Gabriel Lucian Bobirnac v Constanta Tribunal (Romania)

In extradition proceedings, assurances from a requesting state may sufficiently protect a requested person against a real risk of prison conditions violating article 3 of the ECHR. The court must assess their substance, authority, clarity and practical applicability. A general assurance may apply to an individual extraditee where its language and surrounding documents show that it is intended to bind the requesting state.

Assurances may be admitted at any stage, including on appeal. Delay does not by itself justify exclusion. The court should consider the reasons for the delay, whether the requesting state acted tactically or in bad faith, the practicability of earlier production, and the public interest and interests of justice.

This was an appeal against an extradition order made by District Judge Zani at Westminster Magistrates’ Court on 18 May 2022 under the Extradition Act 2003. The appellant was to be returned to Romania to serve a sentence of three years, five months and 29 days.

The sole issue was whether the prison conditions he would face created a real risk of treatment contrary to article 3 of the ECHR. The District Judge accepted two Romanian assurances concerning minimum personal space and material prison conditions. On appeal, further assurances were offered, including Dr Halchin’s general assurance and an October 2022 assurance specifically referring to the appellant. The issues were whether those assurances applied to the appellant and whether they should be admitted despite their late production.

1. Appeal dismissed. The District Judge was not wrong to order extradition.

2. Assurances may provide a sufficient guarantee against a real risk of article 3 ill-treatment caused by prison conditions. Their quality and reliability must be assessed by reference to their substance and practical operation, including the authority of their authors, the clarity of the guarantees and the conditions they cover.

3. The application of Dr Halchin’s assurance was governed by Marinescu & Ors v Romania [2022] EWHC 2317 (Admin). That decision held that an assurance which described the relevant regimes and guaranteed decent conditions respecting human dignity could be relied upon even though it was not issued by the judicial authority, did not name the appellants and was general in form. The authors were senior figures in the Romanian prison system, and the assurance was plainly intended to be binding between the United Kingdom and Romania.

4. The same reasoning applied here. Dr Halchin’s assurance could apply to any requested person where the Romanian authorities proffered it. The October assurance additionally referred specifically to the appellant and covered both the quarantine period at Rahova and the later prisons. The court therefore did not need to determine the separate communications relied on in Gheorghita.

5. Late assurances are not excluded merely because they could have been produced earlier. Under Government of the United States of America v Assange [2021] EWHC 3313 (Admin), the court may receive and consider assurances at any stage, including on appeal. It must examine the reasons for the delay, whether the requesting state acted tactically or in bad faith, and the practicability of earlier production, while considering the public interest in extradition and the interests of justice.

6. There was no bad faith or tactical delay by Romania. The assurances responded constructively to evolving challenges concerning Romanian prison conditions. The procedural failure concerning Dr Halchin’s assurance resulted from an administrative lapse by the CPS and did not justify exclusion.

• High Court (Administrative Court): appeal against the extradition order made by District Judge Zani at Westminster Magistrates’ Court on 18 May 2022. Appeal dismissed.