Ilia v Appeal Court in Athens (Greece) [2015] EWHC 547 (Admin)

Case No CO/653/2012[2015] EWHC 547 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 6 th March 2015
Before
LORD JUSTICE AIKENSMR JUSTICE NICOL
Between
Antonia IliaAppellantAppeal Court in Athens (Greece)Respondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ben Cooper (instructed by Faradays Solicitors) for AppellantJames Stansfeld (instructed by CPS Extradition) for RespondentHearing Hearing dates: 21/11/2014Written submissions made on several dates thereafter. Latest received 24 February 2015.
JudgmentLord Justice Aikens :
[1]This is the judgment of the court to which each of us has contributed.

The case so far

[2]Antonia Ilia (“the appellant”) is a citizen of the Greek Republic. She was a judge of the First Instance Court in Athens until her dismissal in July 2005. A few days before her dismissal she came to the UK and settled here under a false identity. She was arrested at her home in Sussex in May 2011. Originally the Public Prosecutor, Court of Appeal, Athens (the “Judicial Authority” or “JA”) sought the appellant’s extradition under five European Arrest Warrants (“EAWs”). Four of these EAWs are what are often called “conviction” EAWs, ie they requested the surrender of the appellant in order that she serve sentences passed on her by a court in Greece. We are no longer concerned with those EAWs, which we will call EAWs 1-4. The fifth EAW was, essentially, an “accusation” EAW although there are possible complications which we will explain below. We will call it “EAW 5” for short.[3]Greece is a Category 1 territory for the purposes of the Extradition Act 2003 (the “EA”) so that Part 1 of the EA applies to the case and to this appeal. EAW 5 was issued on 8 April 2011. The Serious Organised Crime Agency certified EAW 5 on 9 May 2011. As stated above, the appellant was arrested on 15 May 2011.[4]Extradition proceedings have been very drawn out. On 16 January 2012 District Judge Purdy (“the DJ”) rejected the appellant’s challenges to all five EAWs and ordered her extradition on the basis of all those EAWs.[5]The appellant appealed. The matter came before Rafferty LJ and Underhill J (as he then was). There were two hearings before them, in March 2013 and June 2014 (sic). Judgments in the appeal were handed down on 14 July 2014. Underhill LJ gave the substantive judgment.[6]On the appeal a large number of grounds were relied on by the appellant and her lawyers to oppose extradition. The history of the appeal, the grounds relied on and the conclusions of this court can all be read in the comprehensive and very clear judgment of Underhill LJ. The upshot of the appeal was:(1) the four conviction EAWs were withdrawn. Therefore the order of the DJ in relation to those EAWs was quashed and the appellant was discharged in respect of them.(2) In relation to EAW 5, all the grounds of appeal save for two were dismissed.(3) Rafferty LJ and Underhill LJ did not decide two grounds of appeal, neither of which had been raised before the DJ. These were: first, whether the conditions in the prison in which the appellant would be detained pending trial and would be imprisoned if convicted, were so poor that it would be contrary to the appellant’s Article 3 rights to extradite her to Greece; secondly, whether, in relation to the “conviction” part of EAW 5, it would be a disproportionate interference with the appellant’s Article 8 rights to extradite her.[7]This second issue concerned a sentence of 80 months for which the appellant’s surrender was sought under EAW 5. At [38] of Underhill LJ’s judgment he set out the explanation of the JA on how that sentence would, in fact, be reduced to one of only 20 months. In addition, account would have to be taken of the fact that the appellant had been held in custody for a period of 17 months and 21 days between 15 May 2011 and 6 December 2012. This period would have to be deducted from the outstanding sentence pursuant to the terms of Article 26 of the Council Framework Decision 2002 (“the FD”). At [99] of his judgment Underhill LJ records that the total sentence that remained to be served if the appellant were extradited on the “conviction” element of EAW 5 would be only 24 days.[8]The reason why this court did not make a decision on the Article 3/prison conditions issue was that expert evidence on conditions in the prison in which the appellant would be remanded and imprisoned if convicted, the Korydallos women’s prison, had been served on behalf of the appellant at a very late stage in the appeal process. This evidence of Professor Tsitselikis was “fresh” evidence because the Article 3/prison conditions point had not been taken before the DJ. Rafferty LJ and Underhill LJ decided that, despite the fact that this was new evidence, it should be admitted: see [93] of the judgment of Underhill LJ. As he summarised the position, at [94]:
“The upshot is that I believe that we are obliged to admit the evidence of Professor Tsitselikis and to give the [JA] the opportunity to answer it. That gives rise to certain case-management questions, which I would propose that we deal with as follows.”
[9]Underhill LJ then set out a timetable for the JA to respond to the evidence of Professor Tsitselikis and it was ordered that both he and any expert relied on by the JA should be available for cross-examination at a further hearing. The court also decided that it could not deal with the Article 8 arguments until the Article 3 issue had been decided so that issue was also adjourned in consequence.[10]In accordance with directions made by Rafferty LJ and Underhill LJ further information was provided by the JA on 30 September 2014. That information contained an assurance that upon surrender the appellant would be detained in Greece in the New Branch of the Independent Women’s Prison Establishment at Korydallos, which has been called for convenience “the New Wing”.[11]The hearing of the Article 3/prison conditions and Article 8 issues was due to be heard by a differently constituted Divisional Court consisting of the Lord Chief Justice and Foskett J on 29 October 2014. In fact the hearing did not go ahead that day. Instead the court granted authority for Professor Tsitelikis to provide a further report, dealing with a new assurance. That report was served on 6 November 2014. In addition, a report from Assistant Professor Koulouris, also on behalf of the appellant, was served.[12]The hearing of the Article 3/prison conditions and Article 8 issues finally took place before the present constitution on 21 November 2014. On that occasion we heard oral evidence from Professor Koulouris and Professor Tsitelikis via video-link. We heard submissions from Mr Ben Cooper, counsel for the appellant, and Mr James Stansfeld, counsel for the JA. As a result of questions asked in cross-examination of Professor Tsetselikis, he promised to provide the court with further materials, in particular a statement given by the Greek Minister of Justice (Mr Charalambos Athanasiou) to the Permanent Parliamentary Committee on the Penitentiary System on 19 November 2014. This material was provided. Subsequently, on 8 December 2014, a general election was called in Greece, which was to be held on 25 January 2015. The Secretary General of the Ministry of Justice, one of those who gave the assurances, then resigned.[13]On 5 January 2015 the court received an unsolicited email from the solicitors for the appellant which stated that they had been contacted by Professor Koulouris who said that, as a result of the elections, there could be radical changes in the administrative structure of the Ministry of Justice and the political leadership of the prison administration. Professor Koulouris also stated that, whichever party or parties formed the new government, there was likely to be a review and reform of prison policies, which might put in question the applicability of the assurances given in the appellant’s case by the then current Minister of Justice and Secretary General of Crime Policy of the Ministry of Justice. The implicit request was that this court should await the outcome of the elections before completing its judgment.[14]As is well known, the Greek general election resulted in a wholesale change of government. On 1 February 2015 the appellant submitted, again unsolicited, a joint statement from Professors Tsitselikis and Koulouris of the same date. On 4 February 2015 the JA lodged an email with the court, objecting to this document being received by the court. That email was followed by a three page document described as “Appellant’s observations on the IJA’s submissions” of 5 February 2015. On 9 February this court made an order that it would permit the joint statement to be admitted. We gave the JA 14 days in which to respond. The court made it clear that it would thereafter receive no more evidence from the parties on any issue as it wished to finalise its judgment. The material from the JA was finally received by the court on 24 February 2015.[15]We appreciate that the circumstances of this case are unusual, but we strongly deprecate the practice adopted by the appellant and her advisors in this case (both before Rafferty LJ and Underhill LJ and us) of serving further evidence and submissions after the hearing has been completed, without asking the court whether it wished or permitted such further materials to be adduced. When a hearing has been concluded, unless there is a particular matter that has been left outstanding, that must be the end of submitting further materials or observations to the court, unless the court specifically asks for, or agrees to accept, further observations. Otherwise, the other party will not know whether it is expected to respond to the new material and cases will never be finalised. When this judgment was circulated in draft, counsel for the appellant apologised. We unreservedly accept the apology. There are unusual features in this case and we acknowledge the industry and dedication of counsel in representing his client’s interests which have been in the best traditions of the Bar. However, the need to regulate submissions from the parties and the court’s obligation to reach a final resolution of this appeal have to prevail.

The charges which form the basis of EAW 5

[16]The appellant was charged in 2007 with a series of offences said to have been committed in the period 2000-2004. It is alleged the appellant corruptly abused her position as a judge and otherwise acted improperly. There were a number of co-defendants. The charges were of two broad degrees of seriousness. Some were classified as “felonies” and some as “misdemeanours”. The co-defendants were tried on all charges, but the appellant was only tried in her absence on the misdemeanour charges. The trial of the “felony” charges against her were suspended until her attendance could be obtained under EAW 5.[17]On 10 July 2008 the Court of Appeal in Athens (sitting at first instance) convicted the appellant, in her absence, of all the misdemeanour charges and she was sentenced to what Underhill LJ described as an “undifferentiated term” of 80 months imprisonment. The Article 8 argument of the appellant is that, given the time that she has spent on remand and under curfew during the extradition process, it would be a disproportionate interference with her Article 8 rights to surrender her to serve the very short time (5 weeks) of the sentence that would remain outstanding if the appellant were to be surrendered.[18]The “felonies” that are the subject of EAW 5 are described in some detail at [15] of Underhill LJ’s judgment and there is no need to repeat the detail here. There are, broadly, three types of “felony” alleged: first, fraud; secondly, money laundering and, thirdly, corruption and associated offences. The appellant strongly denies all these charges and asserts that the charges have been brought in bad faith in order to punish her for her left wing opinions and for the independent way that she has conducted herself as a judge.[19]Therefore, in addition to various technical challenges to the accusation EAW, the appellant argued before Rafferty LJ and Underhill LJ that her extradition was barred under section 13 of the EA because she was being prosecuted and punished on account of her political opinions: see section 13(a). It was also asserted that, because of this background, the appellant could not have a fair trial, so that her extradition was barred under section 21 of the EA because such an unfair trial would be contrary to her Article 6 rights. Rafferty LJ and Underhill LJ rejected all the arguments raised under both section 13 and section 21 and also rejected an argument that extradition pursuant to EAW 5 would be an abuse of process: see [70]-[81].

