June 22, 2021
By William Julié, founding partner of William Julié Law Office and international criminal law officer at the International Bar Association, and Juliette Fauvarque, trainee lawyer at William Julié Law Office.
In the recent Bivolaru and Moldovan v. France case, the European Court of Human Rights (ECtHR) handed a landmark judgment in relation to the execution of European arrest warrants (EAWs) between Member States of the European Union (EU) and the equivalent protection doctrine. For the first time, the ECtHR decided that the execution of an EAW violated Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture, inhumane and degrading treatment. As we shall see, this case sends a clear warning to all European judges – national or supranational – that the execution of EAWs is subject to the ECtHR’s jurisdiction.
Under the doctrine of equivalent protection, also known as the ‘Bosphorus’ presumption (by reference to the case in which it was first established by the Court), States Parties to the ECHR are presumed to have abided by their obligations under the Convention when applying EU law. This presumption was established by the ECtHR in consideration of the fact that the EU, as an international organization, offers substantive guarantees in the protection of fundamental rights under the Charter of Fundamental Rights, general principles of EU law and the case law of the Court of Justice of the European Union (CJEU).
Two applications were joined in this case. Both concerned French decisions granting the execution of EAWs issued by the Romanian authorities against Romanian nationals for the purpose of serving a custodial sentence. The joinder of these two cases nevertheless resulted in different verdicts, as the Court found a violation of Article 3 in respect of one of the applicants, and no violation in respect of the other.
The first applicant, Mr. Codrut Moldovan, was convicted by a Romanian court to seven years and six months imprisonment for crimes of human trafficking committed in France and Romania. A European arrest warrant was subsequently issued by the Romanian authorities. With references to the case law of the CJEU and the ECtHR, Mr. Moldovan argued that his surrender to Romania would lead him to endure conditions of detention contrary to Article 3 of the ECHR. The Romanian issuing authority assured the French executing authority that Mr. Moldovan would be detained in conditions compatible with Article 3. These assurances were found sufficient by the Court of Appeal of Riom, which granted execution of the EAW. This decision was then upheld by the French Court of Cassation.
The second applicant, Mr. Gregorian Bivolaru, was convicted in absentia by a Romanian court in 2013 to a term of six years imprisonment on counts of sexual offences against a minor. During investigations, the defendant had fled to Sweden and been the subject of first extradition proceedings for the purpose of being tried in Romania. The Swedish Supreme Court denied his extradition on the ground that he would face persecution in Romania based on his religious beliefs and his activities as leader of the ‘movement for spiritual integration into the absolute’. The Swedish authorities subsequently granted Mr. Bivolaru the status of refugee under the Geneva Convention. After his conviction, the applicant was arrested in France pursuant to a Romanian EAW issued for the purpose of serving his sentence. He argued before the Paris Court of Appeal that his refugee status barred his surrender to Romania. He also claimed that he would be subject to inhuman and degrading detention conditions in Romania. The Paris Court of Appeal, having sought further information from Swedish authorities, concluded that the applicant’s refugee status did not constitute an obstacle to the execution of the EAW, as Romania had, since then, acceded to the EU. Besides, this argument fell outside the grounds of non-execution of EAWs, which are exhaustively listed in the EAW Framework Decision. Furthermore, the allegations made by the applicant were considered too vague to create a grave risk that he would be subject to inhuman conditions of detention if surrendered. Consequently, the French Court of Appeal granted the execution of the EAW, and that decision was upheld by the Court of Cassation.
Mr. Moldovan and Mr. Bivolaru decided to challenge the decisions against them before the ECtHR on the ground that their surrender to Romania would violate the prohibition of inhuman and degrading treatment under Article 3. In substance, the applicants were alleging that the execution by a Member State of its obligations under the law of the EU constituted a violation of the ECHR – a situation likely to create a conflict of norms between EU law and the ECHR.
The Court’s Assessment of the Equivalent Protection Doctrine
When an application to the ECtHR relates to the execution by a Member State of an EU law norm, the ECtHR must decide either to uphold the presumption of equivalent protection and reject the application, or to rebut the presumption and exercise its full jurisdiction over the applicant’s claim. The latter scenario places the Court in a difficult situation: whilst it cannot rule on the legality of EU law, it must rule on the alleged breach of the ECHR by a Member State.
