Andelko Mikelic v County Court of Zagreb (Croatia)

In extradition proceedings involving prison conditions, the adequacy of a diplomatic assurance is assessed factually and in the light of all available evidence. No special admissibility test applies according to the identity of the official giving the assurance. Relevant considerations include the assurance’s specificity, reliability, practical operation and the conditions in the receiving state.

Where reliable assurances secure at least three square metres of personal space, and the detainee’s stay is temporary with substantial time spent outside the dormitory, other adverse features such as overcrowding, hygiene and repair may not establish the minimum severity required for Article 3. The court may reject requests for further assurances, expert evidence or inspection where the existing material adequately resolves the risk.

The appellant had been ordered to be extradited to Croatia to serve the balance of a sentence for tax fraud. His Article 8 challenge had been dismissed. His Article 3 challenge concerned the risk of detention in the Diagnostic Centre at Zagreb Prison, where evidence indicated overcrowding and poor conditions.

Following an earlier judgment finding a real risk, the Croatian authorities provided further information and an assurance that he would initially spend approximately 30 days in the Diagnostic Centre, receive at least three square metres of personal space, and spend most of each day outside the dormitory undergoing diagnostic procedures and activities. The issue was whether the assurance sufficiently removed the real risk of treatment contrary to Article 3.

1. The Article 3 appeal was dismissed. The further information and assurance were sufficient to establish that the appellant would not face a real risk of treatment reaching the minimum level of severity prohibited by Article 3.

2. The source of an assurance is relevant but not subject to a special admissibility rule. An assurance from the Ministry of Justice, rather than the judicial authorities, could be adequate. The court had to adopt an open, fact-based assessment of its reliability, considering the assurance together with all the available evidence: Zabolotnyi v The Mateszalka District Court [2021] UKSC 14.

3. The assessment required attention to the quality and practical reliability of the assurance. Relevant considerations included its specificity, the authority of the person giving it, whether it could bind the receiving state, the state’s practices, and the possibility of objective verification. These factors were fact-sensitive and no preconditions governed the admissibility of relevant evidence.

4. The assurance was reliable. It clarified that the Diagnostic Centre stay would be temporary, approximately 30 days, and that the appellant would spend the majority of each day outside the dormitory undergoing interviews, tests and examinations, in addition to daily recreation.

5. Although Muršić recognised that hygiene, repair and other physical conditions could contribute to an Article 3 breach even where three or four square metres of personal space were available, the guaranteed space, the temporary and mobile nature of the detention, and the circumstances of the diagnostic process meant that the minimum severity threshold would not be reached.

6. The medical concerns did not independently establish an Article 3 breach. In light of the assurance and the oversight available from the ombudsman and the CPT, no further assurance, expert evidence or inspection was required. The appeal was dismissed.

• High Court (Administrative Court): Extradition was ordered on 11 January 2023. The appellant’s Article 8 ground was dismissed at an earlier hearing. Following an earlier judgment on the Article 3 issue, further information was obtained and the present Article 3 appeal was dismissed.