This compilation gathers the most important judgments and decisions on prison issues handed down by the European Court of Human Rights and the Court of Justice of the European Union. By reporting on the main trends in European prison case law, it aims to support legal practitioners in the prison field in their research and litigation, as well as to identify blind spots in European case law to build strategic litigation avenues.
EUROPEAN COURT OF HUMAN RIGHTS
PONOMARENKO v. UKRAINE ■ Application no. 51456/17
Lack of adequate medical treatment and assistance provided to a HIV-positive remand detainee leading to his death: violation of Article 2; Failure to provide appropriate care and assistance in detention given his serious physical disability, handcuffing to hospital bed, mental suffering endured by the applicant’s mother as a result of the ill-treatment endured: violation of Article 3. Extension of the applicant’s pre-trial detention in spite of his deteriorating state of health: violation of Article 5 § 3.
DEMİRTAŞ AND YÜKSEKDAĞ ŞENOĞLU v. TÜRKİYE ■ Applications nos. 10207/21 and 10209/21
Surveillance of the applicants’ meetings with their lawyers depriving them of effective legal assistance; legal basis for the impugned measure deprived of safeguards against abuse : violation of Article 5 § 4.
NISTOR-MARTIN AND OTHERS v. ROMANIA ■ Applications nos. 29908/20 and 3 others
Refusal of penitentiary authorities to grant prison leave for the purpose of attending the funeral of a close relative, without proper justification: violation of Article 8.
NESHCHERET v. UKRAINE ■ Application no. 41395/19
Inadequate conditions of detention for a child held together with his mother in a pre-trial detention centre and lack of appropriate medical care: violation of Article 3; Lack of effective remedy: violation of Article 13.
TEKİN v. TÜRKİYE ■ Application no. 28249/20
Placement in a disciplinary cell for alleged propaganda in favour of a criminal organisation, on the basis of a letter sent to the Ministry of Justice in protest of the detention regime imposed on the leader of the Kurdistan Workers’ Party (PKK): violation of Article 10.
BIJAN BALAHAN v. SWEDEN ■ Application no. 9839/22
No evidence of a real risk of a life imprisonment sentence without parole or with a 61-year minimum term before parole eligibility, if applicant extradited to, and convicted in, the USA: no violation of Article 3.
Court of justice OF THE EUROPEAN UNION
O.G ■ Case C-700/21 ■ Request for a preliminary ruling
The grounds for refusing to execute a European arrest warrant (EAW) when the requested person is a resident of the executing Member State and the latter undertakes to execute the sentence or detention order in accordance with its domestic law, applies to non-EU nationals. This grounds for refusal is meant to increase the requested person’s chances of reintegrating into society upon release, which is assisted by the fact that this person maintains regular and frequent contact with his or her family and persons close to him or her.
EUROPEAN COURT OF HUMAN RIGHTS
PONOMARENKO v. UKRAINE ■ Application no. 51456/17 ■ Fifth Section Committee ■ 5 June 2023
Art 2 ■ Lack of adequate medical care for an HIV-positive remand prisoner ■ Death while in detention ■ Failure of the national authorities to adequately protect the life of the person whose state of health continuously deteriorated
Art 3 ■ Handcuffing in a civilian hospital of a severely ill patient ■ Unjustified measure of restraint ■ Mother’s mental suffering associated with her son’s helpless state and death due to lack of medical care ■ Inhuman treatment suffered by the mother of the detainee
Art 5 § 3 ■ Unjustified and lengthy pre-trial detention • Violation in accordance with the well-established case law
Facts ■ The case primarily concerned the first applicant’s complaint about the lack of adequate medical treatment provided to him for his HIV-positive status while in pre-trial detention, which, in view of his serious physical disability, endangered his health, physical well-being and life. In spite of his deteriorating state of health, the first applicant’s pre-trial detention was prolonged. The applicant died a few days after having been admitted into the intensive care unit of a civilian hospital, after having spent fifteen months in pre-trial detention. After the first applicant’s death, his mother (“the second applicant”) continued the proceeding in his stead. She further submitted that the authorities bear responsibility for the death of her son, that her son was handcuffed while in hospital and that she endured serious mental suffering resulting from the inhuman and degrading treatment her son endured while in detention. A criminal investigation into medical negligence was still ongoing at the time of exchange of the parties’ observations (September 2019).
Law ■ Article 2
The Court observed that while the first applicant was considered to be infected with HIV upon his admission to the remand detention centre (SIZO), he was tested only six months later (by which time his HIV infection had advanced to stage 4 – the most severe stage of HIV), and his antiretroviral treatment started only four months after this test, which resulted in severe repercussions for his health.
While the first applicant received inpatient treatment in a civilian hospital on an intermittent basis, his state of health was rapidly deteriorating. The court observed that it appeared that “as long as he remained in detention, it would have been impossible for the first applicant to receive better treatment against the background of the serious deterioration of his condition which eventually led to his death” (para. 24). While both the SIZO administration and the civilian hospital doctors recommended putting an end to his pre-trial detention and changing the preventive measure imposed on him, the domestic courts prolonged the first applicant’s detention.
The Court noted that the authorities failed to provide a justified explanation regarding the first applicant’s continued detention and the deficiencies in the medical treatment provided to him and accordingly concluded that they “failed to adequately discharge their positive obligation to protect the first applicant’s health and life.” (para. 24).
Conclusion ■ Violation of Article 2.
Law ■ Article 3
(a) Failure to provide the first applicant with appropriate care and assistance in detention given his serious physical disability
While the first applicant was in need of nursing care due to his illness (he could not move, speak, eat and control his bowel movements freely) he was not provided with such care. The fact that his mother unsuccessfully requested the prison administration to be granted access to the SIZO medical unit to look after him substantiates this finding. On the basis of well-established case law concerning the State authorities’ duty of care towards sick prisoners, the Court found that there had been a violation of Article 3 (see Helhal v. France, no. 10401/12, §§ 47-52, 19 February 2015).
(b) The first applicant’s handcuffing and attachment to a bed during his medical treatment in hospital
The second applicant complained that her son, while being under treatment in a civilian hospital, was handcuffed to his bed and had his hands tied with a bedsheet. The second applicant also submitted a reply from the head of the SIZO (made in the frame of proceedings at domestic level) indicating that handcuffing is routinely imposed on all arrested individuals who underwent medical treatment in civilian hospitals. The Government did not comment on this part of the complaint. The Court, finding the second applicant’s allegation plausible, and noting that “the first applicant’s physical condition at the time of the alleged events did not appear to require special security arrangements that would justify the application of handcuffs in hospital” (para. 29) found that there had been a violation of Article 3.
(c) The second applicant’s suffering as a result of the denial of prompt and adequate medical care to her son, and his subsequent death
The Court found that the second applicant was subjected to inhuman treatment as her attempts to save her son’s life or ease his suffering were not diligently addressed either by the domestic court or the SIZO administration. She therefore “could only passively witness her son’s suffering in a state of complete helplessness” (para. 30).
Conclusion ■ Violation of Article 3
Law ■ Article 5 § 3
The Court also examined a complaint regarding the lengthy and unjustified pre-trial detention of the first applicant and concluded, in light of its well-established case law, that the circumstances of the case disclose a breach of Article 5 § 3 (see Ignatov v. Ukraine, no. 40583/15, §§ 41-42, 15 December 2016).
Conclusion ■ Violation of Article 5 § 3
Article 41 ■ EUR 15,600 in respect of non-pecuniary damage.
DEMİRTAŞ AND YÜKSEKDAĞ ŞENOĞLU v. TÜRKİYE ■ Applications nos. 10207/21 and 10209/21 ■ Second Section ■ 6 June 2023
Article 5(4) ■ Lack of effective legal assistance to challenge the applicants’ pre-trial detention on account of the prison authorities’ supervision of their meetings with their lawyers ■ No adequate and sufficient safeguards against abuse in the absence of specific and detailed rules ■ No exceptional circumstances to justify derogation from the essential principle of confidentiality of meetings with lawyers ■ National authorities failed to provide detailed evidence capable of justifying the imposition of the contested measures pursuant to the decree-law adopted in the context of the state of emergency
Facts ■ At the material time, the two applicants were co-chairs of the left-wing pro-Kurdish political party HDP who had been elected members of Parliament in 2015. On 4 November 2016, the two applicants together with 10 other HDP members of Parliament were arrested and subjected to pre-trial detention on charges related to terrorism in the aftermath of the coup attempt of July 2016. In separate judgments, the Court found that the applicants’ pre-trial detention “pursued an unavowed political aim, namely to stifle pluralism and limit the free play of political debate” and violated a number of ECHR provisions (see Selahattin Demirtaş v. Türkiye (No. 2) [GC], no. 14305/17, 22 December 2020, and Yüksekdağ Şenoğlu and Others v. Türkiye, nos. 14332/17 and 12 others, 8 November 2022).
