Dan Marinescu & Ors v Judecatoria Neamt, Romania & Anor

Where systemic evidence has displaced the presumption that a requesting state will comply with article 3 in its prisons, that state must dispel any real risk of prohibited treatment. A non-judicial assurance requires an overall assessment of its practical effect and reliability.

Substance prevails over form. Calling a document an assurance is neither necessary nor sufficient. A senior prison official’s promise of detention in decent conditions respecting human dignity may amount to a binding and sufficiently clear assurance against article 3 ill-treatment, without separately guaranteeing every material condition. Such an assurance is presumed to be honoured absent cogent contrary evidence.

Three requested persons appealed against orders for their extradition to Romania under European Arrest Warrants. Each argued that limited personal space, combined with allegedly poor material conditions in Romanian prisons, created a real risk of treatment contrary to article 3 of the European Convention on Human Rights.

Romanian prison officials guaranteed at least 3m² of personal space and subsequently promised detention in decent conditions respecting human dignity. The appellants contended that the latter statement was merely general information rather than an enforceable assurance, and that European Court of Human Rights judgments and Romanian Ombudsman reports demonstrated its unreliability.

The central issues were whether the correspondence contained a substantive undertaking and, if so, whether it sufficiently protected each appellant against article 3 ill-treatment.

1. The appeals were dismissed. Romania had lost the benefit of the presumption that it would comply with article 3 in relation to personal space and material conditions in shared prison accommodation. That created no contrary presumption of non-compliance. The respondents therefore had to dispel the established concerns through sufficient evidence or assurances.
2. Each appellant was guaranteed at least 3m² of personal space. Because the likely space remained within the 3–4m² range, it was a weighty factor which had to be considered with evidence of other inappropriate physical conditions, applying Mursic v Croatia.
3. When deciding whether correspondence constitutes an assurance, substance prevails over form. The court must identify what was promised and by whom. The promise should unequivocally be a solemn undertaking binding between the states, but describing a document as a guarantee or assurance is neither necessary nor sufficient.
4. Read together, the letters from senior Romanian prison officials both described the relevant regimes and guaranteed that each appellant would be detained in decent conditions respecting human dignity. That was a clear assurance that detention would not violate article 3 of the European Convention on Human Rights. It applied throughout the relevant prisons and required no further itemisation of individual material conditions.
5. Although the assurance was not issued or endorsed by a judicial authority and was general in form, its authors occupied senior positions within the prison system, could know and direct prison conditions, and acted in good faith. A stereotyped form did not make the assurance unacceptable. The undertaking was intended to bind Romania and the United Kingdom, and breach could have significant consequences for bilateral extradition relations.
6. The European Court of Human Rights judgments and Ombudsman reports did not rebut the presumption that responsible senior officials of a Council of Europe or European Union state would honour their assurances. Almost all the cited European cases concerned prisoners receiving less than 3m², and there was no identified case in which Romania had breached an assurance given to a returned person.
7. The assurances satisfied the four general conditions stated in Sunca v Iasi Court of Law [2016] EWHC 2786 (Admin): compliance would prevent article 3 treatment; they were given in good faith; there was a sound objective basis for expecting fulfilment; and compliance could be verified. No further information was required. The additional evidence could not satisfy the Fenyvesi test of decisiveness and was not received.

1. High Court (Administrative Court): Dismissed all three appeals and upheld the extradition orders.
2. Westminster Magistrates’ Court: District Judge Hamilton ordered Dan Marinescu’s extradition on 13 November 2020; District Judge Zani ordered Florin Rusu’s extradition on 27 November 2020; and District Judge Griffiths ordered Iulian Varlan’s extradition on 18 November 2020.