Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Key facts of the case:
Reference for a preliminary ruling — Article 50 TEU — Withdrawal from the European Union — Judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant.
Outcome of the case:
In the light of the foregoing considerations, I propose that the Court answer the questions referred by the High Court (Ireland) as follows:
In a situation in which a Member State has, (1) in accordance with Article 50(2) TEU, notified the European Council of its intention to withdraw from the European Union and (2) in accordance with the relevant provisions of the 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, issued a European arrest warrant (EAW) with a view to surrender by another Member State of a requested person, the legal assessment to be carried out by the judicial authorities of that other Member State when executing the EAW is not altered by virtue of the abovementioned withdrawal notification.
17) In a judgment of 2 November 2017, the High Court (Ireland) considered R O’s claim that he would be subjected to inhuman and degrading treatment if surrendered to Northern Ireland, and expressly deferred the Brexit issue for judgment on a later date. The High Court noted the similar tests to be applied under Article 3 ECHR ( 4 ) and under Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’). ( 5 ) The High Court held that there was specific and updated information concerning the conditions of detention in Maghaberry prison that gave rise to concern that there was a real risk that R O, by virtue of his vulnerabilities, would be subjected to inhuman and degrading treatment. In light of the abovementioned provisions, as interpreted by the Irish Supreme Court and the Court of Justice, and an analysis of the evidence in the case, the High Court sought further information from the UK as to the conditions in which R O would be held were he to be surrendered to the UK.
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24) It is against this background that, by order of 17 May 2018, received at the Court on 18 May 2018, the High Court referred the following questions for a preliminary ruling:
‘Having regard to
(a) The giving by the United Kingdom of notice under Article 50 TEU;
(b) The uncertainty as to the arrangements which will be put in place between the European Union and the United Kingdom to govern relations after the departure of the United Kingdom; and
(c) The consequential uncertainty as to the extent to which [R O] would, in practice be able to enjoy rights under the Treaties, the Charter or relevant legislation, should he be surrendered to the United Kingdom and remain incarcerated after the departure of the United Kingdom,
(1) Is a requested Member State required by European Union law to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be required under the national law of the Member State,
(i) in all cases?
(ii) in some cases, having regard to the particular circumstances of the case?
(iii) in no cases?
(2) If the answer to Question 1 is that set out at (ii) what are the criteria or considerations which a court in the requested Member State must assess to determine whether surrender is prohibited?
(3) In the context of Question 2 is the court of the requested Member State required to postpone the final decision on the execution of the European arrest warrant to await greater clarity about the relevant legal regime which is to be put in place after withdrawal of the relevant requesting Member State from the Union
(4) If the answer to Question 3 is that set out at (ii) what are the criteria or considerations which a court in the requested Member State must assess to determine whether it is required to postpone the final decision on the execution of the European arrest warrant?’
43) In particular, with respect to the Framework Decision, as follows from the landmark judgment in Aranyosi and Căldăraru, ( 28 ) such limitations can come into play where there is a real risk of inhuman and degrading treatment within the meaning of Article 4 of the Charter ( 29 ) because of the detention conditions in the issuing Member State. To that end, the executing judicial authority must, initially and as a first step, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. ( 30 ) As a second step, whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State. ( 31 )
44) Turning to the case at issue, it is apparent from the order for reference that none of the mandatory or optional grounds for non-execution of the EAW are present. Moreover, with respect to the detention conditions, it appears that the referring court has carefully carried out the two-step analysis as outlined in the preceding point of this Opinion and come to the conclusion that – with the exception of the consequences of Brexit – there was no separate issue with respect to Article 4 of the Charter. ( 32 )
57) The High Court refers to four points of EU law raised by R O, which theoretically ( 45 ) arise after the surrender and, crucially, after 29 March 2019. These are: first, whether he may be entitled to credit for the period spent in custody in accordance with Article 26 of the Framework Decision; second, compliance with the rule of specialty, enshrined in Article 27 of the Framework Decision; third, the prohibition on his further surrender to a third State ( 46 ) by the UK and fourth, respect for his fundamental rights, as enshrined in the Charter. As a general point, R O adds that, though he would undoubtedly have access to the UK courts to obtain an order in respect of those four points should they arise, he would be deprived of the opportunity of having those matters of EU law definitively determined by the Court of Justice.
65) There are no tangible indications that the political circumstances preceding, giving rise to, or succeeding the withdrawal notification are such as not to respect the substantive content of the Framework Decision and the fundamental rights enshrined in the Charter. ( 53 ) As the Irish Minister correctly argues, the UK has decided to withdraw from the EU, not to abandon the rule of law or the protection of fundamental rights. There is, therefore, no basis to question the UK’s continued commitment to fundamental rights. ( 54 )
68) It should, moreover, be stressed that, also in the case of extradition to a State outside the Union ( 61 ) the Court applies the same principles as in Aranyosi and Căldăraru ( 62 ) when interpreting the Treaty provisions on citizenship and non-discrimination and those of the Charter. ( 63 )
