“8(iv) … then the legal burden shifts to the requesting state, which is required to show that there is no real risk of a violation: as it has been said, the burden upon the requesting state is "to discount the existence of a real risk" (Aranyosi at [103]) or "to dispel any doubts about it" (Saadi at [129]). Requiring a party to dispel any doubts as to a particular risk undoubtedly imposes a very heavy burden, although I am unconvinced that it is necessary or appropriate to put it formally in terms of the criminal standard of proof. (v) The requesting state might satisfy that burden by evidence that general prison conditions are in fact article 3-compliant. However, even where it cannot show that, that does not result in a refusal to surrender, because the assessment of whether there will be a breach of human rights is necessarily fact-specific. Therefore, where the court finds that there is a real risk of inhuman or degrading treatment by virtue of general prison conditions, it must then go on to assess whether there is a real risk that the particular individual will be exposed to such a risk. (vi) Given the importance of extraditing persons who face criminal charges or sentence in another jurisdiction and the principle of mutual respect, that fact-specific exercise requires the court to make requests of the requesting judicial authority under article 15(2) of the Framework Decision for information concerning the conditions in which the individual will be held that it considers necessary for the assessment of that risk, including information as to the existence of procedures for monitoring detention conditions. (vii) The information provided may include assurances from the requesting contracting state, designed to provide a sufficient guarantee that the person concerned will be protected from treatment that would breach article 3. In the evaluation of such assurances, relevant factors include the nature of the relationship between the requesting and requested judicial authorities and the states of which they are a part, the human rights situation in that other jurisdiction, the subject matter of the assurance and the nature of the risk involved. It also has to be conducted in the light of the principle of mutual recognition and trust between those authorities and states: where the requesting state is a signatory to the ECHR and a Member State of the European Union, there is a strong presumption that it is willing and able to fulfil its human rights obligations and any assurances given in support of those obligations. An assurance given by such a state must be accepted unless there is cogent reason to disbelieve it will not be fulfilled. (viii) In particular, assurances have to be evaluated against four conditions (identified by Mitting J in BB at [5], and approved in Zagrean at [52] as being consistent with Strasbourg jurisprudence in the form of Othman) which must generally be satisfied if the court is to rely upon them, namely: "(i) the terms of assurances must be such that, if they are fulfilled, the person returned will not be subjected to treatment contrary to article 3; (ii) the assurances must be given in good faith; (iii) there must be a sound objective basis for believing that the assurances will be fulfilled; (iv) fulfilment of the assurances must be capable of being verified." I shall refer to these as "the Zagrean criteria". (ix) Where the further information (including any assurances given) satisfy the court that, should the individual be extradited, there is no real risk of him being subjected to inhuman or degrading treatment, then the court will order his surrender. Where it is not satisfied, generally, the individual will still not be discharged: the execution of the EAW and extradition will be postponed until the requesting state is able to satisfy the court that the risk can be discounted by, e.g., providing further information, including further assurances. (x) However, where the risk is not (or, prospectively, cannot) be discounted within a reasonable time, then the court may be bound to discharge.”
“(7) the length and strength of bilateral relations between the sending and receiving states, including the 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”; [and] (11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State.”
“… In deciding whether an assurance can be relied upon, evidence of past compliance or non-compliance with an earlier assurance will obviously be relevant. A state’s failure to fulfil assurances in the past may be a powerful reason to disbelieve that they will be fulfilled in the future. (Jane per Hickinbottom LJ at para 55; Georgiev at para 61). The weight to be attached to a previous breach of assurance would be likely to vary from case to case depending on all the circumstances, including how specific the previous assurance was and whether the breach was deliberate or inadvertent (see, for example, Klenovski v Hungarian Judicial Authority[2017] EWHC 2560 (Admin) , paras 21-22 per Bean LJ). The breach would, however, clearly be relevant (see GS, per Burnett LJ at para 32). In the same way, the absence of evidence that a state has ever acted in breach or in disregard of an assurance of this nature would be relevant (Duarte v The Comarca De Lisboa (A Portuguese Judicial Authority)[2018] EWHC 2995 (Admin) , para 44 per Holroyde LJ).”
“24. The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”
“48. The problem of inter-prisoner violence and intimidation in Moldovan prisons has long been a source of serious concern for the CPT. In the report on its 2018 ad hoc visit, the Committee called upon the Moldovan authorities to take determined action to address this problem, in particular by taking effective measures to tackle the related phenomenon of an informal prison hierarchy. The findings of the CPT's delegation during the 2020 visit showed that the problem of inter-prisoner intimidation and violence among the adult male inmate population remained as acute as ever and was, as in the past, largely linked to the well-established informal hierarchies in the country's prison system. 49. According to medical files examined by the delegation at Cahul, Chișinău and Taraclia prisons, inmates were regularly found with injuries indicative of inter-prisoner violence, such as haematomas around the eyes and, albeit to a lesser extent, with more serious injuries (e.g. a broken arm). As had been the case in the past, practically all the cases of inter-prisoner violence remained unreported, due to the climate of fear and intimidation created within the establishments by inmates who were at the top of the informal prison hierarchy, as well as a general lack of trust in the staff's ability to guarantee prisoner safety. Unsurprisingly, many of the prisoners met by the delegation were very reluctant to speak about the circumstances in which they had sustained their injuries, and some were visibly scared. On a few occasions, the delegation was followed by prisoners who tried to put pressure on other inmates in order to prevent them from talking freely with the delegation. Nevertheless, a number of inmates in each of the prisons visited did provide accounts of beatings, threats of violence and extortion by other inmates, as well as sexual assault. At Chișinău Prison, the delegation heard an allegation that a sex offender had been deliberately placed in a cell with prisoners known for violence toward sex offenders (so called “press-khata”). The prisoner concerned claimed that he had been severely beaten and raped by his cellmates, apparently as a punishment for his sex offender profile. However, the prisoner did not submit a complaint due to fear of retaliation. 50. Despite the vehement denials of the Moldovan authorities in their responses to the CPT's previous visit reports, it was again clear that there was tacit collaboration between the management of the prisons visited and the informal prisoner hierarchies as regards maintaining order among inmates and ensuring the “smooth operation” of the establishments. Most strikingly, the informal hierarchy had a say in the initial “classification” and placement in cells of newly admitted prisoners, as well as in a decision as to which prisoners were to be permitted to work. This helped the informal leaders to constantly enrol “unexperienced” prisoners into the informal community of inmates, offering protection and other support in exchange for their money and loyalty. This arrangement also meant that informal leaders were free to use intimidation and a “reasonable” level of violence against those who refused to contribute to an illegal collective fund (“obshchak”) managed by the informal hierarchy's leader.”
“In the CPT's view, the continuing failure of Moldovan authorities to ensure a safe and secure environment for prisoners is directly linked to a number of factors, notably the chronic shortage of custodial staff, reliance on informal prisoner leaders to keep control over the inmate population and the existence of large-capacity dormitories. At the same time, there is no proper risk and needs assessment of prisoners upon admission, nor a classification of inmates to identify in which prison, block or cell prisoners should be placed. The increased vulnerability of some prisoners (such as sex offenders, persons with mental health issues or drug dependencies) clearly calls for the need to identify potential risks and vulnerabilities in order to prevent these prisoners from being subject to violence and exploitation by other inmates.”
“39. We have fully taken into account the difficulties under which Ms Malcolm was labouring. However, even giving due allowance for those difficulties, the information before us satisfies us that the decision of the court below cannot stand. In relation to inter-prisoner violence, the terms of the CPT Report and the Respondent's limited response to it tip the balance firmly in favour of the Appellants. The balance tilts yet further once the information about Mr Simionescu is taken into account. It is of particular concern that in his case (a) he was fearful of violence in cell 93 at Chișinău and (b) contrary to the assurances given to him and to the Appellants, it was not the perpetrators who were moved, but Mr Simionescu who was moved from the approved cell. The fact that he may have been moved at his own request only heightens the doubts that must surround the assurances, which were predicated on the two specified cells being places of safety for the victim so that it would be the perpetrators of violence or other conduct giving rise to fear who would be moved if segregation were required. In our judgment, this lends additional strength to the concern noted by the CPT that solitary confinement for victims of inter-prisoner violence is a form of self-imposed segregation which is seen as a means of escape from aggressors leading to an impoverished regime for prolonged periods. … 43. We do not wish to add to the Respondent's difficulties in any way, and we bear in mind the difficulties of which we have been informed by Ms Malcolm; but we feel obliged to point out that the main substance of the allegations and arguments upon which these appeals were brought has been known for months, as have the contents of the CPT Report. The system of extradition as applied by the Courts of this jurisdiction is founded upon mutual trust and respect. The failure of the Respondent to provide any admissible information in reply to the matters raised by the Appellants is a matter of real concern. While these appeals have not been set up to be test or lead cases in relation to Moldova, the fact that they are, so far as is known, the first to have reached the higher courts means that assurances given and assertions made by the Respondent in future cases will have to be scrutinised with particularly anxious care.”
“… the NAP took the necessary steps to reorganise internally the process of monitoring the assurances and will make sure that they will not be any breach of the prison assurances given in the future.”
“As mentioned above, the findings of the visit showed that the problem of inter-prisoner violence remains largely unaddressed and prisons still generally fail to ensure a safe environment for incarcerated persons. Once again, a high number of persons held in prison described to the delegation the overall atmosphere of intimidation and violence created by the informal prison leaders and their close circles. The documentation examined by the delegation again registered numerous cases of persons held in prison who were found with injuries indicative of inter-prisoner violence. Due to the atmosphere of fear and the lack of trust in the staff’s ability to guarantee safety, persons found by staff with injuries refused to provide a plausible explanation as to the origin of their injuries. Moreover, although all cases of inmates bearing injuries were registered and reported to the prosecutor’s office, in none of the cases was an investigation initiated. … Many persons held in the prisons visited perceived segregation from the general prison population pursuant to Section 206 of the Enforcement Code as the only way to escape the threats posed by the informal prisoner hierarchy. However, for a number of reasons explained in the report, this measure, as implemented at the time of the visit, cannot be regarded as an efficient solution. In particular, segregated prisoners were held in former disciplinary isolators which provided poor material conditions, and were subjected to impoverished regimes. The CPT considers that the continuing failure of the Moldovan authorities to ensure a safe and secure environment for persons held in prison is directly linked to a number of factors, most notably the chronic shortage of custodial staff, reliance on informal prisoner leaders to keep control over the inmate population and the existence of large-capacity dormitories. At the same time, there is no proper risk and needs assessment of persons upon their admission to prison, nor a classification of persons to identify in which prison, block or cell they should be placed. … As was already stated in the reports on the 2015, 2018 and 2020 visits, with reference toArticle 3 of the Convention , the CPT once again calls upon the Moldovan authorities to take decisive action to address the long-standing recommendations made by the Committee. Continuing failure of the authorities to take effective steps to improve the situation in prisons, in particular as regards the phenomenon of informal prisoner hierarchy and the resulting inter-prisoner violence and intimidation, will oblige the Committee consider having recourse to Article 10, paragraph 2, of the Convention.”
“The only solution was isolation in Block 4. It was not secure to go the medical unit as the proxies of informal leaders could approach anyone there.”
“As mentioned above, only 15 prisoners were formally under the protection of Article 206 of the EC. However, most of the prisoners held in the block were de facto Article 206 prisoners, isolated from the mainstream prison population due to their fear of violence, exploitation (including sexual exploitation) and extortion.”
“Those in segregation will have one hour’s exercise but conditions in the exercise yards were in a poor condition because the building was very old. There was hardly any staff in the prisons to allow prisoners daily contact and they go to the exercise yard with their cell mate. Segregated prisoners have contact with their cell mate but not with others, which is the same in Leova prison.”
“118. The assurance provide clear and cogent evidence that dispel the risk of an Article 3 breach in respect of both general conditions and inter-prisoner violence for the maximum of 25 days [the Appellants] will spend in Chișinău and thereafter in Leova to spend their sentences. However, Mr Lungu could spend up to 1 year in Chișinău and I require a further assurance from the Government to specify how long he will spend there given Mr Tugushi’s evidence that he will be more at risk of inter-prisoner violence than in Leova. 124. Accordingly, I reject the challenge by [the other Appellants] but I do require further information in respect of how long Mr Lungu, as an accused person, will spend in Chișinău. As Already I have accepted Mr Tugushi’s evidence that he could be there for up to a year and the assurance is not specific, saying it will be for a “short time”
“118. Having considered all the evidence I do not find that the requested persons have shown that in relation to both prisons where they will be placed that there are substantial grounds for believing that they face a real risk of either being subjected to torture or to inhuman or degrading treatment. … 128. I have already found the assurances can be relied on and I am satisfied that the further information that states Mr Lungu may be detained in Chișinău 13 for a shorter period of 12 months satisfies me that I can rely on the assurance given in his case.”
“113. At Chișinău 13 they will only be detained in specified cells alone or with others if it does not compromise their safety. The cells have been renovated … The CPT report is critical of general conditions but did not see the specific cells the RP will be allocated to. However, Mr Tugushi did and he said they were adequate and had been guaranteed for extraditees. … 114. Details have been given about staffing levels, recruitment policy and how prisoner violence can be reported and dealt with by staff in Chișinău. Protection under Article 206 is available. Mr Tugushi met some prisoners who were under Article 206 protection, and they felt safe. This is important for Mr Codreanu because of his conviction, that he will have an effective measure of protection in Chișinău. 115. Once convicted, the RP's will move to the newly renovated Block 4 at Leova prison. Mr Tugushi’s evidence was that the conditions were “overall acceptable and did not call for any additional comments”
“… it was requested that the Ministry of Justice … initiate the creation of a mechanism of co-operation between state structures involved in the extradition process (General Inspectorate of Police, National Anticorruption centre, Prosecutor’s Office of the Republic of Moldova, judges etc.), as well as training of their representatives on the issue.”
“Since my last visit, the situation has somewhat improved [in relation to the prison regime], as prisoners from Block 4 were able to spend more time outdoors (up to 4 hours) and more prisoners, including extradited ones, had the possibility to attend some programmes and even attend seasonal works outside the prison in the vineyard. During the outdoor exercise time cell-doors in the corridors remained open and prisoners could move freely around the building in their respective floor.”
“151. The interviewed prisoners confirmed that conflicts and clashes occurred due to different reasons. One of the extradited prisoners, who was registered in the trauma logbook, told me that the incident occurred on his way to the medical unit, after he left the permitter of Block 4. It was obvious that prisoners held in Block 4 were not appreciated by the prisoners housed in other units of the prisons. I was told that internal prison hierarchy was trying to get control of Block 4. However, their attempts have not proved to be fully successful. 152. It is also worth noting that in Block 4, just one guard was assigned per floor. Guards worked in 24-hour shifts, which is in no way conducive to their effectiveness.”