Obert v Public Prosecutor's Office of Appeal of Ioannina, Greece

This is an appeal, which is brought with the permission of Collins J., against the decision of District Judge Snow of 11^th August 2016. DJ Snow ordered the extradition of the Appellant to Greece pursuant to an accusation European Arrest Warrant (‘EAW’) for him to be prosecuted for an offence equivalent to handling stolen goods.

On 20^th April 2002 the Appellant was stopped at a border crossing between Albania and Greece called Kakklavia. He was driving a Mercedes CLK 200 Kompressor motor car. The EAW alleges that the car was stolen and he was, in effect, handling the stolen car. The car was said to be of high value, up to 46,995 Euros.

The Greek domestic arrest warrant was issued on 24^th February 2004. In further information from the Greek Judicial Authority dated 14^th April 2016, the District Judge was told that a case file had been sent to the public prosecutor on 9^th December 2004. The EAW was issued on 30^th July 2014.

The Appellant is an Italian national. He moved to the UK in 2012 and has been employed as a chef. The first that the Appellant knew of the EAW was when he was arrested because of it during a visit to Italy on 17^th January 2015. The Italian courts refused to extradite him to Greece. In a judgment of 14^th April 2015 the Rome Court of Appeal, Criminal Division IV explained that a prosecution in Italy would be time-barred. Consequently, Italy was entitled to refuse extradition pursuant to the European Convention on Extradition 1957 Article 10. The 1957 Convention has now been replaced by the system of surrender between Member States pursuant to the Framework Decision of the Council (2002/584/JHA). However, Article 32 of the Framework Decision makes transitional provisions and allows a Member State to deal with requests relating to acts committed before a specified date (which can be no later than 7^th August 2002) in accordance with the earlier Convention. I assume that Italy took advantage of that option and hence the reference to the 1957 Convention.

The National Crime Agency certified the EAW in the UK on 17^th December 2015 and the Appellant was arrested the same day.

At the extradition hearing the Appellant gave evidence in accordance with his proof. His evidence was not disputed.

Before the District Judge the Appellant raised a number of objections to extradition.

On the Appellant’s behalf, Mr Fitzgerald QC pursues each of these same arguments. I will consider them in turn.

Section 14 of the EA says,

In all but exceptional cases, a requested person cannot rely on this provision if the delay is a consequence of his or her own actions. Thus, generally, a fugitive cannot invoke s.14: see Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 HL and Gomes and Goodyer v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 HL. That is no obstacle to the Appellant in the present case because the Respondent accepted that he was not a fugitive and the District Judge proceeded on that basis.

Kakis was a decision under the Fugitive Offenders Act 1987 s.8(3) but this was in materially indistinguishable terms from the equivalent provisions in the EA – see Gomes at [18]. The Requesting State in Gomes was Trinidad and Tobago, a category 2 territory. Hence in that case the provision dealing with the effect of lapse of time was EA s.82, but that is also materially indistinguishable from EA s.14.

Lord Brown gave the leading speech in Gomes. He adopted what the Privy Council had said in Knowles v Government of the United States of America [2007] 1 WLR 47 at [31] – see Gomes [32], namely,

Lord Brown added to this distillation of principle. Thus, he said at [33],

At first sight it may be thought that there is a tension between Lord Brown’s endorsement of the first Knowles principle with his gloss on the second Knowles principle. However, the reconciliation seems to me to be that, if the court of trial in the requesting state would be bound to conclude that the accused could not be fairly tried because of the passage of time, then the UK court (as the requested state) should conclude that it would be unjust to extradite him.

At [34] and [35] of Gomes Lord Brown made further comments on the third of the Knowles principles. He said,

So far as ‘oppression’ is concerned, I take the following from Gomes:

Gomes also considered the period of the delay which has to be assessed. In the case of an accusation warrant it starts with the date on which the offence was committed. That was clear from EA s.82(a) and, for the purposes of Part 1, is equally clear from s.14(a). Counsel for the Respondent in Gomes had argued that the period continued until the extradition hearing. Lord Brown thought it might be longer. He said at [38],

It is common and often convenient to consider separately whether the lapse of time has made the extradition ‘unjust’ or ‘oppressive’. However, in Kakis Lord Diplock observed at p.783, ‘but there is room for overlapping’ and nothing said by Lord Brown in Gomes called that observation into question.

