The extradition of Doru Constantin Giana to Romania was ordered by District Judge Pilling, (“the Judge”) sitting at Westminster Magistrates Court on 22 April 2022. He appeals against that decision.

His appeal is allowed and he was discharged on 27 July 2023.

His extradition was sought by the Court of Roman, Romania, the Judicial Authority, (“JA”), on a European Arrest Warrant, (“EAW”) which had been issued on 23 February 2021 and certified by the National Crime Agency on 2 September 2021. He was wanted for return to serve a total sentence of 3 years and 10 months under the terms of an order issued by the Bacau Court of Appeal, which became final on 4 February 2021.

He has settled status in the UK, having lived here since 2007, whilst returning to Romania from time to time. He has also spent some time in Germany. He is married and has three children, two of school age. He has no convictions recorded against him in the UK.

The Appellant was arrested on the EAW on 23 September 2021 and the extradition hearing took place on 28 March 2022. Judgment was given on 22 April 2022. He had been held in custody since 9 March 2022. By the date of the appeal hearing he had served 16 months in custody and 5 months on curfew.

His application for permission to appeal on the Art. 3 of the European Convention on Human Rights, (“the Convention”), ground was stayed and consideration of permission on the Art. 8 and s. 25 of the Extradition Act 2003, (“the Act”), grounds was adjourned behind Marinescu & Ors v Judecatoria Neamt, Romania & Anor [2022] EWHC 2317 (Admin) (12 September 2022).

Permission to appeal was granted on 23 February 2023 as was his application to adduce fresh evidence and updated submissions. On the same date the Respondent was given leave to adduce fresh evidence and file updated submissions.

On 23 May 2023 the Appellant applied to adduce fresh evidence, a witness statement from Renata Pinter, his solicitor, and new material relating to prison conditions. Additionally he sought to add a new ground of appeal based on the case of Merticariu v Judecatoria Arad, Romania [2022] EWHC 1507 (Admin) (17 June 2022), in which permission to appeal to the Supreme Court had been granted on a ground relating to his entitlement to a retrial if returned to Romania. As is set out in the application, this is a matter which would only need to be determined if the appeal fails on the original grounds.

The EAW is a conviction warrant, relating to four offences. The Appellant was convicted of the theft of a car battery on 20 January 2013, it was valued at about the equivalent of £30. He was sentenced to a term of 3 years imprisonment which was suspended for 5 years.

On 29 December 2017 he committed two offences of theft by shoplifting of items worth £20 in total.

On 15 May 2018 he committed another offence of theft by shoplifting of goods worth £40.

The three offences of theft activated the 3 year suspended sentence and attracted a further term of 10 months. That made the total sentence to be served 3 years and 10 months.

The appellant was involved in a car accident in June 2015. He suffered serious injuries which led to the amputation of his left leg. He became dependent on the use of a wheelchair.

The Judge gave her decision in writing on 22 April 2022. At paragraph 10 of her judgment, she summarised the issues raised under the Act as,

She found that the appellant was a fugitive, that there were no bars to extradition and that his return would not be incompatible with his Convention rights.

The issue of prison conditions in Romania was an important question in the hearing, given the Appellant’s physical disabilities. The Judge was aware of the pilot decision in Rezmives and others and Bragadireanu v Romania (61467/12 and 22088/04) and the general proposition that prison conditions in Romania remain unsuitable and the need for the provision of assurances. The first assurance in this case is dated 14 October 2021 and the second is dated 21 October 2022 but was not provided until after the Judge’s ruling.

The first assurance set out that the Appellant would spend a quarantine period of 21 days in Rahova Prison. After the quarantine period “it is highly probable” that he would start serving his sentence in the closed regime in Margineni Prison. His “age and health status” was one of a number of criteria that would be taken into consideration by the “specialized commission” in determining the “enforcement regime”. The assessment of age and health is a general assessment of all detainees. After one fifth of the penalty the commission carries out another evaluation, based on the prisoner’s conduct, it is possible at that stage to be transferred to the “half-open regime” in Miercurea Ciuc Prison. Finally a prisoner might progress to Iasi Prison to serve the last part of the sentence in the open regime. The assurance sets out, in generic terms, details of room size, lavatory and bathroom facilities, visits, exercise and association. It is noteworthy that the opportunity “to walk” is a significant part of the exercise regime.

In the first assurance there is no information about what facilities would be available or special provisions made for any wheelchair user or this Appellant in particular. The following entry deals with provision for health care:

In response to questions from the Respondent about the “facilities and adjustments” that could be made for him, further information, dated 8 February 2022, was provided.

The Judge accepted that the further information provided was reliable and adequately dealt with the position of wheelchair users. She recognised that dependence on the support and assistance of other prisoners would make the Appellant more vulnerable. She found at [63] that if the Appellant’s “disability or mobility issues are such that if his needs cannot be met within the penal system, it is clear that the JA will suspend the sentence of imprisonment”. At [64] she went to say, “I can and must accept the assurance from the JA, coupled with specific information about wheelchair bound prison inmates. I am not persuaded that there are cogent reasons to go behind that to find that it cannot be accepted”.

The Judge also had a report from APADOR-CH following a visit to Miercurea Ciuc Prison on 1 April 2019 setting out difficulties about staff shortages, uncertainty about the provision of healthcare and the fact that shower facilities were only available on the first floor.

Fresh evidence in the 2022 CPT report on Margineni Prison relates to a visit a few months before the date of the written assurance and lists many criticisms but in particular, “the right of access to healthcare was not a reality”. The response of the JA to this report acknowledges an unsuccessful campaign to recruit personnel to fill vacant roles in mental healthcare provision. A later APADOR-CH report reveals widespread problems over overcrowding and cleanliness. It also describes increasing staff vacancies, especially in healthcare.

He appeals on three grounds.

There are many areas of overlap between the grounds. In essence the thrust of the appeal is that insufficient weight was placed on the difficulties arising from the Appellant’s physical difficulties when balanced against the nature of the offending, the length of sentence and the delay. Further that the assurances did not cure the problems.

Romania is a Category 1 territory, and Part 1 of the Act 2003 applies.

The Judge is required by s. 21 of the 2003 Act to consider whether extradition would be compatible with the Convention rights of the Appellant under the Human Rights Act 1998.

A specific bar to extradition in cases of physical or mental condition is provided by s. 25 of the Act, which provides:

Under s 26 of the Act, s 27 applies:

In Magiera v District Court of Krakow, Poland [2017] EWHC 2757 (Admin) the court dealt with an appeal under s.27, Julian Knowles J set out a distillation of the principle from earlier authorities in cases where a specific bar is raised under s.25 on grounds of health and disability.

An additional factor in this case is the proposed solution of the Appellant’s likely problems in the form of the provision of a ‘supporting convict’. The general principles in such circumstances were established by the European Court of Human Rights in Rooman v Belgium18052/11/31 January 2019 at [145] et seq,

In Potoroc v Roamnia 37772/17 2 September 2020 the ECHR dealt with a case in which the Applicant was a wheelchair user, albeit with more severe additional health problems than the Appellant. It dealt very fully with the provision of care by “supporting convicts”.

Again the ECHR also dealt with such provision in Epure v Romania (73731/17) 11 May 2021when it questioned at [71] whether the national authorities in that case, “did everything that could reasonable be expected of them to provide him with the medical care he needed…….”. That was a case involving a prisoner with mental health problems. However the court found in that case that the provision of a supporting convict in place of qualified staff meant that the authorities “failed to implement and provide a coherent and appropriate therapeutic strategy capable of responding adequately to the applicant’s medical needs, so as to avoid subjecting him to treatment contrary to Article 3 of the Convention”.

Of broader application at [83] the court said, “Having regard to the above and noting that the personal care assistants provided to the applicants on a somewhat occasional basis were clearly not trained to provide him with any first-aid measures, the court considers that in the present case the help offered by the applicant's fellow inmates did not form part of any effective assistance by the State to ensure that the applicant was detained in conditions compatible with respect for his human dignity. Such help cannot therefore be considered suitable or sufficient”.

There may be circumstances in which the offer and acceptance of assistance between prisoners is a commendable thing. Assistance with literacy, language or communication may be beneficial and appears to be unlikely to affect the dignity of the recipient of such help. However that is not to say that unqualified fellow prisoners should be required to provide care and support to a detainee confined to a wheelchair. It is not difficult to see how that would detrimentally affect the dignity of the individual, particularly in showering or bathing.

In this case the Judge did not deal adequately with the material available to her at the hearing. The “appointment of a supporting convict” is not an adequate substitute for professional care. The Judge did not find there to be any concerns arising from the lack of adequate day to care para-medical care, rather she concentrated on the provision of care by a GP. It is apparent that the Appellant needs regular care and help with getting to a bathroom, (possibly on a different floor), and other mundane tasks which should not be provided by an untrained fellow convict. There is a real risk that that is capable of “humiliating and debasing him”. He is vulnerable by virtue of his physical disability, that vulnerability could only be aggravated by any dependence on a fellow prisoner.

The Judge found that she could be satisfied that the assurance and further information was reliable, but she did not adequately assess the detail. She found at [63] that “If the RP’s disability or mobility issues are such that his needs cannot be met within the penal system, it is clear that the JA will suspend the sentence of imprisonment.”

That finding required deeper analysis. The ability to “interrupt” or postpone a sentence is contained in Art 589 of the Criminal Procedure Code which allows such a course where a ‘disease’ cannot be treated and which makes serving the sentence ‘impossible’ and the prisoner poses no risk to the public. It is not clear how that provision would work in this case. The Appellant already suffers from a disability, he is wheelchair dependant. How would it become apparent that it was impossible for him to serve the sentence? On the face of it, it might mean waiting until the impossibility had become detrimental to his physical and mental health before consideration would be given to a ‘forensic examination’ to determine whether it was impossible for the sentence to continue. It is not difficult to see the risks to health, wellbeing and dignity in such a course.

As Julian Knowles J set out in Magiera, following Dewani, the court is required to undertake an intensely fact specific approach. That exercise can only properly be undertaken where the requesting state has provided a response which deals with the specific concerns and needs of the individual. A general discussion on space and facilities is not helpful if it is not fact specific. The court would have been assisted by information about the location of bathroom facilities, provision of safety rails and other adjustments. Particularly in light of the apparent complaint that the shower facilities are on the first floor, if that is right, this Appellant might only have access to the shower or the exercise yard but not both.

When s.25 is raised as a potential bar to extradition the court must establish what precisely the individual requires to achieve a basic standard of health and wellbeing. Only then can the provision offered be assessed to see if it adequately meets the need. In this case the provision offered was the help of a “supporting convict” backed up by recourse to Art 598 so that the sentence would be postponed if it became “impossible” for the individual to continue. As is clear from Magiera the requesting state should not be expected to provide a detailed care plan or similar but information about the special measures available must be part of the Judge’s assessment.

The current position in respect of prisons in Romania means that assurances are required before requested persons can be returned. That is the general requirement before able-bodied individuals can be sent back to serve sentences in the general prison population. It is not difficult to see that more detail of specific provision is required for those who suffer from serious physical disability.

On the basis of the above this appeal succeeds on Ground 2. The risk of oppression arising from there being no provision of trained assistance and consequent dependence on the care of a fellow prisoner arises is clear. There was insufficient evidence before the Judge to allow her to reach a conclusion that there was no risk of a violation of s.25.

The fresh evidence would have driven me to that conclusion, but I am also satisfied that the Judge should have decided the question differently, it would be unjust and oppressive to return the appellant to serve the sentence.

This appeal also succeeds on Ground 1 in so far as the assurance provided dated 14 October 2021 was inadequate to deal with the obvious concerns arising from the Appellant’s condition.

It is not necessary to review the Celinski exercise on the more usual considerations. The Appellant’s physical condition and the lack of evidence of adequate provision being made within the prison estate is sufficient. It would be a highly artificial exercise to attempt to carry out the balancing exercise whilst ignoring his disability. Although it should be observed that this was not offending of the worst type.

In light of the above it is not necessary to consider his potential rights to a retrial if returned.

As all the authorities make clear such cases are entirely fact specific. It may be that other requested persons with similar disabilities could properly be returned on the basis of adequate information about the proper provision of care and assistance.