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Cite as: [2016] EWHC 2786 (Admin)

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		Neutral Citation Number: [2016] EWHC 2786 (Admin)
		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

04/11/2016

B e f o r e :

LADY JUSTICE SHARP DBE
and
MR JUSTICE CRANSTON
____________________

Between:

	The Court in Mures and The Bistrita-Nasaud Tribunal, Romania	1st Appellants
	- and -
	Alexandru Zagrean	1st Respondent
	Petru Sunca	2nd Appellant
	- and -
	Iasi Court of Law, Romania	2nd Respondent
	Stelian Chihaia	3rd Appellant
	- and -
	Bacau Court of Law, Romania	3rd Respondent

____________________

Mr Ben Emmerson QC and Mr Ben Seifert (instructed by Coomber Rich Solicitors) for the 3rd Appellant
Mr Edward Fitzgerald QC and Mr Graeme Hall (instructed by Shaw Graham Kersh) for the 2nd Appellant
Mr Ben Emmerson QC and Mr Peter Caldwell (instructed by Coomber Rich Solicitors) for the 1st Respondent
Mr Julian Knowles QC and Ms Julia Farrant (instructed by the Crown Prosecution Service) for the 1st Appellants and the 2nd and 3rd Respondents
Hearing date: 11 October 2016
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Mr Justice Cranston:

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 overcrowding and stated that the prison administration was taking measures to diminish overcrowding and its effects, including distributing detainees throughout the prison, in accordance with age and prison regime, diversifying the daily timetable of activities, as well as providing adequate ventilation in the summer months and ensuring adequate sanitation.

The final document before the District Judge was a letter dated 24 June 2016 ("the 24 June 2016 letter"). It was signed by the General Director of the National Administration of Penitentiaries and the Chief Inspector for Penitentiaries. It stated:

"The National Prison Administration guarantees to the foreign authorities that it ensures in the detention rooms a minimum space between 2 and 3 square metres, in which the bed and furniture pertaining to it are included, except for the cases in which the inmate has to be transferred to another prison.

This means that the guarantees were provided, except in exceptional situations namely:

1. The inmates are summoned to appear before the judicial authorities which are competent for other prisons;

2. The person in question could be transferred to another prison upon the person's own request which has to do with family reasons;

3. Confinement in a prison-hospital or hospital which belongs to the Ministry of Health, having regard to the inmate's state of health."

The 24 June 2016 letter explained the circumstances in which Virgil Balan and Marius Secanu were transferred to prisons where they were kept in under two square metres: Mr Balan was transferred for the purpose of court proceedings, and Mr Secanu was transferred to Galati Prison at his own request. It stated:

"In both cases the reasons which accounted for the transfer of the two inmates to the respective prisons belong to the category of exceptional situations in relation to which the Romanian authorities have reserves in what concerns the guarantees referring to the minimum individual space ensured in detention rooms.

Obviously, such situations are temporary. The National Prison Administration requested the administration of the two prisons to make efforts to ensure a minimum individual space of 2-3 square metres, however without discriminating the other inmates who do not complain about the violation of accommodation regulations…

If this is not possible, after the reasons which required the transfer of the inmates to these prisons cease to exist, transfer proposals shall be made, taking into consideration also the option of the convicted person.

We would like to reiterate the fact that in our opinion the guarantees provided cannot supersede the convicted person's legitimate will. It has to be taken into consideration that the transfer of inmates to other prisons (at a relatively considerable distance from the domicile) can affect the relationships with the support environment and to a large extent the social reintegration process.

We think that the transfer of an inmate against his own will or the rejection of his requests to be transferred to a prison which is located in the area where the inmate's family reside can be considered inappropriate treatment."

The District Judge based her decision to discharge Mr Zagrean on her findings in relation to the initial quarantine and observation period in Bucharest-Rahova Prison, where as with other extraditees Mr Zagrean would be held on arrival into the Romanian prison estate. She referred to the passage in the letter that the observance of the minimum space guarantees was "not possible" during this period. On that basis she found that conditions during the quarantine and observation period did not comply with the terms of the assurance of 27 February 2015. The evidence in the 14 June 2016 letter was that Bucharest-Rahova Prison was overcrowded "by 26%". She concluded that the average time of detention in quarantine was four weeks. She held:

"35. In all other regards the investigation into the detention conditions of the prisons involved is satisfactory… However I consider that the period of time during which this defendant will initially be held at Bucharest-Rahova Prison, before being transferred elsewhere, is a sufficiently lengthy one such there is a real risk that he will suffer... treatment which is in breach of Article 3."

Petru Sunca

An EAW for Mr Sunca was issued by the Iasi Court of Law, Bacau, Romania on 18 July 2014 and certified by the National Crime Agency on 24 October 2015. This EAW was withdrawn on 12 April 2016. It appears that Mr Sunca was re-arrested on the same date on a second EAW. This was issued on 1 April 2016 and certified by the National Crime Agency on 5 April 2016. It is in respect of two sentences. The first was imposed for three offences of dwelling house burglary between December 2004 and 13 February 2005. In two of these burglaries he acted with others, in the third, he acted alone. On 14 November 2007, he was sentenced for the three burglary offences to one year's imprisonment, suspended for three years, a sentence which became final on 5 March 2009 after appeal periods expired.

The second sentence was imposed for an offence of driving without a licence on 9 December 2011. The warrant states that a punishment of 14 months' imprisonment was imposed for that offence. That was merged with a sentence of four months imposed for the earlier offending, giving a total sentence of eighteen months. The warrant states that the sentence for the driving offence became final through a lack of appeal on 24 June 2014. It also states that Mr Sunca did not appear at this trial; that he was summonsed in person at all his hearings, informed of when and where they were to be held and warned that a decision could be handed down in his absence; that he did not request a retrial or appeal within the applicable period; and that he had not been personally served with the decision but would be on surrender.

There was further information from the Romanian Judicial Authority before the District Judge dated 3 December 2015, that the day after the driving offence, 10 December 2011, Mr Sunca admitted it to the police. The further information added that Mr Sunca did not appear before the court but a lawyer acting ex officio appeared on his behalf. It continued:

"[T]he accused appeared before the court in the criminal lawsuit stage of the criminal trial, respectively on 10 December 2012, date when the criminal investigation authorities took the recorded statement of the accused with regard to the offenses… [He] was informed with regard to the criminal sentence rendered through the mail of the court resolution to his address of residence of Sat Breazu, comună Rediu, județul Iasi, declared by the accused in the criminal lawsuit stage of the criminal trial and registered with the electronic database of vital statistics, as well as through its posting on the door of the court…"

The further information of 3 December 2015 stated that under a provision of the Criminal Code, Mr Sunca had been informed that if, during his probation period he committed a new offence, his suspended sentence could be activated. He had not observed that condition. Under another provision of the code, he had to inform the Judicial Authority of a change of address within three days. He had that obligation "as of the date of the beginning of the criminal lawsuit, respectively the date of 17 April 2012 and up to the completion of the criminal case…" Mr Sunca, the further information concluded, could be considered a fugitive.

There was yet further information dated 31 March 2016. It stated:

"According to the legal provisions in force, the criminal lawsuit stage is a distinct stage which is part of the structure of the criminal trial, delimited through certain procedural acts. We thus draw the conclusion that the criminal lawsuit stage of 10 December 2012 was part of the criminal trial, completed through the rendering of the court ruling of conviction, namely the criminal sentence no.1437 of the New Criminal Procedure Code of 27 May 2014 of Iasi Court of Law, remained final by lack of appeal, as of 24 June 2014."

Later the Judicial Authority corrected the date of 10 December 2012 in both this and the 3 December 2015 further information to 10 December 2011: the error was attributable, it stated, to the date Mr Sunca had given in his handwritten statement.

The further information dated 31 March 2016 added that during the trial it was not possible to present evidence against Mr Sunca, since he was unjustifiably absent having been summonsed, his unjustified absence determined by the fact that he avoided the criminal lawsuit. The further information then referred to the retrial right for those tried in their absence set out in Article 466 of the Criminal Procedure Code. According to Article 466.2, a person has that right if he had not been summoned to appear before the court. If a person applies for a retrial the court would decide whether he had the entitlement.

The District Judge set out the evidence Mr Sunca gave before her. He accepted that he was at court when sentenced for the burglaries in 2009. As to the proceedings for the offence of driving without a licence, his account was that after he agreed to compensate the owner of the vehicle he damaged in the course of the offending, the police told him that he was free to go. He heard no more about the case until a friend in Romania informed him in August 2014 that the police were looking for him. His account to the District Judge was that after the period the suspended sentence expired in April 2012 he left for Ireland, later moving to the UK. The District Judge added:

"When he was given his suspended sentence he told the authorities his actual address. He accepted, however, that when he signed the police statement in December 2011, the address on the statement was the false one, and he had signed the statement as true."

Later, in the analysis section of her judgment, the District Judge recounted that the Judicial Authority had the burden of establishing to the criminal standard that Mr Sunca was deliberately absent from his trial, that high trust had to be placed in the statements of the Judicial Authority and their position was clear, and that in any event Mr Sunca allowed the police to record the false address and signed the statement as true. After recalling Mr Sunca's explanation, and citing Cretu v. Romania [2016] EWHC 353 (Admin), the District Judge said:

"43. In light of the circumstances set out above which includes clear statements from the Judicial Authority in relation to Mr Sunca being properly summonsed to court; Mr Sunca's own admission he allowed the police to record a false address on his official statement to them; and the Romanian court's decision to proceed in his absence based on all the evidence available to it, I find that the burden of proving that the requested person deliberately absented himself from his trial has been discharged."

Stelian Chihaia

Mr Chihaia's extradition is sought pursuant to a conviction EAW issued by Judge Enache of the Bacau Court, Romania on 14 January 2015 and certified by the National Crime Agency on 16 April 2015. He is sought for an offence of aggravated burglary committed in April 2011. He was sentenced to two years and six months imprisonment, all of which remains to be served.

Box D of the warrant states that Mr Chihaia did not appear in person at the trial. It also states that he was summoned in person and informed of the date and place of the trial. He was not served with the decision but will be personally served without delay and will be informed of the right to a retrial or appeal. It is also said that he was legally summoned and counsel was appointed to act on his behalf.

Mr Chihaia's account is that he attended the police station voluntarily but told them he knew nothing about the offence. He was beaten and forced to sign something. After this he remained in the village for between five and six months. He heard nothing about the matter and assumed that everything had concluded. After leaving for the UK he asked his mother to find out what had happened. She told him that she had received a summons but shortly after that she said that she had received a letter saying that he was convicted. When he found out about this it was too late to appeal.

District Judge McPhee ordered Mr Chihaia's extradition. In his judgment the District Judge considered under section 20 of the 2003 Act whether Mr Chihaia was deliberately absent from his trial and would be entitled to a re-trial on return. He said this as regards the section 20 ground:

"It is clear that the requested person was not present at trial. It is clear that he was summoned in person to the trial and informed of the date and place of the trial having been told that a decision may be made in his absence, para 3.1a. His own evidence on oath was that his mother had received 2 documents which she has told him about in 2014. One was the summons and the other the details of conviction and sentence. A lawyer was appointed to deal with the trial on his behalf in his absence, para 3.2.

I am satisfied on the basis of the EAW that he deliberately absented himself from the trial having been summoned in person and his mother having notified him of the summons. If I am incorrect in that then the warrant makes plain the right of retrial at para 3.4."

Subsequent to the decision of the District Judge in favour of extradition, the Romanian Judicial Authority provided a translation of the decision of the Bacau Criminal Division on 11 July 2014, Judgment 2283/2014, when the court considered Mr Chihaia's case in his absence. In the course of the decision, Judge Catalin said this:

"The defendant was interviewed solely during pre-trial proceedings, when he admitted to have embezzled the goods invoked by the aggrieved party. He subsequently absconded from the criminal investigation, issue which was investigated by the authorised institutions."

Romanian prison conditions

As a result of rulings of the Strasbourg and domestic courts, the starting point for the first ground is that extradition is barred as a breach of Article 3 ECHR if the requested person demonstrates that there are substantial grounds to believe that he will be exposed to a real risk of inhuman or degrading treatment or punishment on his return during any imprisonment: Elashmawy v. Court of Brescia, Italy [2015] EWHC 28 (Admin), [90]. Serving a prison sentence gives rise to that risk if in closed conditions in a multi-occupied cell the floor space occupied is less than 3 square metres, and if in open or semi-open conditions it is less than 2 square metres: see Blaj v. Court of Alesd, Romania [2015] EWHC 1710 (Admin), [43]; Florea I, at [44].

To address the issue of non-compliant prison conditions for those extradited from the UK to Romania, the Romanian Ministry of Justice gave the assurance in February 2015, set out in paragraphs [8]-[9] above, that they would serve their sentences in multiple occupancy cells with the benefit of these minimum areas of space. Subsequently, as described in the letters of 14 June 2016 and 24 June 2016, summarised in paragraphs [14]-[16] above, the Ministry had to concede that a number of UK extraditees were serving their sentences in conditions in breach of the assurance. Subsequently, the Romanian authorities have reiterated the February 2015 assurance. The issue before us is whether against this background there are substantial grounds to believe that there is a real risk that the three requested persons whose cases are before us will not benefit from the minimum space requirements when serving their prison sentences if they are returned to Romania.

Further evidence reiterating the February 2015 assurances

Following the hearings in Westminster Magistrates Court of Mr Zagrean's case and of Timis County Court (Romania) v. Rusu, the Romanian authorities have provided further information about prison conditions for UK extraditees in which they have reiterated the February 2015 assurances. This is contained in three letters dated 4 August 2016, 12 September 2016 and 7 October 2016. There was no objection to the admission of this evidence before us. That is not an end to the matter because the court itself must assess whether the evidence is admissible. In our view it comes within the principles in Szombathely City Court, The Sopron City Court, The Municipal Court of Szombathely, Hungary v. Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All ER 324 and on that basis we take it into account.

(a) Letter dated 4 August 2016

A letter dated 4 August 2016 from the Deputy General Director of the National Prison Administration

"reconfirms the guarantees offered in February 2015, including in relation with ensuring an individual minimum space of two square metres to detainees who serve sentences in open and half-open regime and three square metres to detainees who served sentences in closed regime".

The letter goes on to concede, yet again, that in certain instances the February 2015 assurance had not been adhered to in practice, due to the circumstances which had been explained. The letter expresses regret and states that there had been discussions in Romania to avoid a future occurrence of similar situations. The letter notes that at present the prison system could ensure individual space of three square metres only in the prisons specialized in the incarceration of those serving sentences in closed conditions or in the highest security conditions, "which have a reasonable level of occupancy: Aiud, Arad, Colibasi, Giurgiu, Oradea, Slobozia or Bucharest Rahova".

