The ECHR Ruling of March 25, 2021 in the case "Bivolaru and Moldovan v. France" (aplications N 40324/16 and 12623/17).
In 2016 and 2017, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were united and communicated to France.
The case successfully examined aplications about the extradition of the applicants to the authorities of their country of origin in order for the applicants to serve prison sentences. The case involved a violation of the requirements of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The Judicial Executive body of France executed two European arrest warrants, according to which it extradited the applicants (both were of Romanian origin, while one of them was recognized by the Swedish authorities as a refugee) to the Romanian authorities in order to serve their prison sentences.
Regarding compliance with article 3 of the Convention.
- The second applicant (M. Moldovan)
(a) Application of the presumption of equivalent protection. The application of the presumption of equivalent protection in the legal system of the European Union (hereinafter referred to as the EU) was possible under two conditions: the absence of any room for maneuver on the part of domestic authorities and the use of the full potential of the supervisory mechanism provided for by EU legislation. Firstly, the alleged violation of a right protected by the Convention should have stemmed from an international legal obligation of the respondent State, in the performance of which the authorities had no discretionary powers or room for maneuver. Secondly, it was necessary to use the full potential of the mechanism provided for by EU legislation to monitor the observance of fundamental rights, which, as recognized by the European Court, provided human rights protection equivalent to that provided for by the Convention.
The second condition for applying the presumption of equivalent protection should have been applied without excessive formalism and taking into account the peculiarities of the supervisory mechanism under consideration. It would be pointless to make the implementation of this presumption dependent on the presentation to the domestic court of the requirement to request, in all cases without exception, a preliminary order of the Court of the European Union (hereinafter - the EU Court), including in the absence of genuine and serious problems in connection with the protection of fundamental rights by EU legislation or in cases where the EU Court has already indicated exactly how to interpret the applicable provisions of EU legislation in accordance with fundamental rights.
As for the first condition, the requirement provided by the EU Court of Justice to establish the existence of a real and concrete risk in order for the judicial authority executing the warrant to depart from the principles of mutual trust and mutual recognition between EU Member States by postponing or even refusing to execute the European arrest warrant was consistent with the case law of the European Court. It imposes an obligation on the authorities to assess, in specific circumstances, whether there is a real and individualizable risk that a certain person will be subjected to treatment contrary to article 3 of the Convention in the State that issued the arrest warrant, taking into account the conditions of that person's detention. However, the discretionary power of the judicial authority to assess the facts and circumstances, as well as the legal consequences that they entail, should have been exercised within the framework strictly defined by the case law of the EU Court, and in order to ensure the fulfillment of the legal obligation in full compliance with EU law, namely article 4 of the Charter of the European Union on Fundamental Rights, which guarantees protection equivalent to that provided for in Article 3 of the Convention. In such circumstances, it cannot be assumed that the judicial executive body executing the arrest warrant has an autonomous space for maneuver when deciding whether to execute this warrant or not, for example, in order to exclude the use of the presumption of equivalent protection.
As for the second condition, taking into account the case-law of the EU Court, there were no serious difficulties regarding the interpretation of the Framework Decision on the European Arrest Warrant of 2002 (hereinafter referred to as the Framework Decision) (Framework Decision of the Council of the EU of June 13, 2002 N 2002/584/LDPE on the European Arrest Warrant and procedures for the transfer of persons between EU Member States.) and its compatibility with fundamental rights, which could lead to the conclusion that it is necessary to request a preliminary order of the EU Court. Thus, the second condition was fulfilled.
Consequently, the presumption of equivalent protection was applied in the present case.
(b) The claim that the protection of the rights guaranteed by the Convention had obvious shortcomings. In the Judgment in the case "Romeo Castaño v. Belgium" (dated July 9, 2019, complaint No. 8351/17), the European Court recognized that the real risk for the person whose extradition was requested to be subjected to inhuman and degrading treatment, taking into account the conditions of his detention in the State that issued the warrant for his arrest, is a legitimate reason for refusing to execute this warrant and, consequently, from cooperation with this State.
The second applicant provided strong and detailed evidence pointing to systemic or general shortcomings of the correctional institutions of the State that issued the arrest warrant. Nevertheless, taking into account the information provided by the Romanian authorities, the executing judicial authority neglected the existence of a risk of violation of article 3 of the Convention in the case of the second applicant.
Thus, (i) the information provided by the Romanian authorities did not sufficiently take into account the context of the case-law of the European Court regarding the widespread overcrowding of correctional institutions in which the second applicant should have been held, where he would have been provided with 2 to 3 square meters of personal space. At the same time, (ii) other aspects, such as freedom of movement and off-camera activities, were described in a formulaic manner and were not taken into account in the risk assessment. In addition, (iii) the recommendation of the judicial executive body executing the arrest warrant that the second applicant should be held in an institution providing similar or even better conditions was insufficient to exclude the real risk of inhuman or degrading treatment of him, since it did not allow assessing this risk in relation to a particular institution, and many correctional institutions did not provide conditions of detention meeting the standards of the European Court.
