Florea v Judicial Authority Carei Courthouse, Satu Mare County, Romania
| Jurisdiction | England & Wales |
| Judge | Blake J |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] EWHC 2528 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11010/2013 |
| Date | 30 July 2014 |
[2014] EWHC 2528 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty DBE
and
Mr Justice Blake
Case No: CO/11010/2013
David Josse QC and Ben Keith (instructed by Virdees) for the Appellant
Mark Summers QC and Adam Payter (instructed by CPS) for the Respondent
Hearing date: 15 July 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is the judgment of the court.
The appellant is a national of Romania. On 6 August 2013 Senior District Judge Riddle ordered his surrender to Romania pursuant to a European Arrest Warrant (EAW) issued by the respondent judicial authority. The warrant is a conviction warrant issued in respect of eight offences in Romania and one offence in Portugal for which he was returned to Romania. He came to the United Kingdom in 2010 before the sentences for his various offences had been finalised and served. The sentences were merged at a hearing 2012 where he was represented by a lawyer and he was given an aggregate sentence of three years' imprisonment.
None of the challenges to the warrant that were taken before Judge Riddle are now material. The present appeal raises a new point not taken below namely that return would be contrary to the appellant's human rights and thus barred by s.21 Extradition Act 200As this is a human rights point taken on the basis of current circumstances in Romania, no objection has been taken by the respondent to this new ground being raised. The appellant contends that in the light of present prison conditions in Romania, a return to a three year sentence in that country will contravene Article 3 European Convention on Human Rights (ECHR) because there are substantial grounds for believing that serving such a sentence in a Romanian prison, absent special arrangements, presents a real risk of inhuman or degrading treatment by reason of overcrowding.
This appeal was listed on 18 November 2013 a lead case on Romanian prison conditions and directions were given to make time. The appellant served the report of his expert witness Diana-Olivia Hatneanu in January 2014, and the matter was twice adjourned thereafter in March and May. The respondent served the report of its expert Dr Viviana Onaca Director of the Directorate for International Law and Judicial Cooperation in Romania on 6 June 2014.
There is a substantial measure of agreement between the two reports. We have been supplied with various reports emanating from the Council of Europe between December 2008 and May 2012. These consist of reports from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), a number of responses made by the Romanian Government, and two reports on implementation of judgments prepared for the Committee of Ministers. We have also been supplied with the details of a number of decisions of the European Court of Human Rights decided between March 2008 and June 2014 finding violations of Article 3 ECHR against Romania in respect of persistently overcrowded conditions for service of a prison sentence. There are a number of cases against Romania on the same issue pending in Strasbourg.
The way in which the appellant advances his case is confined to the issue of overcrowding. He does not contend that in 2014 other aspects of prison conditions are so systemically poor throughout Romania that they would prevent his return. Although there is no certainty on the present evidence precisely where the appellant would serve his sentence on return, the appeal has preceded on the basis of the likelihood, in the absence of special measures, that he would serve his sentence in the nearest regional semi-open prison to his place of conviction and former residence, Satu Mare. Sentences of three years and less are served in semi-open conditions.
Satu Mare is the third most over-crowded of 43 Romanian prisons listed in a schedule before us. Dr Onaca's evidence explains that according to the provisions of Romanian law (Ministry of Justice Order no 433/C/2010) the minimum space required for a semi-open prison is six cubic metres, which corresponds to approximately two square metres. On this reckoning there is space for 508 inmates, 418 of whom are in semi-open conditions. However as of May 2014 there are 641 detained prisoners or 156 prisoners more than Romanian law permits. The CPT recommendation for the minimum for a serving prisoner is four square metres and on this criterion the maximum number of prisoners is 238.
For reasons which will become apparent below, we consider that the information most relevant to the appellant's appeal is what the maximum capacity of Satu Mare prison would be applying a criterion of a minimum space of three square metres per prisoner. Dr Onaca indicates that the Romanian prison authorities had not performed this calculation but this can be assessed by taking the mid-point between the 2 and 4 square metre calculations. Taking 984 square metres as the available space 1 and dividing by 3 gives a maximum prison population of 328 or an excess of 313 prisoners at current occupancy levels; put another way, if 641 prisoners are presently sharing 984 square metres of available space, there is approximately 1.53 square metres floor space per prisoner even if the cubic measurement permits taller cells and more air. The appellant contends that this occupancy level by itself, without any other aggravating feature, is a violation of Article 3.
In support of that submission Mr Josse QC for the appellant relies on the decision of the First Section of the European Court of Human Rights in Ananyev v Russia (Applications nos. 425/07 and 60800/080910) January 2012. Under the heading of compliance with Article 3 the Court said this:
(a) Overcrowding
143. The extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were "degrading" from the point of view of Article 3 (see Karalevicius v. Lithuania, no. 53254/99, § 36, 7 April 2005).
144. The Court notes that the General Reports published by the Committee for the Prevention of Torture do not appear to contain an explicit indication as to what amount of living space per inmate should be considered the minimum standard for a multi-occupancy prison cell. It transpires, however, from the individual country reports on the CPT's visits and the recommendations following on those reports that the desirable standard for the domestic authorities, and the objective they should attain, should be the provision of four square metres of living space per person in pre-trial detention facilities (see, among others, CPT/Inf (2006) 24 [Albania], § 93; CPT/Inf (2004) 36 [Azerbaijan], §
87; CPT/Inf (2008) 11 [Bulgaria], §§ 55, 77; CPT/Inf (2008) 29 [Croatia], §§ 56, 71; CPT/Inf (2007) 42 [Georgia], §§ 42, 51, 61, 74; CPT/Inf (2009) 22 [Lithuania], § 35; CPT/Inf (2006) 11 [Poland], §§ 87, 101, 111; CPT/Inf (2009) 1 [Serbia], § 49, and CPT/Inf (2008) 22 [FYRO Macedonia], § 38).145. Whereas the provision of four square metres remains the desirable standard of multi-occupancy accommodation, the Court has found that where the applicants have at their disposal less than three square metres of floor surface, the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3 (see, among many other authorities, Trepashkin (no. 2), § 113, and Kozhokar, § 96, both cited above; Svetlana Kazmina v. Russia, no. 8609/04, § 70, 2 December 2010; Kovaleva v. Russia, no. 7782/04, § 56, 2 December 2010; Roman Karasev, cited above, §§ 48–49; Aleksandr Leonidovich Ivanov v. Russia, no. 33929/03, § 35, 23 September 2010; Vladimir Krivonosov, § 93, and Gubin, § 57, both cited above; Salakhutdinov v. Russia, no. 43589/02, § 72, 11 February 2010; Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 98, 12 February 2009; Guliyev, cited above, § 32; Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50–51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47–49, 29 March 2007; Labzov v. Russia, no. 62208/00, § 44, 16 June 2005; and Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005).
146. In some earlier cases, the number of detainees exceeded the number of sleeping places in the cell and insufficiency of floor surface was further aggravated by the lack of an individual sleeping place. Inmates had to take turns to sleep (see Gusev v. Russia, no. 67542/01, § 57, 15 May 2008; Dorokhov v. Russia, no. 66802/01, § 58, 14 February 2008; Bagel v. Russia, no. 37810/03, § 61, 15 November 2007; Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Igor Ivanov, § 36, Benediktov, § 36, Khudoyorov, § 106, Romanov, § 77, and Labzov, § 45, all cited above; and Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002 VI).
147. Where the cell accommodated not so many detainees but was rather small in overall size, the Court noted that, deduction being made of the place occupied by bunk beds, a table, and a cubicle in which a lavatory pan was placed, the remaining floor space was hardly sufficient even to pace out the cell (see Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 87, 27 January 2011; Petrenko v. Russia, no. 30112/04, § 39, 20 January 2011; Gladkiy, §...
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