Brussels, 05/04/2016 (Agence Europe) - Execution of a European arrest warrant is not necessarily automatic, if the member state which is to carry out the transfer has concerns over conditions of detention in the member state which issued the mandate.
This is the main conclusion of the judgment delivered by the Court of Justice of the EU on Tuesday 5 April. It is a ruling which could prove problematic for the execution of arrest warrants issued in future by certain member states, such as Romania and Hungary, two countries found guilty by the European Court of Human Rights, in 2014 and 2015 respectively, of breaches of fundamental rights because of widespread overcrowding in prisons.
Indeed, the cases at issue here (C-404/15 and C-659/15 PPU) involve these two member states. A German court asked the Court of Justice whether the German authorities were required to execute European arrest warrants issued for a Hungarian national and a Romanian national. The German court felt that there was a risk that each of the two individuals might be subject to inhuman or degrading treatment as a result of the conditions of detention in Romania and Hungary.
The European judges took the view that, where the authority responsible for the execution of a warrant has in its possession evidence of a real risk of inhuman or degrading treatment of persons detained in the member state where the warrant was issued, that authority must assess that risk before deciding on the surrender of the individual concerned. In order to be able to assess the existence of that risk, the authority responsible for the execution of the warrant must ask the issuing authority to provide “as a matter of urgency”, all the information necessary on the conditions of detention.
If, in the light of the information provided or any other information available to it, the authority responsible for the execution of the warrant finds that there is, for the individual who is the subject of the warrant, a real risk of inhuman or degrading treatment, the execution of the warrant must be deferred until there has been obtained additional information on the basis of which that risk can be discounted. If the existence of that risk cannot be discounted within a reasonable period, that authority must decide whether the surrender procedure should be brought to an end, the Court says.
Was such an interpretation self-evident? It was not, according to the opinion put to the Court by Advocate General Yves Bot at the start of March. Bot took the view that only the European Council, acting unanimously after approval by the European Parliament, could suspend the European warrant mechanism. He said that, were an authority to refuse to execute an arrest warrant, even if it argued the risk of serious and persistent breach of fundamental rights, it would damage both the principle of the mutual recognition of court decisions and the principle of mutual trust between member states.
The Court ultimately rejected this opinion and gave primacy to the EU Charter of Fundamental Rights. (Original version in French by Jan Kordys)