R Gjin Marku v The Nafplion Court of Appeal, Greece
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Mr Justice Flaux |
| Judgment Date | 07 April 2016 |
| Neutral Citation | [2016] EWHC 2409 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5174/2015 and CO/6572/2015 |
| Date | 07 April 2016 |
[2016] EWHC 2409 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Flaux
CO/5174/2015 and CO/6572/2015
Mr D Jones (instructed by Son MacMillan Walker) appeared on behalf of the Applicant
Marku and Mr B Seifert (instructed by Edward Hayes) appeared on behalf of the Applicant Murphy
Mr J Stansfeld (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondents
NB Please note this is a super-expedited transcript order and we are awaiting the District Judge judgments and the 2016 CPT report so that we can check the citations.
These are two applications for permission to appeal against extradition decisions made in the Westminster Magistrates' Court. They involve amongst other things issues relating to prison conditions in Greece. On 10 March 2016 Hickinbottom J ordered that they be heard together before a Divisional Court. On 20 October 2015 District Judge Bayne ordered the extradition to Greece of the applicant Marku, and on 21 December 2015 District Judge Tempia made a like order in relation to the applicant Murphy.
Marku is an Albanian national. He is wanted for an offence of attempted murder said to have been committed on 18 November 2005 at Velo in the district of Corinth. On 28 May 2014 a European Arrest Warrant was issued by the Court of Appeal in Nafplion Court, the respondent to Marku's application. It was certified by the National Crime Agency on 12 September 2014. He was arrested in the United Kingdom on 28 September 2014. The order of 20 October 2015 for his extradition was made after a 3 day extradition hearing before District Judge Bayne.
Murphy is a British national. He is wanted on a conviction warrant for offences of possession of 11.2 grams of cocaine on 23 May 2007 and importation of the drugs into Greece at Athens airport. This is not the first time his extradition has been sought. On 28 October 2010 he consented to his extradition on an accusation warrant for the same offences. It appears that he attended court for his trial on 4 November 2011 but there was a lawyers strike and the trial was postponed. A new date was set for 7 March 2012. Murphy did not attend court on that occasion. The trial proceeded in his absence and on 10 April 2012 he was sentenced to 10 years' imprisonment. A European Arrest Warrant was issued by the Public Prosecutor's Office to the Athens Court of Appeal on 13 March 2013 and certified on 6 May 2015. Murphy was arrested in the United Kingdom on 3 July 2015. The substantive extradition hearing took place on 6 and 27 November 2015 and as I have said District Judge Tempia made the extradition order on 21 December.
I will deal with Marku's case first. His grounds of appeal have been reordered in a skeleton argument produced yesterday and 2 additional grounds were sought to be added. As reordered the grounds are: (1) the applicant has been the victim of torture by the Greek police and if he is extradited there is a real risk that he would be tortured by the police again; (2) there is a real risk that he would suffer violence amounting to inhuman treatment at the hands of other Albanian prisoners seeking revenge for the alleged offence of attempted murder. Then Mr Jones has indicated this morning, as I understand it, that grounds 3, 4 and the new ground 5 are not pursued. Ground 6 is the conditions at Nafplion prison are such as to expose the application to a violation of article 3 of the Human Rights Convention. Mr Marku also seeks to admit as fresh evidence a report of the Council of European Committee for the Prevention of Torture (CPT) on Greece published on 1 March 2016 and the response of the Greek government published on the same day. Mr Murphy also relies on the CPT report of 2016. Its admissibility in principle is not in dispute. Plainly its publication date came after the District Judge's decisions in both cases.
I turn to ground 1 in Marku's case. The applicant Marku claimed and gave evidence to this effect that after being arrested in 2005 for the alleged offence of attempted murder he was physically abused and raped by police officers (see paragraph 6 of the District Judge's judgment). He asserts, paragraphs 11–12 of counsel's skeleton, that officers may be motivated to harm him in order to silence him or punish him for making the accusation. Evidence of police violence in the CPT reports of 2014 and the new one of 2016 is relied upon. Mr Jones submits that even if there is no evidence or no plain evidence that upon his return Mr Marku would be liable to be detained in a police station nevertheless the police might obtain access to him.
The question whether the applicant might if returned be subjected to ill treatment by police officers was plainly before District Judge Bayne as she acknowledged at paragraph 11. But she does not expressly discuss it. Her only discussion of the applicant's claim of earlier abuse comes within her treatment of the general issue of prison conditions beginning at paragraph 93. She says this at paragraphs 112–115. (I should say that the numbering has been added I think by Mr Jones.) The text of the judgment lacks paragraph numbers.
"112. There is a problem with inter prisoner violence but the Court is not persuaded that this RP [requested person] in particular is at real risk of treatment such as to infringe his rights under Article 3 because of his ethnicity or because of his previous experiences in the custody of the Police."
This is perhaps the critical paragraph:
"113. His account of ill treatment by the Greek police has not been challenged but it remains the case that he made no report of this to any of the authorities in Greece at the time, and there is no medical evidence to support him. The psychiatrists all rely on self reporting some 11 years after the alleged incident.
114. There is no evidence to show that he will be held in custody at a police station for any length of time. Professor Tsitselikis [an expert called by both applicants] confirmed in his evidence that there is no one currently detained in such a way by the Greek police, and the risk that he might be kept in custody at a police station… is mere speculation.
115. As far as detention in prison is concerned, whilst there is some evidence of discrimination, not least because the early release provisions do not yet apply to foreign detainees, nevertheless there exits appropriate methods of redress in the event of any problems the RP might encounter."
Paragraph 113 suggests to my mind that the judge doubted the applicant's unchallenged claim of abuse by the police. There is no specific finding but the judge seems at least to have discounted with little reasoning the possibility that past abuse by the police might be a significant factor in the assessment of any risk of ill treatment upon return. Given the evidence of police violence in the 2014 and 2016 CPT reports I consider this is an unsatisfactory state of affairs. I will therefore grant permission to appeal to Mr Marku on ground 1 and as I have indicated the 2016 report's admissibility is not in contention.
Ground 2 relates to a suggestion that the applicant might be ill treated at the hands of other Albanian prisoners. I would not grant freestanding permission on this ground. It is, as my Lord Flaux J pointed out in the course of argument, very much bound up with the ground concerning prison conditions to which I will come shortly. I should indicate that as regards ground 2 the matters there raised are dealt with by the district judge at paragraphs 128–130 in Mr Jones's numbering. I turn then to what is ground 6 in Mr Marku's case, prison conditions.
I note that the United Kingdom has on I think 23 March 2015 received assurances from the Greek Minster of Justice (which on well established authority should ordinarily be accepted) that the applicant will have at least 3m 2 of personal space in prison. The judge considered (paragraph 127) the assurance should indeed be accepted. The district judge noted at paragraph 106 that according to the 2014 CPT report, prisoners were able to "move around freely in all Greek prisons between 8.00 am and noon and again between 3.00 pm and 9.00 pm".
What troubles me, however, is the terms of the 2016 report. It appears that conditions — I use the term generally — in the Greek prison estate have deteriorated, even though the numbers of prisoners have remained more or less steady or indeed have lessened. I may take conveniently this summary of the salient points in the CPT report from counsel's helpful skeleton argument in Murphy's case at paragraph 110–114. The short passage reads as follows:
"110. On page 6 [of the CPT report] the Executive Summary describes the Greek prison system as 'reaching breaking point' and indicates...
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