Opinion of the Advocate General — ECLI:EU:C:2018:547
Date: 2018-07-04
Language of the case: German
Subject matter: Justice and home affairs;Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Preliminary reference - urgent procedure
Origin: Germany

summary, before determining that it is not going to continue with the surrender procedure, the executing court will have to examine whether, on the basis of the information available, it can rule out the risk of inhuman or degrading treatment: (a) in the prison where the Hungarian authorities state that the person sought will be accommodated immediately after his surrender, and (b) in the prison where, foreseeably, he will be transferred to serve the sentence in relation to which he has been sought. 87. However, that assessment cannot extend beyond the facts which are strictly necessary in order to rule out the risk of inhuman or degrading treatment, which cannot simply be identified by reference to the greater or lesser degree of prison welfare. V. Conclusion 88. In the light of the foregoing considerations, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen, Germany): Articles 1(3), 5 and 6(1) of 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, in conjunction with Article 4 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that: (1) The existence of domestic legal remedies which effectively guarantee, in practice, protection of the right not to suffer inhuman or degrading treatment with regard to conditions of detention is a factor of particular relevance for the purpose of discounting the risk of such treatment as a result of systemic or general deficiencies affecting certain groups of persons or certain prisons. (2) In a situation such as that at issue in the main proceedings, in which the recent creation of legal rules for guaranteeing the right not to suffer inhuman or degrading treatment as a result of the conditions of detention in the issuing Member State may not yet have become fully effective, to the point of having rendered exceptional the risk of infringement of that right, the executing judicial authority is justified in concerning itself with the conditions in which the person sought will be incarcerated. (3) The executing judicial authority must also examine, as a particularly relevant factor, the assurance, if any, which has been provided by the competent administrative or judicial authority of the issuing Member State, by means of which a commitment is given that the person sought will not suffer inhuman or degrading treatment during his incarceration. As the expression of an obligation which has been formally assumed, that assurance may be relied on, if it is breached, before the judicial authority of the issuing Member State. (4) The relevant information for assessing whether the person sought is at risk of suffering inhuman or degrading treatment as a result of his particular conditions of detention must, in principle, be requested and obtained from the issuing judicial authority. Information accepted or endorsed by the issuing judicial authority must take precedence in the assessment to be made by the executing judicial authority. (5) Prisons in respect of which supplementary information should be requested are those in which it is foreseeable that the person sought will be detained for the purpose of serving the sentence imposed on him. (6) If the issuing judicial authority does not furnish the executing judicial authority with the information requested by the latter under Article 15(2) of Framework Decision 2002/584, the executing judicial authority may notify the issuing judicial authority that, in those circumstances, the surrender procedure will not continue. 1 Original language: Spanish. 2 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘the Framework Decision’). 3 Cases C‑404/15 and C‑659/15 PPU, EU:C:2016:198 (‘judgment in Aranyosi’). 4 Law on international mutual legal assistance in criminal matters, of 23 December 1982 (‘IRG’). 5 The amendments come from the Europäisches Haftbefehlsgesetz (Law on the European arrest warrant) of 20 July 2006 (BGBl. 2006 I, p. 1721). 6 Recommendation REC(2006)2 of the Committee of Ministers to Member States on European Prison Rules (http://www.interiuris.org/archivos/REGLAS_PENITENCIARIAS_EUROPEAS.pdf). 7 Known as the ‘Nelson Mandela Rules’ (https://www.unodc.org/documents/justice-and-prison-reform/Brochure ‚on_the_The_UN_Standard_Minimum_the_Nelson_Mandela_Rules-S.pdf). 8 The court asked in great detail about the conditions of detention, in particular, the dimensions and characteristics of the cells, medical treatment, meal arrangements, hygiene conditions, clothing, heating and cleaning, visits, activities and free time, whether there was violence between prisoners and whether prison staff used coercive measures. 9 The German Public Prosecutor’s Office acknowledged at the hearing that, on 27 March 2018, the Hungarian authorities repeated in writing the assurance referred to in point 18 of this Opinion. 10 Judgment in Aranyosi, operative part. 11 Ibid. 12 The new case, Aranyosi II, thus became devoid of purpose, as the Court held in the order of 15 November 2017, Aranyosi (C‑496/16, not published, EU:C:2017:866). 13 Order for reference, first part, second paragraph in fine. 14 For example, judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 27). 15 Judgment of 25 January 2017, Vilkas (C‑640/15, EU:C:2017:39, paragraph 68). 