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6 July 2017 / by / in

Article 3 ECHR and prison conditions: What next?

In Grecu and Bagarea v Romania [2017] EWHC 1427 (Admin) the High Court has once again, despite finding that conditions of detention would most likely breach Article 3 ECHR, given the Romanian authorities more time to provide further assurances to the court. Conditions of detention in Romanian prisons have been the subject of litigation before the courts since Florea v Romania [2014] EWHC 2528 (Florea I) and yet the situation doesn’t appear to have improved.

Grecu’s extradition is sought to serve a sentence of imprisonment of one year and six months. As the term of imprisonment is less than three years, he will be returned to semi-open conditions. Bagarea’s extradition is sought to serve a sentence of imprisonment of three years and, if returned, he will initially be detained in closed conditions.

The Romanian authorities provided assurances that persons detained in semi-open conditions will be afforded at least 2 square metres of personal space and those detained in closed conditions will be afforded at least 3 square metres of personal space. These assurances are in the same vein as those provided in Florea I and II and in Blaj v Romania [2015] EWHC 1710 (Admin) and which were relied upon in The Court in Mures and Bistrita-Nasuad Tribunal v Zagrean; Petru Sunca v Iasi Court of Law, Romania; Stelian Chihaia v Bacau Court of Law, Romania [2016] EWHC 2786 (Admin) (Zagrean).

The question of the minimum standard of personal space required in detention was visited by the ECtHR in Verdeş v Romania (Application no 6215/14) where the court found a breach of Article 3 ECHR when a prisoner had been held in less than three square metres of personal space, in semi-open conditions that were described as ‘squalid’, for a period of around seven months.

In Muršić v Croatia (Application no 7334/13) the court found that “a strong presumption of a violation of Article 3 arises when the personal space available to a detainee falls below 3 square metres in multi-occupancy accommodation” (paragraph 124). The court stressed that, although a strong presumption, it is one which is rebuttable. If it is established that a detainee will be afforded less than 3 square metres of personal space then it:

“…remains for the respondent government to demonstrate convincingly that there were factors capable of adequately compensating for the scarce allocation of personal space. The cumulative effect of those conditions should inform the court’s decision…” (paragraph 126).

The court went on to provide guidance of what these factors would be:

“138. The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met:

(1) The reductions in the required minimum personal space of 3 sq. m are short, occasional and minor (see paragraph 130 above);
(2) Such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities (see paragraph 133 above);
(3) The applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see paragraph 134 above).”

The most recent ECtHR case concerning prison conditions in Romania concluded with the court initiating the pilot judgment procedure. In Rezmives and others v Romania (Application no 61467/12), the court found that the conditions in Romanian prisons and police stations routinely breached Article 3 and that the problem was systemic, resulting in the court initiating the pilot judgment procedure under Article 46 ECHR and Rule 61 of the Rules of the Court. In calculating the overall numbers in the Romanian system and the overall living space, the number incarcerated ranged between 33,434 and 28,062 for a capacity calculated at 18,820 (paragraph 37 of the judgment).

The cases from the European courts paint a very bleak picture of the state of the Romanian prison system. We have judgments from the ECtHR which show a systemic problem with overcrowding in Romanian prisons and which have consistently found conditions to breach Article 3 ECHR. In the past 4 years, the ECtHR have found violations of Article 3 in 150 judgments. We also have, in Muršić, the court finding that conditions in which personal space is less than 3 square metres would amount to a breach of Article 3.

Despite these decisions, in Grecu and Bagarea the court has not refused extradition; instead it is allowing the Romanian authorities an additional four weeks to provide further assurances regarding the minimum standard of space afforded to persons who are extradited. The court accepted that the current assurances fall short of satisfying the guidance in Muršić that the factors set out in paragraph 138 of that judgment are “cumulatively” met. In the case of semi-open conditions, the reduction in personal space of prisoners to less than three square metres would not be short, occasional and minor.

Following Aranyosi and Caldararu, the above procedure seems to be the preferred course of action in the High Court. We have already seen the court stay proceedings for assurances (or further assurances) to be provided by the Bulgarian and Belgian Judicial Authorities in other cases.

Although the court did not go so far as to draft the assurance itself, as it did in the recent case of Dzgoev v Russia [2017] EWHC 735 (Admin), it gave a very strong indication of what terms it should be in; i.e. it would have to be in compliance with the test in Muršić. Given the chronic problem of overcrowding in the Romanian prison system, which the Romanian authorities have not been able to get a handle on in the four years since the problem was first acknowledged, it is difficult to comprehend how they will be able to offer such an assurance in those terms. If, however, the Romanian authorities do come back with an assurance that complies with the test in Muršić, it will be interesting to see whether the court properly tests the reliability of the assurance or if it will simply be a green light to order extradition on the basis of “mutual trust and recognition”.

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