Opinion of the Advocate General — ECLI:EU:C:2019:334
Date: 2019-04-30
Language of the case: German
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Request for a preliminary ruling from the Hanseatisches Oberlandesgericht Hamburg (Germany) lodged on 16 February 2018 — Criminal proceedings against Dumitru-Tudor Dorobantu (Case C-128/18) Language of the case: German Referring court Hanseatisches Oberlandesgericht Hamburg Parties to the main proceedings Generalstaatsanwaltschaft Hamburg v Dumitru-Tudor Dorobantu Questions referred 1. In the context of the FDEAW, 1 what are the minimum standards for custodial conditions required under Article 4 of the Charter? a. Specifically, is there, under EU law, an ‘absolute’ minimum limit for the size of custody cells, pursuant to which the use of cells under that limit will always constitute an infringement of Article 4 of the Charter? i. When determining an individual’s portion of a custody cell, should the fact that a given cell is being used for single or multiple occupancy be taken into account? ii. When calculating the size of the custody cell, should areas covered by furniture (beds, wardrobes, etc.) be discounted? iii. What infrastructural requirements, if any, are relevant for the purposes of compliance of custodial conditions with EU law? Does direct (or only indirect) open access from the custody cell to, for example, sanitary facilities or other rooms, or the provision of hot and cold water, heating, lighting, etc. have any significance? b. To what extent do the various ‘prison regimes’, such as differing unlock times and varying degrees of freedom of movement within a penal institution, play a role in the assessment? c. Can legal and organisational improvements in the issuing Member State (introduction of an ombudsman system, establishment of courts of enforcement of penalties, etc.) also be taken into account, as the present Chamber did in its decisions on the permissibility of the extradition? 2. What standards are to be used to assess whether custodial conditions comply with EU law? To what extent do those standards influence the interpretation of the term ‘real risk’ within the meaning of the judgment of the Court of Justice in Aranyosi and Căldăraru? a. In that regard, are the judicial authorities of the executing Member State authorised to undertake a comprehensive assessment of the custodial conditions in the issuing Member State, or are they limited to an ‘examination as to manifest errors’? b. To the extent that, in the context of its reply to the first question referred for a preliminary ruling, the Court of Justice concludes that there are ‘absolute’ requirements under EU law for custodial conditions, would a failure to meet those minimum standards be, in a sense, ‘unquestionable’, so that, as a result, such a failure would always immediately constitute a ‘real risk’, thereby prohibiting extradition, or can the executing Member State nevertheless carry out its own assessment? In that regard, can factors such as the maintenance of mutual legal assistance between Member States, the functioning of European criminal justice or the principles of mutual trust and recognition be taken into account? ____________ 1 Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1)