Yaser Mohammed v Comarca De Lisboa Oeste, Instancia Central De Sintra, 1a Seccão Criminal, Portugal
| Jurisdiction | England & Wales |
| Judge | Sir Wyn Williams,Lord Justice Beatson |
| Judgment Date | 12 December 2017 |
| Neutral Citation | [2017] EWHC 3237 (Admin) |
| Docket Number | Case No: CO/2675/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 December 2017 |
[2017] EWHC 3237 (Admin)
Lord Justice Beatson
and
Sir Wyn Williams
Case No: CO/2675/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr A Bailin QC and Mr J Stansfeld (instructed by Lawrence & Co) for the Claimant
Ms F Iveson (instructed by the Crown Prosecution Service) for the Defendant
Hearing date: 7 November 2017
Introduction:
This case concerns prison conditions in Lisbon Central Prison in Portugal. The appellant, Yaser Mohammed, appeals against the decision of District Judge Devas in the Westminster Magistrates' Court on 1 June 2017 ordering the extradition of the appellant pursuant to a conviction European Arrest Warrant ("EAW") issued on 28 January 2016 by the respondent, the Public Prosecutor of the District of West Lisbon and signed by Judge Susana Marques Maderia. The EAW was certified by the National Crime Agency on 21 February 2016. Further information dated 29 September 2016 and 2 November 2016 provided by the respondent in response to requests by the executing authority was before the District Judge.
The respondent requests the surrender of the appellant to serve a sentence of four and a half years imprisonment for four offences of fraud which he admitted. Before the District Judge the appellant unsuccessfully challenged his extradition on a number of grounds. Only one of those grounds is pursued in this appeal, filed on 6 June 2017. It is that the conditions of detention in Lisbon Central Prison ("Lisbon Prison"), where the appellant maintains that he would be likely to be detained, mean his extradition would not be compatible with his rights under article 3 of the European Convention on Human Rights (ECHR) which prohibits inter alia "degrading treatment or punishment".
The respondent's notice, dated 15 June 2017, did not challenge the claim that if the appellant is returned to Portugal he would be likely to be detained in Lisbon Prison, and the case below proceeded on that basis. Permission to appeal on the article 3 ground was granted by Nicola Davies J on 7 August 2017.
In an order made on 27 September 2017, Laing J directed that the case be listed before a Divisional Court and extended the appellant's representation order to include leading counsel. As a result of this, on 16 October 2016, the respondent made a request to the Portuguese authorities for further information. It did so on a pragmatic basis in case the court had concerns about the conditions in Lisbon Prison but without conceding such information is needed. I set out the questions and deal with the submissions made on this matter at [36] – [37] below.
The factual background:
The appellant, born in Iraq, is now a citizen of the United Kingdom. Box (e) of the EAW states that it relates to four offences arising out of the appellant's fraudulent use of credit cards, identity theft, and forgery or counterfeiting in Portugal in January and February 2012 contrary to respectively Article 217(1), Article 2(1) and 5(a) with reference to Article 202(a), and Article 256(1) of the Portuguese Penal Code.
The appellant was arrested on 17 February 2012 and held in pre-trial detention for 17 months between 18 February 2012 and 8 July 2013 when he was released on bail. The general position in Portugal is similar to that in this jurisdiction: time served in pre-trial detention is deducted from a sentence of imprisonment. The further information stated (paras (V), (VI) and (VII)) that the appellant confessed during the trial hearing to all the facts and that he was present during all stages of the hearing with the exception of the reading of the judgment, from which he was absent without justification. That hearing was on 15 July 2013, shortly after his release on bail, and it was at that hearing that he was sentenced.
After the sentence was pronounced, the appellant did not present himself to serve the remainder of his sentence. He claims that he was unaware of the sentence and of the fact that he was supposed to inform the authorities that he was leaving Portugal. In his proof of evidence, he also said that he was not entirely sure why he had been released and thought it was the end of the trial period. But, when cross-examined, he stated that when he was released from prison an officer told him that some of the charges had been dropped, and he thought that he had served his sentence.
The appellant stated in his proof that Lisbon Prison is really dangerous and it is highly likely that if he is extradited he will go back to it. He stated that he was threatened and robbed many times; that they were only given cold food, there were no light bulbs in the cell; no heating system throughout the winter, and rats coming out of the toilets and sometimes in the cells.
The legislative framework:
Part 1 of the Extradition Act 2003 ("the 2003 Act") implements the EU Council's Framework Decision on the European Arrest Warrant and Surrender Procedures (2002/584/JHA, 13 June 2002, hereafter "the Framework Decision"). The Framework Decision has the status of a Directive and the courts in this jurisdiction must seek to interpret the 2003 Act in conformity with EU Law. The decisions of courts in this jurisdiction in relation to EAWs are subject to the jurisdiction of the Court of Justice of the European Union ("CJEU"): see Puceviciene v Lithuanian Judicial Authority, Andreas Cornas v German Judicial Authority and Savov v Czech Judicial Authority [2016] EWHC 1862 (Admin) at [4] and Joint Cases C-404/15 and C-659/15/PPU Criminal Proceedings Aranyosi and Caldarau [2016] QB 921 (hereafter " Aranyosi").
The Framework Decision makes provision for simplified and accelerated procedures where the extradition from the United Kingdom is sought of a person convicted in EU Member States and Gibraltar (referred to in the 2003 Act as "category 1 territories").
I first refer to the material recitals to the Framework Decision:
"(6) The [EAW] provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial cooperation."
…
"(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty …".
…
"(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union …"
"(13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."
Article 1(2) of the Framework Decision provides that "Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision". Article 1(3) provides that the Framework Decision "shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on the European Union". Article 2 deals with the scope of the EAW and provides that such a warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or detention order for a maximum period of at least 12 months, and where the sentence is of at least 4 months.
In the context of this appeal, the material provisions of the 2003 Act are sections 21, 26 and 27. They provide:
" 21 Person Unlawfully at Large: Human Rights
(1) If the judge is required to proceed under this section (by virtue of section 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c.42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.
…
26 Appeal against extradition order
(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.
…
(3) An appeal under this section
(a) may be brought on a question of law or fact, but
(b) lies only with the leave of the High Court.
…
27 Court's powers on appeal under section 26
(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's...
To continue reading
Request your trial
-
A v Deputy General Public Prosecutor of the Lyon Court of Appeal
...authority on the practical application of Aranyosi is the decision of this Court (Beatson LJ and Williams J) in Mohammed v Portugal [2017] EWHC 3237 (Admin), at para 15: “Stage 1 of the procedure involves determining whether there is such a risk by assessing objective, reliable, specific a......
-
Karlis Elmeris v The General Prosecutor's Office, Republic of Latvia
...not properly follow the stepped approach in Aranyosi [2016] 3 WLR 807 as distilled in Mohamed v Comarca de Lisboa Oeste, Portugal [2017] EWHC 3237 (Admin) at [15], “ Stage 1 of the procedure involves determining whether there is such a risk by assessing objective, reliable, specific, and p......
-
Csaba Nemeth, Maria Lakatos, Maria Horvath, Persons v Hungarian Judicial Authorities State
...9. Elashmawy v Italy [2015] EWHC 28 (Admin) 10. Romania & Others v Zagrean & Others [2016] EWHC 2786 11. Mohammed v Portugal [2017] EWHC 3237 (Admin) 1 12. Jane No. 1 v Lithuania [2018] EWHC 1122 (Admin) 13. Soering v UK (1989) 11 EHRR 439 14. Mursic v Croatia (2017) 65 EHRR 1 15. Bivola......
-
Visha v Criminal Court of Monza, Italy
...65 EHRR 1 (“ Mursic”) and Aranyosi. In the domestic context reference can also be made to Yaser Mohammed v Comarca de Lisboa Oeste [2017] EWHC 3237 (Admin), Yaser Mohammed (No. 2) [2018] EWHC 225 (Admin), Shumba and Others v Public Prosecutor in Nanterre County Court, France and Others [2......
-
Understanding new actors in European Arrest Warrant cases concerning detention conditions: The role, powers and functions of prison inspection and monitoring bodies
...detention conditions, ECLI:NL:RBAMS:2019:10053 plink.rechtspraak.nl/uitspraak?id¼ECLI:NL:RBAMS:2019:655> accessed 23 March 2020.38. [2017] EWHC 3237 (Admin).39. Ibid at para 50.40. The outcome of this process is awaited.41. [2018] IEHC 612.42. [2017] IEHC 598.43. [2019] IEHC 249.44. [2015] ......