Dumitru-Tudor Dorobantu

On 15 October 2019, the Grand Chamber of the Court of Justice delivered its judgment in the Dorobantu case, which represents another ruling in the judicial saga opened by the seminal decision in Aranyosi and Căldăraru. In Dorobantu, the Higher Regional Court of Hamburg, in its capacity of executing authority for the purposes of the Framework Decision on the European Arrest Warrant (EAW), raised four main questions. In essence, they concern the extent to which the executing authorities can scrutinise the criminal justice system of the Member State to which the requested person should be surrendered, in order to reach a decision on whether that person would be subject to inhuman and degrading treatment – which is prohibited by Article 3 ECHR and Article 4 of the Charter – if detained in the issuing Member State.

First, the German court demands clarification on the extent and scope of the review that the executing judicial authority, which holds information showing that there are systemic or generalised deficiencies in detention conditions in the issuing Member State, must undertake for the purpose of assessing whether there are substantial grounds for believing that the requested person, once surrendered, will run a real risk of being subjected to inhuman or degrading treatment. The German court queries, in particular, whether that review must be comprehensive or, on the contrary, limited to cases of manifest inadequacies in those conditions of detention (para. 41). The CJEU argues that this assessment by the executing authority cannot be limited to the review of obvious inadequacies since the prohibition of inhuman and degrading treatment is absolute: as a consequence, ‘the respect for human dignity that must be protected pursuant to that article would not be guaranteed if the executing judicial authority’s review of conditions of detention in the issuing Member State were limited to obvious inadequacies only’ (para. 62). In addition, the individualised judgment requested since Aranyosi and Căldăraru onwards does not require an assessment that takes into account all the prisons in the issuing Member State; on the contrary, it is limited to the relevant physical aspects of the conditions of detention in the prisons in which, according to the information available, it is actually intended that the person will be detained (e.g., personal space available to the detainees, sanitary conditions, and detainees’ freedom of movement within the prison). In this context, the additional information that the executing authorities may ask from the issuing authorities plays an important role in the assessment to be conducted by the former. In principle, the executing authority shall rely on the assurances given by the issuing judicial authority, in the absence of any specific indications that the conditions of detention in a particular prison infringe Article 4 of the Charter. Once assurances have been given, therefore, it is only in exceptional circumstances that the executing authorities can find that the surrender will jeopardise the right of the person concerned not to be subject to inhuman or degrading treatment.

Second, as Mr Dorobantu will be detained in a multi-occupancy cell, the Court of Justice is required to clarify which standards shall apply in the assessment of whether the personal space for detainees violates Article 4 of the Charter. In the absence of EU standards on the matter, the Court of Justice entirely relies on the case law of the European Court of Human Rights, according to which there is a strong presumption of a violation of Article 3 ECHR when the personal space available to a detainee is below 3 m2 in multi-occupancy accommodation. The calculation of this space should not include sanitary facilities but should instead include the space occupied by furniture, provided that the detainees still have the possibility of moving around normally within the cell. It is interesting to note that, while the Member States are free to provide more favourable detention conditions according to their own national legislation, surrender shall be subject to compliance with the European requirements and not with the more stringent ones set out by national law: ‘The opposite solution would, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined by EU law, undermine the principles of mutual trust and recognition which Framework Decision 2002/584 is intended to uphold and would, therefore, compromise the efficacy of that framework decision’ (para. 79).

Third, the referring court sought clarification on the importance that should be attached, in the assessment of whether the surrender of the requested person violates Article 4 of the Charter, to the existence of an effective mechanism for monitoring conditions of detention in the issuing Member State. The Court specifies that, albeit an important factor, the existence of this mechanism cannot as such justify a decision by the executing authority that rules out the real risk of inhuman or degrading treatment. Therefore, even if the executing authority is informed of the existence in the issuing Member State of effective legal remedies that allow reviewing detention conditions, it is still bound to undertake an individual assessment of the situation of each person concerned, in order to satisfy itself that its decision ‘on the surrender of that person will not expose him, on account of those conditions, to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter’ (para. 81).

Finally, although it is important to ensure that judicial cooperation at the EU level functions smoothly, the effectiveness of such cooperation and of the instruments on mutual recognition cannot be weighed against considerations relating to the violation of the fundamental right not to be subject to inhuman or degrading treatment, a right which is absolute and could not be in any way limited for reasons connected with the functioning of criminal justice systems.