Strand, London, WC2A 2LL
B e f o r e :
MR. JUSTICE OUSELEY
| (1) PHILIP PURCELL
(2) DENNIS PENGEL
|- and -
|(1) PUBLIC PROSECUTOR OF ANTWERP
(2) PROSECUTOR OF THE COURT OF FIRST INSTANCE, ANTWERP, BELGIUM
James Hines QC and Amanda Bostock (instructed by CPS Extradition) for the Respondents
Hearing dates: 6 July 2017
Crown Copyright ©
Lord Justice Hamblen :
"38 The first appellant, Mr Purcell, appeals the decision of District Judge Wright dated 12 January 2016 to order his extradition pursuant to a European arrest warrant issued by the Public Prosecutor's Office in Antwerp, Belgium, on 21 January 2014 and certified by the National Crime Agency on 1 April 2014. The warrant relates to five offences arising from events occurring in August 2012. Mr Purcell denies the offences. He was convicted and sentenced in absentia to a thirty-month default term imposed on 10 May 2013.
39 The second appellant, Mr Pengel, appeals a decision of District Judge Baraitser dated 11 October 2016 to order his extradition to Belgium pursuant to a European arrest warrant issued by the Court of First Instance, Antwerp, on 15 April 2016 and certified on 21 April 2016. In his case the European arrest warrant relates to a conviction for being concerned in the supply of up to fifteen kilogrammes of class A drugs between 27 May and 3 June 2015. A five-year term of imprisonment was imposed on the second appellant in absentia on 23 December 2015. The second appellant was remanded in custody from his first appearance in court on 29 April 2016 and he remains in prison to date.
40 There was a third appellant before the court, Mr Eslame. He appealed the decision of District Judge Goldspring dated 4 November 2016 to order his extradition to Belgium pursuant to a European arrest warrant issued by the Public Prosecutor in Kortrijk on 12 February 2008 and certified on 9 July 2015. He has been discharged on an alternative ground earlier today. Accordingly, he is no longer a party to this appeal.
41 Both of the remaining appellants argue that their removal to Belgium would violate their rights under Article 3 ECHR on account of overcrowding and poor conditions in Belgian prisons.
42 It is necessary to say something about the history of prison conditions and industrial action amongst workers in prisons in Belgium. In April 2005 the European Committee for the Prevention of Torture (CPT) made a periodic visit to Belgium. On that occasion it called for a guaranteed minimum service in prisons, that is that there should be legal limitations imposed on the rights of prison officers to take industrial action. At a subsequent visit in September and October 2009 the CPT noted that there was still no guaranteed minimum service despite continued industrial action by prison officers.
43 In April 2010 the Belgian Parliament passed Protocol 351 designed to address strikes. That was later found to be inadequate by the CPT. The CPT identified that there were two-hundred official strike days in 2010 and one-hundred-and-seventy strike days in both 2011 and 2012. In April 2012 the CPT made an ad-hoc visit to Belgium. Following that visit it called for a guaranteed minimum service without delay. This decision was based on the consequences of strikes on prisoners and prison conditions.
44 The CPT press release for the 2012 visit identifies a number of concerns with Belgian prisons. There were staff shortages and numerous restrictions at Andenne Prison during a spontaneous strike and it reflected the failure of the Belgian authorities to tackle the problems caused by prison staff strikes. It found a lack of running water, sanitary facilities, and separate beds (as opposed to a mattress placed on the floor) in certain cells at Forest Prison. There was almost a total lack of activities, long waiting time for "table" visits and a low staff/inmate ratio at Forest Prison. It found that there were no measures in place to alleviate the worsening overcrowding save for early releases. It noted the Belgian authorities' acceptance that they were unable to partition toilets at Forest Prison and put an end to using buckets in cells.
45 The CPT conducted a further periodic visit in September and October 2013 and reported on this in its report of March 2016. That report sets out similar criticisms in respect of Antwerp, Forest, Merksplas and Tournai Prisons. In particular, it noted that industrial action by prison staff led to the cancellation of prison visits and activities, limited healthcare, interrupted transfers, and that resulted in ill treatment, sometimes of a serious nature. It noted that most prisoners spent twenty-one hours a day in their cells. It noted that recommendations for a guaranteed minimum service in prisons had not been acted upon by the Belgian authorities. It referred to dilapidation and overcrowding which continued to be major problems with many prisoners held in cells with only three square metres or less of living space per person. It considered that plans for renovating and constructing prisons had so far been ineffective. It noted that many prisoners had only a bucket in a cell to use at night in Forest Prison and Tournai Prison. It considered that urgent action was required to address certain issues.
46 The reply by the Belgian Government to that report (also published in November 2016) recognised the problems with overcrowding and set out measures which had been prepared to deal with these problems, including modernisation, increasing capacity, the use of alternative sanctions and "the willingness to enforce short prison sentences".
47 On 20 April 2015 the European Court of European Rights handed down judgment in Vasilescu v Belgium Application No 64682/12, a case dealing with Belgian prison conditions and Article 3 ECHR rights of a Belgian national detained at Antwerp Prison and Merksplas Prison between October 2011 and October 2012. The Strasbourg Court found that such a violation of Article 3 was made out in respect of the periods when he had to occupy a space of less than three square metres. Even at times when his personal space exceeded three square metres, the court found that a combination of a lack of regular access to toilets and running water while he was detained at the pavilion in Merksplas Prison, the fact that he was required to sleep on a mattress on the floor and the fact that he was required to share with inmates who smoked for the majority of his detention, considered in combination, amounted to a violation of his Article 3 rights. The Strasbourg Court also held on that occasion that he had no effective remedy in domestic law.
48 In April 2016, following an inspection, the Belgian Federal Ombudsman called on the Parliament to protect prisoners during strikes, stating:
"The gravity of the situation in several prisons now reached an unprecedented level."
49 Between April and June 2016 there were widespread strikes by staff within Belgian prisons. As a result, the CPT conducted another ad-hoc visit in May 2016 visiting a number of different prisons in order to report specifically on the ongoing strike. The report on this visit which was published in November 2016 repeats some of the criticisms to which I have already referred, but it also emphasised the failure to legislate for safeguards in the event of future strikes. Particular issues which it noted in relation to the strikes included the fact that during industrial action the vast majority of prisoners had no opportunity of open-air exercise or any other activity outside their cells for a period of nearly two weeks. Many were locked in their cells for twenty-four hours a day. In the establishments visited, food supply was restricted or blocked for several days by strike pickets and generally three meals were distributed to prisoners at once. Access to showers was restricted to one or two showers weekly. Laundry and healthcare services and contact with the outside world were also significantly affected. It noted that these conditions led to ever-increasing tensions among detainees.
50 The Belgian Government's response to this report (also published in November 2016) stated that it had taken the following action. First, injunctions had been sought in the courts to guarantee the basic rights of prisoners. This included the obtaining of injunctions to prevent picketing of prisons. Secondly, recourse was made to the local and federal police, the armed services, civil defence and the Red Cross to assist prison staff and management in order to meet as far as possible the rights and needs of inmates. Thirdly, during the strike prison leave of one or two weeks was granted to some two-hundred inmates, thereby reducing the number of prisoners. Fourthly, after the strike, provision had been introduced for the early release of some prisoners thereby reducing the national prison population to 10,250. Fifthly, after the strike the normal regime was re-established in each prison at the end of June 2016.
51 The response stated:
"There have been no strikes adversely affecting inmates' rights. Only strikes lasting a few days have taken place in certain prisons."
That response also noted that the Belgian Government was working on a guaranteed minimum service through discussions with the trade unions, and indicated that the climate in prisons had improved.
52 The Council of Europe also considered the situation in Belgian prisons at a meeting with the Ministers' Deputies in September 2016. It noted that overcrowding, lack of hygiene and dilapidation in prisons are structural problems in Belgium and it requested that the Belgian authorities provide information on the measures being taken to address these problems.
53 The cases of the first and second appellants were joined by an order of Mr Justice Ouseley made on 14 March 2017. Their applications for permission to appeal were heard by the Divisional Court (Lord Justice Flaux and Mr Justice Mitting) on 7 April 2017. That court granted permission to appeal on the Article 3 ground. At that hearing Mr Justice Mitting, delivering his judgment with which Lord Justice Flaux agreed, observed that the respondent judicial authorities would have the opportunity to submit further information in accordance with Aranyosi . He indicated that he proposed to give permission on that ground simply for that reason, to ensure that the issue of Belgian prison conditions could be conclusively determined and for no other reason. The judge was referring to the judgment of the Court of Justice of the European Union in Joined Cases C-404/15 and C-651/15 PPU Aranyosi and Caldararu (judgment of 5 April 2016.) I shall return to that decision.
