User:Bubbafest567/Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen

Overview
Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen (Aranyosi/ Căldăraru) (2016) is an EU law case determined by the European Court of Justice, concerning the non-execution of a European Arrest Warrant to member states whose prison detention conditions breach the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.

European Convention on Human Rights
All European Union member states are signatories to the European Convention on Human Rights (ECHR) and have an obligation to the convention. Article 3 ECHR provides ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Article 15(1) and 15(2) ECHR provide ‘No derogation…from Article 3’ even ‘in time of war or other public emergency threatening the life of the nation’.

Charter of Fundamental Rights of the European Union
All European Union member states are signatories to the Charter of Fundamental Rights of the European Union (the Charter) and have an obligation to the Charter. Article 1 of the Charter provides ‘Human dignity is inviolable. It must be respected and protected’. Article 4 of the Charter provides ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ Article 4 of the Charter and Article 3 ECHR share the same wording and under Article 52(3) of the Charter, that recognizes corresponding rights guaranteed by the ECHR, they therefore share the same meaning and same scope.

European Arrest Warrant
The European Arrest Warrant (EAW) was introduced by the June 13th, 2002 Council Framework Decision 2002/584/JHA and amended on February 26, 2009 by Council Framework Decision 2009/299/JHA. The EAW created a “simplified cross-border judicial surrender procedure” for all EU member states that replaced bilateral political involvement with standardized procedures, strict possibilities for refusal, and time limits. The EAW is based on the principle of mutual recognition and a “high level of confidence between member states” in the field of criminal law as “the cornerstone of judicial cooperation." The EAW uses the common terminology of ‘issuing judicial authorities’, who submit extradition requests for persons to be prosecuted, and executing judicial authorities, who execute the arrest and transfer of persons. An EAW may only be suspended in a ‘serious and persistent’ breach of Article 2 Treaty on European Union (TEU) determined by Article 7(2) TEU. Grounds for mandatory and optional non-execution of the EAW are listed in Articles 3, 4, 4a of the Framework Decision. Article 15(2) permits the executing judicial authorities to request supplementary information from the issuing judicial authority within timeframes it specifies. The question of the case refers to Article 1(3) of the EAW that states “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 (TEU)” which refers to the Charter.

German Law
Transposition of the EAW to German Law was made through paragraphs 78 to 83k of the Gesetz über die internationale Rechtshilfe in Strafsachen (IRG). Paragraph 73 of the IRG states that “mutual legal assistance…shall be unlawful if contrary to the principles stated in Article 6 (TEU)."

Case C‑404/15
Mr. Pal Aranyosi, a Hungarian national, was accused of two instances of forced entry and theft in Hungary in January and August 2014. Two EAWs were issued by Hungarian authorities on November 4th and December 31st 2014 seeking his surrender to Hungarian judicial authorities for prosecution. Double criminality was fulfilled as Mr. Aranyosi’s actions were a criminal offense under both “Article 370(1) of the Hungarian Criminal Code and Paragraphs 242, 243(1) point 1, and 244(1) point 3, of the German Criminal Code." On January 14, 2015 Mr. Aranyosi was arrested in Bremen, Germany, and the Generalstaatsanwaltschaft Bremen (Office of the Public Prosecutor of Bremen) asked the Miskolci járásbíróság (District Court of Miskolc) in Hungary which prison Mr. Aranyosi would be held in if surrendered, after referring to detention conditions that did not fulfill minimum European standards. After consultation with the Public Prosecutor of Miskolc the Office of the Public Prosecutor of Bremen determined there was no specific evidence that Mr. Aranyosi would be subject to torture, and that the extradition was lawful.

Case C‑659/15 PPU
Mr. Robert Căldăraru, a Romanian national, was convicted and sentenced to 20 months imprisonment for driving without a license by the Judecătoria Făgăraş (Court of First Instance of Făgăraş, Romania) on April 16, 2015. Double criminality was fulfilled as Mr. Căldăraru’s actions were a criminal offense under both “Article 86 of the Romanian Law No 195 of 2002 and Paragraph 21 of the German Road Traffic law (Straßenverkehrsgesetz)." He was arrested in Bremen, Germany on November 8, 2015 and on November 20, 2015 the Office of the Public Prosecutor of Bremen declared the extradition lawful and stated that the Court of First Instance of Fagaras had been unable to provide information on the detention conditions Mr. Căldăraru would be subject to in Romania.

Joined Cases
In both instances the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court of Bremen) ultimately declared the surrenders unlawful under Paragraph 73 IRG as with the evidence currently available the detention conditions Mr. Aranyosi and Mr. Căldăraru might be subject to in Hungary and Romania respectively, were in probable breach of Article 3 ECHR and Article 6 TEU. The court in both rulings referred to ECHR case law regarding the overcrowding of prisons in Hungary and Romania and reports from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

Proceedings were stayed for both cases and preliminary references were made to the European Court of Justice (CJEU). The two cases were joined for the purposes of judgment due to them asking for the same interpretive questions of the court. The case was dealt with under the urgent procedure as the preliminary ruling concerned the interpretation of a framework decision within the Area of Freedom, Security and Justice (AFSJ). Furthemore, Mr. Căldăraru’s temporary imprisonment on the basis of the EAW also depended on how the CJEU replied to the preliminary reference. The joined cases of C‑404/15 and C‑659/15 PPU were assigned to the Grand Chamber.

Preliminary Reference
The preliminary reference asked the CJEU whether to interpret Article 1(3) EAW as

“meaning that surrender for the purposes of execution of a criminal sentence is impermissible where there are strong indications that detention conditions in the issuing Member State infringe…Article 6 TEU, or is it to be interpreted as meaning that, in such circumstances, the executing Member State can or must make the decision on the permissibility of surrender conditional upon assurances that detention conditions are compliant?”

The CJEU was also asked to interpret whether issuing judicial authorities were competent to provide assurances as opposed to assurances “subject to the domestic rules of competence in issuing member states."

Advocate General Opinion
The advocate general (AG) assigned to Aranyosi/ Căldăraru was Yves Bot. The AG identified the underlying question brought by Aranyosi/ Căldăraru as balancing the fundamental rights of the person being surrendered and limits to mutual recognition between member states that is the ‘cornerstone’ of the AFSJ. The AG rejected transposing the principles the CJEU developed in EU asylum case law (N.S. and Others), that does not permit a member state to transfer an asylum seeker to a member state where they may be subject to breaches of Article 4 of the Charter, to the EAW. The AG held that the principles developed for the Common European Asylum System are not applicable to the EAW, despite both forming part of the AFSJ, as each framework decision fulfills different and specific purposes, alongside the area of criminal cooperation, relying on secondary law instruments and subsidiarity to national criminal law, being less harmonized than asylum.

The AG also rejects considering Article 1(3) EAW a grounds for non-execution for three reasons:


 * 1) The article expresses the principle of mutual confidence and trust between member states and non-execution would run counter to the article’s phrasing.
 * 2) Introducing a new ground for non-execution would not be in agreement with the legislator’s intention to exhaustively stipulate grounds for non-execution provided in Articles 3 through 4a of the EAW. This would also run counter to the strict interpretation of the EAW in the CJEU’s case-law.
 * 3) Non-execution would severely damage mutual trust between judicial authorities that forms the basis of cooperation and risk the creation of systematic exceptions to the execution of an EAW.

The opinion closes with the AG’s arguments concerning the application of the Union principle of proportionality. The obligation to ensure minimum standards rests with the issuing authority of an EAW and executing authorities may only act as safety nets, requesting relevant information from issuing authorities to assess whether a surrendered person is at risk of deficient conditions of detention. If the executing authority deems a person at risk they then should make a preliminary reference.

Judgment
The judgment begins with outlining the essential principles of mutual recognition and trust that are the ‘bedrock’ of the AFSJ and facilitate effective transnational enforcement. Member states, “save in exceptional circumstances”, should presume all other member states to be complying with EU law and the fundamental rights recognized by EU law, particularly the Charter. Hence, all member states are obliged to execute a EAW unless the EAW is suspended due to a ‘serious and persistent’ breach of Article 2 TEU determined by Article 7(2) TEU or execution is refused under the exhaustive situations listed through Articles 3, 4, and 4a of the framework decision.

The judgment also affirms the absolute character of the prohibition on inhuman and degrading treatment. After referring to Article 1 and 4 of the Charter, the court invokes Article 3 ECtHR case law to provide in absolute terms prohibition of torture and inhuman or degrading treatment, irrespective of circumstance and conduct of persons.

Two-Stage Assessment
In the case that an executing judicial authority of a member state has plausible evidence of the risk that the person would be subject to inhuman or degrading treatment in breach of Article 4 of the Charter if surrendered, a two step assessment must be conducted that entails:


 * 1) Using ‘general, reliable, specific and properly updated information’ the executing judicial authority must determine whether the general detention conditions in the issuing member state are deficient. The court allows executing authorities to obtain this information from the judgments of international courts, the European Court of Human Rights (ECtHR) in particular, alongside reports from the Council of Europe and United Nations. Systematic or general deficiencies in general detention conditions that pose a real risk of inhuman or degrading treatment “cannot lead, in [themselves], to the refusal of executing an EAW.”
 * 2) When an executing judicial authority identifies real deficiencies in general detention conditions, a further assessment must be made to establish whether there are ‘substantial grounds’ to believe that the person, if surrendered, in their specific circumstances will be exposed to inhuman or degrading treatment in line with Article 4 of the Charter. To make this determination, under Article 15(2) EAW, the executing judicial authority can request from the issuing judicial authority supplementary information on the conditions of detention the surrendered individual will be placed in.

