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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Owda v Court of Appeals Thessaloniki (Greece) [2017] EWHC 1174 (Admin) (18 May 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1174.html Cite as: [2017] EWHC 1174 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE MITTING
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JAMAL OWDA |
Appellant |
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- and - |
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COURT OF APPEALS THESSALONIKI (GREECE) |
Respondent |
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James Stansfeld (instructed by CPS) for the Defendant
Hearing dates: 3rd May 2017
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Crown Copyright ©
Lord Justice Burnett:
i) His extradition to Greece would violate his rights under article 3 of the European Convention on Human Rights ("ECHR") and in consequence is barred by section 21 of the Extradition Act 2003 ("the 2003 Act");ii) His extradition is prevented because his mental condition is such that it would be oppressive to extradite him within the meaning of section 25 of the 2003 Act.
Article 3 ECHR
i) Although it is likely that the appellant would be detained in Diavata Prison (also known as Thessaloniki) whilst on remand pending trial and indeed thereafter if convicted, there is a risk that he might be transferred to any of Greece's 19 prisons on conviction. In the event of transfer, there is a real risk that he might end up in either Korydallos or Nafplio prisons. In Marku and Murphy v Greece [2016] EWHC 1801 (Admin) this court held that on the evidence then available extradition to either prison would be incompatible with a requested person's article 3 rights.ii) Even if the evidence falls short of establishing the degree of likelihood that the appellant will find himself in either of those establishments, there are substantial grounds for believing that he would be subjected to treatment contrary to article 3, even in Diavata, because:
a) the personal space available to the appellant will be less than 3m2. An assurance from the Greek authorities that he will have more than 3m2cannot be relied upon;b) prisoners are able to spend only two hours outside in the fresh air in an environment with inadequate shade in the summer, so the lack of personal space is not compensated for by other factors;c) there is a significant risk of inter-prisoner violence which the Greek authorities are powerless to prevent because of the staffing shortage at the prison;d) the medical facilities for caring for patients with psychiatric problems are inadequate.iii) There is a real risk that the appellant will find himself in police custody and thereby be exposed to the risk of police brutality and detention in inadequate conditions.
"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. 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: Soering para 91; Cruz Varas para 69 Vilvarajah para 103."
The formula in the Strasbourg cases is "substantial grounds for believing" which is interchangeable with "strong grounds for believing" for these purposes.
"136. In the light of the considerations set out above, the Court confirms the standard predominant in its case-law of 3 sq. m of floor surface per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the Convention.
137. When the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (see paragraphs 126-128 above).
138. The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met:
(1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor (see paragraph 130 above):
(2) such reductions are accompanied by sufficient freedom of 133 above);
(3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see paragraph 134 above).
139. In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court's assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see paragraph 106 above).
140. The Court also stresses that in cases where a detainee disposed of more than 4 sq. m of personal space in multi-occupancy accommodation in prison and where therefore no issue with regard to the question of personal space arises, other aspects of physical conditions of detention referred to above (see paragraphs 48, 53, 55, 59 and 63-64 above) remain relevant for the Court's assessment of adequacy of an applicant's conditions of detention under Article 3 of the Convention (see, for example, Story and Others v. Malta, nos. 56854/13, 57005/13 and 57043/13, §§ 112-113, 29 October 2015).
141. Lastly, the Court would emphasise the importance of the CPT's preventive role in monitoring conditions of detention and of the standards which it develops in that connection. The Court reiterates that when deciding cases concerning conditions of detention it remains attentive to those standards and to the Contracting States' observance of them (see paragraph 113 above)."
"94 Consequently, in order to ensure respect for article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing member state, he will run a real risk of being subject in that member state to inhuman or degrading treatment, within the meaning of article 4.
95 To that end, that authority must, pursuant to article 15(2) of the Framework Decision, request of the judicial authority of the issuing member state that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that member state.
96 That request may also relate to the existence, in the issuing member state, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons.
97 In accordance with article 15(2) of the Framework Decision, the executing judicial authority may fix a time limit for the receipt of the supplementary information requested from the issuing judicial authority. That time limit must be adjusted to the particular case, so as to allow to that authority the time required to collect the information, if necessary by seeking assistance to that end from the central authority or one of the central authorities of the issuing member state, under article 7 of the Framework Decision. Under article 15(2) of the Framework Decision, that time limit must however take into account the need to observe the time limits set in article 17 of the Framework Decision. The issuing judicial authority is obliged to provide that information to the executing judicial authority.
