By Giorgia Spolverato
Is the risk of undergoing “inhuman and degrading treatments” enough to refuse the surrender of a prisoner from a European Union country to another?
The Court of Justice of the European Union (CJEU) tried to answer this question on the occasion of the joined cases Aranyosi and Căldăraru.[1] Due to its functions as described in the Treaty on the Functioning of the European Union (TFEU), the CJEU was asked by the Higher Regional Court of Bremen (Germany) to give an interpretation of article 1, paragraph 3 of the European Arrest Warrant Framework Decision (EAW-FD), with a special focus on its compatibility with the prohibition of inhuman and degrading treatment included in the European Charter of Fundamental Rights.[2] This measure was adopted in 2002 by the Council of the European Union to replace the outdated extradition procedure within the EU member states. What is relevant to us is that the new regulation tool is based on the principle of mutual recognition, which is one of the cornerstones of the European Union integration and cooperation process, especially in the fight against international crime.[3] The principle entails a high level of mutual trust among EU member states. In the field of judicial co-operation in criminal matters, it basically means that a decision taken by an authority in one member state may be accepted as it is by another state.[4] However, this supposed “blind trust” among the member states can cause complications in cases where the principle of mutual recognition clashes with other principles; as in the case at stake, the prohibition of inhuman and degrading treatment.
After having clarified what we have on either side of the scale and why both principles are relevant for the correct functioning of the EU, it is possible to understand the ruling of the CJEU in the above-mentioned cases. Indeed, according to the literal interpretation of the legal measure, it emerged that, following the request of surrendering a criminal by the issuing state, the executing state cannot refuse this if the individual at issue risks of undergoing inhuman and degrading treatments in the issuing state. Therefore, it has been objected by the Court of Bremen, which was required to surrender two individuals, Mr Aranyosi and Mr Caldararu, respectively to Hungary and Romania, that due to the well-known inadequate prison conditions in the two issuing states, the two offenders would have been treated as contrary to article 4 of the European Charter of Fundamental Rights.[5] In fact, as ruled by the European Court of Human Rights and as reported by the Committee for the Prevention of Torture and Inhuman and Degrading Treatment (CPT) on several occasions, most of the Hungarian and Romanian jails are not only small, dirty and overcrowded but also lack of heating and warm water for showering.[6]
Since detention conditions that do not meet minimum standard requirements are considered as inflicting inhuman and degrading treatment to detainees, the CJEU ruled that the surrender of the offender can be postponed until adequate improvements in the detention conditions take place. What is very important to underline at this point is that the Court has not arranged a clearly-stated ground of refusal of the warrant in case of risk of inhuman and degrading treatment. In fact, it has only introduced an “adjustment period” for the EU member states which do not respect the minimum European standards, set out by both the European Parliament and the Council of Europe.[7] The problem is that, as stated by the CPT’s annual reports and public statements, some member states such as Belgium, Italy, Greece do not meet the minimum threshold in their facilities conditions.[8]
It can be said that, to guarantee the effectiveness of the principle of mutual recognition- which does not allow continuous checks in the compliance with human rights’ protection in other member states- the CJEU has provided an alternative way to such rights’ conformity. What is not guaranteed at all is the adaption of European jails to the required standards; therefore, the issue of human rights’ protection is not completely solved yet.
Even though the European Parliament, several Advocates General of the CJEU, as well as some experts of the doctrine all have argued that in the case of a clash between the principle of mutual recognition and the respect of fundamental rights, the latter must blindly prevail, the reality is not so advanced.[9]
Besides hoping that the EU member states decide to enhance their penitentiary systems on their own initiative, a turn in the position of the Court, which could consider the introduction of an explicit ground of refusal in case of risk of inhuman and degrading treatment in the EAW-FD as suggested by the European Parliament, [10] is the best option in the present scenario, as argued in an earlier paper on which this article is based.
[1] Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru, EU:C:2016:198.
[2] Aranyosi and Căldăraru, para. 63.
[3] Tampere European Council, Presidency Conclusions, 15 and 16 October 1999, para. 33, accessed May 29, 2018, http://www.europarl.europa.eu/summits/tam_en.htm#c.
[4] Commission Communication to the Council and the European Parliament – Mutual recognition of Final Decisions in criminal matters COM/2000/0495 final, accessed May 29, 2018, https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX%3A52000DC0495.
