Ágoston Mohay, University of
Pécs Faculty of Law
Introduction
The EU legal order
is generally seen as a sui generis supranational
legal order, separate from both international law and national law. Within this
legal order, the protection of fundamental rights takes a prominent place:
based on Article 6 TEU, the EU’s fundamental rights architecture rests on three
pillars: 1) the Charter of Fundamental Rights of the European Union, 2) the
EU’s accession to the European Convention on Human Rights (ECHR), and 3) the
general principles of EU law based on the ECHR and the common constitutional
traditions of the Member States. As is known, Opinion 2/13 of the Court of Justice of the European Union
(discussed here)
deemed the first version of the ECHR accession agreement incompatible with EU
primary law. (A second
attempt will soon get underway) This does not affect of course the role of
the ECHR and the jurisprudence of the European Court of Human Rights (ECtHR) as
“sources of inspiration” of the general principles of EU law. In Case C-128/18 Dorobantu
however, the CJEU seems to introduce a new way of application for ECHR law, one
which arguably goes beyond the Court’s hitherto applied method.
Background and the main proceedings
In substantive
terms, the Dorobantu case revolves
around the grounds for refusal of the execution of a European arrest warrant
(EAW). In this regard it falls into the line of cases delivered by the CJEU in
recent years regarding limits on the execution of EAWs due to fundamental
rights and rule of law concerns, and can (and should) be analysed and evaluated
from that point of view as well. This short analysis will however focus not on
this issue, but on the CJEU’s reliance on and application of the ECHR and ECtHR
case law.
The case concerned the execution by a German
court (Higher Regional Court, Hamburg) of an EAW issued by a Romanian court in
respect of a Romanian citizen, Mr Dorobantu. Dorobantu was being sought by the
Romanian authorities for the purposes of conducting a criminal procedure
against him. The German court executing
the EAW, having regard to the CJEU’s Aranyosi
and Căldăraru judgment (discussed here),
proceeded to assess whether
as
regards the detention conditions, there are in the issuing Member State
deficiencies, which may be systemic or generalised, or which may affect certain
groups of people or certain places of detention, and, second, check whether
there are substantial grounds for believing that the person concerned will be
exposed to a real risk of inhuman or degrading treatment because of the
conditions in which it is intended that that person will be detained in that
State. (para 21)
The German court
was of the opinion (based inter alia
on relevant judgments of the ECtHR) that systemic and generalised deficiencies
in detention conditions were indeed discernible in Romania, however, the German
court also took into account the information communicated by the issuing
Romanian court and the Romanian justice ministry and finally concluded that the
surrender of Mr Dorobantu was legal, since detention conditions had been
improving in the issuing state, and since some measures had been implemented in
order to compensate detainees for the lack of personal space. The court also
took into account that should the execution of the EAW be refused, the offences
committed by Mr Dorobantu would remain unpunished, which would run counter to
the efficacy of judicial cooperation in criminal matters.
On the basis of the
German court’s orders, the surrender of Mr Dorobantu was authorised – the
surrender was to take effect once he had served his custodial sentence imposed
on him in Germany for other offences committed. When he was released however,
Mr Dorobantu lodged a constitutional complaint against the order of the German
court at the Federal Constitutional Court of Germany (Bundesverfassungsgericht).
The Federal Constitutional Court set aside the orders of the Hamburg Regional
Court for three reasons: 1) Mr Dorobantu’s right to be heard by a court or
tribunal established in accordance with the law as enshrined in the German
Basic Law had been infringed; 2) the criteria applied by the Hamburg court in
its assessment of detention conditions in Romania have not been expressly
accepted by the ECtHR as factors capable of compensating for a reduction of the
personal space available to detainees; 3) neither the CJEU nor the ECtHR had
previously ruled on the relevance of criteria relating to criminal justice
cooperation in the EU and to the need to avoid impunity for offenders as
factors relevant for deciding on the execution of an EAW. For these reasons the
Federal Constitutional Court remitted the case to the Hamburg court.
It was this court
that requested a preliminary ruling by the CJEU in order to ascertain the
requirements that arise under Article 4 of the EU Charter (which corresponds to
Article 3 ECHR: freedom for torture or other inhuman or degrading treatment,
which includes poor prison conditions according to case law) with respect to
detention conditions in the issuing Member State and the criteria to be used in
assessing whether those requirements have been met, especially in accordance
with Aranyosi and Căldăraru.