The Article 3/prison conditions argument before Rafferty LJ and Underhill LJ

[20]At the first hearing before Rafferty LJ and Underhill LJ in March 2013 the appellant relied on a report by Mr George Pyromallis, which had not been before the DJ. At [82] of his judgment, Underhill LJ explains that he would first set out the conclusion and reasons that he had come to on the Article 3/prison conditions issue by the time that the original draft judgments of the court were circulated in November 2013. The long gap between the hearing on 26 March 2013 and the circulation of the draft judgments is accounted for by the fact that the court had permitted further reports and submissions to be made right up until 12 October 2013. The court’s conclusion at that time was that it was not satisfied, on the basis of Mr Pyromallis’ report, that if the appellant were remanded and/or then imprisoned upon her surrender pursuant to EAW 5 that there would be a substantial risk that the conditions which she would experience in prison would be such as to represent a breach of her rights under Article 3: see [85]. Underhill LJ pointed out that Mr Pyromallis had provided reports on Greek prison conditions in three previous cases Symeou v Public Prosecutor Patras Greece [2009] 1 WLR 2384; Herdman v City of Westminster Magistrates Court [2010] EWHC 1533 (Admin) and Achmant v A Judicial Authority In Thessaloniki [2012] EWHC 3470 (Admin) (“Achmant”). and in each of those the High Court had not been prepared to hold that that his evidence was sufficient to rebut the strong presumption that a member state of the Council of Europe will be able and willing to fulfil its Convention obligations. Apparently, it was not submitted on behalf of the appellant, at that time, that Mr Pyromallis’s evidence could rebut that presumption.[21]However, matters moved on. Mr Cooper, who acted for the appellant then, as now, sought permission to rely on a report of Professor Tsitselikis that was served on 2 May 2014. Professor Tsitselikis is a legal academic and human rights activist with extensive experience of prison conditions in Greece. Professor Tsitselikis’s first report dealt with deficiencies in the Greek prison system generally and he relied on a number of published national and international reports, including a report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) dated 10 January 2012, which had not been referred to by either the Magistrates’ Court or the High Court in the case of Achmant v Greece [2012] EWHC 2470 (Admin (“Achmant”)). That case concerned prison conditions in Thessaloniki prison. The Divisional Court rejected a submission that conditions were so bad there that extradition would be a breach of Mr Achmant’s Article 3 rights. The CPT report of January 2012 had identified severe problems of over-crowding, understaffing and very poor living conditions in Greek prisons generally. With regard to the women’s section of the Korydallos prison, Underhill LJ records Professor Tsitselikis as stating, first, that there was severe over-crowding, with inmates enjoying on average only 2 to 2.5m 2 of personal space and secondly, that, as a result of understaffing, parts of the prison had “in effect ceded control to the prisoners allowing ‘stronger groups of inmates to impose their will upon other prisoners’”: see [87]. Mr Cooper also relied on other materials, although none specifically referred to the position in Korydallos prison.[22]Underhill LJ concluded (and Rafferty LJ concurred) that Professor Tsitselikis’s report must be admitted and the JA must be given an opportunity to respond to it. Professor Tsitselikis produced a short supplementary report thereafter and, although this court strongly deprecated what it rightly described as a “drip-feed of further materials”, it was prepared to allow the appellant to rely on that report as well.[23]The upshot of the materials referred to in Professor Tsitselikis’s reports was, therefore, that this court thought that the Article 3/prison conditions point was arguable, despite this court’s previous decision in Achmant that prison conditions in Greece (for male prisoners) were not such that extradition to Greece would amount to a breach of the requested person’s Article 3 rights. Subsequent developments on the Article 3/ prison conditions issue in this case since the judgments of Rafferty LJ and Underhill LJ[24]On 9 September 2014 the Greek Minister of Justice, Mr Charalambos Athanasiou, wrote a letter to the CPS Extradition Unit, for onward transmission to this court, concerning the appellant and EAW 5. It stated that the letter provided guarantees (plural) to the “authorities in the UK responsible for fulfilling a European Arrest Warrant”. The first heading of the letter is “Guarantees”. The wording of that section of the letter is as follows: “I hereby assure the competent authorities of the United Kingdom that in the event that ANTONIA ILIA is surrendered pursuant to the European Arrest Warrant issued by the Prosecutor’s Office at the Court of Appeal of Athens on 18 April 2011 and, if remanded in custody pending trial and/or if sentenced to a term of imprisonment, she will be detained at the New Branch of the Independent Women’s Prison Establishment of Korydallos, which is now not overcrowded and she will not be detained at the present independent Women’s Prison Establishment of Korydallos or any prison that is not compliant with Article 3 of the European Convention on Human Rights. This reassurance is a reassurance at the highest institutional level. The Prosecutor’s Office of the Court of Appeal of Athens, who will forward it to the judicial authorities of the United Kingdom, will ensure strictly its compliance. In any case the Ministry of Justice, Transparency and Human Rights departments responsible for the compliance with the reassurance are functioning”.[25]The letter goes on to give further detailed information about the New Wing of the Independent Women’s Detention Centre of Korydallos. We will need to refer to that further below. The letter also gives information about new legislation concerning punishments and inspection of prisons. There is also a section headed “Additional Questions”, in the last sub-section of which there is a response to the “Report of Mr Tsitselikis”, although no specific report is identified.[26]We have reproduced the whole of the English translation of the letter of 9 September 2014 in Appendix 1 to this judgment.[27]Thereafter the CPS, on behalf of the JA, sought further information from the Ministry of Justice and it responded in letters of 12 November, 14 November and 21 November 2014. This last document referred to an error in the letter of 14 November which had stated that the appellant would be kept in “Block F” of the Detention Establishment of Korydallos. The letter of 21 November said that the “right statement” was: “We do confirm that in the case that Mrs Ilia is detained she will be held in the New Branch of the Independent Women’s Prison Establishment of Korydallos and only, regardless of her penal situation (pre-trial detainee or convict)”, according to the assurances provided through document 72818/9-9-2014 of the Minister of Justice, Transparency and Human Rights”. (Emphasis in the original)[28]On the appellant’s side, further comments from Professor Tsitselikis and Professor Koulouris, each dated 20 November 2014, were put before the court for the hearing on 21 November 2014. We have already referred to the additional material that was subsequently supplied to the court as a result of the oral examination of the two professors at the hearing and thereafter. Article 3/prison conditions: the legal framework generally.[29]Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.[30]The basic legal framework relating to Article 3, prison conditions and requests for extradition to Category 1 European states has very recently been summarised in the judgment of this court in Mohammed Elashmawy v The Court of Brescia, Italy [2015] EWHC 28 (Admin) (“Elashmawy”)at [49] and [50]. For convenience we will set those paragraphs out here:
“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 metres 2 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 [9] of Florea v Romania [2014] EWHC 3538 (Admin)(“Florea”). See also the statements of the ECtHR in its “Pilot Judgment” concerning Article 3 and prison conditions in Toerreggiani and others v Italy (2009) App No 43517/09, especially at [76] and [77]. (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 [2013] 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 [7] of Krolik) is a useful test to apply on the question of whether the presumption had been rebutted.”
[31]Later in the same judgment this court noted the remarks in the judgment of Lord Kerr of Tonaghmore in the Supreme Court decision of R(EM) (Eritrea) v Home Secretary [2014] 2 WLR 409 at [41] and [58] in particular and also in the judgment of Blake J in Florea and the ECtHR decision in Tarakhel v Switzerland [2014] ECHR 1185. The effect of these remarks 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 one or more 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 with Convention obligations by a Council of Europe or EU state.

Assurances in the context of extradition

[32]In Armah v Government of Ghana [1968] AC 192 the House of Lords made some comments on the desirability of an English court accepting an undertaking by a foreign government that if a person were to be extradited, (in that case under the Fugitive Offenders Act 1881),he would be tried in accordance with a previous criminal procedure code, not the current one then in force in the state requesting extradition. Lord Reid and Lord Pearce expressed doubts on the desirability of an English court accepting an “undertaking” from a foreign government not to apply the existing laws to one of its nationals if extradited. Lord Upjohn thought it wrong in principle for such an undertaking to be proffered or taken into account and hoped that such undertakings would not be given in future. But Lords Morris of Borth-y-Gest and Pearson (who dissented in the result) considered that such an “undertaking”, which could only amount to a statement of present intent, could, in appropriate circumstances, be given and taken into account.[33]By the time that the President of the Queen’s Bench Division gave his judgment in Ravi Shankaran v The Government of the State of India [2014] EWHC 957 (Admin), (with which Blake J agreed), he accepted that the scale of migration and of extradition decision-making had made “undertakings and assurances not merely normal but indispensable in the operation of English extradition law”. The PQBD noted that undertakings (such as the one offered in that case not to oppose the grant of bail upon the first application by the extradited person) were regularly given and taken into account. The PQBD stated that there was no “restriction as a matter of law as to who may or may not give undertakings”. Whether undertakings would be sufficient to obviate the risk of a breach of the relevant ECHR obligation was a matter of fact: see [59].[34]Of course, an “undertaking” by a state not to apply existing law to a criminal process, but instead some previous law which was no longer the law in a requesting state, is very different in nature from an “undertaking” that a requested person will be kept in certain conditions that will be Article 3 compliant. Thus, at [65] of his judgment in the Ravi Shankaran case, the PQBD noted that the assurance proffered in that case was not one that “the normal provisions of the law of the requesting state will be departed from in this particular case”; nor were they assurances that “unlawful practices will not occur”. The court accepted the assurances which had been given in that case by the officer responsible for the conduct of investigations on behalf of the Central Bureau of Investigations of India.[35]In the Ravi Shankaran case the court referred to the decision of the ECtHR in Othman (Abu Qatada) v UK (2013) 55 EHRR 1. In that case the ECtHR was concerned with whether a person could be deported to a particular state (Jordan) where it was alleged that the deportee would be tortured upon his return. At [188] and [189] of the judgment in Othman the ECtHR had summarised its previous case law on whether reliance could be placed on an assurance of a receiving state concerning a deportee’s treatment upon return. The ECtHR stated: “[188]. In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human-rights situation in the receiving state excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances. [189]. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving state’s practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:(1) whether the terms of the assurances have been disclosed to the Court;(2) whether the assurances are specific or are general and vague;(3) who has given the assurances and whether that person can bind the receiving state;(4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;(5) whether the assurances concerns treatment which is legal or illegal in the receiving state;(6) whether they have been given by a Contracting State;(7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state’s record in abiding by similar assurances;(8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers;(9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human-rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;(10) whether the applicant has previously been ill-treated in the receiving state;(11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State”.[36]In the Elashmawy judgment, this court considered the approach to assurances concerning prison conditions that had been taken by the Divisional Court in a previous case (Badre v Court of Florence, Italy [2014] EWHC 614:
“Badre”). In Badre the English court was concerned with extradition and prison conditions in Italy, which is, of course, an EU state. In Badre the court concluded, on the facts before it, that the “presumption” that Italy would abide by its Article 3 obligations in relation to prison conditions was rebutted. In those circumstances the Court said, rightly, that it is for the requesting state to “dispel any doubts”: Saadi v Italy (2009) 49 EHRR 30. In Badre, as in several subsequent extradition cases that have come before the English courts, Judicial Authorities in Council of Europe or EU requesting states have furnished “assurances” or “guarantees” to the English court on where and in what conditions a requested person would be detained pending trial or imprisoned if he was surrendered pursuant to an EAW. The assurance or guarantee will, typically, state the institution in which the requested person will be detained and will also state that the conditions in which the requested person will be detained will be “Article 3 compliant”
. The assurance may or may not go into detail about the conditions in which the requested person would be held. By that means the JA intends to provide evidence to satisfy the English court that the risk of incarceration in conditions contrary to Article 3 will not arise in the specific case of the requested person, thereby “dispelling any doubts” in that case.[37]In Badre this court specifically adopted the ECtHR’s jurisprudence on “assurances” as summarised in its judgment in Othman.McCombe LJ said, at [48] of Badre, that questions (1), (2), (4), (6), (7) and (8) of [189] of the ECtHR’s judgment were “at least” of some assistance in the context of an assurance given by a requesting state concerning prison conditions and Article 3.[38]We respectfully agree with the court’s view in Badre that if the court has been satisfied that the “presumption” has been rebutted in a case concerning a Council of Europe or EU state, an “assurance” or “guarantee” is a legitimate means by which such a state can “dispel doubts” about whether there are substantial grounds for a belief that there is a real risk that a particular requested person who is surrendered pursuant to an EAW will be incarcerated in conditions that will breach his Article 3 rights. We also agree that the guidance given by the ECtHR in Othman at [188] and [189] can be suitably adapted to test an assurances or guarantees given by a JA or another responsible body of a Council of Europe or EU state in the context of extradition and Article 3/prison conditions.[39]It is important that the factors listed at [189] of Othman are not treated as a “tick-box” list. The circumstances of each individual’s case must be examined carefully. In general, however, we agree that the particular questions set out in Othman at [189] (1), (2), (4) and (6) and (7) are likely to be of some assistance to a court in deciding whether the assurance will, for the particular requested person, “dispel any doubts” about the risk of a breach of his Article 3 rights. We also think that question (3) is linked to (4) and so may also often be an important question.[40]As for question (8) in Othman at [189], it is important also to recall that we are dealing with cases in which the assurance will have been given by the JA or a responsible minister or responsible senior official of a government department of a Council of Europe or EU state. In our view there must be a presumption that an assurance given by a responsible minister or responsible senior official of a Council of Europe or EU state will be complied with unless there is cogent evidence to the contrary. This is consistent with the view of the Court of Justice of the European Union (“CJEU”) expressed at [83] of R(NS Afghanistan) v Secretary of State for the Home Department [2013] QB 103 at [83]. That case was concerned with the Common European Asylum System. However the CJEU emphasised that the objective of the EU is to create an area of “freedom, security and justice” and the EU is based upon “mutual confidence and a presumption of compliance by other member states with European Union law and, in particular, fundamental rights”. These statements reflect closely those made in paragraphs (5), (10) and (12) of the preamble to the Council Framework Decision of 13 June 2002 (“the FD 2002”), on which Part 1 of the EA is based. The evidence relied on by the appellants on the Article 3/prison conditions argument up to the time of the hearing on 21 November 2014 and arising out of that hearing.[41]The appellant’s case is that, apart from the New Wing of the Women’s Prison at Korydallos, the presumption that Greece would fulfil its Article 3 obligations in respect of prison conditions for the appellant has been rebutted on the evidence. It is argued that there is “systemic” overcrowding in the Greek prison system including women’s prisons; that there is a severe and chronic shortage of prison staff, which has resulted in violence between staff and prisoners and between prisoners, particularly in Korydallos Women’s Remand prison and, that, generally, conditions are very poor eg. there is a lack of heating.[42]For the appellant Mr Cooper further argues that the court should not accept that the assurance given by or on behalf of the JA will, in practice, be upheld, because of Greece’s failure to acknowledge that the underlying conditions in Greece are in breach of the minimum Article 3 standards required. Therefore, it is said, Greece would not consider itself as acting inconsistently with ECHR standards or be in breach of its obligations if it did not adhere to the terms of the assurance.[43]Mr Cooper has drawn the court’s attention in particular to reports by the CPT. The CPT had made a visit to Greece in January 2011 and it had found “systemic deficiencies” in the Greek prison system. In 2011 the CPT had recommended that the occupancy levels in cells of 9.5m 2 in Korydallos Women’s Remand Prison should be reduced from three or more to no more than two prisoners. The CPT visit in 2011 had resulted in the dissemination by the Council of Europe of a “Public statement concerning Greece” under Article 10 paragraph 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. That statement was also relied on by the appellant. It said that information that had been given to the CPT on previous occasions by the Greek authorities had proved not to be reliable. Moreover, despite the continuous requests from the CPT that the Greek authorities take action to tackle “fundamental structural issues” in Greek prisons and “severe overcrowding within most Greek prisons”, these issues had not yet been acknowledged and tackled. The statement noted that living conditions, staffing levels, aspects of health care and inter-prisoner violence were “especially worrying” at several institutions including Korydallos Women’s Prison (para 11).[44]In 2013 the CPT prepared a “Report to the Greek Government on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment” following a visit in April 2013. (“The CPT 2013 Report”). The CPT had visited Korydallos Female Remand Prison amongst the seven prison establishments it had inspected.[45]The CPT 2013 Report states, at paragraphs 6 and 93 that, in general, prisons are “excessively overcrowded and understaffed”. It states that prisons were reduced to a “warehousing role”. At paragraph 94 the CPT reiterated its recommendation to the Greek authorities vigorously to pursue their efforts to reduce prison overcrowding. At paragraph 98 the CPT noted that inter-prisoner violence and intimidation was a serious problem in all the prisons it had visited.[46]With regard to Korydallos Female Remand Prison, the CPT 2013 Report noted (at paragraph 102) that there were two wings with an official capacity of 150, in which 193 women were held of which 40 were convicted prisoners who were awaiting transfer to Thiva Female prison, which was where convicted females served their sentences. The CPT noted that conditions in Wing B cells were “cramped”. It also noted that custodial officers on duty at night “did not have immediate access to the cell keys” which were not kept on the wings. The CPT did not make any particular recommendation as regards the occupancy levels at Korydallos Women’s Remand Prison, but it asked for confirmation that the new wing of the prison was now operative. At paragraph 117 the CPT noted a lack of qualified nurses and it recommended (at paragraph 123) that at least two full-time qualified nurses.[47]Information about the new wing of the Women’s Remand Prison at Korydallos was given in the Greek Ministry of Justice’s letter to the CPS of 9 September 2014, which is set out in the appendix to this judgment. In summary, it states that the new wing consisted of 13 halls each with 25 square metres and a larger hall of about 38m 2. This gives a total area of about 363m 2. The letter says that this gave a capacity of 60 persons. The letter says that staff numbers will be increased to a total of 81 of both sexes. In the same letter, the Minister described the regime which would apply in the new wing. It said (among other things) that there was a daily allowance of 3.20 euros per prisoner for food. There was no shortage of medicines. If psychiatric or psychological services were needed they would be provided in the public hospital.[48]The proposed transfer of women prisoners to the upper floor of the new wing caused controversy because it seems that the ground floor was to house six men who are charged with offences who are also members of the controversial Greek political party “Golden Dawn”. A blog issued on 28 August 2014 by the “Prison Struggle Committee at Korydallos Female Prison” claimed that there were 85 female prisoners currently in the new wing and that this figure would double within a month because of further transfers. It made complaints about facilities in the new wing and alleged that the new wing yard would be used by the 6 male detainees, so that the women would have to go to their old wing yard for exercise.[49]Professors Tsitselikis and Koulouris gave evidence about prison conditions in Greece generally and about the position of women prisoners. On the general issue of overcrowding in Greek prisons (i.e. without differentiating between men and women) Professor Tsitselkis agreed that the Greek government was taking some legislative measures to tackle overcrowding. Thus some sentences of detention were being converted into fines (though only for prisoners who could afford to pay). Some changes had been made to the regime for the recall of prisoners. However, the Professor said, these measures had not prevented the total number of prisoners still increasing. Professor Tsitselikis confirmed that the legal minimum space in Greece for each prisoner was 6m 2.[50]In relation to women prisoners, Professor Tsitsekilis said that the total number of women prisoners in Greece was always around 550. Of these, about 450 were held at the large prison for females in Thiva. Apart from that prison and the women’s prison at Korydallos there were only small women’s prisons in Thessaloniki and Crete. Koydallos now housed convicted as well as remand prisoners. Women remand prisoners who were to be tried in Athens had to be held at Korydallos. The two professors agreed that the capacity of the upstairs floor of the New Wing was 60, but by the time of the hearing was already holding 70 women prisoners. A further 44 women were due to be housed in the new wing when the old wing of the women’s prison was closed down. Notwithstanding the shortcomings about which he gave evidence, Professor Tsitselikis agreed in cross examination that the conditions in the new wing of Korydallos did comply with the standards in Article 3. It was not entirely clear to us whether in this answer the Professor had in mind specifically the issue of overcrowding or the conditions more generally.[51]The issue of whether the assurance provided in the letter of 9 September 2014 would bind the Greek authorities and could be relied upon was dealt with in Professor Tsitselikis’ further report of 4 November 2014. He said that the assurance would not be binding. In summary he contends that:(1) women who are serving a custodial sentence (as opposed to those on remand) according to law must be held at the prison in Thiva. Ms Ilia would be detained in a dual capacity, but the execution of any sentence is immediate and would take priority.(2) The power to place a certain prisoner in a particular prison rests exclusively with the public prosecutor for the execution of sentences. In the case of a person detained on remand pre-trial, the decision would be taken by the prosecutor in conjunction with the investigating judge. Public Prosecutors and Judges are independent of the Executive.(3) Placement within a prison (such as Korydallos) is the responsibility of the Council of the Prison, which is a three person body comprising the Warden of the prison, a social worker and a special scientific adviser. This is an autonomous body.(4) The assurance is contrary to the Greek constitutional principle of equality since it would give the Appellant special and preferential treatment.(5) The Central Committee on Transfers could order the appellant to be transferred from the New Wing of Korydallos to another prison (for instance Thiva). The Minister can determine prison transfers only for reasons of national security or public order or national security.(6) In any case, the assurance by the Minister is of a political character and would not bind another government or minister if there was a change(7) For all of these reasons the Minister’s assurance is not binding on the bodies and people who will actually decide the location of the Appellant’s detention.[52]Very similar points were made by Professor Koulouris in his report dated 6November 2014. However, he acknowledged that some women were serving their sentences at Korydallos, the women’s part of which was not therefore exclusively for women remand prisoners. In his oral evidence Professor Koulouris confirmed that Korydallos women’s prison contained both remand and convicted prisoners. The determination of where the Appellant would be detained would be made by the public prosecutor for the Court of Appeal in Athens which was the court before which she had been convicted and the court before which she was to be prosecuted on the accusation matters. This was the same public prosecutor’s office as had issued the European Arrest Warrant. Professor Koulouris stated that, so far as the location of prisoners within a prison and transfers were concerned, the Ministry of Justice could give guidance, but each individual prison had its own responsibility. Professor Koulouris confirmed that the Director of Korydallos was aware of the assurances which the minister had given, but it was still her responsibility to place prisoners in particular places. Furthermore, changing events could lead to the need to move prisoners in a way that had not been expected. It was not, for instance, predictable that some Members of Parliament from the Golden Dawn party would be required to be detained and that a part (ie. the ground floor) of the New Wing of Korydallos (which had been expected to house exclusively women prisoners) would be used for them. Professor Koulouris agreed that a Public Prosecutor sat on the Central Committee for Transfers, but it was a different Public Prosecutor from the one who was responsible for the cases against the Appellant in the Athens Court of Appeal. The minister had a representative on the Committee (who, as it happened, was the civil servant who signed the letter of 12 November 2014). However, the Committee had to reach its own independent decisions.[53]At our suggestion, Professor Tsitselikis was not cross-examined on the issue of whether the assurances would be binding as it was recognised that his evidence did not go any further than that of Professor Koulouris.[54]The ministry responded to the two reports of the professors in its letter dated 12 November 2014. It stated that “these guarantees constitute institutional commitment at the highest level for which the prosecutors are informed and ensure for their implementation. The same applies to the Council of Prison and the Central Committee for Transfers.”[55]In addition to clarification about prison numbers and keeping the court updated on the political developments in Greece, Professors Tsitselikis and Koulouris also provided a further, un-elicited statement of 2 December 2014 which reported that the Greek Minister of Justice, Mr Athanassiou, had stated on 1 December that he had no power to decide on whether to grant educational leave to prisoners as that could only be done by the Council of the Prison where the person was detained. The professors regarded this statement as “living proof” of the principle that the Minister of Justice had no power to make decisions or intervene in matters regarding prisoners, when other bodies or organs were defined by the law as the competent ones. They submitted that the same principle must apply to the issue of the placement of a prisoner at a particular prison or the transfer from one prison to another.[56]On 1 February 2015 Professors Tsitselikis and Koulouris submitted a further joint statement. In summary they stated:(1) the New Wing at Korydallos Female Detention Facility was now fully operative and the “upper level” (certified capacity 60) was used exclusively for women prisoners.(2) On 29 January 2015, there were 105 women prisoners in the New Wing and 3 in the sanatorium. It was therefore “already overcrowded”.(3) The inmates were in dormitories of 6,7, 8, 10 or 12 in spaces of either 25m 2 or 35m 2. Free space within the dormitories was “minimal”.(4) The occupancy level is such that the personal space per inmate is now 2.5m 2 or less.(5) It was “at least questionable” whether the new Minister of Justice, when setting his policy priorities, would take into account the assurances given by the previous minister “which in any case have no binding force as they have no foundation based on law”.(6) Attention was drawn to the 24th General Report of the CPT for 2013-4, paragraph 42 which referred to “the phenomena of intimidation and reprisals” in various establishments, threats or actions by authorities against inmates such as transfer or placement in less favourable conditions of detention and assaults or other ill- treatments. Professor Tsitselikis stated that this verified and confirmed “the experience of a series of applicants imprisoned in Greece represented before [the ECtHR] who encountered both threats and arbitrary transfers which could not be justified when the Greek prison authorities were informed that a case brought to the for the prison conditions under question”.[57]The response letter of the JA dated 16 February 2015, which was signed by Mr I Stalikas, the Head of the General Directorate of Anti-Crime and Correctional Policy of the Ministry of Justice, Transparency and Human Rights of the Greek Republic, stated:
“…we notify you the following: according to the statistics available to our Service , the New Wing of the female Korydallos Detention Facility holds 108 female inmates, in a total available space equal to 363 square meters. Therefore, the corresponding space per detainee equals to 3.63 square meters. Our Service is aware of the fact and has already taken the necessary steps to quickly transfer the necessary number of detainees from the New Wing of the female Korydallos Detention Facility to the Elaionas Thebes female Detention Facility. The Service aims to address overcrowding issues and achieve the proper ratio of 6 square meters per detainee, as it is indicated in paragraph B subparagraph. 7 of our document no. 72 818 / 09-09-2014. In any case, the competent authorities shall continuously monitor and check the conditions of detention in the Detention Facilities of the country and take all the appropriate actions if necessary.”

The Article 3 point: the arguments of the parties

[58]Mr Cooper’s first submission on the Article 3 point is that it is imperative that the assurance given by the Greek authorities be reliable before any surrender of the appellant could safely be made. Founding himself on the ECtHR’s decision in Othman at [189], Mr Cooper said that reliability takes three principal forms. First, the court must be satisfied that the person giving the assurance can bind the requesting state. Secondly, the court must be satisfied that the terms of the assurance are sufficiently specific and detailed so that there can be confidence that the requested person would not suffer a breach of her Article 3 rights if surrendered. Thirdly, there must be a means of verifying the assurance.[59]Mr Cooper submitted that the assurance given in the letter of 9 September 2014 by the then Minister of Justice, Mr Charalambos Athanasiou, could not be relied upon in any of the three respects mentioned above. At the time that the submission was made at the hearing on 21 November 2014, Mr Cooper argued that all aspects concerning the detention of suspects before trial and of prisoners after trial rested with the Central Committee of Transfers, not the Ministry and, according to the evidence of Professor Koulouris the Minister’s assurance could not bind others. Subsequently, it was submitted that the new government and the new Minister of Justice would not in any event be bound by any assurance given by the previous government.[60]Mr Cooper submitted that, in any event, the assurance could not be relied upon for two main reasons. First, overcrowding in Greek prisons, for females as well as males, was endemic and the New Wing in the Female Prison at Korydallos would not solve that problem. Secondly, the chronic understaffing of prison establishments would not be solved and this gave rise to safety issues. Mr Cooper relied upon the evidence of Professor Tsitselikis who had interviewed prisoners.[61]On the basis of the joint report of Professors Tsitselikis and Koulouris dated 1 February 2015, Mr Cooper submitted that it was clear that the New Wing of the Female Prison at Korydallos was now overcrowded and, he submitted, it was likely to remain so in the near future and so fell below Article 3 standards. The 24th General Report of the CPT drew attention to its concerns about reprisals in prisons where inmates had been interviewed about conditions.[62]Mr Stansfeld submitted that the assurance was binding because it was given by a responsible Minister and it bound the requesting state as a whole. The assurance had to be treated as having the same quality as a Diplomatic assurance between states. He pointed out that the Judicial Authority had asked that the assurance be given by the Ministry of Justice and the Public Prosecutor’s office is aware of the possible consequences in extradition cases if the assurance is not met. Mr Stansfeld further submitted that whatever the problems might be in male prisons in Greece, there was no systemic problem of overcrowding in the female prisons and in Korydallos in particular. The CPT Report 2013 had not criticised staffing at Korydallos Female Prison in particular. In any case paragraph 4 of Part II of the assurance had specifically addressed staffing.

Article 3 point: discussion and conclusions

[63]The starting point in dealing with any argument concerning Article 3/prison conditions in the context of extradition to an EU requesting state is the presumption that the state will fulfil its ECHR obligations. That is obviously challenged in this case in relation to conditions in women’s prisons generally and in particular at Korydallos. Mr Stansfeld did not accept that the evidence rebutted the presumption. We are prepared to accept, for this case alone, that the evidence raises an “Article 3 issue” in respect of conditions in women’s prisons in Greece. We see no need to decide whether the presumption has been rebutted in this case in the light of our conclusions on the assurances given in the letters of 9 September 2014 and 16 February 2015.[64]On those assurances there are two questions that have to be answered. First, can this court rely on the authority that has given the assurances in the letter of 9 September 2014 and in the letter of 16 February 2015. The second is whether those assurances are sufficient to “dispel any doubts” in relation to whether there is a real risk that the Article 3 rights of the appellant were to be extradited and kept in detention (and if convicted) in prison on the terms set out in those assurances.[65]On the first point we are unimpressed with the distinction between the Minister on the one hand and the Public Prosecutor of the Athens Court of Appeal on the other. The letter of 9 September 2014 says expressly that this Public Prosecutor will ensure its strict compliance. It is that Public Prosecutor who is the Requesting Judicial Authority for the purposes of the extradition request. It is on his behalf that the correspondence is put before the Court. We are entitled to assume that the assurance is, in effect, given by him (or her) as well as the Minister of Justice Transparency and Human Rights. We also accept that there is no evidence to contradict the views of the two professors that, while the Public Prosecutor of the Athens Court of Appeal is able to identify the particular women’s prison in which the Appellant should first be detained (i.e. Korydallos), it is not within his power to determine in which part of the prison she should be held (i.e. the new wing or the old). That is a matter for the Council of the Prison. It was also the evidence of the two professors that subsequent movement between prisons was the responsibility of the Central Committee on Transfers. Again, it was unchallenged evidence that the Public Prosecutor who sat on this Committee was not the Public Prosecutor of the Athens Court of Appeal. While these features may mean that the Appellant would not have legal grounds in Greece to challenge a decision to detain her in a place other than the new wing of Korydallos, that is not the end of the matter. The Governor Director or Warden of Korydallos does sit on the Council of the Prison. While there are other members, his or her views are likely to be influential. Professor Koulouris confirmed that the Warden knew of the assurances which the Minister had given. These were given ‘at the highest institutional level’. The Minister (and, no doubt the Governor) would be aware of the grave repercussions for future extradition requests if the unequivocal assurance about the place of the Appellant’s detention was broken.[66]However, we have concluded that the argument that, as a matter of Greek law the assurances do not bind the Public Prosecutor, the Council of Prisons or the Central Committee of Transfer is not strictly relevant. The assurances are made by a responsible minister and official of the Ministry of Justice of an EU state. There is no evidence that the current Greek government disavows the assurance of 9 September 2014; indeed the terms of the letter of 16 February 2015 shows the opposite. Mr Cooper relied upon the fact that the CPT report of 2012 stated that facts given to it by the Greek authorities previously had not been reliable, but we do not regard that as sufficient evidence to say that we should find that these assurances will not bind the Greek authorities in this specific case. As Moses LJ said with respect to Spain in the case of Hilali v The Central Court of Criminal Proceedings No 5 of the National Court of Madrid [2007] 1WLR 768 at [77], we think that the courts should give 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 Framework Decisions of 2002 and 2009. It is a country which has and which applies the same international obligations as the UK. The assurances have been given at the highest institutional level. Unless there is some concrete, cogent, evidence that undermines the mutual trust upon which the whole EAW, indeed EU criminal justice co-operation venture is founded, then we have to accept that the assurances will be acted upon as stated.[67]There is no contrary evidence that does undermine the presumption that we can accept that those assurances will be binding. Mr Cooper relied upon the fact that in his report of 14 November 2014, Professor Tsitselikis in a report argued that the Greek government would be unaffected by a concern that future extraditions would be in jeopardy if the assurances given in this case were not observed. He noted that a number of EU countries have suspended returns of asylum-seekers to Greece because of the conditions in which they would then be detained. We find this analogy to be unpersuasive. The EU Dublin Regulation which attributes as between the Member States responsibility for examining an asylum-seeker’s claim imposes an obligation on Greece to accept their return in certain situations. The position with extradition is different. Whether the matter concerns a conviction or an accusation, when the Greek Judicial Authority issues a European Arrest Warrant it positively wants to have the requested person extradited. If it breaches the assurance in the present case, its prospect of realising such a request in the future will be very much diminished.[68]The second question is whether those assurances are sufficient to “dispel the doubts” that we assume are raised about Article 3 and prison conditions in Greece in relation to this appellant. The first assurance, in the letter of 9 September 2014, is very detailed and specific in setting out where and in what conditions the appellant would be kept if extradited. The second, in the letter of 16 February 2015, deals with the specific issue of possible overcrowding in the New Wing. We are prepared to accept that the letter sets out the up-to-date position there, so that even if there are 108 female inmates there at present, they have a personal space of 3.63m 2 per detainee, which is notably more than the level at which the ECtHR has stated will raise an Article 3 “issue”. We also note the proposed regime for prisoners set out in the letter of 14 September 2014, which contemplates that the inmates will be outside their cells for much of each day and there are educational and recreational facilities available to inmates as well as suitable provision for visitors. Under cross-examination Professor Tsitselikis agreed that the conditions in the New Wing did comply with the standards of Article 3 although we accept that it was not entirely clear whether this was in relation to the issue of overcrowding or conditions more readily.[69]We have borne in mind the factors set out in Othman at [189], in particular those at questions (1), (2), (3), (4), (6), (7) and (8), bearing in mind our view that, in relation to the last, we are entitled to rely on a presumption of mutual trust, as we have set out at [40] above. In all the circumstances, we accept that the assurances can be relied upon and, on the basis of them, we are satisfied that there is not substantial grounds for concluding that there is a real risk that the appellant’s Article 3 rights would be infringed if she is extradited and detained in the New Wing of Korydallos.

