Marian Dorin Pojega v Bihor Court (Romania)

In an extradition appeal raising prison conditions, the court may receive a fresh assurance from the requesting state whenever offered. The governing question is whether admission is in the interests of justice. Availability at the earlier hearing is relevant, but it is only one factor. The court should consider the reasons for lateness, practicability, bad faith, prejudice and the public interest in avoiding duplicative extradition proceedings.

An assurance which guarantees detention in decent conditions respecting human dignity, supported by sufficient detail about the proposed prison regime, may dispel a real risk of treatment contrary to Article 3 of the European Convention on Human Rights. The appeal was dismissed after the fresh Romanian assurance was admitted.

The appellant appealed under Part 1 of the Extradition Act 2003 against a District Judge’s order dated 24 January 2022 directing his extradition to Romania. Permission was granted on the issue whether prison conditions created a real risk of treatment contrary to Article 3 of the European Convention on Human Rights.

The District Judge had relied on a September 2021 Romanian assurance. While the appeal was pending, Romania provided a more detailed assurance dated December 2022. The respondent applied to admit it. The appellant accepted that, if admitted, it was materially identical to an assurance held sufficient in Marinescu and that the appeal could not succeed. The central issues were whether the assurance should be admitted and whether it dispelled the Article 3 risk.

1. The court admitted the December assurance. The High Court has an inherent jurisdiction to receive fresh information, including an assurance, from a respondent in an extradition appeal. The relevant test is whether admission is in the interests of justice.

2. The availability of the material at the earlier hearing remains relevant, but it is only one consideration. Assurances may be offered at different stages, including on appeal. The court must examine the reasons for lateness, whether the requesting state acted tactically or in bad faith, the practicability of earlier production, prejudice to the requested person and the public interest in avoiding delay and duplicated extradition proceedings. The criteria in section 27(4) of the Extradition Act 2003 and the approach in Fenyvesi do not govern a respondent’s application to admit fresh evidence.

3. The December assurance followed the judgment in Marinescu, was not previously available because it had not been requested, and placed the appellant in the same position as the appellants in that case. It gave detailed guarantees concerning the initial 21-day quarantine at Rahova Prison, including at least 3m² of space, daily time outside the cell and material detention conditions. It also guaranteed that the sentence would be served in decent conditions respecting human dignity.

4. There was no evidence of tactical delay or bad faith, and no material prejudice to the appellant. Refusing admission would likely have led to fresh extradition proceedings in which the same assurance could be provided, causing delay and duplication. Admission was therefore in the interests of justice.

5. Once admitted, the assurance dispelled the real risk of an Article 3 violation. The appellant accepted that it disposed of the appeal. The appeal was dismissed.

• High Court (Administrative Court): The appeal against the District Judge’s extradition order dated 24 January 2022 was dismissed. Permission to appeal had been granted on 11 January 2023.
• District Judge: An order for extradition to Romania was made on 24 January 2022, relying on a September 2021 assurance concerning prison conditions.