Headnotes

to the Order of the Second Senate of 1 December 2020

- 2 BvR 1845/18 -

- 2 BvR 2100/18 -

1. When deciding on legal issues that are fully determined by EU law, the fundamental rights of the Basic Law are inapplicable as the direct standard of review. In such cases, EU fundamental rights must generally be applied as the relevant standard.

2. When interpreting the fundamental rights of the Charter of Fundamental Rights of the European Union, both the human rights of the European Convention on Human Rights as they are specified by the European Court of Human Rights and the fundamental rights as they are reflected in common constitutional traditions and shaped by the constitutional and supreme courts of the Member States must be taken into account.

3. Within the framework of the multi-level cooperation of European constitutional courts, the Federal Constitutional Court ensures the protection of fundamental rights in cooperation with the Court of Justice of the European Union, the European Court of Human Rights and the constitutional and supreme courts of the other Member States.

4. According to the case-law of the Court of Justice of the European Union and the European Court of Human Rights, when a Member State court conducts the required overall evaluation of detention conditions, it must be distinguished whether the space available to a prisoner in a multi-occupancy cell is below 3 m², between 3 m² and 4 m² or above 4 m².

5. Art. 4 of the Charter of Fundamental Rights of the European Union imposes a duty on the court dealing with a surrender request to verify, by obtaining supplementary information, in the specific case whether the person to be surrendered is exposed to a real risk of inhuman or degrading treatment.

6. The standards applied by the Court of Justice of the European Union when interpreting Art. 4 of the Charter of Fundamental Rights of the European Union are in line with Art. 1(1) of the Basic Law both with regard to the minimum requirements for detention conditions in the requesting state and with regard to the duty to investigate related thereto incumbent upon the court dealing with the surrender request.

7. Given that Art. 4 of the Charter of Fundamental Rights of the European Union guarantees fundamental rights protection, it is not necessary in the present case to conduct a review on the basis of constitutional identity in accordance with Art. 79(3) in conjunction with Art. 1(1) of the Basic Law in order to limit the precedence of application of EU law.

FEDERAL CONSTITUTIONAL COURT

- 2 BvR 1845/18 -

- 2 BvR 2100/18 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

- 2 BvR 1845/18 -,

- 2 BvR 2100/18 - 

the Federal Constitutional Court – Second Senate –

with the participation of Justices:

Vice-President König,

Huber,

Müller,

Kessal-Wulf,

Maidowski,

Langenfeld

held on 1 December 2020:

1. The proceedings are combined for joint decision.

1. 2. a) To the extent that it declared the extradition to be permissible, the Order of the Berlin Higher Regional Court of 10 August 2018 - (4) 151 AuslA 185/17 (228/17) - violates complainant no. 1’s fundamental right under Article 4 of the Charter of Fundamental Rights of the European Union.

2. b) The Order of the Berlin Higher Regional Court of 24 August 2018 - (4) 151 AuslA 185/17 (228/17) - is thus moot.

3. c) The matter is remanded to the Berlin Higher Regional Court.

4. d) The Land Berlin must reimburse complainant no. 1 for the necessary expenses incurred in the constitutional complaint and preliminary injunction proceedings. Complainant no. 1’s application for legal aid and the appointment of a legal representative have thereby become moot.

2. a) To the extent that it declared the extradition to be permissible, the Order of the Celle Higher Regional Court of 5 September 2018 - 2 AR (Ausl) 39/18 - violates complainant no. 2’s fundamental right under Article 4 of the Charter of Fundamental Rights of the European Union.

5. b) The Order of the Celle Higher Regional Court of 20 September 2018 - 2 AR (Ausl) 39/18 - as well as the decision of 7 September 2018 issued by the Celle Public Prosecutor General’s Office allowing the extradition - 31 Ausl A 51/18 - are thus moot.

6. c) The matter is remanded to the Celle Higher Regional Court.

7. d) The Land Lower Saxony must reimburse complainant no. 2 for necessary expenses incurred in the constitutional complaint and preliminary injunction proceedings.

 R e a s o n s:

A.

The constitutional complaints, which were combined for joint decision, concern the complainants’ surrender to Romania for the purposes of criminal prosecution and of the execution of a custodial sentence. The complainants challenge their surrender to the Romanian authorities on the grounds of the detention conditions in Romania.

[Excerpt from Press Release No. 108/2020 of 30 December 2020

In the first case, a European arrest warrant for the purpose of executing a custodial sentence of five years for attempted murder in Romania was issued against complainant no. 1, a Romanian national. The Berlin Higher Regional Court (Kammergericht ) ordered detention pending extradition. In the course of the proceedings, the Romanian authorities informed the Berlin Public Prosecutor General’s Office (Generalstaatsanwaltschaft ) that complainant no. 1 would initially be detained – for a quarantine period of 21 days – in a multi-occupancy prison cell with at least 3 m² of personal space. The subsequent imprisonment would, in all likelihood, be executed in closed detention where the complainant would also be detained in a multi-occupancy cell with personal space of 3 m². The Romanian authorities stated that all cells in this prison are equipped with toilets, sinks and showers. Each has natural light from a window, artificial white neon light as well as a table, chairs and clothes hooks. Cold drinking water is available anytime; hot water is available three times a week in accordance with a bathing schedule set out by the prison administration. All rooms are disinfected regularly. After one fifth of the sentence is served, the convicted person will be reassessed. If he is transferred to an open detention regime, he will be provided with 2 m² of non-shared personal space. These prison cells are equipped with toilets, sinks, shelves and mirrors. Five of eight prison units also have showers. There is sufficient light, natural air supply, and the rooms are disinfected on a regular basis. In semi-open detention, the doors are open during daytime and prisoners may move about unaccompanied within the prison building and prison yard. After the evening roll call at 7 p.m., there is time for individual leisure activities within the cells until lights out at 10 p.m.

The Berlin Higher Regional Court declared the extradition of complainant no. 1 to be permissible. It stated that the conditions in (semi-)open detention were not relevant given that it is unclear whether he would ever be transferred. The court also stated that the review of detention conditions in prisons where the complainant might later be detained falls solely to the courts of the requested Member State. The court further stated that the detention conditions during the quarantine and in closed detention are in line with the minimum requirements under Art. 4 of the Charter of Fundamental Rights of the European Union and Art. 3 of the European Convention on Human Rights given that a minimum of 3 m² of cell space per prisoner is provided.

In the second case, a European arrest warrant for the purpose of conducting a criminal prosecution for the aiding and abetting of illegal immigration and illegal stay was issued by a Romanian court against complainant no. 2, an Iraqi national. The Celle Higher Regional Court (Oberlandesgericht ) ordered detention pending extradition. The Celle Public Prosecutor General’s Office requested information from the Romanian authorities on the detention conditions to be expected with regard to remand detention and the execution of a potential custodial sentence. The Office also requested that assurances be provided that detention conditions for all types of detention (closed, semi-open and open) satisfy the requirements under Art. 3 of the Convention. The Romanian authorities informed the Public Prosecutor General’s Office that complainant no. 2’s remand detention would be executed in a detention centre where he will have at least 4.15 m² of personal space including bed and furniture. The rooms can be aired and heated. Detainees have access to running water and sanitary facilities and are allowed to take walks outside within the limits set out in statutory provisions. It was as yet unclear in which prison complainant no. 2 would be detained in case of a final conviction. In a second letter, the Public Prosecutor General’s Office again asked the Romanian authorities to provide assurances in respect of making at least 3 m² of personal space available to the complainant following a conviction.

The Higher Regional Court declared the extradition of complainant no. 2 to be permissible, without awaiting the reply of the Romanian authorities to the second request made by the Public Prosecutor General’s Office. The court stated that a real risk of detention conditions violating human rights could be ruled out in the specific case. It further stated that, in view of the mutual trust between Member States, the judicial authorities of the requested Member State were not obliged to also review the detention conditions in prisons where the complainant might be detained later on.

The complainants assert a violation of their fundamental rights under Art. 1, Art. 2(1), Art. 2(2) second sentence, Art. 19(4) and Art. 101(1) second sentence of the Basic Law (Grundgesetz – GG).

End of excerpt ]

I.

[…]

II.

[…]

B.

The constitutional complaints are admissible. In particular, they satisfy the requirements of substantiation derived from § 23(1) second sentence first half-sentence and § 92 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) – even in respect of the stricter admissibility requirements applicable to a review on the basis of constitutional identity of acts determined by European Union law (identity review – Identitätskontrolle ). According to these requirements, it must be demonstrated and substantiated in detail to what extent the guarantee of human dignity protected by Art. 1(1) GG is violated in the individual case (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 140, 317 <341 f. para. 50>). Referring to decisions of the European Court of Human Rights and the Court of Justice of the European Union, the complainants addressed the Federal Constitutional Court’s case-law in detail and stated why they consider the guarantee of human dignity to be violated.

C.

The constitutional complaints are well-founded. The challenged decisions violate the complainants’ fundamental right under Art. 4 of the Charter.

I.

The matter at issue in the initial proceedings of both constitutional complaints concerns an area fully determined by EU law (see 1. a) below). Therefore, the fundamental rights of the Basic Law are inapplicable as the direct standard of review in this case (see 1. b) below). However, the complainants can invoke the rights of the Charter, which the Federal Constitutional Court applies as the relevant standard when reviewing decisions of the ordinary courts as to their correct application of pertinent EU legislation (see 2. and 3. below).

1. a) Surrender procedures fall within the scope of the Framework Decision on the European arrest warrant and are fully determined by EU law (cf. BVerfGE 140, 317 <343 para. 52>; 147, 364 <382 para. 46>).

b) Regarding the application of legal provisions that are fully harmonised under EU law, the relevant standard of review does not derive from German fundamental rights, but solely from EU fundamental rights (cf. BVerfGE 152, 216 <233 ff. para. 42 ff.>). It is solely on the basis of the recognition of the precedence of application of EU law that the German fundamental rights are not directly applied as the relevant standard of review; the validity of the fundamental rights of the Basic Law as such remains unaffected. The constitutional complaints concern decisions of German ordinary courts, which must be reviewed as to whether, in applying EU law in line with their role, the courts observed the requirements of the Charter that must be met in this regard. In such cases, the Federal Constitutional Court cannot entirely refrain from conducting a fundamental rights review; rather, it is called upon to ensure fundamental rights protection on the basis of EU fundamental rights. Therefore, to the extent that the fundamental rights of the Basic Law are inapplicable in a specific case due to the precedence of EU law, the Federal Constitutional Court reviews the domestic application of EU law by German authorities and courts on the basis of EU fundamental rights (cf. BVerfGE 152, 216 <236 para. 50 and 237 para. 52>).

2. a) Today, EU fundamental rights are part of the fundamental rights guarantees that can be enforced vis-à-vis German state authority and constitute a functional equivalent to the fundamental rights of the Basic Law. Just like the fundamental rights of the Basic Law, EU fundamental rights serve to protect the freedom and equality of citizens within the scope of application of EU law pursuant to Art. 51(1) of the Charter and are the standard – which may be enforced before the courts if necessary – for any type of action under EU law (cf. BverfGE 152, 216 <239 f. para. 59>). In its Preamble, the Charter affirms – similar to Art. 6(3) of the Treaty on European Union (TEU) – the constitutional traditions common to the Member States and the inviolable and inalienable human rights protected by international agreements and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Like the Basic Law, the Charter places the individual at its centre and sets out in its Art. 52(3) that rights contained in the Charter which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms have the same meaning and scope as those laid down by the Convention. Furthermore, Art. 52(4) of the Charter provides that rights laid down in the Charter resulting from the constitutional traditions common to the Member States are to be interpreted in harmony with those traditions. It follows that both the Convention rights as they are specified by the European Court of Human Rights and the fundamental rights as they are reflected in common constitutional traditions and are shaped by the constitutional and supreme courts of the Member States must be taken into account when interpreting the rights of the Charter.

b) The European Union is a union based on the multi-level cooperation of sovereign states, constitutions, administrations and courts (Staaten-, Verfassungs-, Verwaltungs- und Rechtsprechungsverbund ) (BVerfGE 140, 317 <338 para. 44>; 154, 17 <90 f. para. 111). Within the framework of the multi-level cooperation of constitutional courts, the Federal Constitutional Court ensures the protection of fundamental rights in close cooperation with the Court of Justice of the European Union (cf. BVerfGE 152, 216 <243 f. para. 68>), the European Court of Human Rights and with the constitutional and supreme courts of the other Member States.

