Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 1 December 2022(1)

Case C‑699/21

E.D.L.

Intervener:

Presidente del Consiglio dei Ministri

(Request for a preliminary ruling from the Corte costituzionale (Constitutional Court, Italy))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Surrender of sentenced or suspected persons to issuing judicial authorities – Serious, chronic and potentially irreversible disease – Serious risk to the health of the person whose surrender is requested)

1.        Seised of an action concerning the possible unconstitutionality of certain provisions of legislation which brought Italian law into line with Framework Decision 2002/584/JHA (2) and which may be contrary to the right to health guaranteed by the Italian Constitution, the Corte costituzionale (Constitutional Court, Italy) has asked the Court of Justice for an interpretation of that framework decision.

2.        The reference for a preliminary ruling provides the Court of Justice with the opportunity to rule again on the grounds for refusal to execute a European arrest warrant (‘EAW’). In particular, the Court is called on to clarify whether the case-law laid down in the judgment of 5 April 2016, Aranyosi and Căldăraru, (3) is applicable, by analogy, to the execution of an EAW which may create a serious risk to the health of the person whose surrender is requested (‘the requested person’).

3.        The Court will determine, in short, whether, and on what terms, the list of grounds for refusal to execute an EAW laid down in Articles 3, 4 and 4a of Framework Decision 2002/584 must be supplemented by the ground derived from the obligation to comply with Articles 3, 4 and 35 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

I.      Legislative framework

A.      European Union law

1.      The Charter

4.        Paragraph 1 of Article 3 (‘Right to the integrity of the person’) reads:

‘Everyone has the right to respect for his or her physical and mental integrity.’

5.        Article 4 (‘Prohibition of torture and inhuman or degrading treatment or punishment’) states:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

6.        Article 35 (‘Health care’) provides:

‘Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.’

2.      Framework Decision 2002/584

7.        Recital 10 states:

‘The mechanism of the [EAW] is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.’

8.        Recital 12 states:

‘This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [TEU] and reflected in the Charter …, in particular Chapter VI thereof. …’

9.        In accordance with recital 13:

‘No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

10.      Article 1 (‘Definition of the [EAW] and obligation to execute it’) provides:

‘1.      The [EAW] is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2.      Member States shall execute any [EAW] on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3.      This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU].’

11.      Article 15 (‘Surrender decision’) provides:

‘1.      The executing judicial authority shall decide, within the [time limits] and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

2.      If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

3.      The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’

12.      Article 23 (‘Time limits for surrender of the person’) provides:

‘1.      The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.

2.      He or she shall be surrendered no later than 10 days after the final decision on the execution of the [EAW].

3.      If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

4.      The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

5.      Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.’

B.      National law

13.      Article 23(3) of Legge 22 aprile 2005, n. 69, (4) provides:

‘When there are humanitarian or serious reasons to believe that surrender would endanger the life or health of the person concerned, the President of the Corte di appello [Court of Appeal], or the judge delegated by him or her, may by reasoned order suspend the execution of the surrender measure, giving immediate notice to the Ministro della giustizia [Minister for Justice]’.

II.    Facts, dispute and question referred for a preliminary ruling

14.      On 9 September 2019, the Općinski sud u Zadru (Municipal Court, Zadar, Croatia) issued an EAW for the purpose of conducting a criminal prosecution against E.D.L., who was charged with the offence of possession of drugs with intent to distribute and sell, committed on Croatian territory in 2014.

15.      The lawyers for E.D.L. lodged with the Corte d’appello di Milano (Court of Appeal, Milan, Italy) medical documentation attesting to psychiatric disorders, related also to his past abuse of drugs. An examination was carried out by an expert which revealed that E.D.L. suffers from a psychotic disorder requiring treatment and is at high risk of suicide associated with the possibility of his imprisonment.

16.      On the basis of that expert report, the Corte d’appello di Milano (Court of Appeal, Milan) held that the transfer of E.D.L. to Croatia in execution of the EAW would halt the possibility of treatment, resulting in a worsening of his general condition and a genuine risk to his health.

17.      However, that court also noted that the obligation to execute an EAW is limited only by the grounds for refusal exhaustively listed in Articles 18 and 18a of Law No 69/2005, which do not include a ground for refusal based on the need to avoid infringements of the fundamental rights of the requested person, such as the right to health. The Corte d’appello di Milano (Court of Appeal, Milan) therefore stayed the proceedings and referred a question concerning constitutionality to the Corte costituzionale (Constitutional Court).

