CO/11010/2013 
Neutral Citation Number: [2014] EWHC 4367 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

27th November 2014
 
B e f o r e: 

MR JUSTICE BLAKE
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Between: 
THE QUEEN ON THE APPLICATION OF FLOREA 
Claimant

v 

AUTHORITY OF CARE COURTHOUSE SARU 
Defendant 
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Mr D Josse QC & Mr B Keith(instructed by  Virdees) appeared on behalf of the Claimant

Mr M Summers QC A Payter (instructed by CPS) appeared on behalf of the Defendant
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J U D G M E N T
MR JUSTICE BLAKE:  1.	On 30th July 2014 this court constituted as a Divisional Court of the Administrative Court, handed down its judgment in this appeal from the decision of District Judge Rivlin, whereby he ordered the appellant's return to Romania on a conviction warrant to serve a sentence of three years with the  neutral citation of [2014] EWHC 2528 (Admin).  

2.	The issue in substance between the parties was whether the overcrowding in prisons in Romania is such that there were substantial grounds to fear a real risk of a breach of Article 3 ECHR in the event of the appellant being returned to Romania to complete his sentence. The court said 

"6.  The way in which the appellant advances his case is confined to the issue of overcrowding. He does not contend that in 2014 other aspects of prison conditions are so systemically poor throughout Romania that they would prevent his return. Although there is no certainty on the present evidence precisely where the appellant would serve his sentence on return, the appeal has preceded on the basis of the likelihood, in the absence of special measures, that he would serve his sentence in the nearest regional semi‑open prison to his place of conviction and former residence, Satu Mare. Sentences of three years and less are served in semi‑open conditions. …..
 		…..

39.  The appeal has been conducted in the light of the appellant's probable placement in Satu Mare prison. We are satisfied that to return a prisoner to serve a three years sentence in a collective cell where the personal space is in the order of 1.56 metres, whatever the precise arrangements for deployment of furniture itself would amount to a violation of Article 3. If that had been the only prison to which he could have been returned we would, therefore, have allowed the appeal outright. 

40. However, there is at least the possibility of the appellant being returned to the semi‑open part of Oradea prison where the occupation rate is calculated on the two square metre criterion, and present data suggests that there is under‑occupancy. Recent changes may cause that under occupancy to be maintained in the future. In those circumstances we would not be satisfied as to the existence of substantial grounds of an Article 3 risk if the appellant were to serve his sentence in a semi‑open prison with more than two metres of personal space.

		……
44. We therefore propose to answer the issue arising in this appeal in the following way. We conclude that it would be a breach of this appellant's human rights if he were to be returned to serve his sentence in any prison where he had two square metres or less of personal space. If the state were able and willing to provide undertakings that the appellant would serve his sentence in semi‑open conditions in a cell where he had personal space in excess of two metres, we would not be satisfied that there where substantial grounds for believing that there was a real risk of a violation of Article 3 by reason of overcrowding."

3.	The court thus indicated that it would be a breach of the appellant's human right to serve his sentence in any prison where he had less than two squares metres personal space and that the undertaking sought was in respect of semi‑open conditions and a cell that was in excess of two square metres.

4.	The court's concern was with semi‑open conditions because that was the focus of the contested issues debated between the parties.  This was the case for two reasons.  First, in a submission dated 6th June 2014, the responsible officer of the Ministry of Justice in Romania had stated that according to Article 36 of the Law 2547/2013 the closed regime is initially applied to persons sentenced to more than three years' imprisonment but under 30 years and according to Article 37 of the same law the semi‑open regime is applied to persons sentenced to more than one years' imprisonment without exceeding three years' imprisonment.

5.	Since this appellant was sentenced to three years' imprisonment and as far as that can be calculated that is the time that he has to remain to be served, the common assumption of the parties and the court was that three years was not more than three years, accordingly the semi‑open regime is applied even though the terms of the law there being recited refers to "initially applied".  There are other indications in the same documents that that is a case.  Elsewhere it says: 

"According to the provisions of Article 37 of Law 254/2013, the half‑open type of imprisonment is initially applied to persons sent to imprisonment exceeding 1 year but no more than 3 years."

6.	The second reason why the court's attention in July was focused upon the problems of overcrowding in semi‑open prisons was that the skeleton argument submitted on behalf of the requesting State by Mr Summers QC was based on his understanding at the time  that the initial allocation specified in Articles 36 and 37 will also apply (absent exceptional circumstances) to the subsequent allocation of prison in which the remaining sentence after the 30 days initially is to be served.  That assumption was not challenged by Mr Josse QC, appearing for the appellant, and the court therefore dealt with the matter on the basis of the agreed issues as defined by the parties.

7.	For those reasons no consideration was given by this court to the possibility of services of a part of the sentence by this appellant in closed conditions either during an initial assessment period or after.

8.	 On 29th August the Ministry of Justice of Romania, through its Director of International Law and Judicial Co‑operation (Mrs Onaca), responded both to this court's judgment as a whole and to its request for assurances.  In the earlier part of the document it pointed out that this court had proceeded in error in assuming that the appellant would be serving a sentence throughout in semi‑open conditions. 

9.	Two points were taken.  First, it is now said that Articles 36 and 37 were different in terms to the way they were described in the June document and that the closed regime is applied to persons sentenced to three years or more and the open regime is limited to people under three years' imprisonment.  

10.	On that sub issue the appellant's expert, Miss Hatneanu, responded on 17th October 2014, pointing out that this revised view of what the two Articles said was an error.  On the face of the information now before the court that may well be right because on 14th November 2014 further representations were made by the government of Romania which included an English translation of the two Articles in question which seemed to correspond with what this court was being told initially, namely, closed conditions if it is imprisonment for more than three years and open if it does not exceed three years.  As a matter of ordinary language three years is not more than three years.

11.	 However, on the second issue, namely what happens once a prisoner moves beyond the 30 day assessment period governed by Articles 36 and 37, the position is different. Mr Summers QC accepts that he misunderstood then position and therefore inadvertently misled the court in his skeleton argument. With the benefit of hindsight, it does appear that this court was informed by Mrs Onaca that the decision as to where a sentence is served after the initial period of assessment is governed by Article 39 of the same law. The place of service of the custodial sentence is established by the relevant authority upon its first session after the end of the quarantine or observation period when a number of factors are to be considered, including but not confined to the length of the custodial sentence. The sentenced person may file a complaint to the judge supervising the sentence against the decision of the commission. It is also relevant to the view of the Romanian law that has now been clarified by the subsequent observations of August 2014 that in June 2014 the court was told the following:  

"The convict ...  serve his sentence at Satu Mare Prison if his half open prison, established or at Oradea Prison if he were to serve a sentence in a closed regime." 

That perhaps should have been sufficient to have alerted all that there was that possibility of serving a sentence in a closed regime.

  11.	Returning now to the 29th August representations, the court is informed that for a person who has three years or more to serve it is likely that a closed regime would be applied.  However, it is possible that a semi‑open regime could be applied if exceptional factors exist.  If a closed regime is applied at this stage the regime is likely to apply to the appellant for one‑fifth of the sentence.  After that period elapses the regime would have been reviewed again	.  At that stage it is likely he will be transferred to a semi‑open regime.  

12.	With that clarification of evidence concerning the legal regime that exists in Romania the allocation of prisons to the type of penal institution and type of the regime the letter then reverts to the question of the assurances.  It continues as follows: 
 
"Because the system described above is designed to allow the most appropriate rehabilitation programme implied to the imposition, it is impossible for us to guarantee that (the appellant) will be detained in a semi‑open regime for the entirety of his sentence.  The above notwithstanding, with reference to paragraph 1 the order of the High Court of England and Wales dated 13th July 2014 the Romanian authorities provides the following undertakings regarding the execution of the sentence set in the European Arrest Warrant in question: 

(i) during any period for which (the appellant) is allocated to a closed regime he will be held in Oradea or Arad Prison where he will be provided with personal space between 3 and 4 square metres.  
(ii) during any period for which (the appellant) is allocated to a semi open or open regime he will be held in one of the following prisons, in which we will make sure that he will be provided with personal space in excess of 2 square metres: Bistritia, Braiia, Devea, Gaesui, Goartaalba and Timisara."
The current square meterage and statistical occupancy rates were also provided. 

13.	Following further comments on this document from the appellant's expert, Miss Hatneaunu, the Ministry of Justice sent, under cover of a letter dated 14th November, a further document signed it seems by the Director General of the National Administration of Penitentiaries and confirming various matters. Responding to the  expert’s comment that prison populations fluctuate in general, the following was said at 2.2 of the letter: 

"Our undertaking has been given assuming that any given prison is or may be in the future be operating at maximum recall capacity.  
2(b).  We therefore like to explain and repeat that our assurance addresses the personal space which will be made available to Mr Florea personally throughout the duration of his sentence. We have undertaken to ensure that (the appellant) himself will be provided with the minimum conditions specified in our letter of 29th August 2014.  We would like to clarify that the undertakings of personal space provided in points (i) and (ii) in our letter dated 29th August 2014, refer to personal space during the ....  In addition that it has to be underlined that in the penitentiary an open and semi‑open regime the pertaining the whole day and ... space
(c) within each of the prisons we have nominated in our letter of 29th there are currently, capable of police maximum link capacity providing personal space as submitted."  

14.	The letter then deals with circumstances in which he may have to be moved outside of the two prisons, if he was wanted by a judge or prosecutor for attendance at a police station of if the appellant expressly requested it.  It then responds to the point raised by the appellant's expert as to whether there was any external monitoring.  The response can be summarised as follows the Romanian authorities co‑operate fully with the Romanian ombudsman in the process of being established and Helsinki Committee and pointing out that the appellant will be able to complain to either of the bodies and they would have the ability to investigate. Further the execution of the person's sentence is at all times supervised by a judge.

15.	On the basis of that information and pursuant to the directions given by the court the appellant submitted a skeleton argument as to the adequacy of the assurances and an oral hearing was listed to consider these matters, on this occasion not a Divisional Court. 

16.	Mr Josse, on behalf of the appellant, makes four points, three of which have been supplemented by oral submissions today.  First, the confusion and/or the change of position as to precisely in what type of prison the appellant will be serving his sentence means that the undertakings offered in August do not meet what the court required in paragraph 44 of its judgment and in its subsequent order.  Secondly, it may make the court more concerned about the accuracy or reliability of information being provided by the Romanian authorities. The information about conditions in which circumstances in which either Oradea or Arad Prison may not be the closed facility in which he is held show an attempt to modify the assurance. Third, that applying the various criteria identified by the European Court of Human Rights in the case of Othman v United Kingdom 17 January 2012 , from paragraph 187 onwards, that one important question as to the practicable effect of the assurances was whether there was monitoring of those assurances and it is submitted that best practice suggests that there should be a national enforcement mechanism by the State's parties to Optional Protocol of the Convention Against Torture and that had not been established in Romania. So far the Prison Ombudsman is concerned it is only very recently been established with no experience in monitoring. Fourth, overall when closed conditions are now considered the terms of the assurance covered between the representation in August and November does not amount to an assurance that he will be serving the sentence in the two named prisons subject to the exceptions mentioned in November and in any event he would serve the sentence in conditions of no less than three square metres. 

17.	 I am grateful to the assistance that both parties have provided to the court in their written and oral submissions, but I am nevertheless satisfied that the government of Romania, through the Ministry of Justice, has provided specific assurances in response to the earlier judgment in these proceedings. The good faith of the government in making them is not in issue, as Mr Josse made plain. In my judgment the assurances are sufficiently precise and reliable to eliminate the substantial grounds for believing that there would be a real risk of violation by reason of prison overcrowding. I reach that conclusion for the following reasons.

18.	First, it is only prison overcrowding rather than any other conditions of prison that are the focus of this case as paragraph 6 of the court's judgment makes clear. Indeed any other kind of violation would be impossible to adjudicate upon in advance given the shifting circumstances that may contribute to Article 3 findings of a violation. 

19.	 Second, it is clear from the background evidence noted in the court's judgment that although there have been historic problems of overcrowding throughout the prison estate in Romania and that has led to many findings of violations by the European Court of Human Rights and critical reports by the European Committee for Prevention of Torture, the response of Romania has been to engage with those findings and to embark upon a programme of reparation.  Priority was given to prisoners serving in closed conditions and national law in Romania requires a minimum of four square metres for those prisoners.  Although there have been times when the national law requirement has not been met there is no current evidence of a systemic failure to meet these standards. There is no evidence of a consistent failure in recent years to meet three square metre criteria favoured by the European Court and even if the court's attention had been focussed on closed prisons in the hearing of July 2014, it is quite likely that the generic evidential picture would not have reached such a state of concern as to have required specific undertakings at all.  Nevertheless, given the confusion that Mr Summers acknowledges existed in July as to whether this appellant would be serving some of his time in closed conditions or not, specific assurances were sought and have been provided to the court.

20.	The third point is that the court, at paragraph 44 of its judgment, was not seeking an assurance that this appellant would always serve a sentence in semi‑open conditions.  The assumption is that he would be and the thought that he might not was never a live issue before them.  What the court was seeking was in the event that he was serving his sentence in semi‑open conditions, he should be given at least in excess of two metres of personal space.  Therefore I do not accept the terms of the August assurance failed to address or failed to meet the assurances that the court was required. 

21.	Fourth, the assurances can be read as a whole as between the August letter and the November letter and when read as a whole, I am satisfied do amount to an assurance given on behalf of the government of Romania that he would serve a sentence in one of two closed prisons, subject to the exceptions spelt out in the November letter, and in any event, in those prisons and elsewhere in closed conditions the minimum three metre threshold will be provided for them. In those circumstances, it is not necessary to make any evaluation as to what prison occupancy rates and overcrowding conditions are going to be like generally over the next three years in Romania. But it is the case that on such data as Romanian government has provided that Oradea prison , in its closed part at least, even when there is overcrowding higher than a four square metre rate applied by national law, does not go below the three square metre limit. Thus at present assumption there may be as many as 506 prisoners in the closed units against the target of 453, that would still, amount to 3.3 metres of personal space.

22.	The fifth point, is that in so far as there is any ambiguity as to Romanian law concerning the first 30 days of sentence, that is a question for the Romanian court to determine and not this court.  Far less has this court any function to decide how prison allocation is conducted in Romania or the type of prisons to which the prisoner serve.  If that is what the Romanian law permits and the Commission is given the responsibility of allocation. This court's sole interest is in reducing to the point of practical elimination any substantial grounds of a real risk of a violation of Article 3 of prison conditions and these assurances do address that if they can be relied upon. 

23.	Sixth, despite some suggestion in Mr Josse's skeleton argument that the assurances may not bind the prison administration locally, I am satisfied that they are given by the government of Romania and the Ministry of Justice and that is an assurance at intergovernmental level that is capable of being communicated and respected by all members of the executive of the government of Romania and there is no reason to doubt that the assurances given in good faith will not be respected. The appellant raised the problem of sudden influxes into prison that frustrates the ordinarily administration of prison allocation but these are assurances personal to this appellant and there is no reason to doubt that he will be treated by the administration in the light of the communication to them of these assurances and in accordance with them.

24.	I now turn to the question of Othman criteria for giving weight to assurances to reduce or eliminate risks of ill‑treatment.  They are dealt with at paragraph 189 of the decision of the European Court of Human Rights.  The first is whether the assurances were disclosed to the court ‑ they clearly have.  The second is whether they are specific or general.  I agree with Mr Summers that they are entirely specific as to prison location and personal to the appellant.  Third, they are given by the Ministry of Justice and bind the State of Romania.  Fourth, the local authorities can be expected to comply with them.  The fifth point is whether the assurances concern treatment which is needed or legal.  They are dealing with matters of prison allocation entirely in accordance with the law in Romania.  They are not assurances that unlawful acts will not happen or that the law in Romania has somehow suspended in dealing with this other person.  The sixth point, is an important one namely whether they have been given by a state party to the ECHR: they clearly have.  The seventh point is the length and strength of bilateral relations between requesting and receiving state. Romania has been a member of the Council of Europe since 1993 and been a member of the European Union more recently.  There are strong bilateral relations between Romania and the United Kingdom, not least in the very topic of execution of European Arrest Warrants.   The case law on European Arrest Warrants is replete with references to the mutual trust and confidence which the system depends between members and there is no reason to doubt that trust or confidence has been betrayed by Romania or ever would be in the future.

25.	  The eighth question concerned monitoring.  In my judgment, the recommendation of the Committee Against Torture of the best practice of national enforcement mechanisms for state parties to the optional Protocol to the Convention against Torture does not set a minimum standard in this area of law.  It is apparent from the case law of the European Court, including the judgments in Othman  itself that voluntary bodies and non‑governmental organisations can contribute to effective monitoring ‑ see paragraphs 202 to 2040.  In this case there 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.

26.	In answer to the ninth question it is common ground is the appellant was not previously ill‑treated.  The final question is whether there has ever been past failures of  assurances, of which there is no evidence

27.	Applying therefore each of those criteria but in the context of a fellow State of the Council of Europe in the United Kingdom government has regular and cordial relations there is nothing to doubt the reliability of these assurances. For the reasons I have previously given, they are directed to the very issues which would be the subject of concern to the court when this appeal was heard.  Even though it has only been at this hearing today that the question of the application of these assurances to closed conditions has been considered the parties have been able to focus their submissions.  Whatever the risk may be the appellant serving part of this sentence, probably no more than one‑fifth in closed conditions, I am satisfied that that contingency is also effectively dealt with in the assurances given by the government of Romania.

28.	For all these reasons the risk that there was in the court's mind in July has been sufficiently addressed.  That was the only basis on which a bar to extradition existed.  It no longer exists.  Accordingly, this appeal is dismissed.

MR SUMMER:  I am grateful my Lord.  By way of future conduct of this case, today's order dismissing the appeal begins within the 14 days within which the appellant can apply to certify the points of law as against this and the previous decision.  As a matter of fact that application has already been lodged.  We have it.  The government has 10 business days under the Practice Direction to reply to that.  I think that takes us to 11th December.  It is our intention to briefly reply to it.  Then for our part we would be content for that application to be dealt with by the court on the papers.
MR JUSTICE BLAKE:  Yes.  I think that will have to be dealt with by the Divisional Court.
MR JOSSE:  I was going to raise that second point as well my Lord.  As always I deferred from my learned friend in terms of the interpretation of the 2003 Act.  But the operative word is to the decision and we were concerned, so far as the 13th July was concerned, even though it did not dispose of the appeal one way or the other, that a decision had been made in relation to the issue for which we were seeking certification.  So that is why we put it in but in 14 days 13th July, and I was going to simply say that it is still a live issue.  It relates to the 2 rather than 3 square metre principle.  We prepared an argument.  We filed with the court and that does not ‑‑ 
MR JUSTICE BLAKE:  Being through the ethos (inaudible). 
MR JOSSE:  There is no point my Lord seeing it at this stage my learned friend understandably wishes to response.  However, we now ‑ that is the appellant's legal team ‑ need to consider whether to seek to provide the certification in relation to today's judgment and perhaps we could deal with it as follows.  We will let my learned friends know informally.  We have theoretically 14 days.  We will let him know within 7 days whether we intend to seek further certification in relation to today's judgment, and I hope that is a convenient and sensible way.
MR JUSTICE BLAKE:  Do you want to supplement what is already done by the point arising from the judgment, I have given and let him know and than you do one.
MR JOSSE:  We will let him know and then we will have 14 days from today to fight the steps.  The reason I mention that is because of course if we are going to do that my learned friend I am sure will want to address both issues in one go.  His time would start to run from the 14 days from today, under section 32 I think it is of the Act.  I hope that is satisfactory.
MR JUSTICE BLAKE:  Yes.
MR SUMMERS:  Yes, entirely.  I understand perfectly.
MR JUSTICE BLAKE:  You are content if we have your two submissions or at least one possibly supplemented and you give a response in writing.  You want to consider then whether you need an oral hearing? 
MR JOSSE:  I think it is extremely unlikely. But what I am going to do, and have done it against Mr Summers, we may wish to reply in writing.  But we will do that within a day or two. 
MR JUSTICE BLAKE:  You need to get this before Rafferty LJ and myself before the end of term and allocation caution of time ‑‑ 
MR JOSSE:  I am confident that there will not need to be an oral hearing.  There is an outside chance that we may wish to put a reply in.  It would be within a day or two of my learned friend's document being served.
MR JUSTICE BLAKE:  I note (i) you intend to supplement your existing application for certified point by communication to ‑‑
MR JOSSE:  Sorry to interrupt, we will let my learned friends know within 7 days whether we wish to avail ourselves of the 14 days in relation to today's judgment.
MR JUSTICE BLAKE:  If you do, when are you going to submit your...
MR JOSSE:  As is our invariable practice in cases like this it would be on the last day.
MR JUSTICE BLAKE:  Which is 11th December.
MR JOSSE:  Yes.
MR JUSTICE BLAKE:  You then have how long to respond? 
MR SUMMERS:  Ten business days under the Practice Direction.
MR JUSTICE BLAKE:  21st December.  All right.
MR SUMMERS:  I am quite sure we can respond more quickly if it would assist the court before vacation.  
MR JUSTICE BLAKE:  I think it better to put in the minds afresh and I think if you do not get to the end of vacation then I certainly am not going to be in London at the beginning of next it term.   
MR SUMMERS:  My Lord we will act with expedition.  To assist would my Lord be minded to order an expedited transcript in this case?  
MR JUSTICE BLAKE:  Yes, I will order an expedited transcript.  Thank you very much.