Extradition decisions set aside

Case no. 261/2016
Order made on 31 May 2017

The Prosecution Service
vs.
T1, T2 and T3

In a case on the hearing of a request from the Romanian authorities for the extradition of T1, T2 and T3 for prosecution in Romania on the basis of a European arrest warrant, the Supreme Court ruled on 24 February 2017 that a new opinion should be obtained from the Romanian authorities on the conditions under which they would be held in Romania. These new opinions had now been received.

The Romanian authorities stated that T1, T2 and T3 would be guaranteed a personal space of at least 3 sq. m. in a multi-person cell during pre-trial detention. The Supreme Court considered that this information regarding the pre-trial detention period did not provide grounds for establishing that there was a real risk that they would be subjected to inhuman or degrading treatment in contravention of Article 3 of the European Human Rights Convention during their pre-trial detention.

The Ministry of Justice's decisions on the extradition of T1, T2 and T3 did not contain any condition that they were to be transferred to Denmark for the enforcement of a possible prison sentence imposed in Romania. It should thus also be considered whether there was a real risk that they would be subjected to treatment in contravention of Article 3 during their serving of a prison sentence in Romania.

The Romanian authorities stated that they would be guaranteed a personal space of at least 3 sq. m. in a maximum-security prison. The Supreme Court considered that there was no basis for concluding that there was a real risk that T1, T2 and T3 would be subjected to inhuman or degrading treatment in contravention of Article 3 of the European Human Rights Convention when serving any prison sentence in a maximum-security prison.

Based on the information provided by the Romanian authorities, the Supreme Court considered it highly probable that T1, T2 and T3 would serve a part of any prison sentence in a medium-security or minimum-security prison, where they were only guaranteed a personal space on 2 sq. m. Against this background, the Supreme Court ruled that there was a real risk that they would serve a part of any prison sentence imposed in Romania in conditions that would be in contravention of Article 3 of the European Human Rights Convention as interpreted and applied by the European Court of Human Rights in its judgment of 20 October 2016. Extraditing T1, T2 and T3 to Romania would thus be in contravention of Section 10h(2) of the Danish Extradition Act, and the Ministry of Justice's decisions on their extradition for prosecution in Romania were set aside for not complying with this provision.

The High Court had reached a different conclusion.