Mr Aranyosi, a Hungarian national, and Mr C?ld?raru, a Romanian national, were the addressees of two European arrest warrants (EAW), issued – respectively – by the Hungarian and Romanian authorities in order to execute a sentence (Aranyosi) or to exercise the criminal action (C?ld?raru). The two men were arrested in Bremen, Germany.
Before the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court of Bremen), the Court that had to decide on their surrender to Hungary and Romania, Mr Aranyosi and Mr C?ld?raru claimed that, in the event of surrender, they would have been subject to conditions of detention in breach of Article 3 ECHR (“Prohibition of torture”, which corresponds to Article 4 of the EU Charter, “Prohibition of inhuman or degrading treatment”) and of the fundamental rights granted by EU law. They relied on judgments where the European Court of Human Rights had found Hungary and Romania to be in breach of Article 3 ECHR, because of the overcrowding of their prisons and the inhuman detention conditions therein. They also referred to a report issued by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
The national legislation transposing the EAW Framework Decision in the German legal order states that “mutual legal assistance shall be unlawful if contrary to the principles stated in Article 6 TEU”. Therefore, the national court considered that the surrender could be granted lawfully only if, under the EAW Framework decision, it was possible to make the surrender conditional on obtaining assurances by the issuing Member State on the detention conditions to which the persons concerned would have been subject to. Accordingly, the Higher Regional Court of Bremen decided to refer to the ECJ a reference for preliminary ruling, asking, in essence:
whether the national judicial authority requested to execute a European Arrest Warrant (EAW) may or shall refuse tout court execution where there is solid evidence that detention conditions in the issuing Member State are incompatible with fundamental rights, in particular with Article 4 of the EU Charter, or, rather, the national judicial authority may or must make the surrender conditional on obtaining information from the issuing Member State showing that detention conditions are compatible with fundamental rights.
At the outset, the ECJ recalled that the principle of mutual recognition, on which the European arrest warrant system is based, presupposes the mutual confidence between the Member States that their national legal systems provide equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter. This is an essential pre-condition, because the principle of mutual trust requires each Member State to consider, save in exceptional circumstances, all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law.
The EAW Framework Decision gives effect to the principle of mutual recognition by providing, in its Article 1(2), that Member States are in principle obliged to execute a EAW. Indeed, the executing judicial authority must refuse to execute such a warrant only in the cases, exhaustively listed, of obligatory non-execution, laid down in Article 3 of the Framework Decision, or of optional non-execution, laid down in Articles 4 and 4a of the Framework Decision. Similarly, the conditions on which the execution of a EAW may be made subject are listed exhaustively in Article 5 of the Framework Decision.
The situation described by the applicants in the main proceedings – notably, the risk to be the subject of inhuman detention conditions, in case of surrender – does not correspond to any of the obligatory or optional non-execution grounds or to the conditions for suspension of the execution.
Nevertheless, at this point the ECJ recalled that the principle of mutual recognition can be limited ‘in exceptional circumstances’. It considered that, according to Article 1(3) of the Framework Decision, this is not to have the effect of modifying the obligation to respect fundamental rights as enshrined in, inter alia, the Charter. Article 4 of the Charter, concerning the prohibition of inhuman or degrading treatment or punishment, corresponds to Article 3 ECHR: this is an absolute and non-derogable provision, and so is Article 4 of the Charter.
According to the ECJ, Article 4 of the Charter does not imply that, where there exists objective, reliable, specific and properly updated evidence which highlights deficiencies about the detention conditions in the issuing Member State (systemic or generalised, affecting certain groups of people or certain places of detention), the executing national judicial authority shall bring to an end the EAW procedure. Rather, such an authority has a duty to assess the existence of a risk that, in case of surrender, there may be a violation of Article 4 of the Charter in respect of the person concerned.
The ECJ stressed the cooperation duties between the Member State issuing the EAW and the Member State requested to execute it.
The requesting national judicial authority shall request to the judicial authority of the issuing Member State - pursuant to Article 15(2) of the EAW Framework Decision – to provide all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State. A time limit for the receipt of the requested information may be fixed.
If this assessment phase leads to excluding the existence of a risk that surrender may entail the violation of Article 4 of the Charter in respect to the person concerned, the national judicial authority requested to execute the EAW shall go ahead with execution. The ECJ also pointed out that, in this case, the surrender does not affect the possibility for the individual concerned, after surrender, to have recourse, within the legal system of the issuing Member State, to legal remedies that may enable him to challenge, where appropriate, the lawfulness of the conditions of his detention in a prison of that Member State
By contrast, if, in the light of the information received, the executing judicial authority finds that there exists a risk of violation of Article 4 of the Charter for the individual concerned, the execution of the EAW must be postponed until it obtains the supplementary information that allows it to discount the existence of such a risk. Within this timeframe, the person concerned can be hold in custody only insofar as the procedure was carried out in a sufficiently diligent manner, and taking into account that – in light of Article 52(1) of the Charter – any limitation to fundamental rights (such as Article 6 on the right to liberty and Article 48(1) on the presumption of innocence) must comply with the principle of proportionality. However, if the executing judicial authority decides to bring the detention to an end, it shall attach to the provisional release all necessary measures aimed to prevent the person concerned from absconding and to ensure that the material conditions necessary for the surrender remain fulfilled until the final decision on the execution of the EAW has been taken.
If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.