Case C-128/18 Dorobantu – the Aftermath of Aranyosi and Căldăraru
On 15 October 2019, the Court published its judgement in Dorobantu, after a preliminary reference submitted by the Higher Regional Court of Hamburg, Germany. The case concerns the interpretation of Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and 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.
Mr Dorobantu is a Romanian national residing in Hamburg. On 8th of February 2018 –after the issuance of two European arrest warrants by Romania- the German Court referred to the Court the following questions for preliminary ruling:
Questions referred
1) What are the minimum standards for custodial conditions required under Article 4 of the Charter?
a) Is there an “absolute” minimum limit for the size of custody cells?
i) Is occupancy (single or multiple) of the cell an important factor?
ii) Should areas covered by furniture be discounted?
iii) What infrastructural requirements, are relevant for the purposes of compliance of custodial conditions with EU Law?
b) To what extend do the various “prison regimes”, play a role in the assessment?
c) Can legal and organisational improvements also be taken into account?
2) What standards are to be used to assess whether custodial conditions comply with EU Law?
a) Are judicial authorities of the executing Member State authorised to undertake a comprehensive assessment, or are they limited to an “examination as to manifest errors”?
b) A failure to meet the minimum standards is “unquestionable”, or can the executing Member State carry out its own assessment? In such an assessment, can factors such as the maintenance of mutual legal assistance, the functioning of European criminal justice or the principles of mutual trust and recognition be taken into account?
Judgment of the ECJ
Firstly, the Court rules that Article 1(3) of Framework Decision 2002/584/JHA, read in conjunction with Article 4 of the Charter, must be interpreted as meaning that when the executing Member State has objective, reliable, specific and properly updated information showing that there are systemic or generalised deficiencies in the conditions of detention in the issuing Member State, it must take account of all relevant physical aspects of the conditions in the prison in which the person concerned is likely to be detained (e.g. the personal space available to each detainee, sanitary conditions, freedom of movement within the prison) (par. 58 and 62).
Already Advocate General Campos Sánchez-Bordona, referring to Aranyosi and Căldăraru and Jawo, stated in his Opinion (point 107), that the prohibition of inhuman or degrading treatment, under Article 4 of the Charter, is absolute. However, this assessment should not be limited to the review of obvious inadequacies. Instead, the executing Member State must request from the issuing Member State the necessary information, and, in the absence of any deficiencies in the conditions of detention, must rely on the assurances given by the issuing judicial authority (par. 63).
To that end, the Court specifies, unsurprisingly, that in order to safeguard the efficacy of the European arrest warrant system, the executing Member State has to take into account the time limits set by Article 17 of Framework Decision 2002/584/JHA for the adoption of a final decision on the execution of the European arrest warrant. Therefore, it should be determined if there is indeed a real risk, limited though, in the prisons in which the individual might be detained and not a general assessment for all the prisons of the issuing Member. In order to achieve that in time, the executing Member State must request the issuing Member State to provide (as a matter of urgency) all the necessary information on the conditions in which it is actually intended that the individual will be detained (par. 67).
Furthermore, due to the absence of minimum standards regarding the personal space to each detainee under EU law, the Court relied on the interpretation of Article 3 of the ECHR by the ECtHR. This is justified by the Court as Article 4 of the Charter corresponds, in essence, to the meaning and scope conferred on Article 3 of the ECHR. Relying on the ECtHR interpretation, the Court clarifies that for the calculation of the available space, areas occupied by sanitary facilities should not be taken into account, but should include spaces occupied by furniture. Nonetheless, there should be space for the detainee to move around normally, as was held by the ECtHR in Muršić v. Croatia (par. 75).
With regard to the issue of multi-occupancy or single-occupancy cell, the Court decided to address only the case of multi-occupancy cell, due to the fact that Mr. Dorobantu will, if surrendered to the Romanian authorities, be detained in a multi-occupancy cell. According to Article 3 of the ECHR, as interpreted by the ECtHR (Muršić v. Croatia), a strong presumption of violation arises when the personal space available to a detainee is below 3 m2 in a multi-occupancy accommodation (par. 72).
Notwithstanding this, the Court following its ruling inGeneralstaatsanwaltschaft, clarifies that this strong presumption of violation of Article 3 ECHR can be overruled only if (a) the reductions in the required minimum personal space of 3 m2 are short, occasional and minor, (b) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities, and (c) the general conditions of detention at the facility are appropriate and there are no aggravating aspects of the conditions of detention (par. 74).
Interestingly, the Court citing the case of Melloni, reminds us one more time that the person detained by virtue of a European arrest warrant is subject only to compliance with the minimum standards of detention conditions resulting from Article 4 of the Charter and Article 3 of the ECHR, and not with those resulting from the national law of the executing Member State, otherwise, the principles of mutual trust and recognition will be undermined (par. 79).
Furthermore, the Court argued that, despite the fact that the issuing Member State made legal or organisational improvements (e.g. introduction of an ombudsman system, etc.) the executing Member State cannot rule out the existence of a real risk of inhuman or degrading treatment. It is clear that the executing judicial authorities may take into account such improvements in order to decide on the surrender, although, the person might still be subject to inhuman treatment that is incompatible with Article 4 of the Charter (par, 80).
Finally, if the executing judicial authorities have proof of substantial grounds suggesting that- after the surrender of the person to the issuing Member State- the person will face a real risk because of the conditions of detention in the prison in which the latter is intended to be detained, then factors such as the efficacy of the judicial cooperation in criminal matters and the principles of mutual trust and recognition cannot be taken into account. Consequently, the Court reiterates that an infringement of Article 4 of the Charter is a clear justification for restricting the application of the principles of mutual trust and recognition (par. 84).
Comments
After the important judgment of Aranyosi and Căldăraru, in which the Court allowed a limitation to the principles of mutual trust and recognition when there is a real risk of inhuman and degrading treatment, several questions were raised concerning the interpretation of Article 4 of the Charter and the Framework Decision 2002/584/JHA. As a result, in its judgement in Generalstaatsanwaltschaft, the Court clarified the principles which it identified in the judgement of Aranyosi and Căldăraru, especially in the context of detailed and individual assessment of the risk. Overall, I believe that the questions referred in the present case were answered by the case of Generalstaatsanwaltschaft.
However, due to the fact that the questions in the present case were concentrated on the minimum standards of detention conditions, the Court in Dorobantu took a further step to a more detailed explanation of what factors are important for this assessment. Particularly, the issue of personal space and how to calculate it (sanitary facilities, furniture), where the Court aligned again with the ECtHR, to overcome the lack of minimum standards as regards the interpretation of Article 4 of the Charter. Nevertheless, the Court did not encounter with the factor of single-occupancy cells for the calculation of the personal space, because in this case –the same way as in Generalstaatsanwaltschaft – the referred questions concerned the detention conditions in multi-occupancy cells. In my view, this will probably be an issue that the Court will eventually have to address in future cases.
Concluding, the Court in the future needs to address more aspects of detention conditions and their relevance for the purpose of an assessment of the risk of inhuman or degrading treatment. It appears by the referred questions, that they are more precise and focused on specific conditions of detention. Hence, it will be interesting to observe if the Court will continue to use ECtHR’s case –law in this matter as a response.