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Surrender to Romania refused as likely prison conditions are in breach of right not to be subjected to inhuman or degrading treatment

By: James Cross BL

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High Court, in European Arrest Warrant proceedings, refuses to order the surrender to Romania to serve sentence of two years and six months’ imprisonment for offence of driving a motor vehicle without a licence, on the grounds that the likely conditions of his detention will be in breach of the respondent’s right not to be subjected to inhuman or degrading treatment.

European Arrest Warrant – custodial warrant – Romanian authorities seeking the surrender of the respondent to serve sentence of 2 years and 6 months’ imprisonment for offence of driving a motor vehicle without a licence – points of objection – EAW and documentation before the Court – whether there was sufficient information provided - Court satisfied from reading the EAW and the additional information furnished by the issuing judicial authority as a whole that sufficient detail has been furnished so as to satisfy the requirements of s. 11 of the Act of 2003 – correspondence - respondent’s submission of a lack of correspondence due to him holding an Irish driving licence at the time of the offence is not supported by the evidence adduced before the Court - test for correspondence – correspondence established - sufficient similarity between the respective regulatory regimes in Romania and Ireland to justify the conclusion that the substance of the acts or omissions is the same, even though the specific relevant regimes necessarily differ as they emanate from the legal systems of two separate jurisdictions - previous execution of the EAW in Northern Ireland - accepted that following an order refusing surrender, there is no automatic bar to a further application being made on foot of a fresh European arrest warrant for the surrender of the requested person in respect of the same offences or sentences - reject the submission on behalf of the respondent that this Court is obliged to refuse surrender on foot of the order of the Northern Irish court refusing surrender in respect of the same European arrest warrant – abuse of process - fact that the requested person has already been the subject matter of a previous application for surrender in respect of the same matters may be of relevance in the context of a plea of abuse of process – relevant principles – delay - circumstances do not appear to me to be of an exceptional nature and fall well short of reaching what may be regarded as a level of unjust harassment or oppression that would render it an abuse of the process of this Court to surrender the respondent - personal circumstances are not exceptional - presumed that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown - a mere assertion of non- compliance, or the possibility of non-compliance, will not be sufficient to dislodge the presumption - deduction of the period of detention served in the executing Member State - if there is a dispute between the respondent and the issuing member state as to whether or not a particular period of detention is to be deducted, then that dispute should be resolved in proceedings before the issuing member state in the first instance and if necessary, can be adjudicated upon by the Court of Justice of the European Union if it is alleged that the issuing member state has failed to properly implement or interpret the provisions of article 26 of the Framework Decision - nothing before the Court to indicate that the Romanian authorities will not properly give effect to the provisions of article 26 of the Framework Decision - Court proceeds on the basis that the Romanian authorities will deduct such periods of detention as is required pursuant to article 26 of the Framework Decision - submitted that surrender was incompatible with the State’s obligations under the European Convention on Human Rights and would amount to a violation of the respondent’s right under article 3 ECHR not to be subjected to inhuman or degrading treatment due to prison conditions in Romania and/or under article 8 ECHR to a family life - no evidence has been adduced to indicate that the impact upon the respondent’s family life will be exceptional or out of the ordinary - adduced no evidence as to the conditions he was likely to face in prison – additional information sought - non-exhaustive list of principles regarding challenges to surrender based alleged risk of inhumane and degrading treatment - surrender should not be lightly abandoned in the face of an anticipated failure by the requesting state to detain the requested person in conditions compliant with article 3 ECHR – issuing authority could not give any assurance about prison conditions - respondent can be reasonably expected to remain in such limited space for at least one-fifth of his sentence - not a short, occasional or minor timeframe for a person to be detained in such conditions – satisfied that such a reduction in personal space will be accompanied by significant freedom of movement outside the cell and adequate out-of-cell activities – satisfied that the respondent will be detained in an appropriate detention facility - satisfied that other than the reduced personal space, there are no other aggravating aspects of the likely conditions of his detention – s. 37(1)(c)(iii) of the Act of 2003 provides for an absolute prohibition on surrender if there are reasonable grounds for believing that the person to be surrendered would be tortured or subjected to other inhuman or degrading treatment –likely the prison conditions will be in breach of the respondent’s right not to be subjected to inhuman or degrading treatment under article 3 ECHR and article 4 of the Charter – Court obliged to refuse surrender – no trial in absentia issue arises – surrender refused – State can bring fresh application when issuing authority can provide the suitable assurances –

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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