54 A letter requesting further information from the Belgian judicial authorities dated 3 May 2017 was duly sent by the Crown Prosecution Service on 3 May 2017. That asked in particular for an update on progress on the implementation of a law which would guarantee a minimum service by prison staff; it asked whether there had been any further strikes of significant duration in Belgian prisons since the prolonged strike of May to June 2016; and it asked for confirmation that an assurance given in an earlier case - that persons extradited to Belgium under a European arrest warrant would be detained in institutions which were free from warder strikes - applied in the case of these appellants. I note with regret that in fact the requesting judicial authorities have not lodged any further material pursuant to this request.
55 In these circumstances Mr Fitzgerald QC, appearing on behalf of both appellants, submits that this court should proceed today to find in the appellants' favour on the Article 3 ground. In the alternative, he submits that the matter should be adjourned to permit the court to follow the Aranyosi process."
"(1) Please confirm in which prisons each appellant would be held post-extradition including upon arrival in Belgium, pending any retrial and during the service of their respective sentences;
(2) Please provide an assurance of the minimum square metres of personal space each appellant will be afforded within their cell excluding toilets;
(3) Please confirm the arrangements for the appellants to use toilets in all facilities in which they may be held. Please confirm whether these are in-cell facilities and if so whether they are partitioned or separated from other prisoners or what measures are taken to guarantee their privacy and dignity;
(4) What provisions will be made for each of these appellants to engage in out-of-cell activities?
(5) Are the judicial authorities able to provide an assurance that these appellants will not be held at a prison where a warder strike is taking place?"
"1. There have been UNION ACTIONS (STRIKES) by some unions representing a portion of the prison staff in some Belgian prisons in the past. These strikes have occurred during the time frame 25 April – June 2016. Since June 2016, these strikes have ended and since June 2016 no new strikes have occurred in any of the Belgian prisons.
It should be noted that at the material time, i.e. more than one year ago, only some of the French speaking unions have called for a strike, which means that these strikes have exclusively occurred in French speaking prisons, i.e. the prison located in the south of the country and in two Brussels prisons, albeit partially since these facilities are bilingual. The strikes were related to the (then) new prison personnel plan. Immediately after the outbreak of the partial strike, negotiations were held between the minister (of Justice) and the relevant union's representatives. These have led to a sustainable solution.
Accordingly, the appellants run no risk at all to be detained in a Belgian prison where the prison staff would be on strike and where any of the facilities or activities for the benefit of the prisoners would be diminished because of a strike or any other type of union action.
2. The appellants are the subject of pre-trial proceedings – prosecutions – by the Antwerp judicial authorities. This means that the proceedings must be conducted in the official language, i.e. Dutch. Consequently, the appellants will be detained in a Dutch speaking prison, both during the pre-trial, the trial proceedings and during the post-trial execution of the eventual (prison) sentence(s). Like every prisoner, the appellants may request their transfer to any other prison during the post-trial (sentencing) phase if their current location would be detrimental for their (distant) family to visit the appellants.
The appellants will be held in the Beveren prison, outside of Antwerp. Beveren prison was constructed between 2012-2014 and is open since March 2014. Beveren prison is part of Prison Masterplan II encompassing substantial renovations of older facilities and the construction of new facilities, two of which were commissioned in 2014. The facility is of the latest design and meets European and domestic prison standards.
Beveren prison has 284 cells, 12 cells are currently free – status on 5 July 2017. 252 cells are mono-cells (for one person). The dimensions are: 3,5m x 2,70m = 9,45 m2, including the sanitary bloc, which includes the shower and the toilet. The other 32 cells are dual-cells which are exactly the double in size as the mono-cells, i.e. 18,9 m2, including the sanitary bloc. The latter are occupied by not more than two inmates. The sanitary bloc is separated from the rest of the cell, both in the individual and in the dual cells in order to assure privacy and dignity. There are no particular restrictions as to the use of the toilet.
Out–of-cell activities include regular walks on the (open) court. Beveren prison, has sports and fitness facilities, a library and a workspace enabling inmates to have a regular job, including repair and industrial / construction tasks for private contracts. Like all prisoners, the appellants will be able to benefit from these facilities and participate to these activities.
Beveren prison is the pioneer facility for the so-called Prison Cloud, a secure intranet system that enables prisoners for instance to consult their case file electronically."
"12. The CPT considers that failure to comply with these requirements may result in a large number of inmates being subjected to inhuman or degrading treatment, or the aggravation of situations already characterised as intolerable, endangering the health and life of inmates and compromising the security of the establishments concerned. The lack of concrete progress over many years in establishing a viable system for these rights to be upheld in all circumstances, in particular in the context of industrial action by prison staff, is a serious failure to co-operate with the Committee, about which successive Belgian governments have made their views known on numerous occasions. For these reasons, the CPT has had no choice but to make this public statement, pursuant to Article 10, paragraph 2, of the Convention establishing the Committee."
The relevant legal principles
(1) "The extradition of a requested person … can give rise to an Article 3 issue, which will engage the responsibility of the state from which the extradition is sought.
(2) If it is shown that there are substantial grounds for believing that the requested person would face a "real risk" of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country then Article 3 implies an obligation on the Contracting state not to extradite the requested person.
(3) Article 3 imposes "absolute" rights, but in order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. In general, a very strong case is required to make good a violation of Article 3. The test is a stringent one and it is not easy to satisfy.
(4) Whether the minimum level is attained in a particular case depends on all the circumstances, such as the nature of the treatment, its duration, its physical and mental effects and, possibly, the age, sex and health of the person concerned. In that sense, the test of whether there has been a breach of Article 3 in a particular case is "relative".
(5) The detention of a person in a prison as a punishment lawfully imposed inevitably involves a deprivation of liberty and brings with it certain disadvantages and a level of suffering that is unavoidable because that is inherent in detention. But lawful detention does not deprive a person of his Article 3 rights. Indeed, Article 3 imposes on the relevant authorities a positive obligation to ensure that all prisoners are held under conditions compatible with respect for human dignity, that they are not subjected to distress or testing of an intensity that exceeds the level of unavoidable suffering concomitant to detention. The health and welfare of prisoners must be adequately assured.
(6) If it is alleged that the conditions of detention infringe Article 3, it is necessary to make findings about the actual conditions suffered and their cumulative effect during the relevant time and on the specific claims of the complainant.
(7) Where prison overcrowding reaches a certain level, lack of space in a prison may constitute the central element to be taken into account when assessing the conformity of a given situation within Article 3. As a general rule, if the area for personal space is less than 3 metres2, the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3.
(8) However, if overcrowding itself is not sufficient to engage Article 3, other aspects of the conditions of detention will be taken into account to see if there has been a breach. Factors may include: the availability for use of private lavatories, available ventilation, natural light and air, heating, and other basic health requirements."
(1) "Member states of the Council of Europe are presumed to be able and willing to fulfil their obligations under the ECHR, in the absence of clear, cogent and compelling evidence to the contrary.
(2) That evidence would have to show that there was a real risk of the requested person being subjected to torture or inhuman or degrading treatment or punishment.
(3) This presumption is of even greater importance in the case of member states of the European Union. In such cases there is a strong, albeit rebuttable, presumption that EU member states will abide by their Convention obligations. Each member state is entitled to have confidence that all other EU states will abide by their Convention obligations.
(4) The evidence needed to rebut the presumption and to establish a breach of Article 3 by the EU member state (our emphasis) will have to be powerful."
"The Article 3 test in the context of extradition is whether there are substantial grounds for believing that there is a real risk that the person extradited would be subjected to inhuman or degrading treatment or punishment by reason of the prison conditions upon his return and (if convicted) during any imprisonment. To make a conclusion based on this test the court has to examine the present and prospective position as best it can on the materials now available. In "prison condition" cases the factual position is unlikely to be static. There may be new evidence about the conditions in a country generally or a particular prison where the position has already been considered by a court. The view of any court, even the ECtHR, on prison conditions in a country or a particular prison at any time is only definitive at the time that the view is expressed. If cogent evidence is adduced which demonstrates that the view a court took previously about prison conditions generally or in a particular prison can no longer be maintained, then the court must review again the evidence about the relevant prison conditions. Evidence is unlikely to be treated as cogent unless it demonstrates something approaching an international consensus that the position has changed. To adopt a lower threshold would introduce an unacceptable degree of uncertainty in the area. But, an obvious example where the test may well be satisfied is where the Strasbourg or Luxembourg courts have held a Contracting or Member State to be in breach of its Article 3 obligations regarding prison conditions, has required that remedial measures be undertaken, which have then been implemented and upon which the Committee of Ministers or the ECtHR have then indicated views."
The grounds of appeal
(1) This court's decision to engage in the Aranyosi process involves a determination that there is "objective, reliable, specific and properly updated evidence" of a real risk that the appellants will be subject to inhuman conditions in breach of Article 3.
(2) That being so, the court should find that there is such a risk unless the further information provided and assurances given require the court to find otherwise, which it does not.
(3) In any event, on the evidence as a whole there is such a risk.
In all the circumstances the appeals should be allowed and the extradition orders quashed.
"87. Articles 1 and 4 of the Charter and Article 3 ECHR enshrine one of the fundamental values of the Union and its Member States. That is why, in any circumstances, including those of the fight against terrorism and organised crime, the ECHR prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see judgment of the ECtHR in Bouyid v. Belgium, No. 23380/09 of 28 September 2015, § 81 and the case-law cited).
88. It follows that, where the judicial authority of the executing Member Sate is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State, having regard to the standard of protection of fundamental rights guaranteed by EU law and, in particular, by Article 4 of the Charter (see, to that effect, judgment in Melloni, C-399/11, EU:C2013:107, paragraphs 59 and 63, and Opinion 2/13, EU:C:2014:2454, paragraph 192), that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing Member State of the individual sought by a European arrest warrant. The consequence of the execution of such a warrant must not be that that individual suffers inhuman or degrading treatment.
89. To that end, the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. That information may be obtained from, inter alia, judgments of international courts, such as judgment of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN.
90. In that regard, it follows from the case-law of the ECtHR that Article 3 ECHR imposes, on the authorities of the State on whose territory an individual is detained, a positive obligation to ensure that any prisoner is detained in conditions which guarantee respect for human dignity, that the way in which detention is enforced does not cause the individual concerned distress or hardship of any intensity exceeding the unavoidable level of suffering that is inherent in detention and that, having regard to the practical requirements of imprisonment, the health and well-being of the prisoner are adequately protected (see judgment of the ECtHR in Torreggiani and Others v. Italy, Nos 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10, and 37818/10, of 8 January 2013, § 65).
91. Nonetheless, a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing Member State cannot lead, in itself, to the refusal to execute a European arrest warrant.
92. Whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State.
93. The mere existence of evidence that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, with respect to detention conditions in the issuing Member State does not necessarily imply that, in a specific case, the individual concerned will be subject to inhuman or degrading treatment in the event that he is surrendered to the authorities of that Member State.
94. Consequently, in order to ensure respect for Article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of Article 4.
95. To that end, that authority must, pursuant to Article 15(2) of the Framework Decision, request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State.
96. That request may also relate to the existence, in the issuing Member State, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons.
97. In accordance with Article 15(2) of the Framework Decision, the executing judicial authority may fix a time limit for the receipt of the supplementary information requested from the issuing judicial authority. That time limit must be adjusted to the particular case, so as to allow to that authority the time required to collect the information, if necessary by seeking assistance to that end from the central authority or one of the central authorities of the issuing Member State, under Article 7 of the Framework Decision. Under Article 15(2) of the Framework Decision, that time limit must however take into account the need to observe the time limits set in Article 17 of that Framework Decision. The issuing judicial authority is obliged to provide that information to the executing judicial authority.
98. If, in the light of the information provided pursuant to Article 15(2) of the Framework Decision, and of any other information that may be available to the executing judicial authority, that authority finds that there exists, for the individual who is the subject of the European arrest warrant, a real risk of inhuman or degrading treatment, as referred to in paragraph 94 of this judgment, the execution of that warrant must be postponed but it cannot be abandoned (see, by analogy, judgment in Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 38)."
The reference there is to Article 4 of the European Union Charter which corresponds to Article 3 of the ECHR.
(1) There is a long history of strike action leading to prisoners suffering inhuman conditions in Belgium.
(2) The CPT has now explicitly stated in November 2016 report that the last strike from April to June 2016 produced several situations which "could easily" be considered inhuman and degrading.
(3) There have been longstanding calls from the CPT for a "guaranteed minimum service" at least dating back to 2005.
(4) Despite these calls nothing has been done to provide the necessary "guaranteed minimum service".
(5) The problems in the Belgian prison state are so concerning that the CPT has taken the exceptional step of issuing a public statement.
(6) The strikes have affected all prisons, not just Wallonia.
(7) The underlying issue is one of overcrowding which remains a significant problem across the prison estate.
(8) It is not the case that industrial action affecting prisoners' conditions simply ceased in June 2016.
(9) It is therefore difficult to see how an effective guarantee can be given that the appellants will be detained in a prison where there is no are no substantial grounds for believing there is a real risk of industrial action and consequent inhuman treatment, particularly given that the underlying reason for the industrial action is the poor condition of the prisons.
Mr Justice Ouseley: