Where there are systemic or general deficiencies in the detention conditions of the issuing state that are substantiated by objective, reliable, specific and properly updated information, the executing court must, in accordance with the ECJ's Aranyosi/Dorobantu case law, first obtain specific and precise information from the issuing authority about the actual detention conditions. If that information does not dispel any doubt that there is no risk of degrading treatment, the surrender must be postponed.
Significance for defense practice
In this decision, OLG Hamburg consistently applied the ECJ's Aranyosi/Dorobantu case law and postponed the surrender of a Romanian national after specific indications had emerged of systemic deficiencies in the detention conditions of the Romanian prisons under consideration. The decision is of considerable importance for extradition-law practice in Germany because it shows the conditions under which the fundamental right under Article 4 of the EU Charter (prohibition of inhuman or degrading treatment) sets limits to the principle of mutual trust between EU member states.
The Aranyosi/Dorobantu standard: a two-stage review
In the Aranyosi and Căldăraru judgments (C-404/15 and C-659/15) and in Dorobantu (C-128/18), the ECJ developed a two-stage review program. At the first stage, the question is whether systemic or general deficiencies in the detention conditions exist in the issuing state. Decisive here are judgments of the ECtHR against the issuing state for a violation of Article 3 ECHR, reports of the European Committee for the Prevention of Torture (CPT), and relevant case law of national courts on extraditions to that state.
At the second stage — provided the first is answered in the affirmative — the executing court must request specific information from the issuing authority about the detention conditions in the facility that is likely to receive the person. The surrender may be carried out only if that information establishes sufficient certainty that no degrading treatment is to be feared. Where that certainty is lacking, the surrender must be postponed — not necessarily refused outright, but provisionally suspended.
The situation in Romanian prisons
Romania is a textbook case for the Aranyosi/Dorobantu review: the ECtHR has condemned Romania in a large number of decisions for unacceptable overcrowding, deficient hygiene and inadequate medical care. The CPT has pointed to systemic deficiencies in several reports. OLG Hamburg relied on recent CPT reports as well as on decisions of other Higher Regional Courts and of the Federal Court of Justice (Bundesgerichtshof, BGH), which had likewise tightened the requirements for proof of adequate detention conditions in Romanian extradition requests.
In the specific case, the competent Romanian central authority had at first merely declared, in blanket terms, that the minimum standards would be observed. OLG Hamburg considered that declaration insufficient: under the ECJ standard, what is required is specific information about the intended detention facility — in particular the cell size per inmate, the occupancy level, the sanitary facilities and the medical care. General assurances are not enough.
Practical guidance for the extradition proceedings
For the defense in EAW proceedings, this decision yields a concrete line of action. As soon as an extradition request is received from a state that is under criticism over detention conditions — namely Romania, Bulgaria, Hungary, Poland (in certain constellations) and other states — the defense should point to the Aranyosi/Dorobantu review at an early stage and apply for specific detention-conditions information to be obtained. To that end it is advisable to compile the relevant CPT reports, ECtHR judgments and decisions of other Higher Regional Courts concerning the state in question.
In addition, the client's individual situation — health impairments, disabilities, mental illness — should be put forward, since these increase the risk of a fundamental-rights violation in the specific case and may tighten the requirements for the detention-conditions guarantees. In this decision, OLG Hamburg made clear that a superficial review is not enough and that the principle of mutual trust reaches its limits where it would lead to the toleration of fundamental-rights violations.
Significance for the principle of mutual trust
The decision also has a legal-policy dimension. The European Arrest Warrant and the underlying principle of mutual trust are fundamental instruments of the European area of criminal justice. Their workability presupposes that the member states actually uphold comparable fundamental-rights standards. Where this is not the case — as in the field of detention conditions in several Eastern European member states — the formal principle of trust must not give rise to an eyes-shut jurisprudence. With this decision, OLG Hamburg sends a clear signal that fundamental-rights protection in extradition proceedings is not a mere formality.