98 If, in the light of the information provided pursuant to article 15(2) of the Framework Decision, and of any other information that may be available to the executing judicial authority, that authority finds that there exists, for the individual who is the subject of the European arrest warrant, a real risk of inhuman or degrading treatment, as referred to in para 94 of this judgment, the execution of that warrant must be postponed but it cannot be abandoned: see, by analogy, Lanigan's case [2016] QB 252, 302–303, para 38.
99 Where the executing authority decides on such a postponement, the executing member state is to inform Eurojust, in accordance with article 17(7) of the Framework Decision, giving the reasons for the delay. In addition, pursuant to that provision, a member state which has experienced repeated delays on the part of another member state in the execution of European arrest warrants for the reasons referred to in the preceding paragraph, is to inform the council with a view to an evaluation, at member state level, of the implementation of the Framework Decision.
100 Further, in accordance with article 6 of the Charter, the executing judicial authority may decide to hold the person concerned in custody only in so far as the procedure for the execution of the European arrest warrant has been carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the detention is not excessive: see Lanigan's case [2016] QB 252, 305–306, paras 58–60. The executing judicial authority must give due regard, with respect to individuals who are the subject of a European arrest warrant for the purposes of prosecution, to the principle of the presumption of innocence guaranteed by article 48 of the Charter.
101 In that regard, the executing judicial authority must respect the requirement of proportionality, laid down in article 52(1) of the Charter, with respect to the limitation of any right or freedom recognised by the Charter. The issue of a European arrest warrant cannot justify the individual concerned remaining in custody without any limit in time.
102 In any event, if the executing judicial authority concludes, following the review referred to in paras 100 and 101 above, that it is required to bring the requested person's detention to an end, it is then required, pursuant to articles 12 and 17(5) of the Framework Decision , to attach to the provisional release of that person any measures it deems necessary so as to prevent him from absconding and to ensure that the material conditions necessary for his effective surrender remain fulfilled for as long as no final decision on the execution of the European arrest warrant has been taken: see Lanigan's case, para 61.
103 In the event that the information received by the executing judicial authority from the issuing judicial authority is such as to permit it to discount the existence of a real risk that the individual concerned will be subject to inhuman and degrading treatment in the issuing member state, the executing judicial authority must adopt, within the time limits prescribed by the Framework Decision, its decision on the execution of the European arrest warrant, without prejudice to the opportunity of the individual concerned, after surrender, to have recourse, within the legal system of the issuing member state, to legal remedies that may enable him to challenge, where appropriate, the lawfulness of the conditions of his detention in a prison of that member state: see F's case [2014] 2 CMLR 19, para 50. "
The Judge's Conclusions
Was the Judge Wrong?
"192. The serious shortage of prison staff in all establishments visited continues to be a major obstacle in ensuring the proper functioning of prisons. For example, at Diavata Prison staffing levels in relation to the number of prisoners have been reduced from 1:4 in 2007 to 1:40 in 2015 with only 15 officers on duty for 600 prisoners (see also section 2 above for numbers of prison officers on duty in other prisons). The CPT must repeat that an inadequate number of custodial staff renders prisons insecure for both prisoners and staff; in particular, it impedes any efforts to maintain effective control, which leads to stronger groups of prisoners being able to exercise their powers unchecked over other inmates (see section 2 above). As was the case in 2013, the CPT's delegation found that prison staff in many instances had to rely upon the leaders of those groups to maintain order in several of the prisons visited.
Without sufficient staffing levels, it is also not possible to offer prisoners an acceptable regime thus reinforcing the warehousing phenomenon.
Moreover, many prison staff complained about working up to 14 days consecutively without time off and about overtime and extra shifts not paid, and reported that they were seeking professional help due to the stress. Such a state of affairs not only increases the likelihood of burnout, but also undermines motivation. This in turn only increases the risks for both staff and prisoners. The current staffing levels in the Greek prison system must be radically increased starting with Korydallos Men's prison.
The CPT reiterates its recommendation to the Greek authorities that staffing levels in all prisons must be urgently reviewed and increased to levels which ensure effective control and a safe environment for prisoners and staff, as well as the possibility to put in place a programme of activities for all prisoners."
Section 25
" a high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be oppressive to extradite him: Howes v HM's Advocate [2010] SCL 341 and the cases there cited by Lord Reed in a judgment of the Inner House." (paragraph 28)
Conclusion
Mr Justice Mitting