Key facts of the case: 

This case is the continuation of case 267/2016 of 24 February 2017 in which the Supreme Court postponed its final decision while awaiting a statement from the Romanian authorities concerning detention conditions in Romania. The Danish Prosecution Service received the statement from the Romanian authorities on 15 March 2017. In the statement it was stated that the complainant, T was to be detained for 21 days in a quarantine room with a floorspace of three square-metres. After this quarantine period, T was most likely to be detained in the Tulcea prison under a closed prison arrangement in a furnished room with a floorspace of three square-metres and natural light, including other facilities, such as a bathroom with a sink, a toilet and a shower, although these were not included in the floorspace of three square-metres. The Romanian authorities further stated that if it was decided that T should be detained under the half-open prison arrangement in the same prison, T would have two square-metres at his disposal, including a bed and other furniture, but excluding storage space and bathroom.

The arrest warrant requiring extradition was examined under Section 10 h, paragraph 2 of the Danish Extradition Act (udleveringsloven), which states that ‘[…] extradition may not take place if there is a danger that, after the extradition, the person will be subjected to torture or other inhuman or degrading treatment or punishment’.

Finally, it was stressed that Section 10 h, paragraph 2 should be interpreted in compliance with Article 3 of the ECHR and Article 4, cf. Article 19, paragraph 2 of the EU Charter.

Outcome of the case: 

The Supreme Court found that the decision of the Ministry of Justice to extradite the complainant T would be contrary to Section 10 h, paragraph 2 of the Danish Extradition Act, which the Supreme Court stressed should be interpreted in accordance with Article 3 of the ECHR and Article 4, cf. Article 19, paragraph 2 of the EU Charter. As an initial remark, the Supreme Court referred to the judgment of the Court of Justice of the European Union of 5 April 2016 in the Joined Cases C-404/15 (Pál Aranyosi) and C-659/15 PPU (Robert Căldăraru) highlighting the principle of mutual recognition between the Member States, which is the foundation of the arrangement for the European Arrest Warrant. Subsequently, the Court stated that, as a general rule, the risk of being subjected to inhuman or degrading treatment on the grounds of general conditions in detention facilities in the EU Member State requesting the extradition cannot result in the refusal of an arrest warrant, for which reason it had been necessary to obtain a supplementary statement from the Romanian authorities on the specific conditions T would be detained under. The Supreme Court then referred to the judgment in the case of Muršić v. Croatia. In this case, the ECtHR found that there is a strong presumption that Article 3 of the ECHR would be violated if a person was detained in a room with a personal space of less than three square-metres, which could only be justified if a number of cumulative factors had been met. The Supreme Court found that the detention under the closed prison arrangement in a room with a personal space of three square-metres did not constitute a violation of Article 3 of the ECHR, while detention under the half-open prison arrangement in a room with a personal space less than three square-metres constituted a violation of Article 3 of the ECHR, as personal space limited to an area less than three square-metres in the case of the complainant, T would not be “short, occasional and minor”, as prescribed as a condition in the case of Muršić v. Croatia. The Supreme Court reached this decision despite the claim of the Danish Prosecution Service that persons detained under the half-open prison arrangement were outside the two-square-metre room most of the time. Finally, the Supreme Court referred to the findings of the ECtHR in the case of Muršić v. Croatia that merely the fact that a person was detained in a room with only 2.62 square-metres of personal space was in itself sufficient to constitute a violation of Article 3 of the ECHR.