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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Obert v Public Prosecutor's Office of Appeal of Ioannina, Greece  EWHC 303 (Admin) (24 February 2017)
Cite as:  EWHC 303 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE NICOL
| Valerio Obert
|- and -
|Public Prosecutor's Office of Appeal of Ioannina, Greece
Julia Farrant (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 2nd February 2017
Crown Copyright ©
Mr Justice Nicol :
i) He argued that extradition was barred because, by lapse of time, it would now be unjust or oppressive to extradite him – see the Extradition Act 2003 ('EA') s.14. The District Judge found that the Appellant was not a fugitive and so, in principle, it was open to him to argue that extradition was barred by lapse of time and s.14. The delay had been extensive, but, the District Judge found, it would not render his extradition either unjust or oppressive.
ii) The Appellant argued that the condition of the Greek prison to which he was likely to be sent (Ioannina) was such that there were substantial grounds for believing that he would be subjected to inhuman or degrading treatment. In those circumstances, he submitted, his rights under Article 3 of the European Convention on Human Rights ('ECHR') would be infringed and his extradition was, in consequence, barred by EA s.21A(1)(a). He relied on reports from the Committee for the Prevention of Torture ('CPT') in 2014 (reporting on an inspection in 2013) on a number of Greek prisons including Ioannina and another in 2016 (reporting on an inspection of certain other Greek prisons in 2015), a number of decisions of this court and the European Court of Human Rights and also a report written for his case by a Professor Tsitselikis, a Greek Human Rights expert.The District Judge rejected this argument and was not persuaded that the usual presumption that Member States and Contracting Parties to the ECHR would comply with their obligations under the Convention had been displaced.
iii) The Appellant argued that his extradition would be contrary to his rights under Article 8 of the ECHR and for this reason as well his extradition was barred under EA s.21A. He had lived in the UK since 2012. He was a single man, but he had an adult daughter who had twin girls aged 2. She was separated from her partner and lived in a refuge. He provided her with financial support. He relied as well on the delay by the Greek authorities, which was largely unexplained.The District Judge considered each of the factors weighing in favour of extradition and those against. He concluded that extradition would not be a disproportionate interference with the Appellant's private or family life.
iv) The Appellant also argued that it would be an abuse of process for him to be extradited now after the Greek authorities had tried and failed to have him extradited from Italy. He also gave evidence that, after the Italians had refused to extradite him, he had had a meeting at the Greek consulate and he had been told that they would do their best to try to discharge the criminal proceedings in Greece.The District Judge held that there was no abuse. Italy had refused extradition because its law set a limitation period on prosecuting such offences. There was no similar restriction in the UK. A Judicial Authority was not precluded by the refusal of one Member State to extradite from seeking extradition from another Member State.
Section 14: passage of time: the law
'A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since (a) he is alleged to have committed the extradition offence (where he is accused of its commission)….'
Greece is a 'category 1 terrirtory'.
'Firstly, the question is not whether it would be unjust or oppressive to try the accused but whether … it would be unjust or oppressive to extradite him… Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be just or oppressive for the requested state to return him…. But thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect a defendant against a trial rendered unjust or oppressive by the passage of time…. Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a trial no longer possible: much will depend on the particular case... Fifthly, there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive…. [for simplicity I have omitted the cross references to the paragraphs of the earlier decision].
'the second of these propositions, it will be noted, invites consideration of whether, in any particular case, "a fair trial is impossible", and that indeed we regard as the essential question underlying any application for a s.82 bar on the ground that the passage of time has made it unjust to extradite the accused.'
' The third of the Knowles propositions requires a requested state to have regard to the domestic law safeguards in the requesting state. As Woodcock  1 WLR 1979 observed at , the domestic court of the requested state has obvious advantages in deciding whether or not a fair trial is now possible: "That court will have an altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise." The Divisional Court added, however, at , that
"we would have no alternative but to reach our own conclusion on whether a fair trial would now be possible in the requesting state if we were not persuaded that the courts of that state have what we regard as satisfactory procedures of their own akin to our (and the New Zealand courts') abuse of process jurisdiction."
 Woodcock was concerned with extradition to New Zealand and evidence was adduced there of an approach in New Zealand very similar to our own. Knowles concerned the extradition of a Bahamian to the United States. What, however, of extradition to countries of whose judicial systems we know less and in which, it is submitted, we should have less confidence? Council of Europe countries in our view present no problem. All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial – whether by an abuse of process jurisdiction like ours or in some other way. In so far as Keane LJ's judgment in Lisowski v Regional Court of Bialystock (Poland)  Extradition Law Reports 272,  suggests the contrary, it should not be followed. Trinidad itself should similarly be assumed to have the necessary safeguards against an unjust trial; the Privy Council is, after all, its final Court of Appeal.'
i) The test will not be easily satisfied. Something more than hardship, a comparatively commonplace consequence of extradition, must be shown – see .
ii) In deciding whether extradition would be oppressive, the Court can take into account the gravity of the charge on which the requesting state wishes to try the requested person – ibid.
iii) In a borderline case, the culpability of the delay by the requesting state can tip the balance – see  endorsing in this respect what Lord Edmund-Davies had said in Kakis at p.785, what Woolf LJ had said in Ex p. Osman (No.4)  1 All ER 579 and Laws LJ had said in La Torre v Republic of Italy  EWHC 1370 at .
'Given, however, s.104(4) of the Act (making provision for evidence on appeal that was not available at the extradition hearing) and recognising that any appeal court would be bound to have regard to the further passage of time and any factual developments when considering a human rights challenge under s.87, we would not regard the date of the initial extradition hearing as a final cut-off point. If, however, the accused were to be regarded as having deliberately spun out the proceedings for his own purposes, he could hardly expect to take much advantage from the additional passage of time.'
Section 14: passage of time: the evidence
'1…. In early 2002, I bought a car from a second-hand car dealer that was in poor condition. I paid a greatly reduced price because of the condition of the car. I got the car insured and made sure that I had all the official paperwork. I had no idea that this car had been used in criminal activity.
2. I had heard that the price of car repairs of this extent and materials was significantly cheaper in Albania. I decided that I would travel there with my girlfriend at the time to get these materials whilst visiting my ex-girlfriend's mother who lived in Greece.
3. In April 2002, we travelled by ferry to Greece and then onto Albania. We were not stopped at any time on our journey to Albania by the police or immigration officials. We collected the relevant materials in Albania and the car bumper was placed in the back seat of the car.
4. At the Greek-Albanian border upon return the Greek police noticed that the bumper was missing and was in the back seat. They told me that the number plates had been changed and that the chassis number was that of a stolen car.
5. The police didn't arrest me, question me or take finger prints. They gave me some receipts for the car but that was all. They simply told me, "We are confiscating this car, it will be sent back to Italy where you will need to explain yourself before a judge, and if we have any issues we can find you anyway." I then returned to Italy by means of public transport.
6. Reportedly, the Greek authorities sent requests for questioning with the police from 2005 onwards to my former address at Via Raffale Batistini 121. However, I had moved out from this address in early 2005 and therefore I had no idea that any legal documents had been sent to this address.
7. I attended the trial for my criminal matter in relation to the car in Italy where the judge found that I was not guilty. I did not know anything of my extradition proceedings until I was arrested on the 17th January 2015 in Italy on a European Arrest Warrant issued by Greece whilst I was spending some time in Italy. The European Arrest Warrant as discharged by the Court of Appeal in Rome on grounds of passage of time due to the length of time elapsed since the events taking place in 2002. I was released from custody in February after 10 days spent in prison in Rome. I also had a meeting at the Greek Consulate where I was told by the Greek authorities that they would do their best to discharge these criminal proceedings in Greece.
