Andrew Stewart Henderson Campbell v Court of Thrace (Greece)

For the appellant, David Williams submits that the information provided by the Greek authorities is contradictory. The assurance that each prisoner will be given at least 3 sq m. of personal space is contradicted by the further information dated 20 May 2021, which reveals severely overcrowded conditions in which prisoners have less than 2 sq. m. of personal space. In these circumstances, the Divisional Court in Sula was wrong to accept the assurance as sufficient to dispel the real risk of treatment contrary to Article 3. Alternatively, Sula can be distinguished because the assurance in that case was given in response to specific enquiries made pursuant to the Aranyosi procedure.

Mr Williams argues that Prof. Tsetselikis’ report provides a proper basis on which to depart from Sula. Although there is no signed statement from Owda, Prof. Tsetselikis is a reliable witness and the information from Owda is precise. It undermines the Divisional Court’s reliance on the assurances given in Sula.

The CPT report of September 2022, which contains evidence of persistent overcrowding and understaffing in Greek prisons, supplies a further basis for departing from Sula, which was premised on the Greek authorities’ positive response to the previous CPT report.

For the respondent, Jonathan Swain submits that the assurance in this case is unequivocal that the appellant will be provided with personal space of at least 3 sq. m. This makes it irrelevant what conditions are for other prisoners. Extradition has been ordered to other countries on the basis of similar assurances: see e.g. GS v Hungary [2016] EWHC 64 (Admin), [2016] 4 WLR 33 and Zagrean v Romania [2018] EWHC 1885. In the latter case, the Divisional Court (Sharp LJ and Cranston J) noted at [58] that, if an assurance was reliable, the UK courts “cannot be concerned with how this goal will be achieved”.

The information from Owda in the statement of Prof. Tsetselikis is hearsay. It has not been verified by Prof. Tsetselikis (for example by reference to domestic complaints, freedom of information requests or other means of independent verification of the account given). Prof. Tsetselikis says that Owda “feels under psychological pressure” not to sign any statement. If so, it is unclear on what basis Prof. Tsetselikis considers himself able to provide the evidence in it to the Court. In any event, Owda’s statement is broad and inexact. Prof. Tsetselikis provides no evidence for his assertion that “assurances are not observed”.

Nothing in the CPT report of September 2022 undermines the conclusions of the Divisional Court in Sula. The conclusion was that lack of staffing and inter-prisoner violence did not give rise to any arguable Article 3 issue. The September 2022 CPT report did not say that conditions has worsened since those described in the previous report considered in Sula, just that overcrowding and staffing issues had not improved. Inter-prisoner violence had reduced since the last inspection in 2019. In any event, the Greek Government’s response to the September 2022 report showed a commitment to improve conditions, including by transferring prisoners to rural prisons (easing overcrowding), by building new prisons and by significant staff recruitment.

Article 3 arguments will often depend on the conclusions that can be drawn from publicly available reports, including those of bodies established by the Council of Europe, such as the CPT. Prison conditions in particular countries fall to be considered by the appellate courts from time to time. Their decisions as to the factual circumstances pertaining in the country in question will depend on the evidence in a particular case. It will always be possible to say in a subsequent case that matters have moved on. But, where an appellate court (and particularly the Divisional Court) has made recent, general findings about prison conditions in a particular country, consistency of treatment demands that other appellate courts should be cautious about departing from those findings absent cogent evidence of a material adverse change in conditions or important new evidence unavailable to the court on the previous occasion.

The Divisional Court considered Greek prison conditions in Sula in February 2022. It concentrated on the issue of personal space because it was “not persuaded that any of the other matters relied upon by the Appellant, such as lack of staffing, or inter-prisoner violence, whilst they were of concern to the CPT, give rise to any arguable Article 3 issue”: [43]. The Divisional Court in Owda had reached the same conclusion in 2017, noting that the conditions held to breach Article 3 standards in Marku related to two particular prisons (Korydallas and Nafplio): see at [17]-[22].

It was part of Mr Williams’ submissions that, even looking purely at the material before the Divisional Court in Sula, I should reach a different view as to whether a real risk of treatment contrary to Article 3 was shown. I have reviewed the material (and in particular the 2020 CPT report) with care. There are certainly passages which disclose real concerns, particularly as to staffing levels and inter-prisoner violence, but the Divisional Court acknowledged this. I would respectfully agree with the conclusion reached that, outside the two prisons identified in Marku, these concerns do not rise to the level necessary to displace the strong presumption that a state which is both an ECHR contracting state and a member of the EU will fulfil its obligations under the ECHR.

I have also considered the September 2022 CPT report, but do not find anything in it that would justify a departure from the conclusions of the Divisional Court in Sula. As Mr Swain submitted, the overall tenor of the report is that conditions have not improved in the way it was hoped they would, although levels of inter-prisoner violence have reduced. Most importantly, however, the domestic authorities make it clear that it is necessary to concentrate on the prison where the appellant will be held. There is nothing in the September 2022 report to indicate any particular concerns about the Komotini Detention Facility, above and beyond the concerns identified about the prison system in Greece generally.

