Mohammed Balaeiharis v The Public Prosecutor, Court of Appeal, Athens
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde,Lord Justice Laws |
| Judgment Date | 21 December 2015 |
| Neutral Citation | [2015] EWHC 3702 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2015 |
| Docket Number | Case No: CO/2813/2015 |
[2015] EWHC 3702 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Mr Justice Holroyde
Case No: CO/2813/2015
Mr B Brandon (instructed by Hodge Jones & Allen LLP) for the Appellant
Mr J Stansfeld (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 5 th November, 2015
This is an appeal by permission of Ouseley J against the decision of Senior District Judge Riddle ("Judge Riddle") on 10 th June 2015 ordering that Mohammed Balaeiharis ("the Appellant") be extradited to Greece to serve a sentence of 22 years' imprisonment imposed upon him by a court in Athens following his conviction of sexual offences against a young boy.
I am grateful for the assistance the court has received from the written and oral submissions of Mr Brandon on behalf of the Appellant, and Mr Stansfeld on behalf of the Respondent.
The Appellant is now 37 years old. He was born in Iran but in 2006 he left that country and travelled to Greece, where he sought asylum. In 2007 he entered the UK illegally, using false identification documents. He was convicted of an offence in that regard and sentenced to imprisonment for 17 months. He was thereafter deported to Greece. Whilst living there, in 2009, he was accused of sexual offences against a boy aged 8. The Appellant knew the boy's mother, and had offered to look after him for a short time when the mother had to meet an urgent commitment. When she returned to her home, her son immediately complained about a sexual assault which he alleged had happened in her absence.
A police investigation into that complaint began. The Appellant engaged a legal representative in Athens and was interviewed by the police. He was told he would be prosecuted and must not leave the country. He nonetheless did leave, and in 2010 he again entered the UK illegally. He escaped detection on entry, but in 2012 was arrested when trying to leave UK using false documents. He was again convicted of an offence in that regard, and was sentenced to imprisonment for 6 months.
In July 2013 the Appellant was tried in his absence by a court in Athens. He was represented by a lawyer. The complainant did not give oral evidence: his account of events was before the court in the form of an initial statement made on 25 th May 2011 to an investigator, and hearsay reports by his mother and other adults as to what the boy had said to them about the relevant events. A number of adult witnesses gave evidence, including two who were called for the defence. It is apparent from the material before us that the court also read a number of documents, but copies of these were not before Judge Riddle and are not before this court. As a result, we have at best an incomplete knowledge of the evidence in the proceedings in the Greek court. The Appellant was convicted of two offences and was sentenced to a total of 22 years' imprisonment. It is not necessary to go into the details of the offending. It is however appropriate to note that comparable offending in this country would not result in a sentence as severe as 22 years' imprisonment: it would be likely to result in a custodial sentence of less than half that length.
The Appellant's Greek lawyer has given notice of appeal against both conviction and sentence. The appeal is due to be heard in February 2016.
On 4 th March 2013 the Court of Appeal in Athens issued a European Arrest Warrant against the Appellant. That warrant was certified by the National Crime Agency on 23 rd July 2014. The Appellant was arrested on 8 th September 2014 and has remained in custody since that date.
Before Judge Riddle, the Appellant resisted extradition on four grounds, which can be summarised as follows:
i) He claimed that he was not deliberately absent from his trial. Only hearsay evidence was given of the complainant's account, and there was no opportunity for the complainant to be cross-examined. An appeal would not afford any such opportunity because the boy would not be called to give oral evidence. It was submitted that in those circumstances the Appellant should be discharged in accordance with section 20(5) and (7) of the Extradition Act 2003.
ii) It was submitted that the trial was unfair because the decisive evidence on which the Appellant was convicted was hearsay evidence as to what the boy had told various adults. Under Greek law and procedure a child of the boy's age does not generally give oral evidence or face cross-examination, and the same position would obtain at any retrial or appeal. The Appellant therefore faces a real risk of flagrant breach of his Convention rights under article 5 and/or article 6.
iii) The sentence of 22 years' imprisonment was grossly disproportionate in length and constituted a violation of his Article 3 rights.
iv) The Appellant was likely to serve his sentence in Korydallos Men's Prison, Athens, where conditions are so poor, and overcrowding so severe, that there is a real risk he would be subject to inhuman and degrading treatment in breach of his article 3 rights.
The Appellant adduced before Judge Riddle the expert evidence of Professor Tsitselikis as to conditions in Korydallos Prison. Judge Riddle referred to that evidence at length in his detailed written judgment. As to the national prison population in Greece, it was to the effect that the prison estate has a capacity somewhat below 10,000 prisoners but was currently holding about 13,500. As to Korydallos Prison, it was to the effect that the prison was originally designed to hold 700 prisoners but was currently holding about 2000. Most cells — originally designed for a single prisoner —had 9.5 square metres of free space, but they were occupied by two, three or even four prisoners. In some cells, the free space amounted to less than 2 square metres per prisoner, and it was very likely that every prisoner would have less than 3 square metres. Each cell contains a lavatory, positioned very close to one or more of the beds and without a door. There were substantial periods of the day when prisoners were able to leave their cells. Although locked in at night, they were able to move freely around wings between 0800 – 1200 and 1500 – 2100. They had access to outdoor exercise for two hours per day.
Professor Tsitselikis referred to a series of reports by the European Committee for the Prevention of Torture ("CPT") in which prison conditions in Greece generally, and at Korydallos Prison in particular, were roundly criticised as unacceptable. The most recent visit by the CPT had been in 2013. The report, like its predecessors, referred to a lack of adequate hot water or heating of the cells in winter, insufficient food of poor quality, filthy and inadequate bedding, infestations of lice and cockroaches, overflowing rubbish bins and inadequate medical care. The report also spoke of the very low numbers of prison guards and the resultant lack of control of violence and intimidation amongst prisoners. There had recently been a serious riot at Korydallos Prison, involving loss of life: this was relied upon by the Appellant as showing the inability of the prison guards to maintain control over the prisoners.
Judge Riddle accepted that the evidence of Professor Tsitselikis deserved great respect as "a scholar and jurist who is clearly a strong advocate for the improvement of prison conditions in Greece". In some respects however Judge Riddle found that the Professor's views — honest and well-founded though they are —had caused him to "overstate the negatives and fail to mention any positives". Indeed, Judge Riddle quoted one answer in cross-examination in which Professor Tsitselikis said "I do not reflect any positives because I have been asked to show violations of article 3". Moreover, Professor Tsitselikis had not personally visited the prisons, and so was necessarily reliant upon other sources of information.
There was also before Judge Riddle evidence relating to two written assurances given by the Greek Minister of Justice Transparency and Human Rights. These assurances related to the Appellant and a number of other named persons whose extradition had been requested.
The first assurance, dated 12 th February 2015, said —
"… the Ministry of Justice Transparency and Human Rights confirms that the organisation and operation of Greek prisons is governed by the relevant international and European penitentiary rules and principles. In any case the Greek state shall ensure the protection of human rights, of all persons under detention in Greek prisons, in conformity with the international, European and national rules of law. The Ministry of Justice Transparency and Human Rights through its competent agencies is consistently ensuring the adequate hygiene standards within the detention establishments and shall continuously provide the detainees with the necessary health and medical care, on a level equivalent to that enjoyed by the general population of the country. In this context, the Ministry of Justice Transparency and Human Rights confirms that, in the case of the EAW enforcement regarding [the Appellant], the aforementioned assurances will be honoured and that the competent authorities will take care of resolving possibly special issues which may occur during his detention in Greek prisons."
The second assurance, dated 23 rd March 2015, was given in response to further enquiries made by those instructing Mr Stansfeld. It read —
"… that...
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