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  • Giulia Borgna

Court of Rome reverses self: Refusal of surrender to Romania for dire conditions of detention

Updated: Jun 9, 2022

By judgment no. 105 of 11.9.2018, the Court of Appeal of Rome refused surrender of a Romanian national for whom an EAW had been issued by Romania on the ground that his detention conditions would breach Article 3 ECHR.

The Romanian authorities provided assurances that, if detained in semi-open regime, he would be afforded at least 2 sqm of personal space and, if detained in closed regime, he would be afforded at least 3 sqm of personal space.

Although vague, the assurances were initially deemed sufficient by the Court of Appeal, but this finding was reversed by the Court of Cassation, which quashed the lower judgment and referred the case back to the Court of Appeal for another assessment on the issue of detention conditions. Notably, the Court of Cassation asked the lower court to seek additional information from the Romanian authorities regarding the actual conditions in which it was envisaged that the RP would be detained.

Upon request of the Italian authorities, Romania clarified that the RP would most certainly be detained in closed regime in a cell of no more than 3 sqm, including bed and toilet facilities.

Relying on the criteria laid down in the judgment of the European Court of Human Rights in the case of Mursic v. Croatia, the Court of Appeal refused surrender. In Mursic, the Grand Chamber held that there is a presumption of risk of degrading treatment if a prisoner is placed in a cell with less than 3 sqm of personal space. A presumption that, in the case at hand, the Romanian authorities failed to rebut. Moreover, according to the Court of Appeal the reduction in personal space would not be short and occasional considering the RP’s lengthy imprisonment term (more than 3 years).

The issue of prison conditions in Romania is far from settled. However, the Court of Appeal of Rome finally aligned to the settled ECHR and CJEU standards on the matter, upholding a presumption of ill-treatment for long-term prisoners held in closed regime in a cell less than 3 sqm, including bed and furniture. Ultimately, whether or not the Romanian authorities can guarantee adequate cell space will depend on the part of the country the RPs are from, which dictates where they would serve their sentence.

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