OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 4 July 2018(1)
Case C‑220/18 PPU
ML
intervener:
Generalstaatsanwaltschaft Bremen
(Request for a preliminary ruling from the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen, Germany))
(Reference for a preliminary ruling — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Grounds for refusal to execute — Charter of Fundamental Rights of the European Union — Article 4 — Prohibition of inhuman and degrading treatment — Conditions of detention in the issuing Member State)
1.        This reference for a preliminary ruling once again raises questions concerning a European arrest warrant (EAW), following the interpretation of Framework Decision 2002/584/JHA (2) given by the Court of Justice in the judgment of 5 April 2016, Aranyosi and Căldăraru. (3)
2.        The referring court seeks from the Court of Justice further clarification of the case-law laid down in that judgment, in particular if (potential) infringements of the right not to be subjected to inhuman or degrading treatment in the prisons of the Member State which issued the EAW can be remedied by its own courts.
I.      Legislative framework
A.      EU law
1.      Charter of Fundamental Rights of the European Union
3.        Article 4 reads:
‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
2.      Framework Decision
4.        According to recitals 5, 6, 8, 10 and 12:
‘(5)      … the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures …
(6)      The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.
…
(8)      Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.
…
(10)      The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [EU, now, after amendment, Article 2 TEU], determined by the Council pursuant to Article 7(1) [EU, now, after amendment, Article 7(2) TEU] with the consequences set out in Article 7(2) thereof.
…
(12)      This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [EU] and reflected in the Charter …, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons …’
5.        Article 1 provides:
‘1.      The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2.      Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3.      This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [EU].’
6.        Article 5 is worded as follows:
‘The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:
…
2.      if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure;
3.      where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.’
7.        Pursuant to Article 6:
‘1.      The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.
2.      The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.
3.      Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.’
8.        Article 7 reads:
‘1.      Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities.
2.      A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto.
Member State wishing to make use of the possibilities referred to in this Article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing Member State.’
9.        In accordance with Article 15:
‘1.      The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.
2.      If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.
3.      The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’
B.      German law. Gesetz über die internationale Rechtshilfe in Strafsachen (4)
10.      The Framework Decision was transposed into German law by Paragraphs 78 to 83(k), as amended, (5) of the IRG.
11.      Under Paragraph 29(1) of the IRG, the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen, Germany) is to rule on whether an individual may be surrendered where he has not consented to surrender.
12.      Paragraph 73 of the IRG provides:
‘In the absence of a request to that effect, mutual legal assistance and the transmission of information shall be unlawful if contrary to the essential principles of the German legal system. In the event of a request under Parts VIII, IX and X, mutual legal assistance shall be unlawful if contrary to the principles stated in Article 6 [TEU].’
II.    Main proceedings and questions referred for a preliminary ruling
13.      On 31 October 2017, the Nyiregyházai járásbíróság (District Court, Nyiregyháza, Hungary) issued an EAW to execute the prison sentence of one year and eight months imposed on ML, a Hungarian national, for committing the offences of injury, damage, fraud and theft, by judgment given (in absentia) on 14 September 2017.
14.      Previously, on 2 August 2017, the same Hungarian court had adopted another EAW seeking the surrender of ML so that he could be tried for the offences which would later result in his conviction.
15.      The Amtsgericht Bremen (Local Court, Bremen, Germany) ordered the arrest of ML on 12 December 2017. However, ML had already been in detention since 23 November 2017 pursuant to the first EAW.
16.      By decision of 19 December 2017, the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen) set aside the arrest ordered pursuant to the first EAW and then ordered the arrest of ML for the purpose of executing the EAW of 31 October 2017.
17.      ML objected to his surrender to the Hungarian authorities, requesting that a question be referred to the Court of Justice for a preliminary ruling. Before ruling on the surrender, the court asked for supplementary information.
