Council of the European Union Brussels, 16 June 2017 (OR. en)

Conseil UE Council of the European Union Brussels, 16 June 2017 (OR. en) 10429/17 NOTE From: To: Commission No. prev. doc.: 9927/17 Subject: LIMITE JAI 610 COPEN 206 EUROJUST 95 EJN 43 Working Party on Cooperation in Criminal Matters PUBLIC Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States - Comments and questions by the Commission on recent case law Comments and questions by the Commission on recent case-law of the Court of Justice of the European Union regarding the Framework Decision on the European arrest warrant A. Follow-up to Aranyosi and Căldăraru In the Aranyosi and Căldăraru judgment, the Court of Justice of the European Union (CJEU) expressly recognised that poor detention conditions can hamper the efficient operation of EU mutual recognition instruments, such as the European arrest warrant (EAW). The CJEU held that the execution of an EAW must be deferred or eventually brought to an end if there is a real risk of inhuman or degrading treatment because of the conditions of detention of the person concerned in the Member State where the warrant was issued. 10429/17 SC/mj 1 DG D 2B LIMITE EN

The requests for additional information on detention conditions in the context of Article 15(2) FD EAW may lead to considerable delays in the execution of EAWs. As the number of such cases has seriously increased over the last year, a common EU approach will be needed to reduce those delays. As a follow-up to the discussions with Member States in the context of the Roundtable on Detention organised by the Commission on 20 October 2016, the Commission proposes to develop an common questionnaire to be used in the context of requests for additional information under Article 15(2) FD EAW in order to enhance the smooth operation of the EAW. Member States have stressed the need for a standard questionnaire with requests for additional information on detention conditions in a concrete case. This could relate to individual space of the cell, hygiene or healthcare or the existence of any national or international mechanisms for monitoring detention conditions. In addition, a common database on detention conditions within the EU was suggested by some Member States. To make the information comparable and measurable, common indicators would need to be developed, which could be similar to the ones used in the standard questionnaire. The database could also contain judgments of international courts, such as the European Court of Human Rights, courts of the issuing Member State, as well as decisions, reports and other documents produced by bodies of the Council of Europe (CoE) or under the aegis of the UN. You will find the Report of the Roundtable on Detention in the Annex. Question A: The Commission would like to ask the Member States for their opinion and possible suggestions for the development of the above-mentioned tools. 10429/17 SC/mj 2 DG D 2B LIMITE EN

B. Follow-up on "judicial authorities" - Poltorak, Öczelik, Kovalkovas The Commission would like to refer to the discussion about the notion of "judicial authorities" as interpreted by the CJEU in the case-law of 10 November, 2016 (Cases C-452/16 PPU ( Poltorak), C-453/16 PPU (Öczelik) and C-477/16 PPU (Kovalkovas). The CJEU stated that the notion of judicial authorities is an autonomous notion of the EU law and the authorities such as the Swedish police service (Rikspolisstyrelsen) or an organ of the executive, such as the Ministry of Justice of the Republic of Lithuania cannot be covered by the notion of "issuing judicial authority" in the meaning of Article 6 (1) of the Framework Decision on EAW. As a consequence of this case-law several Member States have recently amended their legislation to ensure the compliance with the CJEU interpretation. At the CATS meeting of 18 November 2016, the Commission asked the Member States to notify the "specific notifications", declarations and practical information if required by the Framework decisions to the MNE database. Having in one place all relevant information necessary for the functioning of particular instrument ensures legal certainty and eases the Commission monitoring tasks. Question B1: The Commission would like to request the Member States to notify to the MNE database all changes of the competent judicial authorities. Question B2: The Commission also would like to ask the Member States to present the current state of play in this area. C. Follow-up on Petruhhin regarding extradition of EU citizens to third countries In the Petruhhin judgment of 6 September 2016 (Case C-182/15), the CJEU stated that if an EU Member State who provides for a possibility not to extradite its own citizens to a third country, receives an extradition request from a third country regarding a citizen of another EU Member State, the requested Member State must inform about it the Member State of nationality of the requested person and must give a priority to a potential EAW from the latter over the original extradition request. 10429/17 SC/mj 3 DG D 2B LIMITE EN

The practical consequences of the application of the "Petruhhin mechanism" seem however very limited. Several conditions need to be met before the requested person could be surrendered to its Member State of nationality and not to the third country. They include the existence of jurisdiction to prosecute the requested person for offences committed outside its national territory and the existence of sufficient evidence to issue the national arrest warrant, which as clarified by the CJEU in the Bob Dogi judgment- is the condition to issue a EAW. Besides, the requested Member State must have in place the rules on non-extradition of its own nationals. In this context, the Commission would like to know how "the Petruhhin mechanism" is being used in the Member States so far: Question C1: Are there any cases of the application of the mechanism that resulted in the surrender of the requested person to its Member State of nationality and not to the third country? Question C2: How many Member States are actually concerned by the obligation to trigger the Petruhhin mechanism? Question C3: Does your country provide for a possibility of non-extradition of its own nationals (a nationality exception)? The Member States who provide for a possibility of non-extradition of its own citizens are obliged to trigger the Petruhhin mechanism whenever they receive a request for extradition of another Member State national. Therefore there is a need to establish a mechanism ensuring a swift verification with the Member State of nationality. Question C4: The Commission would like to ask the Member States whether they find it appropriate to establish national focal points (for instance at the Ministries of Justice) that would facilitate the application of the Petruhhin mechanism. The role of such focal points would be to verify whether there is a jurisdiction to deal with the case and if positive, to send the case to the competent judicial authority. As it results from the discussions at the COPEN of 15 December 2016, it is often difficult to designate the national authority that is competent to deal with such cases. This process could be assisted by Eurojust. 10429/17 SC/mj 4 DG D 2B LIMITE EN

The Commission also stressed the importance to act swiftly and in a harmonious manner. Therefore it may be necessary to impose deadlines for all actors involved. First the focal points (with the assistance of Eurojust, if necessary) should be able to evaluate whether the Member State of nationality has jurisdiction. Such verification should be done in short period of time. Short deadlines are particularly important if the requested person is in detention (e.g. up to 10 days). If the requested person is not in detention, the time limit can be longer. Secondly Once the jurisdiction is established, the competent judicial authority should be designated (with the assistance of Eurojust and/or EJN, if necessary) to evaluate a possibility of issuing a EAW. Another short deadline, taking into account whether the requested person is in detention, should be imposed (e.g. up to 15 days if the requested person is in detention). The time limits could be longer if that's not the case (e.g. up to 60 days). If there is a need to gather additional information, this time limit could be extended. Question C5: the Commission would like to ask the Member States for their opinion on the necessity and the length of the above presented deadlines. 10429/17 SC/mj 5 DG D 2B LIMITE EN

ANNEX EUROPEAN COMMISSION DIRECTORATE-GENERAL JUSTICE and CONSUMERS Directorate B: Criminal justice Unit B.2: Procedural criminal law Roundtable on Detention in the EU 20 October 2016 Brussels Detailed minutes of the meeting Member States: AT, BE, BG, CZ, DE, EE, EL, ES, FI, FR, HR, HU, IE, IT, LT, LV, MT, NL PL, PT, RO, SI, SE, SK and UK Organisations and individual experts: Council of Europe, Fundamental Rights Agency (FRA), Fair Trials International (FTI), EuroPris, Confederation of European Probation (CEP), Helsinki Committee, Hungary, Institut für Rechts-und Kriminalsoziologie, Austria, Instituut voor Criminalistiek en Criminologie, Belgium, the Human Rights Monitoring Institute, Lithuania, Centre for Strategy and Evaluation Studies (CSES) COM: Alexandra JOUR-SCHROEDER, Tania SCHROETER, Jesca BENEDER, Clara REY SANCHEZ EP (LIBE Committee): Amparo RUEDA BUESO, Danai PAPADOPOULOU 10429/17 SC/mj 6

Enhancing mutual trust in the area of detention COM COM notes that detention conditions are primarily a responsibility of MSs but also a concern of the EU. Detention conditions are not always in line with Council of Europe standards. There are some critical judgments of the European Court of Human Rights (ECtHR). Poor detention conditions are often the result of prison overcrowding. 10 out of 28 MSs have a prison occupancy of over 100%. There are ways that EU structural funds can be used to improve prison conditions, mainly sanitary conditions (e.g. central heating or hot water). Prison conditions have become more of a priority over the years. One of the reasons for this is that radicalisation in prisons can lead to terrorist attacks. There is also evidence that poor detention conditions create obstacles to EU mutual recognition instruments such as the EU Framework Decision on the transfer of prisoners and the European arrest warrant (EAW). There are more and more refusals to surrender suspected or convicted persons from one MS to another MS because of poor prison conditions. A German judge has referred preliminary questions to the Court of Justice of the EU (CJEU), the so-called Aranyosi/Caldararu case. The CJEU ruled that the surrender of a detainee can be deferred if there is a real risk of inhuman or degrading conditions in the prison which they would be sent to. The CJEU delivered its judgment on 5 April 2016. (Cases C-404/15 and C- 659/15 PPU of 5 April 2016), referred to hereafter as the Aranyosi judgment. As a result of this judgment, MSs can no longer ignore prison conditions in other MSs. Today s discussion is about the consequences of this judgment and ideas for potential practical solutions. Presentation by Mr Jonas Grimheden of a report by the European Union Agency for Fundamental Rights (FRA) on Criminal detention and alternatives in the EU FRA has a mandate to advise the EU and MSs on fundamental rights issues. In connection with three EU Framework Decisions - Transfer of Prisoners, Probation and Alternative Sanctions and European Supervision Order (ESO) - FRA noted that a key theme was to facilitate the social rehabilitation of sentenced persons, to protect victims and to reduce detention by promoting non-custodial measures. 10429/17 SC/mj 7

FRA was requested by COM to draft a report in 2014. Based on information drawn from consultations/interviews with experts, conferences and projects, it will publish its final report in November 2016. The focus is on three aspects across the three Framework Decisions: Nature of consent, victims rights and rehabilitation. The following conclusions can be drawn from the report: COM To ensure effective implementation of the three Framework Decisions, the EU and its MSs need to take further action; Pre-trial detention must be reduced in many MSs to comply with international human rights standards and to avoid discrimination on the basis of nationality; To ensure effective implementation of the three Framework Decisions, MSs should treat detention as a last resort especially at the pre-trial stage, when suspects have not been found guilty; A general reduction of detention must also be sought to avoid overcrowding, which can lead to poor prison conditions. In order to highlight that the Aranyosi judgment will give rise to many practical questions, COM pointed out that there is a follow-up case (Case C-496/16) currently pending before the CJEU. Discussion with MSs. The questions for the subsequent discussion were: Are you aware of application of the Aranyosi criteria by national courts in your Member State? 1) What type of information will be needed (both from general sources and from the issuing State) in order to make an assessment whether a real risk of inhuman and degrading treatment exists because of detention conditions in general and in the particular circumstances of the case for the requested person? 2) Do you perceive that this type of information is easily available? Would there be a need in bringing together at EU level (objective) information on general detention conditions in the Member States and on specific detention facilities in the Member States? 3) Do you perceive that there needs to be a follow-up after surrender to ensure that the assurances provided for by the issuing State are effectively complied with? Would there be a role for national bodies monitoring prison conditions (such as National Preventive Mechanism or NPMs) in this respect? 4) Which are the challenges faced in your Member State which have a direct impact on detention conditions and which solutions have been found so far? 10429/17 SC/mj 8

Spain Spain suggests that the Aranyosi judgment seems to indicate forgetting the Melloni judgement. The Aranyosi judgment limited itself to the possibility of suspending and not executing an EAW based on the EU Charter of Fundamental Rights and refers to the risk of inhuman or degrading treatment. Spain expects the judgment to pose problems for EAWs for the two countries concerned by it (i.e. RO and HU). In Spain, the consequences of the Aranyosi judgment have not filtered down to individual courts yet. For Spain, it is not difficult to obtain evidence about prison conditions (e.g. from the Committee for the Prevention of Torture (CPT) or ECtHR rulings). So it is easy to see what are seen as the systemic shortcomings in detention conditions. A key question is to determine what is meant by risk of inhuman or degrading treatment in the CJEU judgement as this concept risks to be interpreted differently by the MSs. Spain s view is that there is a need for a common EU definition. Another problem is to understand the limits of the scope opened up by the Aranyosi judgment (i.e. should one look at human rights relating to prison conditions not complying with Article 3 of the European Convention on Human Rights alone or also other rights/procedural safeguards). There is a recent judgment of the German Constitutional Court addressing this question. These are the sorts of questions judges are facing now. Germany National courts in Germany use the Aranyosi criteria. A number of judgments in Germany have been based on the CJEU ruling. Courts are trying to find out information about detention conditions before they look at abstract risks. The trend in courts is to be negative regarding any applications for transfers to the Member States covered by the Aranyosi judgment (i.e. Romania and Hungary). Courts want to know to which prison a person will go to after their surrender. But often MSs cannot answer this question already at the moment of surrender because committees decide which prison the prisoner finally goes to. Detention conditions vary from prison to prison. Courts find it hard to find relevant information. Some use CPT reports, reports from the German Ministry of Justice or do inspection visits to different prisons. Germany took the view that we need to avoid creating new structures as it would be better to use existing structures, especially the Council of Europe CPT. Cooperation needs to be improved there. Germany suggested more support for the CPT. 10429/17 SC/mj 9

Croatia Croatia does not have information yet on whether national courts have applied the Aranyosi criteria as the executing State. Croatia agrees with Germany that existing mechanisms should be applied and cooperation improved. It also uses CPT reports and ombudsman reports. Croatia pointed out that, when it is acting as a state that has received a request for additional information under a EAW from another MS (i.e. acting as the EAW issuing State), it cannot easily answer a request from that other MS about which prison the suspect will end up in. This is because there is an examination period in which the authorities determine, for example, where the suspect will be held in pre-trial detention. Austria There was a ruling from the Vienna Supreme Court. The first instance court decision was that the person could be surrendered. The court of appeal said no. The court of appeal asked for information on which prison the person would be sent to, but got no reply. It may be that the issung State was not able to indicate yet to which prison the prisoner would go to. So the surrender was refused. Poland The courts are in a difficult position in the Melloni and the Aranyosi judgments. There is lots of uncertainty about fundamental rights issues which do not follow clearly from the text of the Framework Decision on the EAW but need to be interpreted by the courts. The Aranyosi judgment says: If the existence of that risk cannot be discounted within a reasonable period, the authority responsible for the execution of the warrant must decide whether the surrender procedure should be brought to an end. But what does brought to an end mean? If it means that the executing State should refuse it, why did the CJEU not say that? Or does it mean that the executing State should follow through and transfer the person? Poland understood it to mean that the person should not be transferred but did not understand why the CJEU did not express that directly. Poland points to a risk of a two tier system because of the Aranyosi judgment. Prisons with better conditions will have people surrendered under an EAW and those with inferior conditions will only have national convicts. This could lead to people being treated differently depending on if they are international or national prisoners. 10429/17 SC/mj 10

Hungary As an issuing State, Hungary has received many requests for complementary information and guarantees from the UK. It received requests for 164 cases so far. Different MSs ask different things. Hungary has to look at risk assessments and decide where to place prisoners. It now has a national authority dealing with this. It uses two big facilities meeting all the expectations to ensure that it avoids inhuman treatment in terms of the amount of space available. One of these facilities is for suspects handed over under an EAW and the other is for other prisoners. Hungary points to the risk of a two tier system developing, in which there are better conditions for detainees surrendered via an EAW than for other prisoners. Hungary suggests that people might in the future, after committing a crime, go abroad so that they are ensured better prison conditions. Requests from the Netherlands focus more on issues such as the available space for each prisoner (e.g. m2 and the height of ceilings). Germany has, as an executing State, asked for similar guarantees as Austria. Regarding a monitoring mechanism for detention conditions, this is not allowed under the FD EAW at the moment. Hungary asks how this would be done, e.g. via a common system or individual MSs. This is of concern to Hungary in the context of mutual trust and mutual recognition. There seems to be a tendency to move away from mutual trust and that will make the system difficult to operate. Finland There have been no cases yet in Finland where the Aranyosi judgment has been cited. If COM goes ahead with an idea to collect information, it should be a body gathering all the information needed for prosecutors to carry out investigative work. 10429/17 SC/mj 11

Belgium Belgium has a lot of case law about respecting fundamental rights. This could be taken into consideration when we discuss the overall approach and what we do with the Aranyosi judgment. Key questions in this respect are: How does one investigate respect for fundamental rights? Do we do it in abstracto or in concreto (with actual facts)? If we look at the facts, then we come across an initial problem that one MS s national courts do not have competence to have full insight into the procedures in the other MS from the start of the procedure until the sentenced is handed down. MSs have to have faith in each other. If this fundament that is the basis of the EAW is lost then that is the end of it. As a State issuing an EAW it is hard to give specific guarantees in response to the executing State s requests about what will happen to a prisoner. That decision lies with the court. As a State executing an EAW, does one have to look into the exact prison conditions of the other MS? E.g. is this examination done only when lawyers ask for it or when an issuing State is suspected of having poor prison conditions? What do you do as a MS if you refuse to surrender? Then you should be aware that this can lead to impunity. It cannot lead to a situation where safe havens for criminals are created. Belgium suggests looking at what is practicable and not get bogged down in politics. Belgium argues that we should not start pointing the finger at each other and saying that our prisons are better than anyone else s. Belgium stressed the need to find joint criteria that everyone can accept that can form a basis for the future application of the Aranyosi judgment. Netherlands There are a number of cases in the Netherlands where the Aranyosi criteria have been applied. For the Netherlands, there are enough sources of information about prison conditions in other MSs (e.g. the CPT and other reports and Human Rights Watch, Amnesty International and other NGOs). For specific information about detention conditions, the Netherlands talks to people in other MSs. Given that the information is available, the Netherlands does not see the need to set up any new structures. The only use for a new structure would be possibly to bring all the information into one place. 10429/17 SC/mj 12

Italy Italy has recently received its first request (as a state issuing an EAW) for information on detention conditions and is preparing its reply. Internally, as an executing State, there is an informal process of the courts. A decision has been taken to withdraw requests for information that appear superfluous where there is no indication of inhuman or degrading treatment. In other cases, lower courts have rejected requests (from defense lawyers) for additional information on detention conditions in the issuing State. These have gone to the Supreme Court because they were contested. The cases concerned EAWs from Romania and one case from Bulgaria. The Supreme Court has annulled the decisions of the lower courts that rejected the requests for information, quoting the application of the Aranyosi criteria. Most of these decisions rendered by the Supreme Court established the principle that you have to fix a deadline for the reply and the decision in compliance with Article 17 of the Framework Decision on the EAW. The Supreme Court holds that within that time the issuing State has to reply and the executing State has to take a decision on whether to surrender the person or not. In Italian law, the risk of inhuman treatment has been seen as a ground for refusal to surrender even before the Aranyosi judgment. If the information provided by the issuing State is not sufficient to discount the risk of inhuman treatment, then you have to refuse execution of the EAW. Regarding the type of information needed, in making the requests, lower courts follow the ruling of the Supreme Court. They ask if the subject of surrender will be held in prison and, if so, what the detention conditions will be like, in order to rule out treatment contrary to Article 3 of the ECHR. The questions asked include: Where will the person be held, the name of the prison, the minimum space (m2) guaranteed, the hygiene and health conditions in that place and the national and international mechanisms for monitoring provided for in the issuing State. Italy does not see the need for new monitoring mechanisms but it argues for a general framework about the detention situation in the different MSs. Courts could then easily find the information that they need. The Ministry of Justice has sent requests to Romania and to Hungary. It has received a detailed reply from Romania. A discussion is underway with the Hungarian Ministry of Justice. In this context, Italy suggested creating a computerised space where MSs could share information on standards of treatment, available space, the general characteristics of cells and a series of aspects for which there is no point in asking in each individual case going before the courts. 10429/17 SC/mj 13

This type of information would be useful regarding MS that do not have problematic profiles. It would avoid the situation of a court making a superfluous request that would delay execution of the EAW. It would be interesting to receive more specific information about the objective elements which ascertain that there is a real risk of inhuman or degrading treatment (e.g. if the prisoner has less than 3m² in his cell does it constitute degrading treatment or is it possible to have a compensatory element such as that the prisoner only spends a few hours a day in the cell or a prison regime that makes provision for the cell to be open day and night?). Italy suggested that it could be a good idea to have objective and reasonable information on the implications of the Aranyosi criteria. The Aranyosi case is likely to lead to substantial delays in the execution of the EAW. Italy suggests standardising requests and standardising the reply for the MSs involved. A new body would be needed to do this work. Estonia To Estonia s knowledge, there has been no application of the Aranyosi criteria in national courts so far. Estonia has provided replies when asked about its prison conditions. To its knowledge, no surrender has been refused because of Estonia s prison conditions. International standards for detention conditions are quite high. In numerous countries human rights violations have occurred because of poor detention conditions. A risk of inhuman treatment cannot be fully eliminated: there will always be at least one condition of degrading treatment in at least one prison in another MS. The Aranyosi judgment should not lead to discrimination between prisoners in one and the same MS. The overall conditions for all prisoners need to be improved. As regards providing information, sometimes it is impossible to guarantee which detention centre a prisoner will end up in. In terms of accessibility of information, Estonia considers that CPT reports will prove beneficial and is sceptical about the need for a new body as MSs can draw on existing information. The type of information required depends on the specific circumstances. A key question is to determine the standard of due diligence of the executing State. An important question in that context is what triggers the obligation of the executing State to check the prison conditions of the issuing State. For example, can an executing State apply for a background check into prison conditions on its own initiative or does it have to be the prisoner that has to apply for a background check? A problem here is that there is no way of knowing if the prisoner is then going to be moved to another prison at a later stage after surrender. 10429/17 SC/mj 14

UK Under the UK s extradition act on the operation of the EAW, the judge must decide if the extradition of a person is in line with human rights. Information is needed but what information depends on the specifics of the case. If it is raised by defence lawyers prison conditions, space, safety in prison, medical facilities, breaches of previous assurance by a MS a judge is dutybound to consider those elements. There is information out there but the specifics of each case require questions being asked to the issuing State. The response could be an assurance by the issuing State or an independent assessor regarding the conditions in those facilities. In terms of follow-up on assurances, there is a role for consular officials or the National Preventive Mechanism for the prevention of torture (NPMs) to ensure that assurances are not breached. The UK suggests that more work should be done at EU level there. The UK has worked with a couple of countries and done good work with them on a bilateral basis. Greece Two years ago Greece was perplexed when it first received a request for information from the UK to surrender a prisoner to Greece. Now the Aranyosi criteria can serve as a basis for work. The next step is to draft a text to set out a common approach and the steps to take. The first requirement of the Aranyosi judgment, namely to reject a request for surrender if there is a systematic violation of human rights is a hard question. Does it mean that each country creates a list of suspect countries where it sees a potential human rights violation? Greece warned that it will create confusion if different countries have different lists of suspect countries. Information is governed by the EAW and national legislation. The word guarantees is a difficult term to define in the legal sense and politically. Will it mean that the Ministry of Justice provides these guarantees or must the courts provide guarantees? Regarding the individual treatment of a prisoner, there may be a question from the executing State to have assurance that the prisoner s rights will not be violated. The citizen may not be known to the issuing State (family situation etc). The country receiving the prisoner will need to know these facts to put the prisoner in the right detention centre. So it is very hard to say where the prisoner will be detained until an assessment has been carried out. One difficulty is that the Ministry of Interior cannot commit itself that a court will decide that detention centre "x" is right for citizen "y" as it cannot preempt the court s decision. 10429/17 SC/mj 15

Greece asked whether, if a commitment is made that a person is held in the best detention centre with the best possible conditions that would create inequality with other prisoners in other detention centres. Greece suggested a European database where all countries provide information on detention centres in response to specific questions in a questionnaire (with constant updating and coordination by the Commission). Then each court and each Ministry of Justice can use the database to take information regarding specific facts about detention centres in different MSs. Greece stressed the need to ensure that everyone has trust in the EAW and the need to have financial resources to give money to countries having difficulty maintaining their penal systems (e.g. to take on staff for detention centres). Slovakia Slovakia does not have any information on the application of the Aranyosi criteria so far. There is a lot of information on prison conditions. There is a liaison officer for the CPT committee. They answer CPT reports and wizards regarding particular MSs. They provide very detailed information. Slovakia suggested discussing how to use existing mechanisms (e.g. at the Council of Europe level) for the EU s needs. France France does not have information showing that the Aranyosi criteria have been used by national courts with France as either the executing or issuing State. French courts have not asked for extra information or received requests for extra information. There is a question of competence in terms of who can speak for a country regarding detention centres (can judges do so?). Generally, guarantees are given at the central level as this is where supervision and control tend to lie. There is a follow-up case to the Aranyosi judgment (C-496/16) which does not just deal with the first detention establishment. The question is whether there is a need to guarantee conditions in another establishment where the prisoner could be transferred for different reasons (e.g. to be near their family). It is difficult to commit at the national level that there is one prison where a detainee will be held as it is hard to guarantee that the prisoner will remain there. 10429/17 SC/mj 16

Romania As executing State, Romania s authorities have not taken into account the Aranyosi judgment. As issuing State, Romania has received requests from other MSs regarding detention conditions. It has set up an internal working procedure. Requests are sent to the Ministry of Justice in Romania. The response is offered at a central level as Romania thinks that that allows everyone to have a better picture of a whole country s situation. Reports by international bodies are an important source of information. Where there are violations it is important to take into account when the violations were found as they may not exist any longer. Romania said that it would be useful to set up a common database on detention conditions as a starting point. Common criteria and common working methodology are needed. From requests for information received, Romania sees little uniformity in terms of standards. Poland There are deadlines under Article 17 of the Framework Decision on the EAW. For Poland, the CJEU is light on its approach to these deadlines. This was seen in an earlier judgment where the CJEU said that, if deadlines are not observed, the court does not have to refuse execution of the EAW. Poland asks which fundamental principles should be treated as a priority here. It argues that the CJEU seems to prioritise material detention conditions rather than observing the deadlines imposed under the EAW. This is problematic because the aim of the EAW was indeed to accelerate the procedure because extradition procedures before were very formalistic and took a long time. In Poland s view, the CJEU does not seem to respect the initial objectives of the EAW. Bulgaria As an issuing State, Bulgaria received request from Germany and the UK. The Ministry of Justice provides abstract assurance on detention conditions in line with Article 3 ECHR and responds to concrete questions asked by the judicial authority of the executing State. In terms of a monitoring system for detention conditions, Bulgaria is considering the possibility of a law. 10429/17 SC/mj 17

Hungary Hungary asked a series of questions: Would all MSs have to provide information on detention conditions or just the ones that have received criticism? What would the criteria be in terms of density, i.e. how many square metres of cell? This is very hard to check. How often would this be updated? How would the executing State react if normally there are no problems with a country but one or two prisons have a high occupancy rate? Would the executing State ask other MSs not to use those prisons? How long would this system stay in place? If the ECtHR looked at it and found that there were no structural problems, would we still continue to ask for guarantees? In terms of monitoring, it is important to look at whether the current system is suitable for monitoring if an individual MS is fulfilling its guarantees. Is that a role for the ombudsman, a role at the European level, a role at the national level, a role for human rights NGOs? Council of Europe (Markus Jaeger) The Commission and the Council of Europe are looking at how they can facilitate solutions to the problems. Many MSs said that no new bodies are needed to address the serious problems. Slovakia pointed to the existence of the mechanisms at the Council of Europe level and suggested discussing how to use them. A common database was another proposal, with the proviso by Hungary that they need to be close to reality (i.e. a common database not only with the information available on detention conditions but also current criteria and methods to assess the detention standards). In terms of mechanisms, there is the CPT and ECtHR, which offers an interpretation of the minimum rules, and the European prison rules, which are wide and need interpretation. A challenge here is that this does not provide a totally accurate picture as decisions by the ECtHR and the CJEU point to that state of things as they were some years ago and do not therefore offer up to date data. The CPT visits MSs every four years. The CPT provides a rough overview of what is going on systemically in an MS and does not have knowledge of every detention centre. The National Mechanisms of Prevention against torture (NPMs), which were set up by the United Nations Optional Protocol to the Convention against Torture (OPCAT) exist in 24 out of 28 MS. They vary in age, have various legal forms and their efficiency is of variable quality. NPMs must be fully independent and cannot be told what to do. 10429/17 SC/mj 18

Their core mandate is to improve the detention conditions in a country via visits, recommendations and dialogue and to make information public if they choose to. They are well functioning monitoring bodies that should lead to improved conditions. They look into everything in all countries and cannot be told to look for specific things. Their mandate covers police stations and return flights among other things. This means that the opportunity for mobilising them for detention conditions is limited. But they could help with a fine mapping of detention conditions. If governments invest properly in manpower and operational costs, they should be able to visit prisons and pretrial detention centres once a year. That would include the ability of NPMs to respond in a short period of time under EU instruments. They would need to be persuaded to produce the information. They can also help with the common interpretation of standards. There are lots of needs to have a shared (EU) interpretation not just about space but other things (e.g. healthcare standards people refuse to go to a prison in another country because they feel their health won t be looked after). There is a project on this, funded by DG Justice, starting in January / February 2017. The Council of Europe is holding a meeting in April 2017 with NPMs to tell them where they can help. France has approached the Council of Europe in connection with the idea of a common database. Council of Europe and national sources of information on detention could be used for a pilot. The information would not be remastered but compiled in a user friendly way. This will be explored. One approach could be that the reports of NPM visits will feed into a common database, which could serve as an independent source of information for both foreign or national authorities. 10429/17 SC/mj 19