Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Article 19 - Protection in the event of removal, expulsion or extradition
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling — Urgent preliminary ruling procedure — EEA Agreement — Non-discrimination — Article 36 — Freedom to provide services — Scope — Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis — Agreement on the surrender procedure between the Member States of the European Union and Iceland and Norway — Extradition to a third State of an Icelandic national — Protection of a Member State’s nationals against extradition — No equivalent protection for nationals of another State — Icelandic national who was granted asylum under national law before acquiring Icelandic citizenship — Restriction of freedom of movement — Justification based on the prevention of impunity — Proportionality — Verification of the guarantees provided for in Article 19(2) of the Charter of Fundamental Rights of the European Union.
Outcome of the case:
I therefore propose that the questions referred by the Supreme Court of Croatia should be answered as follows:
6) In addition to this, consideration is required of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway ( 8 ) (‘Surrender Procedure Agreement’), and in the background lie a range of Council of Europe instruments affecting extradition, ( 9 ) and the Geneva Convention Relating to the Status of Refugees. ( 10 ) Due consideration must also be afforded to the preclusion under EU law of extradition to conditions of inhuman and degrading treatment or punishment, which applies with respect to both extradition to third states ( 11 ) and internally across the EU in the context of the European Arrest Warrant ( 12 ) (as reflected, respectively in Articles 19 and 4 of the Charter), and extradition in the presence of alleged systemic deficiencies in the receiving judicial system, thereby imperilling fair trial (Article 47 of the Charter). ( 13 )
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46) ESA also relied on the order of 6 September 2017, Peter Schotthöfer & Florian Steiner. ( 40 ) EU citizens and EEA nationals moving freely are to be protected against extradition to third states entailing exposure to inhuman and degrading treatment as specified in Article 19 of the Charter.
52) Iceland further contended at the hearing that observance of the Charter is also required in the context of the EEA, ( 46 ) and that I.N. was to be protected against systemic problems in the Russian judiciary. ( 47 )
60) As for question 2, fundamental rights form part of EEA law, ( 55 ) and Article 19 of the Charter precludes expulsion to conditions of inhuman and degrading treatment or punishment. ( 56 ) For Norway the referring court is bound to assess the evidence of real risk of exposure to inhuman and degrading treatment upon extradition to Russia, ( 57 ) and is bound to take account of the decision of Icelandic authorities to afford refugee status, and the evidence relied on in that decision.
83) The key elements of the dispute to be resolved are as follows: (1) the scope of the right to move and receive services and the prohibition on discrimination on the basis of nationality, protected under both the TFEU (Articles 56 and 18), ( 88 ) and the EEA (Articles 36 and 4); (2) objective justification for a clear restriction of that right; (3) the norms and facts pertinent to objective justification in the circumstances of the main proceedings, including rules emanating from the Common European Asylum System, the role of mutual trust, and the international agreement that is the Surrender Procedure Agreement; (4) securing I.N.’s fundamental right not to be exposed to inhuman and degrading treatment or flagrant denial of justice, which are protected by Articles 6 and 13 ECHR and Articles 4, 19 and 47 of the Charter. ( 89 )
112) At this juncture, it might be helpful to point out that the main proceedings represent an example of overlap in the synergies of concentric circles encapsulating the series of international organisations in issue, because the substantive rights that fall for consideration are protected similarly in all three legal instruments, even though they might otherwise be viewed as competing; namely the ECHR, the Charter, and the EEA agreement. The prohibition on inhuman and degrading treatment is part of the common European constitutional heritage.
113) I acknowledge that the European Court of Human Rights has noted that ‘although the EFTA Court has expressed the view that the provisions of the EEA Agreement “are to be interpreted in the light of fundamental rights” in order to enhance coherency between EEA law and EU law (see, inter alia, the EFTA Court’s judgment in its case E‑28/15, Yankuba Jabbi [2016] para. 81), the EEA Agreement does not include the EU Charter of Fundamental Rights, or any reference whatsoever to other legal instruments having the same effect, such as the Convention.’ ( 134 )
114) However, in the context of the main proceedings, this simply doesn’t matter, because the duty of the court of the contracting states to investigate risk of exposure to inhuman and degrading treatment before extradition is embedded in the case-law of the European Court of Human Rights under Article 3 ECHR. ( 135 ) The bridge into EU law and the Charter arises from the fact that Court has held that ‘the prohibition of inhuman or degrading treatment laid down in Article 4 of the Charter corresponds to that laid down in Article 3 of the ECHR and that, to that extent, its meaning and scope are, in accordance with Article 52(3) of the Charter, the same as those conferred on it by that convention.’ ( 136 ) The level of protection of individual fundamental rights might be expanded by an enhanced scope of application for the Charter (for example, perhaps, with respect to property protection under the Charter, as reflected in Article 17 of the Charter and the express reference therein to intellectual property), but a situation of this kind does not arise in the main proceedings.
116) Under EU law, as in the law of the ECHR, the prohibition on extradition to conditions of inhuman or degrading treatment applies to everyone, irrespective of nationality. This is reflected in the words ‘No one’ in Article 19(2) of the Charter and this provision imports into EU law the principles elaborated by the Court of Human Rights under Article 3 ECHR. ( 138 ) Thus, I.N.’s non-EU nationality is irrelevant to the exercise of this substantive right given the breadth of its scope ratione personae. Article 19(2) applies irrespective of both discrimination and EU nationality. ( 139 )
117) As for the prohibition on removal to an unfair trial in breach of Article 47 of the Charter due to systemic failings, the Court has only acknowledged this to date in an intra-European context, and then only under the European Arrest Warrant. ( 140 ) However, as pointed out in my Opinion in Minister for Justice and Equality, ( 141 ) the European Court of Human Rights prevents the Contracting States from expelling a person where that person runs a real risk in the country of destination of being exposed to a flagrant denial of justice in breach of Article 6 ECHR. ( 142 ) I thus take the view that the material scope of Article 47 of the Charter equally extends to the situation in which anyone, irrespective of nationality, ( 143 ) is exposed to such a denial of justice in a third state, provided that their situation falls within the scope of application of the Charter. This is so because of Article 52(3) of the Charter, which provides that Charter rights which correspond to those in the ECHR are to be interpreted in the same way, leaving the EU discretion to supply a higher level of protection. In other words, if Article 6 ECHR precludes expulsion when a person runs a risk of flagrant denial of justice, so must Article 47 of the Charter.
118) I.N.’s situation falls within the scope of application of the Charter via two routes. First, under both EEA law and EU fundamental rights law, derogations from free movement are subject to compliance with fundamental rights. ( 144 ) Second, given that the referring Court is bound to comply with mutual trust under the Dublin II Regulation, all pertinent provisions of Dublin III, such as Article 3(1) and its (implicit) prohibition on multiple asylum applications are to be interpreted and applied in conformity with the Charter. ( 145 )
