FIFTH SECTION
CASE OF BIVOLARU AND MOLDOVAN v. FRANCE
(Applications nos. 40324/16 and 12623/17)
JUDGMENT
Art 3 (substantive) • Inhuman and degrading treatment • Applicant surrendered to Romanian authorities on European arrest warrant where real risk of poor detention conditions • Applicant, recognised as refugee by Swedish authorities, surrendered to Romanian authorities on European arrest warrant where no real risk of persecution or poor detention conditions
STRASBOURG
25 March 2021
25/06/2021
This judgment has become final pursuant to Article 44 § 2 of the Convention. It is subject to editorial revision.
In the case of Bivolaru and Moldovan v. France,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Síofra O’Leary, President,
Mārtiņš Mits,
Stéphanie Mourou-Vikström,
Jovan Ilievski,
Lado Chanturia,
Arnfinn Bårdsen,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the applications (nos. 40324/16 and 12623/17) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Gregorian Bivolaru and Mr Codrut Moldovan (“the applicants”), on 12 August 2016 and 9 February 2017 respectively;
the decision to give notice on 19 December 2018 to the French Government of the complaints concerning Articles 2 and 3 and to declare the remainder of the complaints inadmissible;
the parties’ observations,
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present applications concern the surrender of the applicants to the Romanian authorities on European arrest warrants (EAWs) to serve prison sentences. The applicants complained that the execution of the EAWs contravened Article 3 of the Convention.
THE FACTS
2. The first applicant, Gregorian Bivolaru, was born in 1952. He was represented before the Court by Mr P. Spinosi, a member of the bar of the Conseil d’Etat and the Court of Cassation. The second applicant, Codrut Moldovan, was born in 1971. He was represented by Mr C. Marcelot, a lawyer practising in Clermont‑Ferrand.
3. The Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs.
4. On 26 June 2015 Mr Moldovan was sentenced by Mureș County Court in Romania to seven years and six months’ imprisonment for acts of human trafficking committed in 2010 in Romania and France, namely forcing six Romanian nationals, including a minor, into mendicancy on his behalf. The applicant attended his trial. He later returned to France.
6. Three days earlier, on 26 April 2016, the applicant had, according to the information supplied by the Government, been charged with counts of “theft from a dwelling‑place entered by deception, breaking in or climbing” and “concealment of property obtained through theft from a dwelling‑place or storage area entered by deception, breaking in or climbing”, and had been remanded in custody. By a judgment of 10 May 2016 the Investigation Division of the Riom Court of Appeal ordered his release under judicial supervision with a requirement to report once a week to the Clermont-Ferrand police station.
7. On 7 June 2016 the applicant was arrested at the police station. The Principal Public Prosecutor of the Riom Court of Appeal served him with notice of the EAW that day. The applicant stated that he did not consent to be surrendered to the Romanian judicial authorities.
8. On 10 June 2016 he was brought before the Investigation Division of the Riom Court of Appeal for a determination regarding his surrender to the Romanian authorities. He acknowledged that he was in fact the person sought under the EAW but reiterated his objection to being surrendered to those authorities. Relying on the judgment of the Court of Justice of the European Union (CJEU) of 5 April 2016 in Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, and see paragraph 50 below), he contended that the Investigation Division could not grant the surrender without first requesting and obtaining supplementary information about the conditions in which he would be held in Romania. He adduced in that regard the CJEU judgment, the press release and an academic article concerning that case, and references to four judgments of this Court finding against Romania for inhumane conditions of detention (see Voicu v. Romania, no. 22015/10, 10 June 2014; Bujorean v. Romania, no. 13054/12, 10 June 2014; Mihai Laurenţiu Marin v. Romania, no. 79857/12, 10 June 2014; and Constantin Aurelian Burlacu v. Romania, no. 51318/12, 10 June 2014).
9. By a judgment of 16 June 2016 the Investigation Division concluded, on the basis of the Court’s judgments about detention conditions in Romania and a 2014 report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), that there was “objective, reliable, specific and duly up‑to‑date evidence of deficiencies regarding detention conditions in Romania”. The Romanian authorities were invited to provide it by 30 June 2016 with such particulars as related to the actual conditions in which the applicant would be held, for the purpose of assessing whether there was a real risk of inhuman and degrading treatment.
10. On 28 June 2016 the international law and judicial cooperation branch of the Romanian Ministry of Justice provided the French authorities with the following information. For the observance of a twenty‑one‑day quarantine, the applicant was first to be held in Rahova Prison, Bucharest, which had twenty‑four cells with “at least 2-3 sq. m” of individual space. After that time, “considering the length of the sentence, he [would] most likely, at the outset, have to serve it in a closed environment”. Because of his place of residence, he would, “most likely, at the outset”, serve his sentence in Gherla Prison. The cells there had one window measuring 200 cm by 145 cm which afforded natural light and adequate ventilation. Each cell contained at least a table and two chairs, a television mount, spaces in which to store personal effects, and a mattress and linen for the bed. It was further specified that prisoners had round‑the‑clock access to a sanitary facility equipped with two washbasins and two toilet cubicles; cold water was available at all times and hot water twice a week; the cells were sanitised on a regular schedule and whenever otherwise necessary; prisoners were provided with the necessary hygienic and sanitary items monthly; prisoners in the closed regime who did not work had access to a variety of activities, with a daily minimum of four hours allotted for work duty, education and vocational training, outdoor time, psychosocial assistance or exercise; an infirmary provided prisoners with medical assistance and treatment as necessary. The Romanian authorities concluded with the following statement:
11. The applicant subsequently lodged written submissions in the Investigation Division arguing that he would be at risk of inhuman and degrading treatment if surrendered. He stressed that the guarantees given by the Romanian authorities were not sufficient to meet the requirements arising from the Court’s judgments against Romania, among them Axinte v. Romania (no. 24044/12, 22 April 2014; see paragraph 111 below), and claimed that the detention conditions and situation of “serious overcrowding” in Gherla Prison would give rise to a breach of Article 3 of the Convention. He also sought a deferral of his surrender under Article 695‑39 of the Code of Criminal Procedure (see paragraph 59 below) on the ground that he was facing charges in France for the same conduct in respect of which he had been convicted in Romania.
As to whether the surrender needs to be deferred pursuant to Article 695-39 of the Code of Criminal Procedure, deferral is a mere power vested in the Investigation Division. Given the nature of the charges pending against [the applicant] in France, the nature of the charges on which he was convicted in Romania, the severity of the sentence passed and the fact that, in the French proceedings, he has merely been placed under judicial supervision, it does not appear appropriate to bring the provisions of that Article to bear.
the Investigation Division ...
...
orders the surrender of [the applicant] ...
13. On 6 July 2016 the applicant applied to the Court of Cassation to set the judgment aside by review on points of law. In his first ground of review he argued that the Investigation Division had not drawn the proper inferences from the document provided by the Romanian authorities, which had revealed the deficiencies in the Romanian prison system. He specified that the Investigation Division had misrepresented the document by stating that he would be afforded “at least 2-3 sq. m” of individual space whereas what it had said was “2‑3 sq. m” of space (see paragraphs 10 and 12 above), and by omitting that the space in question was inclusive of the bed and the other item of furniture. In his second ground of review he submitted that the Investigation Division had failed to reason its judgment as to the nature of the charges pending against him in France.
14. By a judgment of 10 August 2016 the Court of Cassation dismissed his application:
...
Whereas in ordering [the applicant’s] surrender to the Romanian judicial authorities the judgment held that in view of the seriousness of the charges on which [he] had been convicted in Romania, as opposed to the distinct charges pending against him in France, in relation to which he had been placed under judicial supervision, it did not appear appropriate to defer his surrender.
15. On 26 August 2016 the applicant was surrendered to the Romanian authorities pursuant to the EAW.
16. In 1990 Mr Bivolaru became the leader of a spiritual yoga movement known in Romania as MISA (Mișcarea de Integrare Spirituală în Absolut – Movement for Spiritual Integration into the Absolute). The founding and operation of MISA and the Romanian authorities’ investigations into some of its members are described in the cases of Amarandei and Others v. Romania (no. 1443/10, §§ 7-14, 26 April 2016), Mouvement pour l’intégration spirituelle dans l’absolu v. Romania ((dec.), no. 18916/10, §§ 4‑9, 2 September 2014) and Bivolaru v. Romania (no. 28796/04, § 8, 28 February 2017).
17. In 2004 a criminal case was brought against the applicant in Romania, and he was held on remand for a time before being released (for which see Bivolaru v. Romania (no. 2), no. 66580/12, §§ 8‑18, 2 October 2018). By an application of 13 August 2004 the prosecutor referred the applicant for trial in absentia in the Bucharest County Court on charges of sexual activity with a minor, sexual perversion and corruption of a minor, human trafficking and illegal border crossing.
18. On a date unspecified and in circumstances unknown, the applicant entered Sweden, where, on 24 March 2005, he lodged an application for political asylum. In April 2005 Romania’s interior ministry made two requests to the Swedish authorities for the applicant’s extradition. On 21 October 2005 the Swedish Supreme Court rejected the requests on the ground that the applicant was in danger of persecution for his religious views and for the beliefs which formed an intrinsic part of his activities with MISA. On 2 January 2006 the Swedish authorities issued the applicant with a permanent residence document made out under a new identity and endorsed with refugee status.
21. On 17 June 2013 the Sibiu County Court issued an EAW in respect of the applicant for the enforcement of his sentence.
23. The applicant was brought before the Investigation Division of the Paris Court of Appeal for a determination regarding his surrender to the Romanian authorities. In support of his objection to execution of the EAW he argued that Sweden’s grant of refugee status and the political and religious grounds underpinning his conviction in Romania constituted an absolute bar to his surrender. He pointed to his background as a yoga teacher in Romania, the banning of that practice under the former communist regime, his arrests, his wrongful commitment to a psychiatric facility in 1989 and the actions taken against MISA from the 1990s until 2004, when he had fled to Sweden. He claimed that as an opponent of the government he would be subjected to inhuman and degrading treatment if the EAW were executed, given that “torture and inhuman treatment remain[ed] routine in Romania”. He drew attention to a report released on 24 September 2015 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) that “express[ed] concern at the volume of ill‑treatment allegations from detained persons” and “refer[red] to full‑blown beatings of prisoners”.
The Investigation Division enquired of the Swedish authorities:
(c) whether the applicant was wanted by any other EU States.
“After my hurried departure from Sweden, where, clearly, my continued protection as an asylum‑seeker is in doubt, I procured false documents to come to France. I intend to request the transfer of my asylum claim from Sweden to France.”
The question of extradition was tried by the Swedish Supreme Court on the 21st October 2005. The Supreme Court found in its statement that there were obstacles to enforc[ing] the extradition. The Supreme Court also stated that the investigation gave substantial grounds for the conclusion that Gregorian Bivolaru due to his religious belie[f]s would face a ... risk [of] persecution of a serious form if he was extradited to Romania.
The Swedish Government decided thereafter not to enforce the extradition.
The Swedish Migration Board has not initiated a withdrawal of refugee status.
3. The offence of using [a] false ID card and passport is generally not serious enough to withdraw refugee status in Sweden.
27. In closing written argument to the Investigation Division the applicant again maintained that his refugee status was a bar to execution of the EAW. Relying on Article 3 of the Convention, he referred to the aforecited judgment in Amarandei and Others in so far as it related to the police operation conducted against certain MISA members in 2004 (see paragraph 16 above and paragraph 129 below) to support his claims that the conviction for which the EAW had been issued had rested on political and religious grounds and that he was in danger of persecution at the hands of the Romanian authorities. He submitted that the Romanian authorities had fostered a climate of hatred against him and all MISA members and adduced a certificate from a member stating that he had been physically assaulted in April 2016, together with media reports and photographs, also from 2016, showing “public expressions of hate” allegedly directed at him (graffiti found on MISA members’ homes, publication by Romanian media of photographs taken by the French police after his arrest, and so on). He stressed that his surrender would contravene Article 695‑22‑5o of the Code of Criminal Procedure, under which discrimination against the person sought was a ground for mandatory non‑execution of an EAW (see paragraph 59 below).
28. By a judgment of 8 June 2016 the Investigation Division of the Paris Court of Appeal ordered the surrender of the applicant to the Romanian judicial authorities. After a rehearsal of the facts and the history of the criminal proceedings in Romania and a review of the applicant’s status in Sweden, the court offered the following observations:
...
30. On the first point the Court of Appeal took the view that the surrender had been sought for the purposes of enforcing a sentence handed down for a non‑political offence, and that the applicant’s claims to have been convicted for his political views were mere allegations. On consideration of the reasons given for the judgment in Amarandei and Others (cited above, §§ 239‑248), concerning alleged discrimination against MISA members in respect of their right to manifest their beliefs (see paragraph 129 below), the court concluded: “it has not [...] been proved that [the applicant] was convicted for his political views; nor has it been established that his position may be prejudiced on those grounds in Romania.” On the second point the Court of Appeal felt, given the overly broad character of the applicant’s allegations, that it was not for the court to seek further information:
31. The applicant made an application to the Court of Cassation to set that judgment aside by review on points of law. In his first ground of review, he submitted that his surrender to the Romanian judicial authorities would run counter to the non-refoulement principle enshrined in Articles 1 and 33 of the Geneva Convention of 28 July 1951 relating to the status of refugees (see paragraphs 56 and 57 below). He argued that the Framework Decision, and in particular Article 1 § 3 thereof (see paragraph 44 below), had to be interpreted in the light of Article 78 of the Treaty on the Functioning of the European Union (TFEU), paragraph (d) of the Sole Article of Protocol No 24 on asylum for nationals of Member States of the European Union and Article 18 of the Charter of Fundamental Rights of the European Union (see paragraphs 41, 46 and 47 below) – provisions which ensured compliance with the requirements of the Geneva Convention. He maintained that his refugee status was an exceptional circumstance operating in bar of surrender, a proposition for which he relied on previous rulings of the Criminal Division of the Court of Cassation (see paragraph 61 below). He invited the Court of Cassation to seek a preliminary ruling from the CJEU on the interpretation to be given to the Framework Decision in a case where EU norms sat uneasily with the relevant international treaties cited above.
32. In his second ground of review the applicant claimed violations of Articles 2, 3, 6, 8 and 9 of the Convention. He contended that the Investigation Division had looked only at whether the request for surrender was politically motivated, leaving the issue of fair trial safeguards undecided. He also complained that it had not sought to determine, as required by the Aranyosi and Căldăraru judgment cited above, whether detention conditions in Romania placed him at real risk of inhuman or degrading treatment.
33. In further submissions the applicant renewed his request to the Court of Cassation to seek a preliminary ruling from the CJEU regarding the scope for reliance on the principle of non-refoulement as a ground for non-execution of an EAW. He argued that the issue before the court was novel and serious. He pointed out that his situation was distinguishable from the circumstances at issue in the CJEU judgment of 21 October 2010 in I.B. (C‑306/09, EU:C:2010:626; see paragraph 55 below), a case where the existence of an asylum claim or of an application for refugee status or subsidiary protection had been held not to be one of the grounds for non‑execution of an EAW and where it had been emphasised that the member States of the European Union were safe countries in respect of each other for all asylum‑related purposes.
Whereas in so reasoning the Investigation Division justified its decision;
...
39. In that judgment the Court held that the applicant’s complaint concerning his conviction in absentia was manifestly ill‑founded and therefore inadmissible. The Court also concluded that there had been no violation of Article 6 § 1 of the Convention in respect of the steps taken by the High Court of Cassation and Justice to secure his appearance in person, but that there had been such a violation in respect of the excessive length of the proceedings.
LEGAL FRAMEWORK AND PRACTICE
40. Article 4 of the Charter of Fundamental Rights, which is entitled “Prohibition of torture and inhuman or degrading treatment or punishment”, reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
41. Article 18 of the Charter provides:
“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with [the Treaties].”
42. The relevant provisions of Framework Decision 2002/584/JAI[1] as amended by Council Framework Decision 2009/299/JAI of 26 February 2009 were summarised in the judgment in Pirozzi v. Belgium (no. 21055/11, §§ 24‑29, 17 April 2018).
43. So far as relevant, the recitals of the Framework Decision state:
“(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons. ...
(13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”
44. Article 1 of the Framework Decision provides:
“Definition of the European arrest warrant and obligation to execute it
1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. 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 of the Treaty on European Union.”
45. The Framework Decision sets out the circumstances in which a warrant may be issued (Article 2) and the circumstances in which States may or must refuse to execute it (Articles 3, 4 and 4a).
46. Article 78 TFEU provides in relevant part:
“The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties. ...”
“Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases:
(a) if the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating in its territory from its obligations under that Convention;
(b) if the procedure referred to in Article F.1(1) of the Treaty on European Union has been initiated and until the Council takes a decision in respect thereof;
(c) if the Council, acting on the basis of Article F.1(1) of the Treaty on European Union, has determined, in respect of the Member State [of] which the applicant is a national, the existence of a serious and persistent breach by that Member State of principles mentioned in Article F(1);
(d) if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.”
48. The relevant provisions of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 “on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast)”, as cited by the Government in their observations (see paragraph 92 below), are as follows:
“1. A third-country national or a stateless person shall cease to be a refugee if he or she:
...
(e) can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality; ...
...
2. In considering points (e) and (f) of paragraph 1, Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded.
3. Points (e) and (f) of paragraph 1 shall not apply to a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of the country of nationality or, being a stateless person, of the country of former habitual residence.”
Article 12
Exclusion
“...
2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:
...
(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non‑political crimes;”
“Under Article 1(2) of Framework Decision 2002/584, the Member States are in principle obliged to act upon a European arrest warrant. According to the provisions of that framework decision, the Member States may refuse to execute such a warrant only in the cases of mandatory non-execution provided for in Article 3 thereof and in the cases of optional non-execution listed in Articles 4 and 4a. Furthermore, the executing judicial authority may make the execution of a European arrest warrant subject solely to the conditions set out in Article 5 of that framework decision ...”
50. In its judgment in Aranyosi and Căldăraru, cited above, the CJEU decided that an exception to the principle of automatic surrender to the judicial authorities of the member State that had issued the EAW arose where the executing member State had evidence that the conditions in which the person sought under the EAW would be held in the issuing member State posed a risk of inhuman or degrading treatment. The CJEU placed strict limits on the exception, which was to operate alongside the grounds set out by the Framework Decision for mandatory and optional non‑execution of an EAW, and spelled out the method to be followed by the executing member State:
“On those grounds, the Court (Grand Chamber) hereby rules:
Article 1(3), Article 5 and Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State. To that end, the executing judicial authority must request that supplementary information be provided by the issuing judicial authority, which, after seeking, if necessary, the assistance of the central authority or one of the central authorities of the issuing Member State, under Article 7 of the Framework Decision, must send that information within the time limit specified in the request. The executing judicial authority must postpone its decision on the surrender of the individual concerned until it obtains the supplementary information that allows it to discount the existence of such a risk. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.”
52. In its judgment of 15 October 2019 in Dorobantu (C-128/18, EU:C:2019:857), the CJEU specified the nature and extent of the scrutiny to be afforded by the executing judicial authority to the conditions in which the person sought under the EAW would be held in the issuing member State. It ruled that account had to be taken of all the relevant physical aspects such as the personal space available to each detainee in a cell, sanitary conditions and the extent of the detainee’s freedom of movement within the prison. It also ruled that such scrutiny must not be limited to obvious inadequacies and that, for the purposes of its assessment, the executing judicial authority must request from the issuing judicial authority such information as appeared to it to be necessary. The CJEU further ruled that a finding by the executing judicial authority of substantial grounds to believe that the person would face a risk of inhuman or degrading treatment owing to the detention conditions in the prison where it was actually intended that he or she should be held was not to be weighed, for the purposes of deciding on his or her surrender to the issuing member State, against considerations relating to the efficacy of judicial cooperation in criminal matters and to the principles of mutual trust and recognition.
“72. In so doing, the Court of Justice has ruled that, in view of the importance attaching to the space factor in the overall assessment of conditions of detention, a strong presumption of a violation of Article 3 of the ECHR arises when the personal space available to a detainee is below 3 m2 in multi-occupancy accommodation (judgment of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C‑220/18 PPU, EU:C:2018:589, paragraph 92 and the case-law cited).
...
77. With regard to the detailed rules on calculating – for the purposes of assessing whether there is a real risk of the person concerned being subjected to inhuman or degrading treatment, within the meaning of Article 4 of the Charter – the minimum space that must be available to a detainee in a multi-occupancy cell containing furniture and sanitary infrastructure, it is necessary also, in the absence, currently, of minimum standards in that respect under EU law, to take account of the criteria laid down by the European Court of Human Rights in the light of Article 3 of the ECHR. That court considers that although, in calculating the available surface area in such a cell, the area occupied by sanitary facilities should not be taken into account, the calculation should include space occupied by furniture, albeit that the detainees must still have the possibility of moving around normally within the cell (see, to that effect, ECtHR, 20 October 2016, Muršić v. Croatia, CE:ECHR:2016:1020JUD000733413, §§ 75 and 114 and the case-law cited).”
“The Court has accepted that, in addition to the cases expressly referred to in the Framework Decision (Articles 3 to 5), execution of an EAW may also be refused ‘in exceptional circumstances’ which, on account of their seriousness, necessitate the limitation of the principles of mutual recognition and mutual trust between Member States on which judicial cooperation in criminal matters is founded.”
“... the sole article of Protocol No 29 on asylum for nationals of member states of the European Union annexed to the EC Treaty (now Protocol No 24 annexed to the TFEU) provides inter alia that, given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States are to be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters.”
Geneva Convention of 28 July 1951 relating to the status of refugees (“Geneva Convention”)
56. The relevant provisions of the Geneva Convention are as follows:
Article 1 – Definition of the term “refugee”
“A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
...
C. This Convention shall cease to apply to any person falling under the terms of section A if:
...
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
...”
57. Article 33 § 1 of the Geneva Convention provides:
59. The Code of Criminal Procedure provides in relevant part:
“A European arrest warrant shall contain the following particulars:
– the identity and nationality of the requested person;
– the specific designation and full contact details of the issuing judicial authority;
– the nature and legal classification of the offence, particularly in respect of Article 695-23;
“Execution of a European arrest warrant shall be refused in the following cases:
Article 695-23 (as at the material time)
...
– trafficking in human beings;
...
...
“Execution of a European arrest warrant may be refused:
3o where the offence for which it was issued was committed, in whole or in part, in France;
“Where the requested person is being prosecuted in France or has already been convicted and ordered to serve a sentence in France for an offence other than that referred to in the European arrest warrant, the Investigation Division of the court may, after deciding upon the execution of the arrest warrant, postpone the person’s surrender. In such a case the Principal Public Prosecutor shall immediately bring the postponement to the notice of the issuing judicial authority.
...”
60. In a judgment of 28 February 2012 (see case no. 12-80.744, Bulletin criminel 2012 no. 56), the Criminal Division of the Court of Cassation held that, in addition to the optional and mandatory grounds for refusing execution under the Framework Decision and the Code of Criminal Procedure, execution of an EAW could be postponed where it was necessary to do so for the protection of fundamental rights:
In consequence whereof this aspect of the judgment below may be set aside; ...”
THE LAW
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
65. In Mr Bivolaru’s case (application no. 40324/16), the Government argued that the complaint under Article 2 of the Convention was inadmissible. They submitted that the applicant had not exhausted his domestic remedies because he had not backed up his allegations in this regard before the Investigation Division or in the grounds of review pleaded in support of his application to the Court of Cassation.
67. The Court notes that, although Article 2 of the Convention was invoked in the applicant’s second ground of review (see paragraph 32 above), he offered no argument as to how the EAW in issue would put his life at risk. The first ground of review (see paragraph 31 above) was equally silent as to the risks to his life in the event of surrender to the Romanian authorities. That being so, the Court considers that the complaint before it under Article 2 of the Convention was not raised by the applicant in the Court of Cassation. Accordingly, it must be dismissed for failure to exhaust domestic remedies.
(a) Observations of the parties in Mr Moldovan’s case
(i) The applicant’s observations
69. The applicant submitted that the presumption of equivalent protection (see paragraphs 96 et seq. below) did not apply in these circumstances for the following reasons. First, the EAW Framework Decision had not placed the French courts under an obligation to surrender him automatically to the Romanian authorities. It was binding on States as to the results to be achieved but gave them a margin of manoeuvre as to the form and methods to be used. For instance, it did not prevent their introducing a procedure in domestic law for lodging a challenge that would suspend a decision of the executing State’s judicial authorities in circumstances not contemplated by its provisions (see Jeremy F v. Premier ministre, C‑168/13 PPU, 30 May 2013). Moreover, as interpreted by the CJEU, which had called into question the principle of automatic surrender, the Framework Decision afforded the executing court a margin of appreciation where the fundamental rights of the person concerned were at risk of violation in the event of his or her surrender. Such, in the applicant’s view, was the purport of the Aranyosi and Căldăraru judgment cited above.
71. Provided that the presumption of equivalent protection did not apply, the applicant sought to contend that, by deciding to surrender him to the Romanian authorities whereas the information supplied by those authorities had confirmed his risk of inhuman or degrading treatment in Gherla prison, the French court had breached Article 3 of the Convention. As he had nonetheless told the court, detention conditions in that overcrowded prison – which had included a lack of sufficient individual space and disregard for the most basic standards of hygiene – had been contrary to that Article and had warranted discontinuance of the surrender proceedings.
(ii) The Government’s observations
73. Contrary to the applicant, the Government took the view that the presumption of equivalent protection was applicable in these circumstances. They submitted, first, that the terms of the Framework Decision, like the provisions of EU law applicable in the judgment in Avotiņš v. Latvia ([GC], no. 17502/07, 23 May 2016) and unlike those of the Dublin regulation at issue in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011 – regarding the “sovereignty clause”), could not be interpreted as affording a margin of appreciation to the court tasked with an EAW execution decision. The Framework Decision provided a clear enumeration of the grounds for non‑execution of an EAW, which were unrelated to the possibility of supplementing the terms of the Framework Decision to make provision for legal challenges to an execution decision (see paragraph 69 above). Furthermore, any exception to execution had as a matter of course to be confined within strict parameters so as not to impede the mechanism of mutual recognition put in place to build the European area of freedom, security and justice, or the mutual trust which that mechanism required. The engagement of a fundamental freedom was insufficient to found a refusal to execute an EAW. In the Government’s view, the Aranyosi and Căldăraru obligation to suspend or refuse execution of an EAW reflected the CJEU’s concern to interpret the Framework Decision against the standard of protection applicable to the fundamental rights guaranteed by EU law, and in particular against Article 4 of the Charter, the counterpart to Article 3 of the Convention, a fact that could only lend support to the presumption of equivalent protection under EU law.
74. Nor did the judicial authorities have a margin of manoeuvre as to the use that could be made of the grounds for optional non-execution of an EAW. In addition to the constraints which the CJEU had itself placed on their use (see AY, 25 July 2018, C-268/17), the grounds for non-execution enumerated at paragraphs 1 and 3 of Article 695-24 of the Code of Criminal Procedure (see paragraph 59 above) were inapplicable in this instance. The applicant had been charged with a different offence in France from that concerned by the EAW (see paragraphs 12 and 14 above), and France had had no intention of prosecuting the applicant on the same basis on the ground that the offence had also been committed in France.
75. Second, the Government submitted that the supervisory mechanism provided for by EU law had not required a reference for a preliminary ruling to be made in the present circumstances. They argued that no genuine and serious issue had arisen with regard to the protection of fundamental rights by the Framework Decision, and that the CJEU had already stated precisely how the provisions of the Framework Decision were to be interpreted in a manner that was compatible with fundamental rights (see paragraphs 49 and 50 above). The Government pointed out in this regard that the CJEU did not regard courts of last instance as being under an obligation to make a reference for a preliminary ruling where the provision of EU law in question had already been interpreted or its correct interpretation was so obvious as to leave no scope for reasonable doubt (see Commission v. France, C-416/17, 4 October 2018, § 110 and the cases there cited, especially Cilfit and Others, C‑283/81, 6 October 1982, § 21). Furthermore they noted that the applicant had not raised any specific issue, relating to the interpretation of the Framework Decision or its to fundamental rights compatibility, conducive to the view that a reference for a preliminary ruling was called for. In any event it had been open to him to invite the domestic courts to make such a reference, but he had not done so. On balance, and by way of contrast with Michaud, cited above, the Government advanced the view that the sole fact that full use had not been made of the review mechanism provided for by EU law did not operate to rebut the presumption of equivalent protection.
76. Lastly, the Government submitted that the domestic courts had been at pains to ensure that the execution of the EAW would not give rise to any manifest deficiency in the protection of Convention rights. In their contention it followed from the previous judgments of the CJEU and of this Court that, although the principle of mutual recognition could not stand in the way of scrutiny of fundamental rights compliance, such scrutiny was to be directed solely to the unequivocal appearance of a rights violation so flagrant that the court of the executing State ought to refuse surrender to the issuing State. In this instance it was apparent from the decisions of the domestic courts that they had not only checked whether there were any mandatory or optional grounds for non‑execution of the EAW but had also taken care to consider the applicant’s complaints relating to an alleged Article 3 breach in the event of surrender to Romania, after making a request for further information regarding the conditions in which he would be held. The Government concluded from the above that the execution of the EAW had not been affected by a manifest deficiency capable of rebutting the presumption of equivalent protection, which applied both to the EAW scheme established by the Framework Decision and refined by the CJEU, and to the operation of that scheme in the applicant’s particular case.
77. In the alternative, should the Court regard the presumption of equivalent protection as inapplicable in the circumstances, the Government submitted that the execution of the EAW had not given rise to a breach of Article 3 of the Convention. In the light of the Court’s preceding judgments on expulsion and extradition (see paragraphs 107‑109 below) they advanced the view that, given the assurances and information provided by the Romanian authorities to the French authorities, the latter had not violated Article 3 of the Convention by executing the EAW.
(b) Observations of the parties in Mr Bivolaru’s case
(i) The applicant’s observations
79. First, he put forward the general proposition that the EAW scheme had given rise to significant jurisprudential developments showing that the assumption of mutual trust between member States had been called into doubt by the fundamental rights violations committed by some of those States. He contended that the growing number of ensuing exceptions had broadened the judicial authorities’ margin of manoeuvre in dealing with an EAW. In the applicant’s view, the judgment given by this Court in Romeo Castaño v. Belgium (no. 8351/17, 9 July 2019) had confirmed the deciding role of national courts in executing an EAW. Furthermore, with regard to his case, he made the point that the national courts had been required to assess the risk he faced within the parameters of the Aranyosi and Căldăraru judgment and to negotiate the tension between the international protection afforded by the Geneva Convention and the requirements imposed by EU law, a dual exercise which entailed the existence of a margin of appreciation in deciding whether to execute the EAW.
80. Second, the applicant argued that the difficulties posed by his case should have prompted the Court of Cassation to seek a preliminary ruling from the CJEU. He pointed out that he had expressly invited it to do so and argued that his application for review on points of law had raised a serious, novel and complex issue which, contrary to the Government’s submission (see paragraph 88 below), had not been resolved by the CJEU. In the absence of a reference to the CJEU the applicant contended that the Court of Cassation had given judgment in circumstances where the full potential of the relevant international machinery for the supervision of fundamental rights compliance – in principle equivalent to that of the Convention – had not been brought to bear (see Michaud, cited above, § 115).
82. In that regard, contrary to the Government, the applicant argued, first, that he had not been liable to forfeit the refugee status granted by Sweden and that his status as a person protected by the Geneva Convention should have been dispositive for purposes of gauging the risks he would face if returned to Romania. He made the point that, unless so interpreted by the CJEU, the rules of EU law did not appear to say that where a person had secured the protection of a member State as a refugee, the mere fact that his or her State of nationality had later joined the European Union led ipso facto to the loss of that protection.
83. The applicant further argued that it had not been for the French courts to pass judgment on the grant of refugee status by the Swedish authorities, which had told them, moreover, that it was still in effect. By not having regard to the protection attaching to his refugee status, in his view, the French courts had breached Article 3 of the Convention. Their decision had amounted to a denial of the protection which a State party to the European Convention and an EU member State had intended to grant in pursuance of vital imperatives, and, considering the interests which a grant of refugee status served to protect, fell foul of the principle of non-refoulement which was binding on France under both the Geneva Convention and the European Convention
84. The applicant went on to allege, on the assumption that it had been within the power of the French courts to explore whether the threat underlying Sweden’s choice to grant him refugee status had been real, that the assessment they had reached in that regard had lacked an adequate basis and justification. In contrast to the Government (see paragraph 91 below), he took the view that the absence of any risk of political persecution could not be inferred solely from the judgment handed down by the Court in Amarandei and Others v. Romania (no. 1443/10, §§ 7-14, 26 April 2016; see paragraph 129 below), as that judgment had focused purely on the possible political agenda behind a police operation carried out against MISA members on 18 March 2004, rather than the sum‑total of the acts of persecution suffered by the movement, and neither had it included a determination regarding his particular situation, since he had not been an applicant to the Court in that case.
