CJEU Case C-128/18/ Opinion

Introduction

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. 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, and of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), 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.

Conclusion

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.