Prison conditions in other member states often fall well short of required standards, particularly in the context of worsening economic conditions. An eagerly awaited decision was made last week, 5 April, by the Court of Justice of the European Union (CJEU) which confirmed that the execution of a European arrest warrant (EAW) must be deferred if there is a real risk of inhuman or degrading treatment because of the conditions of detention of the person concerned in the Member State where the warrant was issued.

The question that the court looked at goes to the heart of the EAW system, which is explicitly based on mutual recognition as a “cornerstone” of the European judicial area. The need to strengthen mutual trust in order to facilitate judicial cooperation is an important corollary of this: if we cannot trust the judicial systems of our neighbours, why should we recognise their decisions?

In two joined cases, the CJEU looked at how to reconcile a recognition that, in reality, prison conditions in some member states fall well short of the required standard with the requirement in the Framework Decision on the EAW that states shall execute request on the basis of the principle of mutual recognition. The judgment relates to requests for two persons: C-404/15 and C-659/15 PPU: Pál Aranyosi and Robert Caldararu. The latter was the subject of the faster preliminary reference procedure in cases within the sphere of freedom, security and justice as he was in custody. The case of Pál Aranyosi arose from two accusation EAWs issued in Hungary for offences of forced entry and theft. As regards Robert Caldararu, a Romanian court issued a conviction EAW requesting his return to serve a sentence of one year and eight months imposed for driving without a licence. Both men were located in Germany, and the Higher Regional Court of Bremen had to decide whether to execute the warrants.

The Court found that the detention conditions to which Mr Aranyosi and Mr Caldararu might be subject in the Hungarian and Romanian prisons respectively were contrary to fundamental rights, in particular the provision of the Charter of Fundamental Rights of the European Union (the Charter) prohibiting inhuman or degrading treatment or punishment. Indeed, in judgments of 10 June 2014 and 10 March 2015 the European Court of Human Rights held that both Romania and Hungary had infringed fundamental rights due to the prison overcrowding which is characteristic of their prisons.

The German court sought to ascertain from the Court of Justice whether, in such circumstances, the execution of European arrest warrants can or must be refused, or in the alternative whether the execution of the warrant should be made subject to the condition that information sufficient to establish that detention conditions are compatible with fundamental rights is obtained from the requesting state.

Assessing risk before deciding on surrender

In the judgment, the EU Court states that the absolute prohibition on inhuman or degrading treatment or punishment is part of the fundamental rights protected by EU law, citing the Charter. Accordingly, where the executing authority has evidence of a real risk of inhuman or degrading treatment of persons detained in the requesting state, that authority must assess that risk before deciding on the surrender of the individual concerned. The issuing authority must provide the executing state with information on detention conditions as a matter of urgency.

As to general detention conditions, the Court confirmed that the identification of such a risk cannot in itself lead to the refusal to execute a warrant. It would be for the executing state to demonstrate that there are substantial grounds for believing that the individual concerned will in fact be exposed to such a risk because of the conditions in which it is envisaged that he/she will be detained.

If, the authority responsible for the execution of the warrant finds that there is, for the individual who is the subject of the warrant, a real risk of inhuman or degrading treatment, the execution of the warrant must be deferred until there has been obtained additional information on the basis of which that risk can be discounted. If the information is not forthcoming and the existence of that risk cannot be discounted within a reasonable period, that authority must decide whether the surrender procedure should be brought to an end.

The judgment is an important clarification of this difficult area of law. The requirement for the requesting state to provide information to the executing judicial authority marks a shift away from an overreliance on mutual trust, and towards a recognition of the reality of what remains a disparate union of 28 member states.