Mohammed v Comarca De Lisboa Oeste, Instancia Central De Sintra, 1a Seccão Criminal, Portugal [2017] EWHC 3237 (Admin)

Case No CO/2675/2017[2017] EWHC 3237 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/12/2017
Before
LORD JUSTICE BEATSONSIR WYN WILLIAMS
Between
YASER MOHAMMEDAppellantCOMARCA DE LISBOA OESTE, INSTANCIA CENTRAL DE SINTRA, 1A SECCÃO CRIMINAL, PORTUGALRespondent
Mr A Bailin QC and Mr J Stansfeld (instructed by Lawrence & Co) for ClaimantMs F Iveson (instructed by the Crown Prosecution Service) for DefendantHearing Hearing date: 7 November 2017
Judgment

Introduction:

[1]This case concerns prison conditions in Lisbon Central Prison in Portugal. The appellant, Yaser Mohammed, appeals against the decision of District Judge Devas in the Westminster Magistrates’ Court on 1 June 2017 ordering the extradition of the appellant pursuant to a conviction European Arrest Warrant (“EAW”) issued on 28 January 2016 by the respondent, the Public Prosecutor of the District of West Lisbon and signed by Judge Susana Marques Maderia. The EAW was certified by the National Crime Agency on 21 February 2016. Further information dated 29 September 2016 and 2 November 2016 provided by the respondent in response to requests by the executing authority was before the District Judge.[2]The respondent requests the surrender of the appellant to serve a sentence of four and a half years imprisonment for four offences of fraud which he admitted. Before the District Judge the appellant unsuccessfully challenged his extradition on a number of grounds. Only one of those grounds is pursued in this appeal, filed on 6 June 2017. It is that the conditions of detention in Lisbon Central Prison (“Lisbon Prison”), where the appellant maintains that he would be likely to be detained, mean his extradition would not be compatible with his rights under article 3 of the European Convention on Human Rights (ECHR) which prohibits inter alia “degrading treatment or punishment”.[3]The respondent’s notice, dated 15 June 2017, did not challenge the claim that if the appellant is returned to Portugal he would be likely to be detained in Lisbon Prison, and the case below proceeded on that basis. Permission to appeal on the article 3 ground was granted by Nicola Davies J on 7 August 2017.[4]In an order made on 27 September 2017, Laing J directed that the case be listed before a Divisional Court and extended the appellant’s representation order to include leading counsel. As a result of this, on 16 October 2016, the respondent made a request to the Portuguese authorities for further information. It did so on a pragmatic basis in case the court had concerns about the conditions in Lisbon Prison but without conceding such information is needed. I set out the questions and deal with the submissions made on this matter at [36] – [37] below.

The factual background:

[5]The appellant, born in Iraq, is now a citizen of the United Kingdom. Box (e) of the EAW states that it relates to four offences arising out of the appellant’s fraudulent use of credit cards, identity theft, and forgery or counterfeiting in Portugal in January and February 2012 contrary to respectively Article 217(1), Article 2(1) and 5(a) with reference to Article 202(a), and Article 256(1) of the Portuguese Penal Code.[6]The appellant was arrested on 17 February 2012 and held in pre-trial detention for 17 months between 18 February 2012 and 8 July 2013 when he was released on bail. The general position in Portugal is similar to that in this jurisdiction: time served in pre-trial detention is deducted from a sentence of imprisonment. The further information stated (paras (V), (VI) and (VII)) that the appellant confessed during the trial hearing to all the facts and that he was present during all stages of the hearing with the exception of the reading of the judgment, from which he was absent without justification. That hearing was on 15 July 2013, shortly after his release on bail, and it was at that hearing that he was sentenced.[7]After the sentence was pronounced, the appellant did not present himself to serve the remainder of his sentence. He claims that he was unaware of the sentence and of the fact that he was supposed to inform the authorities that he was leaving Portugal. In his proof of evidence, he also said that he was not entirely sure why he had been released and thought it was the end of the trial period. But, when cross-examined, he stated that when he was released from prison an officer told him that some of the charges had been dropped, and he thought that he had served his sentence.[8]The appellant stated in his proof that Lisbon Prison is really dangerous and it is highly likely that if he is extradited he will go back to it. He stated that he was threatened and robbed many times; that they were only given cold food, there were no light bulbs in the cell; no heating system throughout the winter, and rats coming out of the toilets and sometimes in the cells.

