific and precise’ (25) assessment of whether there was a real risk of inhuman or degrading treatment.

49. The same principle was subsequently confirmed in the judgment in Generalstaatsanwaltschaft.

50. In the case which gave rise to that judgment, the Court was specifically asked whether, in order to comply with Article 1(3), Article 5 and Article 6(1) of Framework Decision 2002/584, the executing judicial authority was required to ‘conduct a comprehensive assessment of the conditions of detention’ in the issuing Member State, to determine not only the personal space available to each prisoner, but also ‘other conditions of detention’. (26) The Court was also asked whether those conditions were to be assessed in the light of the case-law of the European Court of Human Rights as established in its judgment of 20 October 2016, Muršić v. Croatia. (27)

51. In the judgment in Generalstaatsanwaltschaft, the Court stated, at the outset, that, under Article 3 ECHR, the assessment of the minimum level of severity of ill-treatment ‘depends on all the circumstances of the case’, (28) and thus that the executing judicial authority was required, if necessary, to request further details on ‘the actual and precise conditions of detention’ of the person concerned. (29)

52. As regards conditions of detention, the Court referred to those expressly mentioned by the European Court of Human Rights in the judgment in Muršić v. Croatia. (30) The executing judicial authority must take into account not only the personal space available to a prisoner during his incarceration, but also other relevant aspects which might affect the conditions of his detention. That authority must therefore take into consideration the duration and extent of the restriction on personal space, but also the prisoner’s freedom of movement outside the cell and the out-of-cell activities available to him and, finally, must take into account whether the infrastructure and services at the prison in question are generally appropriate. By contrast, the Court held that the executing judicial authority cannot base its assessment on factors that are of no obvious relevance in the context of custodial sentences. (31)

53. In the light of the principles identified by the Court in the judgment in Generalstaatsanwaltschaft, the executing judicial authority is therefore required to assess the real risk of inhuman or degrading treatment to which the person surrendered would be exposed as a result of the conditions of his detention in the prison in which he is likely to be incarcerated, examining all the material aspects of the detention which are relevant to that assessment. However, as I pointed out in my Opinion in the case which gave rise to that judgment, that examination cannot cover aspects which go beyond what is necessary for the purposes of the assessment. (32)

54. Here, as regards the importance to be attached to the assurance provided by the authorities of the issuing Member State, I would point out that, in that judgment, the Court ruled that it is a factor which the executing judicial authority ‘cannot disregard’. (33) In particular, the Court held that, in the absence of any specific indications that the conditions of detention in a particular establishment are in breach of Article 4 of the Charter, the executing judicial authority ‘must rely on that assurance’ in view of the mutual trust on which the European arrest warrant system is based. (34)

55. I cannot therefore subscribe to the view that the executing judicial authority may call into question and check the reliability of that assurance against the available information on the conditions of detention in the Member State concerned.

56. If there were such an assessment, far from encouraging the mutual confidence which should prevail in relations between the issuing and executing judicial authorities, it would give rise to mutual mistrust and, indirectly, call into question the simplified surrender system on which the European arrest warrant is based.

57. Moreover, I would point out that, in EU law, commitments made by a Member State authority are binding on the Member State, in accordance with the principles governing proceedings for failure to fulfil obligations. By way of illustration, if the commitments made by the issuing judicial authority, through a prison administration authority such as the directorate-general for the execution of sentences, were not honoured, with the result that the person surrendered would be liable to be subjected to inhuman or degrading treatment contrary to the provisions of the Charter and the ECHR, the issuing Member State would incur liability. Furthermore, as stated in my Opinion in Generalstaatsanwaltschaft (Conditions of detention in Hungary), (35) the breach of such a commitment may be relied on before the courts of the issuing Member State by the person surrendered.

B. The criteria underlying the review of the conditions of detention in the establishment in which the person surrendered is likely to be incarcerated

58. The first question and paragraph (b) of the second question which the referring court has put to the Court must be examined together. Both concern the criteria on the basis of which the executing judicial authority must make a specific and precise assessment of the real risk of inhuman or degrading treatment resulting from the conditions of detention in the issuing Member State.

59. First of all, the referring court asks the Court whether, under EU law, there is an absolute minimum requirement for the amount of personal space to be allocated to each prisoner. It also asks the Court to provide clarification on how to calculate the size of that space in the context of a single- or multiple-occupancy cell containing furniture and sanitary facilities.

60. Next, the referring court considers other factors which may be taken into consideration for the purposes of that assessment, making reference, in particular, to the prison’s infrastructure, the nature of the prison regime, as well as to the legal and organisational improvements made by the issuing Member State with regard to the execution of custodial sentences.

61. Finally, should the Court hold that there are ‘absolute’ requirements, under EU law, as regards conditions of detention, the referring court wishes to know whether the executing judicial authority may, nevertheless, weigh such requirements against those stemming from compliance with the principles of mutual trust and recognition and from the effective functioning of the European arrest warrant system.

62. Again, the judgment in Generalstaatsanwaltschaft sets out the guidelines which the Court must follow for the purposes of its replies to the referring court.

63. In Generalstaatsanwaltschaft, the Court took care to state at the outset that there are no minimum standards under EU law regarding conditions of detention.

64. In so far as Article 4 of the Charter has the same meaning and scope as Article 3 ECHR, the Court relied on the principles identified in the case-law of the European Court of Human Rights. (36)

65. In particular, the Court referred to the judgment in Muršić v. Croatia, in which the Grand Chamber of the European Court of Human Rights summarised the rules and standards identified in its case-law as regards prison overcrowding and clarified the conditions under which the lack of personal space in a cell may be found to be contrary to Article 3 ECHR.

66. The Court thus adopted the same approach as it had taken in the judgment in Aranyosi and Căldăraru. In that judgment, the Court expressly referred to the landmark ruling of the European Court of Human Rights of 8 January 2013, Torreggiani and Others v. Italy, (37) in order to determine the general obligations incumbent on the authorities of the issuing Member State as regards the detention of any prisoner. (38)

67. Accordingly, in the judgment in Generalstaatsanwaltschaft, the Court recalled that, under Article 3 ECHR, ill-treatment must attain a minimum level of severity, which depends on all the circumstances of the case, including the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. (39)

68. The Court then went on to consider the space factor in conditions of detention, pointing out, in paragraphs 92 and 93 of its judgment, the following:

‘92. In view of the importance attaching to the space factor in the overall assessment of conditions of detention, a strong presumption of a violation of Article 3 [ECHR] arises when the personal space available to a detainee is below 3 m² in multi-occupancy accommodation ([Muršić v. Croatia], § 124).

93. The strong presumption of a violation of Article 3 [ECHR] will normally be capable of being 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 [detention of the individual concerned] ([Muršić v. Croatia], § 138).’

69. Moreover, in paragraphs 97 to 100 of that judgment, the Court ruled on the significance of the factor relating to the duration of the detention period, emphasising, in particular, the fact that ‘the relative brevity of a detention period does not automatically mean that the treatment at issue falls outside the scope of Article 3 [ECHR] when other factors are sufficient to mean that it is caught by that provision’. (40)

70. Finally, in paragraph 103 of that judgment, the Court held that the executing judicial authority cannot base its assessment of the existence of a real risk of inhuman or degrading treatment on aspects that are of no obvious relevance in the context of custodial sentences, such as opportunities for religious worship, whether it is possible to smoke, the arrangements for the washing of clothing and whether there are bars or slatted shutters on cell windows.

71. Despite the criticism drawn by the judgment in Muršić v. Croatia, (41) I think that, as EU law now stands, the Court adopted an approach which makes it possible to ensure the necessary consistency between the Charter and the ECHR, in accordance with the objective pursued by Article 52(3) of the Charter. (42)

72. It is true that that provision does not preclude EU law from providing protection that is more extensive than that provided by the ECHR. (43) Nevertheless, I think that the material conditions required for this are lacking in the present case. At present, there are no provisions regulating the conditions of detention in the European Union and it does not fall to the Court to establish figure-based requirements as to the amount of personal space to be made available to a prisoner, even if these take the form of a minimum standard. That task does not fall within the remit of the Court, but within that of the legislature. Moreover, it must be recognised that the Court does not, at present, have the necessary expertise in that regard, unlike the European Court of Human Rights and the other bodies of the Council of Europe, which have gained special expertise in the field of prison systems and a practical knowledge of the conditions of detention in the States by means of the disputes brought before the former and the reports and on-site inspections for which the latter is responsible.

73. Finally, I would point out that the requirements laid down by the European Court of Human Rights are minimum standards. In the European Union and, in particular, within the European judicial area, those requirements must ensure a uniform minimum requirement, applicable to all Member State prison systems and transcending the differences between them, which helps to strengthen the mutual trust which the Member States must have for each other. I would also point out, nevertheless, that, at national level, each Member State is free to set a more generous standard as regards the conditions of detention in their own prisons, which cannot be enforced against neighbouring States in the context of the execution of a European arrest warrant.

74. It is now appropriate to consider in detail the questions which the national court has referred to the Court.

75. As I have already pointed out, in the judgment in Generalstaatsanwaltschaft the Court stated at the outset that there are no minimum standards under EU law regarding conditions of detention. (44) In those circumstances, the Court defined the minimum personal space to be allocated per prisoner by reference to the minimum requirement for personal space, set by the European Court of Human Rights, of 3 m².

77. Indeed, the assessment of the minimum level of severity which ill-treatment must attain if it is to come within the scope of Article 3 ECHR is, by its nature, relative. It cannot merely be a question of precisely determining the number of square metres of space which must be available to the prisoner, since such an approach does not take into account all the conditions of detention which affect his everyday life.

78. As acknowledged by the Court, the space factor is significant. (45) It must, however, form part of an overall assessment of the conditions of detention which must take into account all the relevant material aspects. Accordingly, although a strong presumption of breach of Article 3 ECHR arises when the size of the minimum space is less than 3 m² in a multiple-occupancy cell, that presumption is, nevertheless, capable of being rebutted if there are factors which adequately compensate for the lack of personal space. The Court stated this clearly in paragraphs 92 and 93 of the judgment in Generalstaatsanwaltschaft. (46)

79. For its part, the European Court of Human Rights does not automatically hold the view that a minor deviation from the minimum standard of 3 m² of floor space per prisoner in a multiple-occupancy cell constitutes, in itself, inhuman or degrading treatment.

80. Similarly, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘the CPT’) does not claim that its standards relating to ‘living space per prisoner’ are absolute. The CPT can accept a minor deviation from the standard of 4 m² of living space per prisoner in a multiple-occupancy cell, or 6 m² of living space for a single-occupancy cell, where there are other, alleviating, factors relating to, for example, all the out-of-cell activities in which prisoners may participate. (47)

81. In order to determine the minimum requirement for the amount of personal space to be allocated to each prisoner, it is necessary to take into account a number of factors.

82. First, that minimum requirement depends on whether the prisoner is held in a single-occupancy or multiple-occupancy cell. (48)

83. There are two types of prison accommodation which give rise to separate concerns and therefore each require a specific assessment of the living space available to the prisoner. While a single-occupancy cell is often considered the only type of accommodation capable of ensuring the dignity and physical safety of the prisoner, it can expose the prisoner to specific risks relating to loneliness and lack of social interaction. By contrast, accommodation in a multiple-occupancy cell is likely to expose the prisoner to poor hygiene conditions and to the risk of intimidation or violence if prisoners are held in extremely cramped conditions. In those circumstances, the minimum standards set by the European Court of Human Rights in the judgment in Muršić v. Croatia in regard to accommodation in a multiple-occupancy cell are not applicable, as such, to accommodation in a single-occupancy cell, which, moreover, was recognised by the European Court of Human Rights. (49)

84. The CPT recognises that personal living space standards differ depending not only on the type of establishment, but also on the occupancy level of the cell and the detention regime to which the prisoners are subject. (50) As regards the occupancy level, the CPT draws a very clear distinction between single-occupancy and multiple-occupancy cells. In the case of multiple-occupancy cells, the CPT does not regard a double cell as being comparable to a cell designed to hold 6 to 10 prisoners. It also takes care to distinguish between dormitories accommodating around 10 prisoners from large dormitories occupied by up to 100 people.

85. Secondly, it is clear from the case-law of the European Court of Human Rights and from the recommendations of the CPT that the minimum personal space must not include the space occupied by the sanitary facilities within a cell. (51)

86. However, that space should, in principle, include the floor space occupied by furniture. The European Court of Human Rights must, nevertheless, take into account the extent to which the prisoner’s living space is actually reduced by the furniture in the cell in order to ensure that the prisoner is able to move around normally within the cell or to move freely between the items of furniture. (52)

87. If a prisoner has less than 3 m² of personal space available to him in a multiple-occupancy cell, the European Court of Human Rights examines the cumulative effect of the other material conditions of his detention in order to determine whether those conditions, by reason of their deficiencies, amount to aggravating circumstances, or whether, conversely, by reason of their compliance with the standards defined, they are capable of ‘adequately compensating for the scarce allocation of personal space’ (53) and, therefore, of rebutting the presumption of breach of Article 3 ECHR.

88. The referring court therefore requests the Court to identify those other material aspects of detention which are relevant to the assessment of specific conditions of incarceration.

89. In paragraph 93 of the judgment in Generalstaatsanwaltschaft, the Court set out a number of aspects which the executing judicial authority is required to examine in order to assess whether or not the lack of personal space is accompanied by material conditions of detention which are compatible with the prisoner’s fundamental rights.

91. I would point out that, in paragraphs 97 to 100 of that judgment, the Court provided some guidance on how to assess the duration and extent of the restriction. Relying on the case-law of the European Court of Human Rights, the Court recalled that the length of the detention period is a relevant factor. However, the Court was careful to specify that the relative brevity of a detention period or the fact that detention is temporary or transitional does not, in itself, rule out the risk of inhuman or degrading treatment where other factors are sufficient for the detention to be caught by Article 3 ECHR.

92. The second aspect concerns the prisoner’s freedom of movement outside the cell and the out-of-cell activities available to him.

93. The executing judicial authority must therefore assess the personal space available to the prisoner in the light of the time that he spends inside his cell. In the judgment in Generalstaatsanwaltschaft, the Court did not give any details on how to assess that aspect of detention. However, the case-law of the European Court of Human Rights summarised in the judgment in Muršić v. Croatia supplements that of the Court of Justice. According the European Court of Human Rights, prisoners must be able to spend a reasonable part of the day outside their cells engaged in work, education or sports, or recreational activities, the quality and quantity of which it assesses. In that regard, the European Court of Human Rights takes into account the configuration of facilities outside the cell, as these must provide sufficient space which is open to the outside.

94. Finally, the third aspect concerns the general appropriateness of the conditions of detention.

95. Again, in the judgment in Generalstaatsanwaltschaft, the Court did not give any guidance on how to assess that aspect. However, according to the clarifications provided by the European Court of Human Rights in the judgment in Muršić v. Croatia, the executing judicial authority must carry out a very specific assessment of the layout of the cell and of the essential services and infrastructure of the prison in which the person surrendered is likely to be incarcerated. (54)

96. I emphasise the ‘essential’ nature of the prison services and infrastructure which are relevant to that assessment. The executing judicial authority may not examine, and, to that end, request additional information on, aspects of detention which are of absolutely no relevance for the purposes of Article 4 of the Charter. That was the situation in the case which gave rise to the judgment in Generalstaatsanwaltschaft. In that judgment, the Court expressly stated that requests for additional information may be made only in respect of aspects of detention which are relevant in assessing the gravity of suffering or humiliation caused to a prisoner by the inadequate conditions of his detention. As I have already pointed out, the Court thus excluded aspects such as those concerning opportunities for religious worship, whether it is possible to smoke, or services such as the washing of clothes. (55)

97. I would point out that the assessment of those various factors must necessarily take into account the type of prison in which the prisoner is incarcerated and the prison regime to which he is subject.

98. The conditions of detention of a prisoner incarcerated in a maximum security prison, in other words, an establishment for persons who are serving long prison sentences or who pose particular risks, are very different from those of a prisoner who is in an open prison on a day-release programme or on a placement in the community. The European Court of Human Rights therefore holds that the former must benefit from more favourable arrangements as regards his freedom of movement within the establishment and the out-of-cell activities available (work, recreation, education). That is logical, in so far as the latter is permitted to leave the establishment during the day in order to engage in work, pursue education or be involved in any other settlement or reintegration programme.

99. It is in the light of those various aspects that the executing judicial authority must assess whether or not the lack of personal space is compensated for by adequate material conditions of detention.

100. In a situation such as that at issue in the main proceedings, where it is clear from the information provided by the issuing Member State that the floor space available to the person surrendered will be 3 m² or less, (56) I would point out that the space factor is decisive and gives rise to a strong presumption of breach of Article 4 of the Charter. The assessment of the cumulative effect of those various aspects must therefore enable the executing judicial authority to determine whether that presumption can be rebutted.

101. By contrast, the situation will be completely different where the floor space available to the prisoner is between 3 m² and 4 m². Although the space factor is still important, it does not give rise to a presumption of breach. The executing judicial authority must therefore determine whether the lack of personal space is accompanied by material conditions of detention which are adequate or, conversely, by material conditions of detention which are incompatible with the prisoner’s fundamental rights, and point to a breach of Article 4 of the Charter.

4. The relevance of factors relating to legislative and structural measures for the improvement of the execution of sentences in the issuing Member State

102. The referring court asks the Court whether the executing judicial authority may take into account improvements made by the issuing Member State as regards both its prison infrastructure and its mechanisms for monitoring the execution of sentences.

103. The executing judicial authority may take into account all the legislative and structural measures adopted by the issuing Member State which contribute to improving the protection of persons deprived of their liberty against the real risk of inhuman or degrading treatment. Thus, the recognition of the prisoner’s right of complaint, the implementation of an effective system of remedies before the prison administration and the authorities responsible for monitoring the execution of sentences, or even the establishment of an independent body responsible for guaranteeing respect for human rights in detention facilities, are all measures which contribute to the development of a system for the execution of sentences that respects fundamental rights.

104. Nevertheless, as I had pointed out in my Opinion in Generalstaatsanwaltschaft (Conditions of detention in Hungary), (57) those measures might not be sufficient if the executing court has legitimate doubts regarding the possibility that the person surrendered might immediately suffer inhuman or degrading treatment, irrespective of whether that infringement is subsequently redressed through effective legal remedies in the issuing State. Thus, regardless of their nature, those measures are, in principle, of general scope and, as such, cannot mitigate the real risk of inhuman or degrading treatment to which the person surrendered would be exposed as a result of the conditions of his detention in the prison in which he is likely to be incarcerated.

5. The relevance of factors relating to the general principles underlying the European criminal justice area

105. By paragraph (b) of its second question, the referring court asks whether, in the event that the Court holds that there are ‘absolute’ requirements under EU law as regards conditions of detention, the executing judicial authority may, in the context of its assessment of the real risk of inhuman or degrading treatment, weigh such requirements against those stemming from compliance with the principles of mutual trust and recognition and from safeguarding the effectiveness of the European arrest warrant system.

106. Although the European Union imposes an absolute requirement, that requirement does not concern standards relating to conditions of detention, but rather respect for human dignity and the prohibition of any inhuman or degrading treatment resulting from those conditions of detention, in accordance with Articles 1 and 4 of the Charter.

107. However, the right to human dignity and the right not to be subjected to inhuman or degrading treatment are absolute rights which cannot, per se, be balanced against other interests. The Court was careful to point this out in the judgment in Aranyosi and Căldăraru, observing that the ECHR prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned, in any circumstances, including those of the fight against terrorism and organised crime. (58) Those rights may not, therefore, be subject to any of the limitations provided for in Article 52(1) of the Charter.

108. In the context of the review which the executing judicial authority must carry out, that authority may not, therefore, weigh the need to guarantee that the person surrendered will not be subject to any inhuman or degrading treatment within the meaning of Article 4 of the Charter against the requirements stemming from compliance with the principles of mutual trust and recognition and from the effective functioning of the European arrest warrant system.

109. Moreover, those factors cannot be taken into account because of the essence and the very nature of the review which the executing judicial authority must carry out in the context of the execution of a European arrest warrant. As is apparent from the judgment in Aranyosi and Căldăraru, that review constitutes, in itself, an exception to the principles of mutual trust and recognition and may cover only the conditions of detention in the issuing Member State, whether they are the general conditions prevailing in that State or the specific conditions in which it is intended that the person surrendered will be held in that State, to the exclusion of any other consideration concerning the principles underlying the European criminal justice area.

110. In the light of all the foregoing considerations, it now falls to the executing judicial authority to determine, in the light of the information provided by the authorities in the issuing Member State, whether the conditions in which Mr Dorobantu will be held after his surrender are liable to jeopardise the right guaranteed to him by Article 4 of the Charter.

111. In that regard, I note that the doubt as to the lawfulness of Mr Dorobantu’s surrender had been allayed by the executing judicial authority before the Bundesverfassungsgericht (Federal Constitutional Court) set aside the orders of 3 and 19 January 2017 on the ground that no reference for a preliminary ruling had been made to the Court.

112. I would point out that, in the main proceedings, the executing judicial authority had carried out an overall assessment of the conditions in which Mr Dorobantu would be incarcerated following his surrender, by examining the information provided by the Romanian authorities in the context of the case-law of the European Court of Human Rights.

113. I note also that, at the hearing, the Romanian Government confirmed that, after his surrender, Mr Dorobantu would be held in a semi-open system. Accordingly, it stated that the Mr Dorobantu could enjoy extensive freedom of movement and could also work, which would limit the time spent inside the cell.

114. In the light of the foregoing, I propose that the Court should answer the questions referred for a preliminary ruling by the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) as follows:

Article 1(3), Article 5 and Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in conjunction with Article 4 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that:

– when the executing judicial authority has information showing there to be systemic or generalised deficiencies in the conditions of detention in the prisons of the issuing Member State, it is required to assess the real risk of inhuman or degrading treatment to which the person surrendered would be exposed as a result of the conditions of his detention in the prison in which he is likely to be incarcerated, carrying out an overall assessment of all the material aspects of the detention which are relevant to that risk assessment;

– the executing judicial authority must attach particular importance to the factor relating to the minimum personal space which will be available to the person surrendered during his detention. In the absence of standards defined by EU law, that factor is determined by reference to the minimum requirement defined by the European Court of Human Rights, which is not an absolute minimum;

– when determining the minimum personal space which will be available to the person surrendered, the executing judicial authority must take into account whether the cell in which he is likely to be held is a single-occupancy or a multiple-occupancy cell. The authority must include the space occupied by furniture, but exclude the space occupied by sanitary facilities;

– if it is clear from the information provided by the issuing Member State that the minimum personal space which will be available to the person surrendered will be 3 m² or less, the executing judicial authority must examine whether the other material aspects of detention are capable of adequately compensating for the lack of personal space and of rebutting the presumption of breach of Article 4 of the Charter. In particular, that authority must assess the conditions relating to the layout of the cell in which the person surrendered will be held, the general appropriateness of the essential services and infrastructure of the prison and the aspects relating to the prisoner’s freedom of movement and the out-of-cell activities available to him;

– the assessment of those various factors must necessarily take into account the duration and extent of the restriction, the type of prison in which the person surrendered will be incarcerated and the prison regime to which he will be subject;

– the executing judicial authority may also take into account legislative and structural measures for the improvement of the execution of sentences in the issuing Member State. Nevertheless, given their general scope, those measures cannot, as such, mitigate the real risk of inhuman or degrading treatment to which the person surrendered would be exposed as a result of the conditions of his detention in the prison in question;

– in the context of its assessment, the executing judicial authority may not weigh the need to guarantee that the person surrendered will not be subject to any inhuman or degrading treatment within the meaning of Article 4 of the Charter against the requirements stemming from compliance with the principles of mutual trust and recognition and from safeguarding the effectiveness of the European criminal justice system.

2 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).

3 C‑404/15 and C‑659/15 PPU, ‘the judgment in Aranyosi and Căldăraru’, EU:C:2016:198.

4 C‑220/18 PPU, ‘the judgment in Generalstaatsanwaltschaft’, EU:C:2018:589.

9 First subparagraph of Article 82(1) TFEU and recitals 5, 6, 10 and 11 of Framework Decision 2002/584.

10 See judgments of 29 January 2013, Radu (C‑396/11, EU:C:2013:39, paragraph 34), and of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 37).

