Marian Gheorghe v Giurgiu District Court, Romania
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 10 March 2020 |
| Neutral Citation | [2020] EWHC 722 (Admin) |
| Date | 10 March 2020 |
| Docket Number | No. CO/2935/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 722 (Admin)
Mrs Justice Steyn DBE
No. CO/2935/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Ms H. Hinton (instructed by Coomber Rich) appeared on behalf of the Appellant.
Mr D. Sternberg (instructed by the CPS Extradition Unit) appeared on behalf of the Respondent.
Hearing date: 10 March 2020
This is an appeal against the decision of District Judge Fanning made on 24 July 2019 to order the extradition of the appellant to Romania. The appellant's extradition is sought pursuant to a European Arrest Warrant (“EAW”) issued by the respondent on 30 July 2017 and certified by the National Crime Agency on 30 August 2018.
The EAW is a conviction warrant. The appellant's extradition is requested to serve three years and six months' imprisonment (less about 56 days spent on remand) imposed by the Giurgiu District Court in Romania and upheld on 2 November 2017 by the Bucharest Court of Appeal. The EAW relates to three offences, namely (1) facilitating prostitution of a minor between September and October 2012; (2) handling stolen goods (namely, a motor vehicle) in November 2010; and (3) aiding and abetting the commission of an offence of creating false documents relating to the same vehicle in November 2010.
On 26 July 2019, the appellant applied for permission to appeal, contending that the district judge was wrong to have found that his extradition was compatible with Article 3 and Article 8 of the European Convention on Human Rights. On 5 December 2019, I granted permission to appeal limited to the issue raised pursuant to Article 3 of the ECHR. The appellant has not sought to renew his application for permission to appeal on the grounds of incompatibility with Article 8.
Preliminary applications
There are three preliminary applications before me. First, the appellant seeks an extension of time to file the hearing bundle and his skeleton argument. The order granting permission directed the appellant to lodge the hearing bundle and a skeleton argument 10 business days prior to the hearing date. That is by 25 February 2020. In the event, they were lodged on 4 March, together with an application for an extension of time. This is not an insignificant extension and the reasons given (namely, miscommunication between the appellant's representatives and work pressure) are not particularly satisfactory. However, it is clearly in the interests of justice, in all the circumstances, that I should consider the appellant's skeleton argument, as I have done, and the trial bundle. I grant the extension of time sought.
Secondly, on 29 January 2020 and 4 March 2020, the respondent filed and served further information from the Romanian authorities regarding the detention conditions in Rahova Penitentiary in Bucharest. The appellant's opposition to the admission of this information was initially in part because no formal application had been made, so on 6 March 2020 the respondent made a formal application to admit this further information. The appellant continues to strongly oppose the admission of this further information. I have decided to admit the information provided in January and the walking schedule, for reasons which I shall explain in due course.
Thirdly, the appellant has made an oral application today to adjourn the hearing, informal notice of the possibility of such an application having been given by counsel for the appellant, Ms Hinton, on 5 March 2020. The application made was made contingent on the admission of the information provided on 4 March 2020. I have decided not to accede to this application to adjourn, for reasons which I shall come to.
The legal principles
If it is shown that there are substantial grounds for believing that a requested person would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country, Article 3 of the ECHR implies an obligation on the contracting state not to extradite the requested person. Ill treatment must attain a minimum level of severity to offend Article 3.
In the prison context, treatment will offend Article 3 if the suffering or humiliation involved goes beyond the suffering and humiliation inherent in imprisonment as a legitimate punishment.
As a general rule, compliance with the standard laid down by the European Court of Human Rights in Muršic v Croatia [2017] 65 EHRR 1, as confirmed by the divisional court in Grecu v Cornetu Court (Romania) [2017] 4 WLR 139, requires that prisoners have a minimum personal space of 3 metres squared, not including any in-cell sanitary facility. Where the personal space available to a detainee is less than 3 metres squared, there is a strong presumption of a violation of Article 3: see Muršic at [124]. This weighty presumption may be rebutted where any reductions in personal space are minor, last only a few days, are accompanied by sufficient freedom of movement and out of cell activities and the conditions of detention are otherwise generally appropriate: see Muršic at [169].
The European Court of Human Rights held in Muršic at [106]:
“When inmates appeared to have at their disposal personal space measuring between 3 and 4 sq. m the Court examined the (in)adequacy of other aspects of physical conditions of detention when making an assessment under Article 3. In such instances a violation of Article 3 was found only if the space factor was coupled with other aspects of inappropriate physical conditions …”
The court continued at [139]:
“In cases where a prison cell — measuring in the range of 3 to 4 sq. m of personal space per inmate — is at issue the space factor remains a weighty factor in the Court's assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements …”
The effect of the pilot judgment of the European Court of Human Rights in Rezmives and Others v Romania (Application Nos. 61467/12, 39516/13, 48231/13 and 68191/13) is that effective assurances are required as to the conditions in which a requested person may be held in Romania so as to ensure that there is no real risk of ill treatment. Since Rezmives, assurances offered by the Romanian authorities have been accepted by the divisional court in Scerbatchi v First District Court of Bucharest, Romania [2018] EWHC 3612 (Admin) and The Baia Mare Court, Romania v Varga [2019] EWHC 890 (Admin).
As the Divisional Court explained in Varga at [24], applying the approach taken by the Court of Justice of the European Union in Criminal Proceedings Against Aranyosi [2016] QB 921 at [104] and by the Divisional Court in Georgiev v Bulgaria [2018] EWHC 359 (Admin) at [8(ix)] and Government of India v Chawla [2018] EWHC 1050 (Admin):
“… there is the strongest public interest in the effective operation of the system of extradition between Member States using the EAW system. The suspension of the presumption that Romania will provide effective production of the Convention rights of extraditees in their prisons does not in any sense detract from the desirability of operating this system effectively. The Aranyosi process of seeking specific further information and/or assurances is, in its fundamentals, an approach designed to ensure that the system can continue to operate. That is where the public interest lies.”
It is established that an assurance is not “evidence” for the purposes of section 29(4) of the Extradition Act 2003 (see Chawla at [31]) and the court is entitled to receive assurances at various stages of the proceedings, including on appeal (see Chawla at [30] and [55]).
The quality and reliability of any assurances given fall to be assessed by reference to the criteria identified in Othman v UK [2012] 55 EHRR 11 at [189], namely:
“(i) whether the terms of the assurances have been disclosed to the Court …
(ii) whether the assurances are specific or are general and vague …
(iii) who has given the assurances and whether that person can bind the receiving State …
(iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them …
(v) whether the assurances concerns treatment which is legal or illegal in the receiving State …
(vi) whether they have been given by a Contracting State …
(vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State's record in abiding by similar assurances …
(viii)...
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