Overall goals and fundamental rights principle on many occasions, and has made clear that it applies equally to persons accused or convicted of very serious crimes.63 While this report does not deal with detentions of migrants or asylum, a parallel can be drawn with jurisprudence in these areas. In 2011, the CJEU referred to the well-known ECtHR decision in M.S.S. v. Belgium and Greece64 and stated that EU Member States have an obligation to conduct a test of conformity with fundamental rights prior to transferring asylum seekers to another Member State. According to the CJEU, Member States may not transfer detained persons to a place where they are at risk of inhuman treatment. The judgment further concludes that EU law does not permit an absolute presumption that Member States observe the fundamental rights conferred on asylum seekers.65 This principle should also apply to transferring prisoners to another EU Member State, and has been expressed in the context of the EAW by the CJEU (as will be explored further in this report). The most relevant fundamental rights concern for transfers of prisoners would be the conditions of detention in the destination state, and it should be noted that the ECtHR has found numerous EU Member States guilty of violations of Article 3 of the ECHR in relation to these conditions.66 In a case regarding the refusal of a transfer from Romania to Turkey, the applicant complained about detention conditions in Romania, in particular: poor hygiene, bedbugs, a lack of activities or work, and the fact that the food was not adapted to his diabetes. The ECtHR found that the combination of these conditions amounted to inhuman and degrading treatment prohibited by Article 3.67 When assessing detention conditions, the ECtHR generally relies on the following principles: 63 ECtHR, Saadi v. Italy, No. 37201/06, 28 February 2008. 64 ECtHR, M.S.S. v. Belgium and Greece, No. 30696/09, 21 January 2011. 65 CJEU, Joined cases C-411/10 and C-493/10, N. S. v. Secretary of State for the Home Department and M. E. and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, 21 December 2011 (hereinafter N. S. and M.E cases). 66 See, for example, ECtHR, Florea v. Romania, No. 37186/03, 14 September 2010; Vasilescu v. Belgium, No. 64682/12, 25 November 2014; Tali v. Estonia, No. 66393/10, 13 February 2014; Mandić and Jovic v. Slovenia, Nos. 5754/10 and 5985/10, 20 October 2011; Torreggiani and Others v. Italy, No. 43517/09, 8 January 2013; Varga and Others v. Hungary, Nos 14097/12, 45135/12, 73712/12, 34001/13, 44055/13 and 64586/13, 10 March 2015; Piechowicz v. Poland, No. 20071/07, 17 April 2012. For an overview of number of ECtHR judgments finding a violation under Article 3 ECHR in 2014 by EU Member State, see FRA’s website. 67 ECtHR, Serce v. Romania, No. 35049/08, 30 June 2015. • prisoners’ human rights need to be protected as they are entirely dependent on the state and therefore vulnerable; • the ECtHR looks at the conditions as a whole, including various elements (overcrowding, absence of beds, lack of time outdoors, etc.) and the length of the detention; • overcrowding might constitute the most serious element and may suffice to find a violation; • an accumulation of other elements – such as a lack of private access to a sanitary annex, the unavailability of fresh air, and a lack of access to natural solar light and time outdoors – might also constitute a violation.68 A long-awaited judgment of the CJEU confirmed that states are obliged to assess detention conditions in the receiving state when surrendering persons under the European Arrest Warrant. The CJEU explained that, where there is objective evidence that an individual will be exposed to inhuman or degrading treatment in detention in the receiving state, the Member State must postpone the decision on the individual’s surrender until it obtains supplementary information necess­ ary to assess the real risk in a concrete case.69 The judgment considered the surrender of individuals from Germany to Hungary and Romania. Taking into account this jurisprudence, it seems logical that, prior to considering any transfers of prisoners, if there is evidence of systemic shortcomings in detention conditions in an executing state and this is raised by the person subjected to transfer, the issuing state should further examine these conditions and assess whether, in a concrete case, an individual would run a real risk. The established risk of being subjected to inhuman and degrading treatment should be real and beyond doubt; a mere general reference to expected detention conditions being worse than present conditions, without further substantiation, would not suffice to establish possible violations of the prohibition of inhuman and degrading treatment. The ECtHR dismissed such unsubstantiated complaints by prisoners transferred from Sweden to Hungary. The court added that the applicants could lodge complaints against Hungary if they believed that this state violated their rights.70 68 ECtHR, Torreggiani and Others v. Italy, No. 43517/09, 8 January 2013, paras. 65–69. 69 CJEU, Joined Cases: C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, 5 April 2016, para. 104. 70 ECtHR, Csoszánszki v. Sweden, No. 22318/02, 26 October 2004; Szabó v. Sweden, No. 28578/03, 26 October 2004. 39