QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE DINGEMANS
| Alisson Soares Pimenta
|- and -
The Republic Of Brazil
Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 10 October 2017
Crown Copyright ©
Lord Justice Hamblen :
The grounds of appeal
(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 3m2, 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."
"In my report on my mission to Brazil, I identified some troubling observations including issues with conditions of detention, primarily severe overcrowding in prisons and its effects on the rights and security of persons incarcerated. My conclusion was that conditions of detention in Brazil frequently "amount to cruel, inhuman or degrading treatment. Severe overcrowding leads to chaotic conditions inside the facilities, and greatly impacts the living conditions of inmates and their access to food, water, legal defence, health care, psychosocial support, and work and educational opportunities, as well as sun, fresh air and recreation"".
"More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving state's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:
(1) whether the terms of the assurances have been disclosed to the Court;
(2) whether the assurances are specific or are general and vague;
(3) who has given the assurances and whether that person can bind that receiving state;
(4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;
(5) whether the assurances concerns treatment which is legal or illegal in the receiving state;
(6) whether they have been given by a Contracting State;
(7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state's record in abiding by similar assurances;
(8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers;
(9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human-rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;
(10) whether the applicant has previously been ill-treated in the receiving state; and
(11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State."
"The Presidio do Agreste is a relatively new facility, co-administered by the state authorities in partnership with a private company, Reviver, which has operated in the prison system for a decade, and signed a five-year contract to administer this particular jail in November 2013. The prison is constructed from pre-fabricated cells that are four times stronger that the normal materials used in prison construction (a building system called SISCOPEN). The prison has 96 communal cells (to hold 8 prisoners apiece) and 21 individual cells. The prison has a capacity for 769 prisoners. In mid-2014 it held 772 prisoners – 576 on remand and 198 sentenced to a closed regime. As of March 2016 it held 809 prisoners, 40 over its capacity.
The inspection report conducted in May 2014 (supplied by the Brazilian government) is very positive overall about the unit in terms of conditions, praising its cleanliness and orderliness. Sheets and towels are changed every 3 days and prisoners receive free hygiene kits at regular intervals as well as food and uniforms.
Like many new and purpose-built high security prisons, it makes full use of the kinds of security technologies used in US super-max prisons. For example, prison staff use infra-red cameras, mobile phone-blocking devices, x-ray belts, metal detecting portals, inspection benches and manual detectors in order to search staff, prisoners and visitors for contraband, instead of the strip searches still used routinely in many other prisons. There have apparently been no escapes or riots in the facility."
"…the privately managed facility was not overcrowded. The conditions were decent and there were both doctors and nurses available. The Alagoas State Government has a contract with the facility that stipulates that the prison cannot be forced to receive inmates beyond capacity plus 10%.
Agreste is a recently-built prison, with a design that favours security controls as well as basic services to inmates. Perimetral security is performed by State law enforcement agents that are heavily armed; security inside the facility is conducted by guards employed by the corporation, and assisted by the prison's architecture, that allows for round-the-clock surveillance of and rapid access as necessary to common areas which ensuring the staff's security. As I mentioned in my report, health care, educational and work opportunities and other benefits that Brazilian law allows for inmates were, at the time of my visit, adequately rendered."
(1) He notes that there has been an increase in the prison population since his first visit, and again since his second visit, and that the prison population is currently at 113% of capacity.
(2) He notes that there had been an influx of gang members who had been responsible for riots in other prisons and that there was now a PCC gang presence in a number of the modules, observing that "the presence and overt control by a dangerous gang was emphatically not the case when I visited Agreste in August 2015".
(3) Whilst it was possible for the Brazilian government to fulfil its promise of holding Mr Pimenta in one of the individual cells, this would mean that he would spend 22-24 hours alone in his cell, with no meaningful social contact even when allowed out of his cell. This effectively amounts to indefinite solitary confinement.
(4) If he is to be allowed significant social contact he would have to be moved to one of the other modules with multiple occupancy cells. These comprise 8 bed cells measuring 14.25 square metres, which is considerably less than the international standard per inmate. It would also potentially expose him to the controlling gang.
(5) Monitoring will present a serious challenge.
"Inspection and monitoring regimes. Besides the courts and the Public Ministry/Prosecution Service, a number of local and national bodies are empowered to conduct prison inspections and look out for the welfare of prisoners in Brazil. These include the state-level prison service ombudsman's offices (where they exist), the internal affairs body (corregedoria) of the prison service, and representatives of the state judiciary's general inspection team.
A number of international NGOs – such as Human Rights Watch and Amnesty International – have closely monitored the prison system, whilst a number of inspections have been carried out by Inter-American and United Nations human rights bodies, such as the Special Repporteur on Torture. Monitoring and research is also conducted by local universities and think tanks, such as the FBSP, and other advocacy groups in civil society, such as the Catholic Church's Pastoral Outreach to prisoners, one of the civil society groups with most regular contact on a day-to-day basis with prisoners as they carry out their religious ministry and pastoral offices. There are therefore a great many generally reliable and accurate sources of information on prison conditions in Brazil…"
"This Secretariat has always made itself available to answer all questions from the PGR (Office of the Prosecutor General) and all the agencies involved in the monitoring of the Alagoan Penitentiary System. In this regard there are no obstacles to the regular monitoring of the prisoner's conditions. The current difficulties are related to the number of prisoners and the conditions of the prison units.
There has never been any obstacle to the access of the prison unit by external visitors. The Secretariat of Social Security and Social Inclusion values the transparency of its actions and constant dialogue with all those who want to know, visit and / or inspect our facilities."
"The Office of the Prosecutor-General of the Republic affirm the commitment to