86. Moreover, on the subject of his exposure to a danger of inhuman and degrading treatment owing to detention conditions in Romania, the applicant placed emphasis on the fact that the mechanism of mutual recognition governing the EAW had been called into question by the CJEU in its judgment in Aranyosi and Căldăraru. From this he inferred that, barring a reversal of the burden of proof which lay first and foremost with the Romanian authorities, since only they had been in a position to guarantee that he would be detained in humane conditions, he should not have been required, as the Government would have it, to provide the courts of general jurisdiction with specifics in that regard; a prima facie case should have been adequate. He submitted that he had drawn the courts’ attention to, and provided them with documentation of, the exceedingly poor prison conditions in Romania, a problem oft-highlighted by the Court and of which he said the Government were feigning ignorance (see paragraph 93 below). He furthermore criticised the failure to make a request to the Romanian authorities for information or assurances as to the conditions in which he would be held so as to ascertain whether there was a specific and genuine risk of violation of the Convention in the event of surrender. He maintained that the risk fell to be assessed as at the time of his surrender, as was the case in proceedings relating to expulsion (see F.G. v. Sweden [GC], no. 43611/11, § 115, 23 March 2016), and hence the Government could not derive assistance from the fact that he had remained in prison for only a year and had not complained to the Court of the conditions in which he had been held in Romania (see paragraph 95 below).
(ii) The Government’s observations
87. Contrary to the applicant, the Government considered that the presumption of equivalent protection was applicable in the circumstances. Pointing to the underlying basis of the EAW, they took the view that the national courts had had no margin of manoeuvre to postpone or question the applicant’s surrender, as none of the grounds of non‑execution contemplated by the Framework Decision had been applicable in the circumstances.
88. The Government furthermore submitted that the fact that no reference had been made to the CJEU during the proceedings did not displace the presumption of equivalent protection. In that regard they pointed out, first, that the applicant had not applied to the Investigation Division for a reference. Second, they argued that the Court of Cassation had not been under a duty to make a reference for a preliminary ruling since the CJEU’s previous rulings had already stated precisely how the provisions of the Framework Decision were to be interpreted in a manner compatible with fundamental rights. Specifically, the CJEU had made clear that the exceptions to the principle of automatic surrender were strictly circumscribed; in particular, the existence of an asylum claim or an application for subsidiary protection was not a ground for non-execution of an EAW (see the judgment in I.B., cited at paragraph 55 above). Thirdly, in the Government’s submission, no serious issue as to the interpretation of EU law had arisen in the circumstances, for the following reasons: from the time of its accession to the Union in 2007, Romania had been entitled, vis-à-vis all other EU member States, to the benefit of the principle of mutual recognition and to the presumption that it observed EU law, including the fundamental rights enshrined therein; furthermore, Protocol no. 24 TFEU (see paragraph 47 above) stipulated that Romania was to be considered a safe country of origin in respect of the other member States for all legal and practical purposes relating to asylum matters; it was also a party to the ECHR, the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; lastly, there had not arisen any other serious issue as to the interpretation of EU law in so far as the EAW had not been politically motivated and its only purpose had been to enable the enforcement of the sentence of 14 June 2013, which had been pronounced in respect of a non‑political offence. The Government pointed in this regard to the Court’s finding in Bivolaru (no. 2), cited above, that the sentence had been the outcome of a fair trial.
91. They pointed out in this regard that the French courts had asked the Swedish authorities to provide information on the applicant’s refugee status and the decisions they had reached. The domestic court had considered the ground on which refugee status had been granted and had concluded that, although that ground had provided the basis for a refusal to extradite in 2005, it could no longer be relied on in 2016 to justify a refusal to execute the EAW. Thereupon the Investigation Division had quoted the findings of this Court in Amarandei and Others, cited above, in support of its own conclusion that the applicant would not be persecuted in Romania.
93. As to the risk of inhuman or degrading treatment in Romanian prisons, the Government rejected the applicant’s claims regarding the inadequacies of the French courts’ treatment of the issue. They asserted that the French courts had not been under a duty to seek information from the Romanian authorities where the material that the applicant had put before the Investigation Division in that regard had not been capable of constituting “objective, reliable, specific and properly updated” evidence of deficiencies within the meaning of Aranyosi and Căldăraru. In the Government’s judgment it stood to reason that mere allegations of a general character should not have the effect of calling into question the principle of mutual recognition. They also noted that at the time of the applicant’s surrender the Court had not yet delivered the pilot judgment in Rezmiveș and Others v. Romania (nos. 61467/12 and 3 others, 25 April 2017) in which it had found there to be a structural problem with detention conditions in Romania.
95. In the alternative, should the Court regard the presumption of equivalent protection as inapplicable in this instance, the Government advanced the view, informed by previous expulsion and extradition cases, that the surrender of the applicant to the Romanian authorities had not breached Article 3 of the Convention. The Government observed at the outset that the Court lacked jurisdiction to determine whether France had honoured its obligations under the Geneva Convention. However, notwithstanding the applicant’s entitlement to the protection afforded by the Court’s rulings in the cases referred to – which was owed to anyone facing expulsion or extradition – he had not established a real risk of infringement of his right under Article 3 of the Convention owing to his political or religious views. Nor had he established that he would be at risk of inhuman or degrading treatment in the Romanian prison estate. In this regard the Government noted, in addition to the point referenced at paragraph 93 above, that conditions in Romania’s prison estate had not given cause for concern to Amnesty International or Human Rights Watch in their reports released around the time of the applicant’s surrender. The Government further observed that the applicant had confined himself to claims of a very general nature regarding the Romanian prison system in his application to the Court; they contended that he could not rely on the media attention his case had attracted in his country of origin as evidence of a real risk that he might be treated in a manner contrary to Article 3 if surrendered. Lastly, the Government pointed out that the applicant had been released from custody on 13 September 2017, one year after his surrender, and had never complained to the Court of the conditions in which he had been held in Romania. In the circumstances, the Government concluded that the applicant had failed to make out a case for the existence of a real and substantial risk of his being subjected to treatment contrary to Article 3 following his surrender to the Romanian authorities.
97. When applying EU law, the Contracting States remain bound by the obligations they freely entered into on acceding to the Convention. However, those obligations must be assessed by reference to the presumption of equivalent protection. Acts done pursuant to international legal obligations are to be presumed justified where it is established that the protection afforded to fundamental rights by the organisation in question is at least equivalent – that is, not identical but “comparable” – to that afforded by the Convention, on the understanding that any such conclusion of “equivalent protection” must be open to review in the light of any relevant change in the protection of fundamental rights. If such equivalent protection is considered to be provided by the organisation, a State will be presumed not to have departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation. (see Avotiņš, cited above, § 101).
98. The application of the presumption of equivalent protection in the legal order of the European Union is subject to two conditions, namely the absence of any margin of manoeuvre on the part of the national authorities and the deployment of the full potential of the supervisory mechanism provided for by European Union law. First, the alleged interference with a Convention right must be the consequence of an international legal obligation of the respondent State in the discharge of which the domestic authorities have no discretion or margin of manoeuvre. Second, the fundamental rights supervisory mechanism in place under European Union law, which the Court has recognised as affording fundamental rights protection equivalent to that of the Convention, must have been used to its full potential (ibid., § 105).
99. The second condition for the operation of the presumption of equivalent protection must be applied without excessive formalism and with due regard to the specific features of the supervisory mechanism in question. It would not be appropriate to make the implementation of the presumption subject to a requirement for the national court to request a ruling from the CJEU in all cases without exception, including those cases where no genuine and serious issue arises with regard to the protection of fundamental rights by EU law, or those in which the CJEU has already stated precisely how the applicable provisions of EU law should be interpreted in a manner compatible with fundamental rights (ibid., § 109).
100. The principles distilled in the judgments cited at paragraph 96 above apply to all mutual‑recognition mechanisms in place under the law of the European Union (ibid., § 113). It follows that where the domestic authorities lack discretion in giving effect to European Union law, the presumption of equivalent protection applies. This is the case when mutual‑recognition mechanisms require the domestic court to presume sufficient observance of fundamental rights on the part of another member State (ibid., § 115).
101. However, this presumption may be rebutted in the circumstances of a particular case. Although the Court will seek to take into account, in a spirit of complementarity, the manner in which mutual‑recognition mechanisms operate and in particular the aim of effectiveness at which they are directed, it must verify that the principle of mutual recognition is not applied automatically and mechanically, to the detriment of fundamental rights (ibid., § 116).
103. However, if a serious and substantiated complaint is put to them which alleges a manifest deficiency in the protection of a Convention right which cannot be remedied by EU law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law (ibid., § 116). In such cases they must read and apply the rules of EU law in conformity with the Convention (see Pirozzi v. Belgium, no. 21055/11, § 64, 17 April 2018).
(b) Application of those principles to European arrest warrant cases
104. In its judgment in Pirozzi (cited above, §§ 66 and 71) the Court concluded that, unless there were grounds for not doing so, the executing judicial authority was under an obligation to execute the EAW, so that the presumption of equivalent protection was brought into operation. Nonetheless it underscored that the authority in that case had satisfied itself that execution of the EAW would not give rise, vis-à-vis the applicant, to a manifest deficiency in the protection of Convention rights, having reiterated in the following terms that the EAW system was not inherently incompatible with the Convention:
59. The Court is mindful of the importance of mutual-recognition mechanisms when it comes to building the area of freedom, security and justice, and of the mutual trust they require. The EAWs for which the Framework Decision provides are a concrete measure implementing that principle of mutual trust, in a sphere which serves to ensure the free movement of judicial decisions in criminal matters throughout the area of freedom, security and justice. The EAW is a document authorising an arrest to be made on the basis of a judicial decision issued by the competent judicial authority of a European Union member State with a view to the arrest and surrender, by the competent judicial authority of another member State, of a person sought for criminal prosecution or for the enforcement of a custodial sentence or detention order.
60. The Court has stated its commitment to international and European cooperation. It considers the creation of an area of freedom, security and justice in Europe, and the adoption of the means necessary to that end, to be wholly legitimate from the standpoint of the Convention as far as the principle behind it is concerned (see, in particular, Avotiņš v. Latvia ([GC], no. 17502/07, § 113, 23 May 2016). Accordingly, in its view, the EAW system is not inherently incompatible with the Convention.”
105. In the Romeo Castaño judgment (cited above) the Court held that a refusal to execute an EAW on the ground that surrender would carry a risk of breach of the fundamental rights of the person sought might, if lacking a sufficient factual basis, run counter to the procedural obligation to cooperate under Article 2 of the Convention. It reiterated the principles set forth in its previous judgments to the effect that, in the context of execution of an EAW by an EU member State, the machinery of mutual recognition should not be applied automatically and mechanically to the detriment of fundamental rights. It held that a risk of inhuman and degrading treatment to the person whose surrender was sought might constitute a legitimate ground for refusing to execute an EAW, provided that the finding of such a risk had a sufficient factual basis (ibid., §§ 82-91).
109. The Court reiterates that it is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3. Where such evidence is adduced, it is for the Government to dispel any doubts thereby raised (see J.K. and Others, cited above, § 91; Allanazarova v. Russia, no. 46721/15, § 71, 14 February 2017; and A.M. v. France, no. 12148/18, § 118 and 119, 29 April 2019).
(d) Application of those principles to Mr Moldovan’s case
110. The decision to surrender the applicant to the authorities of the State that had issued the EAW was taken notwithstanding his claim that execution of the warrant would put him at real risk of inhuman and degrading treatment owing to the conditions in which he would be held in Romania. It is not for the Court to pronounce upon Romania’s compliance with its obligations under the Convention. The sole object of scrutiny for the Court is the decision of the French judicial authorities to execute the EAW for the applicant notwithstanding his submission to them that to do so would have the effect of exposing him to treatment contrary to Article 3. As the evidence adduced by the applicant in support of his allegations comes from judgments of the Court concerning detention conditions in Romania, a brief recapitulation of the relevant judgments is called for. Before assessing the merits of the complaint of a breach of Article 3, it will be necessary to decide whether the presumption of equivalent protection was applicable in the circumstances.
111. In the proceedings before the Investigation Division the applicant relied initially on four judgments delivered in 2014 (see paragraph 8 above) which had found violations of Article 3 of the Convention on grounds of the inhumane detention conditions that the applicants had experienced in several Romanian prisons, including Rahova Prison in Bucharest, as a result of overcrowding, a lack of heating and hot water, and poor hygiene practices. Those judgments make reference to the leading case of Iacov Stanciu v. Romania (no. 35972/05, 24 July 2012), where the Court, in its reasoning under Article 46 of the Convention, observed that it had regularly found Convention violations on grounds of overcrowding, poor hygiene and lack of appropriate health care in prisons including Gherla (ibid., § 195). The applicant subsequently referred to the judgment in Axinte (cited at paragraph 11 above), which was also concerned with, among other things, conditions of detention in Gherla prison. In that judgment the Court found that the applicant had endured circumstances of severe overcrowding and that he had been afforded less than 3 sq.m, and sometimes less than 2 sq.m, of individual space (ibid., § 48). The Court also pointed out that it had “already found Article 3 violations in many cases, mainly on grounds of a lack of sufficient individual space, unhygienic conditions or inadequate ventilation or lighting in the prisons of Gherla (see Porumb v. Romania, no. 19832/04, § 72, 7 December 2010, and Radu Pop v. Romania, no. 14337/04, § 96, 17 July 2012) ...” (ibid., § 49).
(ii) Application of the presumption of equivalent protection
113. As to the first condition, the Court notes that the legal obligation placed upon the judicial authority tasked with deciding whether to give effect to an EAW stems from the relevant terms of the Framework Decision as they have been interpreted by the CJEU since its ruling in Aranyosi and Căldăraru (see paragraph 50 above). Under the jurisprudence of the CJEU as it stood, the executing judicial authority was entitled to depart in exceptional cases from the principles of trust and mutual recognition between member States by postponing or, where necessary, refusing execution of the EAW. Its task, in dealing with the objection raised to execution of the EAW on the ground that it would place the applicant at risk of being held in Romania in conditions contrary to Article 4 of the Charter of Fundamental rights, was to determine whether the systemic deficiencies alleged by the applicant to exist in the issuing State did in fact exist, and, if so, to undertake a specific and precise examination of the risk of inhuman and degrading treatment to which he, as an individual, would be exposed if surrendered.
114. Regarding the establishment of a real risk to the individual, the Court notes that the requirements laid down by the CJEU – which has called for the executing judicial authority to apply a two-stage test asking whether there are systemic or generalised deficiencies in the issuing State and, if so, whether a specific and precise assessment discloses substantial grounds to believe that the person concerned will face a real risk of treatment contrary to Article 4 of the Charter of Fundamental Rights on account of the conditions in which he or she will be held in the issuing State (see paragraphs 50 and 52 above) – are to the same effect as those arising out of its own previous judgments, which place the national authorities under a duty to ascertain whether there is a real risk, specifically assessed, to the individual concerned, of treatment contrary to Article 3 in the same circumstances (see paragraph 106 above). It would therefore have been incumbent on the Investigation Division to refuse to execute the EAW if, on performing the exercise just described, it had concluded that there were substantial grounds for believing that the applicant, if surrendered, would face a real risk of inhuman and degrading treatment owing to the conditions in which he would be held. However, this power of the judicial authority to assess the facts and circumstances and determine the legal consequences properly attaching thereto is exercised within the parameters strictly delineated by the judgments of the CJEU, in order to ensure that a legal obligation is performed with due regard for EU law, specifically Article 4 of the Charter of Fundamental Rights, which affords protection equivalent to that of Article 3 of the Convention. Accordingly, the executing judicial authority, in deciding whether to grant or refuse execution of an EAW, cannot be said to enjoy an independent margin of manoeuvre such that the presumption of equivalent protection does not apply (see Avotiņš, cited above, § 107).
115. Regarding the second condition for application of the presumption, the Court notes that, in the light of the aforementioned CJEU jurisprudence (see paragraphs 50 and 113 above), no serious difficulty arises concerning the interpretation of the Framework Decision and the question of its compatibility with fundamental rights so as to suggest the need for a reference to the CJEU for a preliminary ruling. The second condition for application of the presumption of equivalent protection must there be regarded as met.
116. In view of the foregoing, the Court concludes that the presumption of equivalent protection is applicable in this instance. Accordingly, its task is confined to ascertaining whether the protection of the rights guaranteed by the Convention was, in the circumstances, manifestly deficient so as to rebut that presumption; if so, the interest of international cooperation is outweighed by observance of the Convention as a “constitutional instrument of European public order” in the field of human rights (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi, cited above, § 156, and Michaud, cited above, § 103).
(iii) Allegation of manifest deficiency in protection of Convention rights
117. The Court would refer back to its conclusion in the Romeo Castaño judgment (cited above) that, from the standpoint of the Convention, a real risk to the individual whose surrender is sought of inhuman and degrading treatment owing to the conditions in which he or she will be held in the issuing State, provided those conditions have been assessed on a sufficient factual basis, is a legitimate ground for refusing to execute the European arrest warrant and thus for refusing to cooperate with the State in question. The Court does not see any reason to depart from its approach in Romeo Castaño (ibid., §§ 82-91), as set out at paragraphs 105 and 106 above.
118. The Court must now ascertain whether the fundamental rights protection afforded by the executing judicial authority was affected in this instance by a manifest deficiency such as to rebut the presumption of equivalent protection. To that end it will seek to determine whether the executing judicial authority had before it a sufficiently sound factual basis to compel it to the conclusion that executing the EAW would pose a specific, individual risk to the applicant of treatment contrary to Article 3 owing to the conditions in which he would be held in Romania.
119. The Court observes at the outset that the applicant provided the domestic courts with evidence of the systemic or generalised deficiencies affecting the prisons of the issuing State. It notes the reliability and specificity of the material he adduced in support of his allegations before the Investigation Division and later the Court of Cassation (see paragraphs 8, 11 and 13 above), containing consistent and repeated reports of the deficiencies in the Romanian prison system and, in particular, of the conditions prevailing in Gherla Prison, the facility where the Romanian authorities planned to hold the applicant.
121. On consideration of the particulars provided to it in the course of that exchange of information, the executing judicial authority took the view that execution of the EAW in question would not give rise to a risk of violation of the applicant’s Article 3 rights. Looking at the same material, the Court concludes that the authority had before it a sufficient factual basis on which to find that there was such a risk.
122. First, the Court is of the view that the information provided by the issuing State was not sufficiently put into the context of its own judgments, particularly regarding the conditions at Gherla Prison, which was ostensibly the facility in which the applicant was to be held. In the Axinte judgment (cited at paragraph 111 above), on which the applicant relied before the executing judicial authority, it was pointed out that that prison suffered from an endemic level of overcrowding and that, in such circumstances, the lack of personal space was the central consideration in gauging whether a particular situation was not at odds with Article 3 of the Convention. Here, the Court notes that this aspect of the applicant’s prospective conditions of detention was not afforded serious consideration; the Investigation Division relied on the prospect of “at least 2-3 sq.m” of space (see paragraph 12 above) whereas the Romanian authorities had stated that the applicant would have “2‑3 sq.m” of space in Gherla Prison (see paragraph 10 above). Furthermore it had been specified that that measurement of personal space was inclusive of the space to be taken up by sanitary fixtures. In addition the Court observes that the other judgments on which the applicant relied (see paragraphs 8 and 111 above) make apparent that the detention conditions in Rahova Prison, identified as the facility where the applicant was to be quarantined on arriving in Romania, did not afford satisfactory personal space to persons held there. (see Voicu, cited above, § 51, and Constantin Aurelian Burlacu, cited above, § 27).
123. The Court notes that it has previously held that 3 sq.m of floor area per person in a multi‑occupancy cell is the minimum standard applicable within the requirements of Article 3 of the Convention (as affirmed in Muršić v. Croatia [GC], no. 7334/13, § 137, 20 October 2016). In the Court’s view, considering the entirety of the material before it, in particular that provided by the Romanian authorities upon its request, the executing judicial authority had information concerning the personal space to be afforded to the applicant which warranted a strong presumption of a breach of Article 3.
126. Considering all of the foregoing, the Court is of the view that the executing judicial authority had before it a sufficiently sound factual basis, provided in particular by the Court’s own judgments (see paragraphs 111, 122 and 123 above) upon which to establish a real risk to the applicant of inhuman and degrading treatment on account of the conditions in which he would be held in Romania and could not, therefore, rely solely on the statements made by the Romanian authorities (see paragraph 10 above). It accordingly infers that in these particular circumstances there existed a manifest deficiency in the protection of fundamental rights such as to rebut the presumption of equivalent protection. As a result, the Court concludes that there has been a violation of Article 3 of the Convention.
(e) Application of those principles to Mr Bivolaru’s case
(i) Alleged breach of Article 3 of the Convention owing to the applicant’s refugee status
(α) The Amarandei and Others v. Romania judgment relied on by the applicant before the Investigation Division
129. The application was lodged by members and supporters of MISA, the movement which the present applicant had founded in 1990. It concerned a police operation conducted against them in 2004 to seize computer hardware which prosecutors had alleged was being used to produce and spread pornographic images online. The Court held that the operation and the ensuing arrests had breached Articles 3 and 5 because of the manner in which the gendarmerie had entered the buildings to be searched and the arbitrary deprivation of liberty suffered by the applicants in the wake of the operation. It also held that Article 8 of the Convention had been breached as a result of defects identified in the search of the premises, the seizure of property, searches performed on individual persons and the release of footage of the police operation to the media. Lastly, regarding the applicants’ allegation under Articles 9 and 14 that they had suffered discrimination on the basis of their membership of MISA in respect of their right to manifest their beliefs, the Court declared the complaint inadmissible in the following terms:
“243. In this case the Court notes that the SRI had been monitoring MISA’s activities since its founding in 1990. Although its reasons for doing so were partly related to the expression of views considered to be at odds with the State’s foreign policy choices, nonetheless it is apparent from the material in the case file that the police operation of 18 March 2004 was preceded by evidence that criminal offences had been committed in some MISA buildings.
246. As to the statements which are alleged to have expressed a negative view of MISA’s activities, the Court notes that the statements of which the applicants complain originated not with the judicial authorities in charge of the conduct of the investigation but with various politicians. Moreover, the Court is of the opinion that those statements need to be viewed in the context of the case, which caused a considerable public outcry. In the Court’s view, the statements in issue, as they appear in the media reports provided by the applicants, are not capable of establishing the existence of a campaign of denigration and persecution orchestrated by certain politicians and directed against MISA and its membership.
247. Lastly, regarding the media coverage of the case, the Court is of the view that, in a democratic society, sensitive cases are bound to attract at times uncompromising journalistic comment.”
(β) Application of the presumption of equivalent protection
131. In the present case the Court notes that the Court of Cassation dismissed the applicant’s request to seek a preliminary ruling from the CJEU on the consequences, for the execution of an EAW, of a grant of refugee status by a member State to a national of a third State which had subsequently also become a member State. The issue so framed is a genuine and serious one, never decided by the CJEU, going to the fundamental rights protection afforded by EU law and its interrelationship with the protection afforded by the 1951 Geneva Convention. The I.B. judgment cited by the Government (see paragraph 55 above) – wherein the CJEU ruled that an application for refugee status lodged in the executing State by the person sought on an EAW did not constitute a ground for non-execution of the EAW – concerns a different eventuality. The Court thus considers that the Court of Cassation’s choice not to make a reference to the CJEU meant that it gave its judgment in circumstances where the full potential of the relevant international machinery for the supervision of fundamental rights compliance – in principle equivalent to that of the Convention – had not been brought to bear. In view of that choice and the importance of what was at stake, the presumption of equivalent protection does not apply (see Michaud, cited above, § 115, and Avotiņš, cited above, § 111), and it is unnecessary to consider the first condition.
(γ) Whether the applicant’s surrender contravened Article 3 of the Convention
133. The Court’s task is to scrutinise how the executing judicial authority went about its inquiry into whether there was a real risk to the applicant, should the EAW be executed, of persecution amounting to inhuman and degrading treatment for his political and religious beliefs. It will endeavour to determine whether the executing judicial authority had before it a sufficiently sound factual basis to compel it to the conclusion that execution of the EAW would entail a real, individual risk to the applicant of treatment contrary to Article 3 and to refuse to execute the EAW on that ground.
134. The Court observes that in the domestic courts the applicant relied mainly on his refugee status under the Geneva Convention and on the rule of non‑refoulement laid down by Article 33 thereof to establish that there was a real risk of inhuman and degrading treatment should the EAW be executed. The Investigation Division and the Court of Cassation held that the applicant’s refugee status did not place them under a duty to refuse to execute the EAW in issue.
135. First, it is not within the Court’s remit to decide how the protection afforded to refugees by the Geneva Convention interrelates with the rules of EU law, here the Framework Decision. The Court’s review will be confined to inquiring whether, in the present circumstances, the execution of the EAW for Mr Bivolaru gave rise to a violation of Article 3 (see, mutatis mutandis, Paci v. Belgium, no. 45597/09, § 73, 17 April 2018). Second, as regards the consequences to be attached by the Court to the applicant’s refugee status, the Court observes that neither the Convention nor its Protocols protect the right to asylum as such. The protection they afford is confined to the rights they enshrine, including in particular the rights set out in Article 3. Article 3 prohibits the removal of any alien, who is within the jurisdiction of one of the Contracting States for the purposes of Article 1 of the Convention, to a State in which he or she may face a real risk of inhuman or degrading treatment or torture. In that respect it embraces the prohibition of refoulement under the Geneva Convention (see N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 188, 13 February 2020). The Court would also point out that it is not for it to inquire whether a decision of the authorities of a State party to the Geneva Convention to grant refugee status is to be interpreted as conferring on the person concerned the same status in all other States parties to that treaty (see M.G. v. Bulgaria, no. 59297/12, § 88, 25 March 2014).
