CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 avril 2024

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display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   FOURTH SECTION CASE OF MATTHEWS AND JOHNSON v. ROMANIA (Applications nos. 19124/21 and 20085/21)   JUDGMENT   Art 5 § 1 (f) • Extradition • Lawful detention of applicants with a view to their extradition and surrender • No indication of bad faith or arbitrariness • Period of detention under force majeure domestic provision during application of Court’s interim measure under Rule   39 preventing the applicants’ surrender, accompanied by procedural safeguards • Detention during that specific period or overall, not unreasonably long or unjustified in the light of the authorities’ diligence and their interest in the progress of the procedure Art 3 • Extradition • No evidence showing a real risk of a sentence of life imprisonment without parole in the event of the applicants’ extradition to, and conviction in, the USA • First stage of the test set out in   Sanchez-Sanchez v.   the United Kingdom   [GC] not fulfilled • Manifestly ill-founded   Prepared by the Registry. Does not bind the Court.   STRASBOURG 9 April 2024   FINAL   09/07/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Matthews and Johnson v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Gabriele Kucsko-Stadlmayer , President ,   Tim Eicke,   Faris Vehabović,   Armen Harutyunyan,   Anja Seibert-Fohr,   Ana Maria Guerra Martins,   Sebastian Răduleţu , judges , and Andrea Tamietti, Section Registrar, Having regard to: the applications (nos.   19124/21 and 20085/21) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a New Zealand national, Mr Murray Michael Matthews (“the first applicant”) and a New Zealand and British national, Mr Marc Patrick Johnson (“the second applicant”), on 14 and 19 April 2021 respectively; the decision to give notice of the complaints set out below (see paragraph   1 below) to the Romanian Government (“the Government”), and to declare the remainder of the applications inadmissible; the decision to give priority to the applications (Rule 41 of the Rules of Court); the decisions of 15 April and 5 May 2021 to indicate an interim measure to the respondent Government (Rule   39 of the Rules of Court) and the decision of 12 December 2022 to lift the interim measure indicated; the parties’ observations; the comments submitted by the United Kingdom Government and two   non-governmental organisations, The Aire Centre and Hands off Cain, who were granted leave to intervene by the President of the Section (Article   36 §   2 of the Convention and Rule 44 § 3 of the Rules of Court); the decision to reject the second applicant’s request to have his application relinquished to the Grand Chamber (Rule 72 of the Rules of Court); Having deliberated in private on 19 March 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1 .     The case concerns the applicants’ extradition to the United States of America (“US”), where they allege they would be at risk of receiving a sentence of life imprisonment without the possibility of parole, in violation of Article   3 of the Convention, as well as their detention with a view to extradition, which they claimed had not been in accordance with Article 5. THE FACTS 2.     The applicants were born in 1989 and 1966 respectively. They were represented by Mr B. Cooper and Mr A. Enache, lawyers practising in London and Bucharest respectively. 3.     The Government were represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs. 4.     The facts of the case may be summarised as follows. EXTRADITION REQUEST CONCERNING THE APPLICANTs 5 .     The applicants are alleged to be members and/or associates of the Hells Angels transnational motorcycle gang. 6 .     They were arrested on 19 November 2020. On 14 January 2021, pursuant to the Extradition Treaty of 10 September 2007 (“the Extradition Treaty”) between Romania and the US, the US authorities submitted a request for their extradition. 7 .     The extradition request related to the following three offences: Conspiracy to commit racketeering involving: (i) acts relating to the laundering of monetary instruments; (ii) acts involving murder; and (iii) acts involving trafficking in controlled substances (maximum sentence of life imprisonment); Conspiracy to import and export cocaine into and from the US (maximum sentence of life imprisonment, with a mandatory minimum sentence of ten years’ imprisonment); Conspiracy to commit money laundering (maximum sentence of twenty   years’ imprisonment, with a mandatory minimum fine). 8.     The charges were brought following an undercover operation that took place between May and November 2020 in the US and Romania, during which the applicants attempted to purchase 400   kg of cocaine from a US Drug Enforcement Administration agent posing as a drug dealer. The cocaine was to be smuggled into the US from Peru and then transported via cargo ship containers from Texas to Romania and New Zealand. 