England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9th July 2010

1. MR JUSTICE KENNETH PARKER: Italias Sorokins, the requested person, is requested to return to Latvia by the Kraslava Regional Court of first instance, in order that he may be prosecuted for seven criminal offences. Latvia has been designated as a category 1 territory, pursuant to section 1 of the Extradition Act 2003 ("the Act").
2. The requested person was arrested on 12th October 2009, on a European Arrest Warrant (EAW), issued in relation to the Latvian request. He was produced before City of Westminster Magistrates' Court the following day. Extradition was contested by the requested person on the basis of passage of time, under section 14 of the Extradition Act and under section 21 of the Act, namely under Articles 3 and 6 of the European Convention on Human Rights ("the ECHR"). The extradition hearing was heard before District Judge Nicholas Evans on 18th February 2010. Extradition was ordered by the district judge on 17th March 2010.
3. The requested person now appeals the decision of the district judge. Originally there were four grounds of appeal to which the respondent replied at length. On 1st July 2010, a few days before this hearing, amended grounds of appeal were advanced. The single ground being that the return of the requested person will be incompatible with Article 3 ECHR. At the same time an application was made to admit new evidence.
4. The EAW was issued by the Kraslava Regional Court of first instance on 2nd December 2008. The requested person is wanted to face trial in respect of seven separate offences as set out in box E of the EAW. The offences being an attempted burglary, five burglaries and a theft.

The Application to Admit Fresh Evidence

5. The application is made under section 27 of the Act which refers to evidence that was not available at the extradition hearing. In Szombathely v Fenyvesi [2009] EWHC 231 (Admin) the President (Sir Anthony May) said:

"In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained."

6. The new evidence is in the form of a document printed from the United State's State Department website entitled "2009 Human Rights Report, Latvia". The date given under the heading is 11th March 2010. However, it is not possible to ascertain from the printed copy of the report when it was first posted on the website.
7. In a witness statement to support this application, Miss Susan Chung, representing the requested person, states that she does not know when the report was posted on the Internet. Her firm represented the appellant at the extradition hearing on 18th February 2010 but she does not seek to explain in her statement why the report could not, with the exercise of due diligence, have been obtained by the date of the hearing or at least before the judgment of the district judge on 17th March 2010. In fact she does not say when she obtained the report. In those circumstances, we would have some doubts about the admissibility of the report under the application of the strict criteria. However, we, with the consent of Miss Mackinnon, who appeared on behalf of the respondent, looked at the fresh material de bene esse to see in any event to see whether it indeed supported the substantive appeal, to which I now turn.
8. As to new evidence, in Fenyvesi, Sir Anthony May, the President said:

"The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive."

The appellant relies upon the 2009 report to show that he would face a real risk of inhuman or degrading treatment if he were imprisoned in Latvia. The European Court of Human Rights has considered conditions of detention under Article 3 on a number of occasions. The basic rule is that:

"The State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured."

(Caroll Vikius v Lithuania (7th April 2005) at paragraph 34).

9. The relevant report of the United States State Department here states that prison in Latvia remain poor and over crowded. That in itself would not be sufficient to raise real concerns under Article 3 where the threshold remains relatively high. The report also refers to a further report on a 2007 visit by the Council of Europe's Committee for the prevention of torture which made more specific criticisms of prison conditions in respect, for example, of health treatment, security of prisoners, diet, sanitation and exercise. These criticisms standing alone would give rise to some concern.
10. However, first, that report expressly stated that the prison conditions "could in some cases be considered inhuman and degrading". That would strongly suggest that even in 2007 prisons in Latvia did not systematically fall below the standards required by Article 3, even if there were sporadic failures. Secondly, that report was in 2007. The government of Latvia acknowledged that prison conditions were poor and were making efforts to improve facilities. We do not have up-to-date material but we should not assume that as a member of the Council of Europe and bound by the ECHR, Latvia has not continued it efforts to improve prison conditions. In this context it is notable that the government has generally permitted independent monitoring of prisons by international and local human rights groups and such willingness to submit to independent scrutiny gives ground for believing that the government is likely to continue its effort for improvement.
11. It is also notable that Latvia had an ombudsman with power to deal with complaints in respect of prison conditions and treatment and has, according to the report relied upon taken steps to investigate a number of these complaints.
12. Finally, as I have noted, Latvia is a member of the Council of Europe and is obliged take steps to comply with Article 3 of the ECHR in respect of prison conditions.
13. At the hearing, Mr Atlee referred us to the case of Orkovski v Poland to support his submissions under Article 3. However a close examination of that case shows that it was at the extreme end of the spectrum because, as the court makes clear in its assessment beginning at paragraph 147, the public authorities in Poland had recognised that the prison conditions in Poland fell short of their own constitutional standards and there had been decisions of the constitutional court in Poland that also held that there was a systemic failure in Poland to comply with the standards of Poland's own constitution. It seems to me that that case then is as at the far end of the spectrum and is not of great assistance in the present position.
14. In short, the new evidence comprising the report tends to show, in 2007, sporadic failure to meet the requirements of Article 3. There are governmental efforts to improve prison conditions generally and a working system for handling specific complaints. In my judgment, that evidence falls far short of proving that this requested person would face a real risk of inhuman or degrading treatment if he were to serve a term of imprisonment in Latvia. I would dismiss this appeal.
15. LORD JUSTICE HOOPER: I agree. Thank you both very much.