CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 mars 2021

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font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sB66B0814 { width:32.22pt; display:inline-block } .s72E62D63 { width:149.44pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     FIFTH SECTION CASE OF BIVOLARU AND MOLDOVAN v. FRANCE (Applications nos. 40324/16 and 12623/17)     JUDGMENT   Art 3 (substantive) • Inhuman and degrading treatment • Applicant surrendered to Romanian authorities on European arrest warrant where real risk of poor detention conditions • Applicant, recognised as refugee by Swedish authorities, surrendered to Romanian authorities on European arrest warrant where no real risk of persecution or poor detention conditions   STRASBOURG 25 March 2021   FINAL   25/06/2021     This judgment has become final pursuant to Article 44 § 2 of the Convention. It is subject to editorial revision.   In the case of Bivolaru and Moldovan v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary , President ,   Mārtiņš Mits,   Stéphanie Mourou-Vikström,   Jovan Ilievski,   Lado Chanturia,   Arnfinn Bårdsen,   Mattias Guyomar , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the applications (nos. 40324/16 and 12623/17) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Gregorian Bivolaru and Mr Codrut Moldovan (“the applicants”), on 12 August 2016 and 9 February 2017 respectively; the decision to give notice on 19 December 2018 to the French Government of the complaints concerning Articles 2 and 3 and to declare the remainder of the complaints inadmissible; the parties’ observations, Having deliberated in private on 16 February 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present applications concern the surrender of the applicants to the Romanian authorities on European arrest warrants (EAWs) to serve prison sentences. The applicants complained that the execution of the EAWs contravened Article 3 of the Convention. THE FACTS 2.     The first applicant, Gregorian Bivolaru, was born in 1952. He was represented before the Court by Mr P. Spinosi, a member of the bar of the Conseil d’Etat and the Court of Cassation. The second applicant, Codrut   Moldovan, was born in 1971.   He was represented by Mr C. Marcelot, a lawyer practising in Clermont ‑ Ferrand. 3.     The Government were represented by their Agent, Mr F.   Alabrune, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs. APPLICATION NO. 12623/17 4.     On 26 June 2015 Mr Moldovan was sentenced by Mureș County Court in Romania to seven years and six months’ imprisonment for acts of human   trafficking committed in 2010 in Romania and France, namely forcing six   Romanian nationals, including a minor, into mendicancy on his behalf. The   applicant attended his trial. He later returned to France . 5.     On 29 April 2016 the Romanian judicial authorities issued a European arrest warrant (EAW) in respect of the applicant for the enforcement of his sentence . 6.     Three days earlier, on 26 April 2016, the applicant had, according to the information supplied by the Government, been charged with counts of “theft from a dwelling ‑ place entered by deception, breaking in or climbing” and “concealment of property obtained through theft from a dwelling ‑ place or storage area entered by deception, breaking in or climbing”, and had been remanded in custody. By a judgment of 10 May 2016 the Investigation Division of the Riom Court of Appeal ordered his release under judicial supervision with a requirement to report once a week to the Clermont-Ferrand police station. 7.     On 7 June 2016 the applicant was arrested at the police station. The   Principal Public Prosecutor of the Riom Court of Appeal served him with notice of the EAW that day. The applicant stated that he did not consent to be surrendered to the Romanian judicial authorities. 8.     On 10 June 2016 he was brought before the Investigation Division of the Riom Court of Appeal for a determination regarding his surrender to the Romanian authorities. He acknowledged that he was in fact the person sought under the EAW but reiterated his objection to being surrendered to those authorities. Relying on the judgment of the Court of Justice of the European Union (CJEU) of 5 April 2016 in Aranyosi and Căldăraru (C ‑ 404/15 and C ‑ 659/15 PPU, EU:C:2016:198, and see paragraph 50 below), he contended that the Investigation Division could not grant the surrender without first requesting and obtaining supplementary information about the conditions in which he would be held in Romania. He adduced in that regard the CJEU judgment, the press release and an academic article concerning that case, and references to four judgments of this Court finding against Romania for inhumane conditions of detention (see Voicu v. Romania , no. 22015/10, 10 June 2014; Bujorean v. Romania , no. 13054/12, 10 June 2014; Mihai Laurenţiu Marin v .   Romania , no. 79857/12, 10 June 2014; and Constantin Aurelian Burlacu v . Romania , no. 51318/12, 10 June 2014). 9.     By a judgment of 16 June 2016 the Investigation Division concluded, on   the basis of the Court’s judgments about detention conditions in Romania and a 2014 report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), that there was “objective, reliable, specific and duly up ‑ to ‑ date evidence of deficiencies regarding detention conditions in Romania”. The Romanian authorities were   invited to provide it by 30 June 2016 with such particulars as related to the actual conditions in which the applicant would be held, for the purpose of assessing whether there was a real risk of inhuman and degrading treatment. 10.     On 28 June 2016 the international law and judicial cooperation branch of the Romanian Ministry of Justice provided the French authorities with the following information. For the observance of a twenty ‑ one ‑ day quarantine, the applicant was first to be held in Rahova Prison, Bucharest, which had twenty ‑ four cells with “at least 2-3 sq. m” of individual space. After that time, “considering the length of the sentence, he [would] most likely, at the outset, have   to serve it in a closed environment”. Because of his place of residence, he would, “most likely, at the outset”, serve his sentence in Gherla Prison. The cells there had one window measuring 200 cm by 145 cm which afforded natural light and adequate ventilation. Each cell contained at least a table and two chairs, a television mount, spaces in which to store personal effects, and a mattress and linen for the bed. It was further specified that prisoners had round ‑ the ‑ clock access to a sanitary facility equipped with two washbasins and two toilet   cubicles; cold water was available at all times and hot water twice a week; the cells were sanitised on a regular schedule and whenever otherwise necessary; prisoners were provided with the necessary hygienic and sanitary items monthly; prisoners in the closed regime who did not work had access to a variety of activities, with a daily minimum of four hours allotted for work duty, education and vocational training, outdoor time, psychosocial assistance or exercise; an infirmary provided prisoners with medical assistance and treatment as necessary. The Romanian authorities concluded with the following statement: “Accordingly, the National Prison Service guarantees that the individual will serve his sentence in Gherla Prison or in an ancillary prison where he will be afforded 2 ‑ 3   sq.   m of personal space, inclusive of the bed and necessary item of furniture. ... The National Prison Service avails itself of this opportunity to extend its assurances that it will deal attentively with all matters reported by individuals serving sentences in   subordinate prisons. ” 11.     The applicant subsequently lodged written submissions in the Investigation Division arguing that he would be at risk of inhuman and degrading treatment if surrendered. He stressed that the guarantees given by the Romanian authorities were not sufficient to meet the requirements arising from the Court’s judgments against Romania, among them Axinte v. Romania (no.   24044/12, 22 April 2014; see paragraph 111 below), and claimed that the detention conditions and situation of “serious overcrowding” in Gherla Prison would give rise to a breach of Article 3 of the Convention. He also sought a deferral of his surrender under Article   695 ‑ 39 of the Code of Criminal Procedure (see   paragraph 59 below) on the ground that he was facing charges in France for the same conduct in   respect of which he had been convicted in Romania. 12.     By a judgment of 5 July 2016 the Investigation Division concluded that there was no obstacle to the applicant’s surrender : “... As to the actual conditions in which [the applicant] will be held, the document drawn up by the Romanian authorities states that, after a quarantine of twenty ‑ one days in a cell with at least 2 ‑ 3 sq. m of individual space, he will probably be transferred to Gherla Prison, where he will be afforded at least 2 ‑ 3 sq. m of individual space in a cell with a window and where he will enjoy round ‑ the ‑ clock access to a sanitary facility with two washbasins and two toilet cubicles, access to cold water at all times and the   opportunity to wash with hot water twice a week, and access to medical assistance. The detention conditions described by the document will ensure that [the applicant] is not held in conditions posing a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, provided that, if not held in Gherla Prison, he is held in a prison which affords the same or better individual conditions of detention. ... As to whether the surrender needs to be deferred pursuant to Article 695-39 of the Code of Criminal Procedure, deferral is a mere power vested in the Investigation Division. Given the nature of the charges pending against [the applicant] in France, the nature of the charges on which he was convicted in Romania, the severity of the sentence passed and the fact that, in the French proceedings, he has merely been placed under judicial supervision, it does not appear appropriate to bring the provisions of   that   Article to bear. For these reasons , the Investigation Division ... ... orders the surrender of [the applicant] ... declares that the conditions in which he is to be held must, at a minimum, conform to the description set out in the document provided by the Romanian authorities ...” 