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

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .sCDED223E { margin-top:36pt; margin-bottom:14pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sA36B60A1 { font-family:Arial; font-style:italic } .s39E5096F { margin-top:0pt; margin-bottom:14pt; text-align:center } .s780F5245 { border:0.75pt solid #000000; clear:both } .s795B4A6B { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt; font-size:11pt } .sA57875D8 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt; font-size:11pt } .sEBD403DD { margin-top:0pt; margin-bottom:0pt; text-align:center; padding-right:4pt; padding-left:4pt; font-size:8pt } .sD37EA1D6 { margin-top:0pt; margin-bottom:0pt; text-align:center; padding-right:4pt; padding-left:4pt; padding-bottom:1pt; font-size:9pt } .s2E1B62A9 { margin-top:0pt; margin-bottom:6pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s28F0D84C { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s7EE7EF95 { font-family:Arial; color:#0e101a } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .sA2548810 { margin-top:14pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:10pt } .s718D1C37 { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sA98445F2 { margin-top:14pt; margin-bottom:0pt; text-align:center; font-size:10pt } .sC7F8CD86 { margin-top:0pt; margin-bottom:6pt; text-align:center; font-size:10pt } .s1E2B8B97 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sC47DA4E2 { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.51pt; font-family:Arial; text-transform:uppercase } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s4C3BEE72 { margin-top:14pt; margin-left:16.34pt; margin-bottom:12pt; text-align:justify; padding-left:3.51pt; font-family:Arial; text-transform:uppercase } .s448F0C15 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s58277305 { width:28.55pt; display:inline-block } .sDC0B6D6A { width:108.08pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } FOURTH SECTION CASE OF LAZĂR v. ROMANIA ( Application no. 20183/21)   JUDGMENT Art 5 § 1 (f) • Extradition • Detention of applicant with a view to his extradition and surrender • Due diligence • First period of detention following initial arrest not excessive in length and   carried out in good faith • Domestic courts’ interpretation of relevant legal provisions and time-limits not unreasonable or arbitrary and proceedings accompanied by procedural safeguards • Second period of detention with a view to surrender after applicant’s rearrest “in accordance with a procedure prescribed by law” • Domestic courts faced with a sui generis situation following amendment of relevant domestic law without transitional provisions • Applicant’s rearrest for the purpose of his surrender not unforeseeable after lifting of Court’s interim measure under Rule   39 • No indication of bad faith, deception or manipulation in respect of that period of detention Art 3 • Extradition • No evidence showing a real risk of a sentence of life imprisonment without parole in the event of the applicant’s 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   23/09/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lazăr 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 application (no. 20183/21) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 April 2021 by a Romanian national, Mr Marius Lazăr, (“the applicant”); 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 application inadmissible; the decision to give priority to the application (Rule 41 of the Rules of Court); the decisions of 5 May 2021 to indicate an interim measure to the respondent Government (Rule   39 of the Rules of Court) and 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; Having deliberated in private on 19 March 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1 .     The case concerns the applicant’s extradition to the United States of America (“US”), where he would allegedly 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 his detention with a view to extradition, which he claimed had not been in accordance with Article 5. THE FACTS 2.     The applicant was born in 1973 and lived in Bucharest before his extradition to the US on 16 January 2023. He was represented by Ms E. Lazăr, a lawyer practising in Bucharest. 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 APPLICANT 5.     The applicant is a member of Hells Angels Romania, which is part of the Hells Angels transnational motorcycle gang. 6 .     He was 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 his extradition. 7 .     The extradition request related to the following three offences: (1)     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); (2)(     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); (3)     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 applicant, together with his co-conspirators, 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 applicant 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 applicant’s detention prior to the decision on his extradition 10.     On 19 November 2020 the applicant was detained for twenty ‑ four   hours by order of the prosecutor. On the same day the Bucharest Court of Appeal (“the Court of Appeal”) ordered his 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 applicant’s detention was reviewed regularly. 12.     Between 15 January and 1 March 2021, when the extradition was granted at first instance (see paragraph 19 below), the Court of Appeal ordered that the applicant be detained under section 43 of Law no. 302/2004, which provides for detention whilst extradition proceedings are pending before the domestic courts. Extradition decision 13 .     On 14 January 2021 the prosecutor’s office attached to the Court of Appeal lodged an application seeking authorisation to extradite the applicant on the basis of the above-mentioned extradition request (see paragraph 6 above). 14 .     The applicant argued before the Court of Appeal that his extradition would be in breach of Article 3 of the Convention because there was a real risk that he would be sentenced to life imprisonment without parole. He relied on the case of Trabelsi v. Belgium (no. 140/10, ECHR 2014). 15 .     Relying on section 21(1)(a) of Law. no 302/2004, which concerns mandatory bars to extradition, the applicant contended, inter alia , that he would not receive a fair trial in the US owing to the fact that he had not been informed of the charges against him and that the US arrest warrant, which had been issued in absentia , lacked essential information about him. 16 .     During the proceedings, the US authorities provided the Court of Appeal with information regarding the possibility of the applicant being sentenced to life imprisonment without parole if found guilty and whether such a sentence could be reduced or commuted. 17.     An extradition hearing took place on 1 March 2021. In relation to the applicant’s complaint concerning the risk of a life sentence without parole, the Court of Appeal held, on the basis of the information provided by the US   authorities (see paragraphs 64 and 67 below), that the sentence of life imprisonment for the first two counts of 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 applicant’s potential life sentence would be de jure and de facto reducible. The court also found that in view of the seriousness of the charges against him, life imprisonment would not be grossly disproportionate. 18.     As to the allegation that the applicant would not receive a fair trial, the court held that, as the criminal trial against him was pending before the US courts, it could not be assessed, and that his attendance was sought precisely to uphold his defence rights. 19 .     At the same hearing of 1 March 2021 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, granted the applicant’s extradition (“the extradition decision”). 20.     The applicant appealed to the High Court of Cassation and Justice (“the High Court”). Although the grounds for the appeal were not provided to the Court, it appears from the High Court’s decision of 11 March 2021 (see paragraph 21 below) that the applicant reiterated the same complaints as those raised before the Court of Appeal (see paragraphs 14-15 above). 21 .     The High Court, which heard the applicant’s appeal on 11 March 2021, upheld the Court of Appeal’s extradition decision of 1 March 2021. 22 .     Following exchanges with the US authorities, the applicant’s date of surrender, which was first envisaged to be 7 May 2021, was eventually agreed on by both States’ authorities for 12   May 2021. Interim measure indicated by the Court in respect of the applicant 23.     On 19 April 2021 the applicant requested the Court, under Rule 39 of the Rules of Court, to prevent his extradition to the US. 24 .     On 5 May 2021 the Court decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government that he should not be extradited for the duration of the proceedings before the Court. 25 .     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. The applicant’s detention with a view to surrender 26 .     In the extradition decision of 1 March 2021 (see paragraph 19 above) the Court of Appeal, under sections 52(3) and 57 of Law no. 302/2004, maintained the applicant’s detention until his surrender to the US authorities. 27 .     On 11 May 2021, following an application (referred to as “objection”, contestaţie in domestic law) by the department for the execution of sentences attached to the Court of Appeal ( Biroul executări penale ), that court, referring to the Court’s interim measure of 5   May 2021 and Article 598 § 1 (c) of the Criminal Code of Procedure (“the CCP”), suspended the enforcement of the extradition decision whilst the applicant’s case was pending before the Court. Acknowledging that his detention was a provisional measure ancillary to his extradition and the uncertainty regarding the date when the Court would determine the merits of his application, the court ordered his release and placed him under judicial supervision for sixty days. 28 .     Following an appeal by the prosecutor’s office attached to the Court of Appeal, the High Court, in a final decision of 17 May 2021, unanimously held that the Court’s interim measure (see paragraph 24 above) was an impediment to the applicant’s surrender to the US authorities. By a majority, the High Court overturned the applicant’s placement under judicial supervision and remanded him in custody. In doing so, it held that, contrary to the applicant’s submissions, detention in the context of extradition proceedings was mandatorily governed by Law no. 302/2004, and that its specific provisions were not to be read in conjunction with the CCP provisions concerning the revocation or replacement of pre-trial detention. 29 .     The High Court held that Law no. 302/2004 distinguished between detention whilst extradition proceedings were pending and detention with a view to being surrendered to the requesting State (sections 43 and 57 respectively). Accordingly, contrary to what the applicant claimed, the automatic judicial review, the maximum 180-day time-limit and the possibility of replacement with less restrictive preventive measures were only applicable to the first type of detention. The court, pointing to the mandatory nature of detention with a view to surrender once extradition had been granted by the domestic courts, concluded that the Court’s interim measure has no effect upon the applicant’s detention which was governed by Law no.   302/2004 and that, in any event, considering the surrender date set for 12   May 2021, the thirty-day time-limit provided for in section 43(7) as of that date had not yet been exceeded. Thus, the applicant’s detention did not automatically cease ex lege . 30 .     The applicant lodged an unconstitutionality objection (see paragraphs   44-46 below) and numerous unsuccessful challenges to his detention. On 8   June 2021, upon the applicant’s renewed challenge, the High Court ordered his release and placement under judicial supervision for sixty   days, imposing several conditions on him pursuant to Article 215 of the CCP. Holding that the Romanian legislature had envisaged that decisions granting extradition would be enforced effectively and in a timely manner, and acknowledging the applicant’s “wholly particular situation” in the absence of a date set for his surrender after the Court’s interim measure, the High Court concluded that he could not be detained indefinitely. The High Court also took into account that the Court’s interim measure requested the Romanian authorities not to remove the applicant until the end of the proceedings that he had lodged before the Court and that there was uncertainty as to the length of the proceedings and the date when he might be surrendered. 31 .     The applicant’s placement under judicial supervision was extended regularly by the domestic courts until it was terminated by a final decision of the High Court on 27 September 2022. Accordingly, as of that date, the applicant was no longer subject to any preventive measures. Events subsequent to notice of the case being given to the Government and the applicant’s surrender 32 .     On 14 December 2022, after the lifting of the interim measure by the Court on 12 December 2022 (see paragraph 25 above), the department for the execution of sentences, under Article   598   §   1   (c) in fine of the CCP (see paragraph 48 below) and section 43(6) of Law no. 302/2004 (see paragraph   43 below), lodged an “objection” to enforcement of the applicant’s extradition decision (see paragraph 19 above). The department for the execution of sentences requested that the Court of Appeal order the applicant’s arrest, in the absence of which the final extradition decision was unenforceable as section 57(4) of Law no. 302/2004 provided that surrender to the requesting State could only be done under escort. 33 .     The applicant argued that Article 598 § 1 (c) in fine of the CCP did not apply to his case. He referred to a Constitutional Court decision (no.   359/2022, see paragraphs 44-45 below) and contended that he had already been detained for 202 days and that all possible provisional measures with a view to extradition had been used in respect of him. At the Court of Appeal’s request, the applicant’s lawyer informed the court that the applicant did not consent to surrender to the authorities voluntarily. 34 .     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 applicant’s surrender impeded, within the meaning of Article 598 § 1 (c) in   fine of the CCP, the enforcement of the extradition decision. 35 .     On the same point, the Court of Appeal referred to a High Court decision (no. 892/2017) finding that detention with a view to surrender, under section   43(6) of Law   no.   302/2004, was a necessary measure for the enforcement of the decision to extradite, akin to the enforcement of a custodial sentence decision. The High Court had also held that detention with a view to surrender was not precluded by previous detention with a view to extradition that had reached 180 days (section 43(3) of that Law). 36 .     The Court of Appeal further held that the same reasoning applied to the applicant’s case, even after the amendment of section 57(6) as of 16   November 2022 (see paragraphs 46-47 below), given the distinction between provisional arrest as a procedural measure ( măsura procesuală ) and detention with a view to surrender as a procedural act ( act de procedură ) aimed at enforcing the extradition decision, which implied handing the individual concerned to the authorities of the requesting State. 37 .     Accordingly, under section 43(6) of Law   no.   302/2004, and considering that this Law did not prescribe, as lex specialis , the duration of detention strictly aimed at enforcing an extradition decision, the Court of Appeal ordered the applicant’s arrest and detention for thirty days with a view to his surrender to the US authorities, by application of the general provisions of Romanian procedural criminal law ( legii procesual penale române ). On 28   December 2022 he was arrested and remanded in custody. 38.     The applicant challenged his renewed detention before the High Court, arguing that there was no legal basis for his detention and that the arrest warrant issued against him by recourse to Article 598 § 1 (c) in fine of the CCP – a legal “invention” created for the very purpose of arresting him, in the absence of an adequate legal framework – was unlawful. He further submitted that his surrender should be governed exclusively by sections 56 and 57 of Law no. 302/2004 and, having regard to the fact that all preventive measures provided for by this law had been exhausted and cannot be renewed outside its framework, should be carried out in the absence of an arrest warrant. 39 .     By a final decision of 13 January 2023, the High Court dismissed the applicant’s challenge and his arguments against the possibility of ordering, by way of an “objection” to enforcement, his detention with a view to surrender when his previous detention allegedly exceeded the maximum time-limit set by domestic law. 40 .     Reiterating the Court of Appeal’s reasoning, the High Court observed first that, contrary to the applicant’s thesis, the “objection” to enforcement was aimed exclusively at enforcing the extradition decision by issuing an arrest warrant with a view to his surrender. It continued that once the extradition decision had become final (11 March 2021), the applicable provisions had been sections 43(7) and 57(5) and (6) of Law   no.   302/2004 with their different time-limits concerning surrender. The High Court further held that the decision to extradite the applicant had not been enforced because of the interim measure indicated by the Court following which the authorities did not set a date for surrender, so that the aforementioned time-limits had not begun to run. It concluded that, given the aim of enforcing a final extradition decision, the applicant’s detention with a view to surrender was a proportionate measure that complied with the Convention. 41 .     On 3 January 2023 the Court of Appeal, in a separate set of proceedings, dismissed a request by the applicant to be placed under judicial supervision on the grounds that Law no. 302/2004 did not provide for alternative preventive measures to detention, which, moreover, were not appropriate in his situation. It found that the correct interpretation of sections   43(7) and 57(6) of Law   no. 302/2004, in the absence of a surrender date, required his detention until surrender. On 17 January 2023 the High Court upheld the Court of Appeal’s decision of 3   January 2023. 42 .     Following an information letter of 11 January 2023, on 16 January 2023 the applicant was surrendered to the US authorities. According to medical documents dated 12 and 16 January 2023, he attended the Sfântul Ioan Emergency Hospital complaining of pain in his abdomen (right iliac and hypogastric regions). Clinical and laboratory examinations appeared overall within normal parameters, indicating no reasons for him to be hospitalised or given specific treatment and no emergency justifying transport by ambulance. On the latter date, he had a urinary catheter inserted, which he appeared to have been wearing when he was surrendered to the US authorities at Bucharest Henri Coandă International Airport (Otopeni). RELEVANT LEGAL FRAMEWORK AND PRACTICE ROMANIA Law no. 302/2004 concerning international judicial cooperation in criminal matters 43 .     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   46 ‑ 47 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 44 .     By a decision of 26 May 2022, which was published in the Official Gazette of Romania on 4 October 2022, the Constitutional Court dismissed an unconstitutionality objection by the applicant 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 surrender. 45 .     As regards section 57(5) and (6) of Law no. 302/2004, the Constitutional Court upheld the 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. However, the Constitutional Court observed that the domestic courts did not classify the applicant’s situation as force majeure , and therefore the only possibilities provided by Law no. 302/2004 with respect to his detention with a view to surrender were release after a maximum time-limit of thirty days (the rule), or the application of force majeure (the exception). The legislature had an obligation to identify situations which determined that an extradited person’s deprivation of liberty should be maintained after the expiry of the deadlines provided for by section 43(7) in conjunction with section 57(5) of Law no.   302/2004; it also had to establish a clear and predictable framework providing for the definition of such deprivation of liberty, the conditions underlying an order for or extension of that measure, the maximum duration of an order for or extension of that measure, the content of such an order, an appeal against such an order, and so on. 46 .     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. 47 .     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 48 .     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 49 .     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. 50 .     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. THE UNITED STATES OF AMERICA 51.     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 SCOPE OF THE CASE 52.     The Court observes that, after the Government were given notice of the application, the applicant raised new complaints concerning the lawfulness of his detention prior to the surrender on 16   January 2023 and his state of health at that time (Articles 3 and 5 of the Convention). 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). Moreover, the parties commented on these new complaints, after being invited to do so. For these reasons, the Court considers that they fall within the scope of the present case and will examine them below. 53 .     However, as regards additional complaints raised by the 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.   37038/22), the Court observes that they are not an elaboration of the initial complaints in the present case. The Court therefore does not consider it appropriate to examine them in the context of this case and rejects, under Rule   42 § 1 of the Rules of Court, the applicant’s request to join the present case and his above-mentioned subsequent application (see, mutatis mutandis , Vadym Melnyk v. Ukraine , nos. 62209/17 and 50933/18, § 64, 15   September 2022, and Ali Rıza and Others v. Turkey , nos. 30226/10 and 4 others, § 142, 28   January 2020). ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 54.     The applicant complained that his extradition to the US would violate his rights under Article 3 of the Convention, owing to the risk that he would be sentenced to life imprisonment without parole. 55.     Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The parties’ submissions The applicant 56 .     The applicant invited the Court to follow its approach in Trabelsi v.   Belgium (no. 140/10, ECHR 2014 (extracts)). He submitted that he faced a real risk of an actual or de facto irreducible life sentence in the US. Following the adoption by the Court of the judgment in Sanchez-Sanchez (([GC], no.   22854/20, 3 November 2022), the applicant argued that he had adduced sufficient evidence, in the form of expert evidence, to discharge the evidential burden required by the first limb of the test set out in that case. Accordingly, the Court should examine compliance with the second limb of the test. The applicant further contended that his case was materially different from that of Sanchez-Sanchez (ibid.) because, among other things: (i) he faced much more serious charges; (ii)   none of his co-conspirators had been convicted; and (iii)   he would not “escape with impunity”, as the Romanian State could open its own investigation into the alleged criminal activity. 57 .     The applicant submitted expert reports dated 12 March, 3 May, 16   May, 23 October and 6 December 2021 by a US Attorney (A.C.), who claimed to be an expert in sentencing law and procedure. 58 .     In his report dated 3 May 2021, A.C. stated that, on the basis of the allegations against the applicant and the indictment, he believed that the scale of the operation and the quantity of drugs involved would trigger a base offence level of 36. Moreover, the Sentencing Guidelines required the addition of a number of enhancements, which would lead to an offence level of 44 and require the imposition of a life sentence, as follows: (i) a dangerous weapon was possessed (2-point increase); (ii) the defendant used violence, made a credible threat to use violence or directed the use of violence (2-point increase); (iii) the defendant played an aggravating role in the offence as a leader (4-point increase). A.C. further submitted that the sentencing judge could add a further 2-point enhancement on account of the applicant’s challenge to his extradition, raising the offence level to 46. 59.     In the report dated 16 May 2021, A.C. revised his previous calculation and argued that the sentencing judge could find a further 2-point enhancement on account of the applicant using an aircraft to transport controlled substances, raising the offence level from 46 to 48. He concluded that based on this calculation, even if the latest enhancement were not applied and the applicant were given a 3-point downward adjustment for pleading guilty, the offence level would still be 43 or more, for which the Sentencing Guidelines recommended life imprisonment. 60 .     On the issue of sentencing statistics, A.C. submitted that the relevant figures were not the national averages relied on by the US authorities (see paragraph 66 below), but those that pertained to the Eastern District of Texas, where the applicant’s case was pending. According to the latter statistics, between 2018 and 2020 approximately 70% of the sentences imposed were within the range recommended by the Sentencing Guidelines, whereas the national average for the same reference period was approximately 50%. As to the statistics provided by the US Department of Justice (see paragraph 66 below), as the “real gravamen” of the charges against the applicant was racketeering conspiracy, it was “misleading” to consider the drug-trafficking sentencing statistics. 61 .     Lastly, A.C. stated that the US authorities’ request for examples of sentencing in cases involving similar conduct was “disingenuous” because it would require comparison to a case tried in the Eastern District of Texas with the same particularities as the present case (international drug trafficking, murder scheme, arms trafficking and outlaw club membership). The Government 62.     The Government argued that, as in Findikoglu v. Germany   ((dec.), no.   20672/15, 7 June 2016), the applicant had failed to show that there was a real risk of a breach of his Article 3 rights because of his likely sentence if he were convicted. Contrary to the applicant’s submissions, the information provided by the US Department of Justice (see paragraphs 64-66 below), which had been duly examined by the domestic courts, indicated that the applicant was “exceedingly unlikely to receive a life sentence or its functional equivalent if convicted”. In any event, as the applicant had not yet been tried, as the domestic courts had pointed out, there was no certainty that he would be convicted. 63 .     The Government submitted letters from the US Department of Justice dated 9 February, 26 April, 12 July and 24 September 2021. 64 .     Relying on a February 2015 report by the US Sentencing Commission entitled “Life Sentences in the Federal System”, the Department of Justice stated that life imprisonment was rare in the Federal System, and that in the applicant’s case, it was a discretionary sentence for the first two counts on the indictment (see paragraph 7 above). 65 .     According to the calculation provided by the US Department of Justice, which treated the charges primarily as drug-trafficking offences, given the quantity of drugs involved, the base offence level for count 1 (racketeering conspiracy) would be 36, to which two enhancements would be added: (i) a dangerous weapon was possessed (2-point increase), and (ii) the defendant used violence, made a credible threat to use violence, or directed the use of violence (2-point increase). In accordance with the calculation prescribed by the Sentencing Guidelines for “grouping” the three offences charged under racketeering conspiracy, the final offence level would be 42, which carried a sentence ranging from thirty years to life imprisonment. 66 .     The Department of Justice provided a survey of sentences imposed in the previous ten years for drug offences in the Eastern District of Texas (where the applicant had been charged), which showed that out of 353 drug ‑ trafficking cases that had involved a potential life sentence, only six had resulted in a life sentence. Accordingly, in the previous ten years, less than 2% of all life-eligible drug cases had resulted in a life sentence. Furthermore, according to the US Sentencing Commission’s Interactive Sourcebook, the US courts rarely imposed sentences above the range recommended by the Sentencing Guidelines and often imposed sentences below the recommended range. During the fiscal years 2015 to 2020, courts across the US had imposed sentences above the range recommended by the Sentencing Guidelines in only 1.55% of drug-trafficking cases (the applicant’s case could be expected to be treated primarily as a drug-trafficking offence for sentencing purposes). During the same reference period, the US courts had imposed sentences below the recommended range in approximately 63% of drug-trafficking cases. 67 .     The Department of Justice also submitted that, if a life sentence were to be imposed, the applicant would have several opportunities to seek leniency or a reduced sentence, for example cooperation with the prosecution, a statutory right of appeal, an application for executive clemency and a request for compassionate release.   If the applicant were to plead guilty or be convicted at trial, the judge would have a broad discretion to determine the appropriate sentence after a fact-finding process in which he would have the opportunity to offer evidence. A probation officer employed by the US courts would conduct an independent investigation and prepare a report containing information about the applicant’s offences, criminal history and background information, as well as a calculation of the recommended sentencing range under the US Sentencing Guidelines, and the applicant and his attorneys could participate in this process and would have the right to object to information and conclusions in the report. After the probation officer completed the report, the applicant would be able to present to the judge evidence regarding any mitigating factors that might justify a sentence below the range recommended by the Sentencing Guidelines. 68 .     Lastly, the Department of Justice stated that as far as it was aware, the applicant did not have any prior convictions, and that if he were to be convicted and the court asked the parties for a sentence recommendation, the Attorney’s Office in charge of the prosecution would not recommend a life sentence for any of the charged offences. The third-party interveners (a)    The Government of the United Kingdom 69.     The Government of the United Kingdom argued that it was not the Court’s task to carry out a detailed analysis of the mechanism for seeking release from a sentence of life imprisonment in the US. In any event, the evidence before the Court showed that the US Federal System did have a review mechanism to address whether a prisoner had changed and progressed to such an extent that continued detention could no longer be justified on penological grounds. (b)    The AIRE Centre and Hands Off Cain 70.     Both the AIRE Centre and Hands Off Cain provided information about the routes to obtain a sentence reduction or commutation in the US. The Court’s assessment General principles 71 .     In Sanchez-Sanchez (cited above, §§ 95-97 and 100), the Court indicated that a two-stage approach was called for when assessing the risk, upon extradition, of a violation of Article 3 of the Convention by virtue of the imposition of an irreducible life sentence. First of all, a preliminary question has to be asked: namely, whether the applicant has adduced evidence capable of proving that there are substantial grounds for believing that, in the event of conviction, there is a real risk of a sentence