[5] “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
[6] As for Romania: “Rapport au Gouvernement de la Roumanie Relatif à la Visite Effectuée en Roumanie par le Comité Européen pour la Erévention de la Torture et des Peines ou Traitements Inhumains ou Dégradants (CPT) du 5 au 17 Juin 2014” (24 September 2015) CPT/Inf (2015), accessed May 29, 2018, https://www.coe.int/bg/web/cpt/romania. ECtHR’s judgments of 10 June 2014: Voicu v Romania, (No 22015/10); Bujorean v Romania, (No 13054/12); Constantin Aurelian Burlacu v Romania, (No 51318/12); and Mihai Laurenţiu Marin v Romania, (No 79857/12). CPT reports on the detention conditions in Hungarian correctional facilities, see https://www.coe.int/en/web/cpt/hungary, accessed May 29, 2018. As for Hungary: in the pilot case Varga and Others v. Hungary, the ECtHR established that there is a violation of Article 3 ECHR when a detainee disposes of less than three square metres of personal space and it is aggravate by lack of ventilation and lighting, lack of outdoor exercise and poor sanitary and hygiene conditions; the point is also considered by Elena E. Popa, “The Clash between Fundamental Rights, Mutual Recognition & Public Security Recent developments in the CJEU’s case law in the field of AFSJ.” (March 2017), 12-13, 10.13140/RG.2.2.32427.34083 and Lina Panella, “Mandato Di Arresto Europeo e Protezione Dei Diritti Umani: Problemi Irrisolti e ‘Incoraggianti’ Sviluppi Giurisprudenziali,” Freedom, Security & Justice: European Legal Studies, no 3 (2017): 25-26, http://dx.doi.org/10.14273/unisa-949.
[7] For an overview of European standards: “Prison conditions in the Member States: selected European standards and best practices”, European Parliament, 2017; Council of Europe: Committee of Ministers, Recommendation (2006)2 of the Committee of Ministers to Member States on the European Prison Rules, 11 January 2006.
[8] CPT annual reports (https://www.coe.int/en/web/cpt/annual-reports) and public statements (https://www.coe.int/en/web/cpt/publicstatements); CoE, European Committee on Crime Problems, White Paper on Prison Overcrowding, Strasbourg, 2016.
[9] See Opinion of Advocate General Sharpston, Ciprian Vasile Radu, Case C-396/11, 2012, para. 97, Opinion of Advocate General Cruz Villalón, I.B. v Conseil des ministers, Case C‑306/09, 2010, para. 43 and Opinion of Advocate General Mengozzi, João Pedro Lopes da Silva Jorge, Case C-42/11,2012, para. 28. As for the doctrine: Joanna Apap and Sergio Carrera, “Judicial Cooperation in Criminal Matters-European Arrest Warrant–A Good Testing Ground for Mutual Recognition in an Enlarged EU?,” CEPS Policy Briefs, No. 46, (February 2004): 7, 13; Anne Weyembergh et. al., Critical Assessment of the Existing European Arrest Warrant Framework Decision Research Paper (Brussels, 2013): I-10, I-13, http://dx.doi.org/10.2861/44748.; Panella, “Mandato Di Arresto Europeo e Protezione Dei Diritti Umani,” 10; Marta Muñoz de Morales Romero, “‘Dime Cómo Son Tus Cárceles y Ya Veré Yo Si Coopero’. Los Casos Căldăraru y Aranyosi Como Nueva Forma de Entender El Principio de Reconocimiento Mutuo,” InDret, no. 1 (January 2017).
[10] Report with Recommendations to the Commission on the review of the European Arrest Warrant 2013/2109(INL), 28 January 2014, F(i)(ix), accessed May 29, 2018, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-20140039+0+DOC+XML+V0//EN
Featured picture credit: Court of Justice of the European Union.
This article was written as part of a series; it is based on a paper written by the author within the framework of the Euroculture Intensive Programme, held in Krakow in June 2018. To read more about the IP 2018 and its theme “Where is Europe?”, click here.
Main sources used for this article:
Popa, Elena E. “The Clash between Fundamental Rights, Mutual Recognition & Public Security Recent developments in the CJEU’s case law in the field of AFSJ.” (March 2017). 10.13140/RG.2.2.32427.34083.
Panella, Lina. “Mandato Di Arresto Europeo e Protezione Dei Diritti Umani: Problemi Irrisolti e ‘Incoraggianti’ Sviluppi Giurisprudenziali.” Freedom, Security & Justice: European Legal Studies, no 3 (2017): 5-33. http://dx.doi.org/10.14273/unisa-949.
Morales Romero, Marta Muñoz de. “‘Dime Cómo Son Tus Cárceles y Ya Veré Yo Si Coopero’. Los Casos Caldararu y Aranyosi Como Nueva Forma de Entender El Principio de Reconocimiento Mutuo.” InDret, no. 1 (January 2017).
Apap, Joanna and Carrera, Sergio. “Judicial Cooperation in Criminal Matters-European Arrest Warrant–A Good Testing Ground for Mutual Recognition in an Enlarged EU?” CEPS Policy Briefs, no. 46, (February 2004): 1-22. https://doi.org/10.1111/j.1468-0386.2004.00212.x.
Weyembergh, Anne, Armada, Inés and Brière, Chloé. Critical Assessment of the Existing European Arrest Warrant Framework Decision Research Paper. Brussels, 2013. http://dx.doi.org/10.2861/44748.
The Euroculturer 