16 Judgment in Aranyosi, paragraph 77 and the case-law cited. 17 Opinion (Accession of the EU to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 191. 18 Judgment in Aranyosi, paragraph 78. In a different context (the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility), but in the same vein, the Court has held that ‘the systems for recognition and enforcement of judgments handed down in a Member State which are established by [Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1)] are based on the principle of mutual trust between Member States in the fact that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at EU level, in particular, in the Charter of Fundamental Rights’ (judgment of 22 December 2010, Aguirre Zarraga, C‑491/10 PPU, EU:C:2010:828, paragraph 70). 19 Judgment of 23 January 2018, Piotrowski (C‑367/16, EU:C:2018:27, paragraph 48). 20 Recital 10 of the Framework Decision. 21 In that connection, see judgment in Aranyosi, paragraphs 42 to 45. 22 The Court made clear in its reply that in order to demonstrate that there are ‘deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention’ it is necessary to ‘rely on information that is objective, reliable, specific and properly updated’ (judgment in Aranyosi, paragraph 89; italics added). 23 The Hungarian Government complains that the referring court has not taken sufficient account of the fact that, in addition to the introduction of those remedies, progress has been made with regard to the situation of Hungarian prisoners as a result of a fall in the number of prisoners, more prison places and the increasing use of house arrest (paragraphs 13 and 14 of its written observations). 24 Paragraph 30 of the order for reference. 25 Domján v. Hungary, CE:ECHR:2017:1114DEC000543317. 26 Ibid., paragraph 22. 27 Ibid., paragraph 22 in fine. In the same judgment, the ECtHR examined whether the legislative measures of 2016 had remedied effectively the shortcomings identified in the Hungarian prison system by the judgment of 10 March 2015, Varga and Others v. Hungary, CE:ECHR:2015:0310JUD001409712. 28 Judgment in Aranyosi, paragraph 86. 29 Judgment in Aranyosi, paragraph 88. 30 Judgment in Aranyosi, paragraph 89, italics added. 31 Decision adopted at its meeting No 1288, held on 6 and 7 June 2017 (CM/Notes/1288/H46-16). The decision is referred to by the ECtHR in the judgment of 14 December 2017, Domján v. Hungary, CE:ECHR:2017:1114DEC000543317, paragraph 23. 32 The referring court maintains, however, that there is still overcrowding (it considers the creation, in 2015, of more than 1 000 new prison places to be insufficient) and that it has no information concerning the effects of commuting prison sentences to house arrest (paragraph 28 of the order for reference). 33 Order for reference, paragraph 34. 34 Ibid., paragraph 35. 35 It is well known that the ECtHR can give judgment only if the remedies stipulated in national law have been exhausted. Therefore, with regard to each of its judgments in favour of an applicant, there is a presumption that a domestic judgment exists which did not serve to remedy the infringement ultimately identified, without this casting doubt on the practical effectiveness of the national system for guaranteeing fundamental rights as a whole. 36 ECtHR, judgment of 14 November 2017, Domján v. Hungary, CE:ECHR:2017:1114DEC000543317, paragraph 35. 37 In that case, the ECtHR stated that judgment was still pending in the national proceedings brought by the person concerned. 38 ECtHR, judgment of 14 November 2017, Domján v. Hungary, CE:ECHR:2017:1114DEC000543317, paragraph 38. 39 ‘[A] finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing Member State cannot lead, in itself, to the refusal to execute a European arrest warrant’ (judgment in Aranyosi, paragraph 91). 40 Judgment in Aranyosi, paragraph 92. Italics added. 41 Judgment in Aranyosi, paragraph 94. 42 It therefore acted in accordance with paragraph 95 of the judgment in Aranyosi: ‘that [executing judicial] authority must, pursuant to Article 15(2) of the Framework Decision, request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State.’ 43 Paragraph 48(c) of the order for reference. In fact, it was a specific, rather than a general, assurance because it was given specifically in relation to ML. 44 Execution of an EAW may only be made subject to the conditions provided for in the specific cases in Article 5 of the Framework Decision (life imprisonment, and nationals or residents of the executing State). 45 The commitment must come from the competent prisons authority which will not usually be the court which imposed the sentence or that which issued the EAW. 46 I refer to my Opinion in Poltorak (C‑452/16 PPU, EU:C:2016:782, point 43). 47 Ibid., points 44 to 50, on the merely administrative role of those authorities. 48 Paragraph 59 of the order for reference. 49 Complying again with Article 97 of the judgment in Aranyosi: ‘In accordance with Article 15(2) of the Framework Decision, the executing judicial authority may fix a time limit for the receipt of the supplementary information requested from the issuing judicial authority. That time limit must be adjusted to the particular case, so as to allow to that authority the time required to collect the information, if necessary by seeking assistance to that end from the central authority or one of the central authorities of the issuing Member State … Under Article 15(2) of the Framework Decision, that time limit must however take into account the need to observe the time limits set in Article 17 of that Framework Decision. The issuing judicial authority is obliged to provide that information to the executing judicial authority.’ Italics added. 50 In Hungary, that is the Justice Ministry, as is clear from the communication sent by the Hungarian Government to the General Secretariat of the Council on 26 April 2004, in accordance with the second subparagraph of Article 7(2) of the Framework Decision (ST 8929 2004 INIT, of 27 April 2004). 51 Judgment in Aranyosi, paragraph 89. 52 According to the memorandum which the German Government sent to the General Secretariat of the Council on 7 August 2006 (ST 12509 2006 INIT, of 7 September 2006), ‘the competent judicial authorities for the purposes of Article 6 [of the Framework Decision] are the justice ministries of the Federal Republic and of the Länder. As a general rule, the Länder have devolved the exercise of their powers under the Framework Decision … relating to the acceptance of requests submitted to them (Article 6(2)) to the public prosecutor’s offices of the Länder’. There is no record of that memorandum having been amended following the judgment of the Court of 10 November 2016, Kovalkovas (C‑477/16 PPU, EU:C:2016:861), which held that the Lithuanian Justice Ministry could not be categorised as a judicial authority within the meaning of Article 6 of the Framework Decision. 53 The referring court in this case also assumes, to a certain extent, the role of an executing judicial authority, notwithstanding what it states in the memorandum referred to above, for it is involved in the admissibility stage of the EAW procedure, in accordance with Paragraphs 29 and 32 of the IRG (paragraph 17 of the order for reference). The duality of authorities involved appears to be based on the same procedure and the same principles as those which govern extradition. As previously observed in a report of 31 March 2009, submitted by the Council to the Member States following the fourth round of mutual evaluations on the practical application of EAWs, the provisions of the IRG on this matter, including after the amendment of 2006 ‘[do] not help … to understand that surrender on the basis of an EAW is not merely a slightly different variety of the classical extradition but a new form of assistance based on completely different principles. In this situation, the experts consider that there is a risk that the [German] judicial authorities will fall back on extradition legislation and case-law …’ (ST 7058 2009 REV 2, of 30 April 2009, Evaluation report on the fourth round of mutual evaluations ‘The practical application of the European arrest warrant and corresponding surrender procedures between Member States’, report on Germany, p. 35). 54 At paragraph 21 of its written observations, the Hungarian Government complains that the referring court did not wait to receive its reply. 55 Paragraph 10 of the order for reference. See footnote 8 of this Opinion. 56 Paragraphs 14 to 19 of its written observations. 57 Paragraphs 19 to 20 of its written observations, which echo the suggestion made by the Netherlands Government at the time of Aranyosi II (order of 15 November 2017, Aranyosi, C‑496/16, not published, EU:C:2017:866). 58 Judgments of 30 October 1991, Vilvarajah and Others v. United Kingdom (application numbers 13163/87, 13164/87, 13165/87, 13447/87 and 13448/87, CE:ECHR:1991:1030JUD001316387), and of 4 February 2005, Mamatkulov and Askarov v. Turkey (application numbers 46827/99 and 46951/99, CE:ECHR:2005:0204JUD004682799). 59 The referring court states that, according to the Hungarian Justice Ministry, ML ‘would initially be accommodated in the prison in the capital Budapest for the duration of the surrender procedure and would then be transferred to the regional prison of Szombathely’. The referring court adds that, ‘on the basis of the information at its disposal’, the Chamber decided on 9 January 2018 that it had no objection ‘to the sentence being served at Szombathely prison’ (order for reference, paragraphs 9 and 10). If that is the case, the difficulty is confined to the limited period of detention in Budapest prison. 60 The criteria for allocating a prisoner to a particular prison vary widely (length of sentence served, personal and family circumstances, prison regime and the like) and are difficult to assess in advance. 61 Judgment in Aranyosi, paragraph 98. Italics added. 62 The Court stressed that ‘the executing judicial authority must respect the requirement of proportionality, laid down in Article 52(1) of the Charter, with respect to the limitation of any right or freedom recognised by the Charter. The issue of a European arrest warrant cannot justify the individual concerned remaining in custody without any limit in time.’ (Judgment in Aranyosi, paragraph 101). 63 ‘[I]f the executing judicial authority concludes … that it is required to bring the requested person’s detention to an end, it is then required, pursuant to Articles 12 and 17(5) of the Framework Decision, to attach to the provisional release of that person any measures it deems necessary so as to prevent him from absconding and to ensure that the material conditions necessary for his effective surrender remain fulfilled for as long as no final decision on the execution of the [EAW] has been taken’ (judgment in Aranyosi, paragraph 102, italics added). 64 Judgment in Aranyosi, paragraph 104 in fine.