Visha v Criminal Court of Monza, Italy

This is the judgment of the Court.

The Appellant is a 31-year old Albanian. This is his appeal pursuant to section 26 of the

Permission to appeal was granted by Ouseley J on 4 February 2019 on a single ground, namely that it is arguable that the procedure identified in Aranyosi and Caldararu [2016] QB 921 ("Aranyosi") should have been followed on the basis of a real risk of a breach of the

The Appellant submits that the Judge fell into error in his treatment of the Article 3 issue. The Appellant having adduced evidence of a serious and growing problem of prison overcrowding in Italian prisons, the Judge was wrong to apply the so-called "international consensus test" and to proceed without any response or reply from the Italian judicial authorities on this issue, still less any assurance. Further, fresh evidence which post-dates the conclusion of the case below reveals that the conditions at the prison in which it is said to be likely that the Appellant would be held are "undoubtedly not Article 3 compliant". The Appellant submits that the Judge's conclusions are wholly undermined by this fresh evidence.

The appeal has been heard on an expedited basis in the light of concerns that the relevant custody time limits in Italy will shortly expire (on 22 April 2019). The Italian authorities have indicated that the Appellant would need to arrive in Italy by the beginning of March 2019 in order to ensure that the relevant parties can be served in time for the necessary preliminary hearing.

Time is, therefore, of the essence. This judgment is being delivered immediately at the conclusion of the hearing before us. We would wish to express our gratitude at the outset to both counsel who have worked under pressure and have nevertheless provided high-quality and helpful submissions on both sides.

Yesterday, on the eve of the hearing, the Respondent served an application to admit two assurances to which we will turn in due course. Much of the submission before us today was naturally focussed on those assurances. Their thrust is to identify where the Appellant would be detained upon extradition and to indicate that he will be guaranteed at least three square metres of personal space in accordance with Article 3.

The EAW, as supplemented by further information provided by the Respondent on 17 August and 6 September 2018, seeks the surrender of the Appellant in order to prosecute him for the following four offences:

The Framework List has been ticked in order to designate the conduct for offences 1 and 2 as "participation in a criminal organisation" and "murder".

The enforceable decision in Italy was made on 2 January 2014. On 10 February 2014 the Appellant was declared a fugitive. The EAW was issued on 20 February 2014 and certified on 22 April 2018. In the meantime, the trial due to start on 1 October 2015 was suspended because the Appellant was untraceable at the time.

On 21 April 2018 the Appellant was arrested in respect of domestic human trafficking offences. Whilst he was in custody, checks revealed the existence of the EAW and he was arrested pursuant to the EAW the next day. He was subsequently charged with conspiring with others to require others to perform forced labour and arrange the travel of others for the purposes of exploitation.

The extradition proceedings were opened formally on 23 April 2018. The case was adjourned pursuant to section 8(a) of the 2003 Act (because of the modern slavery and people-trafficking charges). The Appellant was remanded in custody. On 22 May 2018 the Appellant and his co-defendant appeared in Newcastle Crown Court on the domestic charges. The case was adjourned for trial in September 2018 but by July last year the domestic charges had been discontinued. Thus, on 3 July 2018 the extradition case resumed with a hearing fixed for 18 September 2018. That hearing then had to be adjourned due to technical difficulties. The full hearing finally commenced on 1 October 2018. It was adjourned in order to allow the Appellant to submit further materials which he did on 25 October 2018. Judgment was then delivered on 1 November. The Appellant's extradition was ordered. He lodged this appeal on 7 November 2018.

The Appellant did not give oral evidence at the hearing, although his brother Vladimir Visha did. His brother was to describe a blood-feud in Albania between the Appellant's family and that of the murder victim Leka, which is not relevant for present purposes. The Appellant relied upon a report on "Detention in Italy" prepared by Associazione Antigone ("Antigone") dated 31 July 2018. Antigone is a small NGO established in 1991 dealing with human rights protection in the Italian penal and penitentiary system. It has unrestricted access to the Italian prison estate and is funded by the Italian Prison Ombudsman. Mr Scandurra, Antigone's director of research, gave evidence to the Judge via Scopia link.

In his ruling the Judge rehearsed the law and the evidence before him, going on to make his findings of fact. He accepted that the Appellant has Hepatitis B and D, and that there was a blood feud between the Visha and Leka families. The Appellant had left Italy in an attempt to put himself beyond the reach of the victim's family and the Italian police. Italian prison conditions are poor, as they are in much of the prison estate in the UK and other EU countries.

Having made his findings of fact, the Judge went on to refer to the decision of this court in Elashmawy v Italy [2015] EWHC 28 Admin ("Elashmawy") which dealt with Italian prison conditions in particular. He referred to the doubt there expressed that a single expert report would be sufficient to require a review; it would require an international consensus or the considered view of the European Court of Human Rights (“the ECtHR”) or that of the Committee of Ministers.

In the light of that decision, the Judge considered the evidence. He referred to the evidence from Antigone and Mr Scandurra in particular as follows: (1) Mr Scandurra could not say where the Appellant might be held; it could be Monza but he was likely to be moved around. There are 18 facilities in Lombardy, all overcrowded with an average occupancy rate of 146%. (2) Prison cells vary in size. Modern cells can be 12 square metres but are designed for more than one prisoner. There are normally two persons per cell although about a third now have three prisoners. In some cells prisoners are kept in a space less than three square metres. Some cells conform to national standards and some do not. The minimum cell space under Italian law is six square metres for multiple occupancy. His organisation does not include cell furniture in measuring cell space. (3) The usual time spent out of cells was eight hours. (4) In general, new prisons have been built since the pilot judgment in 2013 in Torreggiani v Italy (2009) (App. No. 43517/09, 46882/09, 55400/09) ("Torreggiani"). (5) Health care varies. Generally, doctors are available but it is difficult to access specialised medical care. In Lombardy, health care is managed better than in other areas. (6) There are 2,509 Albanians in the Italian prison estate. Vulnerable prisoners are placed in protective parts of the prison. Mr Scandurra could not comment on the risks to the Appellant since he himself had never come across the issue of blood feuds. He said that the safety of prisoners was important to the prison authorities. (7) There is a new complaint system for prisoners but it was too early to say if it would be effective.

The Judge found that the evidence did not demonstrate that there was a real risk that the Appellant's personal cell space would fall below three square metres or that he would not have access to adequate medical care. There was no evidence to show that the Appellant was at particular risk within the Italian prison estate. The Antigone report recorded that the Italian authorities were extremely aware and sensitive to the topic of blood feuds and set out specific measures that can be put in place. Mr Scandurra had not encountered the issue at all. Solitary confinement is with the consent of the prisoner.

In relation to the Antigone report, he stated (at paragraphs 50 and 51):

Having confirmed that extradition would also not be disproportionate, the Judge duly ordered extradition of the Appellant pursuant to section 21A(5) of the 2003 Act.

Mr Hawkes for the Appellant places the Aranyosi procedure at the heart of this appeal. He submits that this Court must adopt that process, leaving us either to allow the appeal outright or at the very least to request further information. The assurances, to which we will come in due course, he submits, do not meet the test identified in Hungary v Fenyvesi [2009] EWHC

The Antigone Report described a significant number of prisons in Italy which it inspected in 2017 and 2018 which provided less than three square metres per prisoner, despite the Italian law mandating nine square metres per single cell with an extra six square metres for each additional prison. Antigone considers that the Appellant would be held in Lombardy if extradited. In Lombardy's 18 prisons all but one were over 100% overcrowded, with the overcrowding rising to 196.5% in one facility. The average overcrowding rate in

As will be seen below, at least without further explanation, some of these statements are misleading, particularly in relation to the figures on cell space per detainee. The Appellant's written submissions also suggested that the Antigone Report stated that the Appellant would be held at Monza. That is incorrect. It only stated that he might be held there.

The Appellant submits that the Judge should have asked himself whether he was presented with evidence which required further information from the requesting state following the guidance in Aranyosi. This is, as Mr Hawkes put it, the key issue. Mr Hawkes submits that the Judge fell into error in his treatment of the decision in Elashmawy. He applied too high a test, namely that the evidence of the single expert would be insufficient to require a review and that it would require an international consensus or the like. The Appellant relies on Purcell and Pengel v Belgium [2017] EWHC 1981 Admin ("Purcell and Pengel") where, at [18], Hamblen LJ stated that he did not consider that there was an "evidential threshold" to be reached before inquiries are to be made of a requesting authority.

It is submitted that the Judge ought to have sought information in order to clarify precisely to which prison the Appellant would be sent and that Monza would be excluded as a destination. It was not fanciful, submitted Mr Hawkes, that the Appellant might yet end up in Monza. The background of Torreggiani and systemic failure there identified in 2013 followed by the decision of the court in Badre v Italy [2014] EWHC 614 (Admin) should have given the Judge more than enough to make him pause for thought. Added to that, one sees the rising level of the prison population in Italy. The Judge should have had (and thus should have sought) specific and precise evidence. He failed to do so.

Article 3 is absolute. It is not a qualified right unlike those contained in Articles 8 to 11 of the ECHR. A requested person must show that there are strong or substantial grounds for believing that there is a real risk of treatment contrary to Article 3 (see R v Special

It is sufficient for present purposes to draw on the summary of the relevant principles to be found at [34] to [39] in Shumba:

It is relevant to note that the in-cell sanitary facilities should not be counted in the overall surface of the cell though it should include space occupied by furniture. What is important is whether detainees have a possibility to move around within the cell normally (see Mursic at [114]).

In Mursic at [138] the Grand Chamber commented that the strong presumption will normally be capable of being rebutted only if the following factors are cumulatively met:

The approach to be taken in EAW cases where the executing court determines on the evidence that there is a real risk of a breach was set out in Aranyosi from which the following key points can be derived:

Aranyosi was considered in Grecu and Another v Romanian Judicial Authorities [2017]

In Jane v Prosecutor General's Office, Lithuania [2018] EWHC 1122 Admin (“Jane”) at [17] and [18] the Divisional Court stated:

Thus, the Divisional Court underlined the importance of the principle of mutual trust between member states and the general presumption that a member state will comply with its international obligations, including those arising from Article 3. That presumption may be rebutted by clear, cogent and compelling evidence, something approaching an international consensus, the Divisional Court adopting the wording in Krolik v Poland [2012] EWHC 2357; [2013] 1 WLR 490 at [3] (“Krolik”).

We do not consider that the Divisional Court in Purcell and Pengel took a different approach to that identified in Shumba, Jane and Grant. As set out above, at [18] in Purcell and Pengel Hamblen LJ stated that he did not consider that there was an "evidential threshold" to be reached before inquiries are made of a requesting authority. It may not be necessary to speak in terms of a particular evidence threshold but, as Hamblen LJ went on to say,:

We begin our consideration of the merits set against the general legal background above but also bearing in mind the decision in Elashmawy where Italian prison conditions were considered in particular. The court considered what the cogent evidence before it established as to the prison conditions then at the time of the judgment in January 2015 and in the near future. At [101] it held that there were no substantial grounds for believing that there was a real risk that the appellant, if surrendered, would be subjected to an inhuman or degrading treatment or punishment by reason of prison conditions in Italy, taking the evidence overall. The court went on to say (at [104]):

The Judge is criticised in this case for proceeding on the basis that an international consensus was required or the considered view of the ECtHR or that of the Committee of Ministers. True it is that Elashmawy pre-dated Aranyosi, but the later authority of Jane confirms that the Krolik principles are still very much alive. Whether or not it is right to say that an international consensus is necessary before a review is required and whether or not any such test should only be applied at the end of a process rather than at an intermediate

This is essentially the approach the Judge took, for he asked himself whether there was clear, cogent and compelling or powerful evidence to justify a refusal of extradition at that stage without more. He was asking himself whether there was a need for further information.

The focus of course must be on whether the Judge's overall conclusion was wrong (see Love v Government of United States of America and Liberty [20180 EWHC 172 Admin, paragraph 26). In our judgment the Judge was entitled to conclude that the evidence before him was not such as to oblige him to seek further information and entitled to proceed on the basis that there was no need for any further steps to be taken before extradition to Italy could be ordered.

First, Mr Scandurra and Antigone could not indicate where the Appellant would be held. Monza was a possibility but no more. As for Monza, the Antigone Report referred to a visit by the Observatory on 31 March 2017 and reported that there was less than three square metres per detainee. Two points can be made. First, no details are provided as to how many detainees were affected or for how long. But critically in this regard, Mr Scandurra's evidence confirmed that all of the overcrowding statistics provided by Antigone were based on the Italian national standard of six square metres per prisoner. Antigone and the Italian national legislation also exclude furniture as well as the sanitary facilities from measurements. As already indicated, Mursic proceeds on the basis that furniture - though not the in-cell sanitary facility - may be included in cell space measurements. The mere fact of overcrowding did not mean that an individual prisoner's personal space would reduce to below three square metres. Nor was there before the Judge any specific evidence of the lack of free movement.

