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Sweden / Supreme Court / Ö 6598-19

Plaintiff of the appeal is the Prosecutor-General at the Supreme Court. The defendant of the appeal is the Romanian citizen OC

Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court
Type:
Decision
Decision date:
08/04/2020
Key facts of the case:

In May 2015, the district court in Bacau, Romania, issued an ordinance on the surrender of OC from Sweden for execution of a sentence in accordance with the European Arrest Warrant Act (europeisk arresteringsorder). The arrest warrant from Romania states that OC in December 2013 was convicted to five years of imprisonment for drug crime and participation in a criminal organisation. The Swedish prosecutor asked the Romanian Prison and Probation Authority (Kriminalvårdsmyndigheten) for an opinion regarding the prison conditions in Romania. The opinion states that no information could be given to where OC would be places i.e. in which Romanian prisons. However, the authority guaranteed that OC would get his own room with the required 2 – 3 square metre area. After this, Solna District Court (Solna tingsrätt) rejected the request to surrender OC to Romania with reference to article 3 of the European Convention on Human Rights. The Court argued that there was a risk that OC would be treated inhuman in the Romanian prisons – a risk that was not eliminated by the information provided by the Romanian authorities. In June 2019, the Swedish prosecutor requested a new trial and referred to another opinion by the Head of the Prison Safety and Regime Department in Romania, regarding the treatment of OC in a Romanian prison. This opinion clarified in which prison OC would end up and also included detailed information about the conditions of this prison. Furthermore, the opinion stated that OC would have a minimum personal space of 3 square meter during his imprisonment.

The system of the European Arrest Warrant is based on the principles of mutual recognition and mutual trust among member states. These principles can only be limited under exceptional circumstances. Such a circumstance may be if the surrender of a person puts him/her at risk of being subjected to inhuman or degrading treatment. The Court argued that case law of the European Court of Justice (Aranyosi and Căldăraru) clarify the two steps a court can find out whether a person is at risk of being subjected to inhuman or degrading treatment according to article 4 of the EU Charter. The national executing judicial authority (verkställande rättslig myndighet) should in a first step find out if there is a risk for inhuman or degrading treatment according to the general conditions of deprivation of liberty. If they find that such a risk exists,’ the authority must, in a second stage, check if that general risk also holds true in the wanted person’s particular circumstances. If the authority finds that there is a real risk for the specific person, the executing judicial authority has the right to reject the request for surrender from another Member State.

 
Key legal question raised by the Court:
The key question concerns the conditions in Romanian prisons and if they go against the meaning of Article 3 of the European Convention and Article 4 of the EU Charter. The Supreme Court stated that the conditions in Romanian prisons have been very worrying for a long time. With reference to international reports and decisions by the European Court of Human Rights, the Supreme Court argued that there certainly is a general risk for inhuman or degrading treatment in Romanian prisons. However, the legal question raised in this case is whether there is a real risk that OC to be subjected to inhuman or degrading treatment after surrender from Sweden, despite the declaration made by the Romanian authorities in june 2019.
 
Outcome of the case:

The Supreme Court emphasised that the system of the European Arrest Warrant is based on the main principles of mutual recognition and mutual trust among the Member States. In June 2019, the Romanian authorities had provided a declaration regarding the conditions of imprisonment for OC, which stated that he will have a minimum personal space of 3 square meters during his whole imprisonment. Based on the main principles of mutual trust between member states, the Supreme Court

argued that there is no reason to question the declaration. Consequently, the Supreme Court considered that the surrender of OC to Romania would not mean that there was a risk of violation of article 3 of the European Convention or article 4 of the EU Charter that, in his specific case. There was no reason to reject the request for surrender of OC from Sweden to Romania. The previous ruling of the Court of Appeal (hovrätten) should therefore be amended accordingly.