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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 3702 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOLROYDE
| MOHAMMED BALAEIHARIS
|- and -
|THE PUBLIC PROSECUTOR,
COURT OF APPEAL, ATHENS
Mr J Stansfeld (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 5th November, 2015
Crown Copyright ©
Mr Justice Holroyde:
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 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."
" that in addition to the assurances already given in these cases, we state that each of the Requested Persons will be accommodated in cells where they will have personal space in excess of three square metres not including space taken up by cell furniture. Further, they will benefit from this assurance for the duration of their time in detention in Greece"
"I am sure he was a fugitive, doing everything he could to avoid the trial and now the appeal in Greece. He knew of the hearing and deliberately absented himself from it"
"So, serious overcrowding remains. Some prisoners do not have proper beds. Vermin are endemic. Medical facilities are very poor and understaffed. Staffing levels generally mean that control of prisons in some cases ceded to prisoners. A recent deadly riot confirms the fears expressed by CPT, and the evidence about riots referred to in Herdman. Toilet and hot water facilities remain unacceptable.
An important factor to take into account when considering overcrowding is how long prisoners are locked in their cells. In some jurisdictions it can be 23 hours, and that combined with very cramped conditions can breach article 3. However in Greece prisoners are out of their cells from dawn to dusk (the hours are set out above) and daily exercise is available. In Korydallos prisoners are back in their cells for three hours around lunchtime. Nevertheless, this time out of the cell makes a huge difference.
Over the years there have been a good number of extraditions to Greece. There are two examples of a court of first instance in this jurisdiction declining to send to Greece on article 3 grounds. However these cases are clearly fact specific to the circumstances of the requested person. There are also ECHR cases, but as yet no pilot judgment. Article 3 breaches are universally abhorred, yet I have not been told of any country that refuses to extradite to Greece on this ground.
There is international consensus that prison conditions in Greece are appalling and unacceptable. Bodies such as CPT and ECtHR play a vital role in trying to improve those conditions. However, there is no international consensus that prison conditions in Greece breach article 3, so that extradition should not take place.
The evidence before me leads me to the same conclusion as that reached by the High Court in Herdman. There have been small improvements, but also some things, such as staff levels, are worse. Conditions are deplorable, but fall short of the high barrier required by article 3."
"I attach great weight to the fact that Greece is a western democracy, subject to the rule of law, a signatory to the ECHR and a party to the two framework decisions. The assurance has been given at ministerial level. There is no concrete cogent evidence that undermines it. I accept it will be acted upon as stated."
i) Judge Riddle "erred in finding that there was not a real risk of proscribed ill-treatment were the Appellant to be extradited to Greece where he would be incarcerated in Korydallos Men's Prison to serve a 22 year sentence of imprisonment, and that accordingly his extradition was compatible with his article 3 ECHR rights";
ii) Judge Riddle "erred in finding that the Appellant would not suffer a flagrant denial of justice by reason of the refusal of the court of trial and appeal to permit the Appellant to examine the sole witness on whose evidence his conviction was decisively based, and that accordingly the Appellant's extradition was compatible with his article 5 and 6 ECHR rights."
"(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 discharge.
(5) If the court allows the appeal it must
(a) order the person's discharge;
(b) quash the order for his extradition."
"In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment".
