Marian Dorin Pojega v Bihor Court (Romania)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles,Lady Justice Nicola Davies |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWHC 997 (Admin) |
| Docket Number | Case No: CO/335/2023 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 997 (Admin)
Lady Justice Nicola Davies
Mr Justice Julian Knowles
Case No: CO/335/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rebecca Hill (instructed by Tuckers Solicitors) for the Appellant
Reka Hollos (instructed by CPS) for the Respondent
Hearing date: 25 April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 5 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal under Part 1 of the Extradition Act 2003 (EA 2003) against the order for the Appellant's extradition to Romania made by District Judge Clews on 24 January 2022. I granted permission on 11 January 2023.
The single ground of appeal on which permission was granted is in relation to Article 3 of the European Convention on Human Rights (the ECHR) in relation to prison conditions. Other challenges to the Appellant's extradition arrest warrant have now fallen away.
Article 3 provides that. ‘No-one shall be subjected to torture or to inhuman or degrading treatment or punishment’. The test is whether the defendant has shown that there are strong grounds for believing that, if returned, s/he will face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment contrary to Article 3: see R (Ullah) v Special Adjudicator [2004] AC 323, [24].
It is well-established that prison conditions in a requesting extradition state can lead to a violation of Article 3. In particular, it was held by the European Court of Human Rights in Mursic v Croatia [2017] 65 EHRR 1 that, in order to comply with Article 3, an individual must, in prison, have an individual sleeping space in the cell, of at least 3m 2 of floor space.
The risk of an Article 3 violation on account of prison conditions can be removed by an appropriate assurance from the requesting state.
This appeal was stayed pending the judgment of the Divisional Court in the lead cases of Marinescu and others v Udecatoria Neamt (Romania) [2022] EWHC 2317 (Admin), considering the adequacy of the Romanian assurances which had been offered in that case. Judgment was handed down on 12 September 2022. The appeals were dismissed, and the assurances offered about prison conditions were found to be sufficient to dispel any risk of a violation of Article 3. We will return to this decision later.
This appeal concerns an assurance from Romania from December 2022 (the December assurance) offering certain guarantees about the treatment the Appellant will receive in Romania if he is extradited.
In a helpful ‘Statement of Position’ dated 12 April 2023 Ms Hill on behalf of the Appellant set out her client's position as follows: (a) he makes no concessions regarding the admissibility of the December assurance and invites the Court to rule upon its admissibility, however no submissions in opposition are to be advanced; (b) should the Court refuse the Respondent's application, the Appellant will maintain that, for the reasons addressed in Marinescu, the assurance served at first instance is inadequate to address the real risk of inhuman and degrading treatment by reason of prison conditions in Romania.
At the hearing on 25 April 2023 we granted the Respondent's application dated 7 February 2023 to admit the December assurance. Ms Hill realistically accepted that if we were to take that course, then she could not advance any positive submissions on the substance of the appeal.
We dismissed the appeal, and said we would put our reasons in writing for admitting the assurance and for dismissing the appeal. This we now do.
For the reasons which follow I was satisfied that it was in the interests of justice to admit the December assurance, and that it does dispel any risk of an Article 3 violation, and for that reason the appeal should be dismissed.
Factual background
The Appellant has been convicted of one offence in Romania, namely that between 2014–2015, he took bribes. He was sentenced to four years and six months imprisonment, all but one day of which remains to be served.
The background to the offence, in brief, is that the Appellant was a police officer in Bihor County who, at the relevant time, acting together with another, requested and obtained sums of money from the drivers of two vehicles that had been stopped under the pretext of having committed road traffic violations (namely, speeding) in exchange for the return of their travel documents and the payment of sums of money.
The Appellant was summoned to court and appeared in person for his trial. It appears the first hearing took place on 12 June 2015, at which the arrest decision was ‘verified’ and he was placed under house arrest. He was then found guilty on 2 December 2020 at Bihor Court and was sentenced to five years imprisonment.
That decision was made final by the Oradea Appeal Court on 22 July 2021, which reduced the sentence to four years and six months imprisonment. The arrest warrant which forms the basis of these extradition proceedings was issued the same day.
Background to this appeal
In the court below one of the grounds on which the Appellant resisted extradition was Article 3/prison conditions.
The district judge addressed that argument at [51]–[66] of his judgment. At that point the Respondent was relying on an assurance dating from September 2021 in relation to the Appellant.
At [51]–[52] the judge said:
“51. In relation to Article 3 it is for the RP [requested person, ie, the defendant] to show that there are substantial grounds for believing that, if returned to Romania he will face a real risk of treatment which violates Article 3. The test was encapsulated in the case of Elashmawy v Brescia Italy [2015] EWHC 28 (Admin) at para 49 “Article 3 imposes absolute rights, but in order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. In general a very strong case is required to make good a violation of Article 3. The test is a stringent one and it is not easy to satisfy.”
52. It was held in the case of Mursic v Croatia [2017] 65 EHRR 1 that in order to comply with Article 3 an individual must, in prison, have an individual sleeping space in the cell, must have at least 3 sq m of floor space and the overall floor surface of the cell must be such as to allow detainees to move freely between furniture. [see Ananyev v Russia] Mursic v Croatia also held that where personal space in multi occupancy accommodation falls below 3 sq m there is a strong presumption of a violation of Article 3 but the presumption can be rebutted if reductions in the required minimum space are ‘short, occasional and minor’; there is sufficient freedom of movement outside the cell and adequate out of cell activities; and the person is held in what is, when viewed generally, an appropriate detention facility and there are no other aggravating aspects of the conditions of his detention.”
He continued at [53]–[56]:
“53. There is a strong, but rebuttable, presumption that a signatory to the European Convention will abide by its obligations. In Grecu v Romania [2017] EWHC 427 (Admin) the RP sought to avoid extradition on grounds relating to prison conditions. The JA submitted the court could rely strong presumption that Romania would fulfil its Convention obligations. The court did not accept that submission and found it had been rebutted by the pilot judgement of the ECtHR in the pilot judgement of Rezmives v Romania delivered on 25.7.17. It further found, on the facts, the assurances given by the JA did not guarantee sufficient personal space in accordance with Mursic. Since Rezmives, in all cases involving extradition to Romania it has been necessary for a prison assurance to be provided.
54. There have since been a number of cases in which assurances in relation to Romanian prison conditions have been considered culminating in the recent case of Adamescu v Romania [2020] EWHC 2709 (Admin). It is of note that the Court in hearing the appeal allowed fresh evidence to be given by 2 persons who had recent experience of prison conditions in Romania both of whom had been extradited to serve sentences in 2017. The judgement refers to recent decisions of the Divisional Court which upheld assurances given by Romania in the cases of Scerbatchi v Romania [2018] EWHC 3612 (Admin) and Baia Mare Court v Varga and Turcanu [2019] EWHC 722 (Admin). At paragraph 165 of the judgement (jointly given by Holroyde LJ and Garnham J) their Lordships said “In this case the respondent has not attempted to put forward clear evidence of a material improvement in prison conditions generally, such that the view taken in Rezmives should no longer be followed. In those circumstances the appellant was, and is, able to show that, absent sufficient and reliable assurances by the respondent, there are strong grounds for believing that he would, if returned to Romania, face a real risk of treatment which violates Article 3. It is therefore necessary to focus, in considering this ground, on whether the respondent has given assurances which satisfy the court that the appellant will be held in conditions which comply with Article 3.”
55. Their Lordships added at paragraph 170 “It is in our view implicit in [the DJ's] judgement that he recognized that the respondent could not rely on a presumption of compliance with Article 3 in relation to prison conditions and that appropriate assurances were necessary.”
56. It is therefore beyond doubt that in cases involving Romania a prison assurance is required. Such has been the case since the pilot judgement in Rezmives (see below)....
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...the time limit laid down for its supply, this may be a reason for refusing to admit the assurance on appeal.” 53 In Pojega v Romania [2023] EWHC 997 (Admin) [35]–[36], the Divisional Court said: “35. The High Court has an inherent jurisdiction to receive fresh evidence or information (incl......