Article 8 point: the argument of the parties

[70]Mr Cooper accepted that the Article 8 argument could only apply to the “conviction” element of EAW 5, which concerned the 20 month prison sentence. As has already been noted, it was accepted before Rafferty LJ and Underhill LJ that only 24 days of that 20 month prison sentence remained to be served in practice.[71]Mr Cooper submits, however, that it would be a disproportionate interference with the appellant’s Article 8 right to respect for her private life in the UK to extradite her to Greece to serve the remaining 24 days of the 20 month sentence. He argues in particular that when conducting the “proportionality” exercise for Article 8 purposes, this court should take into account two periods when the appellant has been on curfew. The first period, during which the appellant has been on a 9 hour a day curfew and monitored with an electronic tag ran from 6 December 2012 to 28 February 2013. In respect of this period Mr Cooper reminded the court that if this were a domestic case, a sentencing court would have to take account of the period of 9 hour curfew by deducting half the period on curfew from the sentence imposed: Criminal Justice Act 2003 section 240A. The second period ran from 1 March 2013 to date, during which time the appellant has been on an 8 hour a day curfew. Mr Cooper submitted that case law demonstrated that the fact of being subject to this second curfew period could be a relevant factor to take into account when assessing proportionality for Article 8 purposes.[72]Mr Stansfeld accepted that, in theory, this court could take both periods of curfew into account and could conclude that it would not be proportionate to extradite the appellant in respect of the “conviction” element of EAW 5. However, he emphasised that the two curfew periods were only one element to be taken into account in deciding whether extradition in respect of the “conviction” element would be disproportionate to the appellant’s Article 8 right to respect for her private life. In truth, the appellant had very little “private life” in the UK. Mr Stansfeld added that if the appellant were subsequently convicted on the charges the subject of the “accusation” element of EAW 5, then it would be open to the Greek sentencing court to consider the fact that the appellant had been subject to a curfew in the UK when deciding on any sentence to be imposed. Conclusion on the Article 8 issue.[73]The starting point is that this appellant has been sentenced in criminal proceedings in Greece from which she deliberately absented herself and that, Article 8 rights apart, there is no reason why she should not be surrendered to serve the balance of her sentence. The “proportionality” principles are very well established in the two decisions of the Supreme Court of Norris v USA (No 2) [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic Genoa [2013] 1 AC 338. The basic position is that there is a constant and weighty public interest in extradition. That weight is greater if the crime is a serious one. Mr Cooper does not suggest that the crime in this case was trivial. Against that public interest there is to be balanced the private life of the individual. In this case there is no family life to consider nor are there any interests of minor children to take into account. The test is a proportionality one, not an “exceptionality” one. The fact that the Article 8 argument will only “exceptionally” succeed is just an acknowledgement of the fact that it will be only in rare cases, on their facts, that the proportionality balance will be struck in favour of the person raising the Article 8 argument.[74]In the present case it is this court which has to undertake the proportionality exercise because the Article 8 argument was not advanced before the DJ. In our judgment the fact that there is only a comparatively small period of the sentence left to serve is the only factor that can be put in the balance against the very heavy public interest in extraditing a requested person to serve an outstanding sentence. True it is that the appellant has been the subject of a curfew of one sort or another for two long periods having fled to the UK. But this appellant was a fugitive from justice in Greece in respect of allegations which this court has, in the two judgments it has now made, held that she ought to be extradited. She has obviously been regarded as a “flight risk”. We have no doubt that the curfews were imposed, in place of a remand in custody, to deal with that “flight risk”. There is no logical reason why the curfew in the UK should be “attributed” to the “conviction” aspect of EAW 5. To do so would be to disregard the obvious reason for its imposition, which applies to both the “conviction” and the “accusation” elements of the EAW. If the appellant exercises her right to a retrial of the offence for which the “conviction” element of EAW 5 relates, then doubtless she can argue that any penalty imposed should take account of the time she has spent under curfew in the UK. But we think that that is a matter for the Greek courts to consider; we should not pre-empt any decision by the requesting state on that point.[75]Accordingly, in this case we think that the fact of the curfews is not, in itself, sufficient to result in a bar to extradition on Article 8 grounds. Overall, this is not one of those rare cases where Article 8 will be bar to extradition to serve a sentence.[76]We therefore dismiss the Article 8 appeal.

Disposal

[77]Having rejected the Article 3/prison conditions argument and the Article 8 argument, the appeal must be dismissed.

Cited in 16 later judgments

and 7 more of the most senior