Accessibility of reports
As can be seen from Figure 1 above, most NPMs publish their annual reports fully or partially in
English. They are therefore easily accessible if one knows where to look for them, which might be
a bit more difficult. This is not the case for the vast majority of visiting reports, whereby if they are
public at all, they are only available in the national languages and not in English. While it would be
useful to have these reports in English in order to easily consider and rely upon them as a basis for
taking decisions in transfer cases, this does not seem to be realistic due to resource implications this
would have for NPMs.
Accessibility also depends on how easily these reports can be retrieved online. While the SPT website currently compiles the annual reports, not all NPMs seem to share their reports on time with
the SPT, which is why some annual reports are currently missing. Furthermore, the website does not
contain the visiting reports of NPMs.337 Judges and Ministry of Justice representatives underlined
the challenge they would face when searching for reports by NPMs. Several stakeholders therefore
suggested that a central database for NPM reports would be beneficial. FRA informed the authors
of this report, that they are in the process of starting discussions on a search tool, establishing a
metasearch of existing databases, which could also include reports on conditions of detentions in
EU Member States.338
Obtaining of information on individual risks
As referred to above, the executing judicial authority in the context of EAW proceedings must be
satisfied that it has objective, reliable, accurate and up-to-date information on deficiencies in the
prison system. According to the CJEU, once in possession of information showing the existence of a
general and systemic risk of ill-treatment, judges must verify whether there are serious and proven
grounds to believe that the individual concerned will be under threat. The CJEU is clear on the fact
that a generalised situation of ill-treatment in a country, due to, for example, endemic overcrowding
or poor sanitary conditions, does not constitute a reason to refuse the execution of an EAW. Thus the
executing State is obliged to check whether under concrete circumstances and because of reasons
that are confirmed by facts, the person, after transfer to the issuing State, will be subject to a serious
risk of inhuman or degrading treatment in this Member State.339
The judicial authority in the executing State must thus perform an individual analysis, and, to this
end, request further information from the judiciary of the issuing State regarding the conditions in
which the person would be kept.340 Judges must also inform the executing State of “the existence,
in the issuing Member State, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess
the current state of detention conditions in those prisons.”341
The CJEU places an onus on the executing authorities to seek out from the issuing authority information, not only on the material conditions of the prison in which the individual will be detained, but
evidence of a specific risk that the individual would face on surrender. A challenge in this regard is
that in many States it does not seem to be possible for authorities to inform the executing State with
any degree of certainty, precisely which prison the individual will be transferred to upon surrender.
337
See website of the SPT. Available:
http://www.ohchr.org/EN/HRBodies/OPCAT/Pages/AnnualreportsreceivedfromNPM.aspx (3 November 2016).
338
Interview with Jonas Grimheden, FRA, 24.10.2016. Also see Chapter 6.4 below.
339
See Joined Cases C‑404/15, Aranyosi and C‑659/15 PPU, Caldӑrӑru, [2016] paras. 94 et seq.
340
Joined Cases C‑404/15, Aranyosi and C‑659/15 PPU, Caldӑrӑru [2016] paras. 95.
341
Ibidem, para. 96.
92
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