136. Turning to its review of whether Article 3 was complied with in the present circumstances, the Court notes that the EAW Framework Decision does not provide for a ground of non-execution based on the refugee status of the person sought for surrender. Nonetheless it would point out that the Swedish authorities’ grant of refugee status to the applicant makes clear that, at the time of the grant, they believed there was sufficient evidence to show he was at risk of persecution in his country of origin (see, mutatis mutandis, M.G. v. Bulgaria, cited above, § 88). The Court must have particular regard to such a factor when assessing whether there was a real risk to the applicant, if surrendered, of treatment contrary to Article 3 (ibid.). The Court must make its assessment by reference to the situation of the person concerned at the time the executing judicial authority took its decision and must have regard to the general scheme of the EAW.
137. As to how the executing judicial authority went about its assessment, it appears to the Court to have regarded the applicant’s refugee status as a factor in need of particular attention, and one which it had to square with the principle of mutual trust, but not as giving rise by operation of law to an exception to that principle which by itself warranted a refusal to give effect to the EAW and to surrender him to the authorities of his country of origin. The Court is of the view that such a stance does not inherently fall foul of Article 3 of the Convention, provided that at the time of making its decision the executing judicial authority gauges whether the applicant would be at risk of inhuman or degrading treatment if surrendered. In this instance it sees that the executing judicial authorities did so by inquiring whether, irrespective of his refugee status, the applicant’s individual situation did not amount to a bar, in the circumstances prevailing at the time of their decision, to his surrender to the Romanian authorities (see, mutatis mutandis, Shiksaitov v. Slovakia, nos. 56751/16 and 33762/17, §§ 70-71, 10 December 2020).
138. The Investigation Division communicated to the Swedish authorities a request for particulars concerning the applicant’s refugee status. It enquired specifically as to the consequences, if any, in their view, of Romania’s entry into the European Union one year after that status had been granted. It also sought an update on the applicant’s status and enquired whether a withdrawal of his refugee status was envisaged now that he had entered France under a false identity. The Swedish authorities replied that they intended to maintain the applicant’s refugee status but did not express an opinion as to whether, ten years on from the grant of that status, the risk of persecution in his country of origin remained live.
139. Moreover the Court notes that, in conformity with the provisions of the Code of Criminal Procedure (Article 695-22 5o; see paragraph 59 above), the executing judicial authorities satisfied themselves that the request for execution of the EAW had not been issued for a discriminatory purpose or, specifically, because of the applicant’s political views. They ascertained that the request to surrender the applicant had been predicated solely on a concern to enforce the sentence handed down against him for a non‑political offence. In particular, they assessed whether his criminal conviction and sentence placed him at risk of inhuman and degrading treatment in the light of the reasons for the judgment in Amarandei and Others (cited above) on which the applicant relied as prime evidence of the persecution of MISA members. Having regard to those reasons, the executing judicial authorities concluded, following a review of the applicant’s history in Romania, that the evidence before them did not support a finding that the EAW served a political purpose; they found that the applicant’s mere membership of MISA was not sufficient, on the evidence before them, to give rise to an apprehension that his position would be prejudiced in Romania on the grounds of his opinions or beliefs (see paragraph 30 above). The Court notes that the applicant did not adduce any evidence, in his submissions to it, capable of substantiating a risk of persecution amounting to treatment so severe as to rise to the threshold under Article 3. He merely argued that the executing judicial authorities had been wrong to consider that the reasons in the Amarandei and Others judgment afforded an adequate basis on which to conclude that he would not be at risk of persecution if surrendered.
141. It is clear from the foregoing that neither the content of the case file compiled by the executing judicial authority nor the material placed before this Court by the applicant suggests that he remained at risk of persecution on religious grounds in Romania if surrendered. The view taken by the Court in these particular circumstances – the Swedish authorities’ lack of intention to lift the applicant’s refugee status notwithstanding – is that, on completion of the close and thorough assessment which the executing judicial authority made of the applicant’s individual situation, and which clearly shows the attention it paid to his refugee status, the authority did not have before it a sufficiently sound factual basis on which to find a real risk of breach of Article 3 of the Convention and to refuse to execute the EAW on that ground.
(ii) Risk of inhuman and degrading treatment owing to detention conditions in Romania
143. As to whether the executing judicial authority had before it a sufficiently sound factual basis on which to conclude that executing the EAW would put the applicant at real risk of inhuman and degrading treatment owing to the conditions in which he would be held in Romania, the Court observes that in the domestic courts the applicant confined himself to allegations of a highly general nature concerning the treatment of opponents of the government, including those in prison, rather than detention conditions in the Romanian prison estate, with the consequence that the executing judicial authority lacked a sufficient basis for such a conclusion. In his case before the Investigation Division he claimed that “torture and inhuman treatment remain[ed] routine in Romania” and alleged that a 2015 CPT report had noted “beatings of prisoners” (see paragraph 23 above). He also relied on the Article 3 violation arising from the police operation conducted against certain MISA members in 2004 (see paragraph 27 above). In the Court of Cassation he placed reliance on the Aranyosi and Căldăraru judgment (see paragraph 32 above).
144. In these circumstances the Court is of the view that the description of conditions in the Romanian prison estate which the applicant put to the executing judicial authority in support of his application to refuse execution of the EAW issued for him was neither sufficiently detailed nor sufficiently supported by evidence to make out a prima facie case of his being at real risk of treatment contrary to Article 3 if surrendered to the Romanian authorities (see, mutatis mutandis, Muršić, cited above, § 128). Furthermore it notes that, given the Court of Cassation’s remit as a court of last review on points of law – a remit which excludes any reassessment of the facts, let alone one based on considerations not put before the courts of substantive jurisdiction below – it was a futile undertaking to rely on the Aranyosi and Căldăraru judgment for the first time in the Court of Cassation in order to establish the existence of structural deficiencies. Having regard to all these factors, the Court considers that the executing judicial authority was not, in the circumstances at issue here, under a duty to request supplementary information from the Romanian authorities as to where, in what conditions and under what regime of detention the applicant would be held in order to identify whether there was a real risk to him of inhuman and degrading treatment owing to his conditions of detention.
(iii) Conclusion
147. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
148. Mr Moldovan claimed 7,000 euros (EUR) in respect of non‑pecuniary damage as a result of the conditions in which he had been held in Romania, which he said were evidenced by the Romanian authorities’ reply of 28 June 2016 (see paragraph 10 above), and as a result of his separation from his family, with whom he had been living in France.
149. The Government contended that the applicant’s claim of non‑pecuniary damage was unsupported by any evidence relating to his current situation and should be rejected. In the alternative, should the Court consider that his surrender had caused him damage, they advanced the view that a finding by the Court of a violation of the Convention would in itself provide adequate redress.
150. The Court concludes that it is appropriate to award Mr Moldovan EUR 5,000 in respect of non‑pecuniary damage (see, mutatis mutandis, Romeo Castaño v. Belgium, no. 8351/17, § 96, 9 July 2019).
151. Mr Moldovan claimed EUR 2,520 in respect of costs and expenses incurred in the proceedings before the Court.
152. The Government advised that they did not intend to make observations on this point.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the second applicant, Mr Moldovan (application no. 12623/17), within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums:
(i) EUR 5,000 (five thousand euros), plus any tax thereon that may be chargeable to the applicant, in respect of non‑pecuniary damage;
(ii) EUR 2,520 (two thousand five hundred and twenty euros), plus any tax thereon that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from expiry of the above-mentioned period until settlement simple interest shall be payable on the above awards at a rate equal to the marginal lending rate of the European Central Bank during that period plus three percentage points;
Done in French and notified in writing on 25 March 2021 pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Síofra O’Leary
Deputy Registrar President
[1] Framework decisions were a type of instrument created by the Treaty of Amsterdam in 1997 for the purposes of what was then the “third pillar” of the European Union. They were superseded by directives in the Treaty of Lisbon. Former Article 34 § 2(b) TEU provided: “… the Council may … adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect …”