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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Florea v The Judicial Authority Carei Courthouse, Satu Mare County, Romania  EWHC 2528 (Admin) (30 July 2014)
Cite as:  EWHC 2528 (Admin),  WLR 1953,  WLR(D) 356,  1 WLR 1953
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE BLAKE
| RAZVAN-FLAVIU FLOREA
|- and -
|THE JUDICIAL AUTHORITY CAREI COURTHOUSE, SATU MARE COUNTY, ROMANIA
Mark Summers QC and Adam Payter (instructed by CPS) for the Respondent
Hearing date: 15 July 2014
Crown Copyright ©
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 Karalevicius 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).
"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 Kadikis v. Latvia (no. 2), no. 62393/00, § 52, 4 May 2006), these cannot constitute a decisive argument."
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.
'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.'
'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.
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  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.
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 follows31.12.2010 28,24431.12.2011 30,69431.12.2012 31,81731.1.2013 33,434As 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.'
(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.
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.
Note 1 508 x 2= 1016; 238 x 4= 952; 984 is the mid point between these two calculations. [Back]
Note 1 508 x 2= 1016; 238 x 4= 952; 984 is the mid point between these two calculations. [Back]