In the case of Grecu v Cornetu Court (Romania) & Ors [2017] EWHC 1427 (full judgment can be found here) the High Court once again considered the issue of prison conditions in relation to extradition. Prisons conditions in Romania have been subject to litigation previously in Florea v Romania [2014] EWHC 2528 [“Florea I”] and Florea v Romania [2014] EWHC 4367 (Admin) [“Florea II”] .

As outlined in Florea I and II there are two regimes operating within the Romanian prison system – ‘closed’ and ‘semi-open’. The High Court in Grecu was asked to consider whether a recent decision of the European Court of Human Rights [“ECtHR”] which held that detainees must be afforded a minimum of 3 m2 of personal space meant that the requested persons must be discharged on the basis that the prison conditions in Romania would amount to a breach of their rights under Article 3 of the European Convention on Human Rights.

Grecu was convicted of burglary and his co-appellant, Bagarea, was convicted of growing cannabis. Grecu was sentenced to 18 months in semi-open prison conditions. Bagarea was subject to a three year sentence and would be initially detained in closed prison conditions before likely being moved to semi-open conditions.

The Romanian authorities, much like in Florea I and II, had provided written assurances to the UK authorities that semi-open conditions would allow at least 2 m2 of personal space and closed conditions will afford at least 3 m2 of personal space.

In the recent decision of the Grand Chamber of the ECtHR in Muršić v Croatia (Application no 7334/13), the European court held that less than 3 m2 of personal space gives rise to a strong presumption of a violation of Article 3, however, the court also emphasised that it: “…remain[ed] for the respondent government to demonstrate convincingly that there were factors capable of adequately compensating for the scarce allocation of personal space. The cumulative effect of those conditions should inform the court’s decision…”.

The factors cited by the European Court as capable of rebutting the presumption of a violation were as follows:

  1. Cases where the reductions in the personal space are ‘short occasional and minor’;
  2. Cases where reductions of personal space are ‘accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities’; and
  3. Cases where ‘there are no other aggravating aspects of the conditions of his or her detention’.

The appellants in Grecu submitted that, in light of the decision of the Strasbourg Court, there would be a violation of Article 3 in their cases unless the cumulative mitigating conditions identified in Muršić applied.

On the assurances provided by the Romanian authorities the High Court held that there was insufficient evidence to rebut the strong presumption of a violation of Article 3. However, the High Court declined to discharge Grecu and Bagarea at this stage. Instead, the court gave the Romanian authorities one further month to provide fresh assurances that would comply with the approach in Muršić.

It remains to be seen what will happen in Grecu and Bagarea’s cases. Whilst the decision in Muršić is clearly an important development in relation to prison conditions the High Court has again demonstrated the UK court’s approach in allowing and indeed encouraging requesting states to provide written assurances to deal with otherwise insurmountable obstacles to extradition.

The law in relation to extradition and prison conditions is constantly evolving.