Joined Cases Aranyosi and Căldăraru. Converging Human Rights Standards, Mutual Trust and a New Ground for Postponing a European Arrest Warrant
June 1, 2016
On 5 April 2016 the CJEU delivered its judgment in Joined Cases Aranyosi and Căldăraru, which brings much needed developments in the Area of Freedom, Security and Justice (AFSJ), more specifically the interplay between the principles of mutual trust and recognition, on the one hand, and the protection of fundamental rights, on the other. Advocate General Bot delivered the Opinion.
The CJEU was confronted with two nearly identical references from the Higher Regional Court of Bremen (Hanseatisches Oberlandesgericht in Bremen) in two cases concerning a Hungarian (C-404/15, Aranyosi) and a Romanian national (C-659/15 PPU, Căldăraru). The German Court was principally concerned with the issue whether Article 1(3) of the Framework Decision on the European Arrest Warrant (FD-EAW) must be interpreted as meaning that a surrender for the purposes of prosecution or for executing criminal sanctions is inadmissible if serious indications exist that the conditions of detention in the issuing Member State infringe the fundamental rights of the requested person.
The Court’s judgment
The CJEU began its analysis by pointing out the essential character of the principles of mutual trust and recognition for the AFSJ. The principle of mutual recognition ‘in principle’ obliges Member States to act on an EAW and they must/may only refuse to execute an EAW under the exhaustive situations laid down in Articles 3 and 4 FD‑EAW. Nonetheless, in exceptional circumstances the principles of mutual trust and recognition can be limited.
The Grand Chamber then emphasized the importance of Article 1(3) FD‑EAW and the obligation of Member States to comply with the EU Charter of Fundamental Rights when implementing EU law. This includes respect for Article 4 of the Charter on the absolute prohibition of inhuman and degrading treatment, which is closely linked to human dignity.
The CJEU introduced a two-step test, which the executing authority must conduct when it is in the possession of evidence of a ‘real risk’ of inhuman and degrading treatment of detainees in the issuing Member State. During the first step, the executing authority must initially rely on ‘objective, reliable, specific and properly updated’ information on the prevailing detention conditions in the issuing Member State that demonstrate the existence of deficiencies, ‘which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention’. Several sources can be used, such as the decisions of the ECtHR, the decisions of courts of the issuing Member State or reports drawn up by the organs of the Council of Europe or the UN. Nevertheless, it is not enough to prove a general and systemic failure of the detention system in the issuing Member State. As a second step, the executing authority must also ascertain whether in the specific case the requested person would face a ‘real risk’ of inhuman or degrading treatment. To this end, the executing authority must request the provision of additional information from the issuing authority, which must provide this information within the time fixed in such a demand.
The executing judicial authority must postpone its decision on the surrender of the person until it receives additional information enabling it to rule out the existence of such a risk. If the existence of this risk cannot be ruled out in a ‘reasonable time’, the executing authority must decide whether it should terminate the surrender procedure.
It can be said that the present judgment is one of ‘reconciliation’ between various competing values and interests as well as a step to thaw the relationship between the CJEU and the ECtHR, following Opinion 2/13.
First, the CJEU decided to reconcile the protection of fundamental rights with the principles of mutual trust and recognition. On the one hand, it protected the principle of mutual trust and recognition by not introducing a new ground of refusal into the text of the FD‑EAW. If such a ground is to be introduced, it should be left to the EU legislator. Instead of a ground of refusal, the CJEU opted for the less drastic ground for postponement. On the other hand, the CJEU emphasised the protection of the fundamental rights of the requested person by not only focusing on the systemic deficiencies of the detention conditions, but also on the specifics of the concrete case.
Second, the CJEU brings its standards of fundamental rights protection closer to those employed by the ECtHR, possibly in an effort to heal some of the wounds created by Opinion 2/13. Nevertheless, the question arises whether bringing the standards closer to those used by the ECtHR will necessarily favour the requested person. It can be argued that it is easier to prove the existence of a real risk of inhuman or degrading treatment in a specific case, than proving deficiencies in the entire system. The correctness of this statement, however, depends on the available evidence. It might be easier to prove the existence of systemic deficiencies when ECtHR judgments or UN reports already exist, such as in the present joined cases. Thus, proving the ‘real risk’ part to the test might actually create an extra hurdle for the requested person.
Further questions also arise regarding the practical application of this new ground of postponement of an EAW. With regard to its scope of application, the judgment is concerned with fundamental rights standards at EU level and not those at national level. Thus, it can be argued that Melloni (C-399/11) is still ‘valid’ law. Such a conclusion, however, might not be accepted by some national constitutional courts. Unlike Melloni, the present case involved a right which is absolute and which the CJEU held to be closely linked to the inviolable concept of human dignity, which plays a central role in the German legal system. It seems that the CJEU opted for a solution that would not create further tensions with national constitutional courts, by linking Article 4 of the Charter to human dignity. Furthermore, it seems that the current exception only applies to Article 4 of the Charter linked to human dignity since the operative part of the judgment does not refer to fundamental rights in a broad manner.
Concerning the evidence that is allowed, in the first part of the two-tier test the CJEU emphasises the usage of both national and international sources from public authorities. This seems to indicate that reports of private NGOs cannot be relied on. Furthermore, the CJEU is not very clear on the burden of proof, which seems to be shared between the requested person, the executing authority and the issuing authority in the different stages of the two-tier test. The question arises whether the executing authority is obliged to look into the general detention conditions on its own motion, if the defendant does not raise this issue during the proceedings. Providing for such a propriu motu obligation would not only increase the workload of the executing authorities, but could lead to serious national biases, which would upset the principle of mutual trust between Member States.
Furthermore, it seems that the ground for postponement might easily amount to a de facto ground of refusal to surrender the requested person. Given the difficulty and the lengthy time period needed to bring prison conditions in certain Member States or in certain detention facilities to meet EU standards, or to provide adequate guarantees to the executing authority, the ‘reasonable time’ requirement in the last sentence of the operative part of the judgment might not be met.
 ECtHR, Soering v UK (No 14039/88) 7 July 1989 (extradition case), paras 90-91; M.S.S. v Belgium and Greece (No 30696/09) 21 January 2011, para 365; Tarakhel v Switzerland (No 29217/12) 4 November 2014, para 93.
Disclaimer: This post is based on the upcoming case note Sz. Gáspár-Szilágyi, ‘Joined Cases Aranyosi and Căldăraru. Converging Human Rights Standards, Mutual Trust and a New Ground for Postponing a European Arrest Warrant’ (2016, forthcoming) 24(2) European Journal of Crime, Criminal Law and Criminal Justice .
Szilárd Gáspár-Szilágyi is a post-doctoral researcher at PluriCourts Oslo.acelg