The case of Arsene v. Italy (39817/23) provides a good opportunity to draw attention to the preventive control exercised by the ECtHR, under Rule 39 of its Rules of Court, over the execution of European arrest warrants (EAW) which are challenged by applicants under Article 3 of the Convention (prohibition of ill-treatment).

In this case, the ECtHR decided on 10 November 2023 not to indicate to the Italian Government the interim measure which the applicant was seeking under Rule 39 of the Rules of Court and which would have temporarily stopped his surrender to Romania on the basis of the EAW issued against him. The interim measures indicated under this provision are indeed legally binding (Mamatkulov and Askarov v. Turkey).

Arsene v. Italy is only the most recent in a series of cases in which applicants requested the ECtHR to stop the execution of a EAW by reason of a serious risk of violation of Article 3 of the Convention in the issuing Member State. Other such cases include Caragea v. Italy and Romania (11773/20), Coarda v. Sweden (18732/20), Ursu v. Italy (54281/20) and Cretu v. United Kingdom (9749/22).

In all the above cases the applicants had been convicted to custodial sentences by Romanian courts and were the subject of EAWs issued for the purpose of the service of these sentences in Romania. The applicants challenged the execution of these EAWs before the ECtHR, thereby referring to the pilot judgment in Rezmiveș and Others v. Romania, in which the ECtHR found that the persisting structural problems of overcrowding and poor conditions of detention in Romania amounted to a practice incompatible with Article 3 of the Convention and requested the Romanian authorities to urgently remedy that situation.

Yet, all requests in the above cases for the indication of interim measures were rejected by the ECtHR on their merits, i.e. after a thorough examination of the circumstances of each case by the duty judge. In line with established practice concerning Rule 39, no reasons were given by the ECtHR for these dismissals. However, a striking feature which all these cases have in common are formal and individualised assurances given by the Romanian authorities regarding the places of detention of the persons concerned and respect for their rights under Article 3, which the authorities of the executing States considered trustworthy, in the absence of any evidence showing that the Romanian authorities had ever breached assurances of this type in the past.

In Dorobantu, the CJEU ruled that in the presence of deficiencies which affected certain places of detention, the executing judicial authority is bound to determine, specifically and precisely, whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender of a person to the issuing Member State under a EAW, he/she will run a real risk of being subject in that Member State to inhuman or degrading treatment, because of the conditions for his detention envisaged in the issuing Member State (§§ 52, 55). However, the CJEU was somewhat ambivalent on whether the executing judicial authority should just ask the issuing authority for information on the conditions in which it is intended that the individual concerned will be detained in that Member State, or for proper assurances concerning respect for the individual’s fundamental rights, or for both (§§ 67-69).

Be that as it may, what is clear in the light of the ECtHR’s practice in exercising a preventive control under Rule 39 over intended surrenders under a EAW is that formal and reliable assurances by the authorities of the issuing Member State concerning respect for the fundamental rights of the persons concerned would appear to make a difference, not only in the executing Member States but also in Strasbourg (on the requirements to be fulfilled by such assurances, see Othman (Abu Qatada) v. the United Kingdom).