With great anticipation, on 5 April 2016, the CJEU’s Grand Chamber has given its ruling in joined cases C-404/15 Aranyosi and C-656/15 PPU Caldararu, both referred for a preliminary ruling by the Hanseatisches Oberlandesgericht in Bremen, Germany.
The matter is very “sensitive” since it involves one of the most important and frequently used instruments for fighting cross border crimes across the EU: the European Arrest Warrant (EAW), established by Framework Decision 2002/584/JHA.
WHAT IS IT ALL ABOUT?
THE FACTS IN C- 404/15 ARANYOSI
In Case C-404/15, a Hungarian investigating magistrate issued two EAWs with respect to a Hungarian national, named Pál Aranyosi, in order to conduct a criminal prosecution for two offences of forced entry and theft, allegedly committed by Mr. Aranyosi in Hungary. The Public Prosecutor in Bremen, referring to conditions of detention in certain Hungarian penitentiaries – which would not satisfy European minimum standards – asked the District Court of Miskolc (Hungary) in which establishment the accused would be imprisoned in case of surrender. The Hungarian Court gave no reliable answers in this regard, implicitly suggesting that this issue falls within the power of Hungarian judicial authorities only. Under these circumstances, the referring Court felt unable to decide whether Aranyosi’s surrender would be fair or not, especially with regard to article 1, paragraph 3 of the EAW Framework Decision (the so called “fundamental rights clause”).
THE FACTS IN C- 656/15 CALDARARU
In Case C-659/15 PPU, a Romanian court issued a EAW with respect to Mr. Robert Căldăraru to secure the enforcement in Romania of a prison sentence of one year and eight months, imposed for driving without a driving license. After his imprisonment in Bremen, Mr. Caldararu refused to consent to his surrender to Romania, given the risk of inhuman and degrading treatment in the local penitentiaries. The Public Prosecutor in Bremen asked the issuing State for guarantees regarding detention conditions in Hungary, to no avail. As for Aranyosi’s, the German court decided to suspend its judgment and to refer to the CJEU for a preliminary ruling on the interpretation of article 1, paragraph 3 of EAW Framework Decision. Since Mr. Caldararu was held in custody in Germany, his case fell under the Urgent Preliminary Ruling Procedure.
WHAT IS A PRELIMINARY RULING AND WHY HAVE THE TWO CASES BEEN JOINED TOGETHER?
In order to clarify the subject, it is useful to spend a couple of sentences explaining the preliminary ruling procedure. In brief, it is a procedure (codified by article 267 of the Treaty on the Functioning of European Union) that enables national courts to refer queries to the CJEU on the interpretation or validity of EU law, specific to a case in their vicinity. Its main aim is to enforce a uniform application of EU law in all Member States.
In both cases C-404/15 and C-656/15, the referring Court decided to stay the proceedings and to refer the following questions to the CJEU:
1) “Is Article 1(3) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) to be interpreted as meaning that extradition for the purposes of prosecution is impermissible where there are strong indications that detention conditions in the issuing Member State infringe the fundamental rights of the person concerned and the fundamental legal principles as enshrined in Article 6 of the Treaty on European Union, or is it to be interpreted as meaning that, in such circumstances, the executing Member State can or must make the decision on the permissibility of extradition conditional upon an assurance that detention conditions are compliant? To that end, can or must the executing Member State lay down specific minimum requirements applicable to the detention conditions in respect of which an assurance is sought?”
2) “Are Articles 5 and 6(1) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) to be interpreted as meaning that the issuing judicial authority is also entitled to give assurances that detention conditions are compliant, or do assurances in this regard remain subject to the domestic rules of competence in the issuing Member State?”
Since both the subject matter and the referring Court were the same, the CJEU decided to join the two cases for judgment. This means that both cases have been subjected to the PPU rules of procedure even if only C- 656/15 Caldararu met the requirements for its application.
THE LEGAL FRAMEWORK AND THE MAIN PRINCIPLES CONCERNED
The aforementioned cases touch upon a number of different legal sources.
First of all, we must recall article 3 of the European Convention of Human Rights (ECHR) which enshrines the prohibition of torture as well as any other inhuman or degrading treatment or punishment. Along the same lines, article 1 and article 4 of the Charter of Fundamental Rights of the EU (which, since 2009, has the same legal value as the Treaties, as stated in article 3 TEU) declare the inviolability of human dignity and, once again, the prohibition of torture.
In this regard, it should be noted that the ECtHR has – quite recently – ruled against both Hungary and Romania for infringement of article 3 ECHR, due to systematic prison overcrowding.
Those ECtHR’s judgments acquire even more importance in light of article 1, paragraph 3 of EAW Framework Decision, which states that “This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union”.
Despite this provision, to this day, the risk of violation of a fundamental right of the person concerned in the EAW is not a specific reason for denying execution.
It does not appear neither in article 3 (“grounds for mandatory non-execution of the EAW”) nor in article 4 (grounds for optional non-execution of the EAW) but several Member States, like Germany and Ireland, as well as the European Parliament (see article 155 of the European Parliament resolution of 8 September 2015 on the situation of fundamental rights in the European Union (2013-2014)) have expressed their favor toward the introduction of a general obligation to deny EAW in such cases.
In light of the above, it is quite easy to realize that the big challenge for the CJEU was to find a reasonable balance between the protection of the fundamental rights, as recognized in EU law, and the principle of mutual recognition, underpinning the EAW system and European criminal cooperation, in general.
THE CJEU’ S RULING
It is also stated that, if the executing judicial authority has clear evidence of a real risk of inhuman or degrading treatment in the issuing State’s prisons, it must assess this risk before making a decision on the surrender of the individual concerned.
According to the CJEU, this assessment should be based on “objective, reliable, specific and properly updated information” and should be focused on the single individual concerned. For this purpose, the executing authority must ask the issuing authority to provide, as a matter of urgency, proper information on the specific detention conditions under which the person concerned will serve the sentence.
This means that the finding of a risk of inhuman or degrading treatment by virtue of general detention conditions in one Member State may not lead to the denial of the EAW, if the issuing authority provides enough guarantees that the individual concerned will not be exposed to such a risk.
On the contrary, if the information provided by the issuing authority is inadequate to discount the existence of that risk within a reasonable period, the executing authority must decide whether the surrender procedure should be brought to an end.
To sum up, according to the CJEU, article 1 paragraph 3, article 5 and article 6 of EAW Framework Decision should be taken to mean that – under certain circumstances – the executing judicial authority must defer its decision on the surrender until it receives additional information, on the basis of which the risk of inhuman or degrading treatment can be discounted.
The issue regarding the relationship between EAW and detention conditions in the issuing Member State is, unfortunately, not a new one in the European Area of Freedom, Security and Justice (AFSJ).
In recent years, it has concerned even founding States, like Italy. Just remember that, after Italy’s condemnation by the ECtHR for infringement of article 3 ECHR, due to systematic prison overcrowding (see Pilot Judgment Torreggiani and others v. Italy), the High Court of Justice of the United Kingdom has refused to surrender a prisoner to Italy on the basis of the 2003 Extradition Act (see Hayle Abdi Badre v Court of Florence, Italy (2014) EWHC 614).
Legal precedents like the aforementioned may undermine the EU mutual recognition principle, whose proper functioning depends strictly on the degree of mutual trust between Member States, with regard to their capacity to offer a similar level of protection of fundamental rights.
Advocate-General Yves Bot, in his Conclusions, has shown great awareness that the weakening of mutual confidence between Member States – which is the cornerstone of the European judicial area – may lead to the inefficiency of European criminal cooperation, with a high risk of impunity of cross border criminals.
That is why he has suggested the CJEU a strict interpretation of the grounds for refusal of the EAW, based on the idea that it is up to the issuing authority to evaluate the protection of fundamental rights, as well as the proportionality of the EAW, in relation to the offence’s nature.
The CJEU, in its ruling, is not totally in line with Bot’s suggestions. Motivated by the idea that the principle of mutual recognition can not prevail over the protection of fundamental rights, the CJEU seems to try a more moderate approach, focused on the “individualization of the risk” and on the concept of “guarantees”.
The CJEU’s ruling, however, falls short in stating how a Court in one Member State can obtain (in a short term) reliable information/guarantees on detention conditions in another Member State. Only judicial authorities would be allowed to provide guarantees or diplomatic assurances would be welcomed as well? And how can information be checked in order to assess whether it is faithful to reality or not? Should Eurojust be involved in these investigations in order to promote dialogue between courts? Admittedly, from a practical point of view, the procedure outlined by the CJEU will not be trouble-free!
In conclusion, since the protection of human dignity must undoubtedly come first, we can appreciate the CJEU’s point of view. However, when the surrender of a person under an executive EAW is refused because of a serious risk of inhuman or degrading treatment in the issuing State, there should be an obligation to execute the foreign sentence in another Member State.
Otherwise, the principle of mutual recognition would fall apart and European criminal cooperation would fail to fight effectively cross border crimes.