Execution of a European arrest warrant and inhuman and degrading treatment!
JUDGMENT
Bivolaru and Moldovan v. France 25.03.2021 (app.no. 40324/16 and 12623/17)
SUMMARY
The case concerned the applicants’ surrender by France to the Romanian authorities under
European arrest warrants (EAWs) for the purpose of execution of their prison sentences. The case
prompted the Court to clarify the conditions for application of the presumption of equivalent
protection in such circumstances.
The Court held that the presumption of equivalent protection applied in Mr Moldovan’s case in so
far as the two conditions for its application, 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 (EU) law, were met. The Court therefore confined itself
to ascertaining whether or not the protection of the rights guaranteed by the Convention had been
manifestly deficient in the present case, such that this presumption was rebutted. To that end it
sought to determine whether there had been a sufficiently solid factual basis requiring the executing
judicial authority to find that execution of the EAW would entail a real and individual risk to the
applicant of being subjected to treatment contrary to Article 3 on account of his conditions of
detention in Romania.
The Court noted that Mr Moldovan had provided evidence of the alleged risk that was sufficiently
substantiated to require the executing judicial authority to request additional information and
assurances from the issuing State regarding his future conditions of detention in Romania. The Court
found a violation of Article 3 in so far as it appeared that the executing judicial authorities, in
exercising their powers of discretion, had not drawn the proper inferences from the information
obtained, although that information had provided a sufficiently solid factual basis for refusing
execution of the EAW in question.
In Mr Bivolaru’s case the Court considered that, owing to its decision not to request a preliminary
ruling from the Court of Justice of the European Union (CJEU) on the implications for the execution
of an EAW of the granting of refugee status by a member State to a national of a third country which
subsequently also became a member State, the Court of Cassation had ruled without the full
potential of the relevant international machinery for supervising fundamental rights having been
deployed. The presumption of equivalent protection was therefore not applicable.
There were two aspects to Mr Bivolaru’s complaint: the first concerning the implications of his
refugee status, and the second concerning conditions of detention in Romania.
There was nothing in the file before the executing judicial authority or the evidence adduced by the
applicant before the Court to suggest that he would still face a risk of persecution on religious
grounds in Romania in the event of his surrender. The Court considered that the executing judicial
authority, following a full and in-depth examination of the applicant’s individual situation which
demonstrated that it had taken account of his refugee status, had not had a sufficiently solid factual
basis to establish the existence of a real risk of a breach of Article 3 of the Convention and to refuse
execution of the EAW on that ground.
The Court also considered that the description of conditions of detention in Romanian prisons
provided by the applicant to the executing judicial authority in support of his request not to execute
the EAW 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.
In the Court’s view, the executing judicial authority had not been obliged to request additional
information from the Romanian authorities. Accordingly, it held that there had not been a solid
factual basis for the executing judicial authority to establish the existence of a real risk of a breach of
Article 3 of the Convention and to refuse execution of the EAW on those grounds.
PROVISION
Article 3
PRINCIPAL FACTS
The applicants, Gregorian Bivolaru and Codrut Moldovan, are two Romanian nationals.
In June 2015 Mr Moldovan was sentenced by the Mures District Court (Romania) to seven years and
six months’ imprisonment for human trafficking offences committed in 2010 in Romania and France.
He returned to France after his trial. On 29 April 2016 the Romanian authorities issued a European
arrest warrant (EAW) in respect of Mr Moldovan for the purpose of enforcing that prison sentence.
In June 2016 the applicant, who had been placed under court supervision requiring him to report
once a week to the Clermont-Ferrand police, was arrested and the EAW was served on him. In
proceedings before the Investigation Division of the Riom Court of Appeal he argued that his
surrender could not take place until the Investigation Division had requested and obtained
additional information about his future conditions of detention in Romania. The Investigation
Division made the relevant request in order to assess whether there existed a real risk of inhuman or
degrading treatment. After obtaining the information it held, in a judgment of 5 July 2016, that there
was no obstacle to Mr Moldovan’s surrender.
The applicant lodged an appeal on points of law against that judgment which was dismissed on
10 August 2016. On 26 August 2016 he was surrendered to the Romanian authorities pursuant to
the EAW.
Mr Bivolaru, the leader of a spiritual yoga movement since the 1990s, was the subject of criminal
proceedings in Romania in 2004. In 2005 he travelled to Sweden, where he applied for political
asylum and was issued with a refugee’s permanent residence permit, with which he was allowed to
travel as from 2007. In a judgment of 14 June 2013 the Romanian High Court of Cassation and Justice
sentenced him in absentia to six years’ imprisonment on charges of sexual relations with a minor. On
17 June 2013 the Sibiu County Court issued an EAW with a view to the enforcement of that
sentence.
In February 2016 Mr Bivolaru was arrested in Paris while travelling under an assumed identity using
false Bulgarian identity papers. In proceedings before the Investigation Division of the Paris Court of
Appeal he challenged the execution of the EAW, arguing that the fact that he had been granted
refugee status by Sweden, and the political and religious grounds for his conviction in Romania,
placed him at risk of inhuman and degrading treatment and thus constituted an absolute bar to his surrender. The Investigation Division ordered further enquiries. The Swedish authorities provided more detailed information, specifying, among other things, that they had not instituted proceedings
to have Mr Bivolaru’s refugee status withdrawn.
On 8 June 2016 the Investigation Division ordered Mr Bivolaru’s surrender to the Romanian judicial
authorities. It found, in particular, that the applicant’s surrender had been requested for the
purpose of his serving a sentence for an ordinary offence, and it inferred from the Court’s case-law
that the applicant’s assertion that he had been convicted on account of his political views was
merely an allegation. It also found that it was not its task to determine whether the applicant faced
a real risk of inhuman or degrading treatment on account of the conditions of detention in Romania.
Mr Bivolaru lodged an appeal on points of law against that judgment. The Court of Cassation
dismissed his appeal on 12 July 2016, ruling that the fact that he had been granted refugee status by
Sweden did not preclude execution of the EAW.
On 13 July 2016, under Rule 39 of the Rules of Court, Mr Bivolaru requested a stay of execution of
his surrender to the Romanian authorities. On 15 July 2016 the Court refused the request. One week
later Mr Bivolaru was transferred to Romania pursuant to the EAW and was imprisoned. He was
granted conditional release on 13 September 2017.
Relying on Article 3 (prohibition of inhuman or degrading treatment) of the Convention, the
applicants submitted that their surrender to the Romanian authorities under the EAWs placed them
at risk of treatment in breach of the Convention.
THE DECISION OF THE COURT…
Article 3
When applying international law the Contracting States remained bound by the obligations they had
entered into on acceding to the European Convention on Human Rights. A measure taken for the
purposes of fulfilling international legal obligations had to be deemed justified where the
organisation in question conferred on fundamental rights at least an equivalent or comparable level
of protection to that guaranteed by the Convention. If the organisation was considered to provide
equivalent protection, the presumption would be that a State had not departed from the
requirements of the Convention when it had done no more than implement legal obligations flowing
from its membership of the organisation.
The Court had to verify whether the conditions for application of the presumption of equivalent
protection were met in the circumstances of the case before it. If so, it had to be satisfied that the authority executing the EAW had established that the latter would not render the protection of the rights guaranteed by the Convention manifestly deficient. If this was not established and the
conditions for application of the presumption of equivalent protection were not fully met, the Court
had to review the manner in which the executing judicial authority had sought to ascertain whether
there was a real and individualised risk of a breach of the rights protected by the Convention in the
event of execution of the EAW. It had to determine the issue whether the applicant’s surrender was
contrary to Article 3.
Mr Moldovan
With regard to the first condition of application of the presumption of equivalent protection, namely
the absence of any margin of manoeuvre on the part of the national authorities, the Court noted
that the legal obligation on the judicial authority executing the EAW stemmed from the relevant
provisions of Framework Decision 2002/584/JHA, as interpreted by the CJEU since its judgment in
Aranyosi and Căldăraru. As the CJEU’s case-law currently stood, the executing judicial authority was
permitted to derogate, in exceptional circumstances, from the principles of mutual trust and mutual
recognition between member States by postponing or even, where appropriate, refusing execution
of the EAW. In ruling on the applicant’s challenge to execution of the EAW on the grounds that it
would expose him to a risk of being detained in Romania in conditions contrary to Article 4 of the
Charter of Fundamental Rights, the executing judicial authority had been required to assess the
existence of the systemic shortcomings in the issuing member State alleged by the applicant and
then, as appropriate, to carry out a specific and detailed examination of the individual risk of
inhuman and degrading treatment which the applicant would face in the event of his surrender.
