The Court In Mures & Anor v Zagrean

Extradition is not barred by a general risk of prison conditions contrary to article 3 where a sufficiently reliable individual assurance dispels that risk. The assurance should prevent prohibited treatment, be given in good faith, have a sound objective basis and be capable of verification.

Under section 20 of the Extradition Act 2003, the circumstances listed in article 4a of the European arrest warrant Framework Decision are not exhaustive. The court may consider the requested person’s conduct and other circumstances showing that surrender will respect fair trial rights. A person may be deliberately absent where his own conduct caused his ignorance of the trial.

Three related extradition appeals concerned Romanian European arrest warrants. A district judge discharged Alexandru Zagrean because prison overcrowding during the initial quarantine period created a real risk of treatment contrary to article 3 of the Convention. Petru Sunca and Stelian Chihaia appealed against orders for their extradition.

All three requested persons relied on Romanian prison conditions. Sunca and Chihaia also challenged findings that they had deliberately absented themselves from their trials for the purposes of section 20 of the Extradition Act 2003. Sunca additionally sought to rely on article 8 following his partner’s pregnancy.

The central questions were whether revised Romanian assurances dispelled the article 3 risk and whether the approach to trial absence in Cretu remained valid after the Court of Justice’s decision in Dworzecki.

1. The Romanian judicial authority’s appeal in Zagrean was allowed. Sunca’s and Chihaia’s article 3 appeals were dismissed. The revised Romanian assurances removed the real risk that any of the requested persons would be held in conditions contrary to article 3.

2. An assurance is evaluated by asking whether its terms would prevent prohibited treatment, whether it was given in good faith, whether there was a sound objective basis for expecting fulfilment, and whether fulfilment was capable of verification. Those questions are assessed contextually. Romania’s Convention and European Union membership, the European arrest warrant relationship and domestic and international monitoring protections were material. There was a strong presumption of compliance in the absence of clear, cogent and compelling contrary evidence.

3. Although earlier instances of non-compliance were serious, Romania had acknowledged its errors, reaffirmed the February 2015 assurance and introduced stronger monitoring. The later letters precisely guaranteed three square metres in closed conditions and two square metres in open or semi-open conditions throughout the warrant, including the quarantine period at Rahova prison. Embassy monitoring was unnecessary and inappropriate. Had the September assurance been before the district judge in Zagrean, she would have been bound to find no real article 3 risk.

4. Dworzecki did not alter the principles stated in Cretu. Article 4a identifies circumstances requiring execution of an arrest warrant despite absence from trial, but those circumstances are not exhaustive. Since absence is an optional ground for non-execution, the court may consider other circumstances demonstrating that surrender will respect defence rights. Those circumstances include a requested person’s manifest lack of diligence or attempt to avoid service.

5. A requested person may therefore be deliberately absent under section 20 where his own conduct caused his ignorance of the trial. Sunca knowingly signed a statement containing a false address and then left Romania. Chihaia knew of the summons through his mother and, in any event, left while aware that an investigation was continuing without arranging to receive court documents. The findings that both were deliberately absent were upheld.

6. Sunca’s partner’s pregnancy could not make extradition a disproportionate interference with their article 8 rights. Permission for Chihaia to advance an article 8 ground was refused as the proposed ground was not arguable.

• High Court, Divisional Court: Allowed the Romanian judicial authority’s appeal against Zagrean’s discharge; dismissed Sunca’s and Chihaia’s article 3 appeals; upheld the section 20 conclusions; and refused permission for Chihaia’s article 8 ground.
• Westminster Magistrates’ Court: District Judge Coleman discharged Zagrean on 8 August 2016 because of the perceived article 3 risk during the initial quarantine period. District Judge Baraitser ordered Sunca’s extradition on 5 May 2016. District Judge McPhee ordered Chihaia’s extradition on 13 August 2015.