Under the case law of the ECtHR, the presumption is applicable under two cumulative conditions. The first condition regards the absence of any margin of appreciation on the part of domestic authorities, meaning that the latter must have no discretion in the execution of their obligations under EU law. The second condition requires that the potential of EU law has been fully exploited, meaning that the CJEU must have had the opportunity to assess the compatibility of the contentious obligation with fundamental rights. Despite this condition, domestic courts are not compelled to bring a prejudicial question before the CJEU when no serious issue arises, or when the matter has already given rise to a decision of the CJEU and there is no doubt as to its compatibility with fundamental rights. Only upon satisfaction of these two conditions is the presumption of equivalent protection applicable and the applicant’s claim rejected without further examination. That being said, the presumption of equivalent protection is never absolute: even if the two conditions are satisfied, the presumption may be rebutted and the Court will find a violation of the Convention if ‘in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient’.
Both applicants argued that the presumption of equivalent protection should not apply to their cases. With regards to the first condition, the Court considered whether the French authorities had discretion in establishing whether there was a ‘real and individualised risk’ that the applicants would be submitted to ill-treatment if surrendered to Romania. The Strasbourg judges concluded that the executing authority’s mandate was strictly delineated by EU law and that the executing authority does not enjoy an autonomous margin of appreciation in deciding whether or not to execute a European arrest warrant. Therefore, in both cases, the first condition of the presumption was met.
With regard to the second condition of the presumption, the ECtHR’s assessment differed from one case to the other. In Moldovan’s case, the ECtHR found that in light of the well-established case law of the CJEU, no particular difficulty arose as to the interpretation of the 2002 Framework Decision, therefore requiring no referral before the CJEU. The ECtHR concluded that the presumption of equivalent protection was applicable. It then proceeded to analyse whether a rebuttal was possible on the ground of manifest deficiency. In this regard the Court considered that the information Mr Moldovan had provided was sufficiently substantial to confirm the real risk of ill-treatment he would endure if surrendered to Romania. Interestingly, the Court further noted that the French judicial authorities should not have relied on assurances provided by Romanian authorities regarding the conditions of detention, which were deemed insufficient to dismiss the risk of ill-treatment. The information provided by Romania contained stereotypical language and it did not sufficiently address the Court’s case law concerning endemic overcrowding in prisons. The ECtHR therefore concluded that the protection of fundamental rights had been ‘manifestly deficient’, and consequently rebutted the presumption of equivalent protection. As a result, the Court unanimously declared that France had violated Article 3 of the European Convention.
The Court reached a different conclusion in the case of Bivolaru. The applicant’s refugee status placed him in an unusual situation as he had been granted asylum by Sweden prior to Romania’s accession to the EU, and Romania was now seeking his surrender. The ECtHR thought that this novel question should have been referred to the CJEU for examination. Because the applicant and the competent French courts failed to seek a preliminary ruling from the CJEU regarding the consequences of the applicant’s refugee status on the execution of the EAW, EU law had not deployed its full potential in the protection of the applicant’s fundamental rights. The presumption of equivalent protection therefore could not apply in Mr Bivolaru’s case.
The ECtHR then proceeded to examine whether the execution of the EAW entailed a violation of the applicant’s rights under Article 3 in light of the conditions in which he would be detained and because of his refugee status. With regards to conditions of detention, the Strasbourg judges noted that the French authorities had correctly evaluated both the applicant’s evidence as well as the information provided by Romanian authorities. It found that the information submitted by the applicant was insufficient to suggest a risk of violation of his Article 3 rights and concluded that, in accordance with the case law of the CJEU, the French executing authority was not required to seek additional information or guarantees from the Romanian issuing authority. As for Mr Bivolaru’s refugee status, the ECtHR considered whether there was a real risk that, if the EAW were executed, the applicant would be exposed to persecution and degrading treatment on account of his political and religious beliefs. It decided that the executing authority had correctly assessed the applicant’s claim in this matter and that nothing indicated that he was still subject to a risk of persecution on religious grounds in Romania. For these reasons, the judges found no violation of Article 3.
This judgment became the third ECtHR ruling relating to the functioning of the European Arrest Warrant mechanism after the Pirrozzi v. Belgium and Romeo Castaño v. Belgium judgments. It recalls that all Member States’ decisions, regardless of their legal basis, are subject to scrutiny by the ECtHR.