The Court noted the convergence between the requirements laid down by the CJEU and those
arising out of its own case-law with regard to the establishment of a real and individual risk. It
followed that the Investigation Division should have refused execution of the EAW if, after carrying
out the aforementioned assessment, it found that substantial grounds had been shown for believing
that the applicant, if surrendered, would in fact face a risk of inhuman and degrading treatment on
account of his 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 European Union 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 result in non-application of the presumption of equivalent protection.
As to the second condition for application, namely deployment of the full potential of the
supervisory mechanism provided for by EU law, the Court noted that no serious difficulty arose, in
the light of the CJEU’s case-law, with regard to the interpretation of 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 for application of the presumption
of equivalent protection should therefore be considered to have been satisfied. In view of the
foregoing, the Court held that the presumption of equivalent protection was applicable in the
present case.
Accordingly, the Court had to ascertain whether the protection of the rights guaranteed by the
Convention had been manifestly deficient in the present case, such that this presumption was
rebutted. If that were the case, the interest of international cooperation would be outweighed by
observance of the Convention as a “constitutional instrument of European public order” in the field
of human rights. To that end the Court would seek to determine whether or not there had been a
sufficiently solid factual basis requiring the executing judicial authority to find that execution of the EAW would entail a real and individual risk to the applicant of being subjected to treatment contrary to Article 3 on account of his conditions of detention in Romania.
The Court observed at the outset that in the proceedings before the domestic courts the applicant
had produced evidence of systemic or generalised failings in the prisons of the issuing State. It noted
the weighty and detailed nature of the evidence adduced before the Investigation Division and
subsequently before the Court of Cassation, pointing to shortcomings in the Romanian prison system
and in particular in Gherla Prison, where the Romanian authorities intended to place the applicant.
The Court also noted the measures taken by the domestic judicial authority, which had requested
additional information from the Romanian authorities. In the light of the details obtained in the
course of that exchange of information, the executing judicial authority had taken the view that
execution of the EAW would not entail a risk of a breach of Article 3 in the applicant’s case. For its
part the Court considered that there had been a sufficient factual basis for the authority in question
to find that such a risk existed.
Firstly, the Court considered that the information provided by the issuing State had not been placed
sufficiently within the context of the Court’s case-law, in particular with regard to the situation in
Gherla Prison, where the applicant was reportedly to be detained. The Court reiterated that,
according to its case-law, 3 sq. m of floor surface per prisoner in a multi-occupancy cell was the
applicable minimum standard for the purposes of Article 3 of the Convention. The Court held that
the information available to the executing judicial authority concerning the personal space that
would be allocated to the applicant had given rise to a strong presumption of a breach of Article 3.
Secondly, the Court observed that the assurances provided by the Romanian authorities concerning
the other aspects of the conditions of detention in Gherla Prison, which were allegedly capable of
discounting the existence of a real risk of a breach of Article 3, had been described in stereotypical
fashion and had not been included in the executing judicial authority’s assessment of the risk.
Thirdly, the Court considered that, even though the Romanian authorities had not ruled out the
possibility that the applicant might be held in a prison other than Gherla Prison, the precautions
taken by the executing judicial authority in that regard, in the form of a recommendation that the
applicant should be held in a prison that provided identical if not better conditions, were inadequate
to guard against a real risk of inhuman and degrading treatment.
Consequently, the Court held that there had been a sufficiently solid factual basis, deriving in
particular from the Court’s own case-law, for the executing judicial authority to establish the
existence of a real risk to the applicant of being exposed to inhuman and degrading treatment on
account of his conditions of detention in Romania, such that it could not simply defer to the
statements made by the Romanian authorities. The Court inferred from this that in the specific
circumstances of this case the protection of fundamental rights had been manifestly deficient, with
the result that the presumption of equivalent protection was rebutted.
The Court found a violation of Article 3 of the Convention.
Mr Bivolaru
Mr Bivolaru’s complaint under Article 3 comprised two aspects: the first concerning the implications
of his refugee status, and the second concerning conditions of detention in Romania.
With regard to the application of the presumption of equivalent protection, the Court noted that the Court of Cassation had rejected the applicant’s request to seek a preliminary ruling from the CJEU 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.
The Court considered that, owing to its decision not to refer the matter to the CJEU, 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. In
view of that decision and of the importance of the issues at stake, the presumption of equivalent
protection did not apply.
Accordingly, it fell to the Court to review the manner in which the executing judicial authority had
sought to ascertain whether there existed a real risk that the applicant would be subjected to
persecution on account of his political and religious beliefs if the EAW were to be executed. It had to
determine whether there had been a sufficiently solid factual basis requiring the executing judicial
authority to find that execution of the EAW would entail a real and individual risk to the applicant of
being subjected to treatment contrary to Article 3 and to refuse execution of the EAW on that
ground.
The Court observed that in the domestic proceedings the applicant, in seeking to demonstrate the
existence of a real risk of inhuman and degrading treatment in the event of execution of the EAW,
had relied primarily on his refugee status under the Geneva Convention and on the prohibition of
refoulement laid down in Article 33 of that Convention. In reviewing the observance of Article 3 the
Court noted that the Framework Decision on the European arrest warrant did not include any
grounds for non-execution relating to the refugee status of the person whose surrender was sought.
It stressed the fact that, in granting the applicant refugee status, the Swedish authorities had
apparently taken the view that there was sufficient evidence at that time that he was at risk of being
persecuted in his country of origin. In carrying out its review, the executing judicial authority had
considered that this status was a factor of which it had to take particular account. The Investigation
Division had exchanged information with the Swedish authorities seeking further details about the
applicant’s refugee status. The Swedish authorities had replied that they proposed to maintain the
applicant’s refugee status, but without examining whether the risk of persecution in his country of
origin persisted, ten years after that status had been granted.
There was nothing in the file before the executing judicial authority or in the evidence adduced by
the applicant before the Court to suggest that he would still face a risk of persecution on religious
grounds in Romania in the event of his surrender. The Court also noted that the executing judicial
authorities had verified that the request for execution of the EAW had not pursued a discriminatory
purpose, in particular on account of the applicant’s political views.
The Court therefore considered that the executing judicial authority, following a full and in-depth
examination of the applicant’s individual situation which demonstrated that it had taken account of
his refugee status, had not had a sufficient factual basis to establish the existence of a real risk of a
breach of Article 3 of the Convention and to refuse execution of the EAW on that ground.
Regarding the issue of conditions of detention in Romania, the Court observed that in the
proceedings before the domestic courts the applicant had merely complained in very general terms
about the treatment of political opponents in Romania, including in prison, and not about the
conditions of detention in Romanian prisons; as a result, the executing judicial authority had had
insufficient information in that regard.
Accordingly, the Court considered that the description of conditions of detention in Romanian
prisons provided by the applicant to the executing judicial authority in support of his request not to
execute the EAW 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.
The Court also noted that, in view of the role of the Court of Cassation, it had served no purpose to
rely for the first time before that court on the judgment in Aranyosi and Căldăraru in an attempt to
demonstrate the existence of the alleged structural shortcomings. In the Court’s view, there had been no obligation for the executing judicial authority to request additional information from the Romanian authorities on the applicant’s future place of detention, the conditions of detention and
the prison regime, for the purpose of identifying the existence of a real risk that he would be
subjected to inhuman and degrading treatment on account of his conditions of detention.
In these circumstances the Court held that there had not been a solid factual basis for the executing
judicial authority to identify the existence of a real risk of a breach of Article 3 of the Convention and
to refuse execution of the EAW on that ground.
Accordingly, the execution of the European arrest warrant had not entailed a violation of Article 3 of
the Convention.
Just satisfaction (Article 41)
The Court held that France was to pay Mr Moldovan 5,000 euros (EUR) in respect of non-pecuniary
damage and EUR 2,520 in respect of costs and expenses.
