Andelko Mikelic v County Court of Zagreb (Croatia) [2025] EWHC 1285 (Admin)

Case No AC-2023-LON-001061

[2025] EWHC 1285 (Admin)

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue The Royal Courts of Justice

Date Wednesday, 30 April 2025

Strand

London WC2A 2LL

Before

MR JUSTICE DOVE

Between

ANDELKO MIKELICAppellant

COUNTY COURT OF ZAGREB (CROATIA)Respondent

MR B JOYES (instructed by Sperrin Law) appeared for Claimant.

MS M MILLER (instructed by Crown Prosecution Service, Extradition Unit ) appeared for Respondent.

JUDGMENT

(Approved)

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[1]MR JUSTICE DOVE: On 3 February 2025, following a hearing on 21 November 2024, I gave a judgment in relation to these extradition proceedings, which gave rise to a decision which caused further enquiries to be undertaken leading to a further hearing on 14 April and the judgment which I am about to deliver. Prior to delivering it, I wish, again, to place on record my thanks and gratitude to counsel for their excellent and focused submissions in this case which have been of great assistance in enabling me to reach my conclusions.

[2]In this case, the appellant is wanted in relation to an allegation of tax fraud involving around £250,000. He was sentenced to two years and ten months and the sentence remains to be served. The sentence was issued on 30 May 2018 and confirmed on 4 November 2020. One year, two months and seven days of that two-year sentence still remains to be served after taking account of time which the appellant spent on remand.

[3]Extradition in this case was ordered on 11 January 2023. At the first hearing, there was an appeal with permission on the basis of article 8. I dismissed that ground of appeal.

[4]There was also an appeal on the grounds of article 3. This related to the conditions in which the appellant would be held in detention upon his return to Croatia. I addressed my conclusions in relation to the article 3 grounds of appeal in the following paragraphs of my first judgment: "47. In addressing these issues in respect of this appellant the first point is the question of where the evidence suggests he will be held upon his return to Croatia. This is because the focus of the appellant's case is not a systemic or generalised failure of the Croatian prison system but rather the conditions which have been recorded in Zagreb Prison and, still more particularly, the conditions in the Diagnostic Centre at that prison. The authorities are clear that the court should consider not only deficiencies which are systemic and generalised but also those which may affect certain groups of people or certain places of detention. The appellant is therefore entitled to focus in the way in which he does upon the evidence related to Zagreb Prison and the Diagnostic Centre it includes. 48.Whilst the respondent has submitted that it is not for certain that the appellant would be held at the Diagnostic Centre at Zagreb Prison, it seems to me that the evidence all points to it being the clear intention of the respondent to initially house the appellant in that facility. The three points relied upon by the appellant to prove that this is the intention, in particular the terms of the AW, are strongly probative. It also appears to me to be reinforced by the summons to prison referred to in the Further Information which required the appellant to report to the Diagnostic Centre. Although this has been the basis of the appellant's case since the grant of permission to pursue this ground, no information has been furnished by the respondent to gainsay what is in my view a clearly articulated intention, namely that it is intended that the appellant will, upon return, be held at the Diagnostic Centre in Zagreb Prison.49. The question which then arises is whether, in the light of that finding, the court can be sure that he would face a real risk of a breach of Article 3 as a consequence of detention. Whilst the respondent is entitled to make the point that the findings in the case of Vukusic are now of some age, the difficulty for the respondent is that it does not appear on the evidence that there has been any material improvement in the circumstances at that facility since those findings were made. Indeed nowhere in the evidence is it suggested that there were improvements made after 2013 but prior to the deficiencies identified in the Report. The authors of the Report are a body of the Council of Europe and therefore an authoritative source of evidence in relation to the conditions in the Diagnostic Centre, and it is clear from the Report that there are significant and persistent problems of overcrowding in that facility. The Report provides evidence that the cells of the facility are occupied to an extent which breaches the space requirements needed to satisfy Article 3, and this deficiency is implicitly acknowledged in the Response which recognises the acute need for change in the conditions at that facility.

50. Although the respondent relies upon the content of the Response to the Report, in my view the appellant is entitled to observe that the contents of the Response in relation to Zagreb Prison are entirely aspirational, without any clear timescales, and without any evidence of what changes have been made to address the unacceptable overcrowding and poor state of repair and hygiene, in particular in the Diagnostic Centre, and with what tangible impact upon the conditions in which prisoners are detained. The observations in footnote 43 to which the respondent draws attention are of no comfort in relation to these concerns. It refers to prisoners spending '30 days and more' in the Diagnostic Centre's overcrowded, poorly maintained and unhygienic cells, with no assurance as to resolution of the evident problems. Against this background in my view there is clear and compelling evidence which rebuts the presumption in this case based on the breach of the Article 3 rights of the appellant upon his return and detention at the Diagnostic Centre at Zagreb Prison".

[5]In the light of those observations, I afforded time for the respondent to obtain further information in relation to the issues which had been raised. The respondent sought to make for enquiries of the Croatian authorities and, in particular, raised questions in relation to whether or not overcrowding at the Diagnostic Centre was still an issue and whether there had been any improvement and, if so, how that had been achieved. Secondly, it was asked, if the overcrowding had not improved, could it be guaranteed that the appellant would not be detained in the Diagnostic Centre or will he, if detained there, have a guarantee of three square metres of personal space throughout?

[6]The Croatian authorities responded to these requests for further information. The response that was provided was in the following terms: "Pursuant to the provisions of the Execution of Prison Sentences Act, upon transfer to the Republic of Croatia, Andelko Mikelic, considering the length of his prison sentence, will be placed in the Diagnostic Centre in Zagreb for approximately 30 days. During this period, expert diagnostic procedures will be carried out to assess criminogenic risks and treatment needs, classify the inmate, propose an individual orientation programme for sentence execution and recommend the correctional facility where the inmate would continue serving the sentence. The final decision on the correctional facility/prison where the inmate (in this case Andelko Mikelic)would continue serving the prison sentence is made by the director responsible for the prison system, following the proposal of the expert team of the Diagnostic Centre in Zagreb and the prior opinion of the Commission for the assignment of inmates of this office. This decision is made in accordance with the framework criteria for the assignment and classification of inmates for the execution of prison sentences issued by the Minister responsible for justice affairs. During a short stay at the Diagnostic Centre in Zagreb (approximately 30 days), individuals in the rooms where they are accommodated (dormitory) typically spend the majority of their free time during the day (when it is not mealtime, stay in the fresh air in the outdoor are at least two hours daily for engaging in some recreational activities/events for inmates) outside of their dormitories, as they undergo interviews, tests, examinations and other professional tasks carried out by the members of the expert team of the Diagnostic Centre in Zagreb in official rooms. Generally, the capacities of the Diagnostic Centre in Zagreb, as well as other accommodation capacities in closed conditions, are overcrowded. However, the intake of individuals for serving their prison sentences at the Diagnostic Centre in Zagreb has recently stagnated. According to the agreement with the Centre's warden, a solution will be found to ensure that Andelko Mikelic during his stay at the Diagnostic Centre in Zagreb will be accommodated in a dormitory where he will have at least three metres squared of personal space and the officers will treat him with special attention. Also, when making the final decision on the penitentiary/prison where Andelko will continue serving his prison sentence (which is made by the Director of this office), particular attention will be paid to ensuring that he is sent to a penitentiary/prison where, upon placement, he will have at least three square metres of personal space, as well as the opportunity to exercise other rights and possibilities available to inmates in accordance with the Execution of Prison Sentences Act".

[7]The further information by way of assurance goes on to detail investment and expenditure in relation to the improvement of the prison estate in Croatia and a commitment to ensure that current overcrowded conditions are resolved.

[8]In short, therefore, the assurance provided as follows: first, an understanding that the appellant would be detained initially at the Diagnostic Centre in Zagreb for evaluation. Secondly, he would be held there for approximately 30 days and would be mainly outside the dormitory having tests, interviews, examinations, et cetera, when he was not undertaking the two hours of recreation and openair activity which each inmate is permitted. The assurance provided that at least three square metres of personal space would be afforded, both within the Diagnostic Centre and in the wider prison estate to the appellant and, as I have indicated, set out significant future investment which was anticipated in order to improve matters within the Croatian prison estate.

[9]Against the backdrop of this assurance, the appellant makes the following submissions as to its adequacy and as to the proper disposal of this appeal.

[10]First, the appellant draws attention to the time in the Diagnostic Centre not being specific and raises the question as to whether or not, even on the basis of the assurance, the period in which the placement will be held within the Diagnostic Cerne could be longer than the 30 days that is indicated.

[11]Secondly, the appellant points out that it is accepted that in the assurance, both that the Diagnostic Centre is overcrowded and that conditions in that Centre have stagnated. There is, it is pointed out, no evidence in the assurance of any further improvements that have been undertaken in the context of the Diagnostic Centre.

[12]Thirdly, the appellant submits that there is no material in the assurance to explain how, in practical terms, the three square metres of personal space will be achieved. It is submitted on behalf of the appellant that more detail about the agreement, which is suggested to have been made with the warden, would be achieved and greater detail should be provided as to the solution which will be found in order to ensure that the appellant has at least three square metres of personal space. Further, in short, the assurance is too vague and insufficiently clear to provide a binding understanding that the appellant would be kept in conditions where he had more than three square metres of personal space.

[13]Fourthly, it is submitted that, even if there is in excess of three square metres of personal space, other factors are relevant, such as hygiene and repair, as referenced in paragraph 139 of the case of Muršić, and that the CPT in their report were concerned about those issues as well. Finally, in relation to the assurance, the appellant relies upon the healthcare observations of the CPT in the context of the appellant, himself, having health issues, which, it is submitted, there is no information to suggest would be capable of being supported in the Diagnostic Centre. In addition to the submissions about the assurance, the appellant also submits the court should agree to funding being provided for an expert to address issues on the enforceability of any assurance and the CPS should be required to enquire about an inspection of the Diagnostic Centre so as to afford the opportunity for the assurance to be investigated and tested.

[14]In response to these submissions, the respondent contends that the assurance is entirely sufficient to obviate any risk of a breach of article 3. The principal issue in relation to article 3 was the question of the personal space available to the appellant and, in terms, the assurance ensures that three square metres of personal space would be provided. The respondent submits that there is no need for the assurance to describe in detail the means whereby that three square metres will be provided in the Diagnostic Centre and emphasises that the nature of the appellant's case is not that there is a system failure within the prison estate in Croatia. Furthermore, the respondent submits that it is significant that, unlike other cases concerning prison conditions and article 3, the nature of the operations in the Diagnostic Centre is such that inmates are not held in their cells for many hours each day, but, in order to undertake investigation and evaluation, they are outside their cell or dormitory and engaged in other activities.

[15]My conclusions in relation to these competing submissions on the available material are as follows. Although the respondent was equivocal at the first hearing as to whether the appellant would be received first in the Diagnostic Centre in Zagreb prison, it is now accepted, as indeed I found in the first judgment, that the appellant would be held at first at that Diagnostic Centre. There is, it is important to note, no issue raised in relation to any other areas of the Croation prison estate in which he might be held whilst serving his sentence.

[16]Whilst the appellant draws attention to the fact that the assurances are given by the Ministry of Justice, rather than the judicial authorities themselves, as in the case of Zabolotnyi v The Mateszalka District Court,

[2021] UKSC 14

, that is an acceptable source of provision of an assurance, subject to an overall assessment on the basis of all of the available information as to whether or not it is adequate: in particular paragraph 44 of the case of Zabolotnyi is of relevance. It provides as follows: "44. Prior to the decision of the Divisional Court in the present case there had been no suggestion in the case law in this jurisdiction that any special test of admissibility should be applied to evidence relating to the reliability of an assurance from a nonjudicial authority of a requesting state or, in particular, to evidence relating to an alleged breach of an undertaking given to a third state. On the contrary, courts in this jurisdiction have adopted an open, fact-based approach to the assessment of assurances. In my view the position is correctly stated by Sir Brian Leveson P in Shankaran v Government of India

[2014] EWHC 957 (Admin)

(at para 59): '… the scale both of immigration and of extradition decision making have made undertakings and assurances not merely normal but indispensable in the operation of English extradition law. Such undertakings regularly are taken into account, and given whatever weight is appropriate on the facts of the particular case; that is as it should be. Each case will depend on its own facts and, for my part, I would not identify a restriction as a matter of law as to who may or may not give undertakings, nor to prescribe when they will be sufficient to obviate the risk of flagrant breaches of

article 5 ECHR

.' This approach is entirely appropriate as the factors relevant to the evaluation of assurances will vary from case to case. Nevertheless, having regard to the decisions of the [European Court of Human Rights] and the [Court of Justice of the European Union] on the subject, it is clear that where the requesting state is a party to the ECHR and a member state of the European Union there is a presumption that it will comply with its human rights obligations and assurances given in support of those obligations, and that cogent evidence will be required to rebut that presumption (see Ilia v Greece

[2015] EWHC 547 (Admin)

, para 40 per Aikens LJ; Georgiev v Bulgaria

[2018] EWHC 359 (Admin)

, paras 8, 61 per Hickinbottom LJ). Even if the requesting state has lost the general presumption that it will comply with its obligations under article 3 in relation to its prison estate as a whole, it will still normally enjoy a presumption that it will comply with specific assurances given in individual cases (see Jane v Prosecutor General’s Office, Lithuania

[2018] EWHC 1122 (Admin)

, paras 54-55 per Hickinbottom LJ; Fuzesi

[2018] EWHC 1885 (Admin)

, para 33 per Singh LJ)".

[17]Against the backdrop of that authority, the approach to assurances in cases such as the present is well understood and well established. It was rehearsed in the judgment of the Supreme Court in Zabolotnyi in the following way in paragraph 38 of that authority: "38. In Othman v United Kingdom, the [European Court of Human Rights] addressed more specifically its approach to the manner of testing an assurance. In that case it was submitted on behalf of the United Kingdom that assurances from the Kingdom of Jordan constituted a safe basis on which to deport the applicant to Jordan. The court observed that assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. 'There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving state depends, in each case, on the circumstances prevailing at the material time'. (at para 187) The court considered (at para 188) that it would only be in rare cases that the general situation in a state will exclude accepting any assurances whatsoever. It explained that more usually the court will assess first, the quality of assurances given and, second, whether in light of the receiving state’s practices they can be relied upon. It then identified some relevant factors, certain of which had particular relevance to the facts of that case: 'In doing so, the Court will have regard, inter alia, to the following factors:(1) whether the terms of the assurances have been disclosed to the Court;

(2) whether the assurances are specific or are general and vague;

(3) who has given the assurances and whether that person can bind the receiving state;

(4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;

(5) whether the assurances concern treatment which is legal or illegal in the receiving state;

(6) whether they have been given by a Contracting State;

(7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state’s record in abiding by similar assurances;

(8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers;

(9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human-rights NGOs) and whether it is willing to investigate allegations of torture and to punish those responsible;

(10) whether the applicant has previously been illtreated in the receiving state; and

(11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State'. (at para 189) It can be seen therefore that the approach of the ECtHR is a fact sensitive approach under which the weight to be given to any particular feature will vary from case to case. It certainly does not prescribe any preconditions to the admissibility of relevant evidence".

[18]Against the background of that authority, the terms of the assurance, set in the context of all of the evidence which has been received during the course of this appeal, must be evaluated. The first point to note is that, in the terms of the assurance, far more is now known about the operation of the Diagnostic Centre. That does not mean that the Diagnosis Centre is some kind of special case, but it is simply part of the very specific examination of the circumstances of this appeal that it is necessary to take account of what is now understood about the detail of the operation of the Diagnostic Centre. Two features are of note. First, it is now clear that the relatively short-term occupation of the Diagnostic Centre, which is described, is approximately 30 days. In my judgment, that approximation should not be over read. It simply clarifies that presence in the Diagnosis Centre is for a temporary period of evaluation and testing, as described in the assurance.

[19]Perhaps of greater significance is the second feature that is explained in the course of the assurance. This is that, as a result of the need for evaluation of the appellant and other persons being received into the prison estate in Croatia, the detention in the Diagnostic Centre is, unlike other cases where prisoners are held long term and for many hours each day in the cells or dormitories which are the subject of the Article 3 complaint, the appellant will be outside his dormitory for many hours each day. The assurance clarifies that within the Diagnostic Centre, in addition to at least two hours daily recreation, the appellant will be outside his dormitory to undergo tests, interviews and the like for a very significant part – in fact, the majority – of each day. It will, therefore, not be the case that he will be in the dormitory for most of the day and his environment, whilst he is held in the Diagnostic Centre, will be much more fluid.

[20]In my judgment, there is no reason to go behind the assurance that the appellant will be provided with three square meters of personal space in the dormitory when he is in it. Whilst in Muršić at paragraph 139, there is reference to the possibility that, even in cases where three or four square metres of personal space are provided, physical conditions, such as repair and hygiene, can be a factor which could lead to a finding of a breach of article 3, in this case the assurance of space being provided, coupled with the mobile nature of the appellant's incarceration, supports the view that his initial incarceration at the Diagnostic Centre would not be a breach of article 3.

[21]Whilst the appellant relies upon medical provisions to support his claim, it was realistically accepted during the course of argument that this would be insufficient on its own as a basis to establish a breach of article 3 and, indeed, it was not a particular feature of the first judgment about which assurances were sought. Available space was the principal issue and one to which weight should attach and which has now been resolved.

[22]The respondent draws attention to the understanding of article 3 which is set out in Muršić at paragraphs 97 to 98 in the following terms:

"97. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX; Idalov, cited above, § 91; and also, Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). 98. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see, among other authorities, Idalov, cited above, § 92; and also, Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III; Ananyev and Others, cited above, § 140; Varga and Others, cited above, § 70). Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity. …"

[23]Taking account of the assurance in relation to available space, which is and must be taken to be reliable, along with the nature of the assessment and the evaluation process meaning that the appellant will not be in his dormitory persistently, along with the temporary period for which he will be in the Diagnosis Centre, the conditions in which he will be kept in that Diagnostic Centre will not, in my judgment, reach the minimum level of severity necessary to justify a breach of article 3.

[24]I note that supervision of the conditions is provided both by an ombudsman and also by the CPT, who reported in this case. In these circumstances and in the light of the assurance which has been received, I am satisfied that the appeal, based on article 3, should be dismissed and there is no need for any further assurances to be sought from the Croatian authorities or any justification for making provision for further expert evidence or inspections as requested by the appellant.

[25]For all of these reasons, and in these circumstances, this appeal must be dismissed. __________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk