KKO:2021:24 - Significance of assurances given by the authorities of the Member State issuing the European arrest warrant

Diary number R2021/153
Issued on 16 April 2021
ECLI:FI:KKO:2021:24

Background of the case and the issue at hand

The public prosecutor has requested that A, a Romanian national, be surrendered to Romania for purposes of execution of a five-year term of imprisonment and a three-year supplementary sentence. A has contested the surrender. The issue before the Supreme Court was whether the request for the surrender of A to Romania was to be approved, or denied in accordance with section 5(1)(6) of the Act on Surrender Procedures between Finland and Other Member States of the European Union (EU Surrender Act). The decision turned on whether A was under threat of inhuman or degrading treatment owing to the inadequacy of prison conditions, taking due note of the information on prison conditions provided by Romanian judicial authorities and the assurances given by Romanian authorities.

Inhuman or degrading treatment as grounds for denial

The European arrest warrant is based on the principle of mutual recognition and on trust among the Member States in that all of them are able to safeguard fundamental rights equally and effectively. In its case-law, the Court of Justice of the European Union has held that the mere existence of evidence that there are deficiencies with respect to detention conditions in the Member State issuing the arrest warrant does not necessarily imply that the individual specifically concerned will be subjected to inhuman or degrading treatment in the event of surrender to the authorities of that State. When considering surrender, the executing judicial authority is bound to determine, specifically and precisely, whether there are substantial grounds for believing that the individual concerned will run a real risk of being subjected to inhuman or degrading treatment owing to the prison conditions in the Member State issuing the arrest warrant. The determination must be based on evidence on prison conditions that is objective, reliable, specific, and properly updated. (See Case Dorobantu, paras. 54 and 55 and the case-law referred to therein).

In its case-law, the Court of Justice of the European Union has considered the minimum criteria for prison conditions as regards the personal space available to the detainee and other circumstances in the light of the criteria set in the judgment of the Grand Chamber of the European Court of Human Rights in the case of Muršić v. Croatia on 20 October 2016 (Judgment 25 July 2018, Generalstaatsanwaltschaft, C-220/18 PPU, EU:C:2018:589, paras. 91–93, and Dorobantu, paras. 71–77). In the Muršić case (para. 124), the Court of Human Rights has held that when the personal space available to a detainee falls below 3 sq.m. of floor surface in multi-occupancy accommodation in prison, there is a strong presumption of a violation of Article 3 ECHR. In its recent case-law, the European Court of Human Rights has held that in the context of the European arrest warrant, the assessment of prison conditions is to proceed in accordance with the case-law of the Court of Justice of the European Union (Case of Bivolaru and Moldovan v. France, 25 March 2021, para. 114).

Also the Supreme Court has held in its ruling KKO 2020:25 that, in accordance with the case-law of the European Court of Human Rights, an allocated personal space of less than 3 sq.m. in a “semi-open” prison system gave rise to a strong presumption of a violation of Article 3 ECHR and a corresponding violation of Article 4 of the European Charter of Fundamental Rights.

Request for supplementary information from the Member State issuing the arrest warrant

If the judicial authority that is to execute the arrest warrant has information that indicates that there are deficiencies in the prison system of the Member State issuing the arrest warrant, that judicial authority must request supplementary information from the judicial authority that issued the warrant. The supplementary information must be supplied within the time limit set in the request and, where necessary, the judicial authority that issued the arrest warrant must seek the assistance of the central authority as referred to in Article 7 of the Framework Decision. The Court of Justice of the European Union has held that 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 a risk of the individual being exposed, because of the conditions for his detention in the issuing Member State, to inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State. 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. (See Judgment of 5 April 2016, Cases of Aranyosi and Căldăraru, C-404/15 and C 659/15 PPU, EU:C:2016:198, para. 104.)

Significance of assurances given by the authorities of the Member State issuing the arrest warrant

The Court of Justice of the European Union has held that the issuing judicial authority may give assurances concerning the conditions in which the person concerned will be detained in the issuing Member State. The Court of Justice has noted that a failure to give effect to such an assurance may be relied on before the courts of the issuing Member State. (See case Generalstaatsanwaltschaft, paras. 110-111.)

According to the case-law of the Court of Justice of the European Union, the executing authority must on first hand rely on the assurance of the issuing Member State that the person concerned will not suffer inhuman or degrading treatment on account of the actual and precise conditions of that person’s detention, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of Article 4 of the Charter of Fundamental Rights. The Court of Justice has emphasised that the assurance must be relied on when it has been given, or at least endorsed, by the issuing judicial authority after requesting the assistance of the central authority, as referred to in Article 7 of the Framework Decision. (See case Generalstaatsanwaltschaft, para. 112 and case Dorobantu, para. 68.)

Only in exceptional circumstances, and on the basis of precise information, can the executing judicial authority find that, notwithstanding an assurance, 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, because of the conditions of that person’s detention in the issuing Member State (case Dorobantu, para. 69).

The Court of Justice of the European Union has held that, where the guarantee that an assurance represents is not given by a judicial authority, it must be evaluated by carrying out an overall assessment of all the information available to the executing judicial authority (case Generalstaatsanwaltschaft, para. 114).

Assessment and conclusions by the Supreme Court

General accounts on detention conditions in Romania indicate that Romanian prisons are overcrowded. Also the European Court of Human Rights has held, in several judgments pertaining to detention conditions in Romania, that there is overcrowding and also other inadequate detention conditions (see Rezmiveș and others v. Romania 25 April 2017, para. 106 and the cases referred to therein). The Court of Human Rights has made findings of violations of Article 3 ECHR.

The information available on detention conditions in Romania has made it necessary to obtain more precise accounts from Romania in view of the case-law, discussed above, requiring the determination of possible denial of surrender of A to be based on evidence on prison conditions that is objective, reliable, specific, and properly updated.

The first accounts provided by Romanian judicial authorities on 24 December 2020 have outlined the conditions in the prisons where A would be accommodated. It appears from the accounts that the personal space reserved for A in the semi-open Focșan prison would be less than 3 sq.m. Referring to the case-law of the Court of Justice of the European Union and the European Court of Human Rights, the Supreme Court has held that personal space of less than 3 sq.m. gives rise to a presumption of a violation of Article 3 ECHR and Article 4 of the Charter of Fundamental Rights. Hence, the public prosecutor has had a valid reason to request a specific assurance from Romanian judicial authorities guaranteeing that A will be provided personal space that meets the minimum requirements.

As the competent central authority, the Romanian Ministry of Justice has on 7 February 2021 delivered an assurance issued by the detention authority in response to the request by the public prosecutor. As has been described above, the issuing judicial authority must, where necessary, request the assistance of its central authority in order to have the assurance delivered. As a result, the assurance is by its nature one that is to be deemed reliable in accordance with the case-law of the Court of Justice of the European Union.

It is stated in the assurance that A will be ensured personal space of 3 sq.m. also in the semi-open Focșan prison. It is noted that the assurance is sui generis and pertains solely to the case at hand. The assurance has been addressed to Finnish judicial authorities and it makes reference to the request made by Finland. Taking due note of its contents, the reliability of the assurance is not compromised by the public prosecutor having in the request mentioned an assurance that Romanian authorities have earlier delivered to Swedish judicial authorities. The Supreme Court notes that there has been a reason to mention the earlier assurance, as the arrest warrant has pertained to the same individual and the same criminal offences and as A had already been ordered to be surrendered from Sweden, but had evaded the execution of the surrender by travelling to Finland.

As has been described above, the Court of Justice of the European Union has held that it is only in exceptional circumstances, and on the basis of precise information, that the executing judicial authority can find that, notwithstanding an assurance, 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 of Fundamental Rights, because of the conditions of that person’s detention in the issuing Member State.

The accounts and the assurance provided by Romanian authorities do not deny that, in general, there are deficiencies in Romanian prison conditions. That said, the Supreme Court holds that the accounts and the assurances provided by Romanian authorities constitute adequate evidence for the assessment of the risk that A will be subjected to inhuman or degrading treatment. The assurance provided by Romanian authorities has been issued solely for the case at hand and it contains a specific guarantee that accommodation will be rearranged so that A will have private personal space of 3 sq.m. also in the Focșan prison.

In addition to the assurance, the Romanian judicial authority issuing the arrest warrant has in its accounts of 24 December 2020 provided a detailed description of the conditions for A in the Bacӑu and Focșan prisons. The description has covered e.g., the hygienic and sanitary conditions in the prisons and matters pertaining to the health care and social support of the detainees. The Supreme Court holds also that the other general information on overcrowding in the Bacӑu and Focșan prisons or on the other conditions there does not indicate that there are such exceptional circumstances and specific information that would give rise to a finding that there is a real risk of A being subjected to inhuman or degrading treatment in Romania within the meaning of Article 4 of the Charter of Fundamental Rights.

Accordingly, the Supreme Court holds that there are no grounds, as referred to section 5(1)(6) of the EU Surrender Act, to deny the surrender of A to Romania.

The surrender of A to Romania is allowed.