In particular, the Federal Constitutional Court may rely on the standard of the fundamental rights of the Charter when reviewing decisions by ordinary courts where relevant questions of interpretation have been clarified in the case-law of the Court of Justice of the European Union or the answer is clear from the outset based on established principles of interpretation – for instance, by drawing on the case-law of the European Court of Human Rights, which, in the individual case, may also define the contents of the Charter (cf. Art. 52(3) of the Charter), or where the answer is clear from the outset based on the case-law of constitutional and supreme courts of the Member States with regard to fundamental rights deriving from the constitutional traditions common to the Member States and corresponding to the fundamental rights of the Charter (cf. Art. 52(4) of the Charter). Where this is not the case, the Federal Constitutional Court must refer questions regarding the interpretation of the rights of the Charter to the Court of Justice of the European Union pursuant to Art. 267(3) of the Treaty on the Functioning of the European Union (TFEU; cf. BVerfGE 152, 216 <244 para. 70>).

c) The options of review reserved by the Federal Constitutional Court, the review on the basis of the ultra vires doctrine (ultra vires review) and the review on the basis of constitutional identity (identity review) (cf. BVerfGE 123, 267 <353 f.>; 126, 286 <302 ff.>; 134, 366 <382 ff. para. 22 ff.>; 140, 317 <336 f. para. 42 f.>; 142, 123 <194 ff. para. 136 ff.>; 146, 216 <252 ff. para. 52 ff.>; 151, 202 <287 ff. para. 120 ff.>; 154, 17 <88 ff. para. 105 ff.) will remain applicable in proceedings in which the Federal Constitutional Court applies the Charter given that they concern fully harmonised areas of EU law (cf. BVerfGE 152, 216 <236 para. 49>). Yet the guarantee of fundamental rights as determined by the Charter will generally not result in an encroachment on Art. 1(1) in conjunction with Art. 23(1) third sentence and Art. 79(3) GG.

3. Since the constitutional complaints were lodged before the Federal Constitutional Court amended its case-law through its Order of the First Senate of 6 November 2019 - 1 BvR 276/17 -, the complainants did not expressly assert a violation of rights of the Charter. However, this does not prevent the Federal Constitutional Court from extending its review to these rights in otherwise admissible constitutional complaint proceedings. Given that the constitutional complaints are admissible when based solely on Art. 1(1) GG – which previously was the sole standard of review in such cases –, the Federal Constitutional Court can review ex officio whether the challenged decisions violate the fundamental rights of the Charter, given that the legal issue in question is fully determined by EU law (cf. regarding the review of a fundamental rights violation that has not been asserted BVerfGE 6, 376 <385>; 17, 252 <258>; 54, 117 <124>; 58, 163 <167>; 71, 202 <204>; 147, 364 <378 para. 36>).

II.

The Court of Justice of the European Union set out in its case-law that the court dealing with a surrender request in a surrender procedure on the basis of a European arrest warrant must bring the procedure to an end where the person to be surrendered will be exposed to a specific risk of inhuman or degrading treatment within the meaning of Art. 4 of the Charter (see 1. below). The competent ordinary court must investigate ex officio, in a two-step assessment, whether this is the case (see 2. and 3. below).

1. In the context of European mutual legal assistance, the principles of mutual trust and mutual recognition apply, with mutual recognition being based on mutual trust between the Member States. In principle, when a Member State issues a surrender request, it is to be trusted that this Member State complies with EU law (cf. CJEU, Judgment of 25 July 2018, Minister for Justice and Equality <Deficiencies in the system of justice>, C-216/18 PPU, EU:C:2018:586, para. 36; Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 49; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 46), including compliance with the principles of the rule of law and the protection of human rights (cf. BVerfGE 109, 13 <35 f.>; 109, 38 <61>; 140, 317 <349 para. 68>). Thus, in principle, the court dealing with a surrender request must presume that the requesting Member State observes the rights laid down in the Charter (cf. CJEU, Judgment of 25 July 2018, Minister for Justice and Equality <Deficiencies in the system of justice>, C-216/18 PPU, EU:C:2018:586, para. 37; Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 50; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 47).

However, according to the case-law of the Court of Justice of the European Union, the principles of mutual recognition and mutual trust between the Member States can be restricted “in exceptional circumstances”. This applies, in any case, where surrender may result in the requested person being subjected to a risk of inhuman or degrading treatment within the meaning of Art. 4 of the Charter (cf. CJEU, Judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, paras. 84 and 104; Judgment of 25 July 2018, Minister for Justice and Equality <Deficiencies in the system of justice>, C-216/18 PPU, EU:C:2018:586, para. 44; Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 57; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 50).

2. a) The question of whether there are “exceptional circumstances” that prevent the surrender of the person concerned to the issuing Member State must be assessed in two steps. The first step relates to the general detention situation; in this first stage, the court dealing with the surrender request must rely on information that is objective, reliable, specific and properly updated in order to assess whether there is a real risk of inhuman or degrading treatment of prisoners in the Member State in question. Specific indications of systemic or generalised deficiencies regarding detention conditions in the issuing Member States may be obtained from judgments of international courts, judgments of courts of the issuing Member State or of other Member States and also from decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations (cf. CJEU, Judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, para. 89; Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 60; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 52).

b) The second step relates to the situation of the person concerned; in this second stage, the court must diligently assess whether, in the particular circumstances of the case, there are substantial grounds for believing that the person to be surrendered will be exposed to a real risk of inhuman or degrading treatment within the meaning of Art. 4 of the Charter following their surrender to the issuing Member State given the conditions of their detention (cf. CJEU, Judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, paras. 92 and 94; Judgment of 25 July 2018, Minister for Justice and Equality <Deficiencies in the system of justice>, C-216/18 PPU, EU:C:2018:586, para. 44; Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 61; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 55). This requires an up-to-date and detailed examination of the situation as it stood at the time of the decision (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 57 with reference to ECtHR, Romeo Castaño v. Belgium, Judgment of 9 July 2019, no. 8351/17, § 86). Given that the prohibition of inhuman or degrading treatment is absolute, the court’s review of detention conditions may not be limited to obvious inadequacies only, but must be based on an overall assessment of the relevant physical conditions of detention (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 61 f.).

aa) In its Judgment of 15 October 2019 (Dorobantu), the Court of Justice of the European Union expressly pointed out that the right set out in Art. 4 of the Charter essentially corresponds to the right guaranteed by Art. 3 of the Convention and, in accordance with Art. 52(3) first sentence of the Charter, its meaning and scope are to be the same as those laid down by the Convention (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 58; cf. also CJEU, Judgment of 15 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, para. 90; Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 90 f.). If it is to fall within the scope of Art. 3 of the Convention, ill-treatment must attain a minimum level of severity, which must be assessed by taking account of all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the individual (cf. CJEU, Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 91; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 59, each with reference to ECtHR <GC>, Muršić v. Croatia, Judgment of 20 October 2016, no. 7334/13, § 97 and § 122).

bb) According to the case-law of the Court of Justice of the European Union and the European Court of Human Rights, with regard to the space available to a prisoner in a multi-occupancy cell, it must be distinguished whether this space is below 3 m² (see (1) below), between 3 m² and 4 m² (see (2) below) or above 4 m² (see (3) below) when the Member State court conducts the required overall evaluation of detention conditions. When calculating the available surface area in such a cell, the area occupied by sanitary facilities should not be taken into account, the calculation should, however, include space occupied by furniture, albeit that the detainees must still have the possibility of moving around normally within the cell (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 77; ECtHR <GC>, Muršić v. Croatia, Judgment of 20 October 2016, no. 7334/13, § 75 and § 114).

(1) In view of the importance attached to the space factor in the overall assessment of detention conditions, a strong presumption of a violation of Art. 4 of the Charter or Art. 3 of the Convention arises, according to the case-law of the Court of Justice of the European Union and the European Court of Human Rights, when the personal space available to a detainee is below 3 m² in a multi-occupancy cell. This strong presumption will normally be capable of being rebutted only if, firstly, the reductions in the required minimum personal space of 3 m² are short, occasional and minor, secondly, such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities, and, thirdly, the general conditions of detention at the facility are appropriate and there are no other aggravating aspects of the conditions of the detention of the person concerned; these criteria must be met cumulatively (cf. CJEU, Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 92 f.; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 72 f.; ECtHR <GC>, Muršić v. Croatia, Judgment of 20 October 2016, no. 7334/13, §§ 124 f. and § 138).

(2) Where a prisoner in a multi-occupancy prison cell has personal space measuring in the range of 3 to 4 m², there may be a violation of Art. 4 of the Charter or Art. 3 of the Convention if the lack of space is coupled with other deficiencies in the detention conditions, including lack of access to outdoor exercise or natural light or air, poor ventilation, inadequacy of room temperature, the impossibility of using the toilet in private, and non-compliance with basic sanitary and hygienic requirements (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 75 with reference to ECtHR <GC>, Muršić v. Croatia, Judgment of 20 October 2016, no. 7334/13, § 139).

(3) In cases where a detainee disposes of more than 4 m² of personal space in a multi-occupancy prison cell, other aspects of the detention conditions remain relevant for the necessary overall assessment (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 76 with reference to ECtHR <GC>, Muršić v. Croatia, Judgment of 20 October 2016, no. 7334/13, § 140).

3. The two-step assessment imposes a duty to investigate (Aufklärungspflichten ) on the part of the court dealing with the surrender request. According to the case-law of the Court of Justice of the European Union, Art. 4 of the Charter entails a duty to verify, by obtaining supplementary information, in the specific case whether the fundamental right under Art. 4 of the Charter of the person to be surrendered is respected.

a) The court must rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people or certain places of detention (CJEU, Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 60; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 52). In order to conduct a detailed examination of whether, in the particular circumstances of the case, there are substantial grounds for believing that the person to be surrendered will be exposed to a real risk of inhuman or degrading treatment within the meaning of Art. 4 of the Charter following their surrender to the issuing Member State given the conditions of their detention, the court must, within the time limits set out in Art. 17 of the Framework Decision on the European arrest warrant, request the issuing Member State to provide as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the person concerned will be detained in this Member State (cf. CJEU, Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 63; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 57 with reference to ECtHR, Romeo Castaño v. Belgium, Judgment of 9 July 2019, no. 8351/17, § 86, as well as paras. 63 and 67). The issuing Member State is obliged to provide the requested information within the time limit set by the requested Member State (cf. CJEU, Judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, paras. 97 and 104; Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 64).

The supplementary information that must be requested is required for ensuring that the assessment of whether a person faces a risk of inhuman or degrading treatment has a sufficient factual basis (cf. ECtHR, Romeo Castaño v. Belgium, Judgment of 9 July 2019, no. 8351/17, §§ 83 ff., §§ 89 ff.). Therefore, the court dealing with the surrender request must postpone its decision on whether the surrender is permissible until it obtains the supplementary information that allows it to discount the existence of such a risk (cf. CJEU, Judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, para. 104). If the existence of that risk cannot be discounted within a reasonable (angemessen ) time, the court must decide whether the surrender procedure should be brought to an end (cf. CJEU, Judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, para. 104).

b) Art. 15(2) of the Framework Decision imposes an obligation on the court dealing with a surrender request to obtain the necessary supplementary information for a decision on the surrender request. As a provision for exceptional circumstances, it cannot be used to systematically request general information on detention conditions in prisons from the authorities of the issuing Member State. The court’s duty to investigate does not encompass the general detention conditions in all prisons. Having regard to the principle of mutual trust and the time limits set in the context of European mutual legal assistance, the duty to investigate is limited to assessing the detention conditions in those prisons in which, according to the available information, the person to be surrendered will likely be detained, including on a temporary or transitional basis (cf. CJEU, Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, paras. 84 to 87 and 117; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 64 to 66).

c) Where the issuing Member State gave an assurance that the person concerned will not suffer inhuman or degrading treatment, irrespective of the prison in which they are detained in the issuing Member State, the court dealing with the surrender request must rely on that assurance, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of Art. 4 of the Charter (cf. CJEU, Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 112; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 68; cf. also ECtHR, Othman (Abu Qatada) v. the United Kingdom, Judgment of 17 January 2012, no. 8139/09, §§ 187 ff.). An assurance given by the issuing Member State does not relieve the court dealing with the surrender request from the obligation to first make its own risk prognosis in order to appraise the reliability of the assurance (cf. ECtHR, Othman (Abu Qatada) v. the United Kingdom, Judgment of 17 January 2012, no. 8139/09, §§ 187 ff.). Only in exceptional circumstances, and on the basis of precise information, can the court find that, notwithstanding an assurance, there is a real risk of the person concerned being subjected to inhuman or degrading treatment, within the meaning of Art. 4 of the Charter, because of the conditions of that person’s detention in the issuing Member State (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 69).

III.

The limits set by Art. 1(1) in conjunction with Art. 23(1) third sentence and Art. 79(3) GG (see 1. below) are not exceeded given that the requirements arising from Art. 1(1) GG do not differ from those arising from Art. 4 of the Charter with regard to the minimum requirements for prison cells in the requesting state and with regard to the duty to investigate incumbent upon the courts dealing with surrender requests (see 2. below).

1. The precedence of application of EU law is limited by the Basic Law’s constitutional identity that, pursuant to Art. 23(1) third sentence in conjunction with Art. 79(3) GG, is beyond the reach of constitutional amendment and European integration (verfassungsänderungs- und integrationsfest ). The Federal Constitutional Court’s option to conduct an identity review serves to safeguard this constitutional identity (cf. BVerfGE 113, 273 <296>; 123, 267 <348>; 134, 366 <384 f. para. 27 f.>; 140, 317 <334 para. 36 and 336 f. para. 41 ff.>; 142, 123 <195 para. 137>; 151, 202 <287 para. 120>; 154, 17 <93 f. para. 115). Interests protected by the Basic Law’s constitutional identity enshrined in Art. 79(3) GG include the principles set out in Art. 1(1) GG, and thus the duty of all state authority to respect and protect human dignity (cf. BVerfGE 140, 317 <343 para. 53>). However, the option of identity review can only be considered if the requirements arising from the Charter, as reflected in the case-law of the Court of Justice of the European Union, do not satisfy indispensable standards of fundamental rights protection enshrined in Art. 1(1) GG.

2. Art. 1(1) GG does not contain requirements that differ from those of Art. 4 of the Charter with regard to the minimum requirements for prison cells in the requesting state and with regard to the duty to investigate incumbent upon the courts dealing with surrender requests.

a) The guarantee of human dignity is the supreme constitutive principle within the system of fundamental rights (cf. BVerfGE 6, 32 <36, 41>; 45, 187 <227>; established case-law). Human dignity entails a right to be valued and respected as a person in society (sozialer Wert- und Achtungsanspruch ); this right precludes turning a person into a mere object of state action or exposing them to treatment which generally calls into question their quality as a conscious subject (cf. BVerfGE 27, 1 <6>; 45, 187 <228>; 109, 133 <149 f.>). Human dignity in this sense not only means the dignity of the individual, but also the dignity of human beings as a species. Every person has human dignity, irrespective of characteristics, accomplishments or social status. Human dignity is afforded every person; it is in principle inalienable (cf. BVerfGE 45, 187 <229>) and even “undignified” behaviour does not result in the forfeiture of human dignity (cf. BVerfGE 87, 209 <228>). It cannot even be denied to persons guilty of serious misconduct (cf. BVerfGE 64, 261 <284>; 72, 105 <115>; 152, 68 <114 para. 120 >). A violation of the right to respect for one’s person derived from human dignity, however, is possible (cf. BVerfGE 87, 209 <228>; 109, 133 <150>; 115, 118 <152>; 131, 268 <287>).

Art. 1(1) GG does not merely serve to protect the individual against disparagement, stigmatisation, persecution, ostracism and similar acts by third parties or the state itself (BVerfGE 1, 97 <104>; 107, 275 <284>; 109, 279 <312>). The constitutional legislator based human dignity on the notion that it is in the nature of human beings to freely pursue self-determination and the development of one’s personality and that the individual has a right to be respected, in principle, as a member of society with equal rights and with inherent value (cf. BVerfGE 45, 187 <227 f.>). Therefore, public authority is barred from treating the individual in any way that generally calls into question their quality as a conscious subject or their status as a legal subject (cf. BVerfGE 30, 1 <26>; 87, 209 <228>; 96, 375 <399>; 153, 182 <260 f. para. 206>); this is the case where public authority fails to respect the intrinsic value accorded to all human beings as such (cf. BVerfGE 30, 1 <26>; 109, 279 <312 f.>; 152, 68 <115 f. para. 123). Whether an act of public authority amounts to such treatment must be determined in light of the specific situations that may give rise to conflicts (BVerfGE 30, 1 <25>; 109, 279 <311>; 115, 118 <153>).

b) aa) With regard to detention conditions, whether the way in which someone is imprisoned violates human dignity therefore hinges on an overall assessment of the actual circumstances determining the detention situation (cf. BVerfG, Order of the Third Chamber of the First Senate of 14 July 2015 - 1 BvR 1127/14 -, para. 18 as well as Orders of the Second Chamber of the First Senate of 17 February 2020 - 1 BvR 3182/15 and 1 BvR 1624/16 -, para. 18; Order of the Second Chamber of the Second Senate of 23 March 2016 - 2 BvR 566/15 -, para. 27; cf. also Constitutional Court of the Land Berlin, Order of 3 November 2009 - 184/07 -, juris, para. 26). In this respect, the following criteria have been considered relevant in the case-law of the Chambers of the Federal Constitutional Court: the floor space available to each detainee, the sanitary facilities available, the duration of imprisonment and the time period during which prisoners are locked in their cells every day, the location and size of the window, the furnishings and ventilation of the cell as well as room temperature and hygienic conditions (cf. BVerfG, Orders of the First Chamber of the First Senate of 22 February 2011 - 1 BvR 409/09 -, para. 30, and of 7 November 2011 - 1 BvR 1403/09 -, para. 38; Order of the Second Chamber of the Second Senate of 23 March 2016 - 2 BvR 566/15 -, para. 27). All of these decisions concerned the conditions in German prisons.

bb) An overall assessment of all the aspects determining the circumstances of detention makes it possible to define the minimum standards deriving from Art. 1(1) GG for detention conditions and, in particular, for the personal space available to each prisoner in multi-occupancy cells in accordance with the case-law of the Court of Justice of the European Union that draws on the case-law of the European Court of Human Rights (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 58 with reference to Art. 52(3) first sentence of the Charter). Such an interpretation is in line with the unwritten principle of the Basic Law’s openness to European and international law (Europa- und Völkerrechtsfreundlichkeit ), which is derived from the Constitution (cf. BVerfGE 74, 358 <370>; 111, 307 <317, 328 f.>; 112, 1 <25 f.>; 123, 267 <344 f., 347>; 128, 326 <368 f.>). At least where extradition proceedings are concerned, an interpretation that is open to European and international law requires that the indispensable minimum requirements following from the Constitution for detention conditions are determined in accordance with the standards set out by the European Court of Human Rights for all Member States of the Council of Europe and adopted by the Court of Justice of the European Union for the EU Member States. Such an interpretation is in line with the principle of mutual trust, which is generally applicable to extradition proceedings and is particularly significant in the context of the European arrest warrant; without this principle, international and European mutual legal assistance would not be functioning.

c) When dealing with a surrender, the competent ordinary courts have a responsibility vis-à-vis the person concerned to ensure that the indispensable minimum requirements following from constitutional law will be respected in the requesting state (vgl. BVerfGE 140, 317 <347 para. 62>). As a rule, the German public authority’s responsibility under fundamental rights ends where a foreign sovereign state determines the essential features of a course of events according to its own free will that is independent of the Federal Republic of Germany’s (cf. BVerfGE 66, 39 <56 ff., 63 f.>; 140, 317 <347 para. 62>). Nevertheless, German public authority may not be complicit in violations of human dignity by other states (cf. BVerfGE 59, 280 <282 f.>; 60, 348 <355 ff.>; 63, 332 <337 f.>; 75, 1 <19>; 108, 129 <136 f.>; 113, 154 <162 f.>; 140, 317 <347 para. 62 and 355 para. 83>).

aa) Therefore, the court dealing with a surrender request has a duty to investigate ex officio, which falls within the scope of Art. 1(1) GG; the person concerned is not under a burden of proof in this respect (cf. BVerfGE 8, 81 <84 f.>; 52, 391 <406 f.>; 63, 215 <225>; 64, 46 <59>; 140, 317 <347 f. para. 63 ff.>). The scope and extent of the court’s duty to investigate cannot be defined in an abstract and general manner, but depend on the circumstances of the individual case (cf. BVerfGE 140, 317 <348 para. 64>). If, after completing its investigation, the competent court becomes aware that the minimum standards mandated by the Basic Law will not be complied with by the requesting state, it must not declare the extradition to be permissible (cf. BVerfGE 140, 317 <352 para. 75>).

bb) The principle of mutual trust must also be observed with regard to the duty to investigate. Given that the principles of mutual trust and mutual recognition apply to surrender procedures on the basis of the Framework Decision on the European arrest warrant, German courts do not have to fully investigate and examine detention conditions in the requesting state in every case. As a rule, the competent courts are to trust that the issuing Member State adheres to the principles of the rule of law and human rights protection given that the entire European Union is committed to respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities (cf. Art. 2 TEU). All Member States have acceded to the European Convention on Human Rights. Insofar as they implement EU law, they are additionally bound by the guarantees enshrined in the Charter of Fundamental Rights (cf. Art. 51(1) of the Charter). Thus, trust in compliance with the principles of the rule of law and human rights protection, in principle, also encompasses the specific design of the detention conditions the person concerned will be subjected to in the requesting state.

The principle of mutual trust applies as long as the trust is not shaken due to pertinent facts (cf. BVerfGE 109, 13 <35 f.>; 109, 38 <61>; 140, 317 <349 para. 67 f. and 351 para. 73 f.>). Exceptions can only be justified in atypical cases (cf. BVerfGE 60, 348 <355 f.>; 63, 197 <206>; 109, 13 <33>; 109, 38 <59>; 140, 317 <349 para. 68>. This can be assumed if there are well-founded indications based on facts that the requirements indispensable for the protection of human dignity would not be complied with in the case of an extradition (cf. BVerfGE 108, 129 <138>; 140, 317 <351 para. 74>). Where factual and significant indications suggest that indispensable minimum requirements would not be met if the person concerned were to be surrendered, the court dealing with the surrender request thus has the duty to investigate the treatment the person concerned will face in the requesting state (cf. BVerfGE 140, 317 <348 para. 65 with further references>). This also includes the detention conditions the person concerned will likely be subjected to following their surrender.

d) Based on these principles, the requirements arising from Art. 1(1) GG in the context of extradition proceedings do not exceed the requirements arising from Art. 4 of the Charter with regard to the minimum requirements for detention conditions in the requesting state and with regard to the duty to investigate incumbent upon the courts dealing with the surrender request. The standards applied by the Court of Justice of the European Union when interpreting Art. 4 of the Charter are congruent with Art. 1(1) GG both with regard to the minimum requirements for detention conditions in the requesting state and with regard to the duty to investigate related thereto incumbent upon the court dealing with the transfer request. In the present case, it is thus not necessary to conduct an identity review in accordance with Art. 79(3) GG in conjunction with Art. 1(1) GG in order to limit the precedence of application of EU law.

e) There is no need to decide in these proceedings whether stricter minimum requirements apply to detention conditions in the German prison system, within the domestic context, in view of other constitutional principles, such as the requirement to seek the social reintegration of offenders.

IV.

According to these standards, the challenged decisions do not withstand constitutional review. Both the Berlin Higher Regional Court (see 1. below) and the Celle Higher Regional Court (see 2. below) failed to sufficiently recognise the significance and scope of the fundamental right under Art. 4 of the Charter and the duty to investigate arising therefrom. The courts did not make a sufficiently precise assessment of whether the complainants would be exposed to a specific risk of being subjected to degrading or inhuman detention conditions in Romania following their surrender.

1. In the second stage of the assessment, the Berlin Higher Regional Court was obliged to diligently assess whether, in the particular circumstances of the case, there were substantial grounds for believing that complainant no. 1 would be exposed to a real risk of inhuman or degrading treatment within the meaning of Art. 4 of the Charter following his surrender given the conditions of his detention in the specific detention centres indicated by the Romanian authorities. The court failed to have sufficient regard to the fact that this second step of the assessment must be based on an overall evaluation of the relevant physical detention conditions (see a) below) in those detention centres in which it is envisaged that the person to be surrendered will be detained (see b) below).

a) It is insufficient for the necessary overall evaluation of detention conditions to merely cite the minimum share of cell space of 3 m² per person communicated by the Romanian authorities in respect of quarantine and closed detention, given that the space available to a prisoner is a significant, but not the sole factor to take into consideration. Where the personal space in a multi-occupancy prison cell is 3 m² or between 3 m² and 4 m² respectively, degrading or inhuman detention conditions within the meaning of Art. 4 of the Charter may still arise if there are additional deficient detention conditions apart from the lack of space. The necessary overall evaluation of the court must therefore include the other detention conditions in both the Rahova detention centre for quarantine and the Tulcea detention centre for closed detention. Given that the Berlin Higher Regional Court did not have any information on detention conditions other than the space available to the person concerned during the quarantine period in the Rahova detention centre, its duty to investigate first required the court to request that the Romanian authorities provide this information. Without this supplementary information, there is no sufficient factual basis for conducting the necessary overall evaluation of the detention conditions that must be carried out thoroughly.

b) Furthermore, the Berlin Higher Regional Court was aware that complainant no. 1 would only have 2 m² of personal space in a multi-occupancy cell in semi-open detention in the Constanta Poarta Albă detention centre. Due to an overly narrow interpretation of the judgment of the Court of Justice of the European Union of 25 July 2018, the court erred in limiting its assessment to the first two detention regimes (quarantine and closed detention) (see aa) below). When conducting the necessary overall evaluation of detention conditions with regard to complainant no. 1 in semi-open detention in the indicated detention centre, the Berlin Higher Regional Court should have considered that long-term detention in a multi-occupancy cell with only 2 m² of personal space is incompatible with Art. 4 of the Charter (see bb) below).

aa) The Berlin Higher Regional Court is obliged to extend its investigation of the facts of the case in respect of complainant no. 1 to the detention conditions prevailing in semi-open detention in the Constanta Poarta Albă detention centre. This finding is not altered by the fact that a transfer of complainant no. 1 to semi-open detention is not entirely certain. According to the case-law of the Court of Justice of the European Union, the court dealing with the surrender request does not have a duty to assess the general detention conditions in all the detention facilities in the requesting Member State. However, it must include in its overall evaluation the detention conditions in the specific prisons in which, according to the available information, it is sufficiently likely that the person concerned will be detained, including on a temporary or transitional basis (cf. CJEU, Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, paras. 84 to 87 and 117; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, paras. 64 to 66). In this respect, the Berlin Higher Regional Court failed to recognise that its assessment may not be limited to the detention conditions prevailing in prisons in which the person concerned will be detained with certainty following their surrender. The court must extend its assessment to the detention conditions in prisons to which the person to be surrendered will be transferred with sufficient likelihood on the basis of the available information.

According to the information provided by the Romanian authorities, a transfer of complainant no. 1 to semi-open detention is sufficiently likely. The Romanian authorities themselves provided the information that, in the regular course of detention, an assessment of whether the detainee can be transferred from closed to semi-open detention is carried out after one fifth of the prison sentence has been served. In respect of complainant no. 1, who has to serve a five-year custodial sentence and who had already served nine months in extradition detention when the Berlin Higher Regional Court rendered its decision, such an assessment would have been due a few months after his surrender. The prison to which complainant no. 1 would be transferred for semi-open detention has already been indicated by the Romanian authorities. Just as any decision on the relaxation of the detention regime, the assessment of whether a detainee can be transferred from closed to semi-open detention also depends, among other criteria, on the conduct of the person concerned during their detention. Yet this does not alter the fact that it is sufficiently likely that complainant no. 1 will be transferred to semi-open detention in the indicated prison. It is not ascertainable from the available information that complainant no. 1 cannot fulfil the requirements for a transfer.

bb) According to the principles set out above, long-term detention in a multi-occupancy cell with only 2 m² of personal space is not compatible with Art. 4 of the Charter. Even if, taken by itself, the mere floor space of a prison cell does not constitute sufficient grounds for finding degrading or inhuman detention conditions, there is at least a strong presumption of a violation of Art. 4 of the Charter if the personal space is below 3 m². This strong presumption will normally be capable of being rebutted only if, firstly, the reductions in the required minimum personal space of 3 m² are short, occasional and minor, secondly, such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities, and, thirdly, the general conditions of detention at the facility are appropriate; these criteria must be met cumulatively (cf. CJEU, Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 92 f.; Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 72 f.; ECtHR <GC>, Muršić v. Croatia, Judgment of 20 October 2016, no. 7334/13, §§ 124 f. and § 138).

The Berlin Higher Regional Court did not determine such circumstances that may be capable of rebutting the presumption of a violation of Art. 4 of the Charter. The minimum of 2 m² of personal space that is usually guaranteed in the semi-open detention regime of the Romanian detention system is – regardless of the prison in which semi-open detention is to be served – not just a short, occasional and minor failure to provide the necessary minimum of 3 m² for each detainee..

In case of long-term detention in a prison cell with only 2 m² of personal space, a more generous allocation of out-of-cell time in itself is not capable of rebutting the presumption of a fundamental rights violation. This is because it is only one of three criteria that must be met cumulatively – as the Court of Justice of the European Union pointed out with regard to the interpretation of Art. 4 of the Charter (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 73). While the length of a detention period as well as the extent of freedom of movement outside the prison cell may be relevant factors in assessing the gravity of suffering or humiliation caused to a detainee by the inadequate conditions of their detention, these criteria by themselves do not mean that the treatment concerned falls outside the scope of Art. 4 of the Charter (cf. CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857, para. 74 f.). Furthermore, the time spent out of cell in semi-open detention, which has been communicated by the Romanian authorities, is not capable of rebutting the presumption of a violation of Art. 4 of the Charter. According to the information provided by the Romanian authorities, detainees in the prison in question have the possibility to move around outside their cells and spend time in a yard of unknown size and layout between 8 a.m. and 11:30 a.m. and between 1 p.m. and 6 p.m. Out-of-cell time is therefore limited to a total of 8.5 hours a day. The remaining 15.5 hours, the far greater part of the day, must be spent in the multi-occupancy cell with 2 m² of personal space.

2. a) In respect of complainant no. 2, the Celle Higher Regional Court likewise failed to fulfil its obligation arising from Art. 4 of the Charter, as the second step of the assessment, to verify, by obtaining supplementary information, in the specific case whether the complainant will be exposed to the risk of inhuman or degrading treatment following his surrender. The Higher Regional Court was aware that the Public Prosecutor General’s Office had requested supplementary information from the Romanian authorities, because of the questionable detention conditions, and asked them to provide a specific assurance in respect of the execution of the sentence in case of a conviction of complainant no. 2. The Higher Regional Court decided on the permissibility of the surrender even though the reply from the Romanian authorities to the second information request sent by the Public Prosecutor General’s Office was still pending and although the factual basis for a detailed examination of the detention conditions complainant no. 2 would be facing in case of a custodial sentence was insufficient. Based on an extremely narrow interpretation of the judgment of the Court of Justice of the European Union of 25 July 2018, the Celle Higher Regional Court held that it was not obliged to assess the detention conditions, other than those prevailing in remand detention, that complainant no. 2 would face in case of a custodial sentence.

b) In order to avoid exposing complainant no. 2 to the risk of being subjected to inhuman or degrading treatment within the meaning of Art. 4 of the Charter, the Higher Regional Court would have been obliged to extend its assessment to the detention conditions that he would have been sufficiently likely to face in prison. This finding is not altered by the fact that according to information provided by the Romanian authorities prior to the second information request sent by the Public Prosecutor General’s Office, it was not yet certain in which prison complainant no. 2 would be detained in case of a custodial sentence. To comply with its duty to investigate and to make its own risk prognosis, the Higher Regional Court should have waited for the information already requested by the Public Prosecutor General’s Office or for a corresponding assurance. According to the case-law of the Court of Justice of the European Union (cf. CJEU, Judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, paras. 97 and 104; Judgment of 25 July 2018, Generalstaatsanwaltschaft <Conditions of detention in Hungary>, C-220/18 PPU, EU:C:2018:589, para. 64), the Romanian authorities were obliged to reply to the second information request within reasonable time and to provide information on the specific prison in which complainant no. 2 would likely be detained in case of a custodial sentence and on the detention conditions prevailing there. Therefore, the Higher Regional Court was obliged to postpone its decision on the permissibility of the surrender until receiving a reply from the Romanian authorities. In order to comply with the time limits applicable to surrender procedures, the Higher Regional Court would have been required to set a specific time limit for providing the supplementary information requested from the Romanian authorities (cf. § 30(1) second sentence of the Act on International Mutual Assistance in Criminal Matters, Gesetz über die internationale Rechtshilfe in Strafsachen – IRG and Art. 15(2) in conjunction with Art. 17 of the Framework Decision on the European arrest warrant). If the necessary information or reliable assurances had not been provided within reasonable time, the court would have had to decide whether the surrender procedure were to be brought to an end (cf. CJEU, Judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198, para. 104).

V.

There is no need to request a preliminary ruling from the Court of Justice of the European Union pursuant to Art. 267 TFEU. The points of law relevant to this decision have been sufficiently clarified. In the Dorobantu case (CJEU, Judgment of 15 October 2019, Dorobantu, C-128/18, EU:C:2019:857), the Court of Justice of the European Union confirmed and specified its case-law concerning the interpretation of Art. 4 of the Charter in European surrender procedures with regard to the minimum requirements for detention conditions and the duty to investigate related thereto incumbent upon the court dealing with the surrender request.

VI.

Given that the constitutional complaints are already successful based on the violation of Art. 4 of the Charter, there is no need to decide in the present case whether the challenged orders also violate other EU fundamental rights.

D.

[…]

E.

[…]