Bivolaru and Moldovan v. France

Information Note on the Court’s case-law 249

March 2021

Bivolaru and Moldovan v. France - 40324/16 and 12623/17

Judgment 25.3.2021 [Section V]

Article 3

Degrading treatment

Inhuman treatment

Surrender of an applicant to the Romanian authorities under a European arrest warrant where there was a real risk of inadequate conditions of detention: violation

Surrender of an applicant, recognised as a refugee by the Swedish authorities, to the Romanian authorities under a European arrest warrant in the absence of a real risk of persecution or inadequate conditions of detention: no violation

Facts – The French executing judicial authority executed two European arrest warrants under which it surrendered the applicants (both of Romanian origin but one of whom had been recognised as a refugee by the Swedish authorities) to the Romanian authorities for the purpose of serving prison sentences.

Law – Article 3 (second applicant)

(a)  Application of the presumption of equivalent protection – The application of the presumption of equivalent protection in the legal system of the European Union (EU) was subject to two conditions: the absence of any margin of manoeuvre on the part of the domestic authorities and the deployment of the full potential of the supervisory mechanism provided for by EU law. Firstly, the alleged violation of a right protected by the Convention had to stem from an international legal obligation of the respondent State in the execution of which the domestic authorities had no discretion or margin of manoeuvre. Secondly, the full potential of the mechanism provided for by EU law for supervising observance of fundamental rights, which the Court had recognised as affording equivalent human rights protection to that provided by the Convention, had to have been deployed.

The second condition for application of the presumption of equivalent protection had to be applied without excessive formalism and taking into account the specific features of the supervisory mechanism in question. It would serve no useful purpose to make the implementation of that presumption subject to a requirement for the domestic court to request a ruling from the Court of Justice of the European Union (CJEU) in all cases without exception, including those cases where no genuine and serious issue arose with regard to the protection of fundamental rights by EU law, or those in which the CJEU had already stated precisely how the applicable provisions of EU law should be interpreted in a manner compatible with fundamental rights.

With regard to the first condition, the requirement imposed by the CJEU for the existence of a real and individual risk to have been established in order for the executing judicial authority to be permitted to derogate from the principles of mutual trust and mutual recognition between member States by postponing, or even refusing, execution of a European arrest warrant was consistent with the Court’s case-law. The Court imposed an obligation on the national authorities to assess in concrete terms whether there was a real and individualised risk that the person concerned would be subjected to treatment contrary to Article 3 in the issuing State on account of his or her conditions of detention. However, this discretionary power on the part of the judicial authority to assess the facts and circumstances and the legal consequences which they entailed had to be exercised within the framework strictly delineated by the CJEU’s case-law and in order to ensure the execution of a legal obligation in full compliance with EU law, namely Article 4 of the Charter of Fundamental Rights, which guaranteed equivalent protection to that provided by Article 3 of the Convention. In those circumstances the executing judicial authority could not be said to enjoy an autonomous margin of manoeuvre in deciding whether or not to execute a European arrest warrant, such as to preclude application of the presumption of equivalent protection.

As to the second condition, no serious difficulty arose, in the light of the CJEU’s case-law, with regard to the interpretation of the 2002 Framework Decision on the European arrest warrant (“the Framework Decision”), and its compatibility with fundamental rights, capable of leading to the conclusion that a preliminary ruling should have been requested from the CJEU. The second condition had thus been satisfied.

The presumption of equivalent protection therefore applied in the present case.

(b)  Allegation that the protection of the rights guaranteed by the Convention was manifestly deficient – In its judgment in Romeo Castaño v. Belgium the Court had acknowledged that a real risk to the person whose surrender was sought of being subjected to inhuman and degrading treatment on account of his or her conditions of detention in the issuing State constituted a legitimate ground for refusing execution of the European arrest warrant and hence cooperation with that State.

The applicant had produced weighty and detailed evidence pointing to systemic or generalised shortcomings in the prisons of the issuing State. Nevertheless, in view of the information provided by the Romanian authorities, the executing judicial authority had discounted the existence of a risk of a breach of Article 3 in his case.

However, (i) the information provided by Romania had not been placed sufficiently in the context of the Court’s case-law concerning endemic overcrowding in the prison where the applicant was to be held, where he would have had between 2 and 3 sq. m of personal space; (ii) the other aspects, such as freedom to move around and out-of-cell activities, had been described in stereotypical fashion and had not been taken into account in the assessment of the risk; and (iii) the recommendation made by the executing judicial authority that the applicant should be held in an institution providing identical if not better conditions was insufficient to preclude a real risk of inhuman or degrading treatment, as it did not enable that risk to be assessed in relation to a specific institution and many prisons did not provide conditions of detention compatible with the Court’s standards.

Accordingly, the executing judicial authority had had a sufficiently solid factual basis, deriving in particular from the Court’s case-law, to establish the existence of a real risk to the applicant of being exposed to inhuman or degrading treatment on account of his conditions of detention in Romania, and thus could not simply defer to the statements made by the Romanian authorities. The protection of fundamental rights had therefore been manifestly deficient, such that the presumption of equivalent protection was rebutted.

Conclusion: violation (unanimously).

Article 3 (first applicant)

(a)  The applicant’s refugee status

(i)  Application of the presumption of equivalent protection – With regard to the second condition, the Court of Cassation had rejected the applicant’s request to refer the matter to the CJEU for a preliminary ruling on the implications for the execution of a European arrest warrant of the granting of refugee status by a member State to a national of a third country which subsequently also became a member State. This was a genuine and serious issue with regard to the protection of fundamental rights by EU law and its relationship with the protection afforded by the 1951 Geneva Convention, an issue which the CJEU had never previously examined. Accordingly, the Court of Cassation had ruled without the full potential of the relevant international machinery for supervising fundamental rights – in principle equivalent to that of the Convention – having been deployed. The presumption of equivalent protection therefore did not apply, and it was unnecessary to rule on the first condition.

(ii)  Whether the applicant’s surrender was contrary to Article 3 – It was not the Court’s task to rule on the relationship between the protection of refugees under the Geneva Convention and the EU’s legal rules, and in particular the Framework Decision. The scope of its review was confined to ascertaining whether or not, in the particular circumstances of the case, the execution of the European arrest warrant had entailed a violation of Article 3. Furthermore, the Convention and the Protocols thereto did not protect the right of asylum. Article 3 prohibited the return of any alien coming within the jurisdiction of a Contracting State to a State in which he or she faced a real risk of being subjected to inhuman or degrading treatment or even torture, and encompassed the prohibition of refoulement within the meaning of the Geneva Convention (N.D. and N.T. v. Spain [GC]). It was not for the Court to determine whether a decision to grant refugee status taken by the authorities of a State party to the Geneva Convention should be interpreted as conferring the same status on the person concerned in all the other States parties to that Convention (M.G. v. Bulgaria).

The Framework Decision did not include any grounds for non-execution relating to the refugee status of the person whose surrender was sought. Nevertheless, the Swedish authorities had taken the view that there was sufficient evidence that the applicant was at risk of being persecuted in his country of origin to justify granting him refugee status. The executing judicial authority had considered that this status was a factor of which it had to take particular account and which it had to reconcile with the principle of mutual trust, but which did not automatically constitute a derogation from that principle capable in itself of justifying a refusal to execute the European arrest warrant. Moreover, the executing judicial authorities had examined whether the applicant’s individual situation precluded his surrender to the Romanian authorities in the circumstances prevailing at the time of their decision (Shiksaitov v. Slovakia).

The Investigation Division had exchanged information with the Swedish authorities, who proposed to maintain the applicant’s refugee status, but without examining whether the risk of persecution in the applicant’s country of origin persisted ten years after that status had been granted.

Furthermore, the executing judicial authorities had found that the European arrest warrant did not pursue a political aim and that the sole fact that the applicant belonged to the Movement for Spiritual Integration into the Absolute (MISA) was insufficient to justify fears that his rights would be infringed in Romania on account of his opinions or beliefs (Amarandei and Others v. Romania). Hence, there was nothing to suggest that the first applicant, if he was surrendered, would still face a risk of persecution on religious grounds in Romania. There had therefore not been a sufficiently solid factual basis for the executing judicial authority to establish the existence of a real risk of a breach of Article 3 and to refuse execution of the European arrest warrant on that ground.

(b)  Risk of inhuman or degrading treatment on account of the conditions of detention in Romania

The conditions for application of the presumption of equivalent protection were satisfied in the circumstances of the present case.

The applicant’s description to the executing judicial authority of the conditions of detention had not been sufficiently detailed or substantiated to constitute prima facie evidence of a real risk of treatment contrary to Article 3 in the event of his surrender to the Romanian authorities. Thus, there had been no obligation for that authority to request additional information from the Romanian authorities concerning the applicant’s future place of detention, the conditions of detention or the prison regime. There had not been a solid factual basis for the executing judicial authority to establish the existence of a real risk of a violation of Article 3 and to refuse execution of the European arrest warrant on that ground.

Conclusion: no violation (unanimously).

Article 41: EUR 5,000 to the second applicant in respect of non-pecuniary damage.

(See also Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], 45036/98, 30 June 2005, Legal summary ; M.G. v. Bulgaria, 59297/12, 25 March 2014, Legal summary ; Amarandei and Others v. Romania, 1443/10, 26 April 2016 ; Romeo Castaño v. Belgium, 8351/17, 9 July 2019, Legal summary ; N.D. and N.T. v. Spain [GC], 8675/15 and 8697/15, 13 February 2020, Legal summary ; Shiksaitov v. Slovakia, 56751/16 and 33762/17, 10 December 2020, Legal summary)

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This summary by the Registry does not bind the Court.

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