18.      As regards the first EAW, the Hungarian Justice Ministry had already given the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen) details about the places where ML would be detained, giving an assurance that under no circumstances would he suffer inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
19.      Based on that information, the executing court, by decision of 9 January 2018, stated that the detention of ML in one of the prisons indicated by the Hungarian Justice Ministry did not present any difficulties. However, that court had doubts concerning the conditions of other prisons, also indicated by the Justice Ministry as possible places for ML’s incarceration, and therefore, in accordance with the principles on the execution of sentences approved by the Council of Europe in 2006 (6) and the United Nations Minimum Rules for the Treatment of Prisoners, (7) it addressed a number of questions to the Hungarian authorities. (8)
20.      The Hungarian Justice Ministry’s reply of 12 January 2018 stated that, on 25 October 2016, laws guaranteeing prisoners the right to complain about their conditions of incarceration entered into force.
21.      The Justice Ministry supplemented that information on 1 February 2018 with the particular that the individual sought would be accommodated in Budapest prison for a period of one to three weeks, subject to any unforeseen circumstances. During that period, unspecified measures would be taken in relation to execution of the surrender.
22.      On 12 February 2018, the executing court requested a number of details regarding the conditions in Budapest prison. The executing court also asked in which other prisons ML could be imprisoned and on what actual basis it could verify the conditions of detention prevailing there. The Hungarian authorities did not reply to that request by the time limit stipulated by the executing court (28 February 2018). (9)
23.      The German Public Prosecutor’s Office supports execution of the EAW, while ML is against it. Against that background, the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen) has referred the following questions to the Court of Justice for a preliminary ruling, requesting that the matter be dealt with under the urgent procedure:
‘(1)      What significance does it have, for the purpose of the interpretation of the above provisions, if legal remedies exist for detainees in the issuing Member State in respect of the conditions of their detention?
(a)      If, taking account of the aforementioned provisions, the executing judicial authority is in possession of evidence of systemic or general deficiencies affecting certain groups of persons or certain prisons in the issuing Member State, is a real risk of inhuman or degrading treatment of the person whose surrender is sought in the event of his surrender, which would render the surrender inadmissible, to be ruled out merely by reason of the fact that such legal remedies have been introduced, without the need for further assessment of the conditions of detention?
(b)      Is it of significance in this regard that the European Court of Human Rights has held in respect of such legal remedies that there is no evidence that they do not offer detainees realistic perspectives of improving unsuitable conditions of detention?
(2)      If Question 1 is answered to the effect that the existence of such legal remedies for detainees, without further assessment of the specific conditions of detention in the issuing Member State by the executing judicial authority, does not of itself exclude a real risk of inhuman or degrading treatment of the person whose surrender is sought:
(a)      Are the aforementioned provisions to be interpreted as meaning that the assessment by the executing judicial authority of the conditions of detention in the issuing Member State extends to all prisons or other detention facilities in which the person whose surrender is sought may be incarcerated? Does this also apply to simply temporary or transitional detention in certain prisons? Or can the assessment be limited to the prison in which, according to information from the authorities of the issuing Member State, the person whose surrender is sought is likely to be incarcerated for most of the time?
(b)      For this purpose, is it necessary to conduct a comprehensive assessment of the conditions of detention concerned that determines both the personal space available to each prisoner and other conditions of detention? Are the conditions of detention thus determined to be assessed on the basis of the case-law of the European Court of Human Rights established in its judgment in Muršić v Croatia (judgment of [20] October 2016, application No 7334/13 [CE:ECHR:2016:1020JUD000733413])?
(3)      If Question 2 is also answered to the effect that the assessment required by the executing judicial authority must extend to all prisons under consideration:
(a)      Can the assessment by the executing judicial authority of the conditions of detention in each individual prison envisaged be rendered superfluous by a general assurance given by the issuing Member State that the person whose surrender is sought will not be exposed to any risk of inhuman or degrading treatment?
(b)      Or, in lieu of an assessment of the conditions of detention of each individual prison envisaged, can the decision by the executing judicial authority on the admissibility of the surrender be made contingent upon the person whose surrender is sought not being exposed to any such treatment?
(4)      If Question 3 is also answered to the effect that the provision of assurances and the imposition of conditions cannot render the assessment by the executing judicial authority of the conditions of detention in each individual prison envisaged in the issuing Member State superfluous:
(a)      Must the duty of assessment by the executing judicial authority extend to the conditions of detention in all prisons envisaged, even in the case where the judicial authority of the issuing Member State advises that the period of detention in them of the person whose surrender is sought will not exceed three weeks, circumstances permitting?
(b)      Does this also apply if the executing judicial authority is unable to ascertain whether that information was provided by the issuing judicial authority or whether it originates from a central authority in the issuing Member State acting in response to a request by the issuing judicial authority for support?’
III. The procedure before the Court of Justice
24.      The order for reference was received at the Court of Justice on 27 March 2018, and the decision was taken to deal with it under the urgent preliminary-ruling procedure.
25.      Written observations were lodged by ML, the German and Hungarian Governments and the Commission, all of whom, together with the German Public Prosecutor’s Office and the Belgian, Danish, Irish, Spanish, Netherlands and Romanian governments, attended the hearing held on 14 June 2018.
IV.    Analysis
A.      Preliminary considerations
26.      In the judgment in Aranyosi, which replied to a question referred for a preliminary ruling by the same court as in this case, the Court of Justice held that Articles 1(3), 5 and 6(1) of the Framework Decision must be interpreted as meaning that, ‘where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates 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, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State.’ (10)
27.      The judgment goes on to state: ‘To that end, the executing judicial authority must request that supplementary information be provided by the issuing judicial authority, which, after seeking, if necessary, the assistance of the central authority or one of the central authorities of the issuing Member State … must send that information within the time limit specified in the request. The executing judicial authority must postpone its decision on the surrender of the individual concerned until it obtains the supplementary information that allows it to discount the existence of such a risk. 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.’ (11)
28.      In 2016, the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen) sought clarification from the Court of its case-law by referring a number of additional questions for a preliminary ruling. However, it was not possible to reply to the referring court because the EAW was withdrawn before the Court gave a ruling, which meant that the preliminary-ruling proceedings were discontinued. (12)
29.      On this (third) occasion, the referring court asks specifically that the Court interpret Articles 1(3), 5 and 6(1) of the Framework Decision, in conjunction with Article 4 of the Charter, in connection with ‘the procedure prescribed by the Court of Justice … in its judgment in Aranyosi and Căldăraru … for assessment by the executing judicial authority of the conditions of detention in the issuing Member State’. (13)
30.      Before embarking on an analysis of the questions referred, it is worth pointing out that the purpose of the Framework Decision is to replace the traditional system of extradition, characterised by a significant political element of expediency, with a system of surrender between judicial authorities, based on the principle of mutual recognition and founded on the high level of confidence between the Member States. (14)
31.      The principle of mutual recognition, ‘which is the “cornerstone” of judicial cooperation, means, pursuant to Article 1(2) of the Framework Decision, that Member States are in principle obliged to give effect to a European arrest warrant’. (15) That principle ‘is itself founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter’. (16)
32.      The principles of mutual recognition and mutual trust are central to EU law, given that, as the Court observed in the judgment in Aranyosi, referring to Opinion 2/13, (17) ‘they allow an area without internal borders to be created and maintained’, since, ‘specifically, the principle of mutual trust requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’. (18)
33.      Accordingly, other than in the cases of mandatory non-execution, listed exhaustively in Article 3 of the Framework Decision, and the cases of optional non-execution referred to in Articles 4 and 4a thereof, the executing judicial authority is required, as a rule, to execute the EAW, without being able to make it subject to conditions other than those set out in Article 5 of the Framework Decision.
34.      In that connection, ‘while the execution of the European arrest warrant constitutes the rule, the refusal to execute such a warrant is intended to be an exception which must be interpreted strictly’. (19)
35.      The EU legislature has stipulated that implementation of the mechanism of the EAW ‘may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article [2 TEU], determined by the Council pursuant to [Article 7(1) TEU] with the consequences set out in Article 7(2) thereof.’ (20)
36.      However, it may be inferred from the judgment in Aranyosi that, in addition to the situation to which I have just referred (that is, other than where the Council has formally determined, under Article 7 TEU, that there has been a serious and persistent breach of the values and principles set out in Article 2 TEU), EU law allows the non-execution of an EAW in other specific cases by way of exception. The analysis of questions 2, 3 and 4 will make it possible to gauge the scope of that exception.
1.      The effect of the remedies provided by the issuing Member State (question 1)
37.      The Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen) frames its first question within a very precise factual context: where the executing judicial authority has ‘evidence of systemic or general shortcomings affecting certain groups of persons or certain prisons in the issuing Member State’.
38.      On the basis of that assumption, the referring court seeks to ascertain ‘what the impact is of the possible remedies offered by the issuing Member State to the detained person, as regards his conditions of detention’.
39.      I believe that, given the way in which the question is formulated, the referring court could find by itself the answer it seeks from the Court. If ‘the possible remedies offered by the issuing Member State’ are sufficient to exclude the risk of inhuman or degrading treatment, there would be no reason to refer to ‘the existence of systemic or general deficiencies’.
40.      In my view, the situation described by the referring court is not exactly the same as that which led to the judgment in Aranyosi:
—      at that time (2015), the referring court stated that, based on the information available, it was satisfied that there was convincing evidence that Mr Aranyosi might be subject to conditions of detention that were in breach of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) and Article 6 TEU, in particular as a result of the overcrowding in prisons; (21)
—      now (2018), the situation has changed and, with the specific aim of updating (22) the evidence for confirming or altering the view it reached at the relevant time, the referring court has requested further information from the Hungarian authorities. On the basis of the information obtained, the referring court considers it necessary to take a new relevant factor into account, that is, the introduction of remedies which were lacking in the issuing Member State at the time of the reference for a preliminary ruling in Aranyosi. (23)
41.      The (new) information supplied to the referring court by the Hungarian authorities reveals that, on 25 October 2016, certain legislative provisions were adopted with a view to providing affected persons with the right to complain about their conditions of detention. According to the order for reference, the European Court of Human Rights (ECtHR) has stated that there is no evidence that those measures would not offer realistic perspectives of improving conditions of detention, in line with the prohibition on inhuman or degrading treatment. (24)
42.      In that connection, in accordance with the judgment of the ECtHR of 14 November 2017, (25) cited by the referring court, ‘nothing proves that [the new measures adopted by the Hungarian legislature] will not offer realistic perspectives of improving unsuitable conditions of detention, and will not be capable of providing inmates with an effective possibility of bringing those conditions in line with the requirements of Article 3 of the Convention’, (26) and judicial review of the actions taken by the governor is explicitly provided for. (27)
43.      The fact that, since 2016, the Hungarian legislation has included a remedy mechanism which enables inmates to obtain protection from the judicial authorities against unsuitable conditions of detention should, if that mechanism works properly, be sufficient to discount systemic or general shortcomings in the national prison system, with regard to guaranteeing the right not to suffer inhuman or degrading treatment. That approach is supported by the principle of mutual trust which, as I observed above, forms the basis for the EAW system and, with it, the rationale for the mutual recognition of judicial decisions.
44.      However, it is possible that the new legislation is symbolic rather than effective, meaning that it does not offer sufficient protection. If that is the case, given ‘that the right guaranteed by Article 4 of the Charter is absolute’, (28) the executing judicial authority will be obliged to provide protection if it ‘is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State’. (29)
45.      To assess whether that remedy mechanism has actually been established, it should be recalled that, in accordance with the judgment in Aranyosi, ‘information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State … may be obtained from, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN.’ (30)
46.      The information gathered in these proceedings suggests that the remedies laid down by the Hungarian legislature do not constitute theoretical or impracticable solutions and are instead capable of producing effective practical consequences.
47.      That was the view taken, first, by the ECtHR, which held that the new measures are not a dead letter and that instead they furnish an effective guarantee of the right not to be subjected to inhuman or degrading treatment.
48.      Second, the Committee of Ministers of the Council of Europe, in its decision of June 2017, (31) welcomed the Hungarian authorities’ commitment to resolve the problem of prison overcrowding and noted that the measures already taken appeared to have produced their first results and that it was to be hoped that those measures, and others that might be adopted in the future, might help the Hungarian authorities in taking, on a case-by-case basis, concrete and effective actions to further tackle that problem. (32)
49.      The referring court accepts that, in the light of the position taken by the ECtHR, ‘the executing authority might be required to accept that the new possibilities with regard to legal protection … preclude a real risk that the person sought will be subjected to inhuman or degrading treatment as a result of the conditions of his detention’. (33) Since the ECtHR has granted itself the power to rule on any infringements of Article 3 of the ECHR where domestic remedies are unsuccessful, the referring court believes that this suggests that the ECtHR has not simply dismissed the risk that the person sought might suffer inhuman or degrading treatment. (34)
50.      In reality, the fact that the ECtHR has expressed its willingness to hear actions which may be brought by detained persons whose remedies before national courts are unsuccessful does not amount to the expression of a general suspicion, as a matter of principle, with regard to national systems of guarantees. It is, rather, a reminder that, where judgments of national courts do not remedy specific infringements of rights guaranteed by the ECHR, the remedy before the ECtHR is available. (35)
51.      The ECtHR held in Domján v. Hungary that the remedies introduced in Hungary as a result of the 2016 reform must be used by Mr Domján ‘and all others in his position’ before bringing proceedings before the ECtHR. (36) It thus implicitly accepted the effectiveness of those remedies for the purpose of granting protection under the ECHR, without the need to use the extraordinary procedure which, by definition, the ECtHR represents. (37)
52.      Admittedly, the ECtHR goes on to observe that it may change its position ‘as to the potential effectiveness of the remedies in question, should the practice of the domestic authorities show, in the long run, that detainees are being refused relocation and/or compensation on formalistic grounds, that the domestic proceedings are excessively long or that domestic case-law is not in compliance with the requirements of the Convention’. (38) However, unless and until such a change occurs, it must be assumed that the remedies introduced in 2016 are effective.
53.      Accordingly, if the prison situation has developed favourably, in the sense described above; if there is now national legislation which guarantees the effective judicial protection of detained persons against potential breaches of Article 4 of the Charter as a result of their conditions of detention; and if that legislation is effective and not merely formalistic or nominalist, it can no longer be readily assumed that ‘there is objective, reliable, specific … evidence … that demonstrates 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’.
54.      I believe that that approach is the most compatible with the judgment in Aranyosi, with the principles underpinning the Framework Decision and with the respect due to the courts of each State (in this case, Hungary), which must not be tainted without good reason with the suspicion of widespread collusion in the infringement of Article 4 of the Charter when they issue EAWs. A system of cooperation in criminal matters based on mutual judicial trust cannot survive if the courts of the receiving State deal with requests made by the courts of the issuing State as if the latter have less sensitivity than the former when it comes to guaranteeing the protection of fundamental rights.
55.      In any event, the receipt of an EAW cannot be grounds for the executing court to carry out an assessment of the quality of the prison system of the issuing Member State as a whole or to assess that system in the light of its own domestic law. The review criterion must be Article 4 of the Charter alone. A minimum but absolute guarantee in respect of which effective judicial protection must be introduced which is capable of ensuring real and effective protection against torture and inhuman or degrading treatment.
56.      The fact that the ECtHR has found that the new system of remedies enables the provision of that protection is, in my view, a highly significant factor when it comes to assessing the general situation (first stage of the twofold Aranyosi test) as regards detention conditions in the Member State which issued the EAW. I would almost go so far as to state that it is a decisive factor for the purpose of conducting that assessment.
57.      Nevertheless, in so far as it is, ultimately, the guarantee of an absolute right, which must, by its very nature, receive preventive rather than remedial protection, I believe that, for all its relevance, the existence of an effective system of remedies might not be sufficient if the executing court has legitimate doubts regarding the possibility that the person specifically sought might immediately suffer inhuman or degrading treatment, irrespective of whether that infringement is subsequently redressed through effective legal remedies in the issuing State.
58.      Accordingly, in a situation like that at issue in the main proceedings, where the recent establishment of a specific system for guaranteeing the right not to suffer inhuman or degrading treatment while in detention in the issuing Member State may not have become fully effective, to the point of having rendered exceptional the risk of infringement of that right, the executing court would be justified in concerning itself with the conditions in which the person whose surrender is sought would be detained (second stage of the Aranyosi test).
2.      The scope of the assessment to be carried out by the executing judicial authority (questions 2, 3 and 4)
59.      These questions are based on the assumption that there continues to be a serious risk of infringement of Article 4 of the Charter if the referring court agrees to execute the EAW.
60.      The Court held in Aranyosi that it was not sufficient to identify that risk (39) and that instead ‘[w]henever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State.’ (40)
61.      Therefore, in addition to considering there is proof of systemic (general) shortcomings in the issuing Member State’s prisons, the executing court must determine ‘whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment …’. (41)
62.      The referring court complied with that requirement in seeking to determine what ML’s conditions of detention would be, for which purpose that court requested certain additional information. (42) The referring court’s assessment must, I stress, be confined to objective and reasonable information which can be provided to it concerning the specific and particular conditions which would affect that person. Therefore, the referring court does not have to examine, at that stage, the general conditions which govern the prison system of the issuing Member State.
63.      The referring court asks whether, if it has evidence of systemic or general shortcomings in all or certain prisons, it can discount the risk that this entails for the well-being of the person sought when the issuing Member State has offered ‘a general assurance’ that that person will not be subjected to such treatment. (43)
64.      As the referring court itself acknowledges, the Framework Decision does not envisage that type of assurance. Nor does it provide that such an assurance may be requested. (44) Since the issue in the main proceedings is the execution of a specific EAW and not the quality of the issuing Member State’s prison system as a whole, I believe that, if the issuing Member State’s authorities make a commitment (45) that the particular conditions in which the person sought will be detained do not entail a real risk that that person will suffer inhuman or degrading treatment, the executing judicial authority must attach to that commitment the significance which it deserves. As the expression of an obligation which has been formally assumed, if that commitment is breached, it may be relied on by the person sought before the judicial authority of the issuing Member State.
(a)    The origin of the information necessary for determining the conditions of detention
65.      As a preliminary point, the question arises of what information the executing court can use for those purposes and, in particular, from which authority the executing court can request or receive that information.
66.      Article 6(1) of the Framework Decision provides that the executing judicial authority must, in principle, have contact with the court which issued the EAW. Mutual recognition is created through the dialogue inter pares created by that article, that is, between the issuing judicial authority, which issues the EAW, and the executing or receiving judicial authority, which has to act upon it. (46)
67.      According to Article 7(1) of the Framework Decision, Member States may designate one or more central authorities ‘to assist the competent judicial authorities’ and which, under Article 7(2), may also be made responsible for ‘the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto.’ (47)
68.      That point is relevant because the referring court is uncertain whether, in order to form a view on ML’s conditions of detention in Hungary, it may take into consideration information which it is not possible to verify if it comes from the issuing judicial authority itself or has been requested by that authority. (48)
69.      According to the order for reference, that information was provided by the Hungarian Justice Ministry but the order does not state whether it was provided directly or through the issuing court. In the latter case, logically, the information would be relevant for the purposes of executing the EAW, provided that its legal value is derived from the fact that it has been accepted and endorsed by the issuing court.
70.      The issuing and executing judicial authorities are the only active protagonists in the processing of the EAW. The executing court therefore has to send its requests for information to the issuing court, which has an obligation to respond to those requests. (49) The fact that the judicial authorities are the protagonists is without prejudice to the purely auxiliary role which, as necessary, may be played by the central authorities designated by the Member States under Article 7 of the Framework Decision. (50)
71.      Accordingly, the executing judicial authority must take into account the information which has been provided to it by the issuing judicial authority or which, having come from the central authority (or one of the central authorities) of the issuing Member State, has been accepted and transmitted by the issuing judicial authority.
72.      The foregoing must be interpreted without prejudice to the fact that the executing judicial authority may also rely on such information as it is able to obtain for the purpose of determining that there is ‘information that is objective, reliable, specific and properly updated’ (51) which is capable of demonstrating that there is a real risk of inhuman or degrading treatment.
73.      That other information may be obtained by the executing authority in the course of the domestic procedure for dealing with the EAW, on the initiative of the person sought or the Public Prosecutor’s Office which, in Germany, acts as the executing judicial authority. (52) Just as the information obtained by these methods must, in its entirety, undergo a careful assessment by the person who has requested it, (53) scrutiny of the information provided by the issuing court — whether directly or with the endorsement of its own authority — can extend only to confirmation of the origin of that information, given that, as regards the substance of that information, the trust on which mutual recognition is founded must, in principle, take precedence.
(b)    The scope of the information necessary for determining the conditions of detention
74.      According to the order for reference, the referring court did not receive all the information it had requested by the end of the period fixed by that court. (54) It is therefore necessary to examine the consequences which may flow from that conduct (by omission) of the issuing court.
75.      Before I give my view on those consequences, it is worth noting that the request for information must be limited to that which is essential in each case. The purpose of the information requested is to verify whether there is a real risk that the person sought will be subjected to inhuman or degrading treatment. The request should not encompass other matters, including in connection with the prison system, which do not strictly relate to that specific risk and deal with the greater or lesser degree of prison welfare.
76.      The multiple questions sent by the executing court to the issuing court include questions which clearly go beyond what is relevant for the assessment of whether there is a risk of inhuman or degrading treatment. In that connection, I believe that the questions concerning, inter alia, whether it is possible to smoke, who washes inmates’ clothing, and whether there are bars or slatted shutters on cell windows (55) go beyond what is essential in order to establish whether that risk exists.
77.      On the same lines, in my view, there is no reason why the information requested should relate to all prisons in the issuing Member State rather than only to those in which the person sought is to be accommodated.
78.      I agree with the Commission on that point (56) and I believe, like the German Government, (57) whose position was adopted at the hearing by the majority of the governments which took part, that the focus should be confined to the foreseeable effects of surrender which the executing Member State could or should have been aware of at the time it carried out that surrender. I believe that that is a reasonable test and that it complies, moreover, with the case-law of the ECtHR as far as the responsibilities of the executing Member State are concerned. (58)
79.      From that perspective, what is foreseeable extends to both the prison where the person sought will be held immediately after surrender and to the prison where he will be sent for subsequent incarceration. (59) Other prisons to which he might be transferred in the future while serving his custodial sentence (60) are outside the scope of the foreseeable effects of which the executing State can be required to be aware.
(c)    The effects of failure by the issuing court to respond to requests for information from the executing court
80.      If the information requested but not received is relevant for the purpose of excluding the possibility that the person sought will suffer inhuman or degrading treatment, the duty of sincere cooperation and diligence in the management of that person’s interests must lead the court which issued the EAW to provide the executing judicial authority with all the information requested by the latter.
81.      If the executing judicial authority’s doubts remain owing to the lack of supplementary information, where, I repeat, that information is essential to enable it to form a view, the executing judicial authority is entitled to postpone its final decision. I say postpone and not refuse because the case-law established in Aranyosi does not mean inevitably that, if a risk of infringement of Article 4 of the Charter is identified which is not general and abstract but rather specific and personal, the executing judicial authority must refuse to allow the surrender of the person sought.
82.      The Court of Justice held that if the executing court finds, in the light of the information provided, ‘that there exists, for the individual who is the subject of the European arrest warrant, a real risk of inhuman or degrading treatment … the execution of that warrantmust be postponed but it cannot be abandoned’. (61)
83.      In those circumstances, what is most important is to ensure the right to liberty (Article 6 of the Charter) of the person sought, if that person is in detention as a result of the EAW. (62) However, the measures adopted in favour of the right to liberty must not jeopardise the execution of the EAW for as long as no final decision has been taken in that regard. (63)
84.      The Court went on to state that ‘[i]f the existence of that risk [of inhuman or degrading treatment] cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.’ (64) I believe, therefore, that the procedure does not end automatically after such a risk has been identified and that instead the executing court can take time to decide whether to bring the procedure to an end. In my opinion, by referring to ‘bringing to an end’ the surrender procedure rather than ‘refusal or non-execution’ of the EAW, the Court transfers responsibility for continuation of the procedure to a certain extent to issuing judicial authorities which fail to respond to requests for supplementary information.
85.      Where it has not been possible to rule out the existence of a risk, because of failure by the issuing court to respond to a request for information sent by the executing court, the latter will be able to contact that judicial authority to inform it that, in those circumstances, the surrender procedure will not continue.
86.      In 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.