High Court refuses surrender to Croatia due to Article 3 Convention risks regarding prison conditions.

THE HIGH COURT AN ARD-CHÚIRT [2025] IEHC 142 [2024 No. 226 EXT] IN THE MATTER OF AN APPLICATION UNDER S. 16(2) OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED, AND IN THE MATTER OF THE EUROPEAN ARREST WARRANT (AMENDMENT) ACT 2024 BETWEEN THE MINISTER FOR JUSTICE APPLICANT AND EDWARD PRENDERVILLE RESPONDENT NOTE of the ex tempore JUDGMENT of Mr Justice David Keane delivered on the 17 January 2025

Introduction

1. The Minister for Justice (‘the Minister’) applies under s. 16, sub-s. (2) of the European Arrest Warrant Act 2003, as amended (‘the Act of 2003’), for an order directing the surrender of Edward Prenderville (‘the respondent’) to the Republic of Croatia (‘Croatia’), pursuant to a European Arrest Warrants (‘the EAW’) issued on 20 August 2024 by or on behalf of Municipal State Attorney Ivana Smrkulj of the Municipal State Attorney’s Office in Zlatar, as the issuing judicial authority in that Member State.

2. I am satisfied that the Municipal State Attorney is a judicial authority within the meaning of Article 6(1) of Council Framework Decision 2002/584/JHA, as amended, (‘the Framework Decision’) and s. 2(1) of the Act of 2003. No issue has been raised on that point.

3. The EAW seeks the surrender of the respondent to prosecute him for an offence of swindling, contrary to Article 236, paragraph 1 of the Croatian Criminal Code. As this is a prosecution rather than sentence case, I am satisfied that the provisions of s. 45 of the Act of 2003 (on the surrender of persons already tried and convicted in absentia) do not arise.

Background

4. The respondent was arrested on Sunday, 3 November 2024, and brought before the court the following day on foot of an alert (‘the SIS II alert’) issued on 23 August 2024 under the second generation of the Schengen Information System, established by Council

Decision 2007/533/JHA (‘the SIS II Decision’) in respect of the EAW. By reference to the evidence before it, the court was satisfied that the respondent had been furnished with a copy of the SIS II alert and that he was the person named in it.

5. A copy of the EAW was provided to the court when the respondent came before it again on 15 November 2024. Under s. 14(4) of the Act of 2003, the court fixed 17 January 2025 as the date for the hearing of the s. 16 surrender application.

6. By letter dated 21 November 2024, the High Court, through the Minister as the Central Authority in the State, requested the issuing judicial authority to provide it with certain additional information concerning the likely place(s) of imprisonment of the respondent and the conditions in which he would be held throughout the period of his imprisonment.

The issuing authority responded to that request by letter 3 December 2024.

7. Through his legal representatives, the respondent filed points of objection to his surrender, dated 9 January 2022.

8. The application came on for hearing before me on 19 January 2025. At the conclusion of that hearing, I gave an ex tempore ruling, refusing surrender on the ground that it is prohibited under s. 37 of the Act 2003 and setting out the reasons underpinning that

conclusion. I now provide a corrected note of that ruling.

The issues

9. Aside from putting the Minister on strict proof of the matters that it is necessary to establish to obtain an order for surrender under s. 16(2) of the Act of 2003, the respondent raises a single point of objection. It is that his surrender is prohibited under s. 37 of the Act of 2003 because it would expose him to a real risk of imprisonment in conditions that would amount to a breach of his right not to be subjected to inhuman or degrading treatment or punishment under Article 3 of the European Convention on Human Rights (‘the Convention’).

The necessary proofs under s. 16(2) of the Act of 2003

10. On the information and evidence before me, I am duly satisfied that:

(a) the EAW has been provided to the court,

(b) the person before the court is the person in respect of whom the first EAW issued (upon which no dispute has been raised),

(c) I am not required under s. 22, 23 or 24 of the Act of 2003, as amended, to refuse to surrender the respondent under that Act (as none of the matters referred to in those sections arise), and,

(d) that it is therefore necessary to determine whether the surrender of the respondent is prohibited under any of the provisions of Part 3 of the Act of 2003.

11. Two of the provisions of Part 3 of the Act of 2003 are material in this case. The first is s.

38, which sets out the applicable minimum gravity and correspondence requirements for surrender. The second is s. 37(1), which prohibits surrender where it is incompatible with the State’s obligations under the Convention or its Protocols.

The requirements of minimum gravity and correspondence

12. The EAW states, at paragraph (c), that the minimum length of custodial sentence or detention which may be imposed for the offence for which surrender is sought is 5 years.

Thus, I am satisfied that the requirement under s. 38(1)(a)(i) of the Act of 2003 – that under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months – is met.

13. The EAW states, at paragraph (e), that the EAW relates to one offence that is alleged to have been committed in the following circumstances:

‘On 9 September 2020, in the Republic of Croatia, Tuheljske Toplice, Desiniča ulica 2, the person in question made a contractual agreement to use accommodation in Apartment Aqua Tuhelj owned by Snježana Železnik for the period from 9 September to 19 September 2020, for the amount of HRK 4,500.00 (EUR 597.25), falsely stating that at the end of his stay he would normally pay the cost of using the apartment, and subsequently, according to a preconceived intention not to pay the cost of accommodation, he left the said apartment on 18 September 2020 without paying, thus illegally gaining 597.24 euros and causing loss to Snježana Železnik in the same amount.’

14. In the same paragraph, the nature and legal classification of the offence is given as swindling, and the applicable code provision is given as Article 236, paragraph 1 of the Criminal Code. In the list of offences that follows, which are the offences listed in Article 2(2) of the Framework Decision, the box beside the offence ‘swindling’ is ticked by being marked with an X. There is no suggestion of any error, much less a manifest error, in the categorisation of the offence in that way. Thus, I am satisfied that the requirement under s. 38(1)(b) of the Act of 2003 – that the offence is one to which paragraph 2 of Article 2 of the EAW Framework Decision applies and is punishable in the issuing state by imprisonment for a maximum period of not less than three years – is met.

The prison conditions objection

15. In Minister for Justice v Angel [2020] IEHC 699, (Unreported, High Court, 15 December 2020) (‘Angel’) (at para. 45), drawing on the judgment of McDermott J in Minister for Justice and Equality v Pal [2020] IEHC 143, (Unreported, High Court, 9 March 2020), Paul Burns J distilled the following non-exhaustive list of principles that apply to objections to surrender based on an asserted risk of breach of fundamental rights and, in particular, of subjection to inhuman or degrading treatment or punishment in that event:

‘(a) the cornerstone of the Framework Decision is that member states, save in exceptional circumstances, are required to execute any European arrest warrant on the basis of the principles of mutual recognition and mutual trust;

(b) a refusal to execute a European arrest warrant is intended to be an exception;

(c) one of the exceptions arises when there is a real or substantial risk of inhuman or degrading treatment contrary to article 3 ECHR or article 4 of the Charter of Fundamental Rights of the European Union (“the Charter”);

(d) the prohibition of surrender where there is a real or substantial risk of inhuman or degrading treatment is mandatory. The objectives of the Framework

Decision cannot defeat an established risk of ill-treatment;

(e) the burden rests upon a respondent to adduce evidence capable of proving that there are substantial/reasonable grounds for believing that if he or she were returned to the requesting country, he or she will be exposed to a real risk of being subjected to treatment contrary to article 3 ECHR;

(f) the threshold which a respondent must meet in order to prevent extradition [or surrender] is not a low one. There is a default presumption that the requesting country will act in good faith and will respect the requested person's fundamental rights. Whilst the presumption can be rebutted, such a conclusion will not be reached lightly;

(g) in examining whether there is a real risk, the Court should consider all of the material before it and if necessary, material obtained of its own motion;

(h) the Court may attach importance to reports of independent international human rights organisations or reports from government sources;

(i) the relevant time to consider the conditions in the requesting state is at the time of the hearing;

(j) when the personal space available to a detainee falls below 3m2 of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of article 3 ECHR arises. The burden of proof is then on the issuing state to rebut the presumption by demonstrating that there are factors capable of adequately compensating for the scarce allocation of personal space, and this presumption will normally be capable of being rebutted only if the following factors are cumulatively met: -

(1) the reductions in the required minimum personal space of 3m2 are short, occasional and minor;

(2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities; and

(3) the detainee is confined to what is, when viewed generally, an appropriate detention facility, and there are no aggravating aspects of the conditions of his or her detention;

(k) a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of confinement in the issuing member state cannot lead, in itself, to the refusal to execute a European arrest warrant. Whenever the existence of such a risk is identified, it is then necessary for the executing judicial authority to make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk. The executing judicial authority should request of the issuing member state all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained;