Whatever factors are relied upon, it is quite clear that they must be a consequence of the lapse of time: there has to be a causal link between the lapse of time on the one hand and the oppression and/or injustice on the other – see for instance McGurk v Provincial Court of Alicante, Spain [2016] EWHC 536 (Admin) at [29].

The Appellant gave evidence before the District Judge. He adopted his proof of evidence, which, as the District Judge recorded, was not disputed. It is therefore convenient to set out the relevant parts of his proof for the s.14 argument. The Appellant said,

During the course of his evidence before the District Judge, the Appellant clarified that what he was referring to in the first sentence of paragraph 7 of his proof was the extradition proceeding; he had not been separately prosecuted in Italian criminal proceedings.

The EAW alleged that the car had been stolen on the night of the 20^th-21^st December 2001 in Tarquinia-Viterbo, Italy. It said that its value was ‘up to’ 46,995 Euros. It noted that, under Greek law, prosecution of the offence would be statute barred after 15 years (i.e. on 20^th April 2017). The EAW was based on a Greek domestic warrant which had been issued on 24^th February 2004.

Further information from the Judicial Authority of 14^th April 2016 included the following:

The District Judge made the following findings about the personal circumstances of the Appellant,

On the Appellant’s behalf, Mr Fitzgerald QC applied to adduce two further statements from his client. One, headed ‘Addendum proof of evidence of the requested person’ sought to give further evidence of the documentation which had been seized by the Greek police at Kakklavia and which had not been returned to him. The Appellant referred to the futile attempts which he had made to contact the seller of the car, futile because he realised that the identity and contact details he had been given were fake. He said that when he had been arrested in Italy in 2015 he had made more, unsuccessful, attempts to find information about the man who had sold him the car and any documents. He had been unable to trace any other useful information or witnesses.

The second new statement from the Appellant is headed ‘3^rd proof of evidence of the requested person’. This gives a little more detailed account of his conversations with the Greek consular official in Italy in 2015. According to the Appellant he was told that the official would speak to the court in Greece to revoke the criminal charges, that once the case in Italy had been discharged, the Appellant should return to the UK and not worry about it.

Ms Farrant, on behalf of the respondent, opposed the application for this additional evidence to be admitted. We allowed Mr Fitzgerald to refer to these statements de bene esse but we made clear that we would rule on the application when we gave judgment.

The principles to be applied as to the admission of fresh evidence in extradition appeals are now well established and were set out in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin). In that case the Court was concerned with an appeal by a Judicial Authority. The relevant section of the EA was s.29(4). But that provision is not materially different to the equivalent provision where the Court is considering an appeal, as here, by the Requested Person viz EA s.27(4). Each allows the Court to take into account evidence which is available at the time of the appeal hearing ‘that was not available at the time of the extradition hearing’. In Fenyvesi at [32] the Court said,

That test places a formidable obstacle in the way of the Appellant. The two further statements come from himself. There is no explanation as to why this evidence was not adduced before the District Judge. As the Court also said in Fenyvesi (at [3]), the requirement in s.27(4) reflects a more general principle that a litigant should adduce all the evidence on which he wishes to rely at first instance.

I would refuse Mr Fitzgerald’s application to rely on this fresh evidence. The additional evidence which the Appellant wishes to adduce was available to him. It was not adduced before the District Judge. There is no evidence as to why that was not so. There is no other good reason why these further statements should be admitted.

The offence was allegedly committed on 20^th April 2002. Almost 14 years and 4 months had elapsed by the time of the District Judge’s decision. Now it is only a few weeks short of 15 years.

I have not been persuaded that lapse of time has made it ‘unjust’ to extradite the Appellant now. The Appellant is not in a position to dispute that the car he was driving had in fact been stolen. The critical issue will be whether he knew that it had been stolen. In his original proof, the Appellant said that he was told by the Greek officials at the border that the car would be sent to Italy (which would have been consistent with the expectation that it should have been restored to the owner). It would be reasonable therefore to assume that the car will not be available for any trial in Greece. If the car is not available, there will be nothing to contradict the Appellant’s evidence that it was in poor condition at the time he bought it and whatever price he paid for it reflected this.

The Appellant’s original proof said nothing about documentation to do with the car. If that was seized at the same time as the car and is still available, it will, we must presume, be produced in the course of trial preparation. If it is not produced, or for some other reason is unavailable due to the lapse of time, we must assume that there will be a fair trial process and such a process will make allowance for the difficulties which the Appellant would now face because of the delay. The courts in the UK are familiar with making such allowances where historical offences are prosecuted. A generalised complaint of handicap because of the passage of time will be insufficient: there has to be particularisation of the evidence which has been lost or become unavailable in the interval. There were no such particulars in the original proof.

In this case, the Appellant would have been handicapped even if he had been prosecuted promptly by the Greek authorities. He had bought the car, not in Greece, but in Italy. That cross-border element would have made assembling evidence in support of his defence difficult, even if the prosecution had begun timeously.

Indeed, this point is underlined if account is taken of the Appellant’s Addendum statement. According to this, the Appellant discovered that the seller had given him a fake identity and fake contact details. So, even if the Appellant had been swiftly prosecuted he would not have been likely to be able to adduce independent evidence of the transaction by which he had acquired the car.

I turn to the issue of whether the lapse of time has now made it ‘oppressive’ to extradite the Appellant. The District Judge was right to emphasise that this sets a high hurdle for an appellant to cross. A good deal more than the usual hardship which accompanies any extradition is required.

Here I do think the cross-border element of the case is relevant. The Appellant said in his original proof that he was told by the Greek officials that the car would be sent to Italy. He was told that he would have to explain himself before a judge in Italy. That is all as one would expect in respect of a car which had apparently been stolen in Italy. But then for almost 13 years nothing happened. He was not prosecuted in Italy and we know from the decision of the Court of Appeal in Rome that Italy has a period of limitation for such prosecutions which lasts for 8 (possibly 10) years. The Appellant said in his original proof that he was also told by the Greek officials, ‘and if we have any issues, we can find you anyway.’ But the Appellant did not hear anything from the Greeks either. That inaction on the part of the Italian and Greek authorities over such a long period in my judgment entitled the Appellant to consider that nothing would be done. It is true that this is not a case where in the interval the Appellant has had children or taken on new responsibilities of a similar kind, but the sense of security (a false sense of security as it turned out if the Appellant can now be extradited) would have been engendered nonetheless. He had in the meantime begun a new life in the UK and taken employment as a chef. His daughter was an adult, but she had been the victim of domestic violence and he provided emotional and financial support to her and his two young grandchildren.

The Appellant did then have to face the extradition proceedings in Italy in 2015. They concluded with the decision of the Rome Court of Appeal in April 2015. I accept the submission of Ms Farrant that the conversation referred to in the Appellant’s original proof fell short of an undertaking that the Greeks would abandon the charge against him. (For that matter, I would reach the same conclusion even on the further detail provided in the Addendum proof). However, the Appellant returned to the UK. He was not arrested on his return and he was not arrested here until December 2015. That inaction supports his belief that he states in his original proof, ‘I thought that my discharge from the Italian proceedings would be an end of the matter.’

I would find that this false sense of security at each of these two stages did go considerably beyond mere hardship and, in the circumstances of this, rather unusual, case did amount to oppression which was consequent on the passage of time. It was a false sense of security engendered by the lapse of time which led Lord Diplock (at p.784) and Lord Scarman (at p.790) in Kakis to conclude that his extradition would be oppressive

One of the features which may be relevant in judging a s.14 objection to extradition is the seriousness of the offence for which the Requesting State wishes to prosecute the person concerned. The District Judge thought that this was a serious case because it had involved handling across international borders a car valued at 46,995 Euros. With respect to the District Judge, I consider that he here fell into error. As I have noted, the EAW said that the car was worth ‘up to 46,995 Euros’. The evidence from the Requested Person which, as I have observed, was not disputed, was that he bought the car second hand and that it was in poor condition. In those circumstances, it would be very surprising if the car was worth anything approaching the uppermost amount identified in the EAW. Even with the cross-border element, I would not regard this as a ‘serious offence’. It is, for instance, in a quite different league from the war crime which was in issue in Pesut v Republic of Croatia [2015] EWHC 46 (Admin) [40] or the rape with violence in McGurk v Provincial High Court of Alicante, Spain [2016] EWHC 536 (Admin) [29]

I referred above to the views of Lord Edmund-Davies, Lord Brown and Woolf and Laws LJJ that the requesting state’s culpability in allowing delay to occur could tip the balance in deciding whether it would now be oppressive to extradite the Requested Person. Mr Fitzgerald is entitled to invoke that principle in the present context. There has been no explanation for the very long delay in issuing the EAW in this case. As the District Judge said, the reason for the delay between the case file being passed to the police directorate in Ioannina on 24^th January 2005 and the issue of the EAW on 13^th July 2014 was unexplained.

For all of these reasons, in my judgment it would now be oppressive due to the lapse of time to extradite the Appellant to Greece. It follows that I would allow the appeal on this ground and order the Appellant’s discharge pursuant to EA s.14.

If my Lord agrees with my conclusion on s.14, it will follow that the Appellant must be discharged, whatever the merit or otherwise of his other grounds of appeal. In view of this, my comments on them will be briefer than would otherwise have been the case.

The Court’s task in judging whether extradition would infringe the requested person’s rights under Article 8 is different from that which it must perform under s.14. Nonetheless, there is an overlap of the factors which have to be taken into account in the two contexts. In particular, delay is obviously central when considering s.14, but it is, or can be, material to the balancing exercise under Article 8. I have decided that delay would make it oppressive to extradite the Appellant. It is really artificial in those circumstances to try to conduct some separate balancing exercise as required by Celinski v Poland [2015] EWHC 1274 (Admin) and s.21A(1)(a). I do not propose to do so.

Mr Fitzgerald accepted in the course of his oral submissions that it was not, by itself, an abuse of process for Greece to apply for the Appellant’s extradition in the UK, even though the same request had been refused by Italy. As the decision of the Rome Court of Appeal makes clear, Italy refused to extradite the Appellant because, as a matter of its domestic law, prosecution for the offence was time barred. There is no equivalent limitation period in the UK. That obstacle to extradition does not apply here. The Italian courts’ refusal to order the Appellant’s extradition does not render the application in this jurisdiction abusive.

Nor would I accept that the conversation between the Appellant and the Greek consular official before the Appellant left Italy makes the present proceedings an abuse of process. The Appellant’s evidence before the District Judge fell well short of an undertaking by the consular official that the Greek criminal proceedings would be terminated. As Aikens LJ said in Belbin v France [2015] EWHC 149 (Admin) at [59] the scope for exercise of the abuse of process jurisdiction in extradition is limited. The Requesting State must be shown to have usurped the extradition process. It is sufficient to say that the evidence in the present case falls well short of that exacting standard.

As the Divisional Court said recently in Marku v The Nafplion Court of Appeal; Murphy v The Public Prosecutor’s Office to the Athens Court of Appeal, Greece [2016] EWHC 1801 (Admin) at [5] ‘The law is not in doubt’. I adopt the Court’s summary which said,

In Marku and Murphy the Court was concerned with the conditions in two other Greek prisons, namely Nafplio Prison and Korydallos Men’s Prison. The Court reviewed the reports of the CPT. In particular, it noted that the CPT had issued a public statement on 15^th March 2011 which had condemned the conditions of Greek prisons, in particular because of their overcrowding and understaffing.

The CPT had made two further visits to Greek Prisons: in April 2013 and in April 2015. They had visited Korydallos on each occasion and Nafplio on the second. The 2015 visit led to a report published by the CPT on 1^st March 2016. In summary, both prisons continued to be overcrowded (although with some reduction in numbers over the 2013 visit). In addition, though, understaffing remained a persistent problem and that in turn meant that the problem of violence among prisoners was very real. As the Court said at [19],

The Court in Marku and Murphy was careful to observe that its conclusions applied only to Korydallos and Naflio Prisons. Although the CPT had visited other Greek prisons, the Court had not heard argument in relation to them - see [20].

