Agius v Malta
| Jurisdiction | England & Wales |
| Judge | Maddison J,Sullivan LJ |
| Judgment Date | 15 March 2011 |
| Neutral Citation | [2011] EWHC 759 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9812/2010 |
| Date | 15 March 2011 |
[2011] EWHC 759 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Sullivan
Mr Justice Maddison
CO/9812/2010
Mr D Rhodes (instructed by Sonn MacMillan Walker) appeared on behalf of the Appellant
Mr T Cadman (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
(As approved)
MR JUSTICE SULLIVAN: This is an appeal under section 26 of the Extradition Act 2003 (the Act) against the decision, dated 10 September 2010, of District Judge Evans to order the extradition of the appellant to Malta.
The appellant is a citizen of Malta, although according to the statement of issues served on his behalf he has been resident in the United Kingdom since 1974. His extradition is sought by the Director of Criminal Courts and Criminal Tribunals in Malta (the Judicial Authority) in an "accusation" European Arrest Warrant (EAW), issued on 22 September 2009. The appellant is accused of participating between 6 August and 6 September 2006 in a conspiracy to import nearly 10,000 Ecstasy tablets into Malta. The appellant is said to be the organiser, financier and main conspirator. He denies the accusation.
The grounds of appeal do not challenge the validity of the warrant in any way. They are concerned with the District Judge's approach to three issues which were raised on behalf of the appellant under section 21 of the Act, which is concerned with human rights and provides, so far as relevant for present purposes:
"(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued."
Malta is a Category 1 territory.
The three issue were as follows. It was submitted on behalf of the appellant that if extradited to Malta:
(i) he would be denied bail in circumstances that would breach his rights under Article 5 of the Convention;
(ii) there would be such a lengthy delay before his trial commenced that he would be denied a trial within a reasonable time, contrary to Article 6; and
(iii) when detained in the one and only prison on the island, the Corradino Correction Facility (the CCF), he would be kept in conditions that would amount to inhuman and degrading treatment such as to contravene his rights under Article 3 of the Convention.
In paragraph 12 of the judgment the District Judge referred to three decisions of Mitting J: (1) Jan Rot v District Court of Lublin, Poland [2010] EWHC 1820 (Admin), (2) Tomasz Dabkowski v District Court in Gorzow, Poland [2010] EWHC 1712 (Admin)and (3) Arvdas Klimas v Prosecutors General Office of Lithuania [2010] EWHC 2076 (Admin).
In Klimas Mitting J said in paragraph 13 of his judgment:
"Accordingly, and as a matter of principle, I would hold as I did in Jan Rot that when prison conditions in a Convention category 1 state are raised as an obstacle to extradition, the district judge need not, save in wholly extraordinary circumstances in which the constitutional order of the requesting state has been upset for example by a military coup or violent revolution examine the question at all. …"
The District Judge adopted that approach to the three issues raised on behalf of the appellant. In paragraph 17 of his judgment he said:
"It is not suggested that any wholly extraordinary circumstances apply in the case of Malta. In the light of those decisions I do not intend to address the issues raised by the defendant but to assume that Malta will provide the defendant with all the protection he requires so as not to breach any of his human rights under the Convention."
In paragraph 19 the District Judge said:
"I know that the JA [Judicial Authority] in Category 1 territories know of their obligations to ensure ECHR compliance and I trust them to act appropriately. There is no need to undertake enquiries."
In case a contrary view was taken on appeal, the District Judge in paragraph 21 of his judgment considered the documentary material that had been submitted on behalf of the appellant (no oral evidence was heard), and concluded that there was no real risk that the appellant's Convention rights would be contravened. He said:
"On the merits the defendant has not established that he would suffer a flagrant breach of his fair trial rights in relation to delay. In fact, if the co-conspirator has been on remand for 4 years already, it is reasonable to assume that once the defendant joins him in Malta the trial will be ready to commence just as soon as the defendant is ready. As to whether bail is granted that is a judicial decision to be taken on the defendant's arrival and there is no reason to think if he is remanded into custody that would be unlawful or in any way contrary to article 5. As to prison conditions it has not been established by the defendant that there are any substantial grounds to believe he is at a real risk of being subjected to article 3 ill-treatment if he is held in the CCF …"
On behalf of the appellant, Mr Rhodes submitted, in a nutshell, that Mitting J had gone too far in deciding that, save in the wholly extraordinary circumstances he had referred to in Klimas, District Judges need not examine the question of prison conditions at all. The proposition that the District Judge drew from the three authorities, that there was no need for him to undertake enquiries, was contrary to the express requirement imposed upon him by section 21(1) to decide whether extradition would be compatible with this appellant's Convention rights.
In support of his submission Mr Rhodes relied on the subsequent decision of the Grand Chamber of the European Court of Human Rights in MSS v Belgium and Greece (application number 300696/09), dated 21 January 2011, and on the decision of Toulson LJ on 2 February 2011 in Targosinski v Judicial Authority of Poland [2011] EWHC 312 (Admin), which Mitting J considered in Palczynski v The District Court in Zamosc [2011] EWHC 445 (Admin).
In MSS an Iraqi asylum seeker travelled through Greece before claiming asylum in Belgium. He contended that his claim for asylum would not receive proper consideration if he was returned to Greece and that the immigration detention conditions in Greece were such as to breach Article 3. Numerous reports were submitted to the Belgian authorities in support of his claims. The Belgian authorities proposed to return him to Greece relying on the presumption that Greece, as a signatory to the Convention, would honour its obligations under the Convention.
The Grand Chamber considered the earlier decisions in
TI v the United Kingdom ( decision number 43844/98 ECHR 2000 —III) and KRS v the United Kingdom (application number 32733/08). Applying the principles that had been established in those cases to the facts before it in MSS, the Grand Chamber said in paragraph 345:
"The Court must therefore now consider whether the Belgian authorities should have regarded as rebutted the presumption that the Greek authorities would respect their international obligations in asylum matters, in spite of the KRS case-law, which the Government claimed the administrative and judicial authorities had wanted to follow in the instant case."
In paragraph 353 Grand Chamber said:
"353. The Belgian Government argued that in any event they had sought sufficient assurances from the Greek authorities that the applicant faced no risk of treatment contrary to the Convention in
Greece. In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 147, ECHR 2008-…)."
The Grand Chamber then discussed the material that had been placed before the Belgian Government before continuing:
"358. In the light of the foregoing, the Court considers that at the time of the applicant's expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him.
359. The Government argued that the applicant had not sufficiently individualised, before the Belgian authorities, the risk of having no access to the asylum procedure and being sent back by the Greek authorities. The Court considers, however, that it was in fact up to the Belgian authorities faced with the situation described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3. The fact that a large number of asylum seekers in Greece find themselves in the same situation as the applicant...
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