Gjin Marku v The Nafplion Court of Appeal, Greece
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Mitting |
| Judgment Date | 20 July 2016 |
| Neutral Citation | [2016] EWHC 1801 (Admin) |
| Docket Number | Case Nos: CO/5174/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 July 2016 |
[2016] EWHC 1801 (Admin)
Lord Justice Burnett
and
Mr Justice Mitting
Case Nos: CO/5174/2015
CO/6572/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
CO/5174/2015
Mr Edward Fitzgerald QC AND Mr Daniel Jones (instructed by Sonn MacMillan Walker) for the Appellant
Mr James Stansfeld (instructed by the Crown Prosecution Service) for the Respondent
CO/6572/2015
Mr Edward Fitzgerald QC AND Mr Benjamin Seifert (instructed by Edward Hayes LLP) for the Appellant
Mr James Stansfeld (instructed by the Crown Prosecution Service) for the Respondent
Lord Justice Burnett AND
By an accusation European Arrest Warrant ("EAW") issued on 28 May 2014 by the Deputy District Attorney of the Court of Appeal in Nafplio, Greece the extradition of Gjin Marku, an Albanian citizen, is sought for the purpose of prosecuting him for the attempted murder of Marklj Petrit on 18 November 2005 in Velo of Corinth. The EAW was certified by the National Crime Agency ("NCA") on 12 September 2014. Marku was arrested on 28 September 2014. Following a contested extradition hearing his extradition was ordered by District Judge Bayne on 20 October 2015.
By a conviction EAW issued on 13 March 2013 by the Public Prosecutor of the Athens Court of Appeal the extradition of John Murphy, a British citizen, is sought to serve 9 years 11 months and 10 days of a sentence of 10 years imprisonment imposed by the Court of Appeal for Felonies, Athens for possession and importation of 11.2 grams of cocaine at Athens International Airport on 23 May 2007 following his conviction in his absence by the same court on 10 April 2012. The EAW was certified by the NCA on 6 May 2015. Murphy was arrested on 3 July 2015. Following a contested hearing his extradition was ordered by District Judge Nina Tempia on 21 December 2015.
Both Marku and Murphy challenged extradition on manifold grounds. They appeal to this court with permission granted by Laws LJ and Flaux J on 7 April 2016 on limited grounds: in the case of both appellants, that conditions in the prisons in which they would be likely to be held (in Marku's case, on remand and if convicted) would infringe their rights not to be subjected to inhuman or degrading treatment under Article 3 European Convention on Human Rights ("ECHR") and Article 4 Charter of Fundamental Rights of the European Union ("the Charter"); and in Marku's case only, that he would be at risk of torture or inhuman or degrading treatment at the hands of Greek police, contrary to the same Articles.
The District Judges made uncontroversial findings that Marku would probably be detained at Nafplio Prison on remand and if convicted and that Murphy would be detained at Korydallos Men's Prison.
The law
The law is not in doubt. If there are substantial grounds for believing that there is a real risk that if extradited a person will be subjected to torture, inhuman or degrading treatment in breach of Article 3 ECHR his extradition must be refused and an order made for his discharge under s21 Extradition Act 2003. In the case of a request by a judicial authority of a member state of the Council of Europe which is also a member state of the European Union, there is a strong, but rebuttable, presumption that it will comply with its obligations under Article 3 ECHR. If cogent evidence is adduced that there is a real risk that it will not, ordinarily in the context of something approaching an international consensus to that effect, extradition must be refused unless the requesting judicial authority can give, and if necessary secure from the relevant authority of its state, an assurance sufficient to dispel that real risk: see the summary of UK and Strasbourg cases in Krolik v Poland [2012] EWHC 2357 (Admin) at paragraphs 4 – 7 and in Elashmawy v Italy [2015] EWHC 28 (Admin) at paragraph 50; and as to assurances see Othman v UK [2012] 55 EHRR 1 paragraphs 187 – 189.
The approach to Article 4 of the Charter is in essence the same:
"Where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing member state that demonstrates that there are deficiencies, which may be specific or generalised…the executing authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned will be exposed…to a real risk of inhuman or degrading treatment within the meaning of Article 4."
If, after requesting and receiving supplementary information from the requesting judicial authority, it cannot discount the existence of such a risk it "must decide whether the surrender procedure should be brought to a close": Pal Aranyosi and Robert Caldararu C-404/15 and C-659/15 PPU paragraph 104.
Mr Fitzgerald QC submitted that there may be a difference between the approach of domestic courts and that of the Luxembourg Court, in that the latter does not expressly recognise a strong presumption in favour of the requesting state. We do not accept that proposition. The requirements of the Luxembourg Court for "objective, reliable, specific and properly updated evidence…" presupposes the existence of a presumption that the requesting state will comply with its obligations under Articles 3 ECHR and 4 of the Charter.
Articles 3 and 4 – Prison conditions
For many years prison conditions in Greece have given rise to adverse comments by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("CPT"). On 15 March 2011 it deployed its weapon of last resort: a public statement, in which it observed,
"9…The CPT has observed a steady deterioration in the living conditions and treatment of prisoners over the past decade. The Committee has identified a number of fundamental structural issues which serve to undermine attempts to remedy this state of affairs. They include the lack of a strategic plan to manage prisons, which are complex institutions, the absence of an effective system of reporting and supervision, and inadequate management of staff. The CPT has highlighted in its reports the unsuitable material conditions, the absence of an appropriate regime and the poor provision of healthcare. It has found that due to the totally inadequate staffing levels, effective control within the accommodation areas of some of the prisons visited has progressively been ceded to groups of strong prisoners. All these issues are compounded by the severe overcrowding within most Greek prisons.
10. The Greek authorities have yet to recognise that the prison system as it is currently operating is not able to provide safe and secure custody for inmates. Discussions with the prison administration in Athens indicated a lack of appreciation on their part of the actual situation in the country's prison establishments.
11. The findings of the 2011 visit confirmed that a regulated prison system, as aspired to in law, has given way to the practice of warehousing prisoners. No action has been taken to implement the CPT's repeated recommendations to improve the situation in establishments visited as regards living conditions, staffing levels, purposeful activities and aspects of healthcare, not to mention inter-prisoner violence. Conditions are especially worrying at…Korydallos Men's and Women's Prisons…."
The CPT made two further visits to Greece – from 4 to 16 April 2013 and from 14 to 23 April 2015. On each occasion, they visited Korydallos Men's Prison. On the second occasion only, they visited Nafplio Prison. Stringent criticisms were made of the regime and conditions at Korydallos Men's Prison in both reports and of Nafplio Prison in the 2015 report.
The 2015 report of 15 July 2015 was published on 1 March 2016. Its tone is set by preliminary remarks in paragraphs 61 and 63:
"61. The CPT is concerned that the Greek prison system is reaching breaking point and yet, despite the numerous warnings, the authorities have not taken up the fundamental structural issues raised in the Committee's previous reports with the necessary urgency. They include the lack of a strategic plan to manage prisons, which are complex institutions, the absence of an effective system of reporting and supervision, and inadequate management of staff.
The findings from the 2015 highlight that the main problems of overcrowding and chronic shortage of staff persist in the Greek prison system. These two overarching problems compound the many additional serious shortcomings in the prisons visited, including very poor material conditions, lack of hygiene, the absence of an appropriate regime and high levels of inter-prisoner violence and intimidation. Further, the insufficient provision and inadequate medical care in prisons is particularly worrying.
The situation has now deteriorated to the point where over and above the serious ill-treatment concerns under Article 3 of the European Convention on Human Rights (ECHR), there are very real right to life issues under Article 2 ECHR, in as much as vulnerable prisoners are not being cared for and, in some cases, are being allowed to die…
63. The challenges facing the prison system in Greece are not new and the CPT has been consistently pointing out the structural deficiencies for many years. Indeed the CPT's public statement of March 2011 was an alarm call for the Greek authorities to act to put in place a prison...
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