The Baia Mare Court, Romania v Varga & Ors

In extradition proceedings involving Article 3 risks arising from prison conditions, the assessment must be specific and precise. The executing court need assess conditions only in prisons where detention is actually intended, including temporary or transitional detention, rather than every prison to which the person might theoretically be transferred.

Where an assurance is ambiguous or uncertain, the proper course is ordinarily to seek clarification or a further assurance, provided this can be obtained within a reasonable time. Fresh evidence on appeal will not normally be admitted where it could, with reasonable diligence, have been deployed before the District Judge. An appellant must also serve the notice of appeal on the respondent; notifying the court office is not a substitute.

These conjoined appeals concerned Romanian requests for the extradition of Stefan-Geza Varga and Dumitru Turcanu. Varga had been discharged by District Judge Crane on the basis that Romania’s assurance concerning a minimum of 3m² of personal space did not guarantee Article 3-compliant conditions throughout his sentence. Romania appealed.

Turcanu’s extradition had been ordered by District Judge Goozée on the basis of a similar assurance. He appealed and sought to introduce expert evidence concerning overcrowding and material conditions at Târgu Jiu Prison. The appeals also raised issues concerning late service of Turcanu’s notice of appeal, the effect of subsequent assurances, and the admissibility of fresh evidence.

The Divisional Court allowed Romania’s appeal in Varga’s case and remitted the case to another District Judge. It dismissed Turcanu’s appeal.

1. Scope of the Article 3 assessment. The District Judge had erred in treating the possibility that Varga might later be held in other Romanian institutions as requiring assurances concerning all such institutions. Applying ML (Generalstaatsanwaltschaft Bremen) C-220/18 PPU, the assessment had to be specific and precise and was confined to prisons in which detention was actually intended, including temporary or transitional detention. Conditions in prisons where the person might possibly be held later fell within the issuing State’s jurisdiction.
2. Clarification of assurances. The meaning of an assurance was ultimately a question of fact. The formulation considered in Scerbatchi v Romania [2018] EWHC 3612 (Admin) was persuasive but did not determine the issue as a matter of law. More importantly, where ambiguity or uncertainty arose, the proper course was to seek clarification or a further assurance until it became clear that this could not reasonably be obtained. That approach was consistent with Aranyosi, Georgiev v Bulgaria [2018] EWHC 359 (Admin) and Government of India v Chawla [2018] EWHC 1050 (Admin).
3. In Varga’s case, the subsequent assurance removed the uncertainty and meant that the District Judge would have decided the relevant question differently within section 29(3)(a) of the Extradition Act 2003. The case was therefore remitted.
4. Turcanu’s expert evidence was refused. Under Szombathely City Court v Fenyvezi [2009] 4 All ER 324, evidence that could reasonably have been deployed below could not be introduced merely by attaching a human-rights label to it. A witness statement explaining the delay would ordinarily be expected.
5. Service of a notice of appeal on the respondent remained mandatory under section 26(4) of the Extradition Act 2003. Court staff could not be treated as a substitute for service.

• High Court, Administrative Court: Varga was discharged by District Judge Crane on 11 July 2018. Turcanu’s extradition was ordered by District Judge Goozée on 11 September 2018. The Divisional Court allowed Romania’s appeal in Varga’s case, remitting it to another District Judge, and dismissed Turcanu’s appeal.