The Court’s judgment
In its preliminary
ruling request, the German court was enquiring about the minimum standards for
custodial conditions required under the EU Charter, and about the
interpretation of the concept of “real
risk” of inhuman or degrading treatment as used by the CJEU in Aranyosi and Căldăraru. The Court began
by a usual overview and reaffirmation of the EU’s fundamental rights system. It
underlined further the significance of mutual trust and mutual recognitions in
EU justice and home affairs law, and added that exceptional circumstances may
require limitations to be placed on these principles, especially in light of
its judgments in Aranyosi and Căldăraru,
Minister
for Justice and Equality (Deficiencies in the system of justice) (discussed here), and Generalstaatsanwaltschaft
(Conditions of detention in Hungary),
but only based on precise information. At this point, however, the CJEU
encountered a difficulty. The Hamburg court was looking for guidance on how to
assess conditions of detention as regards the personal space available to each
detainee – but EU law contains no rules on this issue.
So the CJEU got
creative: “On that basis, it must be noted that the Court has relied — having
regard the considerations referred to in paragraph 58 of the present judgment,
and in the absence, currently, of minimum standards in that respect under EU
law — on the case-law of the European Court of Human Rights in relation to
Article 3 of the ECHR and, more specifically, on the judgment of 20 October
2016, Muršić v. Croatia…” (para 71). Paragraph 58 states:
“…it must, as a preliminary point, be recalled that, in accordance with the
first sentence of Article 52(3) of the Charter, in so far as the right set out
in Article 4 of the Charter corresponds to the right guaranteed by Article 3 of
the ECHR, its meaning and scope are to be the same as those laid down by the
ECHR. In addition, the explanations relating to the Charter make clear, with
respect to Article 52(3), that the meaning and the scope of the rights
guaranteed by the ECHR are determined not only by the text of the ECHR, but
also by the case-law of the European Court of Human Rights and by that of the
Court of Justice of the European Union.”
In the following,
the CJEU conducted an analysis of the necessary minimum space based on Muršić v. Croatia, supported partly by
its own judgment in Generalstaatsanwaltschaft,
and concluded that Mr Dorobantu should, once surrendered, be detained in a
prison regime that would enable him to enjoy significant freedom of movement
and also to work, which would limit the time spent in a multi-occupancy cell,
and left it to the referring court to verify that information and to assess any
other relevant circumstances for the purposes of the analysis it is required to
make.
(As regards the
other questions of the referring court, the CJEU held that a real risk of
inhuman or degrading treatment cannot be ruled out merely because the person
concerned has, in the issuing Member State, access to a legal remedy; it
furthermore found that the real risk of inhuman or degrading treatment cannot be weighed “against
considerations relating to the efficacy of judicial cooperation in criminal
matters and to the principles of mutual trust and recognition.”)
Commentary
The ECHR – to which
all EU Member States are parties – has long played an important role in the
fundamental rights architecture of the EU: since the 1970s, it has been referenced
by the CJEU as an important source of inspiration for the general principles of
EU law, and given the fact that the EU Charter only received legal binding
force in 2009 via the Treaty of Lisbon, its significance cannot be overestimated:
the CJEU has been relying on the ECHR and the case law of the ECtHR (alongside
the common constitutional traditions of the Member States) for decades as
guidelines for developing its own jurisprudence on fundamental rights as
unwritten principles of EU law, a concept which was recognized and supported by
a joint
declaration of the European Parliament, the Council and the Commission
already in 1977. Thus reliance on the ECHR, the “benchmark” in European human
rights protection is of course nothing new, and even though the Lisbon Treaty
endowed the Charter of Fundamental Rights of the EU with legal binding force,
the continuing parallel existence of the general principles in the post-Lisbon
era is expressly recognized by Article 6(3) TEU. Moreover, Article 52(3) of the
Charter refers back to the ECHR.
What can however be
considered new is the method by which the CJEU introduced a direct application
of Article 3 ECHR as interpreted by Muršić
v. Croatia. Interestingly, the judgment makes no mention at all of the
general principles of EU law and does not reference its own jurisprudence
regarding how the ECHR may have an indirect relevance in EU law. In Dorobantu, the EU court saw no reason to
reference the general principles of EU law as the intermediary through which
the ECHR can have an effect in the EU legal order.
Granted, the CJEU
references the ECHR for other purposes as well, mainly to support elements of
its argumentation, but again in a sense which cannot be regarded as direct
application. To make some comparisons: In its landmark judgment in N.
S. and M. E. (finding that asylum-seekers who were the responsibility
of Greece under the Dublin system faced an Article 4 Charter risk there), the
CJEU referenced the EctHR’s M. S. S. judgment, but did so in order
to pinpoint notable similarities and more importantly to argue that national courts
in the EU did not lack the means to assess fundamental rights compliance of
other Member States in the context of Dublin procedures; it further cited the
case to compare the scope of relevant rights under the Charter and the ECHR. (It
is true of course that rules on the Dublin procedure were definitely not
lacking in EU law, so the situation was not entirely the same.) In the aforementioned
Aranyosi and Căldăraru case, the CJEU
referenced the ECHR and ECtHR jurisprudence to argue that the right enshrined
in Article 4 of the EU Charter was absolute, as it corresponded to Article 3
ECHR from which no derogation is possible under Article 15(2) ECHR. (Perhaps it
is also worth noting that the referencing German court was prompted to initiate
a preliminary ruling procedure partly by the ECtHR judgment in Varga
and others v. Hungary.)
Furthermore, since Kamberaj
it is known that the ECHR does not “enjoy the benefits” of direct effect and
primacy of application over national law by virtue of Article 6 (3) TEU, as the
TEU does not govern the relationship between the ECHR and the Member States’
legal systems, and thus it cannot have the effect of transforming the ECHR into
a directly applicable quasi-EU law norm with primacy over national law. Based
on Kamberaj it can thus be ruled out
that the ECHR was applied in Dorobantu
via the principles of direct effect and primacy.
Even though the
method utilised by the Court of Justice in Dorobantu
is new in the context of the ECHR, it does bring to mind a similar method the
Court applied in Poulsen
and Diva Navigation. In the fisheries-related dispute, a national court
was asking the CJEU (among other things) whether EU law (Community law at the
time) contained any provisions on the situation of distress. Apparently it did
not, and the Court pointed the national court towards international law, by
proclaiming that “[i]n those circumstances, it is for the national court to
determine, in accordance with international law, the legal consequences which
flow (…) from a situation of distress involving a vessel from a non-member
country.”
As research
has shown, the CJEU tends to cite the ECHR and the case law of the ECtHR less
frequently since the entry into force of the Lisbon Treaty. Since the CJEU’s –
heavily autonomy-centric and much discussed
– Opinion 2/13, the EU’s accession to the ECHR stalled, at least until
recently. Time will tell if this novel method of reference used in Dorobantu (by the Grand Chamber no less)
catches on and whether the Court will tend to rely on it as a temporary stand-in
until formal ECHR accession eventually happens. In any case the Dorobantu
judgment also underlines the relevance and significance of judicial
dialogue between European courts.
Dorobantu is also important more
generally as regards the relationship between international law and EU law and
the applicability of international law norms within the EU legal order. This
recent judgment seems to fall into the line of cases (such as Haegeman,
Racke,
ATAA
or Front
Polisario, discussed here) that demonstrate a strong Völkerrechtsfreundlichkeit (or a monist
approach, if you will) on behalf of the CJEU and seem at odds with judgments
based on an more autonomy-centric (or dualist) approach (such as Kadi,
Achmea
or indeed Opinion 2/13).
On a final note,
one cannot but note the slight irony in the following. In Opinion 2/13, the CJEU found it problematic that the EU Member
States could take each other to court in Strasbourg for the infringement of the
ECHR, whereas EU law on the other hand required them to rely amongst themselves
on the principle of mutual trust. Now in yet another judgment regarding the EAW,
the CJEU (similarly as it did in Aranyosi
and Căldăraru, Minister for Justice
and Equality, and Generalstaatsanwaltschaft)
has relied – one way or another – on the ECtHR jurisprudence to underline the
existence of exceptional circumstances under which Member States are required
to derogate from the principle of mutual trust.
Barnard &
Peers: chapter 9, chapter 25
Photo credit: via Wikicommons
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