Ágoston Mohay, University of Pécs Faculty of Law
Introduction
The EU legal system is often viewed as a distinct entity, separate from both international and national law. Within this system, safeguarding fundamental rights is paramount. Article 6 of the Treaty on European Union (TEU) establishes a three-pronged approach to fundamental rights protection: 1) the Charter of Fundamental Rights of the European Union, 2) the EU’s commitment to the European Convention on Human Rights (ECHR), and 3) general principles of EU law derived from the ECHR and shared constitutional values of member states. Notably, in Opinion 2/13, the Court of Justice of the European Union (CJEU) found the initial ECHR accession agreement incompatible with primary EU law, although a new agreement is in progress. Despite this, the ECHR and rulings of the European Court of Human Rights (ECtHR) still inform the general principles of EU law. However, in Case C-128/18 Dorobantu, the CJEU appears to apply ECHR law in a way that deviates from its established methods.
Background and the main proceedings
At its core, the Dorobantu case examines grounds for refusing the execution of a European arrest warrant (EAW). It aligns with recent CJEU rulings on EAW limitations due to fundamental rights and rule of law concerns. This analysis, however, centers on the CJEU’s use of ECHR and ECtHR case law.
This case involved a German court (Higher Regional Court, Hamburg) executing an EAW issued by a Romanian court against Mr. Dorobantu, a Romanian citizen wanted for criminal proceedings. Based on the CJEU’s Aranyosi and Căldăraru judgment, the German court examined if “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 found evidence of systemic issues with detention conditions in Romania, drawing on ECtHR judgments. However, considering information from the Romanian court and justice ministry, it ultimately approved Mr. Dorobantu’s surrender. This decision was based on improvements in Romanian detention conditions and measures to address limited personal space. The court also considered that refusing the EAW would hinder judicial cooperation by leaving Mr. Dorobantu’s crimes unpunished.
Following the German court’s orders, Mr. Dorobantu’s surrender was authorized after his German prison sentence for other offenses. Upon release, he filed a constitutional complaint with the Federal Constitutional Court of Germany (Bundesverfassungsgericht). This court overturned the Hamburg Regional Court’s orders on three grounds: 1) infringement of Mr. Dorobantu’s right to a fair hearing under German law, 2) the Hamburg court’s assessment of Romanian detention conditions used criteria not explicitly endorsed by the ECtHR as compensating for reduced personal space, and 3) neither the CJEU nor the ECtHR had previously ruled on the relevance of criminal justice cooperation and preventing impunity when deciding EAW execution. The case was then returned to the Hamburg court.
This court then sought a preliminary ruling from the CJEU. It aimed to clarify the requirements of Article 4 of the EU Charter (mirroring Article 3 of the ECHR, prohibiting torture and inhuman or degrading treatment, including poor prison conditions) regarding detention conditions in the issuing Member State. Additionally, the German court sought clarification on the “real risk” of inhuman or degrading treatment, as used by the CJEU in Aranyosi and Căldăraru.
The Court’s judgment
The German court’s preliminary ruling request sought to clarify minimum standards for detention conditions under the EU Charter and the meaning of “real risk” as used in Aranyosi and Căldăraru. Initially, the CJEU reviewed and reaffirmed the EU’s fundamental rights framework. It highlighted mutual trust and recognition in EU justice and home affairs law. The CJEU added that these principles might be limited in exceptional circumstances, as seen in Aranyosi and Căldăraru, Minister for Justice and Equality (Deficiencies in the system of justice), and Generalstaatsanwaltschaft (Conditions of detention in Hungary), but only with concrete evidence. However, the CJEU encountered an obstacle: the Hamburg court needed guidance on evaluating detention conditions related to personal space for detainees, but EU law lacked regulations on this matter.
Consequently, the CJEU took a novel approach: “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 clarifies: “…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.”
Subsequently, the CJEU, drawing upon Muršić v. Croatia and its own judgment in Generalstaatsanwaltschaft, analyzed the minimum necessary space. It concluded that upon surrender, Mr. Dorobantu should be detained in conditions allowing sufficient movement and work opportunities to minimize time in a shared cell. The referring court was tasked with verifying information and assessing other relevant factors for its analysis.
(The CJEU further determined that access to legal remedies in the issuing Member State doesn’t preclude a real risk of inhuman or degrading treatment. It also stated that this risk cannot be weighed against the effectiveness of judicial cooperation or principles of mutual trust and recognition.)
Commentary
The ECHR, to which all EU Member States belong, has long been integral to the EU’s fundamental rights framework. Since the 1970s, the CJEU has cited it as a key source for the general principles of EU law. Its importance is amplified by the fact that the EU Charter only became legally binding in 2009 with the Treaty of Lisbon. The CJEU has for decades used the ECHR and ECtHR case law, along with shared constitutional traditions of member states, as guides for developing its own body of law on fundamental rights as unwritten principles of EU law. This concept was acknowledged and endorsed by a joint declaration from the European Parliament, the Council, and the Commission in 1977. Therefore, relying on the ECHR, the “gold standard” for human rights protection in Europe, is not new. Even though the Treaty of Lisbon made the Charter of Fundamental Rights of the EU legally binding, Article 6(3) TEU explicitly acknowledges the continued relevance of the general principles in the post-Lisbon era. Furthermore, Article 52(3) of the Charter itself references the ECHR.
However, the CJEU’s method in Dorobantu of directly applying Article 3 ECHR as interpreted by Muršić v. Croatia is novel. Notably, the judgment does not mention the general principles of EU law or its own jurisprudence on how the ECHR indirectly influences EU law. In Dorobantu, the CJEU saw no need to invoke general principles of EU law as a bridge for the ECHR to have an effect within the EU legal order.
The CJEU does reference the ECHR for other reasons, primarily to bolster its arguments, but again, not as a direct application. For comparison: In the landmark N. S. and M. E. judgment (finding that asylum-seekers under Greece’s responsibility per the Dublin system faced an Article 4 Charter risk), the CJEU referenced the ECtHR’s M. S. S. judgment. However, it did so to highlight similarities and, importantly, argue that national courts in the EU were equipped to assess other Member States’ compliance with fundamental rights in the Dublin system context. The CJEU further cited the case to compare the scope of relevant rights under the Charter and ECHR. (Admittedly, EU law wasn’t lacking rules on Dublin procedures, making the situation somewhat different). In the aforementioned Aranyosi and Căldăraru case, the CJEU cited ECHR and ECtHR jurisprudence to argue that Article 4 of the EU Charter, mirroring Article 3 ECHR, was absolute and non-derogable under Article 15(2) ECHR. (It’s also worth noting that the German court’s request for a preliminary ruling was partly prompted by the ECtHR judgment in Varga and others v. Hungary.)
Moreover, since Kamberaj, it’s established that Article 6(3) TEU doesn’t confer upon the ECHR the benefits of direct effect and primacy over national law. This is because the TEU doesn’t govern the relationship between the ECHR and Member States’ legal systems, so it cannot make the ECHR a directly applicable, quasi-EU law norm taking precedence over national law. Given Kamberaj, we can rule out that the ECHR was applied in Dorobantu via the principles of direct effect and primacy.
While the CJEU’s approach in Dorobantu is new regarding the ECHR, it mirrors a method used in Poulsen and Diva Navigation. In this fisheries case, a national court asked the CJEU whether EU law (then Community law) had provisions on distress situations. It did not. The CJEU, stating “[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”, directed the national court to international law.
Research shows that since the Treaty of Lisbon, the CJEU cites the ECHR and ECtHR case law less frequently. The EU’s accession to the ECHR has been stalled since the CJEU’s heavily debated _Opinion_ 2/13, which focused on EU autonomy, although there have been recent developments. Time will tell if the novel referencing method in Dorobantu (by the Grand Chamber, no less) becomes common practice and if the Court will use it as a stopgap until the EU formally accedes to the ECHR. Regardless, the Dorobantu judgment highlights the significance of judicial dialogue between European courts.
Dorobantu also has broader implications for the interplay between international and EU law, particularly applying international law norms within the EU legal system. This recent judgment seems to align with cases like Haegeman, Racke, ATAA, or Front Polisario which demonstrate a strong openness to international law (or a monist approach) by the CJEU. These cases appear to contrast with judgments based on a more autonomy-focused (or dualist) approach, such as Kadi, Achmea, or even Opinion 2/13.
Finally, one can’t help but notice a touch of irony. In Opinion 2/13, the CJEU found it problematic that EU Member States could sue each other in Strasbourg for ECHR violations, while EU law mandated that they uphold mutual trust. Now, in another EAW-related judgment, the CJEU (similar to Aranyosi and Căldăraru, Minister for Justice and Equality, and Generalstaatsanwaltschaft), has used ECtHR jurisprudence – in one way or another – to emphasize the existence of exceptional cases where Member States must deviate from the principle of mutual trust.
Barnard & Peers: chapter 9, chapter 25
Photo credit: via Wikicommons