"49 A number of general propositions are very well established by ECtHR case law and accepted by the courts of England and Wales in relation to Article 3 and its application to prison conditions in the context of extradition. We think that they can be summarised as follows: (1) the extradition of a requested person from a Contracting state to another state (whether or not a Contracting state) where that person will be held in detention (either awaiting trial or sentence or in order to serve a sentence lawfully imposed) can give rise to an Article 3 issue, which will engage the responsibility of the Contracting state from which the extradition of the requested person is sought. (2) If it is shown that there are substantial grounds for believing that the requested person would face a "real risk" of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country then Article 3 implies an obligation on the Contracting state not to extradite the requested person. (3) Article 3 imposes "absolute" rights, but in order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. In general, a very strong case is required to make good a violation of Article 3. The test is a stringent one and it is not easy to satisfy. (4) Whether the minimum level is attained in a particular case depends on all the circumstances, such as the nature of the treatment, its duration, its physical and mental effects and, possibly, the age, sex and health of the person concerned. In that sense, the test of whether there has been a breach of Article 3 in a particular case is "relative". (5) The detention of a person in a prison as a punishment lawfully imposed inevitably involves a deprivation of liberty and brings with it certain disadvantages and a level of suffering that is unavoidable because that is inherent in detention. But lawful detention does not deprive a person of his Article 3 rights. Indeed, Article 3 imposes on the relevant authorities a positive obligation to ensure that all prisoners are held under conditions compatible with respect for human dignity, that they are not subjected to distress or testing of an intensity that exceeds the level of unavoidable suffering concomitant to detention. The health and welfare of prisoners must be adequately assured. (6) If it is alleged that the conditions of detention infringe Article 3, it is necessary to make findings about the actual conditions suffered and their cumulative effect during the relevant time and on the specific claims of the complainant. (7) Where prison overcrowding reaches a certain level, lack of space in a prison may constitute the central element to be taken into account when assessing the conformity of a given situation within Article 3. As a general rule, if the area for personal space is less than 3 square metres, the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3: (see the ECtHR judgment of Ananyev v Russia (Applications Nos 425/07 and 60800/080910) of January 2012, referred to at  of Florea v Romania  EWHC 3538 (Admin) ("Florea"). (8) However, if overcrowding itself is not sufficient to engage Article 3, other aspects of the conditions of detention will be taken into account to see if there has been a breach. Factors may include: the availability for use of private lavatories, available ventilation, natural light and air, heating, and other basic health requirements.
50 The legal principles with regard to extradition, prison conditions in Contracting States to the ECHR and Member States of the EU and whether Article 3 is engaged, have been recently restated by this court in Krolik (and others) v Several Judicial Authorities in Poland  1 WLR 490 . There is no need to reconsider earlier authorities in this area. We can summarise the relevant principles as follows: (1) member states of the Council of Europe are presumed to be able and willing to fulfil their obligations under the ECHR , in the absence of clear, cogent and compelling evidence to the contrary. (2) That evidence would have to show that there was a real risk of the requested person being subjected to torture or inhuman or degrading treatment or punishment. (3) This presumption is of even greater importance in the case of member states of the European Union. In such cases there is a strong, albeit rebuttable, presumption that EU member states will abide by their Convention obligations. Each member state is entitled to have confidence that all other EU states will abide by their Convention obligations. (4) The evidence needed to rebut the presumption and to establish a breach of Article 3 by the EU member state (our emphasis) will have to be powerful. However, Mr Fitzgerald, for the First Interested party, questioned whether a requirement of "something like an international consensus" (see  of Krolik ) is a useful test to apply on the question of whether the presumption had been rebutted."
" something approaching an international consensus is required, if the presumption is to be rebutted."
"The effect of these decisions is that a breach of Article 3 is likely only to be found if either there are systemic violations in the institutions of a Contracting State that is under attack or there is proof of individual problems sufficient to support a conclusion of substantial grounds for a belief in a real risk of Article 3 ill-treatment despite the starting point of the presumption of compliance in an EU state"
"where the applicants have at their disposal less than three square metres of floor surface, the overcrowding must be considered so severe as to justify of itself a finding of a violation of Article 3".
"35. We agree with the decision of this court in Achmant  EWHC 3470 that there is no inflexible international rule established by the Strasbourg jurisprudence prohibiting return to a country whenever there is a reasonable likelihood that a prisoner will serve any time in a cell with less than three metres of personal space.
36. Nevertheless, we also accept the submission of [counsel for the appellant] that where there is a real likelihood that a prisoner will serve a sentence in personal space of less than three metres, a serious issue of breach of Article 3 arises, without the need for other aggravating features and despite the good faith of the government in seeking to address a problem of historic inadequacy in the prison estate."
"The CPT has been highlighting the necessity for the authorities to take action to drastically reduce the occupancy levels in the prison since 1993."
"(ii) Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide (iii) It will therefore rarely be appropriate for the court in the UK to consider whether a sentence was significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been"
Lord Justice Laws: