Surrender refused due to real risk of inhuman treatment in Croatia under Article 3 ECHR.

THE HIGH COURT

Record No. 2025 335 EXT

[2026] IEHC 321

BETWEEN

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

APPLICANT

AND

LEON NIKOLIC

RESPONDENT

JUDGMENT delivered by Mr. Justice Sean Gillane on 20 May 2026

Introduction

1. This is an application for the surrender of the respondent to Croatia (“the issuing state”), pursuant to section 16 of the European Arrest Warrant Act 2003 (“the 2003 Act”), on foot of a European Arrest Warrant issued by the Zadar County Court on the 11th of November 2025 (“the warrant”).

2. The warrant was issued by a judicial authority in the issuing state.

3. The respondent’s surrender is sought for the purpose of having him serve the remainder of a custodial sentence.

4. The decision upon which the warrant is based is stated at Part B(1) to be the “final and enforceable verdict of the Zadar Municipal Court reference number K- 460/2023 of 10 October 2024”, the type of which is noted to be a “guilty verdict and imposed prison sentence.”

5. Part B(2) of the warrant refers to the enforceable judgment, which appears to be linked to reference number K-460/2023, in the following terms: “The verdict is final on 27 June 2025 and enforceable on 19 August 2025”

6. Part C of the warrant states that the custodial sentence imposed was one of two years and three months with a period of one year and nine months remaining to be served.

7. Part D of the warrant indicates that the respondent appeared in person at the trial resulting in the decision.

8. Part E of the warrant refers to three offences, each described as a “prolonged criminal offence against property – theft.” The offences are said to have occurred across the following dates: the 22nd of July 2022; the period from the 4th of August 2023 to the 1st of December 2023; and the period from the 8th of April 2024 to the 19th of April 2024.

9. The respondent was arrested on the 8th of December 2025 on foot of an SIS alert and brought before this Court on the 9th of December 2025. The warrant was produced to this Court on the 17th of December 2025.

10. The respondent is a Croatian national and objects to his surrender.

11. A notice of objection was filed on the 14th of January 2026, pursuant to Order 98, Rule

5 of the Rules of the Superior Courts 1986.

12. The notice indicated that the respondent objected to his proposed surrender on the basis that the warrant did not comply with the requirement for clarity as to the enforceable judgment grounding the warrant, as required by section 11(1A) of the 2003 Act.

13. The notice also stated that the respondent’s surrender was prohibited pursuant to section

37 of the 2003 Act on the basis of incompatibility with Article 3 of the European Convention on Human Rights (“ECHR”) in circumstances where it would expose him to a real risk of inhuman and degrading treatment arising out of the conditions of detention in the issuing state.

14. The notice separately stated that the respondent’s surrender would also expose him to the above risk “on account of his Serbian ethnicity.”

15. In relation to the latter part of the notice, it was confirmed during the course of the hearing that the respondent was in fact of Bosnian, rather than Serbian, ethnicity.

Background

16. The respondent swore an affidavit on the 20th of January 2026.

17. In that affidavit, the respondent averred that he had:

“… returned to Ireland from Croatia on 15 December 2015. He has been in Ireland consistently since then.”

18. It was accepted during the course of the hearing that this curiously phrased paragraph was incorrect as the respondent had been to Croatia for periods of time since 2015, to include periods of time in custody. It was also at odds with an affidavit sworn by the respondent’s solicitor for the purposes of a bail application. The affidavit evidence, however, remained uncorrected.

19. The respondent gave an account of his experience within the Croatian prison system in order to support an argument advanced on his behalf in respect of prison conditions in Croatia.

20. He said that he had suffered “brutal physical violence” in the remand prison system in Croatia at the hands of both prison officers and other prisoners. He said that there were various reasons underlying this violence that included, in his belief, his ethnicity.

21. He said that he was detained on remand for two separate periods of three months each in Zadar Prison in association with some of the offences set out at Part E of the warrant, and that during those periods of custody his nose was broken and he lost a tooth due to the violence perpetrated upon him. He said that he feared that such violence would be repeated if he were to be surrendered to the issuing state.

22. He directly addressed Part E of the warrant and said that he believed the reference to “three offences” actually referred to three separate investigations/prosecutions.

23. In relation to these ‘investigations’, he said as follows: “Investigation No.1 related to two shoplifting offences committed on 22 July 2022. I was arrested, detained and remanded in custody those two offences [sic]. I was represented by a lawyer. I was arraigned and entered guilty pleas on the basis that I would receive a sentence of ten months imprisonment. I served three months in custody at Zadar prison and was then released, in or around March 2023.

Investigation number 2 related to accusations of multiple shoplifting offences alleged on dates between August 2023 and December 2023. I was charged remanded in custody [sic]. I was never arraigned and was not convicted for the any [sic] of the offences alleged. I was remanded in custody at Zadar prison for a period of three months. I was released in or around July 2024.

Investigation number 3 was completely unknown to me prior to reading about it on the face of this EAW. I was entirely unaware of these allegations and this investigation. I was not arrested or detained for these offences at any stage.”

24. In relation to Part B(1) of the warrant and what was described as the “final and enforceable verdict”, he said that he did not appear at any cumulative sentence hearing in October 2024 and: “… had no knowledge or other awareness of the relevant verdict or sentencing orders. I did not instruct a lawyer to appear for me at any relevant cumulative sentence hearing which might have taken place in October 2024.”

25. In relation to Part B(2), he said that he was in Ireland during 2025 and: “Again, I had no knowledge or other awareness of the relevant verdict or sentencing orders. I did not instruct a lawyer to appear for me at any relevant cumulative sentencing hearing which might have taken place in 2025.”

26. It was argued on behalf of the respondent that when one looks at the warrant through the lens of his affidavit, the lack of internal clarity in the warrant is very concerning.

27. It was also argued that in reading the available material together, it appeared as though a cumulative sentence hearing may have proceeded with the respondent in abstenia, which might operate as a bar to surrender under section 45 of the 2003 Act.

28. In relation to his periods in custody, the respondent said that he was held in “very overcrowded cells”, including a cell of 6m x 2m with five other prisoners and four beds where he occasionally slept on the floor; a cell of 5m x 5m with seven other prisoners and six beds where he slept on the floor; and a cell of unknown proportions with thirteen other prisoners.

29. The respondent’s solicitor, Stephen O’Mahony, swore an affidavit on the 20th of January 2026 repeating what the respondent had said in relation to the cells in which he was held.

30. Mr. O’Mahony exhibited copies of the Council of Europe’s C.P.T. report on Croatia dated the 23rd of November 2023 and the U.S. State Department Human Rights Report 2023 on Croatia in support of the argument advanced in relation to prison conditions and in seeking to discharge the burden of proving a real and substantial risk of a breach of the respondent’s Article 3 rights.

31. In that regard, the respondent argued that the evidence did establish that there was a real risk of a breach of his Article 3 rights.

32. The respondent relied on a number of criticisms of the deficiencies in Croation prisons, including paragraph 30 of the C.P.T. report which referred to the removal from Croatian domestic legislation of the legal requirement for a minimum 4m² of living space.

33. The respondent also relied on the report’s criticisms of Zagreb Prison in relation to multiple occupancy cells, which resulted in a living space of between 2.5m² to 3.2m² per person, and the view expressed at paragraph 41 that the conditions of the prison raise “clear issues under Article 3 of the European Convention on Human Rights.”

34. The respondent also sought to rely on paragraph 36, which referred to the widespread and severe inter-prisoner violence and intimidation that exists within the Croatian prison system, and paragraphs 40-43 in relation to poor hygiene and high occupancy levels.

35. The respondent also relied on the U.S. State Department Human Rights Report which highlighted severe overcrowding in Croatian prisons and the presence of discrimination against people of Serbian ethnicity.

Discussion

36. The hearing opened before me on the 22nd of January 2026. Arising out of the arguments advanced in relation to the suggested lack of clarity on the warrant and the issue of generalised or systemic deficiencies in prison conditions, a request for further information pursuant to section 20 of the 2003 Act was made on the 26th of January 2026.

37. The issuing judicial authority was asked to clarify whether each of the three offences set out at Part E of the warrant were prosecuted together ab initio and, if not, when the prosecutions and/or sentence hearings in respect of the three offences were merged.

38. Clarification was also sought in relation to the date and location of the trial resulting in the decision referred to at Part D of the warrant.

39. In relation to the sentence referred to at Part C of the warrant, the issuing judicial authority was asked to clarify when the sentence was imposed and whether separate sentences were initially imposed for each of the offences. The issuing judicial authority was also asked whether the sentence had been imposed at a cumulative sentence hearing and to clarify the nature of the court proceedings that took place on the 27th of June 2025 and 19th of August 2025, as referenced at Part B(2) of the warrant.

40. The issuing judicial authority was asked for any observations it might have in relation to the averments of the respondent referred to above regarding to his understanding and knowledge of the proceedings.

41. The issuing judicial authority was asked for assurances in relation to the conditions in respect of which the respondent would be detained if surrendered, to include minimum personal cell space of 3m² (or mitigating factors if this cannot be guaranteed), sanitary conditions, availability of light, etc. The issuing judicial authority was also asked to provide an assurance in relation to how the respondent would be protected from interprisoner violence and intimidation.

42. The issuing judicial authority responded on the 12th of February 2026.

43. It was confirmed that the respondent was found guilty of three counts of what were described as an “extended criminal offence against property – theft” under the Criminal Code of the Republic of Croatia. Four separate indictments were filed against the respondent on the 9th of January 2023, the 3rd of January 2024, the 5th of February 2024 and the 16th of May 2024.

44. It was stated that the criminal proceedings against the respondent that were conducted before the Zadar Municipal Court under three separate case numbers (K-460/2023, K- 36/2024, K-215/2024) were: “… merged by the decision of the Zadar Municipal Court No. Kv-188/2024 of

11 July 2024, and it was ruled that a single proceeding would be conducted under case number K-460/2023.”

45. It was then stated that the criminal proceedings against the respondent that were conducted before the Zadar Municipal Court under case numbers K-460/2023 and K- 428/2024 were:

“… merged by the decision of the Zadar Municipal Court No. Kv-262/2024 of

16 September 2024, and it was ruled that a single proceeding would be conducted under case number K-460/2023.

For this reason, the hearing started from the beginning.”

46. The issuing judicial authority said that the hearing was held on the 20th of September 2024 at Zadar Municipal Court, beginning at 10:30am and finishing at 11:16am. It was stated that the respondent gave his statement in relation to all of the criminal offences with which he was charged and the property claims filed by the injured parties.

47. The issuing judicial authority said that the respondent plead guilty to all of the charges in the “consolidated proceedings” conducted under case number K-460/2023 and accepted the lodged property claims of the injured parties.

48. It was stated that at the hearing: “… all evidence proposed by the State Attorney was presented, and at the end of the evidentiary proceedings, the defendant Leon Nikolic presented his defence. During the defence, the defendant fully admitted the commission of all criminal offences charged against him in all the indictments that were consolidated and under which the criminal proceedings were conducted.”

49. The issuing judicial authority confirmed that the respondent had been legally represented and that counsel for the respondent had made a closing speech. It was stated that, in accordance with the Croation Criminal Procedure Code, the verdict would be announced on the 25th of September 2024, which was “acknowledged” by the respondent.

50. The issuing judicial authority stated that by order of the presiding judge dated the 28th of November 2024, it was determined that the verdict would be announced on the 10th of December 2024. The response went on to say that on the 10th of December 2024, counsel for the respondent attended the announcement of the verdict while: “… the defendant Leon Nikolic and the representative of the prosecution, who had been duly summoned, did not attend the hearing.

Therefore, a single prison sentence of two years and three months was imposed on the defendant Leon Nikolic by the verdict of the Zadar Municipal Court on

10 December 2024 under case number K-460/2023. The single prison sentence was imposed on the defendant for all of the above-listed criminal offences under indictments consolidated into a single criminal proceeding conducted against this defendant under case number K-460/2023 as set out, stated and explained above.”

51. It was confirmed that the respondent’s time spent in pre-trial detention from the 4th of December 2023 to the 4th of March 2024 and from the 19th of April 2024 to the 19th of July 2024 would be deducted from the imposed sentence.

52. It was stated that in accordance with the operative part of the verdicts, separate sentences of four months, two years, and a further four months were calculated for each of the offences. A single prison sentence of two years and three months was then imposed pursuant to Article 51 of the Criminal Code of the Republic of Croatia which provides: “(1) If the perpetrator by one act or more acts commits several criminal offences for which he or she is being tried at the same time, the court shall first determine the punishment for each criminal offence, and then, on the basis of its assessment of the perpetrator’s personality and the committed criminal offences in their totality, impose upon him or her an aggregate punishment.

(2) The aggregate punishment shall be set by increasing the highest individual punishment incurred, but it cannot not reach the sum of individual punishments nor exceed the maximum term of long-term imprisonment or a fine.”

