Grecu v Cornetu Court (Romania) & Ors

For extradition to a state whose prison assurances provide less than 3m² of personal space, the Article 3 assessment must apply the cumulative approach in Muršić v Croatia (application number 7334/13). A strong presumption of violation may be rebutted only where reductions are short, occasional and minor, there is sufficient movement and out-of-cell activity, and the facility is otherwise appropriate without aggravating conditions. A long-term guarantee of 2m² cannot satisfy the first condition, even where the regime permits substantial time outside the cell. General evidence of systemic overcrowding may also displace the usual presumption that a Convention state will comply. The court may nevertheless allow a final opportunity for clear, case-specific assurances covering the anticipated detention.

Two linked appeals concerned extradition to Romania. Grecu faced a sentence of one year and six months and was expected to serve in semi-open conditions with 2m² of personal space. Bagarea faced a three-year sentence, with 3m² guaranteed in closed conditions but an accepted likelihood of later transfer to semi-open conditions with 2m². District Judge Ikram ordered Grecu’s surrender on 19 September 2016. District Judge Ashworth ordered Bagarea’s extradition on 23 November 2016. The central issue was whether the assurances disclosed a real risk of treatment contrary to Article 3, or whether time outside the cell and the semi-open regime could compensate for less than 3m².

Disposition. The court held that the existing Romanian assurances were inadequate, but suspended making final orders to allow a final opportunity for varied undertakings. Mr Justice Collins agreed with Lord Justice Irwin’s conclusions and indication as to further undertakings.

1. Under the approach in Muršić v Croatia (application number 7334/13), less than 3m² of personal space in multi-occupancy accommodation gives rise to a strong presumption of an Article 3 violation. Rebuttal normally requires cumulative satisfaction of three conditions: the reduction must be short, occasional and minor; there must be sufficient freedom of movement and adequate out-of-cell activities; and the facility must generally be appropriate, without other aggravating conditions.
2. The guaranteed allocation of 2m² in the Romanian semi-open regime was a long-term and normal provision. It was neither minor nor occasional. The substantial movement and activities available to prisoners could alleviate the effects of cramped accommodation, but could not cure the failure of the first cumulative condition.
3. The court accepted that the content of Romanian assurances, rather than their mere existence or reliability, was decisive. The 3m² guarantee for Bagarea’s initial closed detention did not avert the risk where transfer to semi-open conditions with only 2m² was anticipated. The systemic overcrowding and poor conditions identified in Rezmives et autres v Roumanie (App. Nos 61467/12) reinforced that conclusion. The ordinary presumption that a Convention state will comply with its obligations could not survive the combined effect of that evidence and the clear approach in Muršić v Croatia.
4. The court would allow Romania a final opportunity to provide clear undertakings covering the whole anticipated detention and guaranteeing at least 3m², save for short periods involving only a minor reduction. The order was suspended for that purpose. The court indicated that submissions should ordinarily be made within four weeks, with the appellants permitted 14 days to respond.

1. High Court (Administrative Court). On 20 June 2017, Lord Justice Irwin and Mr Justice Collins considered the appeals and suspended final orders to permit further undertakings from Romania.
2. First-instance extradition proceedings. District Judge Ikram ordered Grecu’s surrender on 19 September 2016. District Judge Ashworth ordered Bagarea’s extradition on 23 November 2016.