It follows that, in my judgment, the key issue in this case is personal space. On that issue, Mr Swain has not sought to suggest that there is no real risk for prisoners in general of being held in conditions where they have less than 3 sq. m. of personal space. His submission is that the general assurance (similar to the one given to the Court in Owda) is sufficient to negative the risk in this case. If there were credible and cogent evidence that the assurance given in Owda’s case had not been honoured, that would be capable of undermining its evidential value for two reasons. First, it would be relevant to the receiving state’s record in abiding by similar assurances in other cases (see Othman, [188(7)]). Second, if (as alleged here) the breach only came to light after Owda’s release, it might also illustrate the lack of an adequate monitoring mechanism (see Othman, [188(8)]).

The witness statement of Prof. Tsitselikis therefore requires careful analysis. There is no suggestion that its contents were available to the appellant significantly before it was filed. It therefore satisfies the first of the criteria in Fenyvesi v Hungary [2009] EWHC 231, [2009] 4 All ER 324. That makes it important to consider whether, had it been available, it would have made a decisive difference. Paragraphs 5 and 6 of the statement recount the information received from Owda in the following terms:

“5.

Mr Owda was extradited to Greece on the 21^st June 2017 and held at the prison of Diavata, as the Greek authorities had foreseen. He was placed in wing B, cell Νο 16 of the prison of Diavata with another 9 inmates. The surface of the cell is 24 sq.m., therefore he had at his disposal 2.4 sq.m. In December 2017 he was moved to wing A, cell Νο 10. Again the cell was 24 sq.m. and the number of inmates in total 10. He remained in such conditions until the 20^th February 2018 when, after a hunger strike that took place at the prison of Diavata as a reaction to the dire living conditions, he was transferred to the prison of Domokos. The transfer was a collective measure of punishment for all participants involved in the hunger strike. Mr Owda was transferred although he was just acting as an interpreter for the Arab-speaking participants. The capacity of the prison of Diavata is 358, and its occupancy in 2017 - 2018: min 544, max 560.

6.

At the prison of Domokos (capacity: 600, occupancy in 2018-2021: min 520, max 735) Mr Owda was placed at wing C, cell Νο 20. After a year he was moved to wing D, until he was released on the 14th February 2021. Both cells measured 11,5 sq.m., designed to accommodate three inmates. Mr Owda lived in these cells with another 2 or 3 inmates. Only for short periods of time he was held with only one more inmate. Therefore, he had at his disposal in most of the time 2.8-3.8 sq.m. according to the occupancy of the cell.”

I do not think that the lack of a signed statement from Mr Owda himself detracts from the evidential value of this information. The reason given by Prof. Tsitselikis is credible: Owda’s belief (whether well-founded or not) that the giving of such a statement might be held against him in ongoing criminal proceedings. Nor do I consider that the circumstances in which the information was imparted casts significant doubt on its credibility: Prof. Tsitselikis apparently interviewed Owda with his lawyer present. The fact that Owda’s own lawyer was present makes it unlikely that there was any doubt about the purpose for which the information was being given. Although the information is hearsay, that does not prevent its admission: as the Divisional Court has noted, while strict rules of evidence apply to some issues in extradition proceedings, greater latitude is permitted on human rights issues: Parkes v Germany [2021] EWHC 1655 (Admin), [43]. In this case, there is no reason to doubt that Prof. Tsitselikis is accurately relaying what Owda told him.

Owda’s information, as contained in the report, was certainly not general or vague. On the contrary, it was quite specific as to the cells in which he was held, the date when he was held there and as to the dimensions of those cells. It is true that, in relation to the first two cells at Diavata, it is not said in terms that there were 10 prisoners present for the whole period between 21 June 2017 to 20 February 2018, but the clear implication is that this was the case for all or much of the time. (Even if there had been 9 prisoners in the cell, the 3 sq. m. minimum would have been breached, if the dimensions reported are correct.) As to the cells at Domokos, where Owda was held from 20 February 2018 to 14 February 2021, the text is clear that Owda was housed in a cell which – when 4 prisoners were housed there together – afforded less than 3 sq. m. of personal space to each. It is not clear for how long 4 prisoners were housed there, though it is said that there were fewer than 3 prisoners “only for short periods”.

In my judgment, this information qualifies as significant and material. It comes from an apparently reliable primary source – Prof. Tsitselikis. More importantly, the information is detailed and reasonably precise (save as to exactly how many prisoners were present for what periods). It should be possible for the Greek authorities to verify or contradict the information given from their own records without difficulty – or provide further details which shows for how long (if at all) Owda was housed in accommodation which afforded him less than the 3 sq. m. promised in the assurance. That affects the analysis in two ways. First, it makes it less likely that Owda would be telling deliberate untruths: there would be no point, because he would know that the information could be easily disproved. Second, it means that – if, for whatever reason, the information is false – it should be relatively easy for the Greek authorities to demonstrate that.

