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Have you ever witnessed “a return flight”? I did, last week. Not a happy experience. I was sat in seat 25A. A person sitting in the last row kept screaming “Jesus, help, help me, I am not an animal”. It took a while till I understood: the lady from Nigeria was being escorted by three officers back to her country of origin. Very obviously against her will.
Forced returns are a component of the fight against irregular immigration. And when carried out in a respectful way and in full compliance with fundamental rights are legal and legitimate. But witnessing the exercise of public force from close distance reminds us how important the prohibition of torture and inhuman treatment is.
The Charter right in action: putting on the brakes to ‘blind trust’
Article 4 of the Charter stipulates: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Sounds good, but what does it mean in legal practice? Let’s look at the case of Mr Aranyosi.
Today, Mr Aranyosi is a 24 year old Hungarian. 6 years ago he committed a crime in Hungary: he broke into a dwelling and a school building stealing in total less than 4.000 EUR. He was arrested in Germany as a result of a European Arrest Warrant that had been issued against him. How come? Well, in the EU, all States have to assist each other in fighting crime and criminals. The EU builds an “Area of Freedom, Security and Justice”. This has increasingly meant that a judgement taken by a court in one EU Member State has to be recognised and executed in all other EU Member States. Based on the concept of ‘mutual trust’, all judicial decisions ‘travel freely’ and have to be implemented directly without any prior assessment of the quality of the judicial system in a given country. But what if the fundamental rights standards in country A are lower than in country B?
Back to the story of Mr Aranyosi. He opposed being surrendered to Hungary and raised the point that the detention conditions in a number of Hungarian prisons did not satisfy the minimum of European standards. This is where the Charter came into play. The German court that had to deal with the case asked the EU Court in Luxembourg for assistance to interpret EU law correctly. In a landmark decision, the EU Court stated that “where the judicial authority of the executing Member State [the State asked to execute the Arrest Warrant] is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State [the State asking for a person being surrendered], having regard to the standard of protection of fundamental rights guaranteed by EU law and, in particular, by Article 4 of the Charter … that judicial authority is bound to assess the existence of that risk …. The consequence of the execution of such a warrant must not be that that individual suffers inhuman or degrading treatment.”
|An example how the EU legislator protects against torture and degrading treatment:
What do the constitutions of the Member States say?
Wherever human beings are restricted in their freedom, such as is the case in prisons, detention centres, special homes etc. there is a risk that they could be treated in an inhuman or degrading manner. It is thus no surprise that the huge majority of the constitutions explicitly contain a prohibition of torture, inhuman or degrading treatment. 
Some constitutions add specific aspects. The Bulgarian constitution explicitly forbids forced assimilation, the Greek constitution explicitly refers to “psychological violence” just as the Italian constitution refers to “moral violence”. The Maltese constitution explicitly forbids the imposition of collective punishments (with exceptions for the military). The Finnish constitution explicitly stresses that no foreigner shall be deported, extradited or returned to another country if he or she is in danger of torture or other treatment violating human dignity (by the way: the link between asylum and torture was also prominent in the genesis of the Charter: in some of the first drafts Article 4 and Article 19 formed one single provision).
Article 4 did not add much to the national and international human rights regimes. Still, the right matters where the EU holds competences! To come back to the start: for the EU, return flights are a sensitive issue given the prominent involvement of the EU agency FRONTEX. Moreover, Article 4 is often involved before national courts in cases where they have to decide whether a person can be turned to the judicial system of another EU Member State. The quality of the rule of law but also the prison conditions vary between the Member States which poses the question whether Member State A can trust that Member State B is equally committed to fundamental rights. Interested in knowing more? Well, here you are: ‘All EU-r rights‘, stay tuned!
|Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.|
 The risks are obvious. Close to 20 people have died since 1991 during deportation attempts from Europe. See Jarij Pirjoila, Flights of Shame or Dignified Return? Return Flights and Post-return Monitoring, in European Journal of Migration and Law 17 (2015), pp. 305–328, at 313.
 Neither the Charter nor the ECHR provide a proper definition. The European Court of Human Rights often referred to the respective UN Convention. Art. 1 (1) of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment says: “For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
 Only very few Member States have a constitution whose text does not explicitly enshrine the prohibition of torture in their constitution: Belgium, Denmark, Ireland, Luxembourg.
 Art. 29(1) of the Bulgarian constitution
 Art. 7 (2) of the Greek constitution and Art. 13 of the Italian constitution.
 Art. 36 (3) of the Maltese constitution.
 Doc. CHARTE 4284/00 CONVENT, 5.5.2000.
 See recently FRA (2019), Criminal detention conditions in the European Union: rules and reality, see also the FRA database on criminal detention in the EU.