Unsurprisingly, applications against the execution of EAWs by Member States fall under the scope of the Bosphorus presumption. The Court expressly acknowledged the importance of mutual trust within the European area of security, liberty and justice, and reiterated that the presumption of equivalent protection applies to every EU mechanism (§100). From this point of view, the Bivolaru and Moldovan judgment is consistent with Pirrozzi v. Belgium, in which the ECtHR made use of the presumption to consider whether the execution by Belgium of an Italian EAW violated Articles 5 and 6 of the ECHR. After noting that the presumption of equivalent protection was applicable and that there had been no manifest deficiency in the protection of the applicant’s rights under Articles 5 and 6 of the Convention, the Court rejected the application. Even though the Court found no violation in Pirrozi v. Belgium, it left the door open to a finding of violation in future cases. In Romeo Castaño, the ECtHR did find a violation of the Convention, but in a very different set of facts (Belgium’s failure to execute EAWs in respect of murder suspects violated the victims’ families right to an effective investigation under Article 2 of the ECHR). The Bivolaru and Moldovan case therefore marks the first judgment in which the Court rebutted the equivalent protection doctrine and found that the execution of an EAW violated Article 3.
Beyond the high symbolic value of this finding, the Bivolaru and Moldovan judgment clarifies three important points in relation to the execution of EAWs by Member States: the conditions of application of the presumption of equivalent protection in EAW cases; the execution of EAWs in respect of European refugees; and the role of assurances in theassessment of a risk of inhuman and degrading detention conditions.
The Clarification of the Presumption of Equivalent Protection in EAW Cases
This ECtHR judgment is the first to make a detailed application of the presumption of equivalent protection in EAW cases. In the first EAW case, Romeo Castaño, the Court did not consider the presumption because it was not relevant. In the second (Pirrozzi), the Court applied the presumption but did not get into its conditions in very much depth. By contrast, in Moldovan and Bivolaru, the Court made a complete assessment of the presumption.
In its assessment of the first condition of the presumption, the Court concluded that the executing authority did not enjoy an autonomous margin of appreciation in the execution of EAWs. This interpretation was not self-evident. As the Court itself noted, the executing authority is entitled to depart, in exceptional circumstances, from the principles of mutual trust and recognition in order to delay or refuse the execution of the EAW (§113). However, the Court proceeded to state that the executing authority’s power to assess the facts, circumstances and legal consequences to be attached thereto is exercised within the framework strictly defined by the case law of the CJEU (§114). The Framework Decision and the CJEU’s case law (since its well-known Aranyosi and Caldararu judgment) do indeed provide precise instructions for national judges to follow when deciding whether there is a real risk of a human rights violation. But this question often gives rise to diverging findings among Member States.
For example, the District Court of Amsterdam, which has exclusive jurisdiction over EAWs in the Netherlands, has recently decided to suspend all EAWs from Poland, without conducting an individualised appreciation of the facts and circumstances of each case. According to the Amsterdam Court, the recent changes in the Polish judiciary interfered with the rule of law in such a way that it can no longer be called impartial and independent (the case has been referred to the CJEU). By contrast, the other Member States continue to deal with Polish EAWs on a case by case basis along the lines of the CJEU LM judgment, in which the Luxembourg court extended its Aranyosi and Caldararu case law to the right to a fair trial. Some judges have refrained to execute Polish EAWs on that basis, such as judges in Germany and Ireland, but other Member States seem to have not followed this path.
The example of Polish EAWs thus illustrates that executing authorities retain a certain magnitude in applying the CJEU’s case law on the possibility of refusing the execution of EAWs on human rights grounds. Therefore, in the present case, we might find it odd that the ECtHR concluded that the French executing authority lacked discretion in assessing whether there was a real and individualised risk of human rights violation.
The fact that the Court decided to exercise its substantive review of Article 3 at the stage of the manifest deficiency test instead of the first condition of the presumption is significant. By upholding the presumption of equivalence, the Court shows its full deference to European law and suggests that the EAW mechanism is adequately protective of human rights as a whole. Meanwhile, under the ‘manifest deficiency’ test, it is merely the individual decision of the State that is called into question by the Court. The Court therefore makes a clever and subtle articulation between its concern, on the one hand, not to challenge European Union law head-on and, on the other hand, to exercise its full control over the Member States’ compliance with Article 3.
The Execution of EAWs in Respect of European Refugees
The case of Bivolaru dealt with a very specific question which had never been raised in EAW proceedings: that of a person who has been recognised as a refugee under the Geneva Convention by a Member State and is the subject of an EAW issued by the authorities of his State of origin, which acceded to the EU subsequent to the recognition of the requested person’s refugee status. The applicant argued before the ECtHR that the French courts should have asked the CJEU whether the principle of non-refoulement constituted a ground for non-execution of the EAW. The French government argued that this question did not raise a serious new issue because the CJEU had already held in a previous case, I.B, that an asylum application in the executing State (Belgium) did not constitute a ground for non-execution as all Member States are to be considered as ‘safe countries’ in respect of one another. However, in I.B., the requested person, who was also a Romanian national facing criminal proceedings in Romania, had only applied for asylum in Belgium after the date of the arrest warrant and his application was refused by the first instance national asylum officer. The ECtHR therefore distinguished the cases on their facts and held that the question in Bivolaru had never been dealt with by the CJEU. Even though the ECtHR eventually rebutted the presumption and examined whether the French judges conducted a proper analysis of the facts and the evidence before them, it did not examine the question in itself (did Mr Bivolaru’s refugee status constitute a ground for non-execution?), which remains unanswered pending a decision of the Luxembourg court.
Even if the facts which gave rise to this judgment are unusual, the ECtHR reminds Member States of the importance of seeking a preliminary ruling from the CJEU in cases of doubt as to the proper interpretation of the Framework Decision. In this way, the Strasbourg judges certainly show a certain degree of commitment to the proper functioning of the EAW.
By contrast, the Court’s interpretation of Article 3 in the case of Moldovan brings new attention to the limits of the application of the principle of mutual trust in EAW proceedings.
The Court’s Critical Appreciation of Assurances in Light of Article 3
In the case of Moldovan, the ECtHR made a crucial clarification as to the role of assurances in the assessment of whether the execution of an EAW entails a violation of Article 3. On the one hand, the Court expressly recognized that the CJEU applies equivalent guarantees regarding the protection of Article 3 in extradition proceedings (§114). On the other hand, the Court seems to go further than the CJEU when it comes to the assessment of the quality and reliability of information provided by the requesting authority.
If one considers the case law of the CJEU on EAWs, it requires the executing authority to seek additional information from the requesting authority when the evidence provided by the requested person suggests a real risk of ill-treatment. Then the executing authority ‘must rely, in principle, on the assurances given by the issuing judicial authority, in the absence of any specific indications that the conditions of detention infringe Article 4 of the Charter’ (Dorobantu, 15 October 2019, C-128/18, §85). In other words, the CJEU does not require the executing authority to assess the quality of the assurances provided in any particular way. Instead, it leaves it to the executing authority to decide on the reliability of the said assurances. Therefore, the fact that the ECtHR found a violation of Article 3 in the case of Mr Moldovan effectively limits the executing authority’s discretion in assessing whether the information and assurances provided by the requesting authority are sufficient to dismiss a risk of ill-treatment.
Member States should therefore be careful not to reject serious allegations of degrading detention conditions on the basis of generic and unsubstantiated assurances on the part of the issuing authority. We can only hope that this landmark judgment gives the CJEU an opportunity to provide more nuance in its case law on the role of assurances in EAWs so as to ensure that mutual trust does not systematically trump risks of human rights violations.
At a time when EAWs are already under pressure due to the increased reluctance of national judges to execute them on human rights grounds, Bivolaru and Moldovan marks a new setback for mutual trust in the EU. The ECtHR has made clear it will ensure that mutual trust regarding criminal cooperation in the European area of liberty, security and justice does not endanger the effectiveness of the rights guaranteed by the ECHR. This case dealt with the right not to be subjected to torture, inhuman and degrading treatment, but we can only imagine that the Court’s findings will also apply to the right to a fair trial under Article 6. Thus, until a standard, harmonised protection of human rights can be established by all Member States, mutual trust in the EU will have to coexist with human rights safeguards under the watchful eye of the Strasbourg Court.