(l) an assurance provided by the competent authorities of the issuing state that, irrespective of where he is detained, the person will not suffer inhuman or degrading treatment is something which the executing state cannot disregard and the executing judicial authority, in view of the mutual trust which must exist between the judicial authorities of the member states on which the European arrest warrant system is based, must rely on that assurance, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of article 3 ECHR or article 4 of the Charter; and

(m) it is only in exceptional circumstances, and on the basis of precise information, that the executing judicial authority can find that, notwithstanding such an assurance, there is a real risk of the person concerned being subjected to inhuman or degrading treatment because of the conditions of that person's detention in the issuing member state.’

16. In his written legal submissions, dated 8 January 2024, the respondent relies upon certain parts of the contents of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’) report of 23 November 2023 on its periodic visit to Croatia between 19 and 29 September 2022 (CPT/Inf (2023) 30) (‘the 2023 CPT report’) to submit that he has discharged the heavy onus of establishing reasonable or substantial grounds for believing that he would be exposed to a real risk of imprisonment in conditions of inhuman or degrading treatment or punishment if surrendered to Croatia. The material parts of that report were carefully considered by this court in Minister for Justice and Equality v Rakanovic [2024] IEHC 391, (Unreported, High Court (Greally J), 28 June 2024).

17. In particular, the respondent submits that the 2023 CPT report provides evidence that there has been a significant increase in the prison population in Croatia since 2017; that conditions of detention, in particular in Zagreb Prison, are affected by extremely serious overcrowding; and that the Croatian authorities apply an assessment of living space based on 3 m2 even in the absence of important mitigating factors such as general outof-cell entitlements and the offer of a purposeful regime of activities.

18. I accept that the 2023 CPT report amounts to objective, reliable, specific and properly updated evidence on detention conditions in Croatia that demonstrates systemic or generalised deficiencies. It is thus necessary to determine whether, in the specific circumstances of this case, there are substantial grounds to believe that, following the surrender of the respondent to Croatia, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of Article 3 of the Convention and Article 4 of the Charter (judgment of 12 December 2019, Aranyosi and Căldăru, Cases C-404/15 and C-659/15 PPU, EU:C:2016:198 (‘Aranyosi’) (at paragraph 94).

19. To enable the court to make a specific and precise assessment of whether such substantial grounds exist, the court requested the issuing judicial authority to provide the necessary supplementary information on the conditions in which it is envisaged that the respondent will be detained if surrendered to Croatia.

20. By letter dated 21 November 2024, the High Court, through the Minister as the Central Authority in the State, requested the issuing judicial authority to identify the prison in which the respondent will be detained (both pre-trial and, should he be convicted and sentenced, post-trial) and to provide information concerning the conditions of detention in which he will be held and. In particular, the issuing judicial authority was requested to provide an assurance that the respondent will have a minimum individual space of 3 m2 available to him for the entirety of his detention; and, if not, to identify the compensating or mitigating factors that will render his detention compliant with the requirements of Article 3 of the Convention.

21. The issuing judicial authority replied on 9 December 2024, in material part stating as follows:

‘If the Republic of Ireland authorizes the surrender of Edward Prenderville to the Republic of Croatia…, he will be admitted to Zagreb Prison for pre-trial detention purposes.

The prison in Zagreb (hereinafter referred to as the Prison) is a maximum-security penitentiary institution which has once again faced the challenges of overcrowding in institutions where pre-trial detention is served in recent years, and so has the entire prison system in the Republic of Croatia.

Due to high turnover rates (of persons deprived of liberty) in the Prison, the number of inmates changes on a daily basis but in any event exceeds the statutory capacities by a substantial percentage. Considering this situation, please note that we will use our reasonable efforts to comply with the minimum accommodation requirements in the pre-trial detention process (if the surrender of Edward Prenderville is authorized), however, he may occasionally be accommodated in an area of less than 3m2 due to overcrowding for short periods of time. The rooms intended to accommodate persons deprived of liberty in the prison normally have a floor area of 21.10 m2 and a volume of 49.80 m3 (including sanitary facilities covering 1.57 m2). The person in question would normally be accommodated in such room together with 5 more persons deprived of liberty, however, as aforementioned, he may occasionally share this room with 6 persons deprived of liberty for short periods due to overcrowding.

Pursuant to the Criminal Procedure Act and the Pre-Trial Detention Center Internal Rules Ordnance, prisoners in the Prison or any other Croatian prison have the right to an uninterrupted rest period of eight hours in each 24-hour interval and must be allowed to spend time (move) outdoors for at least two hours per day. Awnings are in place in the outdoor area of the Prison, intended to allow detainees an opportunity to spend time outdoors, where they can find shelter in case of inclement weather. In addition to strolling or jogging, detainees may play table tennis or use exercising devices installed therein while spending time outdoors.

During their leisure time, prisoners in the Prison have an option to borrow and read books from the so-called (sic) Prison library, read daily press and follow radio or TV programs. Subject to the current capabilities of the Prison and in the best interest of the prisoner Edward Prenderville, he shall be allowed to take part in further leisure activities arranged in the Prison, subject to the Prison’s capabilities and best interests of the persons deprived of liberty (film screenings, visiting lecturers, concerts, NGO representatives, etc.), and to attend regular monthly Catholic, Christian Orthodox or Islamic religious ceremonies for persons deprived of liberty and further ceremonies and concerts relating to the (upcoming) holiday season.

Subject to Investigating Judge’s/Council President’s authorization and his/her supervision, a prisoner may be visited by his relatives and, if he so requests, by a physician and other persons. Some visits may be denied if they could have an adverse impact on the conduct of the criminal proceeding. The Investigating Judges/Council Presidents may allow a consular officer of a foreign country to visit a detainee who is a national of that country. Subject to Investigating Judge’s/Council President’s knowledge and his/her supervision, a detainee may correspond (in the form of letters) with persons beyond the prison. A detainee may be forbidden to send and receive letters and other items but cannot be forbidden to send applications, complaints or appeals. A detainee is entitled to submit a complaint to the relevant ombudsman and receive his response without any restrictions on the supervision of the contents thereof. The president of the competent court of law if responsible for supervising the serving of detention time.’

22. Thus, it is clear that, if surrendered, the respondent will be admitted to Zagreb Prison for pre-trial detention purposes. He will be detained there in a six-person cell with an area of

19.53 m, excluding sanitary facilities, which means that, normally, he will have personal space of 3.255 m2 – i.e. just over 3 m2 – available to him. However, occasionally and for short periods of time, he will be detained in a seven-person cell with the same area, meaning that he will have personal space of 2.79 m2 – i.e. less than 3 m2 – available to him. I do not have any further information to assist me in understanding what is meant by either of the terms ‘occasionally’ or ‘short’ in the specific circumstances of the envisaged pre-trial detention in Zagreb Prison.

23. The 2023 CPT report directly addresses the issue of pre-trial detention in Zagreb Prison.

The relevant paragraph in the executive summary states:

‘The material conditions of detention, in particular at Zagreb Prison, were affected by extremely serious overcrowding (e.g. six prisoners in 18 m2 cells). The Committee is particularly critical of the position of the Croatian authorities to apply an assessment of living space based on 3 m2 per person even in the absence of important mitigating factors such as generous out-of-cell entitlements and the offer of a purposeful range of activities. The CPT reiterates its position that the minimum living space for prisoners should be at least 4 m2 per person in multi-occupancy rooms. Vigorous measures should be taken to reduce overcrowding, particularly at Zagreb Prison.’

24. At paragraph 30, the report notes the Croatian Law on the Execution of Prison Sanctions (‘LECS’) was amended in 2021 so that it no longer includes a reference to the requirement of a minimum living space of 4 m2 per prisoner.

25. In relevant part, Section B of the 2023 CPT report, on prison establishments, has this to say on material conditions of detention:

‘38. As mentioned in paragraph 30, the legal requirement of a minimum space of 4 m2 in multiple-occupancy cells had been removed from the legislation in 2021. In doing so, the Croatian authorities intended to implement their interpretation of the Court decision in Muršić v. Croatia, that there would be no violation of Article 3 of the European Convention on Human Rights (Convention) if more than 3 m2 per person is offered in multiple-occupancy cells. Senior officials of the Ministry of Justice informed the delegation at the outset of the visit that they had intended to focus on qualitative aspects of the material conditions of detention, such as the quality of food, hygiene conditions and state of repair, to which the amended provisions of the LECS also refer in general terms.