The legislative framework:

[9]Part 1 of the Extradition Act 2003 (“the 2003 Act”) implements the EU Council's Framework Decision on the European Arrest Warrant and Surrender Procedures (2002/584/JHA, 13 June 2002, hereafter “the Framework Decision”). The Framework Decision has the status of a Directive and the courts in this jurisdiction must seek to interpret the 2003 Act in conformity with EU Law. The decisions of courts in this jurisdiction in relation to EAWs are subject to the jurisdiction of the Court of Justice of the European Union (“CJEU”): see Puceviciene v Lithuanian Judicial Authority, Andreas Cornas v German Judicial Authority and Savov v Czech Judicial Authority [2016] EWHC 1862 (Admin) at [4] and Joint Cases C-404/15 and C-659/15/PPU Criminal Proceedings Aranyosi and Caldarau [2016] QB 921 (hereafter “Aranyosi”).[10]The Framework Decision makes provision for simplified and accelerated procedures where the extradition from the United Kingdom is sought of a person convicted in EU Member States and Gibraltar (referred to in the 2003 Act as "category 1 territories").[11]I first refer to the material recitals to the Framework Decision:
“(6) The [EAW] provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation.” … “(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty …”. … “(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union …” “(13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”
[12]Article 1(2) of the Framework Decision provides that “Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision”. Article 1(3) provides thatthe Framework Decision “shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on the European Union”.Article 2 deals with the scope of the EAW and provides that such a warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or detention order for a maximum period of at least 12 months, and where the sentence is of at least 4 months.[13]In the context of this appeal, the material provisions of the 2003 Act are sections 21, 26 and 27. They provide:
“21 Person Unlawfully at Large: Human Rights (1) If the judge is required to proceed under this section (by virtue of section 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c.42). (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued. 26 Appeal against extradition order (1). If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order. … (3). An appeal under this section (a). may be brought on a question of law or fact, but (b). lies only with the leave of the High Court. … 27 Court's powers on appeal under section 26 (1). On an appeal under section 26 the High Court may— (a). allow the appeal; (b). dismiss the appeal. (2). The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3). The conditions are that— (a). the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b). if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge. (4). The conditions are that— (a). an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b). the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c). if he had decided the question in that way, he would have been required to order the person's discharge. (5). If the court allows the appeal it must— (a). order the person's discharge; (b). quash the order for his extradition.”
[14]Article 3 of the ECHR provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Article 4 of the Charter of Fundamental Rights of the European Union makes the same provision. These prohibitions have been described by the Grand Chambers of the ECtHR and the CJEU as “absolute” and no derogation is possible from them: see Bouyid v Belgium Application No. 2338/09 of 28 September 2015 at [81] and Aranyosi at [85].[15]In Aranyosi, the CJEU decided that the consequence of the execution of an EAW must not be that the requested person will, if returned, suffer inhuman or degrading treatment. At [88] – [89], [91] – [92], [95] and [98] the CJEU set out the procedure that must be followed where the judicial authority of a member state is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the state that has issued the EAW. Stage 1 of the procedure involves determining whether there is such a risk by assessing objective, reliable, specific, and properly updated evidence. I deal further with the the type of evidence and what assessment is required at [50] – [51] below. A finding of such a risk cannot lead, in itself, to a refusal to execute the EAW. Where such a risk is identified, the court is required to proceed to stage 2. Stage 2 requires the executing judicial authority to make a specific assessment of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk. To that end it must request the issuing authority to provide as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained. Stage 3deals with the position afterthe information is provided. If in the light of that, and of any other available information, the executing authority finds that, for the individual concerned, there is a real risk of inhuman or degrading treatment, execution of the warrant must be postponed but cannot be abandoned.

