Public Prosecutor's Office, Court of Appeal of Thessaloniki, Hellenic Republic v Florjan Hysa
| Jurisdiction | England & Wales |
| Judge | Lord Justice Popplewell,Mr Justice Cavanagh |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2050 (Admin) |
| Docket Number | Case No: CO/4073/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2050 (Admin)
Lord Justice Popplewell
and
Mr Justice Cavanagh
Case No: CO/4073/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Hines QC and Louisa Collins (instructed by CPS Extradition Unit) for the Appellant
Mark Summers QC and Florence Iveson (instructed by JFH Law) for the First Respondent
Mark Summers QC AND Stefan Hyman (instructed by Lawrence & Co, Solicitors) for the Second Respondent
Mark Summers QC AND Ben Joyes (instructed by Stephen Lickrish Solicitors) for the Third Respondent
Hearing date: 13 July 2022
Approved Judgment
Introduction and overview of the issues in this appeal
This is the Appellant's appeal against orders made on 22 November 2021 by District Judge Sarah-Jane Griffiths for the discharge of arrest warrants in respect of the three Respondents, thereby preventing their extradition to Greece in accordance with those warrants.
The First Respondent was sought by the Appellant on a conviction arrest warrant, issued on 3 September 2020, in order to serve a sentence of 10 years and two months' imprisonment (of which eight years, eight months, and 29 days are remaining). This sentence was imposed for supplying 17,985.8 grams of cannabis and for illegal entry into Greece. The First Respondent was arrested pursuant to the warrant on 8 April 2021, and was held in custody from that date until the warrant was discharged.
The Second Respondent was sought on an accusation arrest warrant, issued on 6 June 2019, for the offence of murder/unlawful killing. The maximum sentence upon conviction is life or a minimum sentence of 10–15 years' imprisonment. The Second Respondent was arrested on 3 August 2020. He too was held in custody until the warrant was discharged.
The Third Respondent was sought on a conviction arrest warrant, issued on 26 April 2018, in order to serve a sentence of 10 years' imprisonment (of which nine years, 11 months, and 29 days are remaining) for smuggling a third country citizen. He was arrested on 20 April 2021. Once again, he was held in custody until the warrant was discharged.
The reason for the discharge of the warrants was that the District Judge decided that the extradition of the Respondents would be in breach of Article 3 of the European Convention on Human Rights (“the Convention”), as each Respondent would have less than 3 square metres of personal space in the Greek prison at which they would be held, Thessaloniki Prison, also known as Diavata Prison.
At an earlier hearing in the proceedings relating to the Second Respondent, on 27 April 2021, the Appellant had, through counsel, conceded that the evidence demonstrated that the state of overcrowding at Diavata prison was such that the 3 sqm minimum requirement would not be satisfied (unless special arrangements are made for a prisoner). The Appellant has maintained this concession throughout, including before us.
However, in April 2021 it was indicated on behalf of the Appellant that assurances would be forthcoming which would guarantee that, if extradited, the Second Respondent would be provided with at least 3 square metres of personal space. I will set out the chronology of events in detail later in this judgment. For the moment, it is sufficient to say that by 20 October 2021 no assurances had been provided by the Appellant. On that date, the District Judge made a request to the Appellant for further information as a matter of urgency, pursuant to the procedure set out by the Court of Justice of the European Union in Aranyosi (C-404/14) [2016] QB 921 (“the Aranyosi procedure”). In essence, this amounted to the grant by the District Judge to the Appellant of a further opportunity to provide assurances in relation to personal space in respect of the Respondents. The District Judge directed that there be a response by 19 November 2021. By that date, the First Respondent had been in custody for just over seven months, the Second Respondent for about 15 months, and the Third Respondent for about seven months. No assurance was provided by the Appellant by 19 November 2021. On 22 November 2021, Ms Collins, junior counsel for the Appellant, said that the Appellant expected to be in a position to provide an assurance and sought an extension of time.
On 22 November 2021, the District Judge refused to grant an extension of time to obtain assurances in respect of the Respondents, for reasons that I will summarise in due course, and instead ordered the discharge of each of the Respondents.
Subsequently, assurances were received from the Appellant on 26 November 2021. They were in identical terms in respect of each of the Respondents. They state (in translation):
“Following your emails of 25 November 2021 [this is a reference to emails from the CPS to the Appellant] in order to inform the British Judicial/Prosecution Authorities, we confirm the following:
“1. In the Detention Establishment of Thessaloniki, the condition of 3 sq.m. living space, which includes the individual equipment of the prisoner (for instance: bedside table) but not the toilet which is shareable, is met. The wanted person will have between 3 sq.m. and 4 sq.m throughout his detention. In case he cannot be provided with the 3 sq.m. living space in the above mentioned Detention Establishment, the Central Transfer Committee will ensure the transfer of the detainee to another Detention Establishment where the necessary condition of 3 sq.m. living space will be met.
2. The overall surface of the cell will allow the wanted person to move freely between the furniture items in the cell at all times throughout his detention.”
These assurances were effectively identical to assurances that were given the High Court in the case of Sula (referred to below).
As the District Judge in the present cases had already discharged the Respondents by the time that the assurances were received, she did not take them into account when coming to her decision.
The appeal by the Appellant is on the basis that the District Judge was wrong to discharge the Respondents on the ground that their extradition would be in breach of their Article 3 rights to at least 3 square metres of personal space whilst being held in prison in Greece. The Appellant submits that the District Judge was wrong to decline to grant a further adjournment and extension of time for the Aranyosi response, which had the result that she did not take the assurances into account when deciding the Article 3 issue. The Appellant says that the assurances were sufficient to mean that there was no longer any Article 3 objection to extradition, on the ground of personal space. In the alternative, the Appellant submits that this Court should admit the assurances and should decide whether, in light of those assurances, the discharge of the Respondents on Article 3 personal space grounds should be set aside. In support of these two arguments, the Appellant invites the Court to take account of additional evidence relating to the chronology of events, and the steps taken by the CPS and the Appellant to obtain the assurances, in the form of a witness statement from Miss Nilofar Bawla, Senior Crown Prosecutor within the CPS Extradition Unit and the reviewing lawyer in the Respondents' cases, dated 28 June 2022, plus exhibits. This evidence was not provided to the District Judge, although the District Judge was provided with a chronology of events.
The Respondents submit that the decision to discharge them should be upheld. They say that there are no valid grounds for setting aside the District Judge's decision not to grant a further extension of time to provide the assurances. It follows that the District Judge was right to decide the Article 3 personal space issue on the basis that no assurances had been forthcoming and this meant, as was conceded, that the evidence showed that extradition would breach the Respondents' Article 3 rights. The Respondents say that this Court should not admit the assurances itself, primarily because to do so would effectively enable the Appellant to evade the consequences of its failures to comply with the time-limits imposed by the District Judge. The Respondents further submit that the Court should not admit the fresh evidence which the Appellant seeks to rely upon to provide further detail about the efforts that were made to obtain the assurances.
The Respondents' primary position is that if the Court finds that the District Judge was entitled to refuse to extend time for the Aranyosi response, the Court should decline to admit the assurances itself and should simply uphold the decision to discharge. However, if, contrary to the Respondents' primary case, the Court goes on to consider whether the assurances that were eventually provided were sufficient, the Court should find that they were not sufficient. This is for one or both of two reasons. First, the language of the assurances provides inadequate protection and, second, in any event there is evidence which shows that assurances such as these cannot be relied upon. In relation to the latter point, the Respondents seek leave to rely upon fresh evidence, not provided to the District Judge, which they say shows that similar assurances about personal space in Diavata Prison that were made by the Greek Judicial Authority in an earlier case, the case of Jamal Owda, were not honoured. This fresh evidence had not been available at the time when the Divisional Court held that similar assurances were sufficient in the case of Sula.
In addition, the Respondents submit that the Appellant's challenge is really a challenge to a case management decision,...
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