Bivolaru and Moldovan v. France: ECtHR further develops its case law on the presumption of equivalent protection in EAW cases
The European Court of Human Rights (ECtHR) has just rendered its judgment in Bivolaru and Moldovan v. France (applications nos. 40324/16 and 12623/17), clarifying the conditions for application of the presumption of equivalent protection in disputes concerning execution of a European Arrest Warrant (EAW), which had been firstly established in Bosphorus (application no. 45036/98) and further developed in Michaud (application no. 12323/11) and Avotiņš (application no. 17502/07).
Today’s judgment concerns two Romanian nationals who were surrendered by France to the Romanian authorities under European Arrest Warrants (EAWs) in 2016 for the purpose of enforcing prison sentences (issued in absentia in respect of Mr Bivolaru, who in the meanwhile had obtained refugee status in Sweden). The applicants complained that their surrender to the Romanian authorities under the EAWs had amounted to a violation of the prohibition of inhuman or degrading treatment in Article 3 of the European Convention on Human Rights (ECHR) on account both of their conditions of detention in Romania and, in Mr Bivolaru’s case, of his refugee status.
Regarding Mr Moldovan, the ECtHR concluded that the two conditions for the application of the presumption of equivalent protection were met, namely (i) the absence of any margin of manoeuvre on the part of the national authorities, and (ii) the deployment of the full potential of the supervisory mechanism provided for by EU law. The Court therefore limited its scrutiny to the issue of whether the protection of the rights guaranteed by the ECHR had been manifestly deficient in the case at hand, such that this presumption was rebutted. In this regard, the Strasbourg-based court noted that Mr Moldovan had provided sufficiently substantiated evidence of the alleged risk of breach of Article 3 ECHR, so that the executing judicial authority was under the obligation to request additional information and assurances from the issuing State regarding his future conditions of detention in Romania. In so far as the French authorities failed to do so, today’s judgment concludes that there was a violation of Article 3 ECtHR.
Concerning Mr Bivolaru, the ECtHR concluded that the presumption of equivalent protection was not applicable because the French Court of Cassation had failed to request a preliminary ruling from the Court of Justice on the implications for the execution of an EAW of the granting of refugee status by a Member State to a national of a third country which subsequently also became a Member State (and therefore the supervisory mechanisms provided for by EU law had not been deployed in full). Assessing compliance of the surrender decision with Article 3 ECHR, the ECtHR found that the executing judicial authority had taken into account his refugee status and that there had not been a sufficiently solid factual basis to establish the existence of a real risk of a breach of Article 3 ECHR and to refuse execution of the EAW on that ground. According to today’s judgment, in respect of Mr Bivolaru the executing judicial authority had not been obliged to request additional information from the Romanian authorities, and therefore there was no breach of Article 3 ECHR.
The judgment is available here.
