This compilation brings together the most important judgments and decisions on prison issues handed down by the European Court of Human Rights and the Court of Justice of the European Union.
By reporting on the main trends in European prison case law, it aims to support legal practitioners in the prison field in their research and litigation, as well as to identify blind spots in European case law and to build strategic litigation avenues.
CONTENTS > EUROPEAN COURT OF HUMAN RIGHTS / COURT OF JUSTICE OF THE EUROPEAN UNION
EUROPEAN COURT OF HUMAN RIGHTS
ALBERTANI v. ITALY ■ Application no. 15994/20
Detention in prison of a person formerly held in a forensic psychiatric hospital following reforms abolishing such hospitals, without establishing alternative arrangements for sentenced prisoners whose psychiatric condition is incompatible with imprisonment; reform resulting in a legal vacuum for such prisoners; transfer to prison constituting a new measure of deprivation of liberty contrary to the applicable legal framework: violation of Article 5 § 1.
Absence of a remedy enabling the lawfulness of the applicant’s detention in prison to be reviewed: violation of Article 5 § 4.
Poor detention conditions; inadequacy of the psychiatric treatment provided to the applicant in prison; prison medical services confirming that adequate psychiatric treatment could not be provided in prison: violation of Article 3.
Absence of a remedy for assessing the compatibility of the applicant’s psychiatric condition with detention: violation of Article 13 in conjunction with Article 3.
ANDREA CIOTTA v. ITALY ■ Application no. 368/21
Continued detention in an ordinary prison of an applicant suffering from serious mental disorders, despite his placement in a special facility (REMS) and subsequently a therapeutic community having been ordered by domestic courts; impossibility for the applicant to benefit from a comprehensive therapeutic strategy: violation of Article 3.
Continued detention in an ordinary prison of an applicant suffering from serious mental disorders, without appropriate care; lack of available places in REMS not considered a valid justification for continued detention in prison; authorities neither created additional places nor found an alternative solution: violation of Article 5 § 1 e).
Absence of any remedies to obtain compensation for unlawful detention: violation of Article 5 § 5.
Non-enforcement of domestic judicial decisions ordering the applicant’s placement in a REMS and subsequently in a therapeutic community: violation of Art 6 § 1 (criminal limb).
Non-execution within a reasonable delay of the Court’s interim measure ordering the transfer of the applicant to a facility capable of ensuring appropriate therapeutic treatment for his psychiatric disorder (33-40 days): violation of Article 34.
Article 46: Authorities to take general measures to address the structural issue of persons suffering from serious psychiatric disorders held in prison due to the lack of available places in REMS.
VARVA v. UKRAINE ■ Application no. 24427/15
Article 35: Government’s objection that the application was abusive, arguing that, given the circumstances, “it would have been impossible for the applicant” to lodge the application himself, rejected; Court held that the applicant’s silence as to how he arranged for the exchange of information and documents with his relatives with a view to maintaining correspondence with it “neither amounts to any abusive procedural manipulation […] nor discloses an attempt to conceal from the Court any information of relevance to the very core of the case”.
Prisoner forcibly transferred to the “Donetsk People’s Republic” in the context of a prisoner exchange; forcible nature of the transfer not reported by the applicant to the OSCE monitors during the transfer or to the domestic authorities after his return to Ukraine four years later; applicant’s wife did not report the forcible transfer to the domestic authorities until more than two years later: complaint under Article 3 inadmissible (non-exhaustion of domestic remedies).
OTTLAKÁN v. HUNGARY ■ Application no. 17201/23
Whole life prisoner unable to obtain payment of compensation awarded for cramped detention conditions because legislation required the amount to be placed in a prison holding account until release; prisoner in practice deprived of compensation because his whole life sentence is irreducible; compensatory remedy failing to comply with the principle of “promptness”: violation of Article 13 taken in conjunction with Article 3.
Victim status under Article 3 retained owing to the ineffectiveness of the remedy in this case; the Court considered that the applicant’s free-standing Article 3 complaint merely repeated the substance of his complaint under Article 13 taken in conjunction with Article 3: no need to examine the complaint under Article 3.
O.A.G. v. UKRAINE ■ Application no. 21480/16
Pregnant prisoner presenting a risk of miscarriage and whose foetus presented serious medical condition; applicant regularly examined by specialists, including in hospital settings: inadmissible (manifestly ill-founded).
Shackling of pregnant prisoner during medical examinations; no evidence provided and vagueness of the applicant’s allegations; CPT report relied on by the applicant predated the events by 15 years; applicant attempted to bring the issue before non-governmental organisations and UN bodies instead of the public authorities: inadmissible (manifestly ill-founded).
Prisoner separated from her newborn during intensive care and placement in a paediatric hospital; no evidence of pressure exerted by the prison administration on the hospital: inadmissible (manifestly ill-founded).
Prisoner’s letters addressed to non-governmental organisations and UN bodies concerning her shackling during medical examinations withheld by the prison administration: part of the complaint not examined.
YERYOMENKO v. UKRAINE ■ Application no. 8394/20
Prisoner systematically tortured by prison staff for more than four years; frequent ill-treatment and torture in the prison during the applicant’s detention period documented by CPT reports and human rights activists; authorities discontinued investigation into applicant’s complaint on six occasions, relying mainly on prison staff denials, disregarding instructions issued by higher-level prosecutorial authorities and ignoring forensic evidence: violation of Article 3 (procedural and substantive).
VAINIK v. ESTONIA [GC] ■ Applications nos. 17982/21 and 2 others
Introduction of total ban on smoking in Estonian prisons; application not pursued on behalf of an applicant who died during the Grand Chamber proceedings and absence of intention on the part of the other two applicants to pursue their applications: struck out of the list.
SUMMARY JUDGMENTS
Ukraine | Life-sentenced prisoners deprived of clear and realistic prospects of early release (Shynkovska and Others v. Ukraine, nos. 12002/23 and 3 others, 11 June 2026): violation of Article 3 from the date of final sentencing until 3 March 2023, when a new parole mechanism entered into force; complaint inadmissible for the period after March 2023.
Ukraine | Inadequate medical care (delayed specialist consultation, delayed treatment) for a prisoner with deep tooth decay (Byalskyy v. Ukraine, no. 5379/25, 11 June 2026): violation of Article 3.
Croatia | Inadequate conditions of detention in Zagreb Prison (Šarac v. Croatia, no. 38309/21, 11 June 2026): violation of Article 3.
COURT OF JUSTICE OF THE EUROPEAN UNION
RUGU AND AUCROIX [GC] ■ Joined Cases C-722/23 and C-91/24 (Request for a preliminary ruling: Belgium, Romania, Greece)
When refusing to execute a European Arrest Warrant due to potential infringement of the requested person’s fundamental rights (Article 1(3) of Framework Decision 2002/584), the executing Member State has the obligation to apply the principle of mutual recognition to judgments in criminal matters (Article 4(5) of Framework Decision 2008/909/JHA) and therefore request the forwarding by the issuing Member State of the judgment imposing the sentence, with the goal of enforcing the sentence in its territory.
EUROPEAN COURT OF HUMAN RIGHTS
ALBERTANI v. ITALY ■ Application no. 15994/20 ■ First Section ■ 4 June 2026
Article 5 § 1 ■ Detention in prison of a person formerly held in a forensic psychiatric hospital following reforms abolishing such hospitals ■ Legislative gap resulting from the abolition of forensic psychiatric hospitals without a consistent legislative reform establishing alternative arrangements for sentenced prisoners whose psychiatric condition is incompatible with imprisonment ■ Transfer to prison constituting a new measure of deprivation of liberty ■ Unlawful detention.
Article 3 (substantive) ■ Inadequacy of the psychotherapeutic treatment provided to the applicant in prison ■ Prison medical authorities themselves acknowledging that adequate psychotherapeutic treatment could not be provided in prison.
Article 5 § 4 ■ Article 13 (+ Article 3) ■ Absence of a remedy enabling the lawfulness of the applicant’s detention in prison to be reviewed ■ Absence of a remedy regarding the compatibility of the applicant’s psychiatric disorders with detention.
Facts ■ The applicant was arrested in 2009 for several offences, including the murder of her sister and the attempted murder of her mother. On the basis of the psychiatric assessments carried out during the ensuing criminal proceedings, the competent domestic court found that the applicant was “partially incapable of understanding and controlling her actions” (§ 7) and that she represented a danger to society. The applicant was sentenced to 20 years’ imprisonment.
The judge also ordered her placement in preventive detention in a forensic psychiatric hospital (ospedale psichiatrico giudiziario, OPG) for a renewable period of three years. In order for the applicant to receive appropriate therapy the judge ordered that the preventive detention begin before the execution of the sentence: the applicant was admitted to the OPG in May 2011. In April 2014, the sentence enforcement judge found that it was no longer necessary to order the execution of the preventive detention before the execution of the sentence, in view of the effectiveness of the treatment received by the applicant, which had resulted in a reduction in the risk she posed to society. Nevertheless, the judge ordered her continued placement in the OPG, considering that her psychiatric state remained incompatible with detention in prison.
However, the applicant was transferred to San Vittore (Milan) prison in May 2015 following a reform abolishing OPGs and establishing new structures (residenze per l’esecuzione delle misure di sicurezza, REMS). Those facilities only partially took over the functions previously performed by OPGs, as they are exclusively intended for the execution of preventive detention. Consequently, following the closure of OPGs, the mechanism enabling alternative measures for individuals sentenced to imprisonment and whose psychiatric state is incompatible with detention therefore became inapplicable.
The applicant’s request to have her detention replaced by an alternative measure was rejected by the competent domestic courts between 2015 and 2017, on the grounds that, following the abolition of OPGs, the remaining applicable provisions allowed the application of alternative measures only in case of physical infirmity, and not psychiatric disorder.
The applicant alleged that her detention in prison breached Articles 3, 5, and 13.
Law ■ Preliminary objections
The Government objected that the applicant had not exhausted domestic remedies. The Court accepted the Government’s objection in respect of Article 3 but rejected it in respect of Article 5.
At the heart of the Court’s reasoning is a judgment of the Constitutional Court from February 2019 (published on 24 April 2019), in which, after finding that, following the closure of OPGs, the mechanism enabling prisoners with serious psychiatric disorders incompatible with detention to benefit from an alternative measure had become inapplicable, it enabled the broad application of the remaining legal provisions initially covering the placement under home detention (including in healthcare facilities) for prisoners with a physical infirmity.
The Court considered that following this judgment, which opened up a preventive remedy for prisoners arguing that their psychiatric state of health was incompatible with detention, the applicant should have reiterated her request (made between 2015 and 2017) to be placed under home detention on the basis of those legal provisions. Since she had not done so, the Court found that the applicant had failed to exhaust domestic remedies in respect of the detention period following the publication of the Constitutional Court’s judgment. The Court did not examine the question whether there was at the time a compensatory remedy (§ 64).
However, the Court noted that the applicant’s complaint under Article 5 concerned the lawfulness of her detention in prison. Considering that the remedy created by the 2019 Constitutional Court’s judgment could not have enabled the applicant to have the lawfulness of her detention reviewed, it rejected the Government’s objection.
Law ■ Article 3
The Court first noted that in view of her psychiatric disorders, the applicant was particularly vulnerable and therefore especially exposed to the adverse effects of the overall poor detention conditions at San Vittore Prison. The Court based its appreciation of the detention conditions at this prison on a report by the NGO Antigone.
Second, the Court observed that her placement in an OPG had been ordered because her psychiatric condition was incompatible with imprisonment. It further noted that shortly before her transfer to prison (following the closure of OPGs), the OPG’s psychiatrist stressed that this transfer would put an end to her therapeutic treatment. This was confirmed by several medical reports drawn up between 2015 and 2018, i.e. following the applicant’s transfer to prison, indicating that she could not receive adequate treatment in prison.
Conclusion ■ Violation of Article 3.
Law ■ Article 5 § 1
(1) Admissibility
The Court examined in its own motion the question of whether the applicant’s transfer from an OPG to prison constituted a new measure of deprivation of liberty or a mere change in the conditions of her detention.
It noted in this respect that the applicant’s transfer consisted of a permanent change in the type of institution in which she was detained – from a psychiatric hospital to a prison. Furthermore, although placement in an OPG is considered to be a mode of execution of a sentence, it results from a judicial decision, not an administrative decision by the prison administration. Lastly, the Court observed significant differences between the detention regimes in an OPG and in prison, with significant impact on the psychiatric health services available.
The Court therefore concluded that the transfer from an OPG to a prison constituted a new measure of deprivation of liberty whose lawfulness had to be examined under Article 5.
(2) Merits
The Court found that the applicant’s detention in prison had been unlawful. Indeed, the applicant’s detention in an OPG resulted from a judicial decision dated 2014, which had never been revoked. The applicant’s detention in prison was therefore contrary to the applicable legal framework at the time. The Court noted that this situation resulted from the fact that the legal provision constituting the basis of the applicant’s placement in an OPG was rendered inapplicable following the closure of OPGs, which, as acknowledged by the Constitutional Court, created a legal vacuum.
The Court noted that a specific agreement provided for the placement of prisoners with psychiatric disorders in specialised psychiatric units within prisons (articolazioni per la tutela della salute mentale, ATSM) but noted that this agreement was a coordination document, not a legal reform “aimed at ensuring a clear and foreseeable legal framework” (§ 118). The Court observed that, to date, no comprehensive legal reform has been introduced to address this issue. The Court based its observations on several reports, including from the NGO Antigone, the National Bioethics Committee and the CPT.
Conclusion ■ Violation of Article 5 § 1.
Law ■ Article 5 § 4 and Article 13 in conjunction with Article 3
In view of the above findings (“Preliminary objections”), in which the Court established the lack of a remedy for the applicant to have the legality of her detention in prison reviewed, and the lack of a remedy, prior to April 2019, for assessing whether her detention was compatible with her psychiatric condition, the Court found that there had been a violation of these provisions.
Conclusion ■ Violation of Article 5 § 4 and Article 13 in conjunction with Article 3.
Article 41 ■ EUR 15,000 for non-pecuniary damage; EUR 10,000 for costs and expenses.
ANDREA CIOTTA v. ITALY ■ Application no. 368/21 ■ First Section ■ 4 June 2026
Art 3 (substantive) ■ Continued ordinary detention of an applicant suffering from serious mental disorders, despite his placement in a REMS and subsequently a therapeutic community having been ordered by the domestic courts ■ Impossibility for the applicant to benefit from a comprehensive therapeutic strategy.
Art 5 § 1 e) ■ Person of unsound mind detained in prison ■ Lack of available places in REMS not considered a valid justification for continued detention in prison.
Art 5 § 5 ■ Absence of any means to obtain compensation for unlawful detention to a sufficient degree of certainty.
Art 6 § 1 (criminal) ■ Access to a court ■ Non-enforcement of domestic court decisions ordering the applicant’s placement in a REMS and subsequently in a therapeutic community.
Art 34 ■ Non-execution of interim measure within reasonable delay (33-40 days).Art 46 ■ Authorities to take general measures to address the structural issue of persons of unsound mind held in prison due to lack of available places in REMS.
Facts ■ The applicant was placed in pre-trial detention in April 2020. A psychiatric assessment carried out upon his admission to prison diagnosed a delusional disorder.
On 10 July 2020, upon request of the prosecution and on the basis of an expert statement, the Rome Tribunal replaced the applicant’s pre-trial detention with a security measure ordering his provisional placement in a REMS (residenza per l’esecuzione delle misure di sicurezza). On 30 July 2020, the Rome Tribunal acquitted the applicant due to lack of criminal responsibility and ordered his placement in a REMS. Following both decisions, the prison administration informed the tribunal of lack of available places in REMS. The tribunal therefore on two occasions (on 10 and 31 July) stated that, in this context, the applicant should stay in prison.
On 10 November 2020, in the context of proceedings concerning the applicant’s request to be placed under house arrest or in a different facility pending his admission to a REMS, an expert report stated that the measure that would be the most suitable for the applicant’s level of dangerousness while enabling him to follow his psychiatric therapy would be supervised release (libertà vigilata) and placement in a therapeutic community.
On 21 January 2021, the Court ordered, as an interim measure, that the applicant be transferred to a facility adapted to the treatment of his psychiatric disorder.
On 21 February 2021, the sentence enforcement judge ordered the applicant’s transfer to a therapeutic community. Due to a lack of space in the community identified, the applicant was first placed in a public psychiatric unit (SPDC) under police supervision between 23 and 25 February 2021. He was eventually admitted to the therapeutic community on 2 March 2021.
The National, Regional and Municipal Guarantors for the Rights of Persons Deprived of Liberty and several NGOs (Antigone, L’Altro Diritto, La Società della ragione, Hands off Cain) were granted leave to intervene as third parties.
Law ■ Admissibility
The Court rejected the Government’s objection that the applicant had not exhausted domestic remedies, since he did not complain before the sentence enforcement judge about his continued detention despite a judgment ordering his transfer to a REMS, and because he did not challenge before the Cassation Court two decisions of the Rome Tribunal ordering his continued detention until a place in a REMS was found.
The Court recalled that it had previously established that when a judicial decision orders the placement of an applicant in a REMS, the applicant is not required to initiate a separate procedure with a view to enforcing that decision (§ 88, quoting Sy v. Italy, no. 11791/20, § 6424 January 2022).
Law ■ Article 3
The Court based its reasoning on the domestic courts’ assessment that the applicant’s serious mental health issues required specific care, which could only be implemented in a REMS or in a therapeutic community (§ 108). Despite these judicial decisions, it was not disputed that he had remained in prison for more than seven months until his placement in a psychiatric unit and then in a therapeutic community.
As regards the adequacy of care offered to the applicant, the Court noted that while in prison, he received only pharmacological treatment and psychological monitoring. He therefore “did not benefit from a comprehensive therapeutic strategy aimed at treating his condition or preventing its deterioration”, which amounted to “therapeutic abandonment” (§ 107, Strazimiri v. Albania, no. 34602/16, § 108-112, 21 January 2020). Conversely, once admitted to the therapeutic community, the applicant “benefited from an individualised therapeutic and rehabilitation plan providing, in addition to pharmacological treatment and psychotherapy, for psychoeducational and rehabilitation interventions, as well as measures aimed at social reintegration and networking with a view to his reintegration into society” (ibid.).
Conclusion ■ Violation of Article 3 (substantive).
Law ■ Article 5 § 1
The Court distinguished between three periods of detention.
First, the Court observed that the applicant’s detention between 26 April 2020 and 9 July 2020, which corresponds to the placement of the applicant in prison in lieu of house arrest, was based on a reasonable suspicion of an offence and therefore complied with the applicable national law and did not constitute a violation of Article 5 § 1 c).
Second, the Court found that the applicant’s detention in prison between 10 July 2020 (the date on which the applicant’s placement to a REMS was ordered) and 21 February 2021 (the day before the judge ordered the applicant’s placement in a therapeutic community) violated Article 5 § 1 e). The Court rejected the Government’s argument that the decisions of the Rome Tribunal from 10 and 31 July 2020 providing for the applicant’s continued detention due to a lack of available places in a REMS could constitute a legal basis capable of superseding the unequivocal judicial decisions issued by the same Tribunal on 10 and 30 July 2020 ordering the applicant’s placement in a REMS.
Furthermore, the Court held that the applicant’s detention in prison had not been “lawful”. It noted that the three-month delay between the medical expert opinion stating that the applicant should be placed on supervised release (November 2020) and the judicial decision ordering this measure (February 2021) “is difficult to reconcile with the requirements of procedural promptness and diligence” and reiterated that a person’s “continued deprivation of liberty cannot be justified on purely administrative grounds” (§ 135).
In any event, the Court recalled that it had established that while in prison, the applicant had not benefited from appropriate individualised therapeutic care, in breach of the purpose of detention foreseen in Article 5 § 1 e). The Court stressed that “faced with the lack of available places in REMS, the national authorities neither created additional places through new facilities nor identified an alternative solution” (§ 138).
Third, the Court considered that the applicant’s deprivation of liberty (in prison and in a psychiatric unit under police supervision) between 22 February 2021 (the date on which the judge ordered his placement under supervised release in a therapeutic community) and 25 February 2021 (when he was released from the psychiatric unit) lacked a legal basis.
Conclusion ■ Violation of Article 5 § 1 in respect of the applicant’s detention between 10 July 2020 and 21 February 2021, and between 22 and 25 February 2021.
Law ■ Article 5 § 5
The Court declared that it had already found a violation of Article 5 § 5, due to the lack of an effective remedy enabling individuals to obtain compensation for the damage caused by their unlawful detention under Article 5 § 1 (see § 149, referring to Sy, § 148) and saw no reason to depart from this conclusion.
Conclusion ■ Violation of Article 5 § 5.
Law ■ Article 6 § 1
The Court observed that the judicial decisions handed down in July 2020 ordering the placement of the applicant in a REMS remained unexecuted and that, as a consequence, he had been deprived of liberty until his placement in a therapeutic community on 2 March 2021.
Recalling that the execution of a judgment forms an integral part of the “trial” for the purposes of Article 6 (§ 154, quoting Metaxas v. Greece, no. 8415/02, § 25, 27 May 2004, and Assanidze v. Georgia [GC], no. 71503/01, § 181-182, CEDH 2004-II), it concluded that there had been a violation of Article 6 § 1.
Conclusion ■ Violation of Article 6 § 1.
Law ■ Article 34
The Court found that the authorities took 33 and 40 days respectively to transfer the applicant to a psychiatric unit and subsequently to a therapeutic community following the Court’s interim measure of 21 January 2021 – a delay it considered to be excessive.
It rejected the Government’s reliance on the lack of available places in REMS and the Covid-19 pandemic as valid justifications, noting that the Government had not explained how the pandemic had specifically hindered the applicant’s transfer and that the psychiatric unit in which he was held pending his transfer did not provide the comprehensive therapeutic strategy required by the interim measure.
Conclusion ■ Violation of Article 34.
Law ■ Article 46
The Court considered it indisputable that the issue of the continued detention in prison of persons awaiting transfer to a REMS was of a structural nature, as acknowledged by the Italian Constitutional Court itself. At the time the judgment was adopted, it had already examined 10 similar applications and several others remained pending. It identified four areas in which the authorities should take action.
First, it encouraged the authorities to place in REMS only persons recognised as presenting a danger to society and suffering from a genuine mental disorder, as established by a qualified medical expert before the competent authority, and to find alternatives for individuals not fulfilling those two criteria. It also stressed that the necessity of deprivation of liberty must be reassessed regularly.
Second, the Court encouraged the authorities to strengthen local mental health services to develop alternatives to placement in REMS for individuals requiring the implementation of a comprehensive therapeutic strategy in the context of supervised release in a residential setting or at home.
Third, the Court found it necessary to reinforce cooperation between the competent institutions (the judiciary, prison administration and health authorities) to facilitate the proactive identification of alternatives (in the present case, the applicant had himself identified the therapeutic community to which he was eventually transferred).
Fourthly, the Court encouraged the adoption of measures to ensure a sufficient number of REMS places proportionate to existing needs, in order “to provide an appropriate medical environment adapted to the health condition of the persons concerned, together with genuine therapeutic measures aimed at preparing them for possible release” (§ 210).
Article 41 ■ EUR 10,000 in respect of non-pecuniary damage; EUR 10,000 in respect of costs and expenses.
VARVA v. UKRAINE ■ Application no. 24427/15 ■ Fifth Section Committee ■ 11 June 2026
This summary focuses on the parts of the application that concern the applicant’s participation in a prisoner exchange.
Art 35 ■ Court rejected Government’s request to declare the application inadmissible as abusive ■ Government raised inconsistencies between the applicant’s ability to lodge a complaint with the Court and the lack of clarity about his whereabouts after the prisoner exchange ■ Court considered that the applicant’s silence on this matter does not disclose an attempt to conceal any relevant information.
Art 3 ■ Forcible transfer from Ukraine to the self-proclaimed “Donetsk People’s Republic” ■ Applicant did not report the forced nature of the transfer to OSCE monitor ■ Applicant did not initiate complaint with domestic authorities after his return to Ukraine four years later ■ Applicant believe to have lived in Russia based on elements contained in the just satisfaction claim ■ Applicant’s wife only raised the issue with the Ombudsperson more than two years later ■ Inadmissible.
Facts ■ The applicant was arrested in November 2014 on suspicion of involvement in explosions targeting military facilities and other buildings in the Kharkiv region, in connection with “Russian citizens and pro-Russian activists” (§ 13). He was detained at the Kharkiv pre-trial detention centre (SIZO) from 21 November 2014.
On 26 December 2014, in the context of a prisoner exchange between the Ukrainian Government and the self-proclaimed entities the “Donetsk People’s Republic” (“DPR”) and the “Lugansk People’s Republic” (“LPR”), the applicant was handed over to the “DPR”. He claimed that he had not agreed to participate in the prisoner exchange and complained under Article 3 that he had been subjected to a forced transfer.
The applicant returned to Ukraine in November 2018, having crossed the Ukrainian-Russian border into Ukraine in the Kharkiv region.
Law ■ Preliminary objection
The Court rejected the Government’s request to declare the applicant’s application inadmissible as abusive. The applicant’s application (bearing his signature) was sent to the Court in May 2015 from Poland, and the Court sent its correspondence to his declared registered domicile in Kharkiv, where his wife continued to live. The Government argued that this was inconsistent with the information contained in the application, according to which, between the prisoner exchange (December 2014) and his return to Ukraine (November 2018), he had no contact with his family between his transfer to the “DPR” (December 2014) and his return to Ukraine (November 2018). The Government argued that “it would have been impossible for the applicant to fill and sign the application form given the circumstances” (§ 53).
The Court saw no reason to doubt the authenticity of the applicant’s signature and noted that the Government had failed to produce any evidence to the contrary, such as a forensic report. The Court also held that “the applicant’s silence as to how he managed to keep in touch with his family and, more specifically, how he arranged for the exchange of information and documents with his relatives in Kharkiv and Poland with a view to introducing his application and maintaining his subsequent correspondence with [it…] neither amounts to any abusive procedural manipulation nor discloses an attempt to conceal from the Court any information of relevance to the very core of the case” (§ 57).
Law ■ Article 3 (alleged forcible transfer during prisoner exchange)
The Court rejected the applicant’s complaint that he had been forcibly transferred to the “DPR” as inadmissible for non-exhaustion of domestic remedies.
It noted that, while the applicant’s wife was present at the Kharkiv SIZO on the day of the transfer (26 December 2014) and witnessed the applicant’s departure from the facility, she did not alert the public authorities to the alleged forced transfer before February 2017, when she sent a letter to the Ombudsperson. The Court added that this delay in raising this issue with the public authorities was even more inexplicable since it had established that the applicant had kept regular contact with her after the exchange (as its correspondence was sent to the applicant’s address in Kharkiv, where his wife continued to live).
As regards the applicant himself, the Court noted that although he had described the exchange as taking place in the presence of OSCE observers, he did not report the forced nature of the transfer “to those easily identifiable observers if not to the law-enforcement officials in charge” (§ 80). The Court also rejected the applicant’s claim that he had been unable to lodge a complaint “owing to his ‘[constant detention] by the DPR terrorists’” (§ 83). First, it noted that the applicant was released by 5 January 2015 at the latest. Second, based on the mention of “living expenses in the Russian Federation” (§ 89) in the applicant’s just satisfaction claim, the Court deducted that he had been living in Russia rather than in the DPR. Third, noting that the applicant had lodged an application with it in 2015, the Court found it “unclear what prevented him from doing the same for initiating, through his relatives or lawyers, judicial proceedings in Ukraine in respect of his allegedly forceful participation in the prisoner exchange” (§ 83). Lastly, the Court noted that the applicant did not try to lodge a complaint before the domestic authorities after his return to Ukraine in 2018.
Conclusion ■ Inadmissible (non-exhaustion of domestic remedies).
OTTLAKÁN v. HUNGARY ■ Application no. 17201/23 ■ Second Section ■ 16 June 2026
Art 13 + Art 3 ■ Compensatory remedy (“Domján remedy”) for inadequate detention conditions ■ Compensation placed in a prison holding account until release ■ Whole life prisoner with no realistic prospect of release unable in practice to obtain compensation ■ Promptness of compensatory remedy.
Art 3 ■ Victim status retained ■ Complaint not examined separately.
Facts ■ The applicant was sentenced to life imprisonment without the possibility of parole and is detained in Szeged Prison. On 3 August 2020 he lodged a compensation claim under the compensatory remedy (the “Domján remedy” – see Domján v. Hungary (dec.), no. 5433/17, 14 November 2017) in relation to his conditions of detention between 23 March 2019 and 24 July 2020.
On 13 October 2020 the Szeged High Court granted his request for compensation, as his personal living space had fallen below the statutory minimum of four sq. m. for 488 days, and awarded him HUF 585,600 (approximately EUR 1,500). However, he never received the sum awarded.
First, the payment of the compensation awarded under the Domján remedy was suspended until 31 December 2020 under temporary legislation aimed at curbing what the authorities described as the “prison business”, namely “the ‘unjust practice’ of certain groups abusing the Domján remedy and thereby acquiring large amounts of money in compensation” (§ 8, see also § 14 for a quote of the authorities’ justification for the suspension of compensation).
Second, from 1 January 2021, subsequent legislative amendments passed in 2020 imposed the placement of compensation awarded into prisoners’ holding account until their release.
The applicant’s constitutional complaint was dismissed for failure to exhaust available remedies as he had not requested the prison governor to authorise, on an exceptional basis, payment of the compensation awarded.
Law ■ Preliminary remarks
The Court noted that it had already found the Domján remedy to be available and effective to obtain redress for inadequate detention conditions (Domján, cited above, § 30). The Court therefore confined its examination to the impact of the subsequent 2020 amendment on the applicant’s individual situation as a whole life prisoner.
Law ■ Article 13 taken in conjunction with Article 3
The Court observed that since the applicant’s whole life sentence is irreducible (see § 11 regarding the Court’s assessment of the applicant’s prospects of release in a separate case), he has no realistic prospect of release and therefore no realistic prospect of ever receiving the compensation placed in his holding account. It further noted this undermined the Government’s argument that retaining the compensation until release served the purpose of facilitating prisoners’ reintegration into society.
The Court rejected the Government’s argument that the applicant could have requested the prison government to authorise payment of the compensation on exceptional grounds. It found that none of the statutory exceptions applied to the applicant, and that any refusal by the prison governor was not amenable to judicial review.
More broadly, the Court reiterated that the State’s discretion in the manner in which they apply their obligations under Article 13 is not unlimited, and that a compensatory remedy must produce its effects within a reasonable time, generally not exceeding six months from when the date on which the compensation award becomes enforceable (§ 45, referring to Scordino v. Italy (no. 1) [GC], no. 36813/97, § 198, 29 March 2006). Consequently, the Court held that making payment conditional on a release that was itself “illusory” “flies in the face of the principle of promptness” required of an effective remedy (§ 46).
Conclusion ■ Violation of Article 13 taken in conjunction with Article 3.
Law ■ Article 3
Having found the Domján remedy, as modified by the amendments introduced in 2020, ineffective in the applicant’s case, the Court held that he retained victim status under Article 3 (§ 52, citing, a contrario, Yengo v. France, no. 50494/12, 21 May 2015, §§ 55-56).
However, since the free-standing Article 3 complaint merely repeated the substance of the complaint under Article 13 in conjunction with Article 3, the Court held it unnecessary to examine its admissibility or merits separately (§ 53, citing Hamidović v. Bosnia and Herzegovina, § 47, and Tsaava and Others v. Georgia [GC], nos. 13186/20, §§ 221-225, 11 December 2025).
Conclusion ■ No need to examine the admissibility and merits of Article 3 taken alone.
Article 41 ■ EUR 1,500 in respect of pecuniary damage; the finding of a violation constituted sufficient just satisfaction for non-pecuniary damage; EUR 5,000 in respect of costs and expenses.
O.A.G. v. UKRAINE ■ Application no. 21480/16 ■ Fifth Section Committee ■ 18 June 2026
This legal summary focuses on the aspects of the complaints concerning the applicant’s health in the context of her pregnancy and the birth of her child.
Art 3 ■ Prisoner’s pregnancy detected in prison ■ Medical conditions of the foetus and risk of miscarriage ■ Regular medical consultations, including in external hospitals ■ Gynaecologists’ recommendations implemented swiftly ■ Inadmissible (manifestly ill-founded).
Art 3 ■ Shackling of pregnant women during medical examinations ■ No evidence and vagueness of statements ■ CPT report dating back 15 years before the event not considered relevant evidence ■ Applicant attempted to raise her allegations before non-governmental organisations and UN bodies instead of public authorities ■ Inadmissible (manifestly ill-founded).
Art 8 ■ Prisoner separated from her newborn during intensive care and placement in a paediatric hospital ■ No evidence of pressure exerted by the prison administration on the hospital ■ Inadmissible (manifestly ill-founded).
Art 8 ■ Applicant’s letter addressed to non-governmental organisations and UN bodies withheld by the prison administration ■ Part of the complaint not examined.
Facts ■ The applicant, the director of a local radio station in Odesa, was arrested in April 2015 on suspicion of having attempted to create a separatist movement in the Odesa region, and detained at the Odesa Pre-Trial Detention Facility (SIZO).
In October 2015, following a gynaecological examination, she was found to be 11 or 12 weeks pregnant. The examination revealed that there was a high risk of the baby having chromosomal abnormalities and a risk of the applicant miscarrying. Throughout her pregnancy, she underwent several examinations at the maternity hospital, where she was eventually transferred on 26 April 2016. On 27 April 2016, her child was born. Due to his severe health condition, he was immediately placed in the maternity hospital’s neonatal intensive care unit. He was subsequently transferred to the Reznik city paediatric hospital on 6 May. The applicant was not allowed to stay with him (due to applicable sanitary regulations and lack of available space to accommodate the applicant and her guards) and was reunited with her child only on 26 May 2016, after his placement in the Odesa regional paediatric hospital.
On 13 June 2016, the applicant and her child were included in an exchange of prisoners between Ukraine and Russia and moved to Moscow.
The applicant complained about her shackling during medical examinations, and about her being separated from her newborn child for three weeks. She also complained about the poor conditions of her detention at the SIZO and her continued pre-trial detention. The summary focuses on the aspects of the complaint concerning her pregnancy and the birth of her child.
Law ■ Article 3 (medical care)
The Court found no deficiencies in the medical care provided to the applicant in detention. It noted that the applicant “spent more time during her pregnancy (the last 24 weeks of the 40-week period) in the SIZO medical unit than in a regular cell” (§ 60), that she was regularly examined by gynaecologists “in a hospital setting and without any major delays” (ibid.), and that gynaecologists’ recommendations for specialised examinations were implemented on the same day or on the following day.
The Court also found no reason “for blaming the authorities for the grave health concerns of her baby” (ibid.). As regards the applicant’s claim that she could not consult a cancer specialist (in relation to her past cancer-related surgery), the Court noted that the applicant did not state that she had asked for such examination.
Conclusion ■ Inadmissible (manifestly ill-founded).
Law ■ Article 3 (shackling)
The Court noted that the parties disagreed as to whether the applicant had been subjected to handcuffing or shackling. It observed that the applicant had not submitted any evidence to support her claim. Despite acknowledging that “it might be difficult for an applicant in detention to collect evidence in support of his or her allegation of ill‑treatment” (§ 67), the Court considered that her representative should have tried “to obtain some witness evidence from the staff of the medical facilities concerned after the applicant’s departure from Ukraine” (§ 68).
Furthermore, the Court found it difficult to understand why, although “it was obvious that the alleged restraint measure had been legally prohibited in her situation” (ibid.), she did not bring the matter to the authorities but instead, “for unknown reasons”, attempted to raise her allegation “before certain non-governmental organisations” (ibid. – the judgment mentions the National Union of Journalists of Ukraine, the Representative Office of the United Nations in Ukraine, the UN Monitoring Mission in Ukraine and the Ukrainian Helsinki Human Rights Union. The applicant alleged that the letters addressed to those organisations were withheld by the prison administration, see § 64).
The Court regretted the “vagueness” of the applicant’s allegation (§ 68). It also rejected the applicant’s use of a CPT report to substantiate her argument that the handcuffing or shackling of pregnant detainees was widespread, as this report concerned a situation predating the events by 15 years.
Conclusion ■ Inadmissible (manifestly ill-founded).
Law ■ Article 8 (separation from newborn child)
As regards the applicant’s separation from her newborn while he was in the intensive care unit, the Court considered that this measure could not be regarded as “a frivolous restriction in the context” (§ 81).
Concerning the refusal of the Reznik paediatric hospital to accommodate the applicant, the Court found no evidence supporting the applicant’s allegation that the prison administration had exercised pressure. It considered this allegation to lack credibility since she had been afterwards allowed to stay with her child in another hospital.
Conclusion ■ Inadmissible (manifestly ill-founded).
Law ■ Article 8 (withholding of correspondence)
The Court did not examine the applicant’s complaint that her letters addressed to the National Union of Journalists of Ukraine, the Representative Office of the UN in Ukraine, the UN Human Rights Monitoring Mission in Ukraine and the Ukrainian Helsinki Human Rights Union had been withheld by the prison administration. Those letters concerned her shackling during her medical examinations outside the SIZO.
Conclusion ■ Part of the complaint not examined.
YERYOMENKO v. UKRAINE ■ Application no. 8394/20 ■ Fifth Section Committee ■ 18 June 2026
Art 3 (substantive) ■ Systematic torture by prison staff ■ Beatings and cigarette burns ■ Treatment intended to debase and drive the applicant into submission ■ Four-year duration ■ Injury pattern consistent with allegations ■ CPT reports relied upon to establish credibility of allegations.
Art 3 (procedural) ■ Ineffective investigation ■ Frequent and severe ill-treatment in the prison in which the applicant was detained documented by CPT reports and press conference by human rights activists ■ Investigation into applicant’s complaint discontinued on six occasions ■ Superficial investigation, based mostly on prison staff denial ■ Forensic medical evidence ignored ■ Repeated remittals disregarding investigative instructions ■ Serious deficiency in prosecution system.
Facts ■ The applicant served his sentence at Oleksiyivska Prison No. 25 (Kharkiv) from 20 October 2011 to 2 December 2015. He alleged that he had been systematically tortured by prison staff. He argued, in particular, that he had been beaten on the head and body with a rubber truncheon and that prison staff had forced him to lie naked on the floor while they stood on his shins and chest and burnt his face, hands and groin with lit cigarettes.
In October 2013, human rights activists organised a press conference at which former prisoners raised similar allegations against the same prison, prompting the opening of a criminal investigation. In April 2016, the applicant’s individual complaint, lodged shortly after his release, was joined to that investigation.
In January 2017, a forensic medical expert concluded that the scars documented on the applicant’s body had resulted from injuries sustained more than one and a half years before the examination.
Between April 2016 and August 2021, the authorities discontinued the investigation into the applicant’s allegations six times.
Law ■ Article 3
(1) Admissibility
The Court rejected the Government’s objection that the applicant had failed to exhaust domestic remedies on two grounds: first, because he had not challenged the latest decision discontinuing the investigation into his allegations within the applicable time limit; and, second, because he had not pursued a civil claim for damages.
As regards the compensatory claim, the Court reiterated that civil compensation alone cannot constitute an effective remedy in cases of intentional ill-treatment by State agents, since to hold otherwise would risk allowing State abuse to continue with virtual impunity, rendering the prohibition of torture and inhuman or degrading treatment ineffective in practice (§§ 20-21, citing Jeronovičs v. Latvia [GC]). As regards the failure to challenge the 2021 discontinuation decision, the Court considered that issue to be absorbed into its examination of the procedural limb of Article 3.
(2) Merits
(a) Procedural limb
The Court did not limit its reasoning to the applicant’s individual complaint lodged in December 2015 but also took into account earlier allegations of systematic ill-treatment of prisoners at Oleksiyivska Prison documented by CPT reports covering the applicant’s detention period, as well as by human rights activists at a press conference in 2013.
In particular, the Court noted that the CPT reported in 2012 “an overall climate of fear” within the prison and that allegations of ill-treatment were frequent and of such severity that they could be qualified as torture (§ 28). Following a subsequent visit, the CPT declared that it had “never visited a prison in Europe where so many prisoners refused to talk to delegation members and appeared to be virtually scared to death” (§ 15). Despite those credible allegations, the authorities took no steps to investigate them.
As regards the applicant’s complaint, the Court noted that the investigation was discontinued six times. The first five decisions, adopted between 2016 and 2019, were virtually identical and relied chiefly on staff denials and statements by other prisoners, without referring to the forensic medical report confirming that the applicant had sustained injuries. Each of those five decisions was quashed by the district court on the ground that it had been based on a superficial investigation. The district court also noted that specific investigative instructions issued by higher-level prosecutorial authorities had been disregarded. The sixth decision, adopted by the State Bureau of Investigation in August 2021, was based on the same reasoning. It briefly mentioned the applicant’s statements and the expert report but contained no assessment of either.
The Court therefore concluded that there had been a violation of Article 3 under its procedural limb.
(b) Substantive limb
The Court noted that the forensic evidence confirming that the applicant had sustained injuries was undisputed. Neither the Government nor the domestic investigative authorities had provided an explanation as to the origin of those injuries. The Court dismissed the Government’s argument that there was “no evidence” that the injuries had been inflicted by prison officers as “an attempt to reverse the burden of proof” (§ 36).
The Court stressed that the applicant’s allegations were consistent with the observations made by the CPT during the period of the applicant’s detention.
The Court considered that the ill-treatment could be qualified as torture on account of the nature of the acts committed (“notably, cigarette burns on his face and in the groin area”, § 40), the fact that they were intended to “[debase] the applicant and [drive] him into submission” (ibid.), and their duration of more than four years.
Conclusion ■ Violation of Article 3 (procedural and substantive limbs).
Article 41 ■ EUR 30,000 in respect of non-pecuniary damage; EUR 2,200 in respect of costs and expenses.
VAINIK AND OTHERS v. ESTONIA ■ Application no. 17982/21 ■ Grand Chamber ■ 30 June 2026
This legal summary was prepared by the Court’s Registry.
Art 37 ■ Striking out applications ■ Art 37 § 1 (c) ■ Death of one of the applicants during the Grand Chamber proceedings ■ No interest expressed by any heir or close relative to pursue the application on his behalf • Continued examination not justified ■ Art 37 § 1 (a) ■ Absence of intention on the part of the remaining two applicants to pursue their applications ■ Lack of legal representation in the Grand Chamber proceedings ■ Failure to inform the Court of their release from prison and the changes in address ■ Applicants no longer detained and thus not affected by complete ban on smoking in Estonian prisons ■ Lack of special circumstances relating to respect for human rights that required the continued examination of their applications.
Facts ■ The case concerned the total tobacco ban in Estonian prisons which, according to the applicants – who were all prisoners when the ban entered into force – violated their rights under Articles 3 and 8 of the Convention as it prevented them from smoking while in prison, and had given rise to physical and mental suffering as a result of nicotine withdrawal.
In a judgment of 4 November 2025, a Chamber of the Court found, by four votes to three, that there had been a violation of Article 8. In particular, it held that the domestic authorities, by imposing a complete ban on smoking in prisons without assessing its importance and impact from the perspective of personal autonomy of prisoners who smoke, had failed to provide relevant and sufficient reasons for that far-reaching and absolute prohibition and thus had exceeded the margin of appreciation afforded by the Convention. The complaint under Article 3 was declared, unanimously, inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a).
On 23 March 2026 the case was referred to the Grand Chamber at the Government’s request.
On 10 April 2026 the Government requested that the Court strike the applications out of its list of cases.
Law ■ Article 37
(1) Application no. 17982/21
The Government had informed the Court that the applicant had died on 28 March 2026 and that additional administrative searches had failed to identify any heirs.
The Court’s established practice, where an applicant died during the proceedings, including after referral of the case to the Grand Chamber, and no heir or close relative expressed a wish to pursue the application, was to strike the application out of its list of cases. That was the situation in the present case. Moreover, the Court had taken several procedural steps that could have drawn the attention of the deceased applicant’s heirs or next of kin to developments in the case. Nevertheless, no one had come forward expressing a wish to pursue the application on his behalf.
In those circumstances, the Court considered that it was no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention).
(2) Applications nos. 43852/21 and 44600/21
The applicants no longer had legal representation in the proceedings, contrary to Rule 36 §§ 2 and 3 of the Rules of Court. It transpired during the preparation of the Grand Chamber proceedings that the lawyer who had initially represented them had not accessed or downloaded letters sent to him through the Court’s Electronic Communications Service (eComms) system. Following additional enquiries, the Registry had been informed that he was no longer practising law in Estonia.
Moreover, the Government informed the Court that the applicants had been released from prison “years ago”. Steps taken by the Court to contact the applicants had been to no avail. They had refrained from direct contact with the Court, omitting to inform it of the change of circumstances represented by their release from prison and the changes in address since their applications were lodged, contrary to Rule 47 § 7.
Those circumstances strongly supported the conclusion that the two applicants did not intend to pursue their applications, within the meaning of Article 37 § 1 (a) of the Convention.
Furthermore, the Court concluded that there were no special circumstances relating to respect for human rights requiring it to continue the examination of the case. In particular, as both applicants were reported as no longer being in detention, they were not presently affected by the complete prohibition on smoking in Estonian prisons. Since there was also no other application against Estonia in relation to this matter, there was no appearance of a continuing objection to the measure in question from within the prison population, based on the Convention, which might justify the continued examination of this case. In addition, as no similar application had been introduced against any other High Contracting Party, there was no basis to consider that the case concerned an issue of general relevance and significance across the whole Council of Europe area; the issue did not therefore appear to be one on which a definitive ruling from the Grand Chamber was required for the sake of “respect for human rights”, within the meaning of Article 37 § 1 in fine of the Convention. In other words, the Court did not discern in the present case the transcendent quality that it had identified in other proceedings in which it had declined to strike the application out.
Lastly, the Court clarified that, in so far as it concerned the merits, the judgment that had been given by the Chamber had not become final and was thus legally void. The case had now been decided by the present judgment of the Grand Chamber, which was final, as provided by Articles 43 § 3 and 44 § 1 of the Convention.
Conclusion ■ Applications struck out of the list (unanimously).
© Council of Europe/European Court of Human Rights
COURT OF JUSTICE OF THE EUROPEAN UNION
Rugu and Aucroix [GC] ■ Joined Cases C-722/23 and C-91/24 (Request for a preliminary ruling: Belgium, Romania, Greece) ■ Grand Chamber ■ 4 June 2026
Framework Decision 2002/584/JHA (EAW) ■ Article 1(3) ■ Grounds for refusal of execution ■ Risk of the requested person suffering inhuman or degrading treatment ■ Article 4(6) ■ Ground for optional non-execution ■ Undertaking of the Member State to enforce the sentence in accordance with its domestic law.
Framework Decision 2008/909/JHA (mutual recognition of judgments in criminal matters, transfer of prisoners) ■ Article 4(5) ■ Request by the executing Member State to the issuing Member State to forward to it the judgment imposing a custodial sentence with a view to enforcing that sentence on its territory ■ prisoners’ rehabilitation “not absolute” ■ Fight against impunity takes precedence ■ Consent of the person not required in specific cases.
Facts ■ The case concerned two separate European Arrest Warrants (EAW) for the purpose of enforcing a custodial sentence issued by Romania and Greece, that Belgian courts, as executing judicial authorities, refused to execute. The EAW issued by Romania concerned AR, a Romanian national residing in Belgium, while the second EAW, issued by Greece, concerned HL, a Belgian national residing in Belgium.
In both cases the Belgian courts in charge of the proceedings refused to execute the EAW based the fact that the conditions of detention in Romania and Greece (and, for HL, mental health disorders) would give rise to a risk of an infringement of their fundamental rights, in breach of the national law implementing Framework Decision 2002/584/JHA (FD EAW), Article 1(3).
In the case of HL, the Public Prosecutor’s Office brought an appeal on a point of law before the Court of Cassation, arguing that the Court should have also considered the application of the ground for optional non-execution provided for in Article 4(6) of FD EAW, as the aim of such provision is to prevent impunity. In the case of AR, on the other hand, after the Public Prosecutor’s appeal, the Indictment Chamber confirmed the EAW refusal, but also decided to apply Article 4(6) FD EAW in conjunction with Article 1(3). That decision was consequently appealed by AR on a point of law before the Court of Cassation, arguing against the possibility, for the court, to apply both Article 1(3) and Article 4(6) in conjunction.
Both courts, therefore, stayed the proceedings referred to the CJEU for a preliminary ruling on whether the two provisions, Article 1(3) and Article 4(6) could be applied in conjunction.
Law ■ Combined application of Article 1(3) and Article 4(6) of FD EAW
As a first preliminary point, the Court examined the question whether “the ground for optional non-execution of a [EAW] set out in Article 4(6) of [FD EAW] is intended to be applied, in addition, where an executing judicial authority has refused to execute that European arrest warrant, on the basis of Article 1(3) of that framework decision” (§ 40).
Firstly, the Court stated that whenever Article 1(3) is indeed applied, as there is a risk that the execution of an EAW would lead to an infringement of the offender’s fundamental rights, the Framework Decision does not specify the “consequences of such a refusal” (§ 44).
Secondly, the application of the ground for non-execution under Article 4(6) is optional and subject to the condition that (1) the person targeted by the EAW is either a national or resident in the executing Member State, (2) the State undertakes the execution of the sentence itself and, where both conditions have been fulfilled, (3) there is a legitimate interest justifying the execution on its territory. It follows that, unlike what is prescribed by Article 1(3), the application of the ground for non-execution set out in Article 4(6) remains optional and non-mandatory, with the judicial authorities retaining the possibility to assess its feasibility on a case-by-case basis.
The Court hence concludes that “the ground for optional non-execution provided for in Article 4(6) of [FD EAW] is an autonomous ground for non-execution which is not intended to apply, in addition, where the execution of a European arrest warrant has already been refused by the executing Member State on the basis of Article 1(3) of that framework decision” (§ 51) even if such application is intended to prevent impunity, as in the present case: to apply the two provisions combined would result in disregarding the two different purposes for which they were created in the first place. Hence, if the judicial authorities have refused the execution of the EAW on the grounds of Article 1(3) FD EAW, they cannot apply Article 4(6) in conjunction.
The interpretation of the Court here differed from the opinion delivered by Advocate General (AG) Rantos. AG Rantos, focusing on one of the primary goals of the FD EAW, i.e. the prevention of impunity, as well as the preservation of effectiveness of judicial cooperation between the Member States, argued that in cases such as the one at hand, “the executing judicial authorities are themselves required to ensure that the sentence pronounced against that person is actually executed” (§ 50). He argued that, in such situations, the possibility for Member States to execute a prison sentence in their territory as provided for in Article 4(6) FD EAW would become a mandatory obligation (§ 61 of the AG Opinion).
Law ■ The role of Framework Decision 2008/909/JHA Article 4(5)
Though diverging from the interpretation of AG Rantos, the Court remained nevertheless preoccupied with the ultimate goal of preventing impunity. Therefore, after the EAW has been refused in application of Article 1(3) FD EAW, the executing judicial authority “is required actively to seek to ensure that the requested person does not go unpunished as a result of that refusal” (§ 57).
Noting that the aim of Framework Decision 2008/909 (FD 909), is to facilitate sentence recognition and judgment enforcement across Member States, the Court argued that the application of Article 1(3) FD EAW does not prevent the executing Member State from applying FD 909 “in order to recognise the judgment delivered in the issuing Member State […] and from taking over the enforcement of that sentence in its territory” (§ 62).
The Court grounded its reasoning of the assumption that “the objective of increasing the requested person’s chances of reintegrating into society […], however important it may be, is not absolute, since that objective must be reconciled with the essential objectives of [FD EAW] and, in particular, the objective […] to combat the impunity from which that person could thus benefit (§ 65, referring to CJEU, C.J., C‑305/22, 4 September 2025). The Court added that the reintegration of a sentenced person into society requires “that sentence actually to be enforced in the executing Member State” (§ 67, see also 74, where the Court argued that should the sentenced person remain unpunished, this “would also be liable to compromise his or her social rehabilitation”).
As regards the modality through which this result should be achieved, the Court points out at first that although Article 4(1) of FD 909 provides that the initiative of the procedure rests on the issuing Member State, Article 4(5) provides for the possibility for the executing Member State to take initiative itself. Such would be the case upon refusal to execute an EAW on the basis of Article 1(3) FD EAW, where the executing Member State would have the obligation to enforce the sentence on its own territory. Although Article 4(5) FD 909 does not create an obligation on the issuing Member State to cooperate, the Court held that it “must thus ensure that the operation of the [EAW] and the mutual recognition of judgments in criminal matters for the purposes of their enforcement in another Member State are not brought to a standstill” (§ 73).
Finally, the Court noted that according to Article 6 (2) (a) and (c) of FD 909, the consent of the sentenced person for such operation is not required “either where the sentenced person is a national of the executing Member State and also lives in its territory, or where he or she has fled or returned to the latter Member State”(§ 76): consent therefore would not be needed for HL (a Belgian national residing in Belgium), while in AR’s case (a Romanian national residing in Belgium) it is for the domestic court to assess where the conditions are met (i.e. whether he had travelled to Belgium after having been sentenced to a prison sentence in Romania).
Interestingly, although the decision by the Belgian authorities to apply Article 1(3) FD EAW was based on the structural deficiencies present in the Greek and Romanian prison systems, Belgium itself faces important structural challenges on the very same issues (see Vasilescu v. Belgium, no. 64682/12, 25 November 2014)), with an overcrowding rate currently among the highest among Council of Europe Member States (114% as of 31 January 2025, see SPACE I, 2026) — an element that finds no point of reference in the Court’s judgment, despite the negative impact poor detention conditions have on prisoners’ rehabilitation.
Conclusion ■ The Court concluded that:
- When a national executing judicial authority refuses to execute an EAW due to the risk of an infringement of the requested person’s fundamental rights (Article 1(3) FD EAW) it cannot apply Article 4(6) of this FD (ground for optional non-execution) with a view to execute the sentence on its territory;
- However, so as to prevent impunity, the executing Member State is required to invoke the provisions of Article 4(5) of FD 909 and request the forwarding of the sentence by the issuing Member State, with the view of having it recognised and enforced in the executing Member State.
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