Lorenc Sula v Public Prosecutor of the Thessaloniki Court of Appeal, Greece
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 07 February 2022 |
| Neutral Citation | [2022] EWHC 230 (Admin) |
| Docket Number | Case No: CO/4726/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 230 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice William Davis
Mr Justice Julian Knowles
Case No: CO/4726/2020
David Perry QC and George Hepburne Scott (instructed by Bark & Co) for the Appellant
Louisa Collins (instructed by the CPS) for the Respondent
Hearing date: 27 January 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10.30am on 7 February 2022.
This is the judgment of the court.
Introduction
At the conclusion of the hearing on 27 January 2022 we announced that the appeal would be dismissed and that we would put our reasons in writing. This we now do.
This is an appeal against the order for the Appellant's extradition made by Deputy Senior District Judge Ikram on 17 December 2020. Permission was granted by Holman J at a renewal hearing following refusal on the papers.
The single issue raised on this appeal is that the judge below should have concluded that, if extradited, the Appellant would face a real risk of a violation to his right under Article 3 of the European Convention on Human Rights (the Convention) not to be subjected to inhuman or degrading treatment owing to the conditions at the prison/s at which he would be held in Greece, and accordingly that extradition was barred under s 21A(1)(a) of the Extradition Act 2003 ( EA 2003).
The facts
The European arrest warrant (EAW) for the Appellant was issued in January 2018 and he was arrested in this country in July 2020. It is an accusation warrant. It alleges that the Appellant transported over 31kg of cannabis with a value in excess of €400 000. The Framework list is ticked in respect of illicit trafficking of narcotic drugs.
The two issues raised in the court below were that extradition would violate the Appellant's rights under Article 3 because of prison conditions; and proportionality (s 21A(1)(b)). The proportionality argument has not been renewed before us.
In his careful judgment, the Deputy Senior District Judge directed himself correctly that it was for the Appellant to demonstrate that there are strong grounds for believing that, if returned, he will face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment contrary to Article 3: see R (Ullah) v Special Adjudicator [2004] AC 323, [24]. He also referred, again correctly, to the strong presumption that members of the Council of Europe are able and willing to fulfil their obligations under the Convention. Clear, cogent and compelling evidence to the contrary is required to rebut that presumption. That presumption is stronger still in the case of Member states of the European Union in relation to the EAW scheme. The judge referred to the decision of this Court in Owda v Court of Appeals, Thessaloniki, Greece [2017] EWHC 1174 (Admin), which considered prison conditions in Greece and in particular at the detention facility in Thessaloniki, which is one of the prisons in which the Appellant may be held if he is extradited.
In [4] of his judgment in Owda, Burnett LJ (as he then was) said:
“4. 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).”
At [5] Burnett LJ went on to say:
“5. 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 authority of the issuing member state that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that member state.
96. That request may also relate to the existence, in the issuing member state, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons.
97. In accordance with article 15(2) of the Framework Decision, the executing judicial authority may fix a time limit for the receipt of the supplementary information requested from the issuing judicial authority. That time limit must be adjusted to...
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