On 15 November 2016, on application of the Emergency Legislative Decree No. 676 (adopted in the context of the state of emergency), a domestic court ordered that the applicants’ meetings with their lawyers be audio and video recorded, that a member of the prison administration be present during these meetings, and that all documents exchanged between the applicants and their lawyers be seized. These measures remained in force until 14 February 2017.
Between November 2016 and January 2017, the applicants filed several applications against this order, all of which were rejected by the competent domestic courts on the grounds that it was compliant with the existing laws and procedures. The Constitutional Court found that the order violated their right to liberty and security, as well as their right to a fair trial. The Constitutional Court found no violation of the applicants’ right to liberty and security, stating that the measures implemented during the state of emergency were deemed proportionate. The complaint concerning the right to a fair trial was deemed inadmissible.
Law ■ Article 5 § 4
The Court focused its analysis on the interpretation by the domestic courts of Emergency Legislative Decree No. 676, introducing rules in derogation of the usual legal framework protecting confidentiality between lawyers and their clients, and therefore consisted of an interference with the applicants’ fundamental rights to such confidentiality.
The Court noted that the domestic court’s decision ordering surveillance measures over the applicants’ meetings with their lawyers on account that they “could” endanger the security of society and the prison and get involved in criminal activities, was “worded in stereotypical terms and did not comply with the requirements of domestic legislation” which made these restrictions only possible “if information, findings or documents are obtained indicating that the safety of society and the prison” are at risk (para. 109). Even more so that, at the material time, the applicants had not been found guilty of terrorist offences. The Court stressed that in this respect, the Constitutional Court failed to carry out an individualised assessment of the applicants’ situation.
The Court rejected the Government’s objection that the impugned measures had no negative effect on the applicants’ defence as they continued to meet with their lawyer. The Court recalled that “if a detainee cannot have confidential meetings with their lawyer, it is highly likely that they will not feel free to talk to his lawyer” and the legal assistance provided by the lawyer “may lose its practical usefulness” (para. 111, see also Sakhnovskiy v. Russia [GC], no. 21272/03, § 97, 2 November 2010).
The Court lastly recalled that the confidentiality of conversations between a detainee and their lawyer is a fundamental right that directly affects the rights of the defence and can only be derogated from in exceptional circumstances and with proper safeguards against abuse. In the case at hand, the Court noted that “the scope of and procedures for exercising the authorities’ discretionary powers [when it comes to the surveillance of meetings between a detainee and their lawyer] were not defined at all, and no specific safeguards were provided for (para. 112).
Conclusion ■ Violation of Article 5 § 4.
Article 41 ■ EUR 5,500 to each of the applicants in respect of non-pecuniary damage; EUR 2,500 jointly in respect of costs and expenses.
NISTOR-MARTIN AND OTHERS v. ROMANIA ■ Applications nos. 29908/20 and 3 others ■ Fourth Section Committee ■ 8 June 2023
Art 8 ■ Refusal of penitentiary authorities to authorise prison leave for the purpose of attending the funeral of a close relative ■ Restriction not necessary in a democratic society
Facts ■ The four applicants, while being imprisoned, requested authorisation to attend the funerals of close family members. The prison authorities rejected their requests, merely stating that the conditions for such authorisation were not met.
Law ■ Admissibility
The Court, recalling that it had already found that the available remedies could not be considered effective, rejected the Government’s objection that three out of four applicants did not appeal against the decision rejecting their application for prison leave (see Kanalas v. Romania, no. 20323/14, § 44, 6 Decembre 2016).