13.     On 6 July 2016 the applicant applied to   the Court of Cassation to   set the judgment aside by review on points of law. In his first ground of review he argued that the Investigation Division had not drawn the proper inferences from the document provided by the Romanian authorities, which had revealed the deficiencies in the Romanian prison system. He   specified that the Investigation Division had misrepresented the document by stating that he would be afforded “ at least 2-3 sq. m” of individual space whereas what it had said was “2 ‑ 3 sq.   m” of space (see paragraphs 10 and 12 above), and by omitting that the space in question was inclusive of the bed and the   other item of furniture. In his second ground of review he submitted that the Investigation Division had failed to reason its judgment as to the nature of the charges pending against him in France. 14.     By a judgment of 10 August 2016 the Court of Cassation dismissed his application: “Whereas in ordering the [applicant’s] surrender to the Romanian judicial authorities the judgment stated that in Gherla Prison [the applicant] would be afforded 2 ‑ 3 sq. m of individual space in a one-window cell, access to a lavatory with two washbasins and two toilet cubicles, access to cold water at all times and the opportunity to wash with hot water twice a week, and medical assistance, and that the detention conditions described by the document would ensure that he was not held in conditions posing a risk of inhuman or degrading treatment, provided that, if not held in Gherla   Prison, he   was held in a prison affording the same or better individual detention conditions; Whereas in so stating the Investigation Division justified its decision and did not violate the treaty provisions relied upon; ... Whereas in ordering [the applicant’s] surrender to the Romanian judicial authorities the judgment held that in view of the seriousness of the charges on which [he] had been convicted in Romania, as opposed to the distinct charges pending against him in France, in relation to which he had been placed under judicial supervision, it did not appear appropriate to defer his surrender. Whereas in so holding, and as the court is not under a duty to account for the exercise of its power under Article 695-39 of the Code of Criminal Procedure to defer surrender of a person under a European arrest warrant, the Investigation Division justified its decision; ... ” 15.     On 26 August 2016 the applicant was surrendered to the Romanian   authorities pursuant to the EAW. application no. 40324/16 The circumstances of the case Background to the case 16.     In 1990 Mr Bivolaru became the leader of a spiritual yoga movement known in Romania as MISA ( Mișcarea de Integrare Spirituală în Absolut – Movement for Spiritual Integration into the Absolute). The founding and operation of MISA and the Romanian authorities’ investigations into some of its members are described in the cases of Amarandei and Others v.   Romania (no. 1443/10, §§ 7-14, 26 April 2016), Mouvement pour l’intégration spirituelle dans l’absolu v. Romania ((dec.), no. 18916/10, §§   4 ‑ 9, 2   September 2014) and Bivolaru v.   Romania (no.   28796/04, § 8, 28 February 2017). 17.     In 2004 a criminal case was brought against the applicant in Romania, and he was held on remand for a time before being released (for which see Bivolaru v. Romania (no. 2) , no. 66580/12, §§ 8 ‑ 18, 2 October 2018). By an application of 13 August 2004 the prosecutor referred the applicant for trial in absentia in the Bucharest County Court on charges of sexual activity with a minor, sexual perversion and corruption of a minor, human trafficking and illegal border crossing. 18.     On a date unspecified and in circumstances unknown, the applicant entered Sweden, where, on 24 March 2005, he lodged an application for political asylum. In April 2005 Romania’s interior ministry made two requests to the Swedish authorities for the applicant’s extradition. On   21   October 2005 the Swedish Supreme Court rejected the requests on the ground that the applicant was in danger of persecution for his religious views and for the beliefs which formed an intrinsic part of his activities with MISA. On 2 January 2006 the Swedish authorities issued the applicant with a permanent residence document made out under a new identity and endorsed with refugee status. 19.     On 10 February 2007 the applicant received official documents enabling him to travel on the basis of his refugee status. 20.     By a judgment of 14 June 2013 the Romanian High Court of Cassation and Justice convicted the applicant in absentia of sexual activity with a minor and sentenced him to six years’ imprisonment; on the remainder of the counts it either acquitted him or ordered the discontinuance of the proceedings on the ground that the charges were time ‑ barred. 21.     On 17 June 2013 the Sibiu County Court issued an EAW in respect of the applicant for the enforcement of his sentence. The proceedings in France 22.     On 26 February 2016 the applicant was arrested in Paris while using a false identity and in possession of forged Bulgarian papers. 23.     The applicant was brought before the Investigation Division of the Paris Court of Appeal for a determination regarding his surrender to the Romanian authorities. In support of his objection to execution of the EAW he   argued that Sweden’s grant of refugee status and the political and religious grounds underpinning his conviction in Romania constituted an absolute bar to his surrender. He pointed to his background as a yoga teacher in Romania, the banning of that practice under the former communist regime, his arrests, his wrongful commitment to a psychiatric facility in 1989 and the actions taken against MISA from the 1990s until 2004, when he had fled to Sweden. He claimed that as an opponent of the government he would be subjected to inhuman and degrading treatment if the EAW were executed, given that “torture and inhuman treatment remain[ed] routine in Romania” . He drew attention to a report released on 24 September 2015 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) that “express[ed] concern at the volume of ill ‑ treatment allegations from detained persons”   and “refer[red] to full ‑ blown beatings of prisoners”. 24.     By a judgment of 27 April 2016 the Investigation Division directed further information from the Swedish authorities to clarify the applicant’s refugee status: “Whereas, in so far as the court will have to direct its attention to the question whether it is open to the judicial authorities of one EU member State to refuse to surrender a national of another EU member State on the ground that, before the latter State joined the EU, a third country that was also a member of the EU granted that person the status of political refugee, it will be relevant for the court, in making its determination, to   know authoritatively what [the applicant’s] current status is in Sweden.” The Investigation Division enquired of the Swedish authorities: (a)     whether, in their view, the fact that the decision to grant refugee status had been taken before Romania joined the EU on 1   January 2007 meant that the circumstances in connection with which he had been granted it had ceased to exist, so that he could no longer continue to refuse to avail himself of the protection of the country of his nationality, in conformity with the terms of Article 1 C (5) of the Geneva Convention of 28 July 1951 relating to the status of refugees (see paragraph 56 below); (b)     whether by acquiring a false passport and a false Bulgarian identity card in Sweden he had forfeited his refugee status; and (c)     whether the applicant was wanted by any other EU States. The Investigation Division felt that an update from the Swedish authorities regarding the applicant’s status was called for, first, by the fact that they had been sent the EAW on 19 June 2013 but after not finding him at his address had sent it back to Romania on the possibility that he might be identified in   another member State, and second, by the following statement he had made to the prosecuting authorities in Paris: “After my hurried departure from Sweden, where, clearly, my continued protection as an asylum ‑ seeker is in doubt, I procured false documents to come to France. I   intend to request the transfer of my asylum claim from Sweden to France.” 25.     On 8 May 2016, the advocate-general at the Paris Court of Appeal sent the Swedish judicial authorities a request for further information, worded   in accordance with the judgment of 27 April 2016. 26.     On 12 May 2016 the international crimes unit of the Stockholm prosecutor’s office forwarded to the Court of Appeal the following reply from   the Swedish Migration Agency (original English): “1. Gregorian Bivolaru, born on the 13 th March 1952, applied for asylum in Sweden on the 24 th March 2005. During the asylum process a Romanian court [requested] the Swedish government to extradite Gregorian Bivolaru to Romania for prosecution ... On the 15 th August 2005 the Swedish Migration Agency denied Gregorian Bivolaru asylum. This decision was appealed to the Aliens Appeal Board. The question of extradition was tried by the Swedish Supreme Court on the 21 st October 2005. The Supreme Court found in its statement that there were obstacles to enforc[ing] the extradition. The Supreme Court also stated that the investigation gave substantial grounds for the conclusion that Gregorian Bivolaru due to his religious belie[f]s would face a ... risk [of] persecution of a serious form if he was extradited to Romania. The Swedish Government decided thereafter not to enforce the extradition. The Aliens Appeal Board granted Gregorian Bivolaru asylum on the 23 [rd] December 2005 and on the 2 nd January 2006 the Swedish Migration Agency granted [him a] residence permit and refugee status according to Article 1 of the 1951 Geneva Convention. 2. The Swedish Supreme Court did in its decision [have] regard [to] the fact that Romania soon would be an EU member State. The Swedish Migration Board has not initiated a withdrawal of refugee status. 