11 See judgment of 30 May 2013, F (C‑168/13 PPU, EU:C:2013:358, paragraphs 57 and 58).

14 That information appears in the order of 3 January 2017 of the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg), annexed to the national case file which was sent to the Court. At the hearing, the representative of the Romanian Government stated that Mr Dorobantu would spend a very limited time in that space measuring less than 3 m², since he would be held in a semi-open system, and would therefore be able to move around unaccompanied and to work.

21 Accordingly, the ‘Aranyosi II’ case became devoid of purpose, as the Court held in the order of 15 November 2017, Aranyosi (C‑496/16, not published, EU:C:2017:866).

22 In the judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586), the Court adopted the same principles and followed the same logic as that used in the judgments in Aranyosi and Căldăraru and Generalstaatsanwaltschaft, as regards the real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of the judiciary in the issuing Member State.

26 I am employing, here, the wording used by the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen) in its reference for a preliminary ruling.

32 Opinion in Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:547, points 62 and 76).

36 The Court based its reasoning on the wording of Article 52(3) of the Charter (see point 5 of this Opinion).

41 See, in that regard, the dissenting opinions annexed to that judgment, and in legal literature, Tulkens, F., ‘Cellule collective et espace personnel, un arrêt en trompe-l’œil (obs. sous Cour eur. dr. h., Gde Ch., arrêt Muršic c. Croatie, 20 octobre 2016)’, Revue trimestrielle des droits de l’homme, No 112, Anthemis, Wavre, 2017, pp. 989 to 1004; Robert, A-G., ‘Conséquences du manque flagrant d’espace personnel’, AJ Pénal, Dalloz, Paris, 2017, p. 47.

42 See explanation on Article 52 of the Charter (see footnote 6 of this Opinion).

43 See judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 129 and the case-law cited). See also judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraphs 62 to 67), in which the Court relied, in particular, on the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), in order to set out the content of Article 47 of the Charter which guarantees a right to an independent and impartial tribunal.

47 See the CPT standards on ‘Living space per prisoner in prison establishments’ of 15 December 2015, available at the following web address: https://rm.coe.int/16806cc449 (paragraph 21).

48 Similarly, determining the size of that space depends on whether the person is detained in isolation or under other similar detention regimes, or in waiting rooms or similar spaces used for very short periods of time (such as police stations, psychiatric establishments, immigration detention facilities), but this has not been claimed in the present case (see the judgment in Muršić v. Croatia (§ 92)).

51 Judgment in Muršić v. Croatia (§ 114) and the CPT standards cited in footnote 47 (paragraph 10).

52 See, in that regard, ECtHR, 2 February 2010, Mariana Marinescu v. Romania (CE:ECHR:2010:0202JUD003611003, § 66 and the case-law cited), and 10 January 2012, Ananyev and Others v. Russia (CE:ECHR:2012:0110JUD004252507, § 148).

54 Those factors are specified in §§ 132 to 135 of the judgment in Muršić v. Croatia.

56 I would point out that, according to the order of 3 January 2017, annexed to the national case file which was sent to the Court, Mr Dorobantu would serve his sentence in a cell providing him with 3 m² of personal space if he receives a custodial sentence in a closed prison system, and would have less than 3 m² of personal space if he is held in an open prison on a day-release programme.

58 See the judgment in Aranyosi and Căldăraru (paragraph 87). Here, the Court referred to the judgment of the ECtHR of 28 September 2015, Bouyid v. Belgium (CE:ECHR:2015:0928JUD002338009, § 81 and the case-law cited).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Dorobantu (Police and judicial cooperation in criminal matters - European arrest warrant - Opinion) [2019] EUECJ C-128/18_O (30 April 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C12818_O.html Cite as: EU:C:2019:334, [2020] WLR 2485, [2020] 1 WLR 2485, [2019] EUECJ C-128/18_O, ECLI:EU:C:2019:334

Court of Justice of the European Communities (including Court of First Instance Decisions)