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NEWS

Cell space and open doors put European Arrest Warrant to test

editor - December 13, 2017 - European Arrest Warrant, Pre-trial detention

How much cell space is enough for surrendering a person to another EU country? What if the door of the cell is left open during the day? And do outdoor activities have an impact on the answer? These and other questions were considered by the Italian Court of Cassation when deciding whether to send someone back to Romania pursuant to a European Arrest Warrant (EAW). Read more about the Court’s conclusions in the post below, which was kindly shared by our Italian LEAP member Susanna Marietti from Antigone.

Hands on barsOn May 11th, the Venice Court of Appeal decided to surrender Mr. Cristi Daniel Enache to the judicial authorities of Romania pursuant to an EAW which was issued to serve a prison sentence for traffic offences committed in 2015. In its decision, the Court observed that the prison conditions that Mr. Enache would face – according to Romania’s claims – were consistent with the requirements of the jurisprudence of the European Court of Human Rights (ECtHR). The Court did notice that the individual cell space granted to the detainees was insufficient but argued that the freedom of movement which was guaranteed during the day would compensate for it.

Mr. Enache filed an appeal before the Court of Cassation against the ruling on the basis of several reasons, including the alleged violation of art. 18 of law n. 69/2005 according to which the Court must refuse the surrender if there is a serious danger that the wanted person would be subjected to death penalty, torture or other inhuman or degrading treatment or punishment. According to the plaintiff, the information submitted by the Romanian authorities about the prison treatment he would be subjected to in Romania was inaccurate and not specific with regards to the individual circumstances.

The Court of Cassation accepted Mr. Enache’s complaint and found that the information submitted by the Romanian authorities did not provide sufficient elements to ascertain whether the prison conditions would comply with standards of the European Court, most notably in relation to art. 3 of the European Convention on Human Rights (ECHR), which forbids torture, inhuman or degrading treatment.

Requesting information

Firstly, the Court made clear that it is necessary to ascertain the existence of a real risk of inhuman or degrading treatment with regard to the prison regime the wanted person would face in a country like Romania, where the prison conditions are characterised by serious systemic or generalised deficiencies. In support of its argument, the Court cited both domestic jurisprudence (among others Sez. 6, n. 23277, 01/06/2016, Barbu, Rv. 267296) and recent jurisprudence of the Court of Justice of the European Union (CJEU), including Aranyosi and Caldararu (C-404/15 and C-659/15 PPU), which affirmed that it is fundamental to ask the issuing State for relevant information, which needs to be “concrete and precise” with reference to the specific prison conditions the person would be subjected to.

Providing information

Secondly, the Court observed that the Romanian authorities submitted insufficient information over the prison conditions the plaintiff would face in the issuing State. In particular, no sufficient detail was given as to the detention facility of destination nor to the detention regimes, both closed (in the cell) and semi-open (outside the cell). According to the information provided, the semi-open detention regime involves the opening of the cells’ doors all day long; however, the time of the activities outside the cells was not detailed as this is left to the prison administration to decide. The Romanian authorities further failed to specify the minimum individual space granted in the cells.

Cell space, open doors and activities in prison

On the issue of the minimum individual space, the Court referred to the principles affirmed by the ECtHR (for instance, in Muršić  v. Croatia), according to which evaluating compliance of the prison conditions with art. 3 ECHR cannot be limited to a sheer calculation of the square metres assigned to the prisoner, but has to encompass the overall detention conditions.

Space is still a fundamental part of the evaluation when the personal space for a prisoner in a collective cell is less than 3 square metres. In this case there is a “strong presumption” that art. 3 of the European Convention has been violated (§ 125). It will be up to the State to challenge this presumption and prove the contemporary existence of three elements which compensate adequately for the lack of personal space, which include:

  • short-term duration of the detention regime;
  • sufficient freedom of movement and adequate activities outside the cells, and
  • generally fair prison conditions (§ 138). For instance, an hour per day of outdoor exercises, as part of a broader programme of activities outside the cell (§§ 132 and 133), may be judged adequate.

In light of all this the Court of Cassation overturned the ruling of the Court of Appeal and suspended the surrender until new specific information – following the principles mentioned above - will allow the Italian judge to ascertain the existence of a real risk of inhuman or degrading treatment Mr. Enache would face in prison.

At Fair Trials, we have been campaigning to reform the European Arrest Warrant so that it complies with human rights standards throughout the proceedings (you can find out more about our recommendations in our 2011 report here). This includes making sure that surrendered people do not spend excessive periods in pre-trial detention and that their detention conditions do not violate their fundamental rights. Read more about the use of pre-trial detention across the European Union in our 2016 report.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71. For regular updates follow Fair Trials on Twitter and Facebook or sign up to our newsletter at the bottom of the page. CFB iconlick to share this story on Facebook

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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