3. The offence of using [a] false ID card and passport is generally not serious enough to withdraw refugee status in Sweden. 4. The Swedish Migration Agency is not aware that any other country has asked for [the] extradition of Gregorian Bivolaru .” 27.     In closing written argument to the Investigation Division the   applicant again maintained that his refugee status was a bar to execution of the EAW. Relying on Article 3 of the Convention, he referred to the aforecited judgment in Amarandei and Others in so far as it related to the police operation conducted against certain MISA members in 2004 (see paragraph 16 above and paragraph 129 below) to support his claims that the conviction for which the EAW had been issued had rested on political and religious grounds and that he was in danger of persecution at the hands of the Romanian authorities. He submitted that the Romanian authorities had fostered a climate of hatred against him and all MISA members and adduced a certificate from a member stating that he had been physically assaulted in April 2016, together with media reports and photographs, also from 2016, showing “public expressions of   hate” allegedly directed at him (graffiti found on MISA members’ homes, publication by Romanian media of photographs taken by the French police after his arrest, and so on). He stressed that his surrender would contravene Article 695 ‑ 22 ‑ 5 o of the Code of Criminal Procedure, under which discrimination against the person sought was a ground for mandatory non ‑ execution of an EAW (see   paragraph 59 below). 28.     By a judgment of 8 June 2016 the Investigation Division of the Paris Court of Appeal ordered the surrender of the applicant to the Romanian judicial authorities. After a rehearsal of the facts and the history of the criminal proceedings in Romania and a review of the applicant’s status in   Sweden, the court offered the following observations: “Whereas the [CJEU] has, by a number of rulings, including ... the Melloni judgment of 26 February 2013 and the Aranyosi-Căldăraru judgment of 5 April 2016, been   at   pains to specify the scope and force of the principles of mutual recognition that undergird the EAW Framework Decision and to delineate the interrelationship between those principles and the   requirement of respect for fundamental rights; ... Whereas it follows from the foregoing that the Kingdom of Sweden’s decision to grant [the applicant] political refugee status at a time when Romania was not yet a member of the European Union did not mean that the Investigation Division was required to refuse to surrender the applicant to the Romanian judicial authorities under the terms of the Refugee Convention, as such a refusal would contravene the bar imposed on the judicial authority of the executing member [State] against refusing to execute a European arrest warrant on a ground not among the exhaustive set of grounds for mandatory non ‑ execution enumerated at Article 3 of the [EAW] Framework Decision [of 2002] or for optional non ‑ execution enumerated at Articles 4 and 4a of that decision, as also listed at Articles 695-22, 695-23 and 695-24 of the Code of Criminal Procedure; whereas refusal on that sole ground would ultimately also cast doubt on the uniformity, throughout the European legal area, of the standard of fundamental rights protection laid down in the Framework Decision, undermine the principles of mutual trust and recognition which the decision seeks to uphold and hence compromise its efficacy; ...” 29.     Proceeding on the view that its task was to determine whether   there   were grounds for mandatory or optional refusal to surrender the applicant to the Romanian authorities, the Court of Appeal looked, first, at   whether it was established that the judicial authorities had issued the EAW for the purpose of punishing him for his opinions and beliefs or that there was a real risk of prejudice to his position on those grounds, and, second, at   whether there were substantial grounds to believe that the applicant faced a real risk of inhuman or degrading treatment owing to detention conditions in Romania. In so doing the Court of Appeal followed the approach adopted in   the Aranyosi and Căldăraru judgment, cited above. 30.     On the first point the Court of Appeal took the view that the surrender had been sought for the purposes of enforcing a sentence handed down for a non ‑ political offence, and that the applicant’s claims to have been convicted for his political views were mere allegations. On consideration of the reasons given for the judgment in Amarandei and Others (cited above, §§ 239 ‑ 248), concerning   alleged discrimination against MISA members in respect of their right to manifest their beliefs (see paragraph 129 below), the court concluded: “it has not [...] been proved that [the applicant] was convicted for his political   views; nor has it been established that his position may be prejudiced on those grounds in Romania.” On the second point the Court of Appeal felt, given the overly broad character of the applicant’s allegations, that