Marian Gurau v Suceava District Court, Romania

In extradition proceedings, an issue is raised at the extradition hearing where the requested person has made clear that the issue arises and the court has been invited to rule on it. Detailed oral argument is unnecessary. A restrictive approach could deprive the person of the statutory two-stage decision-making process.

On an appeal against extradition, the High Court must determine an article 3 issue itself where the statutory power to remit is unavailable. In assessing prison conditions, the court must apply the Muršić living-space principles and evaluate all material conditions cumulatively. A sufficiently specific and binding assurance from the requesting state may dispel the real risk arising from systemic prison deficiencies, particularly when assessed against detailed and current information.

The appellant was sought by Romania under a European Arrest Warrant to serve a sentence of three years and five months. His extradition had previously been remitted to the District Judge after an earlier appeal by Romania. On remittal, the District Judge rejected challenges based on specialty and article 8, but held that he had no jurisdiction to determine the appellant’s article 3 challenge because it had not been argued at the original extradition hearing.

The appellant appealed. The issues were whether article 3 had been raised, what consequence followed from the District Judge’s jurisdictional error, and whether extradition would expose the appellant to a real risk of treatment contrary to article 3.

1. Appeal dismissed. The District Judge had wrongly declined jurisdiction. The article 3 issue had been raised at the original extradition proceedings: the appellant had identified it as an issue, the respondent had provided an assurance, and the court had been invited to rule on it. The focus was not confined to what occurred during the hearing itself. A token or formulaic reservation would not necessarily suffice, but this case involved a genuine issue before the court.
2. The earlier decision in Dempsey v USA concerned an issue not raised at all at the extradition hearing and was distinguishable. The present case was not an entirely new bar raised on remittal. The statutory scheme preserved the appellant’s right to two levels of decision-making.
3. Because the appeal followed an order for extradition, the court had no power under Extradition Act 2003 to remit the matter to the District Judge. It therefore had to determine the article 3 issue itself, applying the principles in The Szombathely City Court and others v Fenyvesi and another. Permission was granted out of caution to raise the issue under section 27(4).
4. The applicable article 3 test was whether there were substantial grounds for believing that extradition would expose the appellant to a real risk of treatment contrary to article 3. Under Muršić v Croatia, personal space below 3 square metres in multi-occupancy accommodation created a strong but rebuttable presumption of a breach. Space between 3 and 4 square metres remained a weighty factor, requiring assessment alongside other conditions.
5. The Romanian assurances were sufficiently specific and binding when read with the available evidence. The assurance of at least 3 square metres, excluding sanitary facilities, and detention in decent conditions respecting human dignity was materially significant. The evidence showed improvements at Mărgineni prison, and the cumulative conditions did not establish a real risk of article 3 ill-treatment. The case therefore failed at the first stage of the Aranyosi inquiry, so no further request for information was required.

• High Court (Administrative Court): In the first Gurau decision, [2023] EWHC 439 (Admin), the respondent’s appeal was allowed and the matter was remitted to the District Judge.
• District Judge (Magistrates’ Court): On 21 July 2023, the District Judge ordered extradition, having rejected the specialty and article 8 challenges and declining jurisdiction over article 3.
• High Court (Administrative Court): The present appeal was dismissed. The court held that article 3 had been raised and determined the article 3 issue itself.