22) By letter of 20 September 2017, the Hungarian Ministry of Justice informed the Bremen Public Prosecutor’s Office, in response to a request sent by the latter, that, if ML were surrendered, he would initially be detained, for the duration of the surrender procedure, in Budapest prison (Hungary) and thereafter in Szombathely regional prison (Hungary). The Ministry also gave an assurance that ML would not be subjected to any inhuman or degrading treatment within the meaning of Article 4 of the Charter as a result of the proposed detention in Hungary. The Ministry added that that assurance could equally well be given in the event of ML being transferred to another prison.

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33) On 27 March 2018, the Hungarian Ministry of Justice, in conjunction with the directorate-general for the enforcement of sentences, gave a further assurance that, wherever ML was incarcerated, he would not be subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter during his detention in Hungary.

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35) However, before taking a final decision in that regard, the referring court considers that it must ascertain whether the information provided by the Hungarian authorities in response to its requests for information is sufficient to rule out, when Paragraph 73 of the IRG is applied and in view of the interpretation of Article 1(3), Article 5 and Article 6(1) of the Framework Decision and of Article 4 of the Charter, the existence of a real risk of inhuman or degrading treatment.

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40 In those circumstances, the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court of Bremen) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) What significance does it have, for the purpose of the interpretation of [Article 1(3), Article 5 and Article 6(1) of the Framework Decision, in conjunction with Article 4 of the Charter] if legal remedies exist for detainees in the issuing Member State in respect of the conditions of their detention?

(a) If, taking account of the aforementioned provisions, the executing judicial authority is in possession of evidence of systemic or general deficiencies affecting certain groups of persons or certain prisons in the issuing Member State, is a real risk of inhuman or degrading treatment of the person whose surrender is sought in the event of his surrender, which would render the surrender inadmissible, to be ruled out merely by reason of the fact that such legal remedies have been introduced, without the need for further assessment of the conditions of detention?

(b) Is it of significance in this regard that the European Court of Human Rights has held in respect of such legal remedies that there is no evidence that they do not offer detainees realistic perspectives of improving unsuitable conditions of detention?

(2) If Question 1 is answered to the effect that the existence of such legal remedies for detainees, without further assessment of the specific conditions of detention in the issuing Member State by the executing judicial authority, does not of itself exclude a real risk of inhuman or degrading treatment of the person whose surrender is sought:

(a) Are the aforementioned provisions to be interpreted as meaning that the assessment by the executing judicial authority of the conditions of detention in the issuing Member State extends to all prisons or other detention facilities in which the person whose surrender is sought may be incarcerated? Does this also apply to simply temporary or transitional detention in certain prisons? Or can the assessment be limited to the prison in which, according to information from the authorities of the issuing Member State, the person whose surrender is sought is likely to be incarcerated for most of the time?

(b) For this purpose, is it necessary to conduct a comprehensive assessment of the conditions of detention concerned that determines both the personal space available to each prisoner and other conditions of detention? Are the conditions of detention thus determined to be assessed on the basis of the case-law of the European Court of Human Rights established in its judgment of 20 October 2016, Muršić v. Croatia (CE:ECHR:2016:1020JUD000733413)?

(3) If Question 2 is also answered to the effect that the assessment required by the executing judicial authority must extend to all prisons [to which the person concerned might be transferred]:

(a) Can the assessment by the executing judicial authority of the conditions of detention in each individual prison envisaged be rendered superfluous by a general assurance given by the issuing Member State that the person whose surrender is sought will not be exposed to any risk of inhuman or degrading treatment?

(b) Or, in lieu of an assessment of the conditions of detention of each individual prison envisaged, can the decision by the executing judicial authority on the admissibility of the surrender be made contingent upon the person whose surrender is sought not being exposed to any such treatment?

(4) If Question 3 is also answered to the effect that the provision of assurances and the imposition of conditions cannot render the assessment by the executing judicial authority of the conditions of detention in each individual prison [to which the person concerned might be transferred] superfluous:

(a) Must the duty of assessment by the executing judicial authority extend to the conditions of detention in all prisons envisaged, even in the case where the judicial authority of the issuing Member State advises that the period of detention in them of the person whose surrender is sought will not exceed three weeks, circumstances permitting?

(b) Does this also apply if the executing judicial authority is unable to ascertain whether that information was provided by the issuing judicial authority or whether it originates from a central authority in the issuing Member State acting in response to a request by the issuing judicial authority for support?’

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47) By its questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 1(3), Article 5 and Article 6(1) of the Framework Decision must be interpreted as meaning that, when the executing judicial authority has information showing there to be systemic or generalised deficiencies in the detention conditions in the prisons of the issuing Member State, that authority may rule out the existence of a real risk that the person in respect of whom a European arrest warrant has been issued for the purpose of executing a custodial sentence will be subjected to inhuman and degrading treatment, within the meaning of Article 4 of the Charter, merely because that person has, in the issuing Member State, a legal remedy enabling him to challenge the conditions of his detention and, if that is not the case, whether that authority is then required to assess the conditions of detention in all the prisons in which the person concerned could potentially be detained, including on a temporary or transitional basis, or only the conditions of detention in the prison in which, according to the information available to that authority, he is likely to be detained for most of the time. That court also asks whether the abovementioned provisions must be interpreted as meaning that the executing judicial authority must assess all the conditions of detention and whether, in the context of that assessment, that authority may take into account information provided by authorities of the issuing Member State other than the executing judicial authority, such as, in particular, an assurance that the person concerned will not be subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.

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57) In that context, the Court has acknowledged that, subject to certain conditions, the executing judicial authority has the power to bring the surrender procedure established by the Framework Decision 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 (judgment of today’s date, Minister for Justice and Equality (Deficiencies in the System of Justice), C‑216/18 PPU, paragraph 44 and the case-law cited).

58) For that purpose, the Court has relied, first, on Article 1(3) of the Framework Decision, which provides that that decision is not to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Articles 2 and 6 TEU and, second, on the absolute nature of the fundamental right guaranteed by Article 4 of the Charter (judgment of today’s date, Minister for Justice and Equality (Deficiencies in the System of Justice), C‑216/18 PPU, paragraph 45 and the case-law cited).

59) Accordingly, where the judicial authority of the executing Member State is in possession of information showing there to be a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State, measured against the standard of protection of fundamental rights guaranteed by EU law and, in particular, by Article 4 of the Charter, that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing Member State of the individual concerned by a European arrest warrant. The consequence of the execution of such a warrant must not be that that individual suffers inhuman or degrading treatment (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 88).

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62) Thus, in order to ensure observance of Article 4 of the Charter in the particular circumstances of a person who is the subject of a European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is then bound to determine, specifically and precisely, whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of Article 4, because of the conditions for his detention envisaged in the issuing Member State (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 92 and 94).

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65) If, in the light of the information provided pursuant to Article 15(2) of the Framework Decision, and of any other information that may be available to the executing judicial authority, that authority finds that there exists, for the individual in respect of whom the European arrest warrant has been issued, a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, the execution of that warrant must be postponed but it cannot be abandoned (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 98).

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70) In fact, by its questions, which are based on the premiss that such deficiencies do exist, the referring court in essence seeks to ascertain whether, having regard to the case-law referred to in paragraphs 61 to 66 of this judgment, the various pieces of information that have been provided to it by the issuing Member State allow it to rule out the existence of a real risk that the individual concerned will be subjected in the issuing Member State to inhuman or degrading treatment within the meaning of Article 4 of the Charter.

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73) As all the interested persons who have participated in the present proceedings have submitted, although a remedy of that kind can constitute an effective judicial remedy for the purposes of Article 47 of the Charter, it cannot, on its own, suffice to rule out a real risk that the individual concerned will be subject in the issuing Member State to inhuman or degrading treatment within the meaning of Article 4 of the Charter.

