Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The cases Aranyosi and Căldăraru are relevant for the interpretation of the relationship between mutual trust and fundamental rights, in particular Article 3 ECHR and Article 4 CFREU (Prohibition of torture and inhumen or degrading treatment or punishment) in the context of executing an European Arrest Warrant (EAW).The judgement elaborates upon the limits of mutual trust and the obligations of the executing authority to take due diligence when executing an EAW.
Further, the case highlights the absolute and non-derogable nature of the prohibition contained in Article 3 ECHR and Article 4 CFREU that continues to apply in the context of mutual recogniton. The judgement also states that prison conditions in some Member States fall below minimum standards and thus endanger the right not to be subjected to ill-treatment as guaranteed under the ECHR and CFREU. Although, systematic failures do not necessarily amount to a violation, specific evidence on the individual risk can evoke the obligation to refuse to execute the warrant.
Aranyosi: Mr Aranyosi is a Hungarian national, against whom the Hungarian Court has issued two European Arrest Warrants, the first on November 4th 2014 because the suspect had stolen appr. 2,800 EUR in cash and valuable items and the second on December 31st 2014 because he had broken several doors inside a school and stolen objects, causing damages amounting to appr. 1,000 EUR. On January 14th 2015, he was arrested in Bremen, Germany, based on a request for international search entered into the Schengen Information System, and was brought before the investigator on the same day. Mr. Aranyosi declined to consent to his surrender.
The Public Prosecutor of the district of Miskolc (Hungary) stated that it was not inevitable that there would be an enforcement measure of preventive detention and could not stated in which prison Mr Aranyosi would be held in the event that he was surrendered.
The European Court of Human Rights (ECtHR) has found Hungary to be in violation of Article 3 ECHR by reasons of the overcrowding in its prisons resulting in inhuman conditions for detention (Varga and Others v Hungary). Further, the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) has referred to the significant prison overcrowding identified in the course of its visits made between 2009 and 2013. Thus, the Higher Regional Court of Bremen stated that there was specific evidence that the conditions of detention would not satisfy the minimum standards required by international law in the event that Mr Aranyosi would be surrendered.
Căldăraru: The accused is a Romanian national who was convicted and sentenced to one year and eight months for driving without a driver’s license. The decision became final after the Court of Appeal of Brasov solidified the judgement. Following this a EAW was issued for the accused and he was subsequently arrested in Bremen. On the same day the District Court of Bremen had issued an arrest warrant for the accused and during the court procedures he would not consent to the simplified surrender procedure. Following this, the Public Prosecutor applied to the court for the accused to be detained pending his extradition. The Higher Regional Court of Bremen accepted the Public Prosecutor’s request due to evidential risk that the accused would try to evade extradition.
The Court of First Instance of Fagaras was unable to provide information as to the prison in which Mr Căldăraru would be held in Romania.
The ECtHR has found Romania to be in violation of Article 3 ECHR by reasons of the overcrowding in its prisons resulting in inhuman conditions for detention in numerous cases (e.g, Voicu v Romania, Mihai Laurenţiu). Further, the CPT has referred to the significant prison overcrowding identified in the course of its visits made in June 2014. Thus, the Higher Regional Court of Bremen stated that there was specific evidence that the conditions of detention would not satisfy the minimum standards required by international law in the event that Mr Căldăraru would be surrendered. It further noted that based on the information available, there was probative evidence that, in the event of a surrender to the Romanian judicial authority, Mr Căldăraru might be subject to conditions of detention that are in breach of Article 3 ECHR and the fundamental rights and general principles of law enshrined in Article 6 TEU.
The preliminary reference from the German Higher Regional Court in Bremen raised a series of questions, in particular,
1. Is a request for surrender for the purpose of conducting a criminal prosecution (Aranyosi) or executing a custodial sentence (Căldăraru) impermissible if there is strong indication that detention conditions in the issuing country are incompatible with fundamental rights, in particular with Article 4 Charter?
2. Can or must the executing Member State lay down specific minimum requirements applicable to detention conditions and ask for assurance? Are the issuing judicial authorities entitled to give assurances that detention conditins are compliant?
The Court stated that where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systematic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a EAW, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State.
The executing judicial authority should seek additional information from the issuing authority and until they are satisfied that there is no such risk to the individual the national judicial authority should postpone executing the warrant. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end in the light of Article 6 Charter. In accordance, Member States are in principle obliged to act on an EAW due to the principle of mutual trust and mutual recognition. However, in exceptional circumstances these principles can be limited.
Neither the judgement nor the Framework Decision itself adress the issue of diplomatic assurances.
After the judgement, the Eropean Parliament issued its briefing "Prison conditions in the Member States: selected European standards and best practices" on the common European Standards and Rules as well as on the relevant monitoring mechanisms to prevent torture and ill-treatment.
For a critical assessment of mutual trust and the prevention of ill-treatment see the report "The future of mutual trust and the prevention of ill-treatment" by the Ludwig Boltzmann Instiute of Human Rights.
Framework Decision on the European arrest warrant 2002/584/JHA
Actiones - Handbook Module 7 Criminal Law
Case Study - To surrender or not to surrender?
Article 4 Prohibition of torture and inhuman or degrading treatment or punishment