Andrew Stewart Henderson Campbell v Court of Thrace (Greece)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 10 February 2023 |
| Neutral Citation | [2023] EWHC 267 (Admin) |
| Docket Number | Case No: CO/496/2022 |
| Court | King's Bench Division (Administrative Court) |
Mr Justice Chamberlain
Case No: CO/496/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Williams (instructed by Sonn MacMillan Walker) for the Appellant
Jonathan Swain (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 23 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 10 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The appellant is sought by the Court of Thrace, Greece, pursuant to a European arrest warrant issued on 28 April 2020 and certified on 6 April 2021. The warrant seeks the appellant's surrender to serve a sentence of 6 years' imprisonment for money laundering, imposed after a trial in absentia. The facts were that on 4 September 2011 the appellant, with others, crossed the border into Greece in a Porsche car worth EUR 35,000 which contained false registration and insurance documents.
The appellant was arrested under the warrant on 26 April 2022. Because this was after the end of the transition period in the Withdrawal Agreement, the warrant falls to be treated as an arrest warrant under the Trade and Cooperation Agreement (Article Law.Surr.632). Greece being a Category 1 territory, Part 1 of the Extradition Act 2003 applies.
The appellant resisted extradition on the basis that extradition would be incompatible with his rights under Articles 3 and 8 ECHR. For reasons contained in a written judgment dated 7 February 2022, District Judge Goldspring (“the judge”) rejected these arguments and ordered the appellant's extradition. Permission to appeal was granted by Hill J in relation to Article 3 and refused in relation to Article 8. The Article 8 ground was renewed and ordered to be determined at a rolled-up hearing together with the substantive appeal on Article 3.
The judgment below
As to Article 3, the challenge was based on prison conditions in Greece. The judge set out the law as stated by the Divisional Court in Elashmawy v Italy [2015] EWHC 28 (Admin), [49] and [50]. He noted the presumption that Council of Europe states are able and willing to fulfil their obligations under the ECHR absent clear, cogent and compelling evidence to the contrary: Krolik v Poland [2012] EWHC 2357 (Admin), [2013] 1 WLR 490, [4]. He summarised the decision of the Grand Chamber of the Strasbourg Court in Muršic v Croatia (2017) 65 EHRR 1, which introduces a strong presumption that Article 3 will be violated if less than 3 sq. m. of personal space is provided, unless three conditions are cumulatively met: (1) the reductions below the minimum level are short, occasional and minor; (2) they are accompanied by sufficient freedom of movement outside the cell; and (3) the prisoner is confined in what is, when viewed generally, an appropriate detention facility and there is no other aggravating aspect of the conditions of his detention.
The judge noted that courts considering Article 3 challenges on the basis of prison conditions in the requesting state must rely on information which is “objective, reliable, specific and properly updated”, which could come from (inter alia) judgements of international courts (including the Strasbourg Court), domestic courts and decisions and reports of Council of Europe or United Nations bodies: Cases C-404/15 and C-659/15 PPU Aranyosi EU:C:2016:198, [2016] QB 921, [89].
As to Greece, the judge noted the decision of the Divisional Court in Marku v Greece [2016] EWHC 1801 that, notwithstanding assurances given in good faith by the Greek authorities, conditions in two prisons — Korydallas and Nafplio — would breach Article 3 standards on the evidence contained in the 2015 report of the European Committee for the Prevention of Torture (“CPT”). The evidence was that the authorities had lost control of these prisons and gang violence was prevalent. The judge noted that Marku had been cited by the High Court in Northern Ireland in O'Connor v Greece [2017] NIQB 88, where the appellant was to be detained in Korydallas Prison and assurances had been given. The Court held that the assurance were insufficiently specific and allowed the appeal against extradition on Article 3 grounds.
The judge then said that any assurances must be assessed in accordance with the guidance given by the Strasbourg Court in Othman v UK (2012) 55 EHRR 1, at [188]. He recorded that the appellant was to be detained in Komotini Detention Facility and summarised the written and oral evidence about that prison (and Greek prisons generally) by Dr Koulouris, the appellant's expert witness and the evidence submitted by the Greek authorities. As to the latter, there was detailed information personal space available to inmates in Komotini Detention Facility.
The judge recorded that he had considered the most recent CPT report, which he said made “generic complaints” but did not refer to Komotini, and the decision of Fordham J in Rigabadi v Greece [2020] EWHC 2877 (Admin), refusing permission to appeal against a decision that detention in Korinthos Prison would not give rise to a real risk of treatment contrary to Articles 2 or 3 ECHR.
The judge found that Dr Koulouris' criticism of the assurance as to personal space was not convincing. The judge treated “with some scepticism” the part of Dr Koulouris' evidence based on “unofficial interviews” with the director of Komotini Prison. He was satisfied that the assurance met the standards set out in Othman and that there was no real risk of treatment contrary to Article 3 ECHR.
Other case law about prison conditions in Greece and on the proper approach to compliance with Article 3 generally
In Owda v Greece [2017] EWHC 1174 (Admin), the Divisional Court (Burnett LJ and Mitting J) considered another appeal relating to prison conditions in Greece. They found that there was no evidential foundation, whether in the CPT reports or elsewhere, for believing that the risks of inter-prisoner violence found to exist in Korydallas and Nafplio Prisons also pertained to other prisons. Since the appellant was to be housed at Diavata (formerly known as Thessaloniki), there was no basis for any Article 3 objection to his extradition.
On the same day as the judge handed down his decision in this case, 7 February 2022, the Divisional Court (Williams Davis LJ and Julian Knowles J) gave judgment in Sula v Greece [2022] EWHC 230 (Admin). The appellant was to be detained at Diavata or Nigrita. The Court considered the CPT's 2020 report and an assurance given by the Greek authorities. The main issue was to as personal space: the Court did not consider that any of the other matters relied upon (including inter-prisoner violence) gave rise to any arguable Article 3 issue: [43]. The Court then held that the assurance was “clear, specific and precise” and was sufficient to dispel any concern that lack of personal space might lead to a violation of Article 3 ECHR: [47]–[48].
As to the proper approach to Article 3 in prison conditions cases generally, I set out the general principles in my recent decision in Rae v USA [2022] EWHC 3095 (Admin), at [64(a)-(d)] and [86]. These were endorsed as “helpful encapsulations of the legal principles” by the Divisional Court (Bean LJ and Jay J) in Stanciu v Armenia [2022] EWHC 3368 (Admin), [92]. Where extradition is sought by an ECHR contracting state (and a fortiori when the state is also a member of the EU), there is an additional strong (albeit rebuttable) presumption that the state will fulfil its obligations under the ECHR: see e.g. Elashmawy, [50].
The CPT report of 2 September 2022
A further CPT report was published on 2 September 2022, based on visits to a number of prisons, not including Komotini. Its conclusion was that “far too many prisoners continued to be held in conditions that are an affront to their dignity” and that “little if any progress” had been made in improving conditions in Greek prisons since the CPT's first report 11 years ago.
The expert report of Prof. Tsitselikis of 7 November 2022
The appellant relies on the report of Prof. Tsitselikis, who opines that assurances given by the Greek authorities are not observed. Prof. Tsetselikis' information comes from an interview with Owda himself, in respect of whom the Greek authorities had given an assurance that he would be housed in a cell with at least 3 sq. m of personal space. Owda gave detailed information about the cells in which he had been held, their dimensions and the number of prisoners held there. Although not willing to sign a statement containing this information (due to concerns that it might be held against him in ongoing criminal proceedings), Owda is said to have given the information set out by Prof. Tsetselikis at a meeting attended by Owda's lawyer.
Submissions for the appellant
For the appellant, David Williams submits that the information provided by the Greek authorities is contradictory. The assurance that each prisoner will be given at least 3 sq m. of personal space is contradicted by the further information dated 20 May 2021, which reveals severely overcrowded conditions in which prisoners have less than 2 sq. m. of personal space. In these circumstances, the Divisional Court in Sula was wrong to accept the assurance as sufficient to dispel the real risk of treatment contrary to Article 3. Alternatively, Sula can be distinguished because the assurance in that case was given in response to specific enquiries made pursuant to the Aranyosi procedure.
Mr Williams argues that Prof. Tsetselikis' report provides a proper...
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