If the executing judicial authority determines that the specific individual faces the real risk of inhuman or degrading treatment the execution of the EAW must be postponed, not abandoned, and the executing authority must inform Eurojust under Article 17(7) of the EAW. The executing authority may choose to retain the person in custody, for as long as the execution the EAW is being processed and the time held in detention is not excessive. The executing judicial authority may also release with provisions, to prevent escape, the person until the EAW is decided. If the executing judicial authority receives information from the issuing judicial authority that negates the risk that the person will be subject to inhuman or degrading treatment, the executing judicial authority must execute the EAW within the timeframes provided by the framework decision.

Mutual Recognition & Trust
The most significant legal development of Aranyosi/ Căldăraru was that mutual trust, or the obligation to presume equal and equivalent fundamental rights protection in other member states, in the context of the EAW is not unconditional. Hence, the CJEU allows executing member states to assess the level of fundamental rights protection in issuing member states and defer surrender. This represented the introduction of a novel fundamental rights exception into the EAW system that has been refined since to cover the prohibition of inhuman or degrading treatment and the right to an independent tribunal following the degradation of judicial independence in Poland and the CJEU’s Celmer cases. Initially, only the infringement of absolute rights linked to human dignity, such as Article 4 of the Charter, were implicated and could justify non-execution of an EAW, but that does not exclude the possibility that the breach of other non-absolute rights, beyond the right to an independent tribunal, could justify non-execution in the future.

Convergence of Prohibition of Torture Case Law
The ECtHR in Soering v United Kingdom (1989) expanded a contracting state’s responsibility to ensure a person would not face degrading or inhuman treatment once extradited to a third country, regardless if ill-treatment was beyond its control and assurances of compliant treatment were provided. Later Vilvarajah and Others (1991) refined the ECtHR’s analysis to consider the ‘foreseeable consequences…in light of the general situation…as well as on [an] [individual’s] personal circumstances.' The novel two-stage assessment introduced in Aranyosi/ Căldăraru mirrors the baseline ECtHR assessment and renders the CJEU and ECtHR more similar in their interpretation of Article 4 of the Charter and Article 3 ECHR respectively.

Aranyosi/Căldăraru also encourages executing authorities to refer to ECtHR rulings and reports from the Council of Europe on prison detention conditions to determine the existence of deficiencies, thereby holding ECtHR standards on degrading or inhuman treatment as equivalent to European Union standards.

Aranyosi II
Following Aranyosi/ Căldăraru, the Higher Regional Court of Bremen issued a second preliminary reference on September 12, 2016 seeking clarification on the surrender of Mr. Aranyosi. The court was asked to interpret whether Article 1(3) EAW required that executing judicial authorities evaluate a person’s real risk of inhuman or degrading treatment only in the context of the first detention center they would be transferred to following surrender or the rixsk posed in subsequent transfers to other detention centers. Hungarian authorities rescinded the EAW against Mr. Aranyosi prior to the proceedings, hence there was no valid EAW and no judgment was delivered.

Aranyosi III
The Higher Regional Court of Bremen issued a third preliminary reference on March 27, 2018 seeking clarification on the judgment delivered in Aranyosi/ Căldăraru in regards to the extradition of a Hungarian national to Hungary. The CJEU was asked to what extent executing judicial authorities can assess detention conditions, what information must be considered, and the value of assurances given by non-judicial issuing authorities. The CJEU delivered its ruling on July 25, 2018 establishing that executing judicial authorities must solely assess the detention conditions in the prison the person is intended to be detained, not subsequent prisons. Executing judicial authorities must also rely on ECtHR case law for determining factors of an Article 3 ECHR violation and trust the assurances of detention conditions provided by issuing authorities, in keeping with the principle of mutual trust.

Celmer Cases
This set of CJEU judgments, concerning the extradition of Mr. Celmer, from Ireland to Poland, extended the application of the two-stage assessment introduced by Aranyosi/ Căldăraru to Article 47 of the Charter that provides the right to an independent tribunal. This is in context of decreased judicial independence in Poland’s courts. The July 25, 2018 judgment introduces two further substeps that require the executing authority to


 * 1) Determine if the general or systemic deficiencies established in the first stage apply to the court that has jurisdiction over the criminal proceedings which the surrendered person will be subject to.
 * 2) Determine if the surrendered person, considering their personal circumstances and the nature of their crime, would be subject to the general or systemic deficiencies.

The second stage of the substep requires the executing judicial authority to enter into dialogue with the issuing state to request supplementary information but fails to account for the independence of that authority.