As per the provisions of the ZSS, the official supervision of a judge’s work is intended to ensure the fulfilment of judicial duties according to the law and the Court Rules, and encompasses all measures to eliminate reasons for any unacceptable volume, quality and professionalism of work and delays. Court presidents may implement official supervision also at the Ombudsman’s request. Two such requests were submitted in 2015, and in both cases the official supervision conducted at the Ombudsman’s request revealed irregularities in the implementation of judicial duties. 2.4 JUSTICE Prohibition of torture in the context of the European arrest warrant The Human Rights Ombudsman of the Republic of Slovenia also considered a complaint submitted by a Lithuanian citizen detained in the Republic of Slovenia and his representative appointed ex officio relating to the case discussed by Kranj District Court under ref. no. I Kpd 4371/2015 concerning a European arrest warrant issued by a court in the Republic of Lithuania. Upon receiving the complaint, the Ombudsman was able to determine that the complainant had already stated that he was unwilling to surrender and did not waiver the principle of speciality and that his attorney had emphasised before the court at the hearing of the wanted person on 24 February 2015 that “many pieces of information were obtained on intolerable conditions in Lithuanian prisons which violate human rights and fundamental freedoms”. The reply to the proposal to extend detention of 24 February 2015 (where the “case of Liam Campbell” (a case discussed by a court in Northern Ireland) was being referred to in particular) also provided similar information. Due to allegations made by a person detained in Slovenia and wanted on the basis of a European arrest warrant regarding circumstances relating to the prohibition of torture, inhumane and degrading treatment or punishment (hereinafter: prohibition of torture) in the country that issued the warrant, the Ombudsman decided to exercise its right under Article 25 of the ZVarCP and contacted Kranj District Court about the case. In our letter to the court, we highlighted that “intolerable conditions in prisons which violate human rights and fundamental freedoms” (we cite the wording of the complainant’s attorney) were not among the grounds provided by the ZSKZDČEU-1 for refusing to surrender a requested person (Article 10) or the optional grounds for refusing to surrender a requested person (Article 11) regarding the procedure for arrest and surrender between EU Member States. However, according to the Ombudsman, this alone is not a sufficient reason for not observing the alleged violation of the prohibition of torture, inhumane and degrading treatment or punishment in a suitable way when considering a possible refusal to surrender a person detained on the basis of the European arrest warrant. It must be observed at all times that the prohibition of torture is not merely a category from the catalogue of human rights and fundamental freedoms of the Constitution of the Republic of Slovenia and one of the convention rights of (e.g.) the European Convention for the Protection of Human Rights and Fundamental Freedoms: it is also a category of human rights which has become a fixed part of the law (jus cogens). This particularly emphasises the significance of the relevant prohibition and the need to discuss any alleged violations with due seriousness. It must also be mentioned that Article 2 of the ZSKZDČEU-1 determines mutual recognition and execution of court decisions on the arrest and surrender of persons as per “the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures between Member States (OJ L 190, 18 July 2002, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/ JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at a trial (OJ L 81, 27 March 2009, p. 24; hereinafter: Council Framework Decision 2002/584/JHA)” the introductory note of which explicitly states (point 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.” surrender on the basis of a European arrest warrant. With decision Up-572/12-14 of 5 July 2012 due to a violation of Article 22 of the Constitution of the Republic of Slovenia, the Constitutional Court set aside the contested individual decision of the higher court, returned the case for reconsideration and ordered the court to consider “all reasons the complainant submitted against the decision to be surrendered to the Italian Republic, including her request to serve her sentence in the Republic of Slovenia due to the right to respect for family life” (in this case, the complainant claimed inter alia that her right to respect for family life, which is protected under Article 8 of the ECHR, had been violated with the contested decisions; the prohibition of torture under Article 3 of the Convention is undoubtedly a norm of even greater significance, e.g. according to the ruling of the ECHR in Mikalauskas v. Malta of 23 July 2013, which became final on 23 October 2013 (point 15): “/.../ in the event of a violation of Article 2 and 3, which are considered some the most fundamental provisions of the Convention /.../”). On the other hand, the ECHR frequently considered cases where an element of European Union law was relevant. It is not difficult to find examples in a comparative legal context in which a national court has refused to surrender a subject of a European arrest warrant or to surrender a wanted person due to a potential violation of the prohibition of torture or poor conditions in prisons in the state issuing the warrant. In the case in question, we were able to determine that the complainant’s attorney had provided (at least) two examples proving “intolerable conditions in Lithuanian prisons which violate human rights and fundamental freedoms”. Since the Ombudsman wishes to be constructive, particularly when in the role of amicus curiae, we wanted to facilitate the court’s decision making by providing the ECHR’s statements in certain rulings concerning Lithuania, references to certain pages in the CPT’s reports on their visits to Lithuania in 2000, 2004, 2008 and 2012, and references from annual reports (English versions) of Lithuanian Seimas Ombudsmen for 2006, 2007, 2010, 2011, 2012 and 2013, as grounds for refusing to surrender the person in question as per the procedure under the ZSKZDČEU-1 due to the effect of the prohibition of torture. On the basis of Article 7 of the ZVarCP, we concluded our intervention at Kranj District Court with the proposal “to verify in the case under reference number I Kpd 4371/2015 if, in addition to the reasons stated in Articles 10 and 11 of the ZSKZDČEU-1, there was also the possibility of a violation of the prohibition of torture or inhuman or degrading treatment or punishment in Lithuania, where the person in question was to serve his sentence, which constituted grounds for refusing to surrender the person in this particular case – and to observe in this regard also all the aforementioned sources, and if necessary conduct all other investigative measures as per paragraph three of Article 23 of the ZSKZDČEU-1, whereby it would be possible to establish whether the conditions are provided to surrender the person in question with regard to the prohibition of torture and inhuman or degrading treatment or punishment.” Thus the Ombudsman did not propose to the competent court how to decide (to the benefit of the complainant or otherwise), but merely provided some of the most relevant documentation to aid the court when discussing the violation of the prohibition of torture claimed by the complainant and when making a decision. The Ombudsman believes that, in accordance with Article 22 of the Constitution of the Republic of Slovenia, the party’s claims, which reasonably counter the assurances of the requesting state or the issuing country, relating to the prohibition of torture and inhuman or degrading treatment or punishment must be considered as “decisive reasoning for assessing the dispute” or one of the “significant claims of the party”, who must not doubt that the relevant claim was not evaluated by the court with all due diligence. If the court had failed to take a position in its decision on the claimed circumstances as per the prohibition of torture, it would have been violating Article 22 of the Constitution of the Republic of Slovenia according to the Ombudsman’s opinion. The Ombudsman is aware that such cases involve issues which primarily refer to the law of the European Union; however, we primarily focused particularly on the constitutional view and the aspect of the law of the Council of Europe, since we believe that this provides sufficient support for our findings and that various interpretations of often ambiguous rulings of the Court of Justice of the European Union could not contribute to resolving dilemmas arising from the case in question. After all, the Constitutional Court of the Republic of Slovenia had already withheld the execution of both regular courts’ decisions, which permitted We later received a letter from the President of Kranj District Court stating that the court was “aware of the importance and sensitivity of its decisions in individual, and particularly criminal cases, and also acknowledges its constitutional role and tasks”, and that in its “future conduct /…/ all legal and constitutional principles will be observed, including the provisions of the Convention on the prohibition of torture and inhuman or degrading treatment or punishment”. However, it later emerged that the non-trial panel of Kranj District Court in decision ref. no. I Ks 4371/2015 of 31 March 2015 permitted the surrender of the complainant as the requested person to the Republic of Lithuania without particularly stating its position on the alleged prohibition of torture, and had only concluded that “complete European arrest warrants (Article 18 of the ZSKZDČEU-1) were submitted and no conditions for refusing to surrender the requested person as per Articles 10 and 11 of the ZSKZDČEU-1 were met”. The court thus only verified the fulfilment of optional or obligatory conditions for refusing surrender as per the two aforementioned Articles. It completely ignored the Ombudsman’s clarification relating to the prohibition of torture arising from other requirements (Constitution of the Republic of Slovenia, the ECHR and finally also the legally non-binding preamble of the Framework Decision itself). 68 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 69 2.4 JUSTICE Official supervision of judges’ work