The Baia Mare Court, Romania v Dumitru Turcanu
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mr Justice Stuart-Smith |
| Judgment Date | 10 April 2019 |
| Neutral Citation | [2019] EWHC 890 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3623/2018 and CO/2784/2018 |
| Date | 10 April 2019 |
and
and
[2019] EWHC 890 (Admin)
Lord Justice Irwin
Mr Justice Stuart-Smith
Case No: CO/3623/2018 and CO/2784/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Summers QC and Daniel Sternberg (instructed by The Crown Prosecution Service) for the 1st Appellant and 2nd Respondent
Edward Fitzgerald QC and David Williams (instructed by Jung & Co Solicitors) for the 1st Respondent
Edward Fitzgerald QC and Émilie Pottle (instructed by Kaim Todner Solicitors Ltd) for the 2nd Appellant
Hearing dates: 27 March 2019
Approved Judgment
Introduction
In these conjoined appeals the Court is concerned with the potential infringement of Article 3 ECHR represented by Romanian prison conditions. The cases in some ways represent two sides of the same coin. The original assurances as to personal space and conditions given to each potential extraditee are in identical language in the original Romanian, although there are some variations in the English translations which have been furnished. If extradited, each man is likely to begin with an initial period of 21 days in Bucharest Rahova Penitentiary. No complaint is now made of conditions there. After that period, Varga will probably be transferred to Baia Mare Prison to serve the remainder of his sentence in the “semi-open” and then the “open” regime. Following the initial three weeks, Turcanu will probably be transferred to Târgu Jiu Prison, again to serve the remainder of his sentence in the “semi-open” and “open” regimes.
On 11 July 2018, Stefan-Geza Varga was discharged by District Judge Crane on Article 3 grounds. The Baia Mare Court, Romania appeals that decision. On 11 September 2018, Dumitru Turcanu's extradition was ordered, the judgment being given by District Judge Goozée. The Târgu Jiu Court, Romania resists that appeal. For clarity, I will refer to “Varga”, “Turcanu” and “Romania” throughout.
A central consideration in each case has been the adequacy of the assurance offered as to a minimum 3m 2 of personal space, so as to ensure compliance with the standard laid down by the ECtHR in Muršic v Croatia (2017) 65 EHRR 1 as confirmed by the Divisional Court in Grecu v Cornetu Court (Romania) [2017] 4 WLR 139. As will become clear, matters developed further in the case of Turcanu.
The Appellant Turcanu seeks leave to introduce fresh evidence in the form of expert reports from a Romanian lawyer and academic Dr Radu Chirita as to the conditions in Târgu Jiu Penitentiary. That application is resisted by Romania.
Turcanu: Notice of Appeal
The Appellant Turcanu failed to serve his notice of appeal on the Crown Prosecution Service in time. It is accepted that his solicitors chose not to use the standard secure email, mistyped the CPS email address, and failed to follow-up. However, since the Administrative Court Office notified the CPS of the appeal, Romania takes no issue on jurisdiction and makes no objection to Turcanu's application for relief from sanctions.
Romania took this approach on the following basis. Noting that Turcanu had failed to serve his Notice on time and thus to comply with Section 26(4) of the 2003 Act, and noting that there had been technical errors in his solicitor's attempted service, Romania further noted that an appellant cannot rely on the errors of his own lawyer to found an application to extend time, see Szegfu v Court of Pecs, Hungary [2016] 1 WLR 322. However, Romania took account of the fact that the Administrative Court staff (following their usual practice) notified the CPS of the existence of the appeal within the requisite period. Romania has taken the view, in the light of the “generous view” to be afforded to the meaning of “notice of appeal” as expressed by Lord Mance in Pomiechowski v District Court of Legnica, Poland [2012] 1 WLR 1604, at paragraphs 18–20, that they will accept this Notice, in this case. Hence, they waive any point on Notice.
In written submissions, Turcanu has argued that following this concession “the key test from now [on] is whether the Appellant or his lawyers lodge an application within time with the Court”. This is clearly a misconceived submission. No concession of this kind as to Notice can be the basis of such a change. Nor is it proper that a significant alteration of the law should be said to derive from a concession, in the absence of argument on the point. Practitioners should clearly understand that the obligation to serve a Notice of Appeal on a respondent subsists. Informing the Court office cannot be treated generally as a substitute form of Notice. Nor can this Respondent's concession be taken in some fashion to have undermined or varied the decision of the Divisional Court in Szegfu.
Facts and Procedural Background
In both cases, assurances have been given both before and after the decision below. In each case, therefore, it is helpful to follow the development of the case from the beginning up to the hearing before us.
Varga
The European Arrest Warrant [“EAW”] was issued in this case on 7 February 2018 and certified by the National Crime Agency [“NCA”] on 26 February 2018. Varga was arrested in May 2018, appearing before the Westminster Magistrates on 14 May 2018. The EAW relates to two offences, both offences of drink driving. The first occurred in February 2012 and the second on 29 September 2015. The Respondent Varga was present at his trial and was sentenced to one year eight months imprisonment, all of which remains outstanding.
Varga came to the United Kingdom in May 2017. The District Judge found that he had been illegally at large since 29 May 2017. He was joined in the UK by a partner and their son later that year. He has since found work and has family members living in England. The Respondent Varga accepted before the Magistrates' Court that he was a fugitive. He sought to avoid extradition on two grounds, an Article 8 claim which was rejected, and an Article 3 claim based on prison conditions in Romania.
For a number of years, Romania has accepted that systemic problems of overcrowding in the Romanian prison estate meant that the courts of the United Kingdom have required assurances as to the personal space to be afforded to prisoners extradited to Romania, see the general judgment of the ECtHR 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 (Admin).
In 2017, following the decision in Strasbourg of Muršic, the ECtHR gave a pilot judgment concerning Romanian prisons in Rezmives v Romania (App. No. 61467/12) 25 April 2017, noting the general difficulties of overcrowding and poor conditions in Romanian prisons and indicating that pending the success of the Romanian government's strategy to improve conditions, specific assurances would be necessary. Finally, in the decision in Grecu, the Divisional Court ruled that assurances in respect of minimum personal space had to comply with the decision of Strasbourg in Muršic.
It was against that backdrop that the original assurance in the case was given. Since the assurance in relation to the quarantine and observation period is no longer in issue, I will omit any reference to that. In relation to the period thereafter, the assurance in the translation advanced in the Varga case was as set out below. The assurance came from Dr Viviana Onaca, the Director of the Directorate of International Law and Judicial Cooperation, Ministry of Justice. The critical passage read as follows:
“ Given the perspective to implement the measures contained in the “Calendar of measures for 2018–2024 for solving prison overcrowding and detention conditions”, the National Administration of Penitentiaries may guarantee, at present, a minimum individual space of 3 square meters throughout the execution of the penalty, including bed and furniture.
In the event the number of convicts registers significant increase, the National Administration of Penitentiaries will inform the Ministry of Justice about the change of the operative situation, with consequences on the guarantees provided.”
In the course of her decision, DJ Crane rejected Varga's Article 8 claim, but as I have indicated upheld the claim on Article 3. Having properly directed herself as to the necessity of personal assurance, DJ Crane recited the parts of the assurance, including the passage I have quoted above. She noted that the submissions on behalf of Varga were that “the assurance is inadequate. The use of the words ‘assume’ and ‘may’ means that the assurance is not a clear statement of intent and provides no guarantees.”
DJ Crane then properly directed herself as to the criteria for assessing assurances laid down in Othman v UK (2012) 55 EHHR 1 and concluded as follows:
“17(e) The National Administration of Penitentiaries is unable to ensure that conditions will remain article 3 compliant through the duration of the RP's sentence. They say that they “may” guarantee and then have a mechanism for notifying the Ministry of Justice about any changes and the impact on the guarantees. However, this is insufficient to guarantee that the RP will be held with at least 3 sq.m. of personal space throughout his sentence.
…
18. Whilst the details provided of the conditions during any quarantine period and the conditions in Baia Mare Penitentiary would provide 3sq.m of personal space. The assurance does not provide a guarantee that if the RP is held in other institutions that he will have 3...
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