The judgment below:

[16]As I have said, before the judge extradition was resisted on a number of other grounds. The first two were that the EAW did not satisfy section 2 of the 2003 Act and did not disclose extradition offences as required by section 10 of the 2003 Act. The third was that the appellant’s extradition would not be compatible with his rights under ECHR article 8. It is only necessary to consider the parts of the judgment below that deal with the article 3 challenge, based on conditions in Lisbon Prison, with which we are concerned.[17]After setting out article 3, the judge stated at [14] of his judgment that the following principles emerged from the decision of this court (Sir John Thomas P and Globe J) in Krolik & Ors vSeveral Judicial Authorities of Poland [2012] EWHC 2357 (Admin), [2013] 1 WLR 490 (“Krolik”): i) 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; ii) 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; iii) The presumption in (1) is of even greater importance with EU member states because there is a strong, albeit rebuttable, presumption that such states will abide by their obligations under the ECHR. iv) The evidence needed to rebut the presumption and to establish a breach of article 3 by an EU member state will have to be powerful.[18]The evidence before the District Judge included that given by the appellant and a report of the Portuguese Ombudsman following a visit to Lisbon Prison on 19 January 2016. I set out or summarise the material parts of the Ombudsman’s report later in this judgment. In summarising the appellant’s evidence, the judge (at [7]) stated that in his proof the appellant gave details of “his remand in Portugal … and, in particular, the difficulties he faced as a result of the conditions in the prison” and that “he believed that if extradited, he would return to the same prison”. When cross-examined, the appellant stated that “he had not exaggerated the conditions in the prison in which he was held” but “accepted that he had not talked to his lawyer in Portugal about the situation”.[19]The judge dealt briefly with the compatibility of the appellant’s extradition with his rights under article 3 of the ECHR. He stated (at [21]) that counsel who appeared on behalf of the appellant below “has given no submissions regarding s. 21 of the Act but I will deal with what I assume from the RP’s evidence to be the issues under article 3 and 8 accordingly”. At [22] he stated:
“I have further considered the evidence of the RP [Requested Person] regarding the prison conditions during his remand in Portugal. I have also had sight of the somewhat whimsical Report of a visit to Lisbon prison in January 2016. In very short terms, I am perfectly satisfied that the RP has failed to provide any cogent evidence that would even come close to rebutting the presumptions suggested in Krolik.”
[20]After considering and rejecting the submissions that extraditing the appellant would be a disproportionate interference with his article 8 rights, the judge ordered his extradition.

The Reports that are before the Court:

[21]I have referred to the report of the Portuguese Ombudsman following a visit to Lisbon Prison on 19 January 2016 that was before the District Judge. This court also has before it a number of earlier reports. Chronologically these are; reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) following visits to Portugal between 7 and 16 February 2012 and 13 to 17 May 2013, and the responses of the Portuguese Government to those reports, and a report by José de Faria Costa, the Portuguese Ombudsman, in his role as the National Preventative Mechanism (“NPM”) about conditions at Lisbon Prison, based on a visit to the prison on 22 September 2015 (“the NPM Report”). The Portuguese Ombudsman was designated as Portugal’s NPM on 9 May 2013 following its ratification of the Optional Protocol to the United Nations Convention against Torture. The functions of the NPM include regularly examining the treatment of persons deprived of their liberty, and making recommendations to strengthen their protection against treatment contrary to article 3 of the ECHR.[22]When giving the appellant permission to appeal, Nicola Davies J also gave him permission to rely on the NPM Report which Mr Bailin QC on his behalf stated had been received by his legal team on 19 June 2017. As to the CPT reports, Mr Bailin accepted that the threshold for admitting evidence which was available at the time of the extradition hearing was high, but submitted that this evidence fell within the latitude recognised by this court in Szombathely City Court and others v Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All E.R. 324 at [34] per Sir Anthony May PQBD where “what might otherwise be a breach of the [ECHR] may be avoided by admitting fresh evidence, tendered on behalf of a defendant”. Ms Iveson, on behalf of the respondent, did not object to the admission of the CPT reports, but submitted that they all pre-dated the report of the Ombudsman following his visit to the prison on 19 January 2016 which was before the judge, and they do not support a departure from his decision.[23]I shall deal with these chronologically. The first report is that of the CPT following its visit in February 2012. In the section on conditions in prison it is stated:
“50. Lisbon Central Prison was in a state of dilapidation, made worse by the chronic overcrowding in the establishment. Most of the standard 9m² cells, initially designed for single occupancy, were accommodating two or three prisoners. The conditions were particularly poor in the basement areas of the prison; for example, the cells in the admission unit in the basement of D wing had damp walls, with flaking paint and crumbling plaster, and were cold (13°C); many of the windows were missing one or more panes of glass. The mattresses were generally thin, worn and dirty. The floor-level toilets in many of these cells emitted a foul stench and inmates complained about rats coming out of them. The situation in the basement areas of B, C, D and E wings of the prison could be considered as akin to inhuman and degrading treatment. Material conditions in other parts of the prison were not much better, with cells generally in a state of disrepair. The toilets in the cells were not partitioned, which was particularly degrading for those inmates sharing a cell with one or two other persons. Many cells throughout the prison did not possess any artificial lighting which plunged the cells into total darkness after sundown (circa. 6.30 p.m.), and in a number of cells inmates had manufactured their own makeshift lighting devices. Further, in general, the call bells did not function. Only the basement unit of F Wing, which had been completely renovated in 1999, offered decent material conditions. In 1999, the CPT had been told that the prison would be closed down. Thirteen years later it remains in service and is still operating well over capacity and holding many prisoners in very poor conditions. The act of depriving someone of his or her liberty carries with it the responsibility for detaining that person in conditions which are consistent with the inherent dignity of a human being; as far as many prisoners in the Lisbon Central Prison are concerned, the authorities have failed to live up to that responsibility. Assuming Lisbon Central Prison is not to be closed in the near future, urgent action should be undertaken to renovate the different wings, starting with the basement areas mentioned above, to the same standard of conditions as those found in the basement of F Wing. The CPT recommends that the Portuguese authorities take urgent steps to improve the material conditions in Lisbon Central Prison in the light of the above remarks, starting with the basement units. To this end, the Committee would like to receive a timetable for the upgrading of the different areas of the prison. Further, the number of inmates held in the prison should be reduced so as to avoid placing three prisoners in the 9 m² cells; preferably, these cells should be used for single occupancy. The toilet in any cell holding more than one prisoner should be fully partitioned to the ceiling.”
[24]The response of the Portuguese Government to the 2012 report stated that "the maintenance of the premises and the improvement of conditions [in Lisbon Prison] is a major constant concern". There was "a permanent alert" to problems of dilapidation, many of which were caused by inmates themselves and that in 2012 516 light bulbs were replaced and 200 new mattresses and 600 sheets had been bought.[25]The CPT made another visit to Portugal in May 2013. Its report stated (at paragraph 5) that “regrettably, the 2013 visit brought to light that very limited progress that had been made on certain areas, in particular as regards the situation found at Lisbon Central Prison in terms of both material conditions and the treatment of inmates by prison staff”.[26]The section on conditions of detention in Lisbon Central Prison stated:
“20. As regards material conditions, the delegation noted that a number of the inmates had new or clean bedclothes and mattresses. Further, following the CPT’s recommendation in the report on the 2012 visit, a maximum of two prisoners were now being held in the standard 9m² cells in the establishment’s main building. According to information gathered by the delegation, this last measure was only implemented a few days before the CPT’s visit. The Committee welcomes these improvements and trusts that they will be maintained. However, the mattresses in certain wings – in particular in the basement of C wing – were dirty, very thin and falling apart. Moreover, the material conditions in general had not improved since the 2012 visit. The establishment continued to be in an advanced state of dilapidation. In different wings, the delegation found cells with broken windows and a foul odour emanating from the toilets. Further, inmates stated that their cells were particularly cold during winter months due to the structural deficiencies of the building (broken windows, no heating system). 21. In their response to the 2012 report, the Portuguese authorities indicated that reviews were regularly carried out in the establishment to identify deficiencies and rectify the most urgent ones, including changing light bulbs. However, many cells in the prison continued to be deprived of any artificial lighting, which plunged the cells into total darkness after sundown and left them gloomy on cloudy days. As an illustration, the delegation visited a cell where the prisoner used his television to illuminate his cell at night. In a number of other cells, inmates had manufactured their own makeshift lighting devices to replace the missing lamp socket. All cells should be provided with safe, functioning artificial lighting. Further, the delegation again noted that toilets in multi-occupancy cells were still not partitioned. The CPT considers that the benefits of greater privacy and improved hygiene offered by a partition outweigh any reduction in the space within the cell. Material conditions remain especially poor in the basement areas of B, C, D and E Wings where cells were damp with crumbling plaster. Inmates held in these cells indicated the presence of rats. In sum, the conditions have not improved in these areas and could be considered as amounting to inhuman and degrading treatment. These cells should not be used until they have been properly refurbished. 22. As mentioned above, the authorities stated that they were considering the possibility of buying back the Lisbon Central Prison and had no intention of closing the establishment in the near future. Therefore, the CPT reiterates its recommendation that vigorous action be undertaken to renovate the different wings, starting with the basement units mentioned above. In this context, priority should be given to repairing broken windows, providing artificial lighting in every cell as well as fully partitioning the toilets in all the cells used by more than one person. The Committee would like to receive a detailed timetable for the upgrading of the different areas of the prison.”
[27]The response to the 2013 report was similar to the response to the 2012 report. It referred to painting cells and the control of rats and cockroaches as well as the acquisition of more new mattresses and linen. As to the recommendation that the toilets in cells be partitioned, both responses, while welcoming the recommendation, stated that the solution was problematical because partitioning with walls would reduce the remaining space in the cells, and that where cells were wide the WCs had been fully partitioned.[28]The Portuguese Ombudsman's report following his visit in September 2015 as part of the NPM made three recommendations pursuant to Article 19 of the Optional Protocol to the UN Convention against Torture. They were: “a) The evacuation of the basement of the main building of the Lisbon Prison in the shortest time possible, giving priority to wing "E"; b) To perform significant rehabilitation works of the living and common areas located on the basement of the referred building, in order to provide good habitation conditions, namely to perform the works intended to benefit the condition of the floor and to reduce dampness and cold in the cells, especially in wing "E". In the sphere of this operation, recovery is required of the night communication system in all wings and to repair the toilets, as well as the lighting systems which, by being incomplete or damaged, are not operational; c) As alternative, and in case the structural features of the building don't allow an intervention with significant and long lasting effects, the final closure of the basement.[29]Section II of the report stated:
