Plot twist? Case C-128/18 Dorobantu: detention conditions and the applicability of the ECHR in the EU legal order
Ágoston Mohay, University of Pécs Faculty of Law
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 Dorobantuhowever, 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 aliaon 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.”)
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 referencedby 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 Kamberajit 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 Dorobantuvia the principles of direct effect and primacy.
Even though the method utilised by the Court of Justice in Dorobantuis 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 researchhas 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, ATAAor 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, Achmeaor 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