9.     The first charge on the indictment indicated that the first applicant, together with his co-accused, had asked the undercover agent to kill two   members of a rival motorcycle club in Romania and had taken various steps in that respect. EXTRADITION PROCEEDINGS The applicants’ detention prior to the decisions on their extradition 10.     On 19 November 2020 the applicants were detained for twenty ‑ four hours by order of the prosecutor. On the same day the Bucharest Court of Appeal (“the Court of Appeal”) ordered their arrest and provisional detention for thirty days under section 44 of Law no. 302/2004 concerning international judicial cooperation in criminal matters (“Law no. 302/2004”), which provides for provisional arrest in urgent cases prior to an extradition request being submitted by the requesting State. 11.     Between 19 November 2020 and 14 January 2021, when the extradition request was submitted by the US authorities (see paragraph   6 above), the applicants’ detention was reviewed regularly and maintained under sections 43 and 44 of Law no. 302/2004, the former of which provides for detention whilst extradition proceedings are pending before the domestic courts. 12.     Between 15 January 2021 and 1 and 5 March 2021 respectively, when the applicants’ extradition was granted at first instance (see paragraph   17 below), the Court of Appeal ordered that the applicants be detained under section 43 of Law no. 302/2004. Extradition decisions 13.     On 14 January 2021 the prosecutor’s office attached to the Court of Appeal lodged separate applications seeking authorisation to extradite the applicants on the basis of the above-mentioned extradition request (see paragraph 6 above). 14.     The applicants’ extradition requests were determined separately by the Court of Appeal (see paragraphs 17-19 below) and on appeal by the High Court of Cassation and Justice (“the High Court”, see paragraphs   20 ‑ 23 below). 15.     The applicants argued before the domestic courts that there were several bars to their extradition under section 21 of Law no. 302/2004, including, inter alia , that they would not receive a fair trial in the US owing to their alleged gang membership. They also contended that their extradition to the US would breach their rights under Article 3 of the Convention because there was a real risk that they would be sentenced to life imprisonment without parole. They relied on the case of Trabelsi v. Belgium (no. 140/10, ECHR 2014) and submitted expert evidence from a US lawyer. 16 .     During the proceedings, the US authorities provided the Court of Appeal with information regarding the possibility of the applicants being sentenced to life imprisonment without parole if found guilty and whether such a sentence could be reduced or commuted. 17 .     At hearings on 1 and 5 March 2021 respectively the Court of Appeal satisfied itself that the requirements of the Extradition Treaty and Law no.   302/2004 were met and that none of the mandatory or optional bars to extradition applied, and authorised the first and second applicant’s extradition (“the extradition decisions”). 18.     In relation to the first applicant’s complaint concerning the risk of a life sentence without parole, the Court of Appeal noted, on the basis of the information provided by the US authorities, that the sentence of life imprisonment for the first two counts on the indictment (see paragraph   7 above) was “discretionary” and that a fixed-term sentence could be imposed. It also found that, unlike in the Trabelsi case, the first applicant’s potential life sentence would be de jure and de facto reducible. The court also held that, on the facts of the case, a sentence of life imprisonment did not appear to be grossly disproportionate. 19 .     As to the second applicant, the Court of Appeal held that Trabelsi had to be distinguished from his case, as in that case the Court had found a violation because the Belgian courts had disregarded an interim measure which it had indicated. Referring to Harkins and Edwards v. the United Kingdom (nos. 9146/07 and 32650/07, 17 January 2012), it found that, on the facts of the case, a sentence of life imprisonment was fully justified, and that there was no requirement for the extraditing State to request any guarantees that such a sentence would be commuted. 20 .     On 25 and 26 March 2021 respectively the High Court dismissed appeals lodged by the second and first applicants. 21.     As regards the first applicant’s grounds of appeal under Article 3, the High Court held that there was uncertainty as to whether he would be found guilty at trial and that, in any event, he had failed to prove he would be sentenced to life imprisonment without parole if convicted. After extensively quoting the information provided by the US authorities concerning the risk of life imprisonment (see paragraph 16 above), it concluded that those authorities had offered sufficient guarantees that a potential life sentence would be de jure and de facto reducible. As to the expert evidence submitted on behalf of the applicants (see paragraph 79 below), the High Court found that it did not contradict the information provided by the US authorities. On this point, it noted that the Court’s case-law on the issue of life sentences without parole addressed the “impossibility” of release, whereas the expert evidence merely indicated that the applicant’s chances of release were reduced. 22.     As regards the second applicant’s appeal, the High Court held that, as the offences of which he had been accused existed in US law, the criminal proceedings against him, together with a potential conviction, could not be regarded as a risk that he would be subjected to inhuman or degrading treatment contrary to Article 3. 23 .     Following exchanges with the US authorities, the applicants’ final surrender date was set for 12 May 2021. Interim measure indicated by the Court in respect of the applicants 24.     On 14 and 19 April 2021 the applicants requested the Court, under Rule   39 of the Rules of Court, to prevent their extradition to the US. 25 .     On 15 April 2021 (granted until 6 May 2021 in respect of the first applicant) and 5 May 2021 (granted in respect of both applicants) the Court decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government as an interim measure that they should not be extradited for the duration of the proceedings before the Court. 26 .     On 12 December 2022, following a request by the Government, who referred to the adoption by the Court of the judgment in the case of Sanchez ‑ Sanchez v. the United Kingdom [GC] (no. 22854/20, 3 November 2022), the Court lifted the interim measure indicated on 5 May 2021 in respect of both applicants. The applicants’ detention with a view to surrender 27 .     In the extradition decisions of 1 and 5 March 2021 (see paragraph 17 above) the Court of Appeal, under sections   52(3) and 57 of Law no.   302/2004, maintained the applicants’ detention until their surrender to the US authorities. Mr Matthews’ detention 28 .     On 7 May 2021, following an application (referred to as “objection”, contestaţie in domestic law) by the department for the execution of sentences ( Biroul executări penale ), the Court of Appeal, referring to Article 598 § 1   (c) of the Criminal Code of Procedure (“the CCP”, see paragraph 59 below), held that the Court’s interim measure of 5 May 2021 was a temporary impediment to the applicant’s surrender to the US authorities on 12 May 2021. In the same decision, it continued his detention and ordered the domestic authorities to follow the procedure laid down in section 57(5) of Law   no.   302/2004 (see paragraph 58 below) to ensure enforcement of the extradition decision and to convene a new surrender date. 29 .     On 20 May 2021, following an appeal by the applicant, the High Court upheld the decision of 7 May. In reply to his submissions that his detention exceeded the maximum time-limit provided for in section 43(3) of Law no.   302/2004, the High Court held that the detention time-limits under that provision did not apply to detention with a view to surrender, for the purposes of which the applicant was being detained. 30 .     On 3 June 2021, following a challenge to detention lodged by the applicant on 27   May 2021, the Court of Appeal found that section 57(5) of Law   no.   302/2004 only provided for the possibility of release after fifteen   days from the agreed surrender date and that on the facts of the case, the applicant’s release was not appropriate. It further held that the measure of detention could not be replaced with another less restrictive preventive measure since this possibility was not provided for by Law no. 302/2004. On 10 June 2021, reiterating the Court of Appeal’s reasoning, the High Court dismissed the applicant’s appeal. 31 .     On 7 June 2021 the department for the execution of sentences, noting that the time ‑ limit for surrendering the applicant to the US authorities was due to expire on 10 June 2021, lodged a further “objection” to his detention with the Court of Appeal, asking it to determine whether the interim measure indicated by the Court constituted a force majeure within the meaning of section 57(6) of Law no. 304/2022, which allowed for the applicant’s continued detention. 32 .     