Law ■ Article 8
The Court had already found a violation of Article 8 in a similar case (see Kanalas v. Romania, cited above) and found nothing in the present case that could persuade it to reach a different conclusion. Furthermore, while the Government submitted that the COVID-19 pandemic justified the refusal to grant prison leave this reason does not appear in the penitentiary commission’s decisions. Accordingly, the Court concluded that the refusal of the authorities to grant the applicants prison leave so that they can attend the funerals of their close relatives were not “necessary in a democratic society”.
Conclusion ■ Violation of Article 8
Article 41 ■ EUR 3,000 in respect of non-pecuniary damage to each of the applicants.
NESHCHERET v. UKRAINE ■ Application no. 41395/19 ■ Fifth Section Committee ■ 22 June 2023
Art 3 ■ Pre-trial detention of a mother with a newborn baby ■ Inadequate living conditions ■ Lack of adequate medical care provided to the child
Art 13 ■ Lack of effective domestic remedy available to complain about poor living conditions in a pre-trial detention centre ■ Sukachov pilot judgment
Facts ■ The first and the second applicants (a mother and her newborn son respectively) were held in a pre-trial detention centre (SIZO) in Kyiv. The mother was diagnosed with tuberculosis and was prescribed necessary medical treatment at a prison hospital for seven months. Shortly after she was taken to the hospital, her son was diagnosed with tuberculosis as well and underwent treatment in a civilian hospital for eight months. A few days after he got back to the SIZO, the second applicant started having symptoms (high temperature, cough and rhinitis) and was sent to the Children’s Hospital again. The first applicant applied to the domestic court to be released together with her son (then aged one year old) until he reaches the age of three due to inadequate living conditions in the SIZO in which they were held. The competent court found that the state of health of the second applicant required medical supervision and assistance that could not be provided in the SIZO, and granted the release. The second applicant complained before the Court that his detention conditions in the SIZO had been inadequate and that the authorities failed to provide him with the prescribed medical treatment, and that he had no effective remedy in this respect. The first applicant similarly complained of inadequate detention conditions and of a lack of effective remedy.
Law ■ Article 3
(a) The second applicant’s detention conditions
While the second applicant and the Government provided different accounts of the detention conditions endured by the former, the Government did not contest the authenticity of the photo evidence provided by the second applicant to substantiate his application. The Court therefore found these photographs (picturing dirty ventilation grids, heaters not adapted to meet infants’ needs) to be credible. Furthermore, the Government did not comment on the first applicant statement that she had to buy baby food at her own expense to feed her child. Last, the Court observed that the domestic court having granted the first applicant release from detention found the detention conditions to be inadequate. Accordingly, the Court found there had been a violation of Article 3.
(b) The second applicant’s medical treatment
The Court observed that the second applicant’s state of health required constant medical supervision (hepatitis C, a statokinetic developmental delay, congenital bilateral club feet, hydrocephalus, tuberculosis – see Appendix II of the judgment). The Court noted that the Government could not explain what medical specialists were employed at the SIZO nor whether the second applicant was examined by a pediatrician. The Court concluded that the SIZO was unable to provide adequate medical care or to transfer the applicant to a hospital for “any treatment not connected with an imminent risk to his health” (para. 27) and therefore that there had been a violation of Article 3.
(c) The first applicant’s detention conditions
Noting that the first applicant was detained with only one cellmate in a four-persons cell and that she was treated for tuberculosis soon after it was diagnosed, the Court declared it was unable to conclude that her detention conditions amounted to a violation of Article 3 and rejected this part of the complaint as manifestly ill-founded.
Conclusion ■ Violation of Article 3 on account of the second applicant, no violation of Article 3 on account of the first applicant
Law ■ Article 13
The second and the first applicants also alleged that they did not have an effective remedy to complain of their detention conditions in the SIZO. As regards the first applicant, since her complaint under Article 13 was found to be inadmissible, the Court declared she had no arguable claim for the purpose of Article 13. As regards the second applicant, the Court having referred to its pilot judgment in Sukachov v. Ukraine (no. 14057/17, § 123, § 125, 30 January 2020), acknowledged a lack of effective domestic remedy in this regard.