it was not for the court to seek further information: “Whereas the judgment in Aranyosi and Căldăraru , which represents ... EU law, has strictly delineated the parameters of the specific assessment to be made by the executing member State of the level of fundamental rights protection afforded in the issuing member State; whereas, accordingly, for an exception to the general scheme of   automatic surrender on an EAW to lie for inadequate fundamental rights protection in the issuing member State, the court must in the first place be satisfied that 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. ’ Whereas it cannot escape observation that [the applicant] and his counsel have not adduced in evidence any information rising to the standard laid down by the CJEU; whereas, that being so, and contrary to what was sought by [the applicant] in this respect in his written submissions, it is not within the court’s power to undertake a precise and specific inquiry into whether there are substantial grounds for believing that, owing to detention conditions in Romania, a member State of the European Union, he   will face a real risk of inhuman or degrading treatment; ” 31.     The applicant made an application to the Court of Cassation to set that   judgment aside by review on points of law. In his first ground of review, he submitted that his surrender to the Romanian judicial authorities would run counter to the non-refoulement principle enshrined in Articles 1 and 33 of the Geneva Convention of 28 July 1951 relating to the status of refugees (see paragraphs 56 and 57 below). He argued that the Framework Decision, and in particular Article 1 § 3 thereof (see paragraph 44 below), had to be interpreted in the light of Article 78 of the Treaty on the Functioning of the European Union (TFEU), paragraph (d) of the Sole Article of Protocol No 24 on asylum for nationals of Member States of the European Union and Article   18 of the Charter of Fundamental Rights of the European Union (see   paragraphs 41, 46 and 47 below) – provisions which ensured compliance with the requirements of the Geneva Convention. He maintained that his refugee status was an exceptional circumstance operating in bar of surrender, a proposition for which he relied on previous rulings of the Criminal Division of the Court of Cassation (see paragraph 61 below). He invited the   Court of   Cassation to seek a preliminary ruling from the CJEU on the interpretation to be given to the Framework Decision in a case where EU   norms sat uneasily with the relevant international treaties cited above. 32.     In his second ground of review the applicant claimed violations of Articles 2, 3, 6, 8 and 9 of the Convention. He contended that the Investigation Division had looked only at whether the request for surrender was politically motivated, leaving the issue of fair trial safeguards undecided. He also complained that it had not sought to determine, as required by the Aranyosi and Căldăraru judgment cited above, whether detention conditions in Romania placed him at real risk of inhuman or degrading treatment. 33.     In further submissions the applicant renewed his request to the Court of Cassation to seek a preliminary ruling from the CJEU regarding the scope for reliance on the principle of non-refoulement as a ground for non-execution of an EAW. He argued that the issue before the court was novel and serious. He   pointed out that his situation was distinguishable from the circumstances at issue in the CJEU judgment of 21 October 2010 in I.B. (C ‑ 306/09, EU:C:2010:626; see paragraph 55 below), a case where the existence of an asylum claim or of an application for refugee status or subsidiary protection had been held not to be one of the grounds for non ‑ execution of an EAW and where it had been emphasised that the member States of the European Union were safe countries in respect of each other for all asylum ‑ related purposes. 34.     The advocate-general tasked with advising the Court of Cassation recommended in his submissions that the request to seek a preliminary ruling from the CJEU should be denied for the following reasons: “... the provisions allegedly violated present no genuine difficulties of interpretation, and ... the Criminal Division of this court, on which it is incumbent to ensure that criminal cases are decided within a reasonable time, is in a position to see for itself that there is no incompatibility between those European norms and international treaties and the domestic law which, in this instance, merely transcribes them into the municipal legal order.” 35.     The Court of Cassation dismissed the application by a judgment of 12   July 2016 reasoned in the following terms: “[As to the first ground] Whereas in rejecting the argument that the status of refugee granted [to the applicant] by Sweden was a bar to execution of the European arrest warrant, the judgment gave the reasons now set out in the ground of review; Whereas in so reasoning the Investigation Division justified its decision; Whereas a grant of refugee status, within the meaning of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967, by an EU member State to a national of a State which then became an EU member between the date of the grant and the date on which the European arrest warrant sought to be executed was issued, is not, in itself, an obstacle to execution of the European arrest warrant; In consequence whereof the ground of review cannot be allowed, nor need a request be made to the Court of Justice of the European Union for a preliminary ruling; ... [As to the third ground] “... the Investigation Division did not violate any of the provisions referenced in the ground of review: first, it satisfied itself that the rights of the defence had been respected during the defendant’s trial in Romania; second, it concluded from the inadequacy of the evidence on record that no showing had been made of the existence, as far as detention conditions in the issuing member State were concerned, of systemic or generalised deficiencies, affecting certain groups of people or places of detention, such   as to give rise to an exception to the general scheme of automatic surrender on   a European   arrest warrant for lack of adequate fundamental rights protection in that State, and so there was no need for it to make inquiries which its findings rendered nugatory ... ” 36.     On 13 July 2016 the applicant made a request under Rule 39 of the Rules of Court for a stay of execution of the order directing his surrender to the Romanian authorities. On 15 July 2016 the Court refused his request. 37.     On 22 July 2016 the applicant was, pursuant to the EAW, removed to Romania, where he was jailed in a prison whose location he has not specified. The Court’s judgment of 2 October 2018 in Bivolaru v. Romania (no.   2) (application no. 66580/12) 38.     The judgment of 2 October 2018 stated that the applicant had been released on licence on 13 September 2017. 39.     In that judgment the Court held that the applicant’s complaint concerning his conviction in absentia was manifestly ill ‑ founded and therefore inadmissible. The Court also concluded that there had been no violation of Article 6 § 1 of the Convention in respect of the steps taken by the High Court of Cassation and Justice to secure his appearance in person, but that there had been such a violation in respect of the excessive length of the proceedings. LEGAL FRAMEWORK AND PRACTICE EUROPEAN UNION LAW The Charter of Fundamental Rights of the European Union 40.     Article 4 of the Charter of Fundamental Rights, which is entitled “Prohibition of torture and inhuman or degrading treatment or punishment”, reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 41.     Article 18 of the Charter provides: “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with [the Treaties].” Framework Decision 2002/584/JAI 42.     The relevant provisions of Framework Decision 2002/584/JAI [1] as amended by Council Framework Decision 2009/299/JAI of 26 February 2009 were summarised in the judgment in Pirozzi v. Belgium (no. 21055/11, §§   24 ‑ 29, 17   April 2018). 43.     So far as relevant, the recitals of the Framework Decision state: “(12)     This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons. ... (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.” 44.     Article 1 of the Framework Decision provides: “Definition of the European arrest warrant and obligation to execute it 1.     The European arrest warrant 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 European arrest warrant 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 of the Treaty on European Union.” 45.     The Framework Decision sets out the circumstances in which a warrant may be issued (Article 2) and the circumstances in which States may or must refuse to execute it (Articles 3, 4 and 4a). Relevant provisions of the Treaty on the Functioning of the European Union and Protocol No 24 on asylum for nationals of Member States of the European Union 46.     Article 78 TFEU provides in relevant part: “The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement . This policy must be in accordance with the Geneva Convention of 28   July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties. ...” 47.     The Sole Article of Protocol No. 24 on asylum for nationals of Member States of the European Union provides: “Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases: (a)     if the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating in its territory from its obligations under that Convention; (b)     if the procedure referred to in Article F.1(1) of the Treaty on European Union has been initiated and until the Council takes a decision in respect thereof; (c)     if the Council, acting on the basis of Article F.1(1) of the Treaty on European Union, has determined, in respect of the Member State [of] which the applicant is a national, the existence of a serious and persistent breach by that Member State of principles mentioned in Article F(1); (d)     if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.” Directive 2011/95/EU 48.     The relevant provisions of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 “on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidia