Jamal Owda v Court of Appeals Thessaloniki (Greece)

Hearing dates: 3rd May 2017

The appellant's extradition to Greece was ordered by District Judge Zani on 22 November 2016. He is wanted in Greece to be prosecuted for large scale people trafficking. He resisted extradition on various grounds, two of which are advanced in support of his appeal:

i) His extradition to Greece would violate his rights under article 3 of the European Convention on Human Rights ("ECHR") and in consequence is barred by section 21 of the Extradition Act 2003 ("the 2003 Act");

ii) His extradition is prevented because his mental condition is such that it would be oppressive to extradite him within the meaning of section 25 of the 2003 Act.

Article 3 ECHR

Mr Fitzgerald QC submits that a combination of factors which would, or might, govern the appellant's detention if he is surrendered to Greece provide a sufficient basis for concluding that his extradition would expose him to a real risk of treatment contrary to article 3 ECHR. They may be distilled to the following propositions:

i) Although it is likely that the appellant would be detained in Diavata Prison (also known as Thessaloniki) whilst on remand pending trial and indeed thereafter if convicted, there is a risk that he might be transferred to any of Greece's 19 prisons on conviction. In the event of transfer, there is a real risk that he might end up in either Korydallos or Nafplio prisons. In Marku and Murphy v Greece [2016] EWHC 1801 (Admin) this court held that on the evidence then available extradition to either prison would be incompatible with a requested person's article 3 rights.

ii) Even if the evidence falls short of establishing the degree of likelihood that the appellant will find himself in either of those establishments, there are substantial grounds for believing that he would be subjected to treatment contrary to article 3, even in Diavata, because:

a) the personal space available to the appellant will be less than 3m ². An assurance from the Greek authorities that he will have more than 3m ² cannot be relied upon;

b) prisoners are able to spend only two hours outside in the fresh air in an environment with inadequate shade in the summer, so the lack of personal space is not compensated for by other factors;

c) there is a significant risk of inter-prisoner violence which the Greek authorities are powerless to prevent because of the staffing shortage at the prison;

d) the medical facilities for caring for patients with psychiatric problems are inadequate.

iii) There is a real risk that the appellant will find himself in police custody and thereby be exposed to the risk of police brutality and detention in inadequate conditions.

The principles governing the question whether article 3 ECHR prevents the extradition (or immigration removal) of an individual to a third country are well settled in decisions of both the Strasbourg Court and courts in this jurisdiction at every level. They have been traversed in many extradition cases. It is sufficient to refer to the summary found in paragraph 24 of the opinion of Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] 2 AC 323:

"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering para 91; Cruz Varas para 69 Vilvarajah para 103."

The formula in the Strasbourg cases is "substantial grounds for believing" which is interchangeable with "strong grounds for believing" for these purposes.

There have been numerous cases in which the Strasbourg Court has considered the question of the nature of conditions in a penal establishment which would found a violation of article 3. Many were collected together in the judgment of the Strasbourg Court in Mursic v Croatia (app. no 7334/13) both in the chamber and Grand Chamber, which relied, in particular, on the earlier decision of the court in Ananyev v Russia (2012) 55 EHRR 18. In the Grand Chamber the principles were restated: paragraphs 96 to 101 for general principles; paragraphs 102 to 115 relating to the requirement for "minimum personal space" of 3m ²; paragraphs 116 to 128 on the question whether less than 3m ² created a presumption of a violation of article 3; paragraphs 129 to 135 on compensating factors. The court confirmed (135) the "strong presumption" in cases with personal space of less than 3m ² and reaffirmed that it could be rebutted having regard "to factors such as the time and extent of restriction; freedom of movement and adequacy of out-of-cell activities and general appropriateness of the detention facility." The court then summarised the position between paragraphs 136 and 141:

"136. In the light of the considerations set out above, the Court confirms the standard predominant in its case-law of 3 sq. m of floor surface per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the Convention.

137. When the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (see paragraphs 126–128 above).

138. The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met:

(1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor (see paragraph 130 above):

(2) such reductions are accompanied by sufficient freedom of 133 above);

(3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see paragraph 134 above).

139. In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court's assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see paragraph 106 above).

140. The Court also stresses that in cases where a detainee disposed of more than 4 sq. m of personal space in multi-occupancy accommodation in prison and where therefore no issue with regard to the question of personal space arises, other aspects of physical conditions of detention referred to above (see paragraphs 48, 53, 55, 59 and 63–64 above) remain relevant for the Court's assessment of adequacy of an applicant's conditions of detention under Article 3 of the Convention (see, for example, Story and Others v. Malta, nos. 56854/13, 57005/13 and 57043/13, §§ 112–113, 29 October 2015).

141. Lastly, the Court would emphasise the importance of the CPT's preventive role in monitoring conditions of detention and of the standards which it develops in that connection. The Court reiterates that when deciding cases concerning conditions of detention it remains attentive to those standards and to the Contracting States' observance of them (see paragraph 113 above)."

The cases in Strasbourg, including Mursic, involve ex post facto evaluations of conditions which a prisoner has endured. In a case involving an extradition request from a Member State of the European Union there is a strong presumption that it will abide by its legal obligations, which can be displaced only by strong evidence, usually amounting to an international consensus, that support strong grounds for believing that it will not or cannot do so. If that proves to be the case, then further information must be sought from the requesting state in accordance with the judgment of the Luxembourg Court in Aranyosi and Caldararu [2016] QB 921, decided by reference to article 4 of the Charter (the analogue of article 3 ECHR), between paragraphs 94 and 103:

"94 Consequently, in order to ensure respect for article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing member state, he will run a real risk of being subject in that member state to inhuman or degrading treatment, within the meaning of article 4.

95 To that end, that authority must, pursuant to article 15(2) of the Framework Decision, request of the judicial...