74) Such subsequent judicial review of detention conditions in the issuing Member State is an important development, which may act as an incentive to the authorities of that State to improve detention conditions and which may therefore be taken into account by the executing judicial authorities when, for the purpose of deciding on whether a person who is the subject of a European arrest warrant should be surrendered, they make an overall assessment of the conditions in which it is intended that a person will be held. However, such review is not, as such, capable of averting the risk that that person will, following his surrender, be subjected to treatment that is incompatible with Article 4 of the Charter on account of the conditions of his detention.

75) Therefore, even if the issuing Member State provides for legal remedies that make it possible to review the legality of detention conditions from the perspective of the fundamental rights, the executing judicial authorities are still bound to undertake an individual assessment of the situation of each person concerned, in order to satisfy themselves that their decision on the surrender of that person will not expose him, on account of those conditions, to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.

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94) In the present case, the referring court itself is of the opinion that the information available to it concerning detention conditions at Szombathely prison, in which it is accepted that the person concerned should serve the majority of the custodial sentence imposed on him in Hungary, rules out the existence of a real risk of that person being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter: that has, moreover, not been disputed by any of the interested parties who have participated in these proceedings.

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100) Accordingly, the fact that detention in such conditions is temporary or transitional does not, on its own, rule out all real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.

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106) Nevertheless, it is not disputed that, in response to the request of 10 January 2018, the Hungarian authorities gave the Bremen Public Prosecutor’s Office –– in their letters of 20 September 2017 and 27 March 2018 –– an assurance that the person concerned, irrespective of the facility he is detained in, will not be subject to any inhuman or degrading treatment within the meaning of Article 4 of the Charter, as a result of his detention in Hungary.

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112) When that assurance has been given, or at least endorsed, by the issuing judicial authority, if need be after requesting the assistance of the central authority, or one of the central authorities, of the issuing Member State, as referred to in Article 7 of the Framework Decision, the executing judicial authority, in view of the mutual trust which must exist between the judicial authorities of the Member States and on which the European arrest warrant system is based, must rely on that assurance, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of Article 4 of the Charter.

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115) In that regard, the Court observes that the assurance given by the Hungarian Ministry of Justice appears to be borne out by the information in the possession of the Bremen Public Prosecutor’s Office. In response to questions put by the Court, that office explained at the hearing that that information, which has been gleaned, in particular, from the experience gained in the course of surrender procedures carried out before delivery of the judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198), gives grounds for considering that detention conditions within Budapest prison, through which every person who is the subject of a European arrest warrant transits, are not in breach of Article 4 of the Charter.

116) That being so, it appears that the person concerned may be surrendered to the Hungarian authorities without any breach of Article 4 of the Charter, a matter which must, however, be verified by the referring court.

117) Having regard to all the foregoing considerations, the answer to the questions referred is that Article 1(3), Article 5 and Article 6(1) of the Framework Decision must be interpreted as meaning that when the executing judicial authority has information showing there to be systemic or generalised deficiencies in the conditions of detention in the prisons of the issuing Member State, the accuracy of which must be verified by the referring court in the light of all the available updated data:

– the executing judicial authority cannot rule out the existence of a real risk that the person in respect of whom a European arrest warrant has been issued for the purpose of executing a custodial sentence will be subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, merely because that person has, in the issuing Member State, a legal remedy permitting him to challenge the conditions of his detention, although the existence of such a remedy may be taken into account by the executing judicial authority for the purpose of deciding on the surrender of the person concerned;

– the executing judicial authority is required to assess only the conditions of detention in the prisons in which, according to the information available to it, it is likely that that person will be detained, including on a temporary or transitional basis;

– the executing judicial authority must assess, to that end, solely the actual and precise conditions of detention of the person concerned that are relevant for determining whether that person will be exposed to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter;

– the executing judicial authority may take into account information provided by authorities of the issuing Member State other than the issuing judicial authority, such as, in particular, an assurance that the individual concerned will not be subject to inhuman or degrading treatment within the meaning of Article 4 of the Charter.