Tabuncic & Anor v Government of Moldova

In an extradition appeal, assurances cannot answer a substantial risk of treatment contrary to Article 3 ECHR merely by describing what prison authorities will do after violence or intimidation occurs. The assurances must reliably address the risk before it materialises and must be assessed against the evidence as a whole. Evidence of endemic inter-prisoner violence, informal prisoner hierarchies, ineffective prison control and breaches or apparent breaches of comparable assurances may render assurances unreliable. Where the extradition request rests on a significant sentence of immediate custody, probable reliance on a suspended sentence may undermine the basis of the request.

The Government of Moldova requested the extradition of Adriane Tabuncic to face trial and of Igor Coev to serve a sentence. A District Judge sent both cases to the Secretary of State, relying on assurances concerning prison conditions and protection from inter-prisoner violence. The Respondent later withdrew opposition to the appeals, but the appeals proceeded under CPR PD52A at [6.4]. The central issues were whether extradition would expose either appellant to a real risk contrary to Article 3 ECHR and whether the assurances could be relied upon.

1. The appeals were allowed. The appellants were discharged, the extradition orders were quashed, and there was no order for costs. The appellants’ legal aid costs were subject to detailed assessment.

2. The Court applied the principle that an appeal may proceed despite the respondent’s withdrawal of opposition where the appellant must satisfy the Court that the lower court’s decision was wrong: Rochdale MBC v KW (no. 2) [2015] EWCA Civ 1054, [2016] 1 WLR 198.

3. The evidence, including the CPT report and the Respondent’s response, demonstrated an acute and continuing problem of inter-prisoner violence linked to informal prison hierarchies. The Respondent’s response showed an almost total failure to address that problem in the prisons to which the appellants might be sent.

4. The assurances were not reliable. They principally addressed what would happen after violence or intimidation occurred, such as moving perpetrators or segregating the victim. They did not provide grounds for concluding that the substantial risk of violence or intimidation would be prevented in the first place. The information concerning Mr Simionescu, including his apparent removal from an approved cell contrary to the assurance, materially reinforced that conclusion.

5. The Court also held that, on the information then available, Mr Coev probably faced only a suspended sentence. Since the extradition request was founded on immediate custody, that substantially undermined the basis of the request.

6. The Court stated that future assurances and assertions by Moldova would require particularly anxious scrutiny, given the apparent breach of assurances in what was believed to be the first extradition from the United Kingdom to Moldova.

• High Court (Administrative Court): appeals from the Westminster Magistrates’ Court decision of 3 July 2020 were allowed. The appellants were discharged and the extradition orders were quashed.