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Dumitru-Tudor Dorobantu*

Request for a preliminary ruling from the Hanseatisches Oberlandesgericht Hamburg (Germany) lodged on 16 February 2018

Questions referred

1. In the context of the EAW Framework Decision, what are the minimum standards for custodial conditions required under Article 4 of the Charter?

a. Specifically, is there, under EU law, an ‘absolute’ minimum limit for the size of custody cells, pursuant to which the use of cells under that limit will always constitute an infringement of Article 4 of the Charter?

i. When determining an individual’s portion of a custody cell, should the fact that a given cell is being used for single or multiple occupancy be taken into account?

ii. When calculating the size of the custody cell, should areas covered by furniture (beds, wardrobes, etc.) be discounted?

iii. What infrastructural requirements, if any, are relevant for the purposes of compliance of custodial conditions with EU law? Does direct (or only indirect) open access from the custody cell to, for example, sanitary facilities or other rooms, or the provision of hot and cold water, heating, lighting, etc. have any significance?

b. To what extent do the various ‘prison regimes’, such as differing unlock times and varying degrees of freedom of movement within a penal institution, play a role in the assessment?

c. Can legal and organisational improvements in the issuing Member State (introduction of an ombudsman system, establishment of courts of enforcement of penalties, etc.) also be taken into account, as the present Chamber did in its decisions on the permissibility of the extradition?

2. What standards are to be used to assess whether custodial conditions comply with EU law? To what extent do those standards influence the interpretation of the term ‘real risk’ within the meaning of the judgment of the Court of Justice in Aranyosi and Căldăraru?

a. In that regard, are the judicial authorities of the executing Member State authorised to undertake a comprehensive assessment of the custodial conditions in the issuing Member State, or are they limited to an ‘examination as to manifest errors’?

b. To the extent that, in the context of its reply to the first question referred for a preliminary ruling, the Court of Justice concludes that there are ‘absolute’ requirements under EU law for custodial conditions, would a failure to meet those minimum standards be, in a sense, ‘unquestionable’, so that, as a result, such a failure would always immediately constitute a ‘real risk’, thereby prohibiting extradition, or can the executing Member State nevertheless carry out its own assessment? In that regard, can factors such as the maintenance of mutual legal assistance between Member States, the functioning of European criminal justice or the principles of mutual trust and recognition be taken into account?

On 30 April 2019, 30 April 2019, Advocate General Campo Sánchez-Bordona delivered his Opinion, where he concluded that

Article 1(3), Article 5 and Article 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, read in conjunction with Article 4 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that:

– when the executing judicial authority has information showing there to be systemic or generalised deficiencies in the conditions of detention in the prisons of the issuing Member State, it is required to assess the real risk of inhuman or degrading treatment to which the person surrendered would be exposed as a result of the conditions of his detention in the prison in which he is likely to be incarcerated, carrying out an overall assessment of all the material aspects of the detention which are relevant to that risk assessment;

– the executing judicial authority must attach particular importance to the factor relating to the minimum personal space which will be available to the person surrendered during his detention. In the absence of standards defined by EU law, that factor is determined by reference to the minimum requirement defined by the European Court of Human Rights, which is not an absolute minimum;

– when determining the minimum personal space which will be available to the person surrendered, the executing judicial authority must take into account whether the cell in which he is likely to be held is a single-occupancy or a multiple-occupancy cell. The authority must include the space occupied by furniture, but exclude the space occupied by sanitary facilities;

– if it is clear from the information provided by the issuing Member State that the minimum personal space which will be available to the person surrendered will be 3 m² or less, the executing judicial authority must examine whether the other material aspects of detention are capable of adequately compensating for the lack of personal space and of rebutting the presumption of breach of Article 4 of the Charter. In particular, that authority must assess the conditions relating to the layout of the cell in which the person surrendered will be held, the general appropriateness of the essential services and infrastructure of the prison and the aspects relating to the prisoner’s freedom of movement and the out-of-cell activities available to him;

– the assessment of those various factors must necessarily take into account the duration and extent of the restriction, the type of prison in which the person surrendered will be incarcerated and the prison regime to which he will be subject;

– the executing judicial authority may also take into account legislative and structural measures for the improvement of the execution of sentences in the issuing Member State. Nevertheless, given their general scope, those measures cannot, as such, mitigate the real risk of inhuman or degrading treatment to which the person surrendered would be exposed as a result of the conditions of his detention in the prison in question;

– in the context of its assessment, the executing judicial authority may not weigh the need to guarantee that the person surrendered will not be subject to any inhuman or degrading treatment within the meaning of Article 4 of the Charter against the requirements stemming from compliance with the principles of mutual trust and recognition and from safeguarding the effectiveness of the European criminal justice system.


Case Number C-128/18

Name of the parties Dumitru-Tudor Dorobantu

Date of the judgement 2019-04-30

Court Court of Justice of the European Union (CJEU)

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