What constitutes evidence of poor prison conditions after Aranyosi and Căldăraru? Examining the role of inspection and monitoring bodies in European Arrest Warrant decision-making

DOI10.1177/2032284419858698
Date01 September 2019
Published date01 September 2019
Subject MatterArticles
Article
What constitutes evidence
of poor prison conditions
after Aranyosi and Ca
˘lda
˘raru?
Examining the role of inspection
and monitoring bodies
in European Arrest
Warrant decision-making
Mary Rogan
Trinity College Dublin, Ireland
Abstract
The case of Aranyosi and Ca
˘lda
˘raru confirms that where prison conditions are so poor as to breach fun-
damental rights, the non-execution of an European Arrest Warrant is justified. Given the high stakes nature
of such a decision, this article examines a critical question: What will be the possible sources of evidence
which can and should be used in such an assessment? The article posits that prison inspection and mon-
itoring bodies, which have the task of visiting prisons and reporting on them, with a view to the prevention
of ill treatment, will take on an important role in this decision-making process. The article examines what
this role might entail and the implications of the decision for prison inspection and monitoring bodies.
Keywords
European Arrest Warrant, fundamental rights, prison conditions, Aranyosi and Ca
˘lda
˘raru, mutual
trust, judicial decision-making
Introduction
The decision of the Court of Justice of the European Union (hereafter ‘ECJ’) in Aranyosi and
Ca
˘lda
˘raru
1
has attracted attention for the way in which the Court balanced fundamental rights
Corresponding author:
Mary Rogan, School of Law, Trinity College Dublin, Dublin 2, Ireland.
E-mail: mary.rogan@tcd.ie
1. Joined Cases C-404/15 & C-659/15 PPU P´
al Aranyosi and Robert Ca
˘lda
˘raru v. Generalstaatanwaltschaft Bremen,
ECLI: EU: C [2016] 198.
New Journal of European Criminal Law
2019, Vol. 10(3) 209–226
ªThe Author(s) 2019
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DOI: 10.1177/2032284419858698
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against the principles of mutual trust and recognition within the Area of Freedom, Security and
Justice (hereafter ‘AFSJ’). The Court’s decision that an executing judicial authority must postpone
its decision on the surrender of a person who is the subject of an European Arrest Warrant (here-
after ‘EAW’) until it is satisfied that there is no real risk of inhuman or degrading treatment arising
from the detention conditions in the requesting State has brought the issue of poor prison condi-
tions as a threat to judicial cooperation into sharp relief. The ECJ has required national judicial
authorities to obtain specific and up-to-date information on the detention conditions to which a
person will be subject in the requesting Member State to inform their decisions on the execution of
EAWs in this context. Questions of the manner and provenance of such information will become
crucial to the decision of a court as to whether or not there is a real risk of a violation of
fundamental rights through the execution of an EAW. Some critical issues which have been raised
by the decision (albeit not answered by it) concern how, from whom and to what standard, such
information is to be provided. This aspect of the decision has, thus far, been somewhat overlooked.
This article examines what types of bodies might provide this critical evidence and the nature of
the material to be provided. It argues that domestic prison inspection and monitoring bodies are
likely to play an important role in providing such information and, as such, will come under
increasing scrutiny by European Union (EU) institutions. While they vary in their activity across
Member States, generally, prison inspection and monitoring bodies have the objective of support-
ing the general prevention of torture and inhuman and degrading treatment in prisons through
visiting prisons and commenting on the findings of such visits. Prison inspection and monitoring
bodies exist in all Member States, and establishing such bodies is a requirement of the European
Prison Rules,
2
a soft law instrument created by the Council of Europe. Many prison inspection and
monitoring bodies fall under the title of ‘National Preventive Mechanisms’ (hereafter ‘NPMs’),
established under the United Nations Optional Protocol to the Convention against Torture (here-
after ‘OPCAT’), which all Member States, bar Ireland, Lativa, and Slovakia have signed and
ratified. Ireland and Slovakia have signed, but not ratified OPCAT. NPMs are independent bodies
tasked with visiting places where people are deprived of their liberty with the purpose of reducing
the likelihood of torture and ill treatment taking place.
3
This article argues that, following Aranyosi
and Ca
˘lda
˘raru, prison inspection and monitoring bodies, especially when they are independent,
are likely to play a key role in the provision of evidence when questions about the compliance of
prison conditions with fundamental rights must be addressed in EAW decisions.
The article begins with a brief assessment of the EU’s increasing attention to prison conditions
as a source of threat to mutual trust. It then examines the ECJ decision in Aranyosi and Ca
˘lda
˘raru
and the test proffered by the ECJ for national judicial authorities to apply when deciding whether
prison conditions are a threat to fundamental rights such that an EAW should not be executed. The
article examines what sources will be suitable as evidence in such decisions, before exploring the
role inspection and monitoring bodies could play in providing information on prison conditions. It
argues that prison inspection and monitoring bodies will have an important role to play in decision-
making concerning prison conditions and EAWs, especially when an executing judicial authority is
conducting a detailed exploration of the specific risk faced by the person subject to the EAW. The
2. ‘Recommendation Rec (2006) 2 of the Committee of Ministers to Member States on the European Prison Rules’,
Council of Europe: Committee of Ministers, 11 January 2006, Rule 9.
3. It is not clear when Ireland will ratify OPCAT. Ireland presently has an Inspector of Prisons, established under statute by
210 New Journal of European Criminal Law 10(3)

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