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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cretu v Iasi Tribunal, Romania [2021] EWHC 1693 (Admin) (23 June 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/1693.html Cite as: [2021] EWHC 1693 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
PAUL CRETU | Appellant |
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- and - |
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IASI TRIBUNAL, ROMANIA | Respondent |
____________________
Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 15 June 2021
____________________
Crown Copyright ©
Mr Justice Johnson:
(1) he has been convicted in his absence and has no right to a re-trial, so he should have been discharged under section 20 Extradition Act 2003;
(2) extradition is incompatible with Article 3 of the European Convention on Human Rights ("ECHR"), having regard to the poor conditions at Rahova prison in Bucharest where the Appellant will spend 21 days in quarantine at the start of his sentence, before being transferred to another prison.
The European Arrest Warrant and Respondent's Further Information
European Arrest Warrant
"1. [X] Yes, the person appeared in person at the trial resulting in the decision.
2. [ ] No, the person did not appear in person at the trial resulting in the decision.
3. If you have ticked the box under point 2, please confirm the existence of one of the following:
…
3.2 [X] being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by the counsellor at the trial;
…
3.4 [X] the person was not personally served with the decision, but:
- the person will be personally served with this decision without delay after the surrender; and
- when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed; and
- the person will be informed of the time frame within which he or she has to request a retrial or appeal, according to Article 467 of the new Code of Criminal Procedure which will be 1 (one) month."
Information as to trial
Assurances as to prison conditions
"The quarantine and observation period covers … a period of 21 days in a room which shall ensure a minimum individual space of 3 square meters… According with the applicable legislation, each sentenced person has the right to walk every day in the open, at least one hour a day, plus, as case might be, the time dedicated to the performance of educational activities.
In this period detainees exercise all the rights provided for by the legislation on the execution of penalties and undergo the program for preparation for the deprivation of liberty. Convicted persons are accommodated in separate rooms, depending on gender and age, as well as on other legal requirements, internal rules or safety regulations.
In the quarantine and observation period various activities in the ?eld of initial assessment and intervention are conducted, medical checks are performed and information and research measures are ordered…
Furthermore, activities are conducted which are meant to help inmates get familiar with the regulations concerning order. discipline, behaviour, interaction with other persons, involving individual or collective activities performed by the prison administration.
…
…the National Administration of Penitenciaries can safeguard a minimum individual space of 3 square meters for the entire duration of the penalty enforcement, including the bed and furniture belonging to it, not including however the lavatory."
The hearing in the Westminster Magistrates' Court
"Please provide the court with information regarding the existing conditions and the prison regime at Rahova Penitentiary, in particular, regarding the availability of time a prisoner can spend outside their cell, the ventilation, natural light and air, adequacy of heating arrangements, the use of private toilet facilities and compliance with basic sanitary and hygiene requirements at the prison."
The District Judge's decision
Section 20
Article 3 ECHR
Ground 1: Section 20 Extradition Act 2013
The legal framework
"20 Case where person has been convicted
(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
"Decisions rendered following a trial at which the person did not appear in person
1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:
…
(b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;
or…
(d) was not personally served with the decision but:
(i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed;
and
(ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant."
"…
(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(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."
"It will 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 will be whether the EAW contains the necessary statement. Article 4a is drafted to require surrender if the European arrest warrant states that the person, in accordance with the procedural law of the issuing Member State, falls within one of the four exceptions. It does not contemplate that the executing state will conduct an independent investigation into those matters. That is not surprising. The EAW system is based on mutual trust and confidence. Article 1 of the 2009 Framework Decision identifies improvement in mutual recognition of judicial decisions as one of its aims. It also contemplates surrender occurring very shortly after an EAW is issued and certified. To explore all the underlying facts would generate extensive satellite litigation and be inconsistent with the scheme of the Framework Decision. Article 4a provides additional procedural safeguards for a requested person beyond the provision it replaced in the original version of the Framework Decision, but it does not call for one Member State in any given case to explore the minutiae of what has occurred in the requesting Member State or to receive evidence about whether the statement in the EAW is accurate. That is a process which might well entail a detailed examination of the conduct of the proceedings in that other state with a view to passing judgment on whether the foreign court had abided by its own domestic law, EU law and the ECHR. It might require the court in one state to rule on the meaning of the law in the other state. It would entail an examination of factual matters in this jurisdiction, on which the foreign court had already come to conclusions, but on partial or different evidence. None of that is consistent with article 4a of the Framework Decision."
Submissions
Discussion
(1) At [44] the District Judge cites Cretu (see paragraph 27 above), including, in particular, [34(iii)]: "An accused who has… 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."
(2) At [46] the District Judge accurately records that it is common ground that the Appellant was "personally absent from court."
(3) At [47] the District Judge correctly records Mr Hall's submission that the Appellant was not "deliberately absent."
(4) At [49] the District Judge makes a finding that the Appellant had mandated a lawyer to represent him in the trial.
(5) Immediately after that finding, the District Judge says "He was therefore not absent from his trial."
Ground 2: Article 3 ECHR
Submissions
Discussion
The test for compatibility with Article 3 ECHR
Application of Article 3 ECHR to cases of prison overcrowding
"the space factor remains a weighty factor in the Court's assessment of the adequacy of conditions of detention. In such instances a violation of art 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements."
Application of Article 3 ECHR in the context of extradition under Part 1 of the 2003 Act: mutual trust and confidence
Application of Article 3 ECHR to Romanian prison conditions
"The Court reiterates that, according to its case law, 3m2 of floor surface per prisoner in a multi-occupancy cell was the minimum standard for the purposes of article 3 of the Convention… It considers, in view of all the evidence presented before it, in particular that provided by the Romanian authorities on its request that the executing court authority had information about the personal space which would be reserved for the applicant giving rise to a strong presumption of violation of article 3."
"the Court observes that the assurances provided by the Romanian authorities concerning other aspects of the conditions of detention in Gherla Prison, such as freedom to move around and activities outside the cell, which were allegedly capable of discounting the existence of a real risk of a breach of article 3 (idem, §§ 135 and 138), had been described in a stereotypical way ['étaient formulés de manière stéréotypée'] and had not been included in the executing court authority's assessment of the risk."
"the caution against "stereotypical assurances" should be regarded as an exhortation to focus on substance rather than form, and should not be taken as meaning that any use of a form of words which has also been used in another case must necessarily be regarded as inadequate to satisfy a court that art.3 obligations will be observed. There are, after all, only so many ways in which one can express an assurance that a particular prisoner will be guaranteed at least 3m² of personal space wherever he is detained."
Conditions at Rahova prison
Should the Gheorghe material be taken into account?
Was the District Judge wrong to find that extradition would be compatible with Article 3 ECHR?
"…Mr Cretu will not be held in conditions which are overcrowded. Nor will he be deprived of exercise or fresh air. He will be allowed time away from his cell for at least an hour each day and if he attends educational activities, likely a longer period than this. On the evidence before the court he will be held at this prison for a period lasting no more than 21 days. He is guaranteed all rights provided for in legislation and the authorities guarantee that they are concerned to ensure an appropriate environment for the housing of prisoners. In light of these assurances I am satisfied that there are no reasonable grounds for believing that there is a real risk of a breach of Article 3 if Mr Cretu is extradited to Romania."
Application to amend
Outcome