8. I moved to the U.K. for work in 2012 and have worked as a head chef continuously at various restaurants since my arrival. I thought that my discharge from the Italian proceedings would be an end of this matter…'
i) Criminal charges had been filed on 8th July 2002.
ii) The Appellant had not been aware of the filing of the criminal charges against him.
iii) The criminal case file was submitted to the public prosecutor on 9th December 2004.
iv) Prosecution documents were filed with the Police Directorate of Ioannina for the tracking and arrest of the Appellant on 24th January 2005.
v) The prosecutor was unaware whether any contact had taken place with the Appellant prior to the issue of the EAW.
vi) There was no evidence that the Appellant had tried to avoid questioning or the criminal charges.
'The RP [Requested Person] has a partner who lives in America. He has no young children. He has an adult daughter (aged 26) who lives in the UK. She is mother of 2 year old twins. She has been the victim of domestic violence and currently resides in a women's refuge. The RP has resided in the UK since 2012. He works as a head chef. His daughter works for 20 hours a week as a sous chef. She struggles financially (for example she currently has rent arrears of £5,000). The RP supports her financially by giving her between £5-600 per month. He is unaware of his daughter's entitlements to benefits. The RP lives with his cousin. He has no other family in the UK.
The RP has no convictions in the UK. He does have a caution, for a public order offence, administered on 23rd October 2014. 3 wraps of cocaine were found in his shoe when he was arrested on this EAW but it appears that no further action was taken in respect of them.'
'In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained…'
The Court went on to comment that a somewhat more relaxed approach might be necessary where the fresh evidence was necessary to avoid a violation of the Human Rights Act 1998 – see .
'An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court.'
Section 14: passage of time: discussion
Effect of my conclusion on the s.14 ground for the other grounds of appeal
Abuse of process
Article 3: prison conditions in Ioannina Prison
'If there are substantial grounds for believing that there is a real risk that if extradited a person will be subjected to torture, inhuman or degrading treatment in breach of Article 3 ECHR his extradition must be refused an order made for his discharge under s.21 Extradition Act 2003 [in that case, one of the Requested Persons was sought under a conviction warrant where s.21, in identical terms to s.21A(1)(a), requires the Court to discharge the person concerned if extradition would infringe his Convention rights]. In the case of a request by a judicial authority of a member state of the Council of Europe which is also a member state of the European Union, there is a strong, but rebuttable, presumption that it will comply with its obligations under Article 3 ECHR. If cogent evidence is adduced that there is a real risk that it will not, ordinarily in the context of something approaching an international consensus to that effect, extradition must be refused unless the requesting judicial authority can give, and if necessary secure from the relevant authority of its state, an assurance sufficient to dispel that real risk: see the summary of UK and Strasbourg cases in Krolik v Poland  EWHC 2357 (Admin) at - and in Elashmawy v Italy  EWHC 28 (Admin) at ; and as to assurances see Othamn v UK (2012) 55 EHRR 1 -.'
'As the Greek government acknowledged in response to the 2013 and 2015 reports, the underlying reason for understaffing and so lack of staff control over other prisoners and indeed poor material conditions at both prisons is a lack of physical resources, unlikely to be remedied soon. The reduction in numbers, small as a proportion at Korydallos Prison, but significant as a proportion at Nafplio Prison, are a step in the right direction, but no more than that. Unless and until more trained staff are recruited, the accommodation wings will be under the sway of lawless and intimidating groups of prisoners, unafraid to use violence when necessary. The fact that the single dedicated nurse and Deputy governor at Nafplio prison have not entered the accommodation areas because they have been advised that it is unsafe to do so starkly illustrates the point. To require any person to serve a significant prison sentence in such circumstances will inevitably put them in fear of the consequences, even if they do not materialise.'
'The custodial staff of the prison at Ioannina are 40. Approximately 8 of them serve at the central gate, or the secretariat of the prison and 30-32 serve at the custodial areas. They serve in four shifts per day, namely 7-8 per shift. During the night shift 2 or 3 staff are in charge. The occupancy of the prison is 128 prisoners (data of 3 January 2017, source MoJ).'
Lord Justice Treacy: