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Successful constitutional complaint concerning a violation of the duty to submit a request for a preliminary ruling to the Court of Justice of the European Union

Press Release No. 3/2018 of 11 January 2018


Order of 19 December 2017 - 2 BvR 424/17

Where doubts concerning the interpretation and application of European Union law arise in proceedings before the regular courts for the review of extradition requests received by way of mutual legal assistance as determined by European Union law, the right to one’s lawful judge requires that the relevant questions be referred to the Court of Justice of the European Union (ECJ) for a preliminary ruling. Failure to comply with the duty of referral incumbent upon regular courts under European Union law does not always violate the guarantee of Art. 101(1) second sentence of the Basic Law (Grundgesetz – GG). The right to one’s lawful judge is violated, however, if an issue is not yet fully resolved in the case-law of the Court of Justice and a regular court exceeds, in an untenable manner, the margin of assessment which it is necessarily afforded when interpreting and applying European Union law. To date, the ECJ has not definitively determined which specific minimum standards derive from Art. 4 of the Charter of Fundamental Rights of the European Union (CFR) in relation to conditions of detention, nor has it clarified the standards of review applicable to detention conditions under European Union law. A regular court certainly exceeds its margin of assessment if it draws on case-law of the European Court of Human Rights (ECtHR) as required under Art. 52(3) CFR, but does so only selectively while adding other considerations and thereby develops European Union law on its own authority. For these reasons, the Second Senate of the Federal Constitutional Court has granted, in an order published today, the relief sought in constitutional complaint proceedings directed against the orders of the Hanseatic Higher Regional Court (Hanseatisches Oberlandesgericht) authorising the complainant’s extradition to Romania and remanded the case to the court. Accordingly, at the current stage of proceedings a decision is not required on the complainant’s claim that the orders – considering the detention conditions in Romanian prisons – violate the guarantee of human dignity under Art. 1(1) GG.

Facts of the case:

Based on a national arrest warrant issued by a Romanian court on suspicion of document fraud and other fraud-related offences in three cases, a European arrest warrant was issued against the complainant. Until 24 September 2017, the complainant served a prison sentence in Hamburg for criminal offences committed in Germany. Since then, he is being kept in extradition detention (Auslieferungshaft). With the challenged orders of 3 January 2017 and 19 January 2017, the Higher Regional Court declared permissible the complainant’s extradition to Romania. In its reasoning, the court submitted, in particular, that the Member States were obliged under the ECJ’s case-law to execute a European arrest warrant, and that exceptions to this rule were limited to extraordinary circumstances. In applying the twofold test established by the ECJ, the Higher Regional Court held that while there were indeed strong indications of systemic deficiencies of detention conditions in the Romanian prison system, the second element of the test was not met as the complainant did not face a “real risk” of inhuman or degrading treatment. According to the Higher Regional Court, the Romanian authorities had provided an assurance that the complainant would be guaranteed at least 3 m2 of personal space (including furniture) in case the sentence was served full time in closed detention, and 2 m2 in case the sentence was served in semi-open or open detention. With regard to the functioning of the criminal justice system within the European Union, the Higher Regional Court cautioned that the crimes committed in Romania would go unpunished if the Federal Republic of Germany were to refuse extradition; moreover, this could lead to the creation of a “safe haven” in Germany. Regardless of the judgments handed down by the European Court of Human Rights (ECtHR) against Romania for violations of Art. 3 of the European Convention on Human Rights (ECHR), the Higher Regional Court chose to conduct an “overall assessment” of the detention conditions prevailing in Romania and considered the personal space available inside the prison cell as a significant indicative factor. Based thereon, the Higher Regional Court reached the following conclusions: since 2014, detention conditions in Romania improved significantly, even though prison overcrowding remains at alarmingly high levels and the minimum of personal space assured by Romanian authorities – at least the individual space granted under a semi-open or open detention regime – still falls short of the standards established by the ECtHR in relation to living space available to prisoners. According to the Higher Regional Court, it should, however, also be considered that the insufficient space available within the prison cell were considerably mitigated by the rather generous allocation of out-of-cell time. The Higher Regional Court added that Romanian prison facilities had by now established the necessary infrastructure to allow prisoners free movement; that opportunities for prison leave, admission of visitors, washing of private laundry and purchase of personal items have been strengthened; and, moreover, that better facilities are provided for heating, as well as for sanitation and hygiene.

Key considerations of the Senate:

The constitutional complaint is admissible and well-founded. In line with the stricter requirements of admissibility applicable to constitutional complaints seeking an identity review of acts determined by European Union law (Identitätskontrolle), the complainant has in particular substantiated that, and on what basis, it appears possible that the specific conditions envisaged for his detention violate the guarantee of human dignity.

The challenged decisions violate the complainant’s right to his lawful judge (Art. 101(1) second sentence GG), a right equivalent to fundamental rights. The complainant did not expressly assert such particular violation; however, this does not preclude the Federal Constitutional Court from extending its review to this constitutional guarantee in otherwise admissible constitutional complaint proceedings.

In the event that doubts arise regarding the application or interpretation of European Union law, regular courts must, first of all, refer the relevant questions to the ECJ in accordance with Art. 267(3) of the Treaty on the Functioning of the European Union (TFEU). The ECJ is the lawful judge in these cases. Nevertheless, failure to comply with the duty of referral under European Union law does not always amount to a violation of Art. 101(1) second sentence GG. The Federal Constitutional Court limits its review to whether the allocation of jurisdiction set out in Art. 267(3) TFEU is interpreted and applied in a manner that does not seem comprehensible when critically appraising the Basic Law’s central notions and would therefore be considered manifestly untenable. This is the case, inter alia, if a court against whose decisions no judicial remedy is available renders a decision in principal proceedings with regard to an issue that is not yet fully resolved in the case-law of the ECJ and thereby untenably exceeds the margin of assessment necessarily afforded to regular courts in such cases. In this respect, it is incumbent upon the regular court to sufficiently research the relevant substantive European Union law. Where case-law of the ECJ is applicable to the case at hand, it must be analysed and reflected in the decision rendered by the regular court. On this basis, the regular court must reach the reasonable conclusion that the applicable legal standards are either clear from the outset (“acte clair”) or clarified beyond reasonable doubts in the case-law of the ECJ (“acte éclairé”).

In light of the fact that the case-law of the ECJ has not yet fully resolved the decisive issue in the matter at hand, the Higher Regional Court exceeded its margin of assessment in a manner untenable under constitutional law by refraining from requesting a preliminary ruling. The ECJ did indeed clarify, by way of Judgment of 5 April 2016 in Joined Cases Aranyosi and Căldăraru, that executing a European arrest warrant must not result in inhuman or degrading treatment of the person concerned in the receiving Member State. Accordingly, the ECJ held that whenever there is evidence of systemic deficiencies in the prison system of the receiving state, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that in the event of surrender the person concerned will be exposed to the real risk of inhuman and degrading treatment because of the conditions of detention envisaged in the relevant Member State. The ECJ has not yet clarified, however, the decisive issue determining the outcome of the present case: namely, which minimum requirements relating to detention conditions derive from Art. 4 CFR, and which standards apply to the review of detention conditions in accordance with the fundamental rights of European Union law.

The Higher Regional Court untenably exceeded its margin of assessment in relation to its duty of referral, and thereby violated the complainant’s right to his lawful judge. In the challenged decisions, the Higher Regional Court assessed independently the standards of review deriving from fundamental rights under the Basic Law, European Union law and the ECHR, without establishing a connection to the specific requirements deriving from Art. 4 CFR. In this respect, it failed to substantiate whether and in how far the minimum requirements deriving from Art. 4 CFR are either fully clarified in the case-law of the ECJ or are so manifestly clear that clarification by the ECJ would be unnecessary. The Higher Regional Court did base its review on the twofold test established by the ECJ, and in assessing the real risk of inhuman or degrading treatment in accordance with Art. 4 CFR, as required under the second element of the test, even acknowledged that the assurances provided by Romania in the complainant’s case fall short of the minimum requirements of personal space set out by the ECtHR with regard to guaranteeing prisoners detention conditions compatible with Art. 3 ECHR. Nevertheless, the Higher Regional Court concluded that the deficient prison conditions did not constitute a relevant risk of inhuman and degrading treatment under European Union law. In this regard, the Higher Regional Court considered the case-law of the ECtHR only in a selective manner and, by way of an “overall assessment”, added further considerations which it believed capable of disproving the risk of inhuman or degrading treatment in the complainant’s case. According to the case-law of the ECtHR, failure to provide at least 3 m² of personal space per prisoner in a multi-occupancy cell gives rise to the strong presumption that Art. 3 ECHR is violated. This presumption would normally only be rebutted where reductions in the required minimum personal space were short, occasional and minor; they were accompanied by sufficient freedom of movement outside the cell and out-of-cell activities; and the prisoner was held in an appropriate facility where no other aggravating conditions exist. There is a strong indication that these three conditions must be fulfilled cumulatively in order to compensate the lack of personal space if that area fell below 3 m². The Higher Regional Court failed to assess whether the 2 m² of personal space, which would be allocated to the complainant in a multi-occupancy cell if he were to serve his sentence in semi-open or open detention, could still be considered a minor (or, for that matter, short and occasional) reduction of personal space, despite the fact that this would fall significantly short of the required 3 m². Furthermore, the Higher Regional Court included factors such as improved heating systems as well as better sanitary facilities and hygiene conditions in its overall assessment: while these have indeed been regarded as compensatory factors by the ECtHR, it remains unclear whether they would suffice, in light of the recent case-law, to rebut the strong presumption that the restricted personal space resulted in a violation of the ECHR. Doubts are warranted in this respect, not least because insufficient sanitary, heating facilities and hygiene conditions as such may already result in a violation of Art. 3 ECHR, even in cases in which more than 3 m² of personal space is allocated to prisoners.

By submitting that the Romanian prison system has strengthened opportunities for prison leave, the admission of visitors, the washing of private laundry and the purchase of personal items, the Higher Regional Court relied on considerations that, to date, have not been expressly referred to in the case-law of the ECtHR for the purpose of rebutting the presumed violation of Art. 3 ECHR that follows from the provision of insufficient living space to prisoners. Moreover, the Higher Regional Court based its decision on additional considerations, such as the maintenance of intergovernmental mutual legal assistance, the functioning of the criminal justice system within the European Union as well as the principles of mutual recognition and mutual trust, the potential impunity for suspects resulting from non-extradition and the creation of a “safe haven”. While some of these considerations have indeed been referred to in the case-law of the ECJ, specifically in relation to the interpretation of Member State obligations arising under the Framework Decision on the European arrest warrant, the question of whether these considerations are equally relevant for determining the scope of the absolute guarantees set out under Art. 4 CFR or Art. 3 ECHR respectively has, however, not yet been resolved in the case-law of the ECJ or the ECtHR.