18) As regards the first EAW, the Hungarian Justice Ministry had already given the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen) details about the places where ML would be detained, giving an assurance that under no circumstances would he suffer inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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26) In the judgment in Aranyosi, which replied to a question referred for a preliminary ruling by the same court as in this case, the Court of Justice held that Articles 1(3), 5 and 6(1) of the Framework Decision must be interpreted as meaning that, ‘where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State.’ ( 10 )

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29) On this (third) occasion, the referring court asks specifically that the Court interpret Articles 1(3), 5 and 6(1) of the Framework Decision, in conjunction with Article 4 of the Charter, in connection with ‘the procedure prescribed by the Court of Justice … in its judgment in Aranyosi and Căldăraru … for assessment by the executing judicial authority of the conditions of detention in the issuing Member State’. ( 13 )

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31) The principle of mutual recognition, ‘which is the “cornerstone” of judicial cooperation, means, pursuant to Article 1(2) of the Framework Decision, that Member States are in principle obliged to give effect to a European arrest warrant’. ( 15 ) That principle ‘is itself founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter’. ( 16 )

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44) However, it is possible that the new legislation is symbolic rather than effective, meaning that it does not offer sufficient protection. If that is the case, given ‘that the right guaranteed by Article 4 of the Charter is absolute’, ( 28 ) the executing judicial authority will be obliged to provide protection if it ‘is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State’. ( 29 )

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53)  Accordingly, if the prison situation has developed favourably, in the sense described above; if there is now national legislation which guarantees the effective judicial protection of detained persons against potential breaches of Article 4 of the Charter as a result of their conditions of detention; and if that legislation is effective and not merely formalistic or nominalist, it can no longer be readily assumed that ‘there is objective, reliable, specific … evidence … that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention’.

54) I believe that that approach is the most compatible with the judgment in Aranyosi, with the principles underpinning the Framework Decision and with the respect due to the courts of each State (in this case, Hungary), which must not be tainted without good reason with the suspicion of widespread collusion in the infringement of Article 4 of the Charter when they issue EAWs. A system of cooperation in criminal matters based on mutual judicial trust cannot survive if the courts of the receiving State deal with requests made by the courts of the issuing State as if the latter have less sensitivity than the former when it comes to guaranteeing the protection of fundamental rights.

55) In any event, the receipt of an EAW cannot be grounds for the executing court to carry out an assessment of the quality of the prison system of the issuing Member State as a whole or to assess that system in the light of its own domestic law. The review criterion must be Article 4 of the Charter alone. A minimum but absolute guarantee in respect of which effective judicial protection must be introduced which is capable of ensuring real and effective protection against torture and inhuman or degrading treatment.

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59) These questions are based on the assumption that there continues to be a serious risk of infringement of Article 4 of the Charter if the referring court agrees to execute the EAW.

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81) If the executing judicial authority’s doubts remain owing to the lack of supplementary information, where, I repeat, that information is essential to enable it to form a view, the executing judicial authority is entitled to postpone its final decision. I say postpone and not refuse because the case-law established in Aranyosi does not mean inevitably that, if a risk of infringement of Article 4 of the Charter is identified which is not general and abstract but rather specific and personal, the executing judicial authority must refuse to allow the surrender of the person sought.

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83) In those circumstances, what is most important is to ensure the right to liberty (Article 6 of the Charter) of the person sought, if that person is in detention as a result of the EAW. ( 62 ) However, the measures adopted in favour of the right to liberty must not jeopardise the execution of the EAW for as long as no final decision has been taken in that regard. ( 63 )