Conclusion ■ Violation of Article 13
Article 41 ■ EUR 2,500 in respect of non‑pecuniary damage; EUR 2,000 in respect of costs and expenses.
TEKİN v. TÜRKİYE ■ Application no. 28249/20 ■ Second Section Committee ■ 27 June 2023
Art 10 ■ Disciplinary sanction imposed on a detainee in connection with the content of a petition sent to the Ministry of Justice ■ Measure not necessary in a democratic society
Facts ■ The prison administration inflicted on the applicant and five other detainees a sentence of 14-days in a disciplinary cell for having sent a letter to the Ministry of Justice, indicating that they had started a hunger strike to protest against the regime of strict isolation imposed on the leader of the PKK (Kurdistan Workers’ Party). The execution judge, competent for reviewing the sanction, considered that the act for which the disciplinary penalty had been imposed could not fall within the scope of freedom of expression. The prison administration considered this to fall within the scope of a law forbidding “propaganda in favour of criminal organisations”. The criminal domestic court rejected the applicant’s appeal against the decision of the execution judge, arguing that it was in conformity with the applicable law. Subsequently, the Constitutional court rejected as inadmissible the applicant’s application that the sanction had violated his freedom of expression, arguing that the sanction inflicted did not constitute a violation.
Law ■ Article 10
The Court considered, against the assessment of the domestic authorities, that the imposition of a disciplinary sanction on the applicant in connection with the content of the petition he took part in constituted an interference with his freedom of expression (see also Mehmet Çiftçi et Suat Incedere v. Türkiye, nos. 21266/19 and 21774/19, § 19, 18 janvier 2022). While the interference pursued a legitimate aim (maintaining public order and prevention of crime), the Court noted that the domestic courts did not examine in detail the applicant’s complaints and therefore failed to balance the applicant’s right to freedom of expression against the aims pursued. The Court therefore concluded that it had not been demonstrated that the reasons for the imposition of the measure complained of were relevant and sufficient, and that the measure itself was necessary in a democratic society.
Conclusion ■ Violation of Article 10
Article 41 ■ EUR 1,000 in respect of non-pecuniary damage.
BIJAN BALAHAN v. SWEDEN ■ Application no. 9839/22 ■ First Section ■ 29 June 2023
Art 3 ■ Extradition ■ No evidence showing a real risk of a life imprisonment sentence without parole or with a 61-year minimum term before parole eligibility, if applicant extradited to, and convicted in, the USA ■ Real risk de jure or de facto of life imprisonment sentence without parole not demonstrated ■ Length of potential minimum term depending on a number of unknown factors and might possibly be significantly shorter ■ First stage of the test set out in Sanchez-Sanchez v. the United Kingdom [GC] not fulfilled ■ Strict test for “gross disproportionality” only met on rare and unique occasions ■ A sentence not to be deemed grossly disproportionate simply by virtue of being more severe than one that would be imposed in another State
Facts ■ The applicant is a dual national of Iran and the United States of America (USA) and is currently being detained in Sweden. He faces extradition to the USA where he is wanted in the State of California on charges for serious criminal offences, including torture, aggravated mayhem and grand theft.
Under Rule 39 of the Rules of Court, the Court indicated to the Swedish Government not to extradite the applicant for the duration of the proceedings before it.
The applicant complained, in particular, that his extradition would violate Article 3 of the Convention because, if convicted on the charges against him, he would risk receiving either an irreducible sentence of life imprisonment without parole, or a minimum term of imprisonment of sixty-one years, which would amount to a de facto irreducible sentence of life imprisonment without parole. He also argued that such a sentence would be grossly disproportionate.
