The fact that a person who is the subject of European arrest warrant may challenge the detention conditions in the issuing member state is not enough to rule out a real risk of inhuman treatment, the Court of Justice of the EU stated in a judgment returned on Wednesday 25 July (case C-220/18).
The state of execution of the mandate is still required to carry out an individual assessment of the situation of each person concerned, for instance by examining the detention conditions in prisons in which the individual is to be held.
A Hungarian national, ML, who was prosecuted in Hungary, was sentenced in absentia to a custodial sentence of one year and eight months. The district court of Nyíregyháza issued a European arrest warrant against him. As ML was in detention in Germany, the Higher Regional Court of Bremen asked the Hungarian authorities for additional information concerning the conditions in which the Hungarian would serve his sentence in his home country, in order to put aside any doubts as to the existence of systemic or generalised deficiencies in detention conditions in Hungary.
Going against the conclusions of the Advocate General (see EUROPE 12055), the Court focused on the procedures that the German court must carry out in order to make an enlightened decision.
It states that although, since January 2017, prisoners in Hungary have been permitted to challenge the legality of their detention conditions with regard to the fundamental rights, the judicial authorities responsible for executing a European arrest warrant must carry out an individual assessment of the situation of each person who is the subject of the European arrest warrant issued by the Hungarian authorities, to ensure that handing the individual over will not lead to a real risk of inhuman or degrading treatment for that person due to the detention conditions.
These authorities are only required to examine the detention conditions in the prisons where the person in question will actually be held, including on a temporary or interim basis. In this specific case, this involves Szombathely prison, where ML would serve the majority of his sentence, and Budapest prison, where any person who is the subject of an arrest warrant spends several weeks.
It is worth noting that the European judges consider that the exercise of a religious belief, the opportunity to smoke, arrangements for washing clothes and whether bars or blinds have been fitted to the cell windows are, in principle, aspects of the detention of no obvious relevance.
Finally, when the issuing judicial authority provides assurances that the person concerned will not suffer inhuman or degrading treatment on the grounds of his or her detention conditions, the executing judicial authority must trust these assurances, at least in the absence of other elements suggesting the contrary. The European arrest warrant is indeed based on the principle of mutual trust that should exist between the national competent authorities.
Ultimately, the Court takes the view that given the information available to it, the Higher Regional Court of Bremen may allow ML to be handed over in respect of the fundamental rights of the prisoner not to suffer degrading treatment. (Original version in French by Mathieu Bion)