The agreed evidence before the District Judge was that the Appellant would almost certainly be detained in Ioannina Prison either on remand or as a serving prisoner. In the judgment of the European Court of Human Rights in Samaras v Greece (Application No. 11463/09) [the judgment is only available in French, although there is a summary in English] the Court found a number of violations of Article 3 in Ioannina Prison. At the time of the CPT visit to Ioannina in April 2013 the prison still grossly overcrowded. With a capacity of 70 prisoners, the prison was then holding some 232 prisoners i.e. about 330% of its capacity. The CPT found that some 56 prisoners had to sleep in corridors because of the overcrowding. Ioannina was not one of the prisons visited by the CPT in April 2015. The report which was subsequently published in March 2016 did note (at [62]) that Ioannina was one of the Greek Prisons which in April 2015 had been more than 150% capacity.

Both the Appellant and the Respondent wished to adduce updating evidence on the Article 3 issue. I have noted above that Fenyvesi recognised that a somewhat more generous approach should be taken to such evidence. That is because, any breach of Article 3 by the UK would take place at the point of extradition and it is important that the court has such evidence as is available on that issue. Furthermore, the evidence from both parties goes to an issue (prison conditions and Article 3) which was canvassed before the District Judge. It is updating material. I would accordingly allow both parties to rely on their fresh evidence.

The Respondent’s skeleton argument referred to a letter from the Greek Ministry of Justice dated 16^th January 2017 which said that the current number of detainees at Ioannina was 127, as against a capacity of 80. Professor Tsitselikis gave virtually the same number for the present occupants of Ioannina and its present capacity. He also provided information about staff numbers at that prison (see below).

There clearly has been an improvement in the position regarding overcrowding at Ioannina. The CPT did not find in its report following the 2015 visit that the space then allowed for each prisoner made the conditions in that prison a violation of Article 3 and Mr Fitzgerald did not advance any such submission. I would, though, add that, at about 150% capacity, the situation is still far from perfect. Mr Fitzgerald is entitled to observe that in Marku and Murphy Nafplio was of a similar degree of overcrowding. That, however, does not take him very far. As the passage from the judgment which I have quoted above shows, what particularly concerned the Court was understaffing and the risk this created of violence between prisoners.

There was no evidence before the District Judge as to the staffing levels in Ioannina. Professor Tsitselikis’s supplementary report says this,

Mr Fitzgerald submitted that the problems identified by the CPT were systemic. They flowed, as the Court had said in Marku and Murphy at [19] from a lack of physical resources which was unlikely to be remedied soon. The same underlying problem was likely to afflict Ioannina.

In my view the evidence is indeed troubling, but in respect of Ioannina, it is not such that I could conclude that the usual presumption in favour of another EU state has been rebutted. The Grand Chamber of the Luxembourg Court in Pal Aranyosi and Robert Caldararu (Cases C-404/15 and C-659/15 PPU) at [94] has stressed the need for evidence which is ‘objective, reliable, specific and properly updated’. Where there is such evidence showing substantial grounds for believing that the requested person would face a real risk of being subjected to inhuman or degrading treatment, it drew attention to the opportunity under Article 15(2) of the Framework Decision to seek further information from the Requesting State as a matter of urgency – ibid [95].

I am conscious that in this case the specific question of staffing ratios has arisen at a late stage. Such as it is shows a ratio of about 1:64 which, though troubling, is markedly different from the ratio of 1: about 200 which the CPT had seen in Korydallos in 2015. Nor, so far does there seem to be the evidence of certain staff being unable to enter parts of the prison as had been the case in Nafplio in 2015. The most that can be said is that, if this issue had been critical to the disposal of the appeal, it would have merited further investigation.

Since I have held that the s.14 ground of appeal succeeds, I would allow the appeal and order the Appellant to be discharged.

I agree.