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Source: The Federal Constitutional CourtPress release No. 108/2020 of December 30, 2020 Decision of December 01, 20202 BvR 1845/18, 2 BvR 2100/18

With a decision published today, the Second Senate of the Federal Constitutional Court ruled that the transfer to Romania for the purpose of criminal prosecution or the execution of sentences, which the specialized courts consider admissible, violates the complainants’ fundamental rights under Article 4 of the Charter of Fundamental Rights of the European Union (GRCh) Specialized courts have misjudged the importance and scope of the relevant Union fundamental right from Art. 4 CFR and did not sufficiently take into account the associated disclosure obligations. They have not examined and clarified with sufficient accuracy whether there is a concrete risk that the applicants will be exposed to inhuman or degrading conditions of detention after their transfer to Romania.

The facts of the case: The first complainant, a Romanian national, has a European arrest warrant for the execution of a sentence in order to serve a prison sentence of five years, in particular for attempted murder in Romania. The higher court ordered extradition detention. During the course of the proceedings, the Romanian authorities informed the Berlin Public Prosecutor’s Office that the first complainant would initially be housed for a quarantine period of 21 days in a communal cell with a personal space of at least 3 m². The subsequent prison sentence will most likely be carried out in a closed prison, in which he is again given a personal room of 3 m² in a communal cell. All rooms there are equipped with toilets, sinks and showers. There is natural light through a window, artificial white neon light, and a table, chairs and coat hooks. Cold drinking water is always available, hot water three times a week according to a bathing program set by the institution. All rooms are regularly disinfected. After the execution of a fifth of the sentence, the persecuted person will be reassessed. When moving to an open prison regime, he is entitled to an individual personal space of 2 m². The cells are equipped with a toilet, wash basin, shelves and mirrors. Five out of eight detention units also had showers. There is enough light, natural ventilation and regular disinfection. In the half-open prison, the doors are open during the day and the prisoners can move around the prison and the courtyard unaccompanied. After the evening roll call at 7 p.m., individual leisure activities would take place in the detention rooms until the night’s rest at 10 p.m. The Chamber Court declared the extradition of complainant 1 to be admissible. The detention conditions of the (semi) open prison regime are not relevant because it is uncertain whether a transfer will take place. The review of the conditions of detention in prisons where the applicant may later be detained falls under the sole competence of the courts of the requested Member State. The conditions of detention in the quarantine and in the closed prison correspond to the minimum requirements of Union law from Art. 4 CFR and Art. 3 ECHR with a minimum custody space of 3 m² per prisoner for criminal prosecution for aiding and abetting illegal entry and residence. The higher regional court in Celle ordered extradition detention. The Public Prosecutor’s Office in Celle asked the Romanian authorities about the expected conditions of detention for pre-trial detention and for the execution of a sentence after a possible conviction and asked for an assurance of detention conditions that would meet the requirements of Art open). The Romanian authorities announced that the pre-trial detention against the second complainant was being carried out in a detention center in which he had at least 4.15 m² of personal space including bed and furniture. The rooms could be ventilated and heated. Inmates would have access to running water and sanitary facilities and would be able to walk outdoors within the legal requirements. The prison in which the second complainant would be placed in the event of a final conviction has not yet been determined. In a second letter, the Public Prosecutor General asked the Romanian authorities again to assure that the personal space available to the complainant after a conviction would be at least 3 m² to wait for the inquiry of the Attorney General. The existence of a real risk of detention conditions in violation of human rights can be ruled out in specific individual cases. In view of the mutual trust between the Member States, the judicial authorities of the requested Member State are not obliged to review the conditions of detention even in prisons in which the complainant might later be detained. The complainants allege a violation of their rights under Art. 1, Art. 2 Para. 1, Art. 2 Paragraph 2 Clause 2, Art. 19 Para. 4 and Art. 101 Para. 1 Clause 2 GG. Essential considerations of the Senate: The permissible constitutional complaints are well founded. The challenged decisions violate the complainants’ fundamental rights under Art. 4 GRCh.1. The legal dispute in the main proceedings concerns a matter that is fully determined under Union law. The fundamental rights of the Basic Law are therefore not used as a direct test standard. The fundamental rights of the Union, as expressed in particular in the Charter of Fundamental Rights of the European Union, are decisive. When interpreting the fundamental rights of the Union, both the convention rights specified by the European Court of Human Rights and the fundamental rights of the member states as defined by the constitutional and supreme courts of the member states, as they result from the common constitutional traditions, are to be used. According to established case law of the Court of Justice of the European Union, the court dealing with a transfer request must examine in a transfer procedure initiated by a European arrest warrant whether there is a concrete risk of the person to be transferred of being exposed to inhuman or degrading treatment within the meaning of Art . In the first step, which concerns the general detention situation, the court is obliged to use objective, reliable, precise and duly updated information to check whether the conditions in the detention centers are relevant There are systemic or general deficiencies in the issuing Member State. In a second step, based on the situation of the person concerned, the court must carefully examine whether, in the specific circumstances, there are serious and factually confirmed reasons for believing that the requested person after his transfer to the issuing Member State will be exposed to a real risk of inhuman or degrading treatment within the meaning of Article 4 CFR due to the detention conditions under which it will be detained. This requires an up-to-date and in-depth examination of the situation and must be based on an overall assessment of the relevant, specifically anticipated conditions of detention available space, whether it is below 3 m², between 3 m² and 4 m² or over 4 m². If the personal space in a communal cell is less than 3 m², this justifies a strong presumption of a violation of Art. 4 GRCh or respectively Art. 3 ECHR. If a prisoner in a communal cell has personal space between 3 m² and 4 m², there may be a violation of Art. 4 CFR or Art. 3 ECHR if the lack of space is accompanied by other deficient conditions of detention, such as for example, lack of access to fresh air and daylight icht, poor ventilation, too low or too high a room temperature, lack of privacy in the toilets or poor sanitary and hygienic conditions. If there is more than 4 m² of personal space in a shared cell, the other aspects of the detention conditions remain relevant for the required overall assessment. The two-stage review program is linked to disclosure obligations of the court dealing with a transfer request. According to the case law of the Court of Justice of the European Union, Art. 4 GRCh implies the obligation to examine in individual cases and provide additional information to determine whether the fundamental right of the person to be transferred from Art. 4 GRCh is observed ask for any additional information necessary regarding the conditions under which the person concerned is to be detained in that Member State. The issuing Member State is obliged to provide this information within the deadlines set by the requested Member State. If the existence of such a risk cannot be ruled out within a reasonable period of time, the court must decide whether to end the surrender procedure. These standards applied by the Court of Justice of the European Union when interpreting Art. 4 CFR are in line with Art. 1 Para. 1 GG both with regard to the minimum requirements for detention conditions in the requesting state and with regard to the associated disclosure obligations of the court dealing with the transfer request. A limitation of the primacy of application of Union law in the context of identity checks based on Article 79 (3) GG in conjunction with Article 1 (1) GG is therefore not prompted in the present context. According to these standards, the challenged decisions do not stand up to a constitutional examination because they did not sufficiently take into account the significance and scope of Art. 4 CFR and the associated disclosure obligations. A) The Court of Appeal has to weigh up the relevant conditions of detention as required in the second examination step The mere reference to the communicated minimum detention room size of 3 m² per person is not sufficient for the required overall assessment of the detention conditions, because the personal space available to the detainee is an important but not the only factor for their assessment. Even with a personal room in a communal cell of 3 m² or between 3 m² and 4 m², degrading and inhuman conditions of detention within the meaning of Art. 4 GRCh can exist if there are additional deficient detention conditions in addition to the lack of space. Due to its duty to inform, the Court of Appeal was therefore obliged to request additional information about the further conditions of detention from the Romanian authorities. The court also wrongly limited its examination to the first two prison regimes (quarantine and closed prison). In the required overall assessment of the conditions of detention, the Court of Appeal should have taken into account that in the event of a sufficiently probable transfer to the semi-open prison, permanent placement in a communal cell with a personal space of only 2 m² is incompatible with Art. 4 GRCh his duty to inform according to Art. 4 GRCh at the second examination level was also not fulfilled. Due to the problematic detention conditions, the General Public Prosecutor’s Office had requested additional information from the Romanian authorities and requested them to give a concrete guarantee for the execution of sentences in the event of a conviction of the complainant to 2. A reply from the Romanian authorities to the second information letter from the General Prosecutor’s Office was still pending. The Higher Regional Court was therefore obliged to set the Romanian authorities a specific deadline for submitting the additional information requested and to postpone the decision on the admissibility of the transfer until a response was received. If this had not happened within a reasonable period, the Higher Regional Court would have had to decide whether the transfer proceedings should have been ended.


EDITOR’S NOTE: This article is a translation. Apologies should the grammar and / or sentence structure not be perfect.

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