The letter continues that non-compliance had arisen due to exceptional circumstances in the form of external factors, which could not have been foreseen at the time when the guarantees were offered: one, the Romanian courts had held that there had to be an individual minimum space for each detainee; two, there had been an increase in the number of persons extradited to Romania, as well as of those who were serving custodial sentences imposed abroad; and three, there had been various rulings of the Strasbourg court. The letter concludes:

"Following the meetings and discussions held on the matters raised by the British authorities, the National Prison Administration has ordered measures for monitoring the situation of the persons in relation with whom guarantees were offered and shall inform the British party on these periodically, as well as the Romanian Ministry of Justice, with the purpose to ensure the assurance of 26^th of February 2015."

(b) Letter dated 12 September 2016

In late August 2016, there were discussions in Romania between members of the extradition unit of the Crown Prosecution Service and the Romanian Ministry of Justice. Following those discussions, the Romanian Ministry of Justice wrote to the CPS extradition unit on 12 September 2016, enclosing a letter from the National Prison Administration. The latter states that all extradited persons are held on arrival from abroad in a quarantine and monitoring section in the Rahova Prison in Bucharest for a statutory period of 21 days, up to a maximum of 30 days, so a decision can be made as to where and how they will be accommodated during their sentence. It states that that prison ensures a minimum space of 3 square metres to all detainees extradited from the UK, "including through the extension of the capacity of accommodation of the quarantine section, if the context so requires".

The letter guarantees that during the entire period of the enforcement of the warrant on which the repatriation is conducted, a detainee from the UK shall be given a minimum individual space, in which the bed and furniture are included, of three square metres in a closed regime and two square metres in a semi-open or an open regime. The UK authorities will be informed if the number of detainees gets close to the upper number of detainees which can be dealt with.

Under the heading "Monitoring mechanism", the letter states that an electronic monitoring system has been put in place which will enable the management of those subject to the assurance. Monitoring is also by means of documentary material. The letter states that detainees will be placed only in prisons where the safeguards can be met. It adds that the Romanian government had endorsed undertakings by the prisons administration

"to create 659 places for the accommodation of detainees by 2017. For the period 2018-2020 some 5500 new places shall be created."

On 3 October 2016 the CPS extradition unit wrote to the Romanian Ministry of Justice seeking clarification about information in the Romanian letter of 12 September 2016. What plans are there to expand the capacity of Rahova prison in the quarantine and observation section? Could the Romanians confirm that all extraditees will be detained in appropriate personal space at all times? What steps will be taken to oppose requests by detainees for transfers to prisons where they would be held in conditions in breach of the assurance?

The Romanians replied in a letter dated 7 October 2016. As to Rahova prison, it says, the prison itself could reallocate detainees within it to meet the assurance. Confirmation is then given that those to whom the assurance applies are guaranteed the appropriate personal space throughout the period covered by the warrant. Finally, the prison authorities will take their opposition to such requested transfers to court, using the UK assurance in defending any legal action taken by a detainee seeking to force a transfer.

Romanian Minister of Justice's statement on 6 October 2016

On the eve of the hearing, the solicitor acting for Messrs Zagrean and Chihaia produced a statement exhibiting a YouTube video and a transcript of an appearance by the Romanian Minister of Justice before the Romanian Council of the Magistracy on 6 October 2016. At that session the Minister referred to a meeting she had earlier in the year with the president of the European Court of Human Rights, where she said she had

"lied by saying that we have ensured the budget for seven penitentiaries of 150 million for each penitentiary, ergo, nearly one billion euro. But these were some good intentions, because in reality we don't have the money."

Following the Minister's statement there have been calls for her resignation, including by 155 members of the Chamber of Deputies. The context of the visit was apparently that the Strasbourg court was considering a pilot decision on Romanian prison conditions following a number of cases it had heard on the issue. Its fourth section said in giving judgment on 21 June 2016 in Case of Eze v. Romania (Application no. 80529/13),

"in relation to Rahova Prison… has frequently found violations of Article 3 of the Convention on account of the lack of personal space afforded to detainees and unsatisfactory hygiene conditions (see Toma Barbu v. Romania, no. 19730/10, § 69, 30 July 2013, and Tirean v. Romania, no. 47603/10, § 43, 28 October 2014)": [58].

In Eze's case, the court said, his living space during his detention in Rahova prison seemed always to have been significantly less than the required minimum in the court's case-law, sometimes as little as 1.88 square metres, but even less in reality taking into account the space taken up by beds and other items of furniture. Since the Romanian government failed to put forward any argument that allowed the court to reach a different conclusion, the court in Eze's case found a violation of Article 3 of the Convention: [58]-[60].

