Gabriel Lucian Bobirnac v Constanta Tribunal (Romania)
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 07 March 2023 |
| Neutral Citation | [2023] EWHC 479 (Admin) |
| Docket Number | Case No: CO/1825/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 479 (Admin)
Sir Ross Cranston
sitting as a High Court Judge
Case No: CO/1825/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Swain (instructed by Coomber Rich Ltd) for the Appellant
David Ball (instructed by CPS) for the Respondent
Hearing date: 2 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30 am on 7 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an appeal against the extradition order made under the Extradition Act 2003 on 18 May 2022 by District Judge Zani sitting at Westminster Magistrates' Court. The one ground of the appeal concerns prison conditions in Romania and whether if extradited these would be such for the appellant to constitute a violation of his rights under article 3 of the ECHR.
This appeal concerns specifically two assurances given by the Romanian authorities in relation to the prison conditions which the appellant will experience on return to Romania, what in this judgment is called ‘Dr Halchin's assurance’ and ‘the October assurance’. Such assurances can provide, in their practical application, a sufficient guarantee that the requested person will be protected against the risk of ill-treatment because of prison conditions in violation of Article 3. The issue in this appeal is the admissibility and application of these assurances.
Background
The appellant's extradition is based on a conviction warrant issued on 12 September 2017 and certified by the National Crime Agency on 8 June 2021.
The appellant is to be surrendered to serve a sentence of imprisonment of 3 years, 5 months and 29 days pursuant to the order of the Constanta court. That sentence became final in June 2017.
The warrant contains convictions for five offences. In brief summary the appellant was part of a gang which in 2009 installed devices for copying magnetic strips and filming pin codes at cash machines. The five offences cover aspects of this fraud.
The appellant was present at his trial and was legally represented.
The District Judge's judgment
At the appellant's extradition hearing in January 2022, he opposed extradition on various grounds. The only ground surviving before me is Article 3.
In the course of his judgment the District Judge stated that the appellant was born in 1986. His evidence was that he came to the UK in 2017. He was trading cryptocurrencies and sending money home to his mother in Romania. He came to the UK at a time when he was aware that he had been sentenced to an immediate prison term of some considerable length. In the District Judge's view the appellant was not a totally honest witness. The District Judge found that the appellant was a fugitive.
As regards article 3 the District Judge summarised the domestic and European jurisprudence regarding the need for an executing judicial authority to bring surrender to an end when there are substantial grounds for believing that there is a real risk of a requested person being subjected to inhuman or degrading conditions when in detention. He then went on refer to the jurisprudence that a judicial authority could offer an assurance that a requested person would not suffer inhuman or degrading conditions in prisons where he would be detained.
The District Judge had an assurance from the Romanian authorities issued on 23 July 2021 about the prison conditions the appellant would experience (‘the First Assurance’). It guaranteed that the appellant would be in a room ensuring a minimum personal space of 3 square metres throughout the execution of his sentence. It also set out the material conditions of the prisons to which he might be transferred, namely Slobozia prison and Constanta-Poarta Alba prison. Those material conditions included matters such as access to outdoor exercise, natural light and air, ventilation, room temperature, pest and insect control, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements.
However, the appellant was to be held for an initial 21 day period (called a ‘quarantine and observation period’) at Bucharest Rahova prison (“Rahova”) before being moved to these other prisons, and there was no information about the material conditions there.
In line with the principles in Criminal Proceedings Against Aranyosi and Caldararu [2016] 3 WLR 807, [108], the District Judge sought further information from the Romanian authorities about all the prisons in which the appellant would be held.
As a result the Romanian authorities sent a document giving details of the material conditions in Rahova (‘the Second Assurance’).
For the appellant Mr Swain submitted that the two documents did not constitute an adequate assurance. He also referred to the growing body of litigation before this court, the European Court of Human Rights, and domestic Romanian courts challenging the conditions in Romanian prisons. As well there was a written report by the executive director of the Helsinki committee in Romania about failures in the Romanian prison estate.
In his judgment the District Judge said that the two written assurances in the case were similar to those regarded as adequate by Johnson J in Cretu v Romania 113 [2021] EWHC 1693 (Admin), [79]. Notwithstanding criticisms of the assurances, particularly the second, the District Judge said that he was entirely satisfied that in all the circumstances extradition would not result in there being a real risk of article 3 breaches arising by reason of the anticipated prison conditions for the appellant.
Post-judgment events
In Perfected Grounds of Appeal in early June 2022, Mr Swain argued that the First and Second Assurances, which the District Judge accepted as adequate, only guaranteed a space of three-square meters and did not provide an adequate assurance of material detention conditions. Decisions of the European Court of Human Rights-ably summarised by Mr Swain in the grounds — demonstrated that material conditions of detention in each of the prisons where the appellant would be held amounted to a breach of article 3 for matters over and above mere overcrowding. Having directed further information in light of these matters, the Romanian authorities had failed to provide an assurance and the District Judge ought therefore to have discharged the appellant.
Permission was refused on the papers by Fordham J on 14 September 2022. In his view, the appellant's article 3 point fell squarely withing the Divisional Court's decision in Marinescu & Ors v Romania [2022] EWHC 2317 (Admin), which had been handed down a few days earlier. The appellant had no realistic prospect of success. I return to Marinescu below.
Following Fordham J's decision, permission to appeal was renewed on the basis that neither the First Assurance nor the Second Assurance before the District Judge contained an assurance about decent conditions respecting human dignity.
As a result, Dr Halchin's assurance of 4 March 2022 was proffered in this case. It is a letter from Dr Halchin, as commissioner of correctional police, to Mrs. Viviana Onaca, as director of international law and judicial cooperation in the Romanian Ministry of Justice. It cross-refers to another letter dealing with the guarantee of ‘a minimum personal space of 3m2 while serving the punishment, including the quarantine and observation period…’
Dr Halchin's letter details the ‘information on the detention conditions ensured to the persons undergoing the 21-day quarantine and observation period at Bucuresti-Rahova Penitentiary.’ It sets out the material conditions at Rahova, with at least one specific reference to what ‘each detainee’ will experience. It concludes in bold that ‘the National Administration of Penitentiaries guarantees that the prison punishment, including the quarantine and observation period, will be served in decent conditions which respect human dignity.’
Despite several promptings from the Administrative Court Office, however, the CPS did not file an application notice for the admission of Dr Halchin's assurance until the afternoon of 20 October 2022. We now know that the reviewing lawyer was on leave and the matter was overlooked.
The matter had come before Lane J at a renewal hearing earlier that day, 20 October 2022. He did not have the application notice so Dr Halchin's assurance was not admitted at that time. In any event the appellant submitted that Dr Halchin's assurance did not apply specifically to this appellant. In line with standard practice the Judicial Authority was not present at the renewal hearing to explain matters. Understandably, Lane J granted permission.
As well as Dr Halchin's assurance the Judicial Authority lodged a further application notice the following month, on 18 November 2022, the CPS having received it on 3 November 2022. It was in respect of what was described as an updated assurance. It was dated 19 October 2022. It is called ‘the October 2022 assurance’ in this judgment.
The October 2022 assurance is in a letter signed by chief commissioner of correctional police, Gabriel Paun, to Mrs Dana Roman,...
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Eduard Tabacaru v Iasi Court of Appeal Romania
...aspects to the reliability of the October 2022 assurance. The first is its coverage. For the reasons explained in Bobirnac v Romania [2023] EWHC 479 (Admin) the coverage of this assurance meets the requirements laid down in Marinescu as regards the minimum space which the appellant will occ......