Accordingly, the body executing the arrest warrant had sufficiently reliable factual material, stemming, in particular, from the case-law of the European Court, to establish that the second applicant had a real risk of being subjected to inhuman or degrading treatment in connection with the conditions of his detention in Romania, so the relevant judicial authority could not simply rely on the statements of the Romanian authorities. Consequently, the protection of the second applicant's fundamental rights was clearly insufficient, so the presumption of his equivalent protection was refuted.
The case involved a violation of the requirements of article 3 of the Convention (adopted unanimously).
- The first applicant (M. Bivolaru)
(a) The first applicant has refugee status.
(i) The application of the presumption of equivalent protection. As for the second condition, the French Court of Cassation rejected the first applicant's request to refer the issue to the EU Court for a preliminary ruling on the consequences of the execution of the European arrest warrant as a result of the granting of refugee status by an EU Member State to a citizen of a third country, which subsequently also became an EU member State. This issue, which the EU Court has never considered before, was a genuine and serious problem in connection with the protection of fundamental rights by EU legislation and its relationship with the protection provided under the UN Convention relating to the Status of Refugees of July 28, 1951 (hereinafter - the 1951 Geneva Convention). Accordingly, the French Court of Cassation issued its ruling without using the full potential of the relevant international mechanism for the supervision of fundamental rights, which is in principle equivalent to the mechanism provided for by the Convention. Thus, the presumption of equivalent protection was not applied, and there was no need to make a decision regarding the first condition under consideration.
(ii) Whether the extradition of the first applicant was contrary to article 3 of the Convention. It was not the task of the European Court of Justice to determine the relationship between the protection of refugees in accordance with the 1951 Geneva Convention and EU legal norms, in particular with the Framework Decision. The limits of the European Court's assessment were limited to determining whether the execution of the European arrest warrant entailed a violation of Article 3 of the Convention in the specific circumstances of the case or not. In addition, neither the Convention nor its Protocols guarantee the right to asylum. Article 3 of the Convention prohibits the return of any alien under the jurisdiction of a State party to the Convention to a State in which such an alien would face a real risk of being subjected to inhuman or degrading treatment or even torture, and covers the prohibition of forced return within the meaning of the 1951 Geneva Convention (see the Ruling of the Grand Chamber of the European Court of Justice in the case "N.D. and N.T. v. Spain" of February 13, 2020, complaints No. 8675/15 and 8697/15 (See: Precedents of the European Court of Human Rights. 2020. N 4.)). The European Court should not determine whether the decision on granting refugee status, adopted by the authorities of a State party to the 1951 Geneva Convention, should be interpreted as granting the same status to this person in all other States parties to this Convention (See: Judgment of the European Court in the case "M.G. v. Bulgaria" of March 25, 2014, complaint No. 59297/12.).
The Framework Decision did not contain any grounds for non-execution of an arrest warrant for a person with refugee status whose extradition was requested. However, according to the Swedish authorities, there was sufficient evidence that the applicant would be at risk of persecution in his country of origin, which justified granting him refugee status. The judicial authority executing the arrest warrant decided that such a status was a factor that it needed to take into account in particular and which it had to agree with the principle of mutual trust, but which did not automatically imply a deviation from this principle, which could in itself justify the refusal to execute the European arrest warrant. In addition, the judicial authority executing the arrest warrant examined whether the applicant's personal situation prevented his extradition to the Romanian authorities in the circumstances that took place at the time of the relevant decision (See: Judgment of the European Court in the case "Shiksaitov v. Slovakia" of December 10, 2020, complaint No. 56751/16.).
The Investigation Department provided information to the Swedish authorities, who offered to keep the refugee status for the first applicant, but without assessing whether the risk of persecution in his country of origin will remain 10 years after granting this status.
In addition, the judicial executive body executing the arrest warrant concluded that the European arrest warrant did not pursue a political goal and the first applicant's membership in the Movement for Spiritual Integration into the Absolute (MISA) alone was not enough to justify fears that his rights would be violated in Romania due to his opinions or beliefs (See: Judgment of the European Court in the case "Amarandei and Others v. Romania" of April 26, 2016, complaint No. 1443/10.). Thus, there was nothing to indicate that the first applicant, if extradited, would face the risk of persecution in Romania on religious grounds. Consequently, the judicial authority executing the arrest warrant did not have sufficient solid factual material to establish the existence of a real risk of a violation of article 3 of the Convention and refuse to execute the European arrest warrant for this reason.
(b) The risk of inhuman and degrading treatment of the first applicant due to the conditions of his detention in Romania. In the circumstances of the present case, the conditions for applying the presumption of equivalent protection were satisfied.
The description of the conditions of detention provided by the first applicant to the judicial authority executing the arrest warrant was not sufficiently detailed or substantiated to serve as prima facie evidence of the real risk of treatment contrary to article 3 of the Convention in the event of his extradition to the Romanian authorities. In this regard, the relevant judicial executive body was not obliged to request additional information from the Romanian authorities regarding the future location, conditions or regime of the first applicant's detention. Consequently, the judicial authority executing the arrest warrant did not have sufficient solid factual material to establish the existence of a real risk of a violation of article 3 of the Convention and refuse to execute the European arrest warrant on this basis.
There was no violation of article 3 of the Convention in the case (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the second applicant 5,000 euros in compensation for non-pecuniary damage.