Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers Irishman in the scenario above? Are judges sufficiently equipped to assess the fundamental rights situation in another Member State in terms of detention conditions to be able to decide whether or not to transfer a detainee from one Member State to another? In April 2016, the CJEU ruled in two joined cases – Aranyosi and Căldăraru – on transfers under the EAW from Germany to Hungary and Romania, respectively.118 (These cases are also briefly discussed in Section 2.1). The CJEU (Grand Chamber) concluded that a judge has to consider objective and reliable evidence of systemic concerns with detention conditions in the issuing state, and, if the risk of inhuman or degrading treatment cannot be dismissed, the transfer could be brought to an end. More specifically, the CJEU ruled that: “[W]here 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.” The CJEU then elaborated on the need to request information on detention conditions from the issuing state: “The executing judicial authority must postpone its decision on the surrender of the individual concerned until it obtains the supplementary information that allows it to discount the existence of such a risk. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.” This places a significant burden on judges in terms of having insight into problems in other countries (that are not based on mere stereotypes) and access to reliable and current sources of information – and also requires sufficient time and incentives to ensure that these issues are given the necessary attention. It also makes it vital for judges in the EU to approach such assessments as uniformly as possible for the sake of legal clarity and predictability. 118 CJEU, Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru v. Generalstaatsanwaltschaft Bremen, 5 April 2016. 48 For the three Framework Decisions focused on in this report, not only judges but, as stated, prison and probation officials or ministry civil servants would also need support to fully operationalise the instruments and mutual recognition. Repercussions of CJEU’s Aranyosi-Căldăraru ruling: transfer denied A first instance court ruling in Sweden, issued after the Aranyosi-Căldăraru cases, similarly led to a refusal to transfer a sentenced person back to Romania under the EAW. The case provides much insight into the process that preceded the decision and the court’s considerations. For instance, the Swedish prosecutor inquired at which prison, and at which security level, the person would serve, and requested details on prison conditions. The response indicated the security level and provided information on general conditions at Romanian prisons, such as average square meters per inmate and access to hygienic facilities. The EU agency for judicial cooperation, Eurojust, was consulted on transfers to Romania. The defence attorney provided additional details on prison conditions in Romania, including at the likely prison, which underscored the very poor conditions. The prosecutor considered the CJEU’s decisions in Aranyosi-Căldăraru, and concluded that no sufficient guarantees had been received. The Swedish court decided to reject the transfer request and that the restrictions imposed on the sentenced person (reporting duty and travel restrictions) should be lifted. In addition to concerns about prison conditions in Romania, there were also concerns about the fairness of the trial as well as the legality and proportionality of the sentence imposed by the Romanian court. The Swedish court also noted that more concrete and individualised opinions must be made available from a  country with documented problems with detention conditions. Source: Solna Tingsrätt [Solna first instance court], Case Number B 2768-16, 18 May 2016 This recent jurisprudence underscores the need for mutual trust for instruments like the three Framework Decisions to work, as repeatedly highlighted in this report. Taking the starting point in the shortcomings identified in this report, three overarching problems prevail. These relate to a lack of: • Accessibility of data and information on detention conditions and available alternatives for practitioners – be they judges, prison and probation officials,