In line with a broader interpretation of the Muršić v. Croatia judgment, the most recent jurisprudence of the Constitutional Court has taken into account not only the arithmetic measurement of living space, but also other factors such as daily out-ofcell entitlement and the presence of communal areas, and has found violations of Articles 23 and 25 of the Constitution even in cases where (remand) prisoners were actually allocated more than 3 m2 of living space in the absence of the abovementioned mitigating circumstances (see in this respect the Croatian Constitutional Court Decisions No. U-III-1192/2018 and U-III-1267/2021). However, the jurisprudence of the supervisory judges of the County Courts, who were called upon to assess the numerous complaints of prisoners for judicial protection (notably at Zagreb Prison), rejected most of those complaints on the ground of a more selective approach, thus taking into account the reports submitted by the management of the prison concerned, which confirmed that the detained persons had been provided with more than 3m2 of living space.

…

40. At Zagreb Prison, the delegation took note of certain improvements introduced since its previous visit, namely the removal of metal shutters from windows (with the exception of cells located on the ground floor), the installation of shelters against inclement weather and tennis table tables in courtyards, the renovation of communal showers, the provision of new mattresses and the installation of new doors in the sanitary facilities. Despite the serious overcrowding (particularly in Departments Nos.1-6), the cells and sanitary facilities were found to be well lit and of an acceptable standard of hygiene and repair. It was clear to the delegation that the prison management was genuinely making efforts to mitigate the harmful effects of overcrowding by ensuring that the premises were kept clean and hygienic.

Nevertheless, all wings accommodating remand prisoners (namely, Departments Nos. I-VI) were seriously overcrowded and, in principle, standard cells of 19.5 m2 could accommodate between six and eight prisoners, who were confined to their cells for 22 hours a day (a more limited number of double-occupancy cells were in service, measuring 9.5 m2), which meant that most of the remand population was offered a living space of between 2.5 and 3.2 m2 each. Although in principle the state of hygiene and repair was satisfactory, the sanitary annex, consisting of a toilet and a washbasin, was not fully partitioned, and the number of seating places at the table was insufficient, obliging prisoners to take turns to eat. Finally, the cells were still not equipped with a call bell. The average period of remand detention at Zagreb Prison amounted to approximately 40 days but in 6% of cases lasted more than six months.

41. The CPT takes note of the efforts made to maintain the prisons in an adequate state of repair and to offer appropriate conditions, in particular at Zagreb Prison, in light of the serious overcrowding. Nevertheless, the Committee would like to recall that, in its decision in Muršić v Croatia [App no 7334/13 (ECtHR, 20 October 2016) (at para. 138)], the European Court also established the notion of the existence of three mitigating factors, which must be met cumulatively in order to avoid a possible violation of Article 3 of the Convention in respect of prisoners provided with less than 4 m2 of living space in multiple-occupancy cells. Such mitigating factors are: 1) the length of the period of detention in conditions of minimum personal space; 2) the provision of an adequate out of cell entitlement and activities and 3) the absence of other aggravating aspects of the conditions of detention. Further, the CPT must reiterate that it has long advocated a standard of

4 m2 of living space per prisoner in multiple-occupancy cells (and a desirable standard that is even higher) still conceding the possibility of minor deviations to the standard which must be compensated The CPT has never considered that its cell-size standards should be regarded as absolute. In other words, it does not automatically hold the view that a minor deviation from its minimum standards may in itself be considered as amounting to inhuman and degrading treatment of the prisoner(s) concerned, as long as other, alleviating, factors can be found, such as, in particular, the fact that inmates are able to spend a considerable amount of time each day outside their cells engaged in purposeful activities (work, education, sport, recreation). The preventive approach of the CPT means that it aims to prevent situations that may result in violations of Article 3 of ECHR arising. By not guaranteeing 4m2 of living space per person in multiple occupancy cells, the Croatian authorities are on the cusp of subjecting prisoners to conditions which may be considered as inhuman and degrading. For this reason, the CPT recommends that the minimum standard of 4m2 of living space per person be complied with. In this respect, the situation observed in Zagreb Prison, where remand prisoners may be detained for months on end, confined to their cells with less than 4m2 of living space, with no communal facilities and no purposeful regime except for two hours of outdoor exercise, raises clear issues under Article 3 of the European Convention on Human Rights.’

26. The Minister submits that, in considering the 2023 CPT report, it is necessary to consider also the material parts of the Response of the Croatian Government [to the 2023 CPT report] CPT/Inf (2023) 31 (‘the response’). In the response, the Croatian Government spells out its plans to address the problem of prison overcrowding, including its plans to reconstruct and refurbish prisons damaged by an earthquake and an unprecedented hailstorm, to refurbish Zagreb Prison, and to construct additional prison accommodation.

The increased use of non-custodial measures is under active consideration. The Ministry of Justice and Public Administration is aware of the need to respect the requirement of a minimum space of 4 m2 and of the correlative requirement to provide compensatory measures in cases where that standard is not me to avoid a breach of Article 3 of the Convention or Article 4 of the Charter, or both. On the regime for remand prisoners, the response has this to say (at paragraph 51):

’51. Opportunities for meaningful activities for inmates vary from one facility to another and depend primarily on building capabilities, staffing and occupancy status (the number of prisoners accommodated). At the same time, penitentiaries, constituted for the execution of longer sentences, offer greater possibilities than prisons, which are organised mostly for serving short custodial sentences, remand detention measures and misdemeanour sentences. As regards terminology, we would like to draw your attention to the fact that the [2023 CPT report] erroneously uses the term “prison” to refer to all correctional facilities, which in the Croatian penitentiary system there is a clear legal and practical distinction between penitentiaries (kaznionica) and prisons (zatvor) in this sense.

Measures will continue to be taken to ensure the most substantial regime of activities possible for all persons deprived of liberty, including in Zagreb Prison.

This includes special treatment programmes, as well as educational and development programmes, work activities and various leisure activities (including sports, recreational, cultural and artistic activities, etc.), provided by correctional facilities themselves or in cooperation with civil society organisations. For instance, a portion of resources from gaming revenue allocated every year to the Minister of Justice and Public Administration, is awarded by the Directorate for the Prison System and Probation (amounting to approximately EUR 500,000.00) to NGO programmes implemented in prisons and penitentiaries. Those programmes include a whole range of different topics and areas, such as work activities for inmates, education of prisoners, leisure activities, aestheticisation and humanisation of the premises, prevention of infectious diseases, post-release reintegration (re-entry). Prisons are encouraged to involve remand prisoners in all activities for which this is possible, and this practice will continue. This is done, at the same time, respecting the presumption of innocence and taking into account the uncertain length of stay in the facility (knowing that the uncertain length of stay makes it more challenging to plan the inclusion of prisoners in certain activities, such as work activities requiring special skills or educational activities, while special treatment programmes generally do not concern remand prisoners precisely because of the presumption of innocence and nonexistence of conviction or security measures imposed).’

Decision

27. The issuing judicial authority is forthright in its acknowledgment that, if surrendered, the personal space available to the respondent in a multi-occupancy cell while in pre-trial detention in Zagreb Prison will not meet the CPT advocated standard of 4 m2 but will instead vary between a normal allocation of 3.255 m2 and, occasionally and for short periods of time, one of 2.79 m2.

28. The decision of the European Court of Human Rights in Muršić v Croatia, App no 7334/13 (ECtHR, 20 October 2016) summarises the relevant standards to assess when the level or degree of prison overcrowding creates a real or substantial risk of inhuman or degrading treatment contrary to Article 3 of the Convention or Article 4 of the Charter (at paras.

136-139 inclusive). That summary is as follows:

(a) The standard predominant of 3 m2 of floor surface per detainee in multioccupancy accommodation as the relevant minimum standard under Article 3 of the Convention.

(b) When the personal space available to a detainee falls below 3 m2 of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises.

The burden of proof is on the issuing state which could, however, rebut that presumption by demonstrating that there are factors capable of adequately compensating for the scarce allocation of personal space.

(c) The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met:

(1) the reductions in the required minimum personal space of 3 m2 are short, occasional and minor;

(2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities;

(3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention.

(d) In cases where a prison cell – measuring in the range of 3 to 4 m2 of personal space per inmate – is at issue the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements.

29. To the extent that the personal space normally available to the respondent in a multioccupancy cell while in pre-trial detention in Zagreb Prison will be 3.255 m2 (i.e. in the lower part of the range of 3m2 to 4m2), that must be a weighty factor in the assessment of the adequacy of the conditions of detention. But to the extent that the space available will fall to 2.79 m2 (i.e. less than 3 m2) a strong presumption of violation of Article 3 arises and the burden of proof in rebutting that presumption rests with the issuing state.

30. Hence, in moving the application for surrender, the Minister acknowledges that the real issue for determination in this case is whether the issuing state has established sufficient compensating factors to rebut the strong presumption that the lack of personal space that will be available to the respondent while in pre-trial detention in Zagreb Prison creates a real or substantial risk of inhuman or degrading treatment contrary to Article 3 of the Convention or Article 4 of the Charter.

31. In reliance on the additional information provided by the issuing state in its letter of 9 December 2024 and in its response to the 2023 CPT report, the Minister submits that the necessary compensating factors are cumulatively present to rebut that presumption. In essence, the Minister contends as follows.

32. First, any reductions in the required minimum personal space of 3 m2 (by accommodating 7, rather than 6, persons in a room with a floor area of 21.10 m2), will be short and occasional. It is implied that a reduction of floor space beneath 3 m2 to 2.79 m2 should be viewed as minor. However, no specific information is provided that would allow the court to understand what is meant by the use of the relative terms ‘short’ and ‘occasional’ in this context.

33. Second, the inability to provide the CPT-advocated standard of 4 m2 personal space and the acknowledgment that, occasionally and for short periods of time, the space available will fall to less than 3 m2, are conditions that will be compensated for by the provision of sufficient freedom of movement outside the cell and of adequate out-of-cell activities, in that the respondent will be allowed to spend time outdoors for at least two hours per day.

There is shelter from inclement weather; the facility to stroll, jog, play table tennis or use exercise devices while spending time outdoors. Prisoners can borrow books from the prison library, read the daily press, and follow radio or tv programmes. If feasible and appropriate, prisoners are allowed to take part in further leisure activities, which may include film screenings, lectures, concerts and – presumably, talks by – NGO representatives, and will be allowed to attend one of the regular monthly religious ceremonies for the leading religions in Croatia. There is a qualified entitlement to received visits from relatives, medical personnel, consular officials and other persons, and to engage in correspondence. There is an unrestricted right of confidential communication with the relevant ombudsman.

34. However, the qualifications on free movement and out-of-cell activities just described are significant, most notably that prisoners can be assured of no more than two hours per day outdoors.

35. On this point, it is necessary to recall the relevant observations in the 2023 CPT report (at paragraph 41) that: first, by not guaranteeing 4 m2 of living space per person in multioccupancy cells, the Croatian authorities are on the cusp of subjecting prisoners to conditions which may be considered as inhuman and degrading; and second, the situation observed in Zagreb Prison, where remand prisoners may be detained for months on end, confined to their cells with less than 4 m2 of living space, with no communal facilities and no purposeful regime except for two hours of outdoor exercise, raises clear issues under Article 3 of the Convention.

36. In those circumstances, I cannot be satisfied that the situation described amounts to sufficient free movement or adequate out-of-cell activities to compensate for a reduction of personal space in a multi-occupancy cell to below 3 m2 – however occasional, short or minor that reduction may be.

37. Thus, even assuming (without deciding) that the reductions in the required minimum personal space of 3 m2 are short, occasional and minor; that, as a ‘maximum-security penitentiary institution’, Zagreb Prison is an appropriate detention facility for the respondent in this case; and that there are no other aggravating aspects of the conditions of detention there, I cannot be satisfied that the factors cumulatively necessary to rebut the strong presumption of a violation of Article 3 of the Convention have been established.

38. In reaching that conclusion, I have carefully considered that portion of the Croatian Government’s response to the 2023 CPT report that sets out the measures that continue to be taken to ensure the most substantial regime of activities possible for all persons deprived of liberty, including in Zagreb Prison. However, the relevant time to consider the conditions in the requesting state is at the time of the hearing and, thus, it is on the basis of the conditions in Zagreb Prison as they stand that the necessary specific and precise assessment of those conditions must be made.

39. Equally, I have had appropriate regard to the presumption under s. 4A of the Act of 2003 that the issuing state will comply with the requirements of the Framework Decision. In that context, I note that Article 1(3) of the Framework Decision states:

‘This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article

6 of the Treaty on European Union.’

Conclusion

40. It follows that, having due regard to the obligation to surrender under s. 10 of the Act of 2003, I must refuse to make an order under s. 16(2) of that Act, directing the surrender of the respondent to Croatia, as I am satisfied that his surrender would be incompatible with the State’s obligations under the Convention and that it is, for that reason, prohibited under s. 37 of that Act.