18.      Against that background, the Corte costituzionale (Constitutional Court) referred the following question to the Court of Justice for a preliminary ruling:

‘Must Article 1(3) of … Framework Decision 2002/584 …, examined in the light of Articles 3, 4 and 35 of the [Charter], be interpreted as meaning that, where it considers that the surrender of a person suffering from a serious chronic and potentially irreversible disease may expose that person to the risk of suffering serious harm to his or her health, the executing judicial authority must request that the issuing judicial authority provide information [allowing] the existence of such a risk to be ruled out, and must refuse to surrender the person in question if it does not obtain assurances to that effect within a reasonable period of time?’

III. Procedure before the Court of Justice

19.      The request for a preliminary ruling was received at the Registry of the Court of Justice on 22 November 2021. It was accorded priority treatment.

20.      Written observations were lodged by E.D.L., the Croatian, Finnish, Italian, Netherlands, Polish and Romanian Governments, and the European Commission.

21.      At the hearing, held on 27 September 2022, oral argument was presented by E.D.L., the Italian, Polish and Romanian Governments, and the Commission.

IV.    Analysis

A.      Preliminary considerations

22.      The Corte costituzionale (Constitutional Court) has explained in the following terms the situation of which it is seised as the supreme interpreter of the Italian Constitution and, at the same time, a court of a Member State bound by the interpretation of EU law:

–        It is required to determine whether certain provisions of the Italian legislation transposing Framework Decision 2002/584 are compatible with the right to health guaranteed by the Italian Constitution. (5)

–        It therefore needs to ascertain, as a preliminary point, how the provisions of that Framework Decision which are transposed in Italian legislation should be interpreted.

–        In areas subject to full harmonisation, Member States may not make the application of EU law conditional on compliance with purely national standards of protection of fundamental rights, where this may compromise the primacy, unity and effectiveness of EU law. (6)

–        It is for EU law to lay down the standards of protection of fundamental rights to which Framework Decision 2002/584 and its application by national authorities are subject.

–        To ensure that the application of the Framework Decision is uniform and effective throughout the European Union, the judicial authorities of the executing Member State are precluded from refusing to surrender the requested person in cases other than those laid down in Framework Decision 2002/584, on the basis of purely national standards of protection that are not shared at European level. (7) That applies even if the execution of an EAW may conflict with the highest principles of the constitution. (8)

23.      The aim of preventing an undesirable lack of harmony between the national constitution and EU law has led the referring court to ask the Court of Justice for an interpretation of EU law which would enable it to comply with the requirements of the Italian Constitution and thus exercise its own jurisdiction.

24.      In that spirit of cooperation, the Corte costituzionale (Constitutional Court) suggests that its question may be answered by extending, by analogy, the declarations made by the Court of Justice in respect of Framework Decision 2002/584 when, although no specific ground for refusal is provided for, the execution of an EAW gives rise to the infringement of the fundamental rights of the requested person.

25.      Reference is made, inter alia, to the judgment in Aranyosi and Căldăraru in relation to the risk that the execution of an EAW might expose the requested person to: (i) conditions involving inhuman and degrading detention in the issuing Member State as a result of systemic or generalised deficiencies or which may affect certain groups of people or certain places of detention; (9) (ii) the risk of being subject to proceedings which do not respect the guarantees laid down in Article 47 of the Charter, also on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary. (10)

B.      Grounds for refusal to execute an EAW beyond the express provisions of Framework Decision 2002/584

26.      Framework Decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation. It thus contributes to the attainment of the objective that the European Union should become an area of freedom, security and justice, based on the high level of trust which must exist between the Member States. (11)

27.      The cornerstone of that system is the principle of mutual recognition, reflected in Article 1(2) of Framework Decision 2002/584. Member States are required to execute EAWs on the basis of that principle and in accordance with the rules laid down in that Framework Decision. (12) Member States’ judicial authorities may therefore, in principle, refuse to execute an EAW only on the grounds for non-execution exhaustively listed by that Framework Decision. (13)

28.      Execution of the EAW therefore constitutes the rule, and refusal to execute is intended to be an exception which must be interpreted strictly. (14)

29.      However, the Court accepts that the principles of mutual recognition and mutual trust may be limited ‘in exceptional circumstances’. (15) The Court has observed that, in accordance with Article 1(3) thereof, Framework Decision 2002/584 ‘is not to have the effect of modifying the obligation to respect fundamental rights as enshrined in, inter alia, the Charter.’ (16)

1.      Refusal based on Article 4 of the Charter

30.      Similarly, the Court ‘has stated that, subject to certain conditions, the executing judicial authority has an obligation to bring the surrender procedure established by Framework Decision 2002/584 to an end where surrender may result in the requested person being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter’. (17)

31.      The reason is that the prohibition of inhuman or degrading treatment is absolute and is closely linked to respect for human dignity (Article 1 of the Charter) (18) and is, therefore, mandatory in the case of objectives such as those on which judicial cooperation is based. (19)

32.      The risk of infringement of Article 4 of the Charter may, on an exceptional basis, justify the postponement or refusal of surrender of the requested person under an EAW. The executing judicial authority must, first of all, verify whether that risk is actually present in the case on which it must adjudicate.

(a)    Refusal in the light of systemic and generalised deficiencies in a Member State

33.      The infringement of Article 4 of the Charter (like the infringement of Article 47 thereof) (20) has, until now, arisen in the context of systemic and generalised deficiencies in issuing Member States.

34.      The Court has stressed that the identification of a general and abstract risk is not sufficient for refusal to execute an EAW and certainly not for refusal to execute, as a rule, all EAWs from a Member State to which such systemic and generalised deficiencies are attributed. (21)

35.      Based on the idea that only a risk which, specifically and individually, affects the requested person, may be relevant, the executing judicial authority must conduct a two-stage examination in order to comply with the Aranyosi and Căldăraru case-law:

–        in the first stage, it must establish the existence of generalised and systemic deficiencies in the issuing Member State, which are liable to undermine the protection of that person’s fundamental rights;

–        in the second stage, on the basis of that finding, it must examine whether there are substantial grounds for believing that the person concerned will be exposed to a real risk of infringement of his or her fundamental rights following surrender to the issuing Member State.

36.      The identification of systemic and generalised deficiencies is especially necessary where, in the case of a complaint concerning a possible infringement of rights in the issuing State, the presumption on which the whole system of judicial cooperation in criminal matters is based applies in principle; that is, that the fundamental rights are observed by all the Member States.

37.      In accordance with that presumption, not only may a Member State not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but also, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the European Union. (22)

38.      Therefore, as regards infringements the likelihood of which is precluded by the presumption that all Member States observe the rights laid down in the Charter, it is necessary to confirm, first, that generalised and systemic deficiencies have been identified in the Member State which issued the EAW, making it possible to dispute the basis for that presumption.

39.      In my view, the so-called ‘two-stage examination’ has a very specific origin and works in the context for which it was devised. That examination makes perfect sense where the risk to the rights of the requested person is derived from general circumstances which are ideally impossible in a Member State: inadequate conditions of detention or the lack of independence of its courts.

40.      Where a complaint is made that those circumstances do, however, actually exist in the issuing Member State, executing judicial authorities may not remain indifferent but nor may they accept these without any basis at all, in other words without a minimum of veracity. Furthermore, given the nature of the circumstances relied on, it will be necessary to establish a general situation of deficiencies as a context in which those circumstances affect, in particular, the specific case to which the EAW refers.

41.      In the present case, on the other hand, the risk to the health of the requested person:

–        does not flow from a situation which is likely only in a context of generalised deficiencies which, in principle, should be inconceivable in a Member State;

–        may flow from the possibility that a specific illness cannot be the subject of the proper (also specific) treatment in the Member State which issued the EAW.

42.      In order to gauge the magnitude and extent of that risk, I do not believe that it is necessary to examine the entire health system or prison system of the issuing Member State. What is important is to examine whether the requested person will be guaranteed any medical treatment that he or she may require. For the purposes of that examination, it is not necessary to assess ex ante the health or prison system in its entirety, but rather the possibilities for treatment which the requested person may reasonably expect.

43.      This does not, I stress, involve providing an assessment of a Member State’s health system but rather exploring the possibility that a specific person will receive proper treatment, even though that treatment may be provided to him or her in a system which is more or less efficient as such.

44.      Certainly, the possible existence of general and systemic deficiencies may be relevant: if such deficiencies exist, they are likely to affect the requested person too, which is what the second stage of the Aranyosi and Căldăraru method deals with.

45.      However, where no one has claimed deficiencies of that kind, it is necessary to evaluate whether a specific risk exists for the requested person (in the light of that person’s situation, the successive stages of his or her transfer to the issuing Member State and the health care conditions that the requested person will find him or herself in following surrender).

46.      That evaluation thus relates to the second stage of the so-called ‘two-stage method’, and not, on a prior and independent basis, to the first stage, which, in my view, it is totally unnecessary to examine here.

47.      In the abstract, there is nothing to preclude the infringement of Article 4 of the Charter from being provoked by the systemic and generalised detention and prison conditions to which the requested person may be subject. (23) By contrast, there is no need to assess those conditions if, as the Commission has noted, (24) the risk to the health of the requested person is not directly derived from them.

48.      In that connection, I would add that:

–        according to the description in the order for reference of the psychiatric report on which E.D.L’s claim is based, the risk to health could exist regardless of which Member State that person is imprisoned in: there is a ‘high suicide risk associated with possible imprisonment’; (25)

–        at no point have the Italian courts (in particular, the referring court) suggested that systemic and generalised deficiencies exist in Croatia with regard to safeguarding the right to health. (26) Furthermore, the question referred for a preliminary ruling concerns the possibility of ‘ruling out’, by means of a request for information, that the requested person will be at risk in that State, the favourable assumption (that of ruling out) which underlies the question.

49.      That being so, the examination of the first of the two stages proposed in the judgment in Aranyosi and Căldăraru is both unnecessary and inappropriate.

(b)    Refusal in the light of exceptional circumstances other than systemic and generalised deficiencies: Article 4 of the Charter

50.      The reference to Article 4 of the Charter could, hypothetically, be accepted if the requested person presented particularly severe symptoms, such that the execution of an EAW would lead imminently to a serious, significant and permanent deterioration in his or her health (27) which would endanger his or her life.

51.      In those genuinely exceptional circumstances, surrender may be classified as inhuman treatment, depending on the individual circumstances of the sick person, (28) irrespective of the existence of systemic or generalised deficiencies in the issuing State. (29)

52.      Therefore, the exceptional nature of those circumstances does not flow from the general detention or health care conditions, as such, in the issuing Member State but from the surrender itself, in so far as this is liable in itself to place the life or health of the requested person in imminent danger.

53.      In reality, I repeat, the difficulties raised by the risk to health identified here (the possibility of suicide associated with deprivation of liberty) are not conditional on whether detention and possible subsequent imprisonment occurs in one Member State or another, in the context of an EAW. Nor does it appear to me that the circumstances of this case make it possible to classify the surrender as inhuman treatment, in view of the fact that, until now, there has been no indication that the requested person will not receive the necessary medical care in the Member State issuing the EAW.

54.      In any event, extreme caution must be exercised when it comes to providing a solution to the problem of psychiatric risks associated with imprisonment (common to all the Member States) other than simply relying on Article 4 of the Charter. (30)

55.      Otherwise, the Court’s reply could be taken to mean that the detention or imprisonment of persons at risk of suicide constitutes in itself inhuman treatment; in other words, that it infringes, as a matter of principle, given its absolute nature, the prohibition laid down in Article 4 of the Charter. As EU law currently stands, I find that view untenable.

2.      Refusal based on Articles 3 and 35 of the Charter

56.      In addition to Article 4 of the Charter, the referring court refers to the right to the integrity of the person (Article 3 of the Charter) and the right to health care (Article 35 of the Charter). Some of the parties, such as E.D.L. and the Finnish, Polish, Romanian and Italian Governments, have presented their submissions in the light of those three rights. However, the Netherlands Government refers solely to Article 4 of the Charter.

57.      In my view, Article 35 of the Charter does not apply in this case because access to preventive health care and medical treatment under the conditions laid down by national law and practice, which ensure a high level of protection of human health, is not at issue here.

58.      As regards Article 3 of the Charter, it is possible that the right to mental integrity may be affected but, again, not on account of deficiencies affecting health care or prison conditions in the issuing Member State, about which no one has complained, but rather as a result of the alleged lack of appropriate treatment for the psychiatric disorder from which, according to the expert evidence adduced before the Corte d’appello di Milano (Court of Appeal, Milan) the requested person suffers.

59.      The considerations in that connection which I have set out above in relation to Article 4 of the Charter are applicable to Article 3 of the Charter.

C.      A new ground for refusal to execute an EAW based on considerations linked to the health of the requested person?

60.      The case-law which, in the interests of simplification, is known as ‘the Aranyosi and Căldăraru case-law’ is an example of the judicial creation of law, by the Court of Justice, justified by the need to provide a means of protection of individual fundamental rights in situations not explicitly provided for by the legislature in the context of the EAW.

61.      Article 1(3) of Framework Decision 2002/584 provides categorically that that decision ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the [TEU]’. It thus lays down a closing provision for the system, overlapping the specific safeguards for certain fundamental rights which are reflected in that framework decision. (31)

62.      Given the presumption that all the Member States respect the fundamental rights, the EU legislature could hardly have envisaged the possibility of generalised and systemic deficiencies liable to lead to the infringement of a requested person’s fundamental rights.

63.      That is why, under Article 1(3) of Framework Decision 2002/584, it was necessary to introduce, by way of exception, grounds for refusal associated with infringements which could result from generalised and systemic deficiencies.

64.      However, as was pointed out at the hearing, acceptance of a ‘new’ ground for refusal to execute an EAW, for reasons related to health, could strike at the heart of the EAW system, which would lead to multiple claims by those affected, thereby undermining the system of surrender to the issuing Member State.

65.      I believe that a judicial intervention expanding the list of grounds for non-execution to add the ground derived from risks to health is unnecessary: refusal to execute an EAW is not appropriate when it is sufficient to postpone the surrender of the requested person. That, specifically, is the mechanism laid down in Framework Decision 2002/584 for situations like that at issue in the present case.

D.      Postponement of surrender under Article 23 of Framework Decision 2002/584

66.      Pursuant to Article 23(4) of Framework Decision 2002/584, the surrender of the requested person may exceptionally be postponed ‘for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health’.

67.      As has been observed by the referring court and nearly all the parties to these proceedings, that wording raises difficulties. However, in my view, those difficulties are not such that they are insurmountable by means of a strict, and not a creative, interpretation of the provision.

68.      According to the Corte costituzionale (Constitutional Court), in so far as Article 23(4) of Framework Decision 2002/584 provides only that surrender may be postponed ‘exceptionally’ on account of merely temporary situations, it is not compatible with cases of serious chronic medical conditions of an indefinite duration. (32)

69.      The referring court adds that, otherwise, the postponement would be likely to last indefinitely, thereby depriving the surrender measure of any practical effect: continued postponements based on chronic health reasons would keep the person concerned in a situation of constant uncertainty as to his or her fate, which would conflict with the need to guarantee a reasonable duration in all proceedings that could affect his or her personal freedom. (33)

70.      On the same lines, the Croatian and Netherlands Governments and the Commission note that the postponement provided for in Article 23(4) of Framework Decision 2002/584 may be adopted only once execution of the EAW has been ordered but not at the time when the decision regarding execution is taken.

71.      I agree that the reasons set out are compelling. However, in my view, the possible interpretations of the provision go further than those proposed by the referring court and the parties who attended the hearing.

72.      My starting premiss is that the absence of an express ground for non-execution of an EAW in national law (or in Articles 3 and 4 of Framework Decision 2002/584) is not an obstacle to the mandatory requirement laid down in Article 1(3) of that framework decision. In order to comply with that requirement, the (judicial) interpreter must seek, where possible, a materially equivalent solution using the legislative elements laid down by the legislature itself.

73.      In my opinion, Article 23(4) of Framework Decision 2002/584 provides the necessary criteria for that materially equivalent solution. Its wording allows an interpretation which, however broad and ambitious it may be, will always be more in keeping with the legislature’s intentions than the judicial creation of a new ground for refusal to execute an EAW. In short, it is preferable to modulate the meaning and scope of that positive requirement than for the judiciary to create a new rule, independently of that requirement.

74.      Interpreted in the context of Framework Decision 2002/584, Article 23(4) thereof may, I repeat, supply the solution required by Article 1(3) of the Framework Decision in cases such as this.

E.      Conditional and reviewable postponement of execution of an EAW for serious humanitarian reasons

75.      An argument in favour of the suitability of Article 23(4) of Framework Decision 2002/584 for fulfilling the requirement laid down in Article 1(3) of the Framework Decision is that it refers explicitly to the possibility that ‘surrender … would manifestly endanger the requested person’s life or health’.

76.      That reference introduces a major difference from Articles 3, 4 and 4a of Framework Decision 2002/584. The grounds for non-execution, whether mandatory or optional, laid down in those articles are concerned with objective elements, that is with the offences which are the basis for the issue of the EAW or with the successive stages of the criminal proceedings to which those offences have given or may give rise. (34)

77.      The inclusion of an additional ground for non-execution (which would definitely have to be mandatory in view of the nature of the fundamental right) in the list in Article 3 of Framework Decision 2002/584, based on the risk of infringement of Article 3 or 4 of the Charter, presents obvious difficulties in a scheme of non-execution based on the legal structure of the criminal justice systems of all the Member States.

78.      If there were no other remedy, those difficulties would probably not be sufficient to preclude the judicial introduction of a new ground for non-execution, as occurred in the Aranyosi and Căldăraru cases and as I have already explained. By contrast, in the situation at issue here it is possible to rely on the remedy in Article 23(4) of Framework Decision 2002/584. That remedy is effective, inter alia, for the purposes of:

–        not undermining the ratio and the purpose of a provision which is concerned with the protection of the life and the integrity of the requested person;

–        operating independently of the offence for which that person is being prosecuted or of the sentence which is intended to be executed; in other words, leaving aside all the circumstances connected to the criminal justice systems of the Member States which are the basis of Articles 3, 4 and 4a of Framework Decision 2002/584.

79.      I believe that Article 23(4) of Framework Decision 2002/584 is suitable for the purposes of responding to the concerns expressed by the referring court.

80.      In the first place, it stipulates a criterion for defining the ‘minimum threshold’ for the seriousness of the risk (‘danger to life or health’), in conjunction with Articles 3 and 4 of the Charter. (35)

81.      In the second place, it provides for a communication channel between the issuing and executing judicial authorities, the operation of which is the subject of the referring court’s question.

82.      Although, in accordance with that provision, any communication between the two judicial authorities does not concern the existence of reasons for non-execution but rather the date of surrender of the requested person, there is, in my view, nothing to preclude the date on which the executing authority must decide whether to postpone surrender from being brought forward.

83.      Through the exchange of information, the executing judicial authority may obtain from the issuing judicial authority explanations regarding the medical treatment available in places of detention or imprisonment, in line with the medical needs of the requested person.

84.      Also as a result of that dialogue and in the light of any health conditions of the requested person of which the issuing judicial authority has hitherto been unaware, that authority may, ex officio or at the request of the executing authority, reassess the merits of the EAW, if it considers this appropriate, in the light of a (new) factor with implications for the assessment of proportionality. (36)

85.      Accordingly, the health of the requested person becomes a further criterion (in addition to whether the EAW was issued for the purposes of conducting a criminal prosecution or the execution of a sentence, and the seriousness of the criminal offence, among other criteria) for the assessment of proportionality. That assessment may lead to the (temporary or definitive) withdrawal of the EAW but also to the maintenance of that EAW if the issuing authority decides that the surrender proceedings should continue notwithstanding.

86.      I believe that, in those circumstances, Article 23(4) of Framework Decision 2002/584 permits a system of inter-judicial communication similar to that which, under Article 15 of Framework Decision 2002/584, may be used prior to deciding whether to agree to the execution of the EAW.

87.      It is true that the relevant information for the purposes of Article 15 of Framework Decision 2002/584 is, according to its wording, information which is essential in order to ‘decide on surrender’, that is, on whether surrender is appropriate based on fulfilment of the conditions laid down, inter alia, in Articles 3 to 5 of Framework Decision 2002/584. (37)

88.      However, in my view, there is nothing to preclude the use of exchanges of information where that is appropriate for assessing the risk which would determine the postponement of surrender, including after the surrender decision has been adopted, if serious humanitarian reasons exist. (38)

89.      In the interests of the requested person’s rights, naturally, but also in pursuit of the legitimate interest of the European Union in combatting impunity, which is the objective, inter alia, of the EAW mechanism, (39) the executing judicial authority is required to decide whether surrender should be postponed using all the information necessary to make a decision in full knowledge of the facts.

90.      If direct and fluid communication with the issuing judicial authority is required to gain full knowledge of the facts, access to the mechanism in Article 15(2) of Framework Decision 2002/584 will be helpful even if execution has already been granted.

91.      Therefore, postponement may apply to execution which has already been ordered after passing through the ‘filter’ of the grounds for non-execution laid down in Articles 3, 4 and 4a of Framework Decision 2002/584. The serious risk to health thus becomes a ground which presupposes that the execution of the EAW has been authorised and justifies the decision to postpone it.

F.      Postponement or non-execution in the event of chronic and irreversible disease?

92.      As regards the duration of the measure, Article 23(4) of Framework Decision 2002/584 refers to the temporary nature of postponement and provides that execution of the EAW must take place ‘as soon as [the serious humanitarian reasons justifying postponement] have ceased to exist’.

93.      Temporary postponement must, therefore, be associated with the continued existence of the humanitarian grounds on which it is based. Those grounds may disappear or be rectified for a number of reasons (notably, changes in the requested person’s situation).

94.      In any event, and as the referring court has suggested, (40) where it is possible that postponement will need to be prolonged, there is nothing to preclude continued dialogue between the judicial authorities concerned from enabling the identification of other specific solutions. (41)

95.      Only if, in the light of all the circumstances, the postponement of surrender has to be extended beyond a time limit the reasonableness of which must be assessed, in dialogue with the issuing judicial authority, by the executing authority, (42) will it be appropriate for the surrender ordered by the executing authority not to be executed.

96.      In short, I propose that:

–        the executing judicial authority must, as a matter of principle, comply with the (exhaustive) grounds for non-execution explicitly laid down in Framework Decision 2002/584 (Articles 3, 4 and 4a), that is, grounds strictly related to the offences that are being prosecuted and the successive stages of the criminal proceedings concerning those offences;

–        exceptionally, and where sufficient reasons exist to find that there is a serious risk of infringement of Articles 3 or 4 of the Charter for reasons associated with the requested person’s state of health and which endanger his or her life, the executing judicial authority may postpone execution of the EAW where the decision in that regard has already been adopted, after receiving the information supplied to it by the issuing judicial authority and for as long as that serious risk remains.

V.      Conclusion

97.      In the light of the foregoing considerations, I suggest that the Court of Justice reply as follows to the Corte costituzionale (Constitutional Court, Italy):

Articles 1(3) and 23(4) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, examined in the light of Articles 3, 4 and 35 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that where it considers that the surrender of a requested person suffering from a serious chronic and potentially irreversible disease may expose that person to the risk of suffering serious harm to his or her health, the executing judicial authority must request that the issuing judicial authority provide information allowing the existence of such a risk to be ruled out, and, if necessary, postpone, exceptionally and on a temporary basis, the surrender of that person for as long as that serious risk remains.

1      Original language: Spanish.

2      Council Framework Decision of 13 June 2002 on the [EAW] and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24).

3      Joined Cases C‑404/15 and C‑659/15 PPU (EU:C:2016:198); ‘judgment in Aranyosi and Căldăraru’ or ‘the Aranyosi and Căldăraru case-law’.

4      Disposizioni per conformare il diritto interno alla decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al mandato d’arresto europeo e alle procedure di consegna tra Stati membri (Law No 69 of 22 April 2005 laying down provisions to bring national law into line with … Framework Decision 2002/584 …) (GURI No 98 of 29 April 2005, p. 6), as amended by Legislative Decree No 10 of 2 February 2021 (GURI No 30 of 5 February 2021, p. 22).

5      According to the order for reference (paragraph 1.3), the constitutional provisions to which the Corte d’appello di Milano (Court of Appeal, Milan) refers are Articles 2 and 35 of the Italian Constitution, which guarantee the right to health, and Article 3, which enshrines the principle of equality. The infringement of Article 3 results from the fact that the national legislation governing extradition lays down as a specific ground for non-execution the existence of reasons of health, which, however, may not be taken into account in the case of an EAW, pursuant to the wording of Framework Decision 2002/584.

6      Paragraph 7.3 of the order for reference, referring to the judgments of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 29), and of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 60).

7      Paragraph 7.4 of the order for reference, citing the judgment in Aranyosi and Căldăraru, paragraph 80.

8      Paragraph 7.5 of the order for reference.

9      The referring court also cites, in that connection, the judgments of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589), and of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857); ‘the Dorobantu judgment’.

10      Judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586) (‘judgment in Minister for Justice and Equality (Deficiencies in the system of justice)’), and of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033) (‘judgment in Openbaar Ministerie (Independence of the issuing judicial authority)’).

11      For example, judgment of 26 October 2021, Openbaar Ministerie (Right to be heard by the executing judicial authority) (C‑428/21 PPU and C‑429/21 PPU, EU:C:2021:876, paragraph 38).

12      Judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) (C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100) (‘Openbaar Ministerie (Tribunal established by law in the issuing Member State)’), paragraph 43.

13      Loc. ult. cit., paragraph 44.

14      Judgment in Minister for Justice and Equality (Deficiencies in the system of justice), paragraph 41.

15      Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, point 191.

16      Judgment in Aranyosi and Căldăraru, paragraph 83.

17      Judgment in Dorobantu, paragraph 50, citing previous judgments.

18      Judgment in Aranyosi and Căldăraru, paragraph 85.

19      Adopting the findings of the European Court of Human Rights (‘ECtHR’) in its judgment of 28 September 2015, Bouyid v. Belgium (CE:ECHR:2015:0928JUD002338009), the Court of Justice has pointed out that, in any circumstances, including those of the fight against terrorism and organised crime, the ECHR prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (judgment in Aranyosi and Căldăraru, paragraph 87). Therefore, absolutely no exceptions to the guarantee in Article 4 of the Charter are possible, not even in the light of the foremost reason of State, which is its own survival.

20      That is the second fundamental right which the Court has examined in relation to the possible extension of the grounds for non-execution of an EAW (inter alia, judgments in Openbaar Ministerie (Tribunal established by law in the issuing Member State); Minister for Justice and Equality (Deficiencies in the system of justice); and Openbaar Ministerie (Independence of the issuing judicial authority)).

21      Judgment in Openbaar Ministerie (Independence of the issuing judicial authority). Paragraph 57 of that judgment states that ‘… implementation of the [EAW] mechanism may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 2 TEU, including that of the rule of law, determined by the European Council pursuant to Article 7(2) TEU, with the consequences set out in Article 7(3) TEU’. Italics added.

22      Judgment in Minister for Justice and Equality (Deficiencies in the system of justice), paragraph 37.

23      Judgments in Aranyosi and Căldăraru and Dorobantu.

24      Paragraph 43 of its written observations: ‘the difficulty lies in the person’s individual situation and is intrinsically linked to that situation, regardless of the detention conditions in the Member State which issued the [EAW]’.

25      Order for reference, paragraph 1.1.

26      In its written observations (paragraph 7), the Croatian Government argues that its country’s health system will provide the requested person with a high standard of health care, including care relating to treatment of his dependency, irrespective of his status.

27      See, by analogy, judgment of 24 April 2018, MP (Subsidiary protection of a person previously a victim of torture) (C‑353/16, EU:C:2018:276) (‘judgment in MP (Subsidiary protection of a person previously a victim of torture)’), paragraph 41: ‘Article 4 of the Charter must be interpreted as meaning that the removal of a third country national with a particularly serious mental or physical illness constitutes inhuman and degrading treatment, within the meaning of that article, where such removal would result in a real and demonstrable risk of significant and permanent deterioration in the state of health of the person concerned’. Along the same lines, recently, the judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis) (C‑69/21, EU:C:2022:913, paragraph 66)).

28      The judgment in MP (Subsidiary protection of a person previously a victim of torture) cites, in turn, in paragraph 40, the judgment of the ECtHR of 13 December 2016, Paposhvili v. Belgium (CE:ECHR:2016:1213JUD004173810), §§ 178 and 183, on the equivalent provision of the ECHR: ‘it follows from the most recent case-law [of the ECtHR] that that provision [Article 3 of the ECHR] precludes the removal of a seriously ill person where he is at risk of imminent death or where substantial grounds have been shown for believing that, although not at imminent risk of dying, he would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of suffering a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy’.

29      To use the example given by the Italian Government at the hearing, the surrender of a patient with kidney disease for which dialysis is an essential requirement may be contrary to Article 4 of the Charter if it is not possible to continue with that treatment in the issuing Member State.

30      To avoid that risk, places of detention and prisons tend to have ad hoc protocols and in some Member States there are hospitals or prison psychiatric units. See the document ‘Preventing suicide in jails and prisons’, by the World Health Organization and the IASP (International Association for Suicide Prevention) (2007) at https://n9.cl/947kd. See also the report, cited by the Commission at the hearing, of the European Union Agency for Fundamental Rights (FRA) on detention conditions in the European Union, the 2019 edition of which reports a comparable level of medical care in prisons between national health care systems (FRA: Criminal detention conditions in the European Union: rules and reality, 2019).

31      The rights explicitly reflected include, for example, the right not to be punished twice for the same offence (Article 50 of the Charter). The guarantee of that right is covered by the ground for mandatory non-execution provided for in Article 3(2) of Framework Decision 2002/584 and is reflected in the majority of the grounds for optional non-execution provided for in Article 4. The same occurs with the right to an effective remedy (Article 47 of the Charter) involved in cases of conviction in absentia and permitted by Article 4a of the Framework Decision as a ground for optional non-execution.

32      Paragraphs 6.2 and 6.3 of the order for reference.

33      Paragraph 6.3 of the order for reference.

34      The only subjective circumstance under consideration is that provided for in Article 3(3) of Framework Decision 2002/584, which establishes as a ground for mandatory non-execution the lack of criminal responsibility owing to age. However, this is a ground relating to a personal circumstance in so far as it is connected to a criminal offence and with a bearing on criminal responsibility.

35      As the Commission has argued (paragraph 45 of its written observations), any ‘psychological suffering’ inherent in incarceration is not included in that minimum threshold.

36      In paragraph 6 of its written observations, E.D.L. describes as disproportionate the issue of an EAW against anyone who is seriously ill, an abstract position that I do not share. However, the principle of proportionality may play a role in the sense I propose.

37      In addition to those provisions, Article 15(2) of the Framework Decision refers to Article 8 thereof, which concerns the content and form of the EAW.

38      There is nothing to preclude the executing judicial authority from gathering the relevant information under Article 15(2) of Framework Decision 2002/584, both where it identifies ab initio the existence of serious humanitarian reasons and where the risk to the integrity and health of the requested person is discovered once the decision to execute the EAW has been adopted.

39      Judgment in Openbaar Ministerie (Independence of the issuing judicial authority), paragraph 62.

40      Paragraph 9.5 of the order for reference.

41      The fact that the disease may be chronic and of an indefinite duration does not preclude the application of Article 23 of Framework Decision 2002/584. Moreover, a chronically ill person may receive medical treatment in the issuing State under conditions similar to those of the executing State. It is a different matter where the surrender itself may directly place the requested person’s life in imminent danger.

42      In cases like that at issue, where the requested person is at liberty, I believe that repeated postponements, at the request of the person concerned, cannot be described as undue delays.

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