Dumitru-Tudor Dorobantu v Generalstaatsanwaltschaft Hamburg.

• Jurisdiction: European Union
• Celex Number: 62018CJ0128
• ECLI: ECLI:EU:C:2019:857
• Date: 15 October 2019
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-128/18

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

15 October 2019 (*)

(Reference for a preliminary ruling — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Grounds for refusal of execution — Article 4 of the Charter of Fundamental Rights of the European Union — Prohibition of inhuman or degrading treatment — Conditions of detention in the issuing Member State — Assessment by the executing judicial authority — Criteria)

In Case C‑128/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany), made by decision of 8 February 2018, received at the Court on 16 February 2018, in the proceedings relating to the execution of a European arrest warrant issued for

Dumitru-Tudor Dorobantu

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, E. Regan, M. Safjan (Rapporteur) and P.G. Xuereb, Presidents of Chambers, M. Ilešič, J. Malenovský, L. Bay Larsen, K. Jürimäe, C. Lycourgos and N. Piçarra, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: D. Dittert, Head of Unit,

having regard to the written procedure and further to the hearing on 5 February 2019,

after considering the observations submitted on behalf of:

– Mr Dorobantu, by G. Strate, J. Rauwald and O.‑S. Lucke, Rechtsanwälte,

– Generalstaatsanwaltschaft Hamburg, by G. Janson and B. von Laffert, acting as Agents,

– the German Government, initially by T. Henze, M. Hellmann and A. Berg, subsequently by M. Hellmann and A. Berg, acting as Agents,

– the Belgian Government, by C. Van Lul, A. Honhon and J.‑C. Halleux, acting as Agents,

– the Danish Government, by J. Nymann‑Lindegren and M.S. Wolff, acting as Agents,

– Ireland, by G. Hodge and A. Joyce, acting as Agents, and by G. Mullan, Barrister-at-Law,

– the Spanish Government, by M.A. Sampol Pucurull, acting as Agent,

– the Italian Government, by G. Palmieri, acting as Agent, and by S. Fiorentino and S. Faraci, avvocati dello Stato,

– the Hungarian Government, by M.Z. Fehér, G. Koós, G. Tornyai and M.M. Tátrai, acting as Agents,

– the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,

– the Polish Government, by B. Majczyna, acting as Agent,

– the Romanian Government, by C.‑R. Canţăr, C.‑M. Florescu, A. Wellman and O.‑C. Ichim, acting as Agents,

– the European Commission, by S. Grünheid and R. Troosters, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 April 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).

2 The request has been made in the context of the execution, in Germany, of a European arrest warrant issued on 12 August 2016 by the Judecătoria Medgidia (Court of First Instance, Medgidia, Romania) in respect of Mr Dumitru-Tudor Dorobantu for the purposes of conducting a criminal prosecution in Romania.

Legal context

The ECHR

3 Under the heading, ‘Prohibition of torture’, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), provides:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

European Union law

The Charter

4 Article 4 of the Charter, headed ‘Prohibition of torture and inhuman or degrading treatment or punishment’, states:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

5 The explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17, ‘the explanations relating to the Charter’) state, with regard to Article 4 of the Charter, that ‘the right in Article 4 is the right guaranteed by Article 3 of the ECHR, which has the same wording’ and that, ‘by virtue of Article 52(3) of the Charter, it therefore has the same meaning and the same scope as the ECHR Article’.

6 Article 52 of the Charter, headed ‘Scope and interpretation of rights and principles’, provides, in paragraph 3:

‘In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

7 The explanations relating to the Charter state, with regard to Article 52(3), that ‘the reference to the ECHR covers both the Convention and the Protocols to it’, that ‘the meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case-law of the European Court of Human Rights and by the Court of Justice of the European Union’, that ‘the last sentence of the paragraph is designed to allow the [European] Union to guarantee more extensive protection’ and that, ‘in any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR’.

8 As provided in Article 53 of the Charter, headed ‘Level of protection’:

‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the [ECHR], and by the Member States’ constitutions.’

Framework Decision 2002/584

9 Article 1 of Framework Decision 2002/584, headed ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [EU].’

10 Articles 3, 4 and 4a of Framework Decision 2002/584 set out the grounds for mandatory and optional non-execution of the European arrest warrant.

11 Article 5 of Framework Decision 2002/584 sets out the guarantees to be given by the issuing Member State in particular cases.

12 As provided in Article 6 of Framework Decision 2002/584, headed ‘Determination of the competent judicial authorities’:

‘1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.

2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.

…’

13 Article 7 of Framework Decision 2002/584, headed ‘Recourse to the central authority’, provides in paragraph 1:

‘Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities.’

14 Article 15 of Framework Decision 2002/584, headed ‘Surrender decision’, provides:

‘1. The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’

15 According to Article 17 of Framework Decision 2002/584, headed ‘Time limits and procedures for the decision to execute the European arrest warrant’:

‘1. A European arrest warrant shall be dealt with and executed as a matter of urgency.

2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.

3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.

4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days.

…’

German law

Basic Law for the Federal Republic of Germany

16 The second sentence of Article 101(1) of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) of 23 May 1949 (BGBl. 1949, p. 1) provides:

‘No one may be removed from the jurisdiction of his lawful judge.’

Law on international mutual legal assistance in criminal matters

17 Framework Decision 2002/584 was transposed into the German legal order by Paragraphs 78 to...