Reports that loopholes in the law allow Romania criminals to avoid extradition due to prison conditions are short of the mark. There are no legal loopholes only a massive and persistent failure of the Romanian Government to comply with human rights minimum standards.
There are serious and persistent problems with Romanian prisons. The problem was originally dealt with by the case of Florea. In that case, we argued that Romanian prisons were so overcrowded that there was barely space to move. Each prisoner was locked up for 23 hours a day and had under 3sqm of space to some as little as 2sqm (or the space of one single bed) to move about in. The toilet was in the corner of the room and not always screened so prisoner were kept for over 3 years in such conditions. Unable to move or do much other than lie on their bed (if they had one) all day every day. The court in Florea (No. 1) v Judge in Carai Courthouse, Satu Mare County, Romania  EWHC 2528 (Admin) including Blake J allowed Romania time to sort their prisons out and provide assurances that conditions would be compliant. The Romanian authorities provided those assurances, saying that they would give Mr Florea enough space to meet the minimum of human rights requirements. We argued that they would not be able to comply with them due to the immense overcrowding but we lost in front of Blake J in Florea (No.2) v Romania  EWHC 4367 (Admin). However, that was only the start of what has proved to be an ongoing battle between lawyers, Romania and the UK courts.
Mr Justice Blake in a very clever judgment helped Romania out by coming up with a new formulation on Article 3 of the European Convention on Human Rights. The European Court of Human Rights (ECtHR) had always said that a minimum of 3sqm per person was required this in itself being below the recommended 4sqm per prisoner. Mr Justice Blake said that if the prisoners were detained in semi-open conditions where they were allowed out of their cells for part of the day then they only needed 2sqm per person (one single bed of space). This was helpfully in line with the average space afforded to each prisoner in Romania!
The problem with assurances are that they are fundamentally unable to change their physical situation. The fact that a country promises to be better is not doubted but how can they produce more prison places at the drop of a hat and find more space in already appalling and overcrowded prisons. It is simply untenable for more than the odd prisoner who might be detained in an individual cell. So the UK began to extradite prisoners and the Romania NGO’s including the Helsinki Committee who monitored the Romanians compliance. As night followed day, however, Romania was unable to comply and cases began to come to the UK courts showing how Romania had failed to live up to their assurances. However, the High Court keep rowing the Romanians out of trouble and Christian Blaj and ors v Romania  EWHC 1710 (Admin) found that the assurances remained valid in spite of some problems. More breaches followed but the High Court kept dismissing the claims in Mures and others v Romania  EWHC 2786 (Admin).
But it isn’t just the UK who have concerns, other EU countries began to stop extraditing to Romania. Then calamity hit the Romanian system as the ECtHR issued two powerful judgments. The first was the case of Mursic v Croatia (2016) App 7334/13 which reminded Europe what human rights for prisoners meant. It made clear that 3sqm was the very minimum acceptable stating:
“137. When the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space…”
Gone was Mr Justice Blake’s formulation in Florea and so Romania had to provide humane conditions. Then the ECtHR hit Romania with a damning pilot judgment Rezmives and Others v Romania on 25 April 2017. The pilot judgment procedure is the nuclear weapon of the European Court. All cases of prison conditions in Romania were to be successful until Romania provided and implemented an action plan. They had avoided this measure a few years previously but had not implemented their promised action plan. The argument against Romania recommenced in the UK courts.
More cases came before the UK Courts but this time the ECtHR had given strong guidance and Romania were still working with Mr Justice Blake’s formulation and guaranteeing 2sqm. In June 2017 Irwin LJ and Collins J delivered another judgment, this time against Romania in Grecu v Romania  EWHC 1427 Irwin LJ said:
"It seems clear to me that the ECtHR has stated a deliberately crisp approach in Muršic, in the passage from paragraph 138 quoted above . The Court has been careful to stipulate that the factors must be “cumulatively” met. The first “factor” cannot be met here at all, on the present state of the assurances. The assurance is that 2m² will be guaranteed. That cannot be thought a “minor” reduction from a minimum of 3m². And it is the guaranteed minimum for the overall semi-open regime: that is to say, that is the long-term and normal provision of space. It cannot be characterised as either “short” or “occasional”.
He gave Romania one last chance.
For myself, I would grant a final opportunity for varied undertakings. There is the greatest incentive to foster the extradition system. It will be very highly undesirable if extradition to Romania stalls, in respect of these requested persons and no doubt others to follow. There are precedents for specific provisions in custody conditions (and indeed trial arrangements) to secure continuing extradition. Any undertaking will have to satisfy the Court that prisoners extradited will, save for short periods, and to a minor extent (meaning a minor reduction below 3m²), be guaranteed at least 3m² of personal space. Moreover, the guarantee would need to be in clear terms, and terms which cover the whole of the anticipated terms of detention. In other words, the assurance would have to be in compliance with the test in Muršic.
That is where the law presently stands. Romania are now issuing assurances but are often unable to meet the basic minimum standards and where they are unable to give requested persons minimum guarantees of 3sqm the cases are being discharged. In theory when or if Romania improve then the UK will extradite there and continues to do so in cases where the bare minimum standard can be guaranteed. But in a system where gross overcrowding and human rights breaches are commonplace, it may be some time until effective extradite resumes to Romania.
This isn’t a legal loophole it’s a question of the provision of fundamental rights. To deny prisoners human rights is a basic tenant of a civilised society. The prohibition on torture and inhumane and degrading treatment is an absolute right, no matter how heinous the crime is. Treating prisoners as subhuman degrades a society and upholding those basic and fundamental rights is one of the most important things that a state can do. The criticism of regimes by foreign and international courts over the course of time does change things, not instantaneously but incrementally and provided that there are improvements then we and other countries should continue to criticise until human rights meet basic minimum standards. To do anything less is unforgivable.
This article was originally published in the barrister on 6 December 2017 and can be viewed here.
Ben Keith is a barrister specialising in Extradition, Immigration, Serious Fraud, Human Rights and Public law. Ben is ranked in Chambers and Partners as a band 1 leader in the field of Extradition at the London Bar.