Following the hearing before us, the Minister of Justice, Ms Raluca Pruna, sent letters of explanation dated 18 and 20 October. She said that she had used the word "lie" metaphorically in the sense that the figures put forward by the head of penitentiaries in preparation for the meeting in Strasbourg had been at a time when there had not been a proper budgeting process. The Romanian Government has now budgeted for an investment in the prison estate, namely €740 million up to 2023. Attached to the Minister's letter are details of this expenditure. Moreover, the letter of 18 October explains that the Romanian assurances as regards UK extraditees are not dependent on future prison building programs. The assurance from February 2015 is reaffirmed.

The requested persons' case

In summary, Mr Emmerson QC's case for Messrs Zagrean and Chihaia was that, since they would be serving their sentences in closed conditions, there were substantial grounds to believe that there was a real risk that they each would serve them in breach of Article 3 ECHR in multiple occupancy cells with less than three square metres of space. The Romanian authorities had breached the February 2015 assurance; those breaches were known to them but came to light not because they volunteered the information but as a result of the evidence of the extraditees in Rusu; we must assume that there are more widespread breaches than involved in the Rusu case; and consequently the UK could not rely on the reconfirmation of the February 2015 assurance in the later Romanian letters.

Mr Emmerson continued that the Romanian authorities expected us to believe that the situation had been turned around from that described in the June 2016 letter (compliance is "not possible") to that proffered only a few months later in the further evidence. What was needed in light of past Romanian breaches, Mr Emmerson submitted, was something more compelling than self-reporting by the Romanian authorities of potential breaches; the vague plan to move prisoners around in Rahova prison; the electronic and manual record keeping proposed in the letter of 12 September 2016; and the aspirational building programme. What in fact was needed was monitoring of the Article 3 ECHR assurance by HM Embassy in Bucharest, or possibly by an independent NGO, that monitoring being carried out through obtaining access to prisons and prison records. Only then could compliance with the assurance be objectively and effectively verified: see Othman v. United Kingdom, application no 8139/09, (2012) 55 EHRR 1, [189(8)].

In developing these submissions, Mr Emmerson began with cases from the Special Immigration Appeals Commission ("SIAC"), notably BB v. Secretary of State for the Home Department [2015] EWCA Civ 9. There the Court of Appeal held that SIAC had misdirected itself in considering appeals by Algerian nationals against deportation to Algeria, where there was unchallenged evidence about the deplorable conditions they were likely to suffer, at least in the initial period during which they could be interrogated with a view to extracting confessions, true or false. SIAC's conclusion that their treatment would not violate Article 3 ECHR was wrong. In reaching its conclusion the Court of Appeal said that there was no distinction between deportation and extradition, and no comprehensive binary distinction between torture and inhuman or degrading treatment: [19].

The Court of Appeal remitted the matter to SIAC and on reconsideration SIAC concluded that verification of Libyan assurances about the treatment of the deportees required active and reasonably close consular attention by HM Embassy in Algiers. SIAC also held that verification presupposed an adequate flow of information from the Algerian authorities to embassy staff: BB v. Secretary of State for the Home Department, SC/39/2005, 18 April 2016, [26]. Verification by NGOs would not be adequate, SIAC said, given that they would act after the event, and that their efforts had not moved the Algerian authorities in the past: [94].

Mr Emmerson submitted that expectations of compliance by Romania had diminished and there was now something approaching an international consensus about a real risk that Romania would not comply with its Article 3 obligations as regards prison conditions. As well as the decision of the Strasbourg Court in Case of Eze v. Romania, Application No 80529/13, there were a series of cases from Germany where prosecutors had requested the discharge of requested persons from EAWs issued by Romanian judicial authorities because of the risk of overcrowded prison conditions: e.g., Bremen Higher Regional Court – 30 June 2016, File no. 1 Ausl. A 23/15. There was also a decision from a Swedish Court, the Solna District Court, Case No B 2767-16 18, May 2016, Ovidiu Coarda. Further, the Romanian courts themselves had found violations of the minimum conditions of detention under Romanian law where individuals had not experienced a usable space of four square metres at Bucharest-Jjilava Prison: District 4 Bucharest Courthouse – Case No 30739/4/2013, Constantin Diamond Florin, 24 January 2014; Case No 29299/4/2015, Spircu Iulian, 22 September 2015; and Case No 36986/4/2015, Tabarca Doru, 25 November 2015.

For Mr Sunca, Mr Fitzgerald QC adopted these submissions. He characterised the problem in Rahova prison as systemic. The plain fact was that the Romanians had not demonstrated that they could adhere to the February 2015 assurance. Very shortly after giving the assurance, they were in breach. What they were saying in the letter of 7 October 2016 was that they were considering, at the level of prison management, moving detainees around to meet the minimum space requirements. That was miles away from the type of sufficiently precise assurance demanded under Article 3 ECHR.

Following the hearing Mr Fitzgerald and Mr Emmerson made written submissions regarding the statement by the Minister of Justice that she had lied to the Strasbourg Court about the prison building programme. First, the statement and its context undermined the credibility of the Romanian assurances which, after all, came from her Ministry. A lie was a lie, especially one to an international body. Secondly, the Minister's statement is a clear acceptance that the money is not there for the prison building project. There are proposals for prison improvements in the 18 October 2016 letter, but there is nothing specifically about Rahova prison so that the risks for returning extraditees at this prison remain.

Analysis

Our consideration of these submissions turns on the reliance which can be placed on the assurances from the Romanian authorities. Our focus must be on those ordered to be extradited by our courts, not on extraditees from elsewhere or on others who may be in prison in Romania. Even if there is cogent evidence of a real risk, indeed something approaching an international consensus, about persons being subject to treatment in breach of Article 3 ECHR in a requesting state, UK extraditions are permissible if there is an assurance sufficient to dispel the risk in their case.

We accept that the factors which Mitting J identified in BB v. Secretary of State for the Home Department, SC/39/2005, and approved by the Court of Appeal, are those for evaluating the assurance in this case. Mitting J said:

"Without attempting to lay down rules which must apply in every case, we believe that four conditions must, in general, be satisfied.

(i) the terms of assurances must be such that, if they are fulfilled, the person returned will not be subjected to treatment contrary to Article 3 ;

(ii) the assurances must be given in good faith;

(iii) there must be a sound objective basis for believing that the assurances will be fulfilled;

(iv) fulfilment of the assurances must be capable of being verified."

Mitting J's analysis is consistent with the Strasbourg jurisprudence; Othman v. United Kingdom, application no 8139/09, (2012) 55 EHRR 1, [189].

The evaluative exercise Mitting J identified occurs in a context, which includes the nature of the relationship between the UK and the jurisdiction in issue, the human rights situation there, the subject matter of Article 3 ECHR assurances, and the risks involved. Romania is not Libya as regards the context. The decision in BB v. Secretary of State for the Home Department came after cases such as AS (Libya) v. Secretary of State for the Home Department [2008] EWCA Civ 289, [2008] HRLR 28. The Libyan assurances had had a question mark over them for some time in light of the evidence and the grave risks to be guarded against with the return of persons there. Although we do not underplay the seriousness of prison overcrowding, the risks involved are not of the same character as in the Libyan cases, where the concerns entertained were well along the torture end of the Article 3 spectrum.

The recent statement of the Minister of Justice to the Council of the Magistracy on 6 October 2016 is unfortunate. We are unclear about what it means to lie metaphorically. In our view, however, this does not undermine the good faith of the assurances nor the objective basis for believing they will be fulfilled. First, the word "lie" was used in the context of a discussion about prison building, when expenditure had not been properly budgeted. The assurances given to the United Kingdom in February 2015, and confirmed on various occasions since, as recently as 18 October 2016, do not on their face depend on the prison building program. Secondly, there are assurances on behalf of the Romanian state. Their force extends well beyond the political life of any one Minister.

Here the assurances are from a country which has been a Convention state since 1993 and a member of the European Union since 2006. The mutual respect which exists between the two countries goes a long way in the court's evaluation of the assurances from the Romanian authorities. Both the UK and Romania are parties to the 2002 Council Framework Decision 2002/583/JHA and have been operating the EAW scheme for a number of years. There is a strong presumption that Romania is both willing and able to fulfil its human rights obligations relating to extraditees from the UK in the absence of clear, cogent and compelling evidence to the contrary: Krolik v. Poland [2012] EWHC 2357 (Admin), [2013] 1 WLR, [4].

Moreover, there are human rights protections in Romania relating to this type of case, illustrated in part by the litigation in the Romanian and Strasbourg courts on conditions in Romanian prisons referred to earlier. As well Blake J noted some of the non-curial protections in Florea II [2014] EWHC 4367 (Admin),

"[25]… [T]here is the Helsinki Committee of Romania, but much more significantly there is the ombudsman and there is national monitoring by the judge who would be of the national court who at least would be aware of what the government of Romania promised and will be aware of the serious consequences of co-operation if these assurances are ignored. Romania is a party to the European system, Council of Europe, and provides the individual right of petition to the European Court of Human Rights, so there will be ultimately supervision by that court which of course includes the possibility of seeking provisional measures from that court under its rules of practice. Overall, this is a degree of monitoring which is practical and effective and goes far beyond the normal range of problems in States outside the Council of Europe where the position of the international position international relations may be very different."

As to the substance of the assurances for UK extraditees to Romania, the February 2015 assurances have been reaffirmed and the monitoring mechanisms strengthened. The Romanian authorities have accepted that they mistakenly interpreted the assurances to carve out exceptions such as for those who wished to live near their family and were consequently prepared to spend their sentences in conditions of overcrowding. It is against this background of the Romanian authorities accepting their errors and reaffirming their commitment to comply with their Article 3 ECHR obligations that the breaches which came to the surface in Rusu must be seen.

Then there are the specifics of the assurances. As stated in the 12 September 2016 and 7 October 2016 letters the Romanian authorities have made arrangements in Rahova prison so the minimum space requirement is met for UK extraditees during the so-called quarantine and observation period. That part of the assurance is in precise terms: it "ensures the minimum space in rooms of three square metres to all detainees extradited from the UK". We cannot be concerned with how this goal will be achieved.

The 4 August 2016, 12 September 2016 and 7 October 2016 letters are specific as to other matters. They detail the amount of space that will be provided to each person extradited from the UK and confirm their applicability "during the entire period of the enforcement of the warrant on which the repatriation was conducted." They have been communicated to the court by the Romanian authorities and bind them. Despite Mr Fitzgerald's submission, there is no evidence demonstrating that there have been systemic problems of non-compliance. In our view the assurances in these letters also evidence an intention to cooperate with the UK authorities.

As to verification of the assurances, the letters contain an explanation of how prison numbers will be monitored so as to ensure they will be fulfilled. There are other avenues by which the assurance can be monitored, mentioned earlier. Moreover, the Rusu case demonstrates that Romanian extraditees maintain links with their UK solicitors, possibly through their families still in the UK, who can raise the issue in future as in Rusu. Monitoring by the UK Embassy is not only unnecessary but quite inappropriate.

In summary, the assurances satisfy the tests laid down in the authorities. In light of them we are not persuaded of a real risk for Messrs Sunca and Chihaia serving their sentences in Article 3 non-compliant prison conditions. The assurances also address the issue raised by District Judge Coleman in Mr Zagrean's case. The position has moved on from the statement in the letter of 14 June 2016 that observance of the minimum space guarantee at Rahova prison in the quarantine and observation period is "not possible". That was the basis of her decision to discharge him. If the assurance of 12 September 2016 had been before the District Judge, she would have been bound to conclude that there was no real risk of a violation of Article 3 ECHR.

The section 20 appeal

Legal framework

Under section 20(3) of the 2003 Act the court has to decide, when a requested person has been convicted in his absence, whether he deliberately absented himself from the trial. If he was not deliberately absent, section 20(5) provides that the court has to decide whether he would be entitled to a retrial or (on appeal) to a review amounting to a retrial. If not, he is entitled to be discharged.

Section 20 reflected Article 5(1) of the EU Council Framework Decision 2002/583/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. The recitals to the Decision contain aims of simplicity and speed for the EAW system. Recital 6 contemplates that the issuing judicial authority

"by completing the corresponding section of the European arrest warrant… gives the assurance that the requirements have been or will be met, which should be sufficient for the purpose of the execution of the decision on the basis of the principle of mutual recognition."

In 2009 Article 5(1) of the Framework Decision was deleted and Article 4a inserted by Council Framework Decision 2009/299/JHA. Article 4a provides that the executing judicial authority may refuse to execute a conviction EAW if the requested person was absent at the trial unless it states that under national law he or she:

"(a) in due time:

(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the schedule trial;

and

(ii) was informed that a decision may be handed down if he or she does not appear for the trial;"

In Cretu v. Local Court of Suceava, Romania [2016] EWHC 353 (Admin), [2016] 1 WLR 3344, this court held that section 20 must be construed in the light of Article 4a and that the EU principle of conforming interpretation applies: [13]-[18].

The facts in Cretu were that the appellant had been "heard" by the Romanian police as a "criminal accused", when he admitted the offending. He was released subject to conditions, including that he should inform the police within three days of any change of address. He left Romania without complying with that condition. A court summons was later sent to the address he had provided to the police. He was convicted in his absence after searches for him proved unsuccessful: [8]. The EAW stated at Box D that he had been summonsed on various dates in accordance with Romanian law.

In Cretu, Burnett LJ (with whom Irwin LJ agreed) concluded that two alternative scenarios were contemplated by Article 4a(1)(a), and that only the second required that it be unequivocally established that information was "actually received" by the accused. Because the Strasbourg Court, as in Colozza v. Italy (1985) 7 EHRR 516, would consider a summons sufficient to meet the requirements of Article 6 ECHR if, for example, the state had diligently but unsuccessfully given an accused notice of the hearing, even if he did not receive it, that procedure would be sufficient to satisfy article 4a(1)(a)(i): [30]. Burnett LJ then said this of section 20, interpreted in light of Article 4a:

"[34] In my judgment, when read in the light of article 4a section 20 of the 2003 Act, by applying a Pupino conforming interpretation, should be interpreted as follows: –

…

(ii) An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by article 4a paragraph 1(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate Article 6 ECHR;

(iii) An accused who has instructed ("mandated") a lawyer to represent him in the trial is not, for the purposes of section 20, absent from his trial, however he may have become aware of it;

(iv) The question whether an accused is entitled to a retrial or a review amounting to a retrial for the purposes of section 20(5), is to be determined by reference to article 4a paragraph 1(d).

(v) Whilst, by virtue of section 206 of the 2003 Act, it remains for the requesting state to satisfy the court conducting the extradition hearing in the United Kingdom to the criminal standard that one (or more) of the four exceptions found in article 4a applies, the burden of proof will be discharged to the requisite standard if the information required by article 4a is set out in the EAW.

Burnett LJ added that it would not be appropriate for requesting judicial authorities to be pressed for further information relating to the statements made in an EAW pursuant to Article 4a, save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process. The issue at the extradition hearing is whether the EAW contains the necessary statement. In his judgment Article 4a

"[35]… does not require the executing judicial authority to refuse to surrender if the person did not appear at his trial, even if none of the exceptions applies. No doubt that is because it can assumed that whatever may be the circumstances of a requested person on his surrender, he will be treated in accordance with article 6 ECHR in an EU state."

Later, Burnett LJ reiterated that the statement in the EAW must be taken at face value and will be sufficient to satisfy the requirements of both Article 4a and section 20(5). That said, he added, it was common ground that Article 466 of the Romanian Criminal Code was introduced by way of amendment to transpose into Romanian law the relevant parts of Article 4a of the Framework Decision. It can be assumed that Romanian law would provide the right to a retrial in appropriate cases: [42].

C-108/16 PPU, Openbaar Ministerie v. Dworzecki, 24 May 2016, was a request to the Court of Justice of the European Union ("CJEU") for a preliminary ruling from the District Court in Amsterdam on a Polish EAW. The requested person had not appeared at his trial. The EAW stated that he had not been summoned in person, but by other means had actually received official information of the scheduled date and place of the trial. That was in such a manner that it was unequivocally established that he or she was aware of the scheduled trial. The EAW stated that in his absence the summons had been collected by the requested person's grandfather at his registered address, and that he had pleaded guilty and accepted the punishment suggested by the prosecutor.

The fourth section of the CJEU held that the concepts in Article 4a(1)(a) are autonomous concepts of EU law and must be interpreted uniformly throughout the EU: [25]–[32]. It said that the effect of Article 4a(1) is that a judicial authority may refuse to execute an EAW if the requested person did not appear in person at the trial resulting in the decision, unless it states that the conditions set out in the article are satisfied: [34]. (Earlier the court had set out Recital 6.) The court held that the methods of effecting service of the summons provided for in Article 4a(1)(a)(i) are designed to ensure a high level of protection and to allow the surrender of a requested person, notwithstanding his failure to attend the trial. It continued:

"In fact, compliance with the conditions for a summons referred to in Article 4a(1)(a)(i) of Framework Decision 2002/584 is apt to ensure that the person concerned was informed in good time of the date and place of his trial and thus allows the executing authority to conclude that the rights of the defence were respected."

The court referred to the principles established in the case law of the Strasbourg Court, including that the right of the accused under Article 6 ECHR to appear in person is not absolute, and that it can be waived expressly or tacitly, provided that it is established in an unequivocal manner, is attended by minimum safeguards commensurate with the gravity of the criminal offence with which the accused is charged, and does not run counter to any important public interest: [42]. In respect of the two alternative conditions set out in Article 4a(1)(a) of the 2002 Framework Decision, the court held:

"45. The purpose of Article 4a(1)(a)(i) of Framework Decision 2002/584… is necessarily achieved by a summons 'in person' as referred to in the first part of that provision, as such a method of service ensures that the person concerned has himself received the summons and, accordingly, has been informed of the date and place of his trial.

46. As regards the conditions set out in the second part of that provision, they are designed to achieve the same high level of protection of the person summoned, by ensuring that he has the information relation to the date and place of his trial."

Given the terms of Article 4a(1)(a) handing a summons over, even to a relative who undertakes to pass it on, cannot itself satisfy the requirements, since that method of service does not allow it to be unequivocally established that the person concerned "actually" received the information relating to the date and place of his trial: [47]. If handing over a summons to a third party is to satisfy Article 4a(1)(i), it must be unequivocally established that the third party actually passed on the summons: [48]. In that regard the judicial authority must set out in the EAW the basis of which it found that the person actually received official information relating to the date and place of his trial: [49].

The court added that since the scenarios in Article 4a (1)(a)(i) were conceived as exceptions to an optional ground for non-recognition, the executing judicial authority may in any event, even after having found that they did not cover the situation at issue, take into account other circumstances that enable it to be assured that the surrender of the person concerned does not mean a breach of his rights of defence: [50]. The court continued:

"51. In the context of such an assessment of the optional ground for non-recognition, the executing judicial authority may thus have regard to the conduct of the person concerned. It is at this stage of the surrender procedure that particular attention might be paid to any manifest lack of diligence on the part of the person concerned, notably where it transpires that he sought to avoid service of the information addressed to him.

52. Likewise, the executing judicial authority may also take into account the fact, to which the Polish Government referred at the hearing before the Court, that the national law of the issuing Member State in any event affords the person concerned the right to request a retrial, where, as in this instance, service of the summons is deemed to be effected when the summons is handed over to an adult member of the household of the person concerned."

Mr Sunca's case