R Florea v Authority of Care Courthouse Saru
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake:,Mr Justice Blake |
| Judgment Date | 27 November 2014 |
| Neutral Citation | [2014] EWHC 4367 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11010/2013 |
| Date | 27 November 2014 |
[2014] EWHC 4367 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Blake
CO/11010/2013
Mr D Josse QC & Mr B Keith (instructed by Virdees) appeared on behalf of the Claimant
Mr M Summers QC A Payter (instructed by CPS) appeared on behalf of the Defendant
On 30th July 2014 this court constituted as a Divisional Court of the Administrative Court, handed down its judgment in this appeal from the decision of District Judge Rivlin, whereby he ordered the appellant's return to Romania on a conviction warrant to serve a sentence of three years with the neutral citation of [2014] EWHC 2528 (Admin).
The issue in substance between the parties was whether the overcrowding in prisons in Romania is such that there were substantial grounds to fear a real risk of a breach of Article 3 ECHR in the event of the appellant being returned to Romania to complete his sentence. The court said
"6. 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. …..
…..
39. The appeal has been conducted in the light of the appellant's probable placement in Satu Mare prison. We are satisfied that to return a prisoner to serve a three years sentence in a collective cell where the personal space is in the order of 1.56 metres, whatever the precise arrangements for deployment of furniture itself would amount to a violation of Article 3. If that had been the only prison to which he could have been returned we would, therefore, have allowed the appeal outright.
40. However, there is at least the possibility of the appellant being returned to the semi-open part of Oradea prison where the occupation rate is calculated on the two square metre criterion, and present data suggests that there is under-occupancy. Recent changes may cause that under occupancy to be maintained in the future. In those circumstances we would not be satisfied as to the existence of substantial grounds of an Article 3 risk if the appellant were to serve his sentence in a semi-open prison with more than two metres of personal space.
……
44. We therefore propose to answer the issue arising in this appeal in the following way. We conclude that it would be a breach of this appellant's human rights if he were to be returned to serve his sentence in any prison where he had two square metres or less of personal space. If the state were able and willing to provide undertakings that the appellant would serve his sentence in semi-open conditions in a cell where he had personal space in excess of two metres, we would not be satisfied that there where substantial grounds for believing that there was a real risk of a violation of Article 3 by reason of overcrowding."
The court thus indicated that it would be a breach of the appellant's human right to serve his sentence in any prison where he had less than two squares metres personal space and that the undertaking sought was in respect of semi-open conditions and a cell that was in excess of two square metres.
The court's concern was with semi-open conditions because that was the focus of the contested issues debated between the parties. This was the case for two reasons. First, in a submission dated 6th June 2014, the responsible officer of the Ministry of Justice in Romania had stated that according to Article 36 of the Law 2547/2013 the closed regime is initially applied to persons sentenced to more than three years' imprisonment but under 30 years and according to Article 37 of the same law the semi-open regime is applied to persons sentenced to more than one years' imprisonment without exceeding three years' imprisonment.
Since this appellant was sentenced to three years' imprisonment and as far as that can be calculated that is the time that he has to remain to be served, the common assumption of the parties and the court was that three years was not more than three years, accordingly the semi-open regime is applied even though the terms of the law there being recited refers to "initially applied". There are other indications in the same documents that that is a case. Elsewhere it says:
"According to the provisions of Article 37 of Law 254/2013, the half-open type of imprisonment is initially applied to persons sent to imprisonment exceeding 1 year but no more than 3 years."
The second reason why the court's attention in July was focused upon the problems of overcrowding in semi-open prisons was that the skeleton argument submitted on behalf of the requesting State by Mr Summers QC was based on his understanding at the time that the initial allocation specified in Articles 36 and 37 will also apply (absent exceptional circumstances) to the subsequent allocation of prison in which the remaining sentence after the 30 days initially is to be served. That assumption was not challenged by Mr Josse QC, appearing for the appellant, and the court therefore dealt with the matter on the basis of the agreed issues as defined by the parties.
For those reasons no consideration was given by this court to the possibility of services of a part of the sentence by this appellant in closed conditions either during an initial assessment period or after.
On 29th August the Ministry of Justice of Romania, through its Director of International Law and Judicial Co-operation (Mrs Onaca), responded both to this court's judgment as a whole and to its request for assurances. In the earlier part of the document it pointed out that this court had proceeded in error in assuming that the appellant would be serving a sentence throughout in semi-open conditions.
Two points were taken. First, it is now said that Articles 36 and 37 were different in terms to the way they were described in the June document and that the closed regime is applied to persons sentenced to three years or more and the open regime is limited to people under three years' imprisonment.
On that sub issue the appellant's expert, Miss Hatneanu, responded on 17th October 2014, pointing out that this revised view of what the two Articles said was an error. On the face of the information now before the court that may well be right because on 14th November 2014 further representations were made by the government of Romania which included an English translation of the two Articles in question which seemed to correspond with what this court was being told initially, namely, closed conditions if it is imprisonment for more than three years and open if it does not exceed three years. As a matter of ordinary language three years is not more than three years.
However, on the second issue, namely what happens once a prisoner moves beyond the 30 day assessment period governed by Articles 36 and 37, the position is different. Mr Summers QC accepts that he misunderstood then position and therefore inadvertently misled the court in his skeleton argument. With the benefit of hindsight, it does appear that this court was informed by Mrs Onaca that the decision as to where a sentence is served after the initial period of assessment is governed by Article 39 of the same law. The place of service of the custodial sentence is established by the relevant authority upon its first session after the end of the quarantine or observation period when a number of factors are to be considered, including but not confined to the length of the custodial sentence. The sentenced person may file a complaint to the judge supervising the sentence against the decision of the commission. It is also relevant to the view of the Romanian law that has now been clarified by the subsequent observations of August 2014 that in June 2014 the court was told the following:
"The convict … serve his sentence at Satu Mare Prison if his half open prison, established or at Oradea Prison if he were to serve a sentence in a closed regime."
That perhaps should have been sufficient to have alerted all that there was that possibility of serving a sentence in a closed regime.
Returning now to the 29th August representations, the court is informed that for a person who has three years or more to serve it is likely that a closed regime would be applied. However, it is possible that a semi-open regime could be applied if exceptional factors exist. If a closed regime is applied at this stage the regime is likely to apply to the appellant for one-fifth of the sentence. After that period elapses the regime would have been reviewed again. At that stage it is likely he will be transferred to a semi-open regime.
With that clarification of evidence concerning the legal regime that exists in Romania the allocation of prisons to the type of penal institution and type of the regime the letter then reverts to the question of the assurances. It continues as follows:
"Because the system described above is designed to allow the most appropriate rehabilitation programme implied to the imposition, it is...
To continue reading
Request your trial
-
The Court in Mures (1st Appellants) v The Bistrita-nasaud Tribunal, Romania (1st Respondent)
...decisions of this court in Florea v. Romania [2014] EWHC 2528 (Admin), [2015] 1 WLR 1953 (" Florea I"), and Florea v. Romania [2014] EWHC 4367 (Admin) (" Florea II"). 11 In Blaj v. Court of Alesd, Romania [2015] EWHC 1710 (Admin), the Divisional Court (Aikens LJ and Simon J) held that the ......
-
Cristian Ioan Blaj and Others v Court of Alesd, Romania and Others
...considered twice in the High Court in Florea v Romania [2014] EWHC 2528 (Admin), which we will call " Florea 1" and Florea v Romania [2014] EWHC 4367 (Admin), which we will call " Florea 2". Florea 1 was listed in November 2013 to be a "lead case on Romanian prison conditions": see [4] of t......
-
Andras Seprey-Hozo v Law Court of Miercurea Ciuc, Romania
...in this court on Romanian prison conditions such as Florea v. Romania [2014] EWHC 2528 (Admin) (" Florea I") and Florea v. Romania [2014] EWHC 4367 (Admin) (" Florea II"). In summary, it guarantees that every person surrendered from Britain to Romania, pursuant to an EAW, will occupy the mi......
-
The Baia Mare Court, Romania v Dumitru Turcanu
...in Stanciu v Romania (2012) (App. No. 5972/05) 24 July, Florea v Romania (No 1) [2015] 1 WLR 1953, and Florea v Romania (No 2) [2014] EWHC 4367 (Admin), Blaj v Romania [2015] EWHC 1710 (Admin), Zagrean and Sunca v The Court in Mures and Others [2016] EWHC 2786 12 In 2017, following the ......
-
The implementation of the CJEU’s Joined Cases Aranyosi and Caldararu by the UK and Irish Courts – A real impact on the protection of fundamental rights in surrender proceedings?
...(n 44), paras 71-75.62. See Chiriac and others v Romania [2016] ECHR 246.63. [2015] EWHC 1710 (Admin).64. [2014] EWHC 2528 (Admin).65. [2014] EWHC 4367 (Admin).66. Blaj v Court of Alesd, Romania [2015] EWHC 1710 (Admin) [20], [22].Gilbert 321 Wales pursuant to the respective Hungarian EAWs,......
-
The implementation of the CJEU’s Joined Cases Aranyosi and Caldararu by the UK and Irish Courts – A real impact on the protection of fundamental rights in surrender proceedings?
...(n 44), paras 71-75.62. See Chiriac and others v Romania [2016] ECHR 246.63. [2015] EWHC 1710 (Admin).64. [2014] EWHC 2528 (Admin).65. [2014] EWHC 4367 (Admin).66. Blaj v Court of Alesd, Romania [2015] EWHC 1710 (Admin) [20], [22].Gilbert 321 Wales pursuant to the respective Hungarian EAWs,......