CJEU - Joined Cases C-404/15 and C-659/15 PPU / Opinion
Key facts of the case:

Reference for a preliminary ruling — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrants issued for the purposes of prosecution or the execution of a custodial sentence or detention order — Surrender of persons requested to the issuing judicial authorities — Article 1(3) — Fundamental rights — Detention conditions in the issuing Member State — Risk of inhuman or degrading treatment — Need for a review of proportionality when European arrest warrants are issued.

Results (sanctions) and key consequences of the case:

In the light of the foregoing, I propose that the Court reply to the questions raised by the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen) as follows:
Article 1(3) 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, is to be interpreted as meaning that it does not constitute a ground for non-execution of the European arrest warrant issued for the purposes of criminal prosecution or the execution of a custodial sentence, based on the risk of an infringement, in the issuing Member State, of the fundamental rights of the surrendered person. It is for the issuing judicial authorities to carry out a review of proportionality in order to adjust the need to issue a European arrest warrant in the light of the nature of the offence and the specific procedures for executing the sentence. In circumstances such as those at issue in the main proceedings, characterised by a systemic deficiency of detention conditions in the issuing Member State, the executing judicial authority may legitimately ask the issuing judicial authority, through the competent national authorities where appropriate, for any information necessary to enable it to assess, in the light of the specific circumstances of each case, whether surrender of the requested person is likely to expose him to detention conditions that are disproportionate. It is also for the issuing Member State, in accordance with the obligations deriving from Article 6 TEU and its duties in respect of the principles of mutual confidence and sincere cooperation, to take all necessary measures, including necessary reforms of criminal policy, to ensure that that person serves his sentence in conditions which respect his fundamental rights and is able to avail himself of all legal remedies available to defend his individual freedoms.
Paragraphs referring to EU Charter
D – Application of the principle of proportionality to the issue of European arrest warrants

It is clear that, in circumstances such as those at issue in the main proceedings, it is necessary to weigh up the rights of the surrendered person against the requirements of the protection of the rights and freedoms of others. As the Court pointed out in its judgment in N., C‑601/15 PPU, EU:C:2016:84, Article 6 of the Charter states that everyone has the right not only to liberty but also to security of person. (45) That right, as the right guaranteed in Article 4 of the Charter is an absolute and non-derogable right. Where the person with respect to whom the European arrest warrant is issued is sought for acts of terrorism or rape of a child, it is clear that non-execution of that warrant raises the question of the need to safeguard national security and public order.