Thus, the evidence as it was presented before the Judge did not establish substantial or sufficient grounds for him to find it necessary to proceed to seek further information in these circumstances. Subject to the question of fresh evidence, we are not persuaded the Judge erred in proceeding as he did or that he was obliged to seek further evidence.

As indicated, the Appellant now seeks to rely upon fresh evidence in the form of a further report by Antigone which was published on its website on 5 November 2018 ("the 2018 Report") and which relates to an inspection undertaken by four prison monitors from Antigone at Monza on 9 July 2018. He also seeks to rely on a witness statement prepared by Mr Scandurra in which Mr Scandurra comments on the 2018 Report.

The 2018 Report states as at the date of inspection there was severe overcrowding at Monza with 203% occupancy. Further detail is given about the use of a third camp bed installed under bunk beds with three prisoners or detainees in a cell at any one time. When the third bed is brought out at night, it was said, it was then impossible to walk around the cell at all.

In his statement Mr Scandurra confirmed that the data collected on 9 July 2018 was uploaded to Antigone immediately after inspection but it was only published after checking and completion on 5 November 2018. Mr Scandurra, in his statement, also identifies discrepancies in the information provided on the ground as to prison capacity and the

Mr Hawkes for the Appellant submits that this fresh evidence demonstrates that the conditions at the prison at which it is likely that the Appellant would be held are undoubtedly not Article 3 compliant.

Section 27(4)(a) of the 2003 Act permits this court to consider evidence that was not raised or available at the extradition hearing. The relevant principles for such admission are set out in Fenyvesi (supra). There, at paragraph 4 the court identified the underlying policy that fresh evidence may be received when it is just to do so or perhaps when it would be unjust not to do so. It posed three questions which the court should ask itself (at [6]):

At [32] and [33] the court went on to consider the meaning of evidence being "not available at the extradition hearing":

As the court went on to explain at [34], the operation of these principles is not as stringent in cases such as the present concerning human rights.

Mr Hawkes says that the November report could not have been obtained earlier. The evidential hearing took place on 1 October. The judgment was dated 1 November. The report was not published until 5 November 2018. Whilst Mr Scandurra may have been aware of the data uploaded on or about 1 July 2018, he did not make either the court or the Appellant and his advisers aware of the existence of that data. They only became aware of it after publication; that was the trigger for this application. Mr Hawkes submits that the Appellant was entitled to rely on his expert's declaration as to having brought before the court on 1 October all matters that were material for the court's consideration.

Miss Brown, for the Respondent, submits that the fresh evidence does not satisfy the requirements of Fenyvesi.

We have come to the conclusion that, notwithstanding the degree of latitude to be afforded in cases involving human rights, it would not be just to admit and not unjust to refuse to admit this fresh evidence. There is a debate to be had as to whether or not the fresh evidence was “available” to the Appellant at the time of the hearing within the meaning of Fenyvesi. Certainly, his expert had access to the information. And it is surprising, at the very least, if this evidence really is as striking as the Appellant now submits it to be, that Mr Scandurra did not see fit to refer to it in October. Nor does Mr Scandurra’s most recent witness statement provide any explanation for what is now, on behalf of the Appellant, contended to be significant material.

The answer, however, to the application is a very short one, because fundamentally the fresh evidence cannot be said to have the impact contended for by the Appellant. As indicated, it relates only to Monza Prison which is only one of 18 prisons in Lombardy where it was then thought the Appellant might have been detained. Monza was only ever a possible destination upon extradition. Now, in the light of the assurances received and to which we will shortly turn, it cannot be said that Monza is even that.

In those circumstances the evidence is of peripheral value at best. It certainly does not justify abrogating from the general policy that all relevant evidential matters should be placed before the court at the original hearing in the interests of speed and finality.

If more were needed - and for the reasons set out above, we do not consider that it is - the position can and must now be considered in the light of the assurances given by the Italian Ministry of Justice on 13 and 19 February 2019 (“the assurances”).

Assurances form an important part of extradition law. The Respondent emphasises that the provision of assurances by the Italian authorities in this case is unique and specific to the facts of this case. It is by no means accepted on the part of the Italian authorities that assurances are generally necessary in relation to Italian prison conditions. The assurances here have been provided in the light of the remarks of Ouseley J when granting permission (when he alluded to the possibility of assurances being sought in advance of the appeal in the light of the procedural time constraints in Italy).

On 11 February 2019 the Crown Prosecution Service requested an assurance from the Italian authorities with the following questions:

On 13 February 2019 the Italian Ministry of Justice replied, stating that a prison where the Appellant is going to be detained is determined by the Appellant's air route. If he is surrendered at Rome Airport he will be transferred on a provisional basis to Rebbibia NC Prison and later transferred to a prison in Lombardy. If he is surrendered at Milan he will be immediately transferred to a prison in Lombardy. Clarification followed on 19 February with the Italian Ministry of Justice further particularising that whenever in Lombardy the Appellant would be in those prisons located in Pavia, Cremona or Como. If convicted and when the sentence becomes final, he will be detained in a prison also taking into account his family background.

The assurance on 13 February 2019 also stated in terms as follows:

Mr Hawkes submits that these assurances fail to allay the substantial grounds for believing that the Appellant would be held in non-Article 3 compliant conditions. The tardiness of the assurances themselves supports what he submits is a cavalier attitude by the Italian authorities to the Appellant's plight.

We say immediately that, in accordance with the guidance in Fenyvesi, we accede to the Appellant’s application to submit fresh evidence that is responsive to these assurances. By reference to that material, Mr Hawkes submits first that the prisons in Lombardy are amongst the most overcrowded in the country. Como is one of the most overcrowded prisons in Italy, almost as bad as Monza, with 197% overcrowding. Reference is made to an April 2018 report by Antigone and a tabular report from Antigone with population and overcrowding statistics from January 2019. Again, reference is made to inmates not having three square metres of personal space. Pavia and Cremona are also overcrowded, albeit to a lesser extent. Mr Hawkes submits that the assurances are too generalised to be of any real value. We know nothing, he says, about the attenuating factors about the prison regime. No offered explanation has been given for the lateness of the assurances. He submits that, had the Judge been presented with these assurances, he would have been obliged either to discharge the Appellant without more or to seek further information. That is precisely, he says, what the Court should now do. He emphasises that the Court should not be held hostage to any accelerated timetable, something which we should put out of our minds.

In respect of assurances and whether they constitute fresh evidence, the position has been made clear in Chawla v Government of India [2018] EWHC 1050 Admin at [44]:

We also bear in mind the decision of the Divisional Court in Georgiev v Bulgaria [2018] EWHC 359 Admin at [8]:

We are not troubled by Mr Hawkes' submission as to lateness of the assurances. Ouseley J clearly envisaged the possibility of assurances being given by Italy in the light of the granting of permission. The authorities make it clear that assurances can be taken into account at any stage. Miss Brown for the Respondent has explained the timeline and the thinking behind the provision of assurances for the purposes of this appeal.

The Italian authorities were asked particular questions and answered the questions posed in the manner that they did. When taken together, the assurances make it clear that the Appellant will be going to one of the three prisons in Lombardy identified, namely Pavia, Cremona or Como, and not Monza.

Applying the criteria identified in the authorities to the assurances now before us, we reach the following conclusions.

First, it is clear that if the assurances are fulfilled then their terms mean that the Appellant will not be subject to treatment contrary to Article 3. Secondly, there is no suggestion that the assurances have been given on any basis other than in good faith. Thirdly, there is a sound objective basis for believing that the assurances will be fulfilled. Italy is a signatory to the ECHR and a member state of the European Union. There is a strong presumption that it is both willing and able to fulfil its human rights obligations and any assurances given in support of those obligations. There is no good reason to step behind the assurances given to this court. As Miss Brown put it, it is not for us to carry out an audit of the position in Italy. We bear in mind Mr Hawkes' submissions in relation to the evidential hurdles facing an

In conclusion, the assurances are given in good faith by a friendly member state. We do not consider or conclude that they are given lightly or without proper consideration. They are specific to the Appellant. We are not persuaded that there is any sufficient good reason not to take them at face value. Nor is there any reason for this court, on appeal, to seek further information.

For all these reasons, the appeal will be dismissed. We should emphasise that in reaching these conclusions, we have in no way been held hostage by reference to time limits. Rather, we have done what we consider to be right in all the circumstances by reference to established principle and on the basis of the material and arguments that have been put before us.