Law ■ Article 3
(a) Life imprisonment without parole
In Sanchez-Sanchez v. the United Kingdom [GC], the Court had developed an adapted approach for life sentences without parole in the extradition context of the principles set out in Vinter and Others v. the United Kingdom [GC] which applied to the domestic context. That approach comprised two stages: 1) It must be established whether the applicant had adduced evidence capable of proving that there were substantial grounds for believing that, if extradited, and in the event of his conviction, there was a real risk that a sentence of life imprisonment without parole would be imposed on him. 2) If the applicant established such a risk, it must be ascertained whether, from the moment of sentencing, there was a review mechanism in place allowing the domestic authorities to consider the prisoner’s progress towards rehabilitation or any other grounds for release based on his or her behaviour or other relevant personal circumstances. The availability of procedural safeguards in the requesting State was not a prerequisite for compliance by the sending Contracting State with Article 3.
In the present case, having regard to all the material available, the Court was satisfied that there was no real risk that the applicant would receive a sentence of life imprisonment without parole. At most, he might face the prospect of life imprisonment with eligibility for parole. On the face of it, the applicant had therefore not fulfilled the first stage of the test set out in Sanchez-Sanchez.
The applicant had submitted, however, that a life sentence with eligibility for parole would in his case amount to a de facto life sentence without parole because he would have to serve a minimum term of up to sixty-one years before being eligible for parole, which would exceed his life expectancy.
In the domestic context, although it was not for the Court to determine when a review of a life sentence should take place, it had found that when whole-life prisoners could only be considered for release on parole after they had served forty years of their life sentences, those life sentences could not be regarded as reducible for the purposes of Article 3. In the extradition context, however, in order to comply with that provision, the sending Contracting State was not required to examine the availability of procedural safeguards in the requesting State because, among other reasons, scrutinising its relevant law and practice with a view to assessing its degree of compliance with those procedural safeguards might prove unduly difficult for the domestic authorities deciding on extradition requests, and that would be an over extensive interpretation of the responsibility of a Contracting State.
Thus, for example, in McCallum v. Italy (dec.) [GC] the Court had dismissed the applicant’s argument that her life sentence with eligibility for parole could be regarded as de facto life imprisonment without parole on account of the Governor of Michigan’s role in the parole system, since that argument related to a matter that had been more in the nature of a procedural guarantee as opposed to a substantive guarantee.
In the instant case, the applicant had not as such disputed that there had been a parole system in place in California but rather had submitted that that system would not be relevant to him on account of the length of the minimum term that he would have to serve before being eligible for parole. The Court found that it was not necessary to determine whether that argument related to a matter that should be regarded as a substantive guarantee or was more in the nature of a procedural guarantee, since he had in any event not adduced evidence capable of showing that there was a real risk that he would receive such a lengthy minimum term. In this connection his argument was subject to significant uncertainty for the following reasons.
The applicant had not yet been tried or convicted and it was difficult to speculate as to whether he would be convicted on any or all charges, and what the possible consequences might be of certain elements being removed from the charge of aggravated mayhem (the Supreme Court had found there to be obstacles to extradition in so far as that charge alleged the infliction of permanent disability and loss of limb or organ for want of evidence). As the Court had recognised in Sanchez Sanchez, there were many factors which could contribute to the imposition of a sentence and, prior to extradition, it was impossible to address every conceivable permutation that could occur or every possible scenario that might arise. The applicant had previous convictions for two crimes which might cause California’s Three Strikes Law to be applicable and him facing a potential sentence of life imprisonment with a minimum term of sixty one years. Under that Law, individuals with two prior serious or violent convictions who were convicted of a new, non-serious, non-violent felony offence received double the sentence that they would otherwise have received for the new offence; individuals with two prior serious or violent offences who were convicted of a third serious or violent offence received a third-strike enhancement, that is, an indeterminate sentence with a minimum term of twenty-five years. However, prosecutors and judges could exercise discretion in applying the Three Strikes Law. If they decided not to apply that law in his case, the potential minimum term would be significantly shorter, namely seventeen years. The applicant had not provided any evidence that that discretion was rarely exercised, that there was a high risk that the law would be applied in his case or evidence of any defendants with similar records to his who had been found guilty of similar conduct and had been sentenced to life imprisonment with such a lengthy minimum term. According to a declaration provided to the applicant from an attorney at law practising in California, it was very difficult to predict what the outcome of a prosecution of the applicant would be. Furthermore, the applicant would have the right to appeal against any sentence imposed. Lasty, the minimum term that he would be required to serve before being eligible for parole could be reduced by credits earned during imprisonment, regardless of whether the Three Strikes Law was applied or not.
Thus, the applicant had failed to show that there was a real risk that if he was extradited and convicted, he will receive a sentence of life imprisonment with a minimum term of up to sixty-one years. The length of the minimum term would depend on a number of unknown factors and might be significantly shorter.
In the light of all the above, the applicant could not be said to have adduced evidence capable of showing that his extradition to the USA would expose him to a real risk of treatment reaching the Article 3 threshold on account of the risk that he would be sentenced to, de jure or de facto, life imprisonment without parole. That being so, it was unnecessary for the Court to proceed in this case to the second stage of the analysis.
(b) Grossly disproportionate sentence
“Gross disproportionality” was a strict test that would only be met on rare and unique occasions, and it would only be in very exceptional cases that an applicant would be able to demonstrate that the sentence he or she would face in a non-Contracting State would be grossly disproportionate and thus contrary to Article 3. A sentence could not be deemed grossly disproportionate simply because it was more severe than the sentence which would be imposed in another State.
The applicant was charged with crimes of a serious nature. He would only be sentenced after a court in California had heard the case, taken into account all relevant factors, and had decided whether to dismiss or maintain any sentencing enhancements resulting from previous convictions. In addition, the applicant had not shown that there was a real risk that he will be sentenced to life imprisonment without parole. Thus, he had not substantiated his claim that, if extradited to the USA, he would risk receiving a grossly disproportionate sentence.
Conclusion ■ No violation in case of extradition (six votes to one).
The Court decided, unanimously, to continue to indicate to the Government under Rule 39 of the Rules of Court that it was desirable in the interests of the proper conduct of the proceedings not to extradite the applicant until such time as the present judgment became final or until further notice.
(See also Harkins and Edwards v. the United Kingdom, 9146/07 and 32650/07, 17 January 2012, Legal summary; Babar Ahmad and Others v. the United Kingdom, 24027/07 et al., 10 April 2012, Legal summary; Vinter and Others v. the United Kingdom [GC], 66069/09 et al., 9 July 2013, Legal summary; T.P. and A.T. v. Hungary, 37871/14 and 73986/14, 4 October 2016, Legal summary; McCallum v. Italy (dec.) [GC], 20863/21, 21 September 2022, Legal summary; Sanchez-Sanchez v. the United Kingdom [GC], 22854/20, 3 November 2022, Legal summary; Hafeez v. the United Kingdom (dec.), 14198/20, 28 March 2023)
© Council of Europe/European Court of Human Rights
court of justice of the European union
O.G. ■ Case C-700/21 ■ 6 June 2023
Reference for a preliminary ruling ■ European arrest warrant ■ Framework Decision 2002/584/JHA ■ Grounds for optional non-execution of the European arrest warrant ■ Objective of social rehabilitation ■ Third-country nationals staying or residing in the territory of the executing Member State ■ Equal treatment ■ Article 20 of the Charter of the Fundamental Rights of the European Union
Facts ■ In February 2012, the Court of First Instance of Brașov (Romania) issued a European arrest warrant (EAW) against O.G., a Moldovan national, for the purposes of executing a custodial sentence of five years’ imprisonment for tax evasion and misappropriation of funds due for payment of income tax and value added tax (VAT), committed between September 2003 and April 2004. In the meantime, the requested person had moved to Italy.
In 2020, the Court of Appeal of Bologna ordered that O.G. be surrendered to the issuing judicial authority. O.G. filed an appeal before the Supreme Court of Cassation, arguing that he had a stable employment and family in Italy, where he was living with a woman and his 12-year old son. The Supreme Court of Cassation set aside the first judgment of the Court of Appeal and referred the case back to it.
Article 4(6) of Framework Decision 2002/584 on the EAW (FD EAW) provides that the executing authority may refuse to execute an EAW and undertake to execute the sentence or detention order in accordance with its domestic law where the requested person is staying in, or is a national or a resident of the executing Member State, with the aim of “increasing the chances of social rehabilitation after [the] sentence […] has been executed” (para. 68). However, the law transposing those grounds into Italian law (Law No 69/2005) limits this option of refusing surrender to Italian nationals and nationals of other Member States only, “to the exclusion of third-country nationals, even where the latter prove that they have established stable economic, occupational and emotional ties in Italy” (para. 15).
The Court of Appeal of Bologna raised the constitutionality of the said law before the Constitutional Court, who decided to examine first whether it complies with EU law – and referred the case to the CJEU.
The Constitutional Court noted that the Court of Appeal of Bologna stressed that the grounds for non-execution of the EAW laid down by Article 4(6) FD EAW “has the aim of ensuring that the sentence has a genuine function of social rehabilitation” and argued that by excluding third-country nationals from the scope of this ground for refusal, the national law is “inconsistent with the rehabilitation purpose of the sentence, or with the right to family life of the person concerned, enshrined in Article 7 of the Charter [of Fundamental Rights, CFR]” (para.15).
The Constitutional Court therefore asked the CJEU whether Article 4(6) FD EAW “interpreted in the light of Article 1(3) of that framework decision and Article 7 […CFR], preclude legislation, such as the Italian legislation, that […] absolutely and automatically precludes the executing judicial authorities from refusing to surrender third-country nationals staying or residing in Italian territory, irrespective of the links those individuals have with that territory” (para. 22). The Constitutional Court also requested guidance on “criteria and conditions [that] must be used to establish that such links are to be regarded as so significant as to require the executing judicial authority to refuse surrender” (para. 22).
Law ■ Article 4(6) of Framework Decision 2002/584, Article 20 CFR
With regard to the first question, the Court, while acknowledging that Member States are free to choose to limit the situations in which the executing judicial authority may refuse to execute, this discretion is “not unlimited” (para.38) and must “comply with the fundamental rights and fundamental principles referred to in Article 6 TEU” (para. 39) including “the principle of equality before the law, which is guaranteed by Article 20” CFR (para. 40).
The Court observed that the FD EAW’s working “makes no distinction depending on whether the [requested] person […] is or is not a national of another Member State” (para. 46), provided that this person is ‘resident’ in the executing Member State (i.e. “when that person has established his or her actual place of residence there, and is ‘staying’ there when, following a stable period of presence in that Member State, he or she has acquired connections with that State which are of a similar degree to those resulting from residence” (para. 47, see also Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, 2012, paragraph 43).Once this condition is fulfilled, the Court observed that “Union citizens and third-country nationals […] are likely to have […] comparable chances for social rehabilitation if […] they serve their sentence or are detained in the executing Member State” (para. 49) and therefore ruled that a law refusing “absolutely and automatically […] without any discretion being left in that regard to the executing judicial authority” (para. 55), the benefit of the optional ground for non-execution provided for in Article 4(6) FD EAW undermines the objective of social rehabilitation pursued by this provision (para. 56) and breaches Article 20 CFR (para. 51).
With regard to the criteria to be used by the executing State to assess the integration of the requested person, the Court reiterated that they should “include the family, linguistic, cultural, social or economic links that the third-country national has with the executing Member State as well as the nature, duration and conditions of his or her stay in that Member State”. These elements are particularly relevant in view of the fact that the social rehabilitation of the requested person upon release “is assisted by the fact that he or she may maintain regular and frequent contact with his or her family and persons close to him or her” (para. 64).
Conclusion ■ Article 4(6) FD EAW, read in conjunction with Article 20 CFR, precludes a national law transposing that provision to exclude absolutely and automatically, “any [non-EU national] staying or resident in the territory of that Member State from benefiting from the ground for optional non-execution of a [EAW] laid down in that provision, without the executing judicial authority being able to assess the connections that that national has with that Member State.” (para. 69)
In order to assess whether it is appropriate to refuse to execute the EAW, the executing judicial authority must make an “overall assessment of all the specific elements […establishing that this person] is sufficiently integrated into that State such that the execution in that Member State of the custodial sentence or detention order pronounced against that person in the issuing Member State will contribute to increasing the chances of social rehabilitation after that sentence or detention order has been executed. Those elements include the family, linguistic, cultural, social or economic links that the third-country national has with the executing Member State as well as the nature, duration and conditions of his or her stay in that Member State.” (para. 69).
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