53. In the request for further information, the issuing judicial authority was asked to identify the institution or prison in which it was intended that the respondent would be detained if surrendered or, if that was not possible, to identify the institution or prison in which it was most likely that the respondent would be detained if surrendered.

54. In response, the issuing judicial authority indicated that the respondent, if surrendered, would be escorted to Zagreb Diagnostic Centre based on the decision of the sentence execution judge at Zadar County Court. The applicable legislation was identified as the Prison Sentences Execution Act (“the PSEA”).

55. According to the response, Article 56(1) of the PSEA stipulates that: “… a convict sentenced to a prison sentence of more than six months or whose unserved part of the sentence exceeds six months shall be referred to the Zagreb Diagnostic Center for the purpose of performing professional tasks and proposing a program of execution and a penitentiary or prison in which the sentence will continue to be served in accordance with Article 21, paragraph 6 of the same act.”

56. Article 3 provides that: “… the decision on referral for further execution of a prison sentence on the penitentiary or prison in which the prisoner will continue to serve his prison sentence shall be made by the director responsible for the prison system, upon the proposal of the Zagreb Diagnostic Center and based on the opinion of the Commission for Referral and Classification of Defendants of the Central Office in accordance with the provisions of the Framework Criteria for Referral and Classification of Defendants for the Execution of Prison Sentences issued by the Minister responsible for Affairs of Justice.”

57. It was stated that the PSEA prescribes the conditions for serving a sentence, including the conditions for accommodation and various health, hygiene and spatial requirements.

58. It was stated that accommodation must be clean, dry and sufficiently spacious and that prisoners who were assumed not to have a negative impact on each other may be accommodated together. Each prisoner is to be provided with a separate bed.

59. Various provisions of the PSEA were cited in relation to a range of issues, to include access to daylight and artificial light for reading, sanitary facilities, health treatment, psychological needs, food, drinking water, clothing, education, etc. The issuing judicial authority stated that: “This Act shall certainly guarantee prisoners a minimum of three square meters of space.”

60. The response from the issuing judicial authority ended as follows: “We hereby emphasize and highlight as a guarantee that the prison or penitentiary shall take all measures in accordance with the Law, if necessary, to protect the wanted person from violence among prisoners and intimidation during his stay in prison in the event of surrender.

The execution of prison sentences in the Republic of Croatia is carried out in every segment in accordance with the provisions of the Prison Sentences Execution Act.”

61. Counsel for the respondent submitted that the reports referred to above plainly established a real risk of inhuman and degrading treatment and a breach of the respondent’s Article 3 rights in circumstances where generalised and persistent deficiencies in prison conditions, particularly in relation to cell space and overcrowding, had been identified by reputable sources on which the Court could rely.

62. Counsel submitted that the “specifics” of the complaint made on behalf of the respondent had been effectively side-stepped or ignored by the issuing judicial authority in their response. He submitted that the issuing judicial authority could not simply rely on the general legislative framework of Croatia as an effective response and that this could not amount to a specific assurance.

Decision

63. No serious issue has been taken with correspondence or the minimum gravity requirements and I am satisfied that both have been established.

64. In relation to the argument that the warrant lacks the clarity required by section 11(1A) of the 2003 Act, counsel for the respondent relied on the well-known dicta of Hardiman

J. in Minister for Justice v. Connolly [2014] 1 I.R. 720, where he said at paragraph 30: “… It is a mandatory requirement of the European arrest warrant procedure that there be unambiguous clarity about the number and nature of the offences for the person sought is so sought.”

65. This argument was originally advanced primarily on the basis of what the respondent had averred to in his affidavit. At the resumed hearing on the 22nd of April 2026, counsel for the respondent submitted that the respondent’s evidence was “emphatic” that he was effectively a stranger to the third investigation and that he did not instruct a lawyer to attend at the hearing at which the sentence had been imposed.

66. I have considered this aspect of the objection to surrender carefully. I am of the view that it is significant that the respondent did not swear another affidavit in response to the substantial amount of additional information provided by the issuing judicial authority in relation to the criminal proceedings.

67. Part E of the warrant sets out in considerable detail the factual particulars of the offences, which were, in effect, a series of shoplifting offences. The additional information provided a considerable amount of procedural detail, to include the indictment numbers covering the range of offences.

68. It seems manifest from the information provided that the offences were not charged together ab initio but were amalgamated or merged by the decision of the Zadar Municipal Court on the 11th of July 2024 to conduct a “single proceeding.”

69. The merged prosecution was given a single case number of K-460/2023, which is the case number referred to in the warrant. It was clearly stated that “for this reason, the hearing started from the beginning.”

70. Thereafter, the additional information contained the date and time of the court hearing. The presence of the accused and his legal counsel were noted as was his plea of guilty in relation to all of the charges. It was also indicated that the respondent had “acknowledged” that the announcement of the verdict would be adjourned to a particular date.

71. It is clear that the respondent was not present at 3:00 pm on the 10th of December 2024 when the sentence was actually imposed, but that his counsel was present. I think that it is significant that his counsel was named in the additional information.

72. The specificity of this information was not addressed by the respondent, beyond what he averred to in his affidavit.

73. I am satisfied that the additional information can be relied on by the Court and that it removes any uncertainty that might have been said to exist in relation to the true nature of the proceedings. The prosecutions were merged and proceeded as a single hearing in which the respondent participated and was represented.

74. There is no lack of clarity in relation to the nature of the offences and the facts underpinning them.

75. A single cumulative sentence was imposed. The respondent had acknowledged that the announcement of the verdict would be adjourned and was plainly on notice of that. A named lawyer attended at that hearing on his behalf and I am satisfied that any potential argument pursuant to section 45 of the 2003 Act in relation to trial in abstentia is defeated by this fact.

76. The argument advanced in relation to prison conditions is based on well-established authority – see Aranoysi and Căldăraru (Joined Cases C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198) and Minister for Justice v. Rettinger [2010] 3 I.R. 783.

77. In Rettinger, Denham J. outlined a number of applicable principles at paragraph 31: “(i) a court should consider all the material before it, and if necessary material obtained of its own motion;

(ii) a court should examine whether there is a real risk, in a rigorous examination;

(iii) the burden rests upon a respondent, such as the respondent in this case, to adduce evidence capable of proving that there are substantial grounds for believing that if he (or she) were returned to the requesting country he, or she, would be exposed to a real risk of being subjected to treatment contrary to article 3 of the Convention;

(iv) it is open to a requesting state to dispel any doubts by evidence. This does not mean that the burden has shifted. Thus, if there is information from a respondent as to conditions in the prisons of a requesting state with no replying information, a court may have sufficient evidence to find that there are substantial grounds for believing that if the respondent were returned to the requesting state he would be exposed to a real risk of being subjected to treatment contrary to article 3 of the Convention. On the other hand, the requesting state may present evidence which would, or would not, dispel the view of the court;

(v) the court should examine the foreseeable consequences of sending a person to the requesting state;

(vi) the court may attach importance to reports of independent international human rights organisations, such as Amnesty International, and to governmental sources, such as the State Department of the United States of America;

(vii) the mere possibility of ill-treatment is not sufficient to establish an respondent’s case;

(viii) the relevant time to consider the conditions in the requesting state is at the time of the hearing in the High Court. Although, of course, on an appeal to this court an application could be made, under the rules of court, seeking to admit additional evidence, if necessary.” (Emphasis added.)

78. At paragraph 45 of Minister for Justice v. Angel [2020] IEHC 699, Burns J. outlined a taxonomy of factors to be considered where objections are raised in respect of prison conditions under section 37 of the 2003 Act or Article 3 of the ECHR: “From the review of the relevant authorities carried out by McDermott J. in Minister for Justice and Equality v. Pal [2020] IEHC 143, the following nonexhaustive list of principles emerges:-

(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 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.”

79. The factors identified above are in accordance with Muršić v. Republic of Croatia (Application No. 7334/13, 20 October 2016), where the European Court of Human Rights stated at paragraphs 137-138: “When the personal space available to a detainee falls below 3 sq. m 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 respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (see paragraphs 126-128 above).

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 sq. m are short, occasional and minor (see paragraph 130 above):

(2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities (see paragraph 133 above);

(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 (see paragraph 134 above).”

80. Another very relevant authority in relation to the requirements placed on an executing judicial authority where this issue is raised, and on which counsel for the respondent placed considerable emphasis, is the decision of the Court of Justice of the European Union (“CJEU”) in Dorobantu (Case C-128/18, ECLI:EU:C:2019:857). In that case, the CJEU held at paragraph 85: “In the light of all the foregoing considerations, the answer to the questions referred is as follows:

- Article 1(3) of Framework Decision 2002/584, read in conjunction with Article 4 of the Charter, must be interpreted as meaning that when the executing judicial authority has objective, reliable, specific and properly updated information showing there to be systemic or generalised deficiencies in the conditions of detention in the prisons of the issuing Member State, it must, for the purpose of assessing whether there are substantial grounds for believing that, following the surrender to the issuing Member State of the person subject to a European arrest warrant, that person will run a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, take account of all the relevant physical aspects of the conditions of detention in the prison in which it is actually intended that that person will be detained, such as the personal space available to each detainee in a cell in that prison, sanitary conditions and the extent of the detainee’s freedom of movement within the prison. That assessment is not limited to the review of obvious inadequacies. For the purposes of that assessment, the executing judicial authority must request from the issuing judicial authority the information that it deems necessary and must rely, in principle, on the assurances given by the issuing judicial authority, in the absence of any specific indications that the conditions of detention infringe Article 4 of the Charter.

- As regards, in particular, the personal space available to each detainee, the executing judicial authority must, in the absence, currently, of minimum standards in that respect under EU law, take account of the minimum requirements under Article 3 of the ECHR, as interpreted by the European Court of Human Rights. Although, in calculating that available space, the area occupied by sanitary facilities should not be taken into account, the calculation should include space occupied by furniture. Detainees must, however, still have the possibility of moving around normally within the cell.

- The executing judicial authority cannot rule out the existence of a real risk of inhuman or degrading treatment merely because the person concerned has, in the issuing Member State, a legal remedy enabling that person to challenge the conditions of his detention or because there are, in the issuing Member State, legislative or structural measures that are intended to reinforce the monitoring of detention conditions.

- A finding, by the executing judicial authority, that there are substantial grounds for believing that, following the surrender of the person concerned to the issuing Member State, that person will run such a risk, because of the conditions of detention prevailing in the prison in which it is actually intended that he will be detained, cannot be weighed, for the purposes of deciding on that surrender, against considerations relating to the efficacy of judicial cooperation in criminal matters and to the principles of mutual trust and recognition.”

81. The executive summary of the C.P.T. report contains the following statement: “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 regime of activities. The CPT reiterates its position that the minimum living space for prisoners should be at least 4 m² per person in multiple occupancy rooms. Vigorous measures should be taken to reduce overcrowding, particularly at Zagreb Prison.”

82. At paragraph 30, the report noted that the Law on the Execution of Prison Sanctions had been amended in 2021 and: “… no longer includes a reference to the requirement of a minimum living space of 4 m² per prisoner in multiple-occupancy cells and that remand prisoners can now be accommodated in departments of establishments for sentenced prisoners.”

83. At paragraph 36, the report noted the “widespread and severe” nature of inter-prisoner violence and intimidation as a “feature” of the Croatian prison system and in respect of which the C.P.T. has made several recommendations in previous reports. The report noted some improvements in that area and recommended a strategy be put in place at a national level to tackle inter-prisoner violence.

84. At paragraph 40, the report noted that all of the wings of Zagreb Prison that accommodated remand prisoners were “seriously overcrowded” and that prisoners were being confined to cells for 22 hours a day, the consequence of which being that most of the remand population was offered a living space of between 2.5m² and 3.2m² each.

85. At paragraph 41, the report stated: “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, 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 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 preventative approach of the CPT means that it aims to prevent situations that may result in violations of Article 3 of the ECHR arising.

By not guaranteeing 4 m2 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 4 m2 of living space per person be complied with.”

86. At paragraph 43, the report stated: “The condition in the 18 cells of the National Diagnostic Centre (namely, Department No. 5), were worse than the rest of Zagreb Prison, with higher occupancy levels (eight prisoners accommodated in 19.5 m2) and a poor state of repair and hygiene. The CPT recommends that the conditions of detention at the National Diagnostic Centre (Department No. 5) of Zagreb Prison be substantially improved in terms of state of repair and level of hygiene in cells and that occupancy levels be reduced to meet the required standard.”

87. Section 1(C) of the U.S. State Department Human Rights Report, which dealt with Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and other Related Abuses, noted that: “Gross overcrowding in prisons was a problem. The Office of the Ombudperson’s 2022 annual report noted an increasing trend of overcrowding in most of the country’s prisons … … With the exception of Sibenik prison, as of the end of 2022 the occupancy rate of all prisons in the country was more than 100 percent. The most egregious cases of overcrowding were reported in prisons in Osijek (205 percent capacity), followed by Karlovac (170 percent capacity), and Zadar (153 percent capacity). There were no reports of extensive prisoner-to-prisoner violence or gang activity, although some prisoners expressed fear for their safety and reported threats from other prisoners. The ombudperson’s report assessed that although institutions took measures aimed at preventing interprisoner violence, the measures were still primarily reactive rather than preventative. Additionally, the report noted staff shortages in penal institutions.”

88. During the course of the hearing, my attention was drawn to the decision of Greally J. in Minister for Justice and Equality v. Rakanovic [2024] IEHC 391. Rakanovic was another case in which the respondent’s surrender was sought by Croatia.

89. Greally J. refused surrender, finding that it was prohibited by section 37 of the 2003 Act as there was a real risk that the respondent would be subjected to inhuman or degrading treatment arising out of prison conditions in Croatia. In her judgment, Greally J. placed reliance on the C.P.T. report referred to above.

90. I note that in Rakanovic, the issuing judicial authority “candidly” admitted that they could not confirm that there would be no more than two prisoners occupying the smaller cell and no more than twelve occupying the largest cell. Nor were they able to confirm that the personal space of each prisoner would not fall below 3m².

91. In accordance with the principles set out in Aranyosi and in respect of which I think there is no real dispute, I am satisfied that the C.P.T. report and the U.S. State Department Human Rights Report consist of objective, reliable, specific and updated evidence on prison conditions in Croatia and the systemic or generalised deficiencies identified therein.

92. A consideration of the specific circumstances of this case in relation to the question of whether there are substantial grounds for the belief that the respondent will be exposed to a real risk of being detained in inhuman and degrading conditions is, therefore, required. A specific and precise assessment is necessary in accordance with the principles set out in Angel.

93. The C.P.T. report supports the proposition advanced that there are substantial grounds for believing that there is a real risk of a violation of the respondent’s Article 3 rights and I am unconvinced that the response of the issuing judicial authority adequately addresses it.

94. Where the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises, the burden of proof (in the sense in which Burns J. expressed it in Angel) must rest with the issuing judicial authority to rebut the presumption by, for example, demonstrating mitigating circumstances which may compensate for the lack of personal space.

95. In my view, the response by the issuing judicial authority in relation to the request for assurances regarding the conditions in which the respondent would be detained if surrendered is generic in nature and fails to address the specificity of the request.

96. It seems to me that the issuing judicial authority has merely confirmed that the respondent will be received, assessed and then held somewhere in the prison system once a decision is made by the director responsible for the prison system. Thereafter, the issuing judicial authority purports to rely on the existence of cited domestic legislative measures to provide reassurance in relation to prison conditions.

97. In doing so, the issuing judicial authority has simply quoted from the PSEA in relation to de jure requirements in respect of prison conditions. There is a complete absence of de facto assurances in relation to the conditions in which this particular respondent would or might be held. Each and every response is referrable to an article in the PSEA. An illustration of the generalised nature of the response is in the following terms: “This Act shall certainly guarantee prisoners a minimum of three square meters of space.” (Emphasis added.)

98. This gives no comfort in my assessment of the circumstances of this respondent, having regard to the established generalised deficiencies in the conditions of detention in Croatia. The CJEU in Dorabantu was clear that while, in principle, the executing judicial authority can rely on assurances given by the issuing judicial authority, the executing judicial authority cannot rule out the risk of inhuman or degrading treatment merely because the issuing member state has in place “legislative or structural measures” that are intended to reinforce the monitoring of detention conditions. Boilerplate language cannot negative established concerns in relation to a real or substantial risk of ill treatment.

99. There can be no argument but that section 37(1)(c)(iii) of the 2003 Act provides for an absolute prohibition on surrender if there are reasonable grounds for believing that the person to be surrendered would be tortured or subjected to other inhuman or degrading treatment.

100. In the circumstances as I find them, it appears that the respondent’s surrender would be in breach of the State's obligations under Article 3 of the ECHR and is thus precluded by section 37 of the 2003 Act. Therefore, I am obliged to refuse surrender at this time on this warrant.

101. This ruling should not operate as a bar to any further request, if made, where relevant and particular assurances can be given to allow for a specific and precise assessment of the risk of a breach of the respondent’s Article 3 rights.