QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
- and –
MR JUSTICE MITTING
| GJIN MARKU
|- and -
|THE NAFPLION COURT OF APPEAL, GREECE
MR EDWARD FITZGERALD QC AND MR DANIEL JONES (instructed by Sonn MacMillan Walker) for the Appellant
MR JAMES STANSFELD (instructed by the Crown Prosecution Service) for the Respondent
MR EDWARD FITZGERALD QC AND MR BENJAMIN SEIFERT (instructed by Edward Hayes LLP) for the Appellant
MR JAMES STANSFELD (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 28 June 2016
Crown Copyright ©
LORD JUSTICE BURNETT AND MR JUSTICE MITTING :
"Where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing member state that demonstrates that there are deficiencies, which may be specific or generalised…the executing authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned will be exposed…to a real risk of inhuman or degrading treatment within the meaning of Article 4."
If, after requesting and receiving supplementary information from the requesting judicial authority, it cannot discount the existence of such a risk it "must decide whether the surrender procedure should be brought to a close": Pal Aranyosi and Robert Caldararu C-404/15 and C-659/15 PPU paragraph 104.
Articles 3 and 4 – Prison conditions
"9…The CPT has observed a steady deterioration in the living conditions and treatment of prisoners over the past decade. The Committee has identified a number of fundamental structural issues which serve to undermine attempts to remedy this state of affairs. They include the lack of a strategic plan to manage prisons, which are complex institutions, the absence of an effective system of reporting and supervision, and inadequate management of staff. The CPT has highlighted in its reports the unsuitable material conditions, the absence of an appropriate regime and the poor provision of healthcare. It has found that due to the totally inadequate staffing levels, effective control within the accommodation areas of some of the prisons visited has progressively been ceded to groups of strong prisoners. All these issues are compounded by the severe overcrowding within most Greek prisons.
10. The Greek authorities have yet to recognise that the prison system as it is currently operating is not able to provide safe and secure custody for inmates. Discussions with the prison administration in Athens indicated a lack of appreciation on their part of the actual situation in the country's prison establishments.
11. The findings of the 2011 visit confirmed that a regulated prison system, as aspired to in law, has given way to the practice of warehousing prisoners. No action has been taken to implement the CPT's repeated recommendations to improve the situation in establishments visited as regards living conditions, staffing levels, purposeful activities and aspects of healthcare, not to mention inter-prisoner violence. Conditions are especially worrying at…Korydallos Men's and Women's Prisons…."
"61. The CPT is concerned that the Greek prison system is reaching breaking point and yet, despite the numerous warnings, the authorities have not taken up the fundamental structural issues raised in the Committee's previous reports with the necessary urgency. They include the lack of a strategic plan to manage prisons, which are complex institutions, the absence of an effective system of reporting and supervision, and inadequate management of staff.
The findings from the 2015 highlight that the main problems of overcrowding and chronic shortage of staff persist in the Greek prison system. These two overarching problems compound the many additional serious shortcomings in the prisons visited, including very poor material conditions, lack of hygiene, the absence of an appropriate regime and high levels of inter-prisoner violence and intimidation. Further, the insufficient provision and inadequate medical care in prisons is particularly worrying.
The situation has now deteriorated to the point where over and above the serious ill-treatment concerns under Article 3 of the European Convention on Human Rights (ECHR), there are very real right to life issues under Article 2 ECHR, in as much as vulnerable prisoners are not being cared for and, in some cases, are being allowed to die…
63. The challenges facing the prison system in Greece are not new and the CPT has been consistently pointing out the structural deficiencies for many years. Indeed the CPT's public statement of March 2011 was an alarm call for the Greek authorities to act to put in place a prison system that can provide safe and secure custody for inmates. Regrettably, the concerns raised by the CPT were not fully acknowledged by the previous governmental authorities and, as observed during the 2015 visit, the situation has further deteriorated to the point where lives are being lost. There is now an even greater need to recognise the systemic shortcomings and to devise a strategic plan for the recovery of the prison system with clear, short, medium and long-term goals. Currently, many prisons in Greece are merely acting as warehouses in which to hold people until they are eligible to be released back into the community. It is high time to change the way prisons function in Greece."
i) Ill-treatmentKorydallos PrisonThere was serious understaffing: wings of 350 – 400 prisoners were supervised by one or two prison officers who acted, effectively, as "turnkeys". In consequence, inter-prisoner violence and intimidation were rife. Prison staff told the CPT that they had no idea what was going on in the wings. There had been three incidents of very serious violence in 2 ½ years, the last of which resulted in the death of two prisoners and the hospitalisation of 21. In paragraph 67 the CPT said of the situation generally:"The CPT is seriously concerned that despite the gravity of the situation little or no action appears to have been taken to investigate the underlying causes of the violence or to put in place a strategy to prevent similar episodes of violence breaking out. On the contrary, the policy of simply warehousing various groups of inmates continues, the effect of which can be likened to a boiling cauldron left to simmer away with violent eruptions every few months."Nafplio PrisonThere was severe understaffing: 11 officers on day duties for (then) 510 – 600 prisoners. The nurse and deputy director had never been inside the accommodation areas because they were advised that it was unsafe. There was a hierarchy of prisoners, with intimidation and beatings, for those who did not follow it. Fighting led to stab wounds for three prisoners in one incident in February 2015. A culture of impunity existed.
ii) Conditions of detention"71. Once again, the CPT's delegation found that the living conditions in the prisons visited were generally very poor. The provisions of the 1999 Greek Prison Law are simply no longer adhered to with regard to standards of accommodation and norms for a safe environment, including healthcare and hygiene, to be provided to each prisoner. Some of the conditions encountered notably at Korydallos Prison hospital and at Nafplio Prison, can easily be considered as amounting to inhuman and degrading treatment."Korydallos Prison1,979 inmates were detained in a prison with an official capacity of 800. Cells of 9.5m² designed for single occupancy were occupied by three or even four inmates.Nafplio Prison509 inmates were housed in a prison with an official capacity of 314. The normal occupancy of 600 had been reduced by 70 just before the CPT visit, to remove known trouble-makers. At times of high numbers, 14m² cells were occupied by seven prisoners. Dormitories of 57m² capable of accommodating 14 prisoners adequately, contained 30 (46 before the CPT visit). Vulnerable prisoners were placed in bunks in a filthy and barely ventilated corridor. (This use ceased in June 2015 following the CPT visit).
iii) Healthcare servicesThere were severe staff shortages. There had been no improvement since 2011/2013.Korydallos Prison"The situation…remained dire". Three trainee doctors attended five times a month. 12 visited twice a week. There were three full-time nurses. "This is totally insufficient".Nafplio Prison"One highly committed full-time nurse…placed in an untenable position, professionally isolated and overwhelmed".The CPT stated that four full-time general practitioner equivalents and six full-time nurses were required for Korydallos Prison and one full-time general practitioner and three nurses for Nafplio Prison, by the end of January 2016.
"On the subject matter the Ministry of Justice, Transparency and Human Rights confirms that the organisation and operation of Greek prisons is governed by the relevant international and European penitentiary rules and principles. In any case the Greek state shall ensure the protection of human rights, of all persons under detention in Greek prisons, in conformity with the international, European and national rules of law. The Ministry of Justice, Transparency and Human Rights through its competent agencies is consistently ensuring the adequate hygiene standards within the detention establishments and shall continuously provide the detainees with the necessary health and medical care, on a level equivalent to that enjoyed by the general population of the country.
In this context, the Ministry of Justice, Transparency and Human Rights confirms that, in case of the EAW enforcement regarding the Iraqi citizen Mohamed Balaei Haris, the aforementioned assurances will be honoured and that the competent authorities will take care of resolving possibly special issues which may occur during his detention in Greek prisons.
As regards the other cases of EAW execution mentioned in the document number T02070354908/06-02-2015 of Home Office we confirm that the same as the above-mentioned assurances will be honoured by the competent Greek authorities." (The other cases included that of Marku).
On 23 March 2015, in relation to the same requested persons, the Minister stated,
"…We do certify that in addition to the assurances already given in these cases we state that each of the named requested persons will be accommodated in cells where they will have personal space in excess of 3 (three) m² not including space taken up by cell furniture. Further they will benefit from this assurance for the duration of their time of detention in Greece."
On 3 June 2016, Ioannis Stalikas, General Director of the General Directorate of Anti-Crime and Penitentiary Policy at the same ministry stated,
"…You are advised that the guarantees given in our documents (the two referred to)…in relation with the detention conditions that would apply to the requested Albanian national Marku Gjin in the case of his extradition to Greece will also apply to requested UK national Murphy John."
On 22 June 2016 Eftychios Fytrakis provided the information about numbers at the two prisons and stated that the "decongestion of prison establishments is expected to continue", in the light of a 2015 law of urgent measures for the reduction of the prison population and a Bill currently before Parliament, expected to be voted on in the coming days. He also stated, however, in response to a CPS email of 15 June 2016 which has not been produced to us that "further assurances other than the above (i.e. the assurances cited above) cannot be provided".
It can be inferred that the Greek authorities have provided all of the information which they wish our courts to have to deal with the judicial authority's request for extradition of the appellants – the Greek Government's response to the 2015 CPT report and the assurances cited.