Case No: CO/11010/2013
Neutral Citation Number: [2014] EWHC 2528 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/07/2014

Before:

LADY JUSTICE RAFFERTY DBE
and
MR JUSTICE BLAKE
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Between:

	RAZVAN-FLAVIU FLOREA	Appellant	
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	THE JUDICIAL AUTHORITY CAREI COURTHOUSE, SATU MARE COUNTY, ROMANIA	Respondent	

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David Josse QC and Ben Keith (instructed by Virdees) for the Appellant
Mark Summers QC and Adam Payter (instructed by CPS) for the Respondent

Hearing date: 15 July 2014
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Judgment
BLAKE J: 
1.	This is the judgment of the court.
2.	The appellant is a national of Romania. On 6 August 2013 Senior District Judge Riddle ordered his surrender to Romania pursuant to a European Arrest Warrant (EAW) issued by the respondent judicial authority. The warrant is a conviction warrant issued in respect of eight offences in Romania and one offence in Portugal for which he was returned to Romania. He came to the United Kingdom in 2010 before the sentences for his various offences had been finalised and served. The sentences were merged at a hearing 2012 where he was represented by a lawyer and he was given an aggregate sentence of three years’ imprisonment. 
3.	None of the challenges to the warrant that were taken before Judge Riddle are now material. The present appeal raises a new point not taken below namely that return would be contrary to the appellant’s human rights and thus barred by s.21 Extradition Act 2003. As this is a human rights point taken on the basis of current circumstances in Romania, no objection has been taken by the respondent to this new ground being raised. The appellant contends that in the light of present prison conditions in Romania, a return to a three year sentence in that country will contravene Article 3 European Convention on Human Rights (ECHR) because there are substantial grounds for believing that serving such a sentence in a Romanian prison, absent special arrangements, presents a real risk of inhuman or degrading treatment by reason of overcrowding.
4.	This appeal was listed on 18 November 2013 a lead case on Romanian prison conditions and directions were given to make time. The appellant served the report of his expert witness Diana-Olivia Hatneanu in January 2014, and the matter was twice adjourned thereafter in March and May. The respondent served the report of its expert Dr Viviana Onaca Director of the Directorate for International Law and Judicial Cooperation in Romania on 6 June 2014. 
5.	There is a substantial measure of agreement between the two reports. We have been supplied with various reports emanating from the Council of Europe between December 2008 and May 2012. These consist of reports from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), a number of responses made by the Romanian Government, and two reports on implementation of judgments prepared for the Committee of Ministers.  We have also been supplied with the details of a number of decisions of the European Court of Human Rights decided between March 2008 and June 2014 finding violations of Article 3 ECHR against Romania in respect of persistently overcrowded conditions for service of a prison sentence. There are a number of cases against Romania on the same issue pending in Strasbourg.
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. 
7.	Satu Mare is the third most over-crowded of 43 Romanian prisons listed in a schedule before us. Dr Onaca’s evidence explains that according to the provisions of Romanian law (Ministry of Justice Order no 433/C/2010) the minimum space required for a semi-open prison is six cubic metres, which corresponds to approximately two square metres.  On this reckoning there is space for 508 inmates, 418 of whom are in semi-open conditions.  However as of May 2014 there are 641 detained prisoners or 156 prisoners more than Romanian law permits. The CPT recommendation for the minimum for a serving prisoner is four square metres and on this criterion the maximum number of prisoners is 238.  
8.	For reasons which will become apparent below, we consider that the information most relevant to the appellant’s appeal is what the maximum capacity of Satu Mare prison would be applying a criterion of  a minimum space  of three square metres per prisoner. Dr Onaca indicates that the Romanian prison authorities had not performed this calculation but this can be assessed by taking the mid-point between the 2 and 4 square metre calculations. Taking 984 square metres as the available space and dividing by 3 gives a maximum prison population of 328 or an excess of 313 prisoners at current occupancy levels; put another way, if 641 prisoners are presently sharing 984 square metres of available space, there is approximately 1.53 square metres floor space per prisoner even if the cubic measurement permits taller cells and more air. The appellant contends that this occupancy level by itself, without any other aggravating feature, is a violation of Article 3.  
9.	In support of that submission Mr Josse QC for the appellant relies on the decision of the First Section of the European Court of Human Rights in Ananyev v Russia (Applications nos. 425/07 and 60800/080910) January 2012. Under the heading  of compliance with Article 3 the Court said this:
(a)  Overcrowding
143.	The extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 36, 7 April 2005). 
144.	The Court notes that the General Reports published by the Committee for the Prevention of Torture do not appear to contain an explicit indication as to what amount of living space per inmate should be considered the minimum standard for a multi-occupancy prison cell. It transpires, however, from the individual country reports on the CPT’s visits and the recommendations following on those reports that the desirable standard for the domestic authorities, and the objective they should attain, should be the provision of four square metres of living space per person in pre-trial detention facilities (see, among others, CPT/Inf (2006) 24 [Albania], § 93; CPT/Inf (2004) 36 [Azerbaijan], § 87; CPT/Inf (2008) 11 [Bulgaria], §§ 55, 77; CPT/Inf (2008) 29 [Croatia], §§ 56, 71; CPT/Inf (2007) 42 [Georgia], §§ 42, 51, 61, 74; CPT/Inf (2009) 22 [Lithuania], § 35; CPT/Inf (2006) 11 [Poland], §§ 87, 101, 111; CPT/Inf (2009) 1 [Serbia], § 49, and CPT/Inf (2008) 22 [FYRO Macedonia], § 38). 
145.	Whereas the provision of four square metres remains the desirable standard of multi-occupancy accommodation, the Court has found that where the applicants have at their disposal less than three square metres of floor surface, the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3 (see, among many other authorities, Trepashkin (no. 2), § 113, and Kozhokar, § 96, both cited above; Svetlana Kazmina v. Russia, no. 8609/04, § 70, 2 December 2010; Kovaleva v. Russia, no. 7782/04, § 56, 2 December 2010; Roman Karasev, cited above, §§ 48-49; Aleksandr Leonidovich Ivanov v. Russia, no. 33929/03, § 35, 23 September 2010; Vladimir Krivonosov, § 93, and Gubin, § 57, both cited above; Salakhutdinov v. Russia, no. 43589/02, § 72, 11 February 2010; Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 98, 12 February 2009; Guliyev, cited above, § 32; Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Labzov v. Russia, no. 62208/00, § 44, 16 June 2005; and Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005). 
146.	In some earlier cases, the number of detainees exceeded the number of sleeping places in the cell and insufficiency of floor surface was further aggravated by the lack of an individual sleeping place. Inmates had to take turns to sleep (see Gusev v. Russia, no. 67542/01, § 57, 15 May 2008; Dorokhov v. Russia, no. 66802/01, § 58, 14 February 2008; Bagel v. Russia, no. 37810/03, § 61, 15 November 2007; Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Igor Ivanov, § 36, Benediktov, § 36, Khudoyorov, § 106, Romanov, § 77, and Labzov, § 45, all cited above; and Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002 VI). 
147.	Where the cell accommodated not so many detainees but was rather small in overall size, the Court noted that, deduction being made of the place occupied by bunk beds, a table, and a cubicle in which a lavatory pan was placed, the remaining floor space was hardly sufficient even to pace out the cell (see Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 87, 27 January 2011; Petrenko v. Russia, no. 30112/04, § 39, 20 January 2011; Gladkiy, § 68, Trepashkin (no. 2), § 113, both cited above; Arefyev v. Russia, no. 29464/03, § 59, 4 November 2010; and Lutokhin, cited above, § 57). 
148.	It follows that, in deciding whether or not there has been a violation of Article 3 on account of the lack of personal space, the Court has to have regard to the following three elements: 
(a)  each detainee must have an individual sleeping place in the cell;
(b)  each detainee must dispose of at least three square metres of floor space; and
(c)  the overall surface of the cell must be such as to allow the detainees to move freely between the furniture items.
The absence of any of the above elements creates in itself a strong presumption that the conditions of detention amounted to degrading treatment and were in breach of Article 3.
(b)  Other aspects
149.	In cases where the inmates appeared to have at their disposal sufficient personal space, the Court noted other aspects of physical conditions of detention as being relevant for the assessment of compliance with that provision. Such elements included, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements. Thus, even in cases where a larger prison cell was at issue – measuring in the range of three to four square metres per inmate – the Court found a violation of Article 3 since the space factor was coupled with the established lack of ventilation and lighting (see, for example, Vlasov v. Russia, no. 78146/01, § 84, 12 June 2008; Babushkin, cited above, § 44; and Trepashkin v. Russia, no. 36898/03, § 94, 19 July 2007). 
10.	We take this statement of general principle to mean that where a detainee has less than three square metres of personal floor space there is a strong presumption of a violation of Article 3 by itself without any other aggravating factor. We recognise that the Court is still talking about a strong presumption and not an inevitable violation. It is possible to imagine situations where a prisoner has to endure less than three metres for a period of days or where otherwise perfectly adequate accommodation falls short of the three metre square standard by a matter of a small margin or so. It may also be the case that where less than three metres is available as personal space, other features of the particular regime under which the sentence is served may make some mitigating contribution to whether there has been a violation. 
11.	 We recognise that in all the Strasbourg authorities that we have been shown the Court is looking back at particular historic experiences by prisoners and makes a holistic assessment.  In the present case we are looking forward to the likelihood of a future experience when there is no certainty as to the prison in which the sentence will be served let alone all the circumstances that may arise during service of that sentence or a beneficial variation in occupancy rates.  Further the context of this case is the likelihood of a violation on an EAW return to a fellow EU state, an issue on which the European Court has not given specific guidance, although the applicable principles have been identified in cases concerned with the Common European Asylum System.
12.	Mr Summers QC’s response to Ananyev v Russia was first that there was no absolute three metre standard, and second that what turned the presumption into a violation was some other fact specific failure in the prison system. He refers to paragraph 92 of the decision in Trepashkin v Russia  July 2007  ( Trepashkin No 1) :
“The Court has frequently found a violation of Article 3 of the Convention on account of the lack of personal space afforded to detainees (see Peers v. Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III; Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X; Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; and Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI). However, the Court cannot decide, once and for all, how much personal space should be allocated to a detainee in terms of the Convention. That depends on many relevant factors, such as the duration of detention in particular conditions, the possibilities for outdoor exercise, the physical and mental condition of the detainee, and so on. This is why, whereas the Court may take into account general standards in this area developed by other international institutions, such as the CPT (see Kadiķis v. Latvia (no. 2), no. 62393/00, § 52, 4 May 2006), these cannot constitute a decisive argument.”
13.	This paragraph was noted by Singh J giving the leading judgment in the case of Achmant v Judicial Authority Thessaloniki Greece [2012] EWHC 3470 (Admin) where this court rejected the proposition that there was an absolute standard of three metres. 
14.	However, we cannot accept Mr Summers’ submission that the passage cited in Ananyev above was merely repeating the approach in Trepashkin No 1. We note that the Court’s reference to Trepashkin No 1 was confined to paragraph 149 and is predicated on the finding that the prisoner appears to have sufficient personal space but other aggravating factors may still yield an Article 3 violation. The court proceeds to undertake that exercise in the following paragraphs of the judgment. In our view to read paragraph 148 as meaning that a paragraph 149 element was always needed to turn the presumption into a violation, would be to utterly distort its language and meaning.  Further, in paragraphs 145 and 147 the references are to the subsequent case of Trepashkin No 2 decided in 2010. In that case 30 days detention with a floor space of 1.1 metres was held to be a violation by itself.
15.	We conclude from the terms of the Ananyev judgment that standards for personal space for prisoners have become more precise over the years. We recognise that no decision of the Grand Chamber has been cited to us, but decisions from other sections support this conclusion.
16.	In Torreggiani v Italy, (Application No. 43517/09) 8 January 2013 the Second Section of the European Court of Human Rights reviewed the case law of the Court with respect to prison overcrowding. We summarise paragraphs  65 to 69 of its judgment as  follows (the authentic language of the judgment being French):-
i)	The Court takes into account the cumulative effect of the conditions complained of.
ii)	In particular an important factor to be considered is the period of  time the person has been held in the conditions complained of.
iii)	Where overcrowding reaches a certain level lack of space in the prison may constitute the central element to be taken into account when assessing conformity with Article 3.
iv)	As soon as it was faced with severe overcrowding, the Court ruled that this factor alone is sufficient to conclude that there has been a breach of Article 3. Although the CPT considers 4 metres desirable in cases of collective space the Court has found violations in cases where the personal space is less than 3 square metres.
17.	Applying these principles, and referring specifically to Ananyev, the Court found violations of Article 3 where the government did not dispute that the applicants shared a nine square metre cell with two other people for periods of between 24 and 52 months (paragraphs 8 and 70 and 75). It noted that the square footage was further limited by the presence of furniture in the cells.  It also took account of failures in heating, lighting and ventilation that contributed to the violation of Article 3 although l; by themselves these failures would not have been sufficient to constitute inhuman treatment.
18.	The Court had found earlier in its judgment that the overcrowding statistics demonstrated the problem of prison overcrowding in Italy was structural and systemic in nature. The experiences of the appellants were not isolated incidents and there were many more pending applications.  This led to two conclusions: first there was no need for applicants to exhaust domestic remedies in Italy as there were no effective remedies in that jurisdiction to prevent the treatment complained of. Second, the ruling was designated a pilot ruling for the purpose of implementation of the judgment by the Committee of Ministers.
19.	A pilot judgment can be given under Rule 61 ‘where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem which has given rise to similar applications’. A fact sheet issued by the Press Unit of the European Court in October 2013  further explains what a pilot ruling is:
‘Where the Court receives several applications that share a root cause, it can select one or more for priority treatment under the pilot procedure. In a pilot judgment, the Court’s task is not only to decide whether a violation of the European Convention on Human Rights occurred in the specific case but also to identify the systemic problem and to give the Government clear indications of the type of remedial measures needed to resolve it. It is for the State, subject to the supervision of the Committee of Ministers of the Council of Europe, to choose how to meet its obligation under Article 46 (binding force and execution of judgments) of the Convention. The Court may consider it necessary, however, under Article 46 § 1, to give Governments guidance with a view to solving a systemic or structural problem. A key feature of the pilot procedure is the possibility of adjourning, or “freezing,” related cases for a period of time on the condition that the Government act promptly to adopt the national measures required to satisfy the judgment. The Court can, however, resume examining adjourned cases whenever the interests of justice so require.’
20.	In the case of Badre v Court of Florence [2014] EWHC 614 (Admin) 11 March 2014 there was a request for the return of the appellant to face trial in Italy for unauthorised money transfers. The appellant succeeded on two grounds of appeal, the second of which was prison conditions. McCombe LJ giving the leading judgment cited the appellant’s skeleton argument as follows:
‘overcrowding is capable of reaching such an endemic and serious level  (where the prison estate as a whole is so overcrowded that individuals are habitually kept in spaces  less than 3m square) that detainees are subjected  to a systemic Article 3 violation’.
Mr Josse adopted this formulation as his own with acknowledgment to its true author, Mr Summers, who was then appearing for the appellant in Badre. 
21.	The Divisional Court considered Torreggiani and having rejected what it considered as inadequate and non-specific undertakings offered by Italy at the hearing that the appellant would be treated consistently with his human rights, allowed the appeal on the overcrowding issue.  McCombe LJ observed:
40	The Article 3 test in an extradition case is that it is for the requested person in an extradition case to show that there are substantial grounds for believing that he or she, if extradited, would face a real risk of being subjected to treatment contrary to the Article: Saadi v Italy (2009) 49 EHRR 30, at paragraph 140. The burden is less than proof "on the balance of probabilities", but the risk must be more than fanciful. This was the test which the District Judge adopted in his judgment, in my view correctly.

41	It is also the case that there is a strong, but rebuttable, presumption that in the case of a member state of the Council of Europe that such a state is able and willing to fulfil its obligations under the Convention. To rebut the presumption, it will often be necessary to adduce evidence from a number of recognised sources that the presumption ought not to be applied. Something "approaching an international consensus is required": see Krolik v Polish Judicial Authorities [2013] 1 WLR 2013 (Sir John Thomas P, as he then was, and Globe J), concerning conditions in Polish prisons and the applicability of Article 3.

42	The problem for the Respondent in the present case is that the European Court, in a pilot judgment as recently as January 2013, has found that there was a systemic problem in the Italian penitentiary system, resulting from a chronic malfunction. 

43	This court is bound by statute to take into account that judgment in considering whether the Appellant in this case should have been held by the court below to have satisfied the burden of showing that there were substantial grounds for believing that there was a real risk of infringement of Article 3, if the Appellant were to be extradited: see section 2 of the Human Rights Act 1998. 

44	As is well known, and recently much debated, the requirement to take the judgment into account does not necessarily mean that the judgment has to be followed. However, in the present case, I consider that the judgment does provide a very clear rebuttal of the presumption that might otherwise apply to this court's view of extradition to Italy as a member state of the Council of Europe and of the European Union. Where there is evidence that the relevant risk exists, it is for the requesting state to dispel any doubts: see the Saadi case (supra), at paragraph 129. 

45	In response to a direct question from the bench, Miss Hinton said that she was not submitting that there was not a continuing systemic problem in the Italian prison estate. That seems to me to have been a correct concession on the evidence before the court. We have seen a letter dated 15 November 2013, sent to "the UK Liaison Magistrate in Italy" in the context of this case reporting upon continuing efforts in Italy to meet the requirements of the judgment of the European Court in Torreggiani (supra). The letter reported upon a visit by the Italian Minister of Justice to the President of the European Court on 5 November 2013. The letter included the following, 
“…The Minister expressed that awareness of the necessity to remove the prison conditions which may be defined as inhuman or degrading has been acknowledged by the highest Institutions of the Country. By means of an exceptional procedure, which Article 87 of our Constitution reserves for situations of absolute national relevance, the President of the Italian Republic sent a message to Parliament – the first of his long Presidential term – so as to invite the legislature to promptly consider the "fact of exceptional importance constituted by the European Court of Human Right's [sic] decision" and "of proceeding to an internal remedy which may offer a restoration for the overcrowding conditions already suffered by prisoners…”
46.  The letter then proceeds to set out steps being taken and to be taken to ensure compliance with the European Court's requirements, as expressed in the judgment. The letter did not suggest that those requirements had already been met.
47. It seems to me, therefore, that to dispel the doubts that must be found to have arisen in the present case, the burden was on the Respondent to provide evidence to satisfy the court that the relevant real risk of incarceration in conditions contrary to Article 3 did not arise in the particular case of the Appellant. The court could not, in my judgment, be satisfied by the general presumption…
52. I am far from saying that in no case can a court in this country safely order an extradition to Italy. Like Mr Summers, I do not call into question for one minute the good faith of the Italian authorities in writing the letter that they did. However, it seems to me that, on the specific facts of this present case, the judgment of the European Court, together with the acknowledgment of a continuing systemic problem in the Italian prison system, has rebutted the presumption of compliance with the Convention which would normally arise in the case of a member state of the Council of Europe and of the European Union. This state of affairs, therefore, raises substantial grounds for believing that there is a real risk of treatment contrary to Article 3 and the Respondent has not produced sufficient material to dispel that belief.
22.	Romania has been a member of the Council of Europe since 1993 and of the European Union since 2007. Much of its prison estate dates from before the transition to democracy in 1990 and problems of overcrowding, unacceptably poor prison conditions and related problems with respect to the treatment of prisoners have resulted in many findings of violations of Article 3. On 6 December 2007 the Third Section of the European Court of Human rights delivered its judgment in Bragadireanu and a group of associated cases examining conditions and other circumstances of detention of prisoners from 1993 to 2005. It noted both critical reports from the CPT in 1995, 1999, 2001, 2002, 2003, 2004 and 2006, and some progress in responding to the violations found is reflected in the reports made to the Committee of Ministers responsible for the execution of judgments under Article 46 of the Convention. 
23.	Of the many subsequent findings of violation of Article 3 on the basis of prison overcrowding made by the Court we propose to comment on just three.
24.	In the case of Pop v Romania (Application no. 14337/04) 17 July 2012, the applicant had been held in a variety of places of detention: a police station where he was held for four months, and four separate prisons including Satu Mare prison where he spent time between December 2003 and October 2006. In that period he occupied five different multi-occupation cells at Satu Mare.  Dividing the available square metres of the five cells by the different number of occupants produced figures of space available for the applicant of 0.72, 1.03, 1.14, 1.17, 1.64 and 2.25 square metres. The Court noted at paragraph 94 previous cases where the applicants have had at their disposal less than three square metres of personal space and the Court concluded that the overcrowding was so severe as to justify of itself a finding of a violation of Article 3 and applying this approach found a violation of Article 3 without consideration of the accuracy of other complaints about conditions (paragraphs 96 and 98).
25.	In Stanciu v Romania 29 July 2012 the Court was concerned with many prisons (16 are identified but not including Satu Mare) throughout its territory between 2002 and 2011 and throughout the period save for a few occasional situations found that the personal space available was consistently less than three metres.  The Court found violations despite the absence of any intention to humiliate and positive engagement with the Committee of Ministers to address historic problems.  Whilst welcoming these developments the Court stressed the need for consistent and long term efforts in view of ‘the extent of the recurrent problem at issue’ (paragraph 195).
26.	In Ciobanu v Romania  (Requete no 4509/08) 9 July 2013 the applicant was detained over a period of twelve months in various places of detention until he was granted his liberty. The Court found a violation of Article 3 where the evidence was that throughout his detention only two square metres of personal space was available (paragraph 46). 
27.	Mr Josse submits that taken as a whole the evidence suggests that prison conditions are both systemically inadequate and a similar conclusion should be reached by us to that reached by the court in Badre. He contended:
i)	There have been numerous findings by the European Court of violations of Article 3 by Romania by reason of prison overcrowding. Although none of these judgments has been designated a pilot judgment, that is immaterial to the conclusion of enduring and systemic failure. There are simply not enough places within the prison estate to accommodate prisoners with sufficient personal space applying internationally acceptable standards identified by the Strasbourg Court. None of the violations can be said to be isolated incidents dependent on particular facts or historic relevance only.
ii)	In the reports before the Committee of Ministers on enforcement dated May 2011 and May 2012 it is acknowledged that progress towards the desirable CPT norm of 4 square metres has been slow although the good faith of the Romanian Government in responding to these violations is not questioned.
iii)	Badre was a case of pre-trial detention where the possibility of bail might have alleviated his difficulties unless and until a custodial sentence arose. Here the appellant faces a three year sentence and it is common ground that new laws implemented in February 2014 designed to persuade judges to pass shorter sentences and consider suspending them to reduce the prison population will not apply to the appellant’s sentence.
iv)	The agreed statistical data shows that the prison population has been steadily increasing over the past four years as follows
31.12.2010 	28,244
31.12.2011		30,694 
31.12.2012		31,817
31.1.2013		33,434

As of 31.05.14 it had reduced to 32,391. This may be a reflection of new sentencing policy taking effect but it will take some years to reduce overcrowding to acceptable levels as Dr Onaca has candidly accepted.
v)	The problem for Romania is that they have focused on the four metre norm for closed prisons, while domestic law continues to use 6 cubic metres or two square metres as the basis for the domestic norm for semi-open prisons. 
vi)	Neither the case law of the European Court nor the report prepared for the Committee of Ministers in May 2012 indicates that personal space of less than three metres is acceptable where there is greater time spent out of the cell. The assessment on behalf of the Committee of Ministers  notes:
‘35. In this context, the authorities appear to attach some importance to the measures taken by the NPA to counterbalance the effects of prison overcrowding (increase in the walk time and diversification of the activities outside the cell). However, neither these measures nor the specificities of the milder prison regimes can represent on their own a solution to the lack of sufficient individual living space in prisons. As outlined by the European Court, if these factors are relevant in determining the compatibility of the detention conditions with article 3  in a specific case, the living space afforded remains the core element of this assessment  and the activities outside the cells cannot compensate  for a severe lack of individual living space  (see article 62 of the Goh judgment) since in situations  of severe overcrowding  the  European Court  found violations  of article 3 on the sole basis of this element.’
(emphasis supplied)
28.	Mr Summers  responded as follows:
(i)	The presumption that a fellow Member State of the European Union and the Council of Europe will adhere to its obligations under the ECHR has not been rebutted in this case given the absence of a pilot judgment by the Strasbourg Court and in the light of the genuine engagement of the Romanian government with the considerable task of reforming an inadequate prison estate.
(ii)	There is no evidence that other EU states have suspended the EAW process because of prison conditions in Romania.
(iii)	There are no recent reports of the CPT critical of conditions in prisons which the appellant may well be returned to notably Satu Mare.
(iv)	Satu Mare is a semi-open prison in which prisoners spend considerable time out of their cells and this is a relevant factor in the Article 3 assessment. 
(v)	It is not contended that, overcrowding apart, other conditions are unsatisfactory or that in the light of the state’s duties to provide an effective remedy to determine complaints of violations if problems did in the future arise they could not be addressed domestically.
(vi)	Matters are improving and in the absence of any absolute standard this appeal should be dismissed as there are insufficient substantial grounds for a belief in a real risk of a violation.
29.	Although the appeal has principally been argued with respect to Satu Mare, there is another prison in the region where the appellant could serve his sentence. Oradea prison has a legal capacity according to Romanian law of 572 and a present occupancy of 532. It accommodates various classes of prisoner.  Romania now applies the CPT four metre standard per prisoner for closed conditions. There is a capacity of 119 in the semi-open section of the prison. It seems that this is based on the two metre standard for semi-open units. It is not apparent from the evidence before us whether the number of prisoners in the open section of Oradea means that the individual room space is above or below two square metres and how much of the floor space  is taken up by prison furniture. Mr Summers did not contend that a potential violation of Article 3 by reason of insufficient space in a semi open unit could be addressed by transferring the appellant to a closed unit inappropriate to the length of sentence passed upon him.
Conclusions
30.	The issues in this case are of importance, not merely for the appellant but for other cases of return under an EAW to Romania or indeed other countries where there are problems concerning prison overcrowding. The problems currently encountered in Romania are unlikely to be unique. The context of this decision is the mutual application of the scheme of the EAW under EU law. The starting point is the strong presumption that parties to the EAW will comply with their Convention obligations and provide adequate internal remedies for any claim of a violation.
31.	Nevertheless it is clear that the scheme of EU law is subject to the requirements of ECHR law and an otherwise lawful order for return under an EAW may be set aside if there are substantial grounds for fearing a real risk of treatment that would amount to inhuman or degrading treatment.  If there are such grounds removal is not possible however compelling the public interest in return: see the citation of authority in Badre (above) and the speech of Lord Kerr giving the judgment of the Supreme Court in R (EM (Eritrea)) v Home Secretary [2014] UKSC 12 [2014] 2 WLR  409 at [41], to [43], [58]-[64].
32.	The Supreme Court has clarified that the test is not whether a violation of human rights is systemic or systematic. However evidence of enduring problems with the system can support the existence of substantial grounds for a belief in a real risk of Article 3 ill treatment despite the starting point of the presumption of compliance.
33.	Equally, in our view,  the existence of a pilot judgment of the European Court may be  very good evidence of a structural or systemic problem that would in turn feed into the assessment of whether  there are substantial grounds for the fear of real risk. However, the absence of such a judgment does not negate the existence of structural or systemic difficulties. Rule 61 ECHR permits but does not oblige the Court to issue a pilot judgment whenever there is evidence of such a problem. This court can assess for itself whether overcrowding problems are systemic and enduring or individual and unpredictable.
34.	Although there have been other decisions of this court preventing return to specific places on the basis of recent information as to the state of prison facilities (see Aleksynas v Minister of Justice Lithuania [2014] EWHC 437 (Admin)) as far as we are aware it is only Badre where an appeal was allowed on overcrowding grounds generally based on a recent assessment by the European Court of Human Rights. In the circumstances of that case it was not necessary for the court to indicate a view on what precise amount of personal space was needed to avoid a violation irrespective of other features of the prison regime.
35.	We agree with the decision of this court in Achmant [2012]  EWHC 3470  that there is no inflexible international rule established by the Strasbourg jurisprudence  prohibiting return to a country whenever there is a reasonable likelihood that a prisoner will serve any time in a cell with less than three metres of personal space.
36.	Nevertheless, we also accept the submission of Mr Josse that where there is a real likelihood that a prisoner will serve a sentence in personal space of less than three metres, a serious issue of breach of Article 3 arises, without the need for other aggravating features and despite the good faith of the Government in seeking to address a problem of historic inadequacy in the prison estate.
37.	An important factor in determining whether the inadequate personal space results in a violation of Article 3 is the time the prisoner must serve in those conditions. Here the appellant has to serve a three year sentence which is a substantial sentence and a strong pointer to a future violation in the event of return. 
38.	However, in this case the sentence is to be served in a semi-open prison otherwise compliant with CPT criteria and with recreational and educational provision outside the cell.  Romanian law assigns six cubic metres as the relevant space in such semi open prisons. We are aware of the assessment of the Committee of Ministers (see [27(vi)] above) that less than three square metres is not sufficient even in a semi-open prison.  We note the violation  found by the Court in respect of Satu Mare, a semi-open prison, where personal space of less than two metres and in one period 2.25 metres was concerned ([24] above). We further note  that provision of precisely two metres was held to be a violation in respect of a person held for twelve months on remand ( [26] above). Although we are not informed of the nature of the prison regime in this case, it seems quite possible that it was a semi-open prison given that the applicant was not serving a sentence in excess of three years.  Despite this we are not aware that any decision has been given by the European Court directly criticising the continued existence of the 2010 law in Romania according to which two square metres is considered satisfactory for 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.
41.	Consideration was given at the hearing to whether the state should be given the opportunity to give an undertaking.  Mr Josse submits that the respondent has had more than reasonable time to submit its evidence and offer any undertakings it thought appropriate to give. He argues that the matter has been outstanding for more than a year and finality is required. Mr. Summers responds that the prison issue has only been a live one since January 2014 when the appellant presented his evidence on the question. The state has responded with evidence relating to Satu Mare but until the assessment of  this evidence was known it has not been practical to give either full details of alternative prisons or formulate any undertaking with the precision required to satisfy the court. 
42.	On this question we prefer the submissions of Mr Summers. It is difficult for the state to formulate an undertaking until there is some indication of what it needs to do to avoid a future breach of Article 3 in an EAW return case. We agree with McCombe LJ’s assessment in Badre that a general undertaking to comply with Article 3 is of no assistance.  In the case of Government of the Republic of South Africa v Dewani [2014] EWHC 153 (Admin), this court was faced with the problem of whether it would be unjust or oppressive to return a man who was presently unfit to plead to South Africa to face trial there. It resolved this question in the following terms:
59.	We therefore answer the question as follows: it might be unjust and oppressive to order the return of a person who was agreed to be currently unfit and where there was a prospect that he might remain permanently unfit without considering whether an undertaking should be required from the requesting state. 
60.	The circumstances of this case are such that we consider on the findings made by the District Judge, it would be unjust and oppressive to return him without such an undertaking. It must be for the Government of the Republic of South Africa to decide whether it wishes to give such an undertaking to the following effect. In the event of the appellant being found unfit to be tried, he will be free to return to the UK, unless there is found to be a realistic prospect of his being tried within a year (or other stated reasonable period) of that finding and the trial takes place within the period. In any event the appellant must be free to return in the event a Court in South Africa, having found him unfit to be tried, embarked on the process of determining under the Criminal Procedure Act 1977 whether he did the act. 
61. If such an undertaking was given, then it would not be oppressive or unjust. 
43.	The South African Government gave the undertaking sought within the time frame established by the court and there was a subsequent hearing to determine whether the undertaking was sufficient. In the case of Shankaran v Government of India [2014] EWHC 957 (Admin) this court gave further guidance at [53] to [69] as to the adequacy of undertakings in cases of potential breach of human rights.
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.
45.	In reaching this conclusion we are merely deciding the appeal on the particular facts of the case and not attempting to set new standards for Romania or elsewhere. 
46.	The appellant is at liberty and with the imminence of the vacation we consider that we should give the respondent until 4.00pm 1 September 2014 to provide to the appellant and this court the undertaking in the terms sought. The appellant will then have until 4.00pm 8 September to inform the respondent and this court whether he disputes the sufficiency of the undertaking.  If he does the case will need a further hearing; if not orders will be drawn up disposing of the appeal without a hearing.