FIFTH SECTION
CASE OF BIVOLARU AND MOLDOVAN v. FRANCE
(Applications nos. 40324/16 and 12623/17)
 
 
JUDGMENT
 
Art 3 (substantive) • Inhuman and degrading treatment • Applicant surrendered to Romanian authorities on European arrest warrant where real risk of poor detention conditions • Applicant, recognised as refugee by Swedish authorities, surrendered to Romanian authorities on European arrest warrant where no real risk of persecution or poor detention conditions
 
STRASBOURG
25 March 2021
 
FINAL
 
25/06/2021
 
 
This judgment has become final pursuant to Article 44 § 2 of the Convention. It is subject to editorial revision. In the case of Bivolaru and Moldovan v. France,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 Jovan Ilievski,
 Lado Chanturia,
 Arnfinn Bårdsen,
 Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the applications (nos. 40324/16 and 12623/17) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Gregorian Bivolaru and Mr Codrut Moldovan (“the applicants”), on 12 August 2016 and 9 February 2017 respectively;
the decision to give notice on 19 December 2018 to the French Government of the complaints concerning Articles 2 and 3 and to declare the remainder of the complaints inadmissible;
the parties’ observations,
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present applications concern the surrender of the applicants to the Romanian authorities on European arrest warrants (EAWs) to serve prison sentences. The applicants complained that the execution of the EAWs contravened Article 3 of the Convention. THE FACTS
2. The first applicant, Gregorian Bivolaru, was born in 1952. He was represented before the Court by Mr P. Spinosi, a member of the bar of the Conseil d’Etat and the Court of Cassation. The second applicant, Codrut Moldovan, was born in 1971. He was represented by Mr C. Marcelot, a lawyer practising in Clermont‑Ferrand. 3. The Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs. APPLICATION NO. 12623/17
4. On 26 June 2015 Mr Moldovan was sentenced by Mureș County Court in Romania to seven years and six months’ imprisonment for acts of human trafficking committed in 2010 in Romania and France, namely forcing six Romanian nationals, including a minor, into mendicancy on his behalf. The applicant attended his trial. He later returned to France. 5. On 29 April 2016 the Romanian judicial authorities issued a European arrest warrant (EAW) in respect of the applicant for the enforcement of his sentence. 6. Three days earlier, on 26 April 2016, the applicant had, according to the information supplied by the Government, been charged with counts of “theft from a dwelling‑place entered by deception, breaking in or climbing” and “concealment of property obtained through theft from a dwelling‑place or storage area entered by deception, breaking in or climbing”, and had been remanded in custody. By a judgment of 10 May 2016 the Investigation Division of the Riom Court of Appeal ordered his release under judicial supervision with a requirement to report once a week to the Clermont-Ferrand police station. 7. On 7 June 2016 the applicant was arrested at the police station. The Principal Public Prosecutor of the Riom Court of Appeal served him with notice of the EAW that day. The applicant stated that he did not consent to be surrendered to the Romanian judicial authorities. 8. On 10 June 2016 he was brought before the Investigation Division of the Riom Court of Appeal for a determination regarding his surrender to the Romanian authorities. He acknowledged that he was in fact the person sought under the EAW but reiterated his objection to being surrendered to those authorities. Relying on the judgment of the Court of Justice of the European Union (CJEU) of 5 April 2016 in Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, and see paragraph 50 below), he contended that the Investigation Division could not grant the surrender without first requesting and obtaining supplementary information about the conditions in which he would be held in Romania. He adduced in that regard the CJEU judgment, the press release and an academic article concerning that case, and references to four judgments of this Court finding against Romania for inhumane conditions of detention (see Voicu v. Romania, no. 22015/10, 10 June 2014; Bujorean v. Romania, no. 13054/12, 10 June 2014; Mihai Laurenţiu Marin v. Romania, no. 79857/12, 10 June 2014; and Constantin Aurelian Burlacu v. Romania, no. 51318/12, 10 June 2014). 9. By a judgment of 16 June 2016 the Investigation Division concluded, on the basis of the Court’s judgments about detention conditions in Romania and a 2014 report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), that there was “objective, reliable, specific and duly up‑to‑date evidence of deficiencies regarding detention conditions in Romania”. The Romanian authorities were invited to provide it by 30 June 2016 with such particulars as related to the actual conditions in which the applicant would be held, for the purpose of assessing whether there was a real risk of inhuman and degrading treatment. 10. On 28 June 2016 the international law and judicial cooperation branch of the Romanian Ministry of Justice provided the French authorities with the following information. For the observance of a twenty‑one‑day quarantine, the applicant was first to be held in Rahova Prison, Bucharest, which had twenty‑four cells with “at least 2-3 sq. m” of individual space. After that time, “considering the length of the sentence, he [would] most likely, at the outset, have to serve it in a closed environment”. Because of his place of residence, he would, “most likely, at the outset”, serve his sentence in Gherla Prison. The cells there had one window measuring 200 cm by 145 cm which afforded natural light and adequate ventilation. Each cell contained at least a table and two chairs, a television mount, spaces in which to store personal effects, and a mattress and linen for the bed. It was further specified that prisoners had round‑the‑clock access to a sanitary facility equipped with two washbasins and two toilet cubicles; cold water was available at all times and hot water twice a week; the cells were sanitised on a regular schedule and whenever otherwise necessary; prisoners were provided with the necessary hygienic and sanitary items monthly; prisoners in the closed regime who did not work had access to a variety of activities, with a daily minimum of four hours allotted for work duty, education and vocational training, outdoor time, psychosocial assistance or exercise; an infirmary provided prisoners with medical assistance and treatment as necessary. The Romanian authorities concluded with the following statement:
“Accordingly, the National Prison Service guarantees that the individual will serve his sentence in Gherla Prison or in an ancillary prison where he will be afforded 2‑3 sq. m of personal space, inclusive of the bed and necessary item of furniture. ... The National Prison Service avails itself of this opportunity to extend its assurances that it will deal attentively with all matters reported by individuals serving sentences in subordinate prisons.”
11. The applicant subsequently lodged written submissions in the Investigation Division arguing that he would be at risk of inhuman and degrading treatment if surrendered. He stressed that the guarantees given by the Romanian authorities were not sufficient to meet the requirements arising from the Court’s judgments against Romania, among them Axinte v. Romania (no. 24044/12, 22 April 2014; see paragraph 111 below), and claimed that the detention conditions and situation of “serious overcrowding” in Gherla Prison would give rise to a breach of Article 3 of the Convention. He also sought a deferral of his surrender under Article 695‑39 of the Code of Criminal Procedure (see paragraph 59 below) on the ground that he was facing charges in France for the same conduct in respect of which he had been convicted in Romania. 12. By a judgment of 5 July 2016 the Investigation Division concluded that there was no obstacle to the applicant’s surrender:
“... As to the actual conditions in which [the applicant] will be held, the document drawn up by the Romanian authorities states that, after a quarantine of twenty‑one days in a cell with at least 2‑3 sq. m of individual space, he will probably be transferred to Gherla Prison, where he will be afforded at least 2‑3 sq. m of individual space in a cell with a window and where he will enjoy round‑the‑clock access to a sanitary facility with two washbasins and two toilet cubicles, access to cold water at all times and the opportunity to wash with hot water twice a week, and access to medical assistance. The detention conditions described by the document will ensure that [the applicant] is not held in conditions posing a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, provided that, if not held in Gherla Prison, he is held in a prison which affords the same or better individual conditions of detention. ... As to whether the surrender needs to be deferred pursuant to Article 695-39 of the Code of Criminal Procedure, deferral is a mere power vested in the Investigation Division. Given the nature of the charges pending against [the applicant] in France, the nature of the charges on which he was convicted in Romania, the severity of the sentence passed and the fact that, in the French proceedings, he has merely been placed under judicial supervision, it does not appear appropriate to bring the provisions of that Article to bear.

Outcome for Article 3: violation