“The admission sector functions in the basement of wing "D", with cells of double occupancy. In one of the visited cells we were able to observe that there was a glass missing in one window. In another, we noticed the lack of light bulb, which means that at night the inmates can't have artificial lighting. The floor of the cells is in poor shape. Some toilets "turkish style" are in deficient conditions of cleanliness. The communication system was not operational. One of the inmates reported having already needed assistance during the night, having to knock on the door of his cell, making noise to call the attention of guards, but without any result. The cells show signs of dampness and the characteristic smell of a wet environment. The safety conditions are the same as in the other wings. The cellar in wing "E" has the worst conditions of habitability, with the floor quite degraded, the cell walls with high dampness and saltpetre and unpleasant smell.”
[30]The conclusion of the report stated:
“…[W]e observed that the sharp deterioration of the habitability conditions arising from the bad structural conditions of the Prison of Lisbon, are contrary to the dignity of inmates and those who work there. The respect for human rights of persons deprived of liberty is an imperative of civilizational development and, specifically, of the goals of the Optional Protocol to the Convention against torture and other penalties or Cruel, Inhumane and Degrading Treatment, constituting an obligation for States. The experience, yet temporarily limited, in a cold, damp. dirty space - resulting from the inadequate and specific conditions of habitability - shows the subjection of the prison population to an inhumane and degrading treatment, placing at risk the integral respect for the rights of the persons kept there.”
[31]The most recent report before the court is the report of the Ombudsman following his visit in January 2016 that was before the District Judge. The translation suggests it was written in rather flowery style that differs from the approach in official reports in this country. But what is relevant is the content, not the style. The report records that the prison, with a capacity for 887 prisoners held more than 1300 at the time of the visit. There were complaints about the lack of light bulbs in the cells and the quality of the food. The former was said to be largely the result of prisoners taking them and selling or exchanging them.[32]The report described the cells in the basements, called "Baixos". Paragraph V stated of those in "ward" or “zone” E:
“The cells that make up these "Baixos" feature small sized windows, situated on the top of a wall. The little natural light that enters these compartments, allied to the excessive humidity that is felt throughout the building, makes the air in the threshold (un)breathable. Saturated. Heavy. Inhospitable. The walls of the few square meters that are shared by three people (who sleep in a bunk bed and a bed) are in poor condition, requiring repairs which are not enough with just painting. And the toilet bowl, placed in the opposite corner of the beds and between the sink and the door, is deprived of any sensory obstacle - especially visual - between the user and all other persons who are in the cell. The detainee is limited in his space but should not, however, be stripped of his intimacy, which, given the conditions mentioned, is not the case in those compartments.”
[33]Paragraph VII stated that all inmates who come to Lisbon Prison begin their stay in Baixos cells in zone D where the cells have similar characteristics to those in Zone E. It also stated:
“… [G]iven the high humidity, poor lighting and the low temperatures that was felt, it won't be difficult to imagine that maybe the poor conditions of habitability of those spaces are less then sufferable, far from being humanly supported with two or three simple blankets. It is also disturbing the constant noise that, during the day they are forced to listen from the flow of running water in the bathrooms, located on the top floor.”
[34]Paragraph X stated that the disciplinary cells are located in the Baixos area of "ward" C. They are individual cells and "not infrequently the inmates behave so inadequately to purposely serve some days of their punishment with more privacy."[35]The Report's conclusion in paragraph XVI stated that there are two urgent options. The first is "to make another Prison of Lisbon from scratch". The second is to "carry out much extended works". It then stated:
“Human dignity, the uncompromising defence of basic fundamental rights - and, in this sense, because rights can never be basic - the compassion for others, the respect for others cannot - and should not - allow, notwithstanding all the economic or financial crisis, people, although in compliance with due and legitimate deprivation of liberty, to be in situations objectively as inhumane.”

The October 2017 Request for further information:

[36]I referred at [4] above to the request on 16 October 2017 to the Portuguese authorities for further information. The issuing judicial authority was asked the following questions:(1) Will the appellant be held in Lisbon Prison for his sentence;(2) if so, while detained in Lisbon Prison, will the appellant have at least three square metres of personal space at all times, as required by the Grand Chamber of the ECtHR in Muršić v Croatia Application No 7334/13, 20 October 2016;(3) if detained in any other prisons, whether the appellant will have at least three square metres of personal space at all times, as required in Muršić v Croatia; and(4) whether the issuing judicial authority can guarantee that when the appellant is detained in prison in Portugal he will not be subject to material conditions which are inhuman or degrading.[37]Ms Iveson, on behalf of the judicial authority, informed the court at the outset of her submissions that the response received by the Crown Prosecution Service on the evening before the hearing was that the judicial authority could not say where the appellant would be held because, as a matter of the separation of powers in Portugal, a different authority was responsible for that matter.

Analysis:

[38]Mr Bailin QC, on behalf of the appellant, submitted that the judge erred because, although there is no pilot judgment by the ECtHR or the CJEU in relation to conditions in Lisbon Prison, the evidence before the judge showed that there are substantial grounds for believing there is a real risk that the conditions of detention there would breach ECHR article 3 so that the strong presumption that EU member states will abide by obligations under the ECHR is rebutted. He submitted that this court, which must also address the issue, also has the additional evidence in the earlier reports by the CPT and the Portuguese Ombudsman in his capacity as NPM.[39]It is argued on behalf of the appellant that the evidence shows that between 2012 and 2016 there were four visits by independent monitors which concluded that conditions in Lisbon Prison’s basement cells were such that they would be considered as amounting to inhuman and degrading treatment and that the cumulative effect of the four reports shows that there is, now, a real risk of treatment that breaches article 3 which suffices to rebut the presumption. Mr Bailin referred in particular to the fact that the recommendations either to close or substantially renovate the basement cells had not been heeded and that the steps which had been taken, by the provision of light bulbs, blankets and some painting, showed that there was no substantial difference from the conditions found by the CPT in their visits in 2012 and 2013.[40]Mr Bailin also relied on the contents of the report of the friendly settlement in the case of Eugen Bokar, one of the applicants in Bokar and Dragan v Portugal (Application Nos. 52909/15 and 56503/15), who had been detained in Lisbon Prison from 15 March 2012 until 2 July 2015 in conditions which Mr Bailin submitted were materially similar to those described by the CPT and the Portuguese Ombudsman. The settlement was made after the application had been declared admissible and it was therefore considered by the court under rule 62. Mr Bailin submitted that the settlement agreement is clear evidence that the Portuguese authorities have paid compensation rather than submit to judgment on whether the conditions under which Mr Bokar was detained in Lisbon Prison violated article 3 of the ECHR.[41]He also relied on the decisions of the Amsterdam District Court which initiated the Aranyosi procedure against Portugal with respect to Lisbon Prison and has postponed decisions upon requests for extradition pending additional information from the Portuguese authorities as to the prison in which the persons whose extradition were being sought would be held following their extradition.[42]The first decision was on 20 December 2016 in Case 13/751208-16. It stated that in a previous case the Amsterdam District Court had established on the basis of the report of the CPT and a report of the Portuguese Ombudsman that in general terms there was a real danger that persons detained in Lisbon Prison would suffer inhumane and degrading treatment. That decision also stated that additional information had been requested of and provided by the Portuguese authorities but that it was not possible to know from the further information in which prison the requested person would be housed. The decision was that the extradition decision would be postponed.[43]The second decision was on 9 May 2017 in Case 13/751054-16. In that case, information as to whether the individual would be detained in Lisbon Prison was requested from the Portuguese authorities. The third decision was one dated 18 May 2017. In the third decision, the Amsterdam District Court concluded that it understood from the information provided by the Portuguese authorities that those extradited from the Netherlands would be held in Lisbon Prison for a minimum of 8 to 15 days and up to 21 days. There was a further decision in the same case, 13/751520-16 in September 2017 postponing the extradition decision. The reason for the postponement was that the response from the Portuguese authorities that there would be no detention in “wards”, i.e. zones, regarded as inadequate by the Portuguese Ombudsman and the CPT, was not clear and did not state that requested persons would not be detained in basement cells.[44]On behalf of the judicial authority, Ms Iveson relied on the strong although rebuttable presumption that EU member states will comply with their ECHR commitments, see Krolik at [4]-[5] and that clear and compelling evidence is required to rebut that presumption which would need to be “something approaching an international consensus”. She also relied on the decision in Brazuks v Prosecutor General’s Office Republic of Latvia [2014] EWHC 1021 (Admin) (Moses LJ and Collins J) in which Collins J stated at [6] that:
“it will be very difficult for any requested person to establish such a risk if the ECtHR has not been persuaded that a systemic problem or similar dysfunction exists.”
Ms Iveson relied on the lack of a pilot judgment and the fact that the court was being asked to examine a specific case about a specific prison.[45]As to the 2016 Ombudsman’s report, Ms Iveson submitted that what was notable was that it did not disclose the same number of problems as those that had been raised by the CPT in 2012 and 2013. It was not in such stark terms as the 2015 NPM report and there have plainly been improvements. She noted that only one of the ten appeals against extradition to Portugal since October 2012 which she had identified raised an article 3 point and in that case, Joaquim Braz v Court House of the District of Lisboa – Noroeste, Portugal [2014] EWHC 1329 (Admin), the point was effectively abandoned.[46]Ms Iveson submitted that because the allegations made were never investigated by the court in the case of Bokar and Dragan, significant weight should not be placed upon the compromise. The fact that a settlement was reached does not mean that the facts alleged were accepted and the basis upon which the settlement was reached is not known. She also submitted that there was a danger of relying on the decisions of the Amsterdam District Court because this court did not have full information about how that court operates and because this court has all the evidence the Appellant wishes to put forward and should make its decision on the basis of that evidence.[47]I am conscious of the high standard of evidence required to rebut the presumption that EU member states will comply with their ECHR commitments and that in this case there is no pilot judgment. That said, the 2016 Ombudsman’s report does raise factors indicating the possibility of a real risk of article 3 harm, in particular overcrowding, particularly because the rooms with only a few square metres were being shared by three prisoners and the space included unpartitioned toilets in some cells. Although the style of the report is not as one would expect from a public authority in this country, I do not consider that its style should have detracted from the concerns it raised as it appears to have done for the district judge. That report, standing alone, however, is not, in my judgment, sufficient for a conclusion that there was sufficient evidence of a real risk of a breach of article 3. I therefore consider that the appeal does not succeed under section 27(3) of the 2003 Act.[48]I do, however, accept Mr Bailin’s submission under section 27(4) of the 2003 Act as to the state of the evidence which was not before the district judge in relation to the conditions in the basement cells of Lisbon Prison between 2012 and 2016. It is true that the strongest criticism comes in the earlier 2015 report of the Ombudsman in his capacity as NPM. That report contains information that the basement cells in A and B zones were occupied with two inmates with toilets separated by a 1m wall, that they were cold with signs of damp, that the basement cells in zone C were cold and damp and in a poor state of cleanliness, and that those in zone E were the worst with a quite degraded floor, and the walls damp with an unpleasant smell. The overall conclusion was that the conditions were “contrary to the dignity of inmates” and “the experience… in a cold, damp, dirty space… shows the subjection of the prison population to an inhumane and degrading treatment”.[49]Although the matter is quite finely balanced, in my judgment, had the judge had both reports before him he might have concluded that there was a real risk of article 3 harm. If one adds to the equation the still earlier CPT reports which mention the size of the standard cells at 9m 2 which, when combined with the contents of the Ombudsman’s later report in 2016 that some cells are shared by three people and that the overall size includes the toilet, there is reason to suppose that the Muršićstandard has not been met.[50]In Aranyosi at [89] the Grand Chamber of the CJEU stated that:
“the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing member state and that demonstrates that there are deficiencies which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention.”
The CJEU stated that the information may be obtained from inter alia judgments of international courts, courts of the issuing member state, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations. The reports of the CPT and of the Portuguese Ombudsman in his role as the NPM clearly qualify and, in my judgment, so does the 2016 report of the Portuguese Ombudsman.[51]I wish to stress that, in this case, the article 3 challenge is concerned solely with specific conditions in a single place of detention in Portugal rather than an allegation of systemic deficiencies. For the reasons I have given, the position at present is that, having regard to [89] of the judgment of Aranyosi, there is information which is objective, reliable, specific and up to date of deficiencies affecting Lisbon Prison and of a real risk of inhuman or degrading treatment by reason of conditions of detention in parts of that prison, in particular the basement areas. Accordingly, the court is obliged to move to the second stage of the Aranyosi test, that set out in [92] of the judgment of that case. That requires this court to:
“make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing member state.”
[52]The evidence on which I rely is that contained in the reports which I have summarised. I also take account of the fact that the respondent’s request for further information in October 2017 has not yielded any further information about the conditions in which the appellant will be detained if returned.[53]I can envisage circumstances in which the decisions of courts in other jurisdictions may well be relevant in considering whether this court is obliged to move to the second stage of the Aranyosi test. However, there is limited information about the decisions made by the courts in Amsterdam. There are the decisions themselves and there is sparse information about how the EAW extradition system operates in the Netherlands. Mr Bailin, for example, was able to state only that it was his understanding that the Amsterdam District Court handled all extradition cases in the Netherlands and that there was no appeal from its decisions. During the hearing in an exchange with Ms Iveson, my Lord stated that it appeared from the documents in evidence that in the earliest of the cases before the Amsterdam District Court the material that is before this court was considered and the court decided there was a risk that persons detained in Lisbon Prison would suffer treatment contrary to article 3. This, apparently, was then adopted and followed in all the other cases. However, it is difficult to be satisfied, on the limited documentation available, that this is, in fact, what occurred and in the light of the limited information, and because I have concluded that the material in the reports before us provides evidence that suffices to oblige us to move to the second stage of the Aranyosi test, it is not necessary to take the decisions of the Amsterdam District Court into account.[54]In the circumstances of this case, for the reasons I have given, in accordance with [95] and [96] of the judgment in Aranyosi, I consider that it is necessary to ask the Portuguese Ministry of Justice, or other relevant authority with a responsibility for prisons, and the issuing judicial authorities for the supplemental information referred to below. At the hearing we indicated to Ms Iveson that, pending our decision, steps should be taken to identify the proper authorities so that the result of the request is not similar to the result to the request made in October 2017. I would respectfully ask those authorities to provide within 28 days of receipt of this request the following supplemental information: i) In which part of which institution or institutions will Yaser Mohammed be detained for the duration of his sentence? ii) If Yaser Mohammed will be detained in Lisbon Prison either when returned to Portugal, or thereafter, for how long? iii) If Yaser Mohammed will be detained in Lisbon Prison, will he be kept in one of the basement cells? iv) Will Yaser Mohammed be accommodated in a cell which provides him with at least 3m 2 of personal space at all times throughout? v) Will Yaser Mohammed be accommodated in a cell which contains a self contained sanitary facility which is separated from the remainder of the cell? vi) What mechanisms exist or will be provided to monitor the conditions in which Yaser Mohammed is detained throughout his detention?[55]I would ask that a transcript of this judgment accompany the request for supplemental information.

Sir Wyn Williams:

[56]I agree.

Cited in 20 later judgments

and 11 more of the most senior