On 10 June 2021 the Court of Appeal, considering the decisions rendered by the domestic courts in the applicant’s case, reiterated that the interim measure of 5 May 2021 was an impediment to the applicant’s surrender to the US authorities and found that the existence of such an impediment could have only been determined by the domestic courts by reference to section 57(6) of Law no. 302/2004, which recognised the concept of force majeure . Accordingly, as previously determined by the courts, given that the impediment representing a force majeure was ongoing, the applicant’s detention was still required. 33 .     The applicant’s appeal against the decision was heard on 29 June 2021 by the High Court. He submitted that force majeure , as defined by domestic civil law and international case-law, was an unforeseeable and inescapable event beyond a party’s control. As Romania had voluntarily assumed obligations as a Council of Europe member and a State Party to the European Convention on Human Rights, the domestic authorities could not consider an interim measure unforeseeable. 34.     The applicant contended that section 57(5) of Law no. 302/2004 provided for a thirty-day time-limit for detention with a view to surrender, calculated from the date set for surrendering him to the US authorities, which in his case had been exceeded. He further submitted that, even if his detention were to be considered a preventive measure within the meaning of the CCP, he had been detained for 220 days, beyond the maximum of 180 days allowed by domestic law. Accordingly, and also considering the absence in Law   no.   302/2004 of provisions setting a “fully determined” maximum time ‑ limit for detention with a view to surrender and a periodic judicial review, his detention was in breach of domestic law and Article 5 of the Convention, requiring his release. 35 .     The High Court confirmed that the domestic courts had previously determined the existence of a temporary impediment to surrender, which, in the absence of any changes, was res judicata (see paragraphs 28-30 above). Although the previous decisions did not explicitly indicate the applicability of section   57(6) of Law no. 302/2004 to the applicant’s case, they “concretely” indicated the procedural measures under that provision that were relevant given the existence of such an impediment. 36 .     As to the alleged absence of force majeure , after carrying out a detailed review of Law   no.   302/2004 and various international and European instruments, the High Court held that the meaning of force majeure was specific to the field of international judicial cooperation in criminal matters, as enshrined in international instruments, which Law no. 302/2004 transposed into domestic legislation. Accordingly, contrary to the applicant’s submissions, the concept of force majeure in an extradition context – described by these instruments, in their English version, as surrender prevented by circumstances beyond the member State’s control – was autonomous and distinct from the concept provided for by the Romanian Civil Code. 37.     The court noted that the European Court of Justice (CJEU), in the case C-640/15- Tomas Vilkas , had interpreted the concept of force majeure when it had been asked to determine a request for a preliminary ruling concerning the interpretation of Article 23 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009. 38 .     Reiterating the CJEU’s reasoning in Vilkas (see paragraph 63 below) and finding itself bound by the interpretation given by the CJEU to force majeur e, even when the requesting State was not an EU member State, the High Court concluded that an interim measure which compelled the Romanian State not to surrender an extradited person was an “unforeseeable and inescapable circumstance”. The fact that such a circumstance was brought about by the application of the Convention, did not, eo ipso , make it foreseeable, since interim measures, although provided for by the Rules of Court, were only indicated by the Court in exceptional cases. Moreover, there was also no requirement that the circumstance be “completely unforeseeable” as long as it was beyond the control of the authorities and extrinsic to the States Parties, as was the present case. Accordingly, contrary to the applicant’s submissions, the interpretation of section 57(6) was clear and predictable. 39.     Lastly, the High Court held that the 180-day time-limit for pre-trial detention (under the CCP) was not applicable to detention with a view to surrender and, referring to the Court’s case-law on Article 5 of the Convention, stated that the absence of domestic provisions concerning a maximum period of such detention and its periodic judicial review did not render the applicant’s detention illegal or arbitrary while the extradition proceedings were ongoing and the length of detention was justified and reasonable, with the effective possibility of judicial control. 40 .     On different dates between May and September 2021, the applicant lodged several sets of proceedings challenging the lawfulness of his detention, including an unconstitutionality objection (see paragraphs 55–56 below), and seeking less restrictive detention measures pursuant to Article   242 of the CCP. On 14 September 2021, following such a request, the High Court confirmed the lawfulness of his detention but replaced it with house arrest for an initial renewable period of thirty days. In doing so, the High Court held that, although no maximum detention time-limit had been met, the applicant’s detention was no longer necessary, and that house arrest was sufficient to ensure compliance with the Court’s interim measure and to prevent him from absconding. 41 .     After yet another unsuccessful challenge on 9 October 2021, on 19   November 2021, referring to the Court’s interim measure still in force and its case-law on Article 5 § 1, particularly as regards the reasonableness of the length of detention, the Bucharest Court of Appeal released the applicant and placed him under judicial supervision. Mr Johnson’s detention 42 .     On 7 May 2021, following an application by the department for the execution of sentences, the Court of Appeal, referring to Article 598 § 1 (c) of the CCP (see paragraph 59 below), found that the Court’s interim measure of 5 May 2021 represented an impediment to the applicant’s surrender to the US authorities. In the same decision, referring to section   57(5) and (6) of Law no.   302/2004 (see paragraph 58 below) as applicable to detention with a view to surrender, it continued the applicant’s detention, noting that the interim measure had no bearing, at that time, on his detention, which was res judicata , having been ordered in the extradition decision of 5 March 2021 (see paragraph 17 above), and mandatory under section 52(3) of Law no.   302/2004. 43 .     The Court of Appeal held that Law no. 302/2004 distinguished between detention whilst extradition proceedings were pending before the domestic courts and detention with a view to surrender to the requesting State (sections 43 and 57 respectively), each being governed by its own legal regime. As to the maximum 180-day detention time-limit provided for in section 43(3) of Law no. 302/2004, this was only applicable to detention whilst extradition proceedings were pending before the domestic courts, which was not the applicant’s case after the extradition decision of 5 March 2021. 44 .     An appeal by the applicant against the above-mentioned decision, by which he sought release or less restrictive detention measures, was dismissed on 17 May 2021 by the High Court, which confirmed the Court of Appeal’s reasoning. 45.     On 7 June 2021 the department for the execution of sentences, noting that the applicant’s detention pending his surrender to the US authorities was due to expire on 10 June 2021, lodged a further “objection” to this detention with the Court of Appeal, asking it to determine whether the interim measure of 5 May 2021 constituted force majeure within the meaning of section 57(6) of Law no. 304/2022, which allowed for the applicant’s continued detention. 46.     On 8 June 2021 the Court of Appeal decided that the Court’s interim measure did not constitute force majeure and that the applicant’s detention would end on 10 June 2021 at 12 midnight. 47 .     On 10 June 2021 the High Court quashed the above-mentioned decision of the Court of Appeal and held that the applicant’s detention had not ended that day. As regards force majeure , the court found that its applicability to the applicant’s case had been conclusively determined in the affirmative in the decisions of 7 and 17 May 2021 (see paragraphs   42 ‑ 44 above), as those proceedings had been lodged under and determined by reference to section 57(6) of Law no. 302/2004, which recognised the concept of force majeure . As to the applicant’s detention, the decisions of 7 May and 17 May 2021 also conclusively determined that, pursuant to section 52(3) of Law no. 302/2004, the Court’s interim measure had no bearing on the applicant’s continued detention with a view to surrender. 48 .     On different dates between May and September 2021, the applicant brought several sets of proceedings challenging the lawfulness of his detention, including an unconstitutionality objection (see paragraphs 55–56 below), and seeking to be placed under less restrictive detention measures pursuant to Article 242 of the CCP. On 14   September 2021, following a further application by the applicant, the High Court confirmed the lawfulness of his detention, but replaced it with house arrest for thirty days, which was subsequently reviewed regularly and extended, pursuant to the relevant provisions of the CCP. 49 .     On 9 December 2021, referring to the Court’s interim measure still in force and its case-law on Article 5 § 1, particularly as regards the reasonableness of the length of detention, the Court of Appeal released the applicant and placed him under judicial supervision for sixty days, which was subsequently extended regularly. Events subsequent to notice of the case being given to the Government of Romania 50 .     On 14 December 2022, after the lifting of the interim measure by the Court on 12 December 2022 (see paragraph 26 above), the department for the execution of sentences, under Article   598   §   1   (c) in fine of the CCP and section 43(6) of Law no. 302/2004, lodged an “objection” to enforcement ( contestație la executare ) of the applicants’ extradition decisions (see paragraph 17 above). The department for the execution of sentences requested that the Court of Appeal order the applicants’ arrest, in the absence of which the final extradition decisions were unenforceable as section 57(4) of Law   no.   302/2004 provided that surrender to the requesting State could only be done under escort. 51 .     On 15 December 2022, noting that the Court’s interim measure – an impediment to the enforcement of the extradition decision – had been lifted, the Court of Appeal held that the lack of an arrest warrant to secure the applicants’ surrender impeded, within the meaning of Article 598 § 1 (c) in   fine of the CCP, the enforcement of the extradition decisions. Accordingly, under section 43(6) of Law   no.   302/2004, the Court of Appeal ordered the applicants’ arrest and detention for thirty days, with a view to their surrender to the US authorities. 52.     The decisions of 15 December 2022 were amenable to appeal. It does not appear that the applicants appealed against them. 53 .     According to the Government, as of 3 March 2023, the arrest warrants have not been enforced, and the applicants are listed on the Romanian Police website as wanted persons. RELEVANT LEGAL FRAMEWORK AND PRACTICe ROMANIA Law no. 302/2004 concerning international judicial cooperation in criminal matters 54 .     Under Romanian law, extradition proceedings are governed by Law no.   302/2004 concerning international judicial cooperation in criminal matters. The relevant provisions, which supplement the Extradition Treaty, as in force before their amendment on 20 November 2022 (see paragraphs   57 ‑ 58 below), read as follows: Section 43 Provisional arrest and referral to the court “... (3) Provisional arrest with a view to extradition shall be ordered and extended by the court dealing with the extradition request, by means of an interim decision, without the total duration of provisional arrest exceeding 180 days. After the judgment ordering the arrest has been issued, the judge shall immediately issue a warrant for provisional arrest with a view to extradition. The provisions of the Code of Criminal Procedure on the content and execution of an arrest warrant shall apply accordingly. ... (5) The court shall, whilst the extradition request is pending before it, periodically review, but no later than thirty days, the need to maintain provisional arrest and may, where appropriate, maintain it or replace it by house arrest, judicial supervision or bail. Provisional arrest shall be replaced by house arrest, judicial supervision or bail only in duly justified cases and only if the court is satisfied that the extraditable person will not attempt to evade prosecution. (6) Once the extradition request has been granted, the court, by means of a decision, shall also order the detention of the extradited person with a view to surrender. (7) The measure of detention with a view to surrender shall cease ex lege if the extradited person is not taken into custody by the competent authorities of the requested State within thirty days of the agreed surrender date, except in the case referred to in section 57(6). In such a case, the court shall order the immediate release of the extradited person and inform the Ministry of Justice and the International Police Cooperation Centre of the General Inspectorate of the Romanian Police. ...” Section 52 Determination of the extradition request “(1) The Court of Appeal, upon examination of the extradition request, the evidence before it and the submissions made by the person sought and the public prosecutor, may: ... (c) determine, by decision, whether the extradition requirements are met. ... (3) In cases where the Court of Appeal concludes that the extradition requirements are met, it shall grant the extradition request, ordering at the same time that the provisional arrest of the extradited person be maintained until surrender, in accordance with section 57. ...” Section 56 Surrender of the extradited person “(1) An extract from the final court decision ordering extradition is required and considered a sufficient legal basis for the surrender of the extradited person. ... (3) The surrender date shall be communicated to the Ministry of Justice and the competent court of appeal within fifteen days from the date the court decision referred to in subsection 1 is communicated. If the surrender date has not been set within fifteen days, the International Police Cooperation Centre of the General Inspectorate of the Romanian Police shall confirm the steps taken and the reasons why the surrender date could not be set within this period.” Section 57 Deadlines for surrendering the extradited person “... (3) If the request for extradition is granted, the authorities of the requested State shall inform the authorities of the requesting State of the date and place of the surrender of the extradited person, as well as of the length of time the person was detained with a view to extradition. (4) ... The extradited person shall be surrendered and taken under escort. (5) With the exception provided under subsection (6), if the extradited person is not removed from the territory of the requested State on the agreed date, that person may be released from custody fifteen days after the agreed date; the fifteen-day period can only be extended once. (6) In cases of force majeure , which prevents the surrender or reception of the extradited person, the Romanian authorities and the authorities of the requesting State shall agree on a new surrender date, the provisions of section 56(3) being applicable.” Constitutional Court decision no. 359/2022 of 26 May 2022 55 .     On 22 May 2022 the Constitutional Court dismissed an unconstitutionality objection by the applicants concerning section 52(3) of Law no. 302/2004 on the grounds that detention “with a view to extradition” could not be classed as a preventive measure provided for by the CCP for pre ‑ trial detention; the legislature’s choice as regards the absence of automatic periodic review of the subsequent detention “with a view to surrender”, once the extradition decision was taken, and the inability to replace detention with alternative measures was in compliance with the Constitution and Article   5   §   1 of the Convention, in the light of the short time ‑ limits provided for the surrender. 56 .     As regards section 57(5) and (6) of Law no. 302/2004, the Constitutional Court upheld the first applicant’s objection in part and found that the section in question, in so far as it related to the expression “with the exception provided under subsection (6)” ( force majeure ), was unconstitutional because it allowed for indefinite detention in the absence of a clear and foreseeable legal framework. On this basis, it concluded that the legislature was under a duty to provide such a framework. 57 .     Following the Constitutional Court’s decision, Law no. 302/2004 was amended, and the new provisions entered into force on 20 November 2022. According to the explanatory note on the amending legislation, section   43 was modified to put an end to the confusion at domestic level as to the notions of “provisional arrest with a view to extradition” and “detention with a view to surrender”, as well as their respective detention time-limits. The amendment was enacted to reflect that detention in the context of extradition proceedings was a unique concept, allowing a person to be held for up to 180   days until surrender. 58 .     The relevant amended provisions read as follows: Section 43 Provisional arrest and referral to the court “... (3) Provisional arrest with a view to extradition shall be ordered and extended by the court dealing with the extradition request, by means of an interim decision, without the total duration of the provisional arrest, until the actual surrender to the requesting State, exceeding 180 days. ...” Section 57 Deadlines for surrendering the extradited person “... (6) In cases of force majeure , which prevents the surrender or reception of the extradited person, the Romanian authorities and the authorities of the Requesting State shall agree on a new surrender date, without the duration of the total provisional detention, until the date of surrender, exceeding 180 days. ...” Code of Criminal Procedure 59 .     The relevant provisions of the Code of Criminal Procedure (“the CCP”), as in force at the relevant time, read as follows: Article 236 Extending pre-trial detention during the criminal investigation “... (4) The overall duration of pre-trial detention during the criminal investigation may not exceed a reasonable length and may be no longer than 180 days. ...” Article 598 Objection to enforcement “(1) An objection to enforcement of a criminal judgment may be lodged in the following cases: ... (c) where there is ambiguity concerning the judgment to be enforced or any impediment to enforcement; ...” Other relevant legal provisions in Law no. 302/2004 concerning enforcement and detention with a view to surrender 60 .     Section 104, which concerns the procedure for execution of a European arrest warrant, provides that detention of the extradited person, until actual surrender to the requesting State, may not exceed 180 days. 61 .     Section 113 provides that if the extradited person is not surrendered within the prescribed time-limits, that person must be released, without this constituting a ground for refusing to execute a European arrest warrant based on the same facts. EUROPEAN UNION Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States 62.     The relevant provision of the Framework Decision reads as follows: Article 23 Time-limits for surrender of the person “(1). The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. (2). He or she shall be surrendered no later than ten days after the final decision on the execution of the European arrest warrant. (3). If the surrender of the requested person within the period laid down in paragraph   2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within ten days of the new date thus agreed. (4). The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within ten days of the new date thus agreed. (5). Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.” Vilkas (C‑640/15, EU:C:2017:39) 63 .     The relevant paragraphs from the CJEU’s judgment of 25 January 2017 in the case of Vilkas are as follows: “It is apparent from settled case-law, established in various spheres of EU law, that the concept of force majeure must be understood as referring to abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care (see, to that effect, judgments of 18 December 2007, Société Pipeline Méditerranée et Rhône , C‑314/06, EU:C:2007:817, paragraph 23; of 18 March 2010, SGS Belgium and Others , C‑218/09, EU:C:2010:152, paragraph 44; and of 18   July 2013, Eurofit , C‑99/12, EU:C:2013:487, paragraph 31). ... However, it is also settled case-law that, since the concept of force majeure does not have the same scope in the various spheres of application of EU law, its meaning must be determined by reference to the legal context in which it is to operate (judgments of 18 December 2007, Société Pipeline Méditerranée et Rhône , C‑314/06, EU:C:2007:817, paragraph 25; of 18 March 2010, SGS Belgium and Others , C‑218/09, EU:C:2010:152, paragraph 45; and of 18 July 2013, Eurofit , C‑99/12, EU:C:2013:487, paragraph 32). ... Article 23(3) of the Framework Decision must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, the executing and issuing judicial authorities agree on a new surrender date under that provision where the surrender of the requested person within ten days of a first new surrender date agreed on pursuant to that provision proves impossible on account of the repeated resistance of that person, in so far as, on account of exceptional circumstances, that resistance could not have been foreseen by those authorities and the consequences of the resistance for the surrender could not have been avoided in spite of the exercise of all due care by those authorities, which is for the referring court to ascertain.” THE UNITED STATES OF AMERICA 64 .     The relevant US Sentencing Guidelines, the mechanisms to seek leniency or a reduced sentence, as well as statistical information on the imposition of life sentences in the Federal System are set out in Sanchez ‑ Sanchez v. the United Kingdom ([GC], no. 22854/20, §§ 57-63, 3   November 2022). THE LAW JOINDER OF THE APPLICATIONS 65.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court) and to examine them in a single judgment. SCOPE OF THE CASE 66 .     The Court observes that, after the Government were given notice of the application, the second applicant raised new complaints, in substance under Articles 3 and 5 of the Convention, concerning the risk of receiving a grossly disproportionate sentence in the US and the lawfulness of the second   arrest warrant issued on 15   December 2022 (see paragraph 51 above). In the Court’s view, these new complaints are closely related to his original complaints or represent an elaboration of the latter based on the factual developments of the case (see Radomilja and Others v. Croatia [GC], nos.   37685/10 and 22768/12, §§ 121-22, 20 March 2018). For these reasons, the Court considers that they fall within the scope of the present case and will examine them below. 67 .     However, as regards additional complaints raised by the second   applicant of, among other things, shortcomings in the undercover operation leading to his arrest and the inability to challenge the relevant evidence (Article 6 of the Convention), which, given their subject matter and the date on which they were lodged, were registered separately under a different case reference (no. 12870/23), the Court observes that they are not an elaboration of the complaints of the present case and does not consider it appropriate to examine them in the context of the present case. Similar reasons being applicable to the first applicant’s subsequent application (no.   37211/22), the Court rejects, under Ru