As it stands, the (at present unanswered) material in Prof. Tsetselikis’ report is prima facie evidence sufficient to raise the risk of Article 3 ill-treatment to a “real” one. This means that I must postpone the decision on surrender to give the Greek authorities an opportunity to answer the points made by Prof. Tsetselikis: see Case C-404/15 PPU Aranyosi EU:C:2016:198 [2016] QB 921, [104]. I will invite submissions from both sides on the precise terms of the request.

The judge correctly directed himself as to the proper approach to Article 8. He cited and accurately summarised the key authorities: Norris v USA [2010] UKSC 9, [2010] 2 AC 487, HH v Italy [2012] UKSC 25, [2013] 1 AC 338 and Celinski v Poland [2015] EWHC 1274 (Admin), [2016] 1 WLR 551. He noted that delay weighs heavily in the balance if it is found to be culpable (Glica v Poland [2014] EWHC 359 (Admin), but that the court should be cautious before finding delay to be culpable (Wolack v Poland [2014] EWHC 2278 (Admin), [9]) and delay is of limited assistance to an appellant if it is not found to be culpable (ibid., at [10]).

The judge identified these factors in favour of extradition: the public interest in ensuring that extradition arrangements are honoured, particularly where, as here, a lengthy custodial sentence remains to be served; the importance of according a proper degree of respect to the sentencing decisions of the requesting state; the seriousness of the offending; and the appellant’s fugitive status. The factors against extradition were: that a considerable part of the appellant’s offending behaviour was attributable to alcohol addiction and he had done voluntary work to address his addiction and therefore his offending behaviour; his lifestyle was now quite different from how it was in 2011; he had increased contact with his son and engaged with the church community; and he enjoyed an improving relationship with his son.

Balancing these factors, the judge noted that the appellant accepted that he had left Greece in breach of an obligation imposed on him and was therefore a fugitive from justice. Although it was right that there should be a focus on his relationship with his son and the effect that his surrender might have on the son, he was not a carer and had infrequent contact. This was confirmed by the report under s. 7 of the Children Act 1989, which concluded that the appellant’s extradition “would not have a significant impact” on his son. The report of Lynne Jackson, a psychologist, showed that the appellant was vulnerable but did not establish that he currently suffered from any mental illness or disorder. This was confirmed by the report of Dr Osman Hussain. The judge noted that no specific treatment was suggested, nor was it suggested that if any were required in the future it would be unavailable in the Greek prison system.

The judge held that extradition would not constitute a disproportionate interference with the appellant’s Article 8 rights.

Mr Williams submitted that there was no sufficient analysis of the impact of delay on the appellant’s private and family life. A delay of about 10 years ought to have weighed heavily on the mind of a court faced with a man of some vulnerability faced with a request for extradition on a conviction warrant to serve a manifestly disproportionate sentence.

For the respondent, Mr Swain submitted that the judge had properly balanced all the relevant factors and this court should be slow to intervene.

For my part, I consider that the judge’s analysis on this issue was sound. Although there was considerable delay, that had to be viewed in the context that the appellant was a fugitive. Although extradition would undoubtedly have an effect on both his private and his family life, the judge properly analysed the extent of the effect on the son as the key factor. On the expert evidence, the impact on the son would not be significant. The impact on the appellant’s private life more generally was properly recorded and taken into account. Against these factors, the judge was right to say that the length of the sentence reflected the Greek court’s view of the seriousness of the offending. It was not for the judge to go behind the sentencing decision, which was properly a matter for the sentencing court. Given the view taken by the sentencing court, the public interest in extradition in this case was inevitably treated as very weighty.

In my judgment, it is not arguable that the judge’s decision as to how to balance these factors was wrong in the sense identified by the Supreme Court in Re B (A Child) [2013] UKSC 33, [2013] 1 WLR 1911. Given the seriousness of the offence (as determined by the sentencing court), the appellant’s fugitive status and the relatively limited nature of the relationship between the appellant and his son, this was not a marginal case. The factors in favour of extradition clearly outweighed those against it.

I have considered de bene esse the report of Rosaline van de Weyer, Consultant Occupational Therapist, which the appellant applies to adduce as fresh evidence. I do not need to consider the question whether this report should have been obtained earlier, because its contents could not in any event alter the Article 8 balance in this case. To the extent that it contains a diagnosis of dyspraxia, it does not establish that this condition (as opposed to others from which the appellant has in the past suffered) would have a serious impact on the appellant’s ability to cope in a prison setting.

For these reasons: