The Court in Mures (1st Appellants) v The Bistrita-nasaud Tribunal, Romania (1st Respondent)
| Jurisdiction | England & Wales |
| Judge | and,Mr Justice Cranston |
| Judgment Date | 04 November 2016 |
| Neutral Citation | [2016] EWHC 2786 (Admin) |
| Docket Number | Case No: CO/2387/2016, CO/3889/2015 and CO/4067/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 November 2016 |
[2016] EWHC 2786 (Admin)
Lady Justice Sharp DBE
and
Mr Justice Cranston
Case No: CO/2387/2016, CO/3889/2015 and CO/4067/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ben Emmerson QC and Mr Ben Seifert (instructed by Coomber Rich Solicitors) for the 3 rd Appellant
Mr Edward Fitzgerald QC and Mr Graeme Hall (instructed by Shaw Graham Kersh) for the 2 nd Appellant
Mr Ben Emmerson QC and Mr Peter Caldwell (instructed by Coomber Rich Solicitors) for the 1 st Respondent
Mr Julian Knowles QC and Ms Julia Farrant (instructed by the Crown Prosecution Service) for the 1 st Appellants and the 2 nd and 3 rd Respondents
Hearing date: 11 October 2016
Approved Judgment
Introduction
This is the judgment of the court.
There are three applications before us. The first is an application by the Judicial Authority for permission to appeal pursuant to section 28 of the Extradition Act 2003 ("the 2003 Act") against the decision of District Judge Margot Coleman dated 8 August 2016. She ordered the discharge of Alexandru Zagrean from extradition proceedings pursuant to two Romanian European arrest warrants. The District Judge held that there were substantial grounds to believe that, if extradited, Mr Zagrean would face a real risk of treatment contrary to Article 3 of the European Convention on Human Rights ("ECHR" or "the Convention") by reason of the conditions in prison in Romania during an initial assessment period. The sole ground of appeal advanced is that the District Judge erred in this finding. On 21 September 2016, a rolled-up hearing was ordered in this case.
The second and third applications are by Petru Sunca and Stelian Chihaia. Mr Sunca challenges the decision of District Judge Baraitser, dated 5 May 2016, ordering his extradition to Romania. That is on the basis that the District Judge wrongly applied section 20 of the 2003 Act. Under that section, a person tried in his absence has to be given a right to retrial on return unless he was deliberately absent from the trial. Permission was granted by Lang J. Subsequently, Mr Sunca applied for leave to appeal on the additional basis of Article 3 ECHR non-compliant prison conditions. More recently Mr Sunca applied for leave to rely as well on Article 8 ECHR in the light of his partner's recent pregnancy.
As for Mr Chihaia, he challenges his extradition, ordered by District Judge McPhee on 13 August 2015 under section 20 of the 2003 Act. On 22 October 2015 he was given permission to appeal on that basis. On 17 June 2016, he was granted permission to amend his grounds of appeal to include a ground raising Romanian prison conditions under Article 3 ECHR.
Thus the key issues before us concern first, prison conditions in Romania and Article 3 ECHR and secondly, the application of section 20 of the 2003 Act.
Background
Alexandru Zagrean
Mr Zagrean's surrender is sought pursuant to two European arrest warrants. EAW 1 was issued on 11 November 2013 and certified on 15 December 2015. It is a conviction warrant in respect of a sentence of 3 years' imprisonment imposed on 21 November 2011 for one offence of trafficking for the purposes of prostitution. The offending took place between June and July 2005. EAW 2 was issued on 7 January 2014 and certified on 15 December 2015. It is a conviction warrant based on a sentence of six years' imprisonment imposed on 20 January 2012, of which four years six months and 27 days remain to be served. This conviction was in respect of conduct equivalent to trafficking for the purposes of prostitution and living off immoral earnings, which took place between late 2003 and February 2005.
In her judgment, the District Judge recorded that Mr Zagrean had served a number of prison sentences, including two years in Romania in 1990 for rape, two sentences of three years each in Italy in 2002 and 2003 for thefts and robbery, and a three year sentence in Germany from 2008 for rape.
The District Judge had before her an assurance about Romanian prison conditions dated 27 February 2015 ("the February 2015 assurance") from Dr Viviana Onaca of the Romanian Ministry of Justice. Dr Onaca stated that the guarantee given by the National Administration of Penitentiaries
"will be applied to every person surrendered from England and Wales to Romania, pursuant to a Romanian EAW after today's date and until further written notice."
The guarantee from the General Director of National Administration of Penitentiaries, Catalin Claudiu Bejan, reads as follows:
"The persons deprived of liberty will be detained in penitentiaries which will ensure exceeding 2 sqm of individual space if they execute the penalty to the semi-open or open regime and exceeding 3 sqm of individual space if they execute the penalty in the closed regime. We state that the individual space includes beds and furniture.
Where the percentage occupancy figures for any prison exceeds or may in the future exceed 100% the Romanian authorities nonetheless assure that the requested person personally will at all times be accommodated in a cell in which he/she will personally be provided with personal space in excess of two or three metres squared dependent on the regime in which he is detained."
The assurance followed 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").
In Blaj v. Court of Alesd, Romania [2015] EWHC 1710 (Admin), the Divisional Court (Aikens LJ and Simon J) held that the 27 February 2015 assurance was sufficient to dispel any doubts concerning whether there was a risk of a breach of Article 3 ECHR by reason of limited floor space in some Romanian prisons.
Following Florea I and II and Blaj, assertions were made by some extraditees from the UK who had kept in touch with their English solicitors that Romania was not complying with the February 2015 assurance. Evidence from the extraditees was adduced in the Westminster Magistrates' Court in the case of Rusu, to which we return. As a result, the Romanians sent a letter dated 14 June 2016 ("the 14 June 2016 letter"), signed by the General Director of the National Administration of Penitentiaries and the Chief Inspector for Penitentiaries. The letter was before the District Judge. It addressed the accommodation whilst in custody of those, previously extradited from the UK, who gave evidence in Rusu.
• Adrian Lupu was held in Bucharest-Rahova Prison from 10 November 2015 to 8 December 2015. It was decided then that he would serve his sentence in an open regime prison. He had approximately 2 square metres of personal space while in Bucharest-Rahova Prison. (There had been an earlier letter, not before the District Judge, which broke down the period for Mr Lupu's time in Bucharest-Rahova Prison: he had approximately 2.797 square metres of personal space between 10 November 2015 and 2 December 2015, and approximately 1.958 metres of personal space between 2 December and 8 December 2015.)
• Virgil Balan was held in Bucharest-Rahova Prison between 23 February 2016 and 25 March 2016. It was decided that he would serve his sentence in a closed regime prison. He was transferred to Iasi Prison in order to 'settle judicial affairs.' He had approximately 2 square metres of personal space in Bucharest-Rahova Prison, and 1.37 square metres of personal space in Iasi Prison.
• Marius Secanu was held in Bucharest-Rahova Prison between 8 December 2015 and 15 January 2016. It was then decided that he would serve his sentence in a closed regime prison. He was transferred at his own request to Galati Prison on 15 January 2016, where he remained until he was transferred back to Bucharest-Rahova Prison on 22 March 2016. He had an average space of 2.2 square metres in Bucharest Rahova, and 1.84 square metres in Galati Prison.
• Virgil Timis, who was extradited prior to the assurance, was detained in Bucharest-Rahova Prison between 4 July 2014 and 21 August 2014, where he had between 2.44 and 3.21 square metres of space. He was then transferred to Arad Prison, where he was held in an average space of 4.35 square metres between 21 August 2014 and 30 April 2016. Since 20 April 2016 he had been held in Timisoara Prison with between 2.84 to 3.89 square metres of space.
• Valentin Puica had 3.51 square metres of personal space in Bucharest-Rahova Penitentiary between 6 August 2015 and 27 August 2015. He was then held in Arad Penitentiary, which is not overcrowded.
The 14 June 2016 letter explained that following extradition there is a so-called "quarantine and observation period". During that period, an assessment is made of the regime in which a person is to be held for his sentence. The letter said that during that period it "is not possible" to comply with the 3 square metre and 2 square metre minimum area of space.
The letter then went on to provide details of the space available in Bucharest-Rahova Penitentiary, which is where requested persons are held during the quarantine and observation period. The prison has a legal capacity of 1063 prisoners, based on 4 square metres per inmate. On 10 June 2016 there were 1346 inmates, which resulted in an occupancy rate of 126.62%. The letter acknowledged that there was...
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