Avraam Achmant v A Judicial Authority in Thessaloniki Greece
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh,Lord Justice Elias |
| Judgment Date | 01 November 2012 |
| Neutral Citation | [2012] EWHC 3470 (Admin) |
| Date | 01 November 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8546/2012 |
[2012] EWHC 3470 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Elias
Mr Justice Singh
CO/8546/2012
Mr D Rhodes (instructed by Macnab Clarke Solicitors) appeared on behalf of the Appellant
Mr J Stansfeld (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
This is an appeal under section 26 of the Extradition Act 2003 against the decision dated 6 August 2012 of Senior District Judge (Chief Magistrate) Riddle. By that decision the appellant's extradition to Greece was ordered. Although a number of grounds have been advanced previously, the only ground on which the appeal is now based arises from Article 3 of the Convention rights, as set out in Schedule 1 to the Human Rights Act 1998. In particular, the appellant submits that his extradition to Greece would breach Article 3 because of conditions at Thessaloniki prison, which is where he will be detained if he were returned. That he will be detained there has been the subject of a diplomatic assurance dated 1 June 2012, which is in evidence before the court.
The factual background can be summarised as follows. The appellant was born in Syria in 1965 and after leaving the army moved to Greece. For some time he had a business in Greece and acquired a Greek passport. He speaks both Arabic and Greek. The appellant is wanted for prosecution for two offences: possession with intent to supply cocaine and cannabis, and also being concerned in the supply of cannabis. It is alleged that in Thessaloniki in December 2008 and on 29 to 30 March 2009 he was in possession of one kilogram of cocaine and a small parcel of cannabis which he intended to supply to others. It is further alleged that in December 2008 and on 29 March 2009 he persuaded co-defendants to supply cocaine to third parties. The appellant now lives in Oxford with his wife and their daughter, who is aged 6. He has been in this country lawfully, as has his wife, since about 2009.
The judge was satisfied that the specified offences are extradition offences and noted that this was not in dispute. He went on to consider whether any of the bars to extradition set out in section 11 of the 2003 Act are applicable. None had been advanced and none was found to be applicable. The next question which the judge addressed was whether extradition would breach section 21 of the 2003 Act on the ground that it would be incompatible with the Convention rights under the 1998 Act. As the judge noted, the case had an unusual procedural history before him. It came before him in early August 2011 for hearing. On that occasion there was an application by the defence to adjourn, which was refused. However, external events prevented the judge from preparing his judgment close to the time of the hearing when the evidence and submissions were still fresh in his mind. Moreover, on reflection, he decided that his original decision to refuse an adjournment had been wrong. He was concerned about international reports and felt it appropriate to allow the defendants to obtain an up-to-date report on conditions in Greek prisons. Although this had been considered by the courts in other cases in this country, such as Symeou v Greece [2009] EWHC 897 (Admin) and Herdman and Ors v Greece [2010] EWHC 1533 (Admin), both decisions of this court, the judge was of the view that there was at least a suggestion that the position had deteriorated recently.
On 30 March 2012, the judge heard evidence from an apparent expert witness who had come from Greece, Georgios Pyromallis. Mr Pyromallis is a lawyer and member of the Athens Bar. He has served as a member of the Central Scientific Council for Prisons of the Greek Ministry of Justice, on which he represented the Athens Bar Association. In that capacity he has in the past visited a number of prisons in Greece. However, as became clear during the hearing before the District Judge, Mr Pyromallis was in fact unable to give any direct evidence of recent experience of conditions at Thessaloniki prison. As the judge put it:
"It was a disappointment to the court, and no doubt also to the advocates, that the witness had no direct experience of conditions at Thessaloniki prison."
The judge clearly did not find the evidence of this apparent expert witness to be helpful or in a proper form. He said:
"I have to conclude that his evidence did not provide me with the clear up-to-date picture of Thessaloniki prison that I had been looking for. Whether the evidence can be properly described as expert evidence is perhaps debatable. It might better be described as the opinion of a well-informed Greek lawyer who takes a considerable interest in this important topic."
The judge also noted that he had before him information provided by the Greek Ministry of Justice dated 8 March 2012, and officially translated on 18 March 2012, in response to the opinion of Mr Pyromallis. That was a lengthy report which, as I understand it, was prepared specifically for the purpose of this particular case before the District Judge and specifically in response to the evidence of Mr Pyromallis. The Greek Ministry, as I have already said, guaranteed that the appellant if extradited would be held at detention premises and not at a police station, which had been one of the previous concerns.
Further information was provided to the District Judge by the Public Prosecutor of Court of Appeals of Thessaloniki in a letter from Athens dated 10 May 2012.
Before I go to that I will quote from an earlier document dated 30 March 2012, so far as material. That states:
"In reply to your document dated 1/11/2011 please notify to the foreign authorities the following:
As we have already informed you by our document … 03.08.2011, ACHMANT AVRAAM, born on 15.02.1965 shall be under custody at the Penal Institution of Thessaloniki, where ordinarily are kept the accused (pending trial), under rather satisfactory conditions, considering the existing problem of the capacity of the Penal Institutions that derived due to numerous entrance of illegal immigrants in our country. The cells at the said penal institutions were are kept 5-7 persons, have 25m 2 surface, have a toilette, shower, television, refrigerator and air-conditioning. Are sufficiently ventilated and have access to natural light. The prisoners have the ability of everyday training since they have access at the forecourt from 08.00-12.00 and from 15.00 till half hour before the sundown…"
Now I will turn to the letter I mentioned earlier dated 10 May 2012. That states so far as material:
"In reply to your request dated May 8th 2012 in view of the final hearing of the case ACHMANT Avraam on May 10th 2012, we inform you that we insist in our initial position the above mentioned person under charges to be detained at the General Penal Institution of Thessaloniki that complies to the provisions of safe and decent detention … We only add the information that currently the number of prisoners in the specific penal institution is five hundred ninety (590), whereas its capacity is six hundred five (605) prisoners."
In conclusion on this issue, the judge said the position was now clear:
"If returned to Greece Mr Achmant will be detained at Thessaloniki. I accept unequivocally the assurances given by the Greek Public Prosecutor."
So far as relevant, the judge's reasoning in rejecting the submissions which were made on the appellant's behalf can be found in the following passage:
"In fact the Greek authorities have gone to some trouble to provide me with information about their 'fight against the overpopulation problem' and I have referred to that above. The current information from Greece is that Thessaloniki is not overcrowded. The Greek authorities assure me that Thessaloniki complies with the 'provisions of safe and decent detention'. Despite assiduous efforts, the defence lawyers have failed to provide compelling international evidence that conditions in Thessaloniki breach article 3. Crucially, and fatally from the defence point of view, their expert has not visited this prison, at least in recent times. There has been ample—some would say overgenerous—time to provide evidence that conditions at Thessaloniki prison do not comply with article 3. That evidence has not been forthcoming.
I start with a presumption in favour of a category 1 country. That presumption is significantly bolstered by assurances from Greece. I accept those assurances. International reports raise concerns. Nevertheless there is no clear and cogent evidence to cause me to doubt the assurances from Greece, or to find that conditions in Thessaloniki breach article 3."
On behalf of the appellant before this court, Mr Rhodes accepts that the evidence of Mr Pyromallis was a disappointment. However, he submits that pursuant to section 27(3) of the 2003 Act the judge ought to have decided the question differently and if he had done so he would have been required to order the appellant's discharge. He submits that even leaving aside the oral evidence of Mr Pyromallis, which is the only evidence the judge had the benefit of hearing which this court does not have before it, there was only one conclusion which was open to the court. That conclusion, it is said, follows from public international documents which are available to this court, as they were to the judge. I will return to those documents in due course.
Mr Rhodes makes three specific criticisms on behalf of the...
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...desirable and that less than 3 square metres may be sufficient to justify a finding of a breach of Article 3. (2) In Achmant v Greece [2012] EWHC 3470 the Divisional Court considered that “as a general rule” violations were found in cases where living space was less than 3 square metres alt......
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...desirable and that less than 3 square metres may be sufficient to justify a finding of a breach of Article 3. (2) In Achmant v Greece [2012] EWHC 3470 the Divisional Court considered that “as a general rule” violations were found in cases where living space was less than 3 square metres alt......
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...Brown; Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486 at para 49 per the Lord President (Hamilton); Achmant v Greece [2012] EWHC 3470 (Admin) at paras 26–27 per Singh J; Richards v Ghana [2013] EWHC 1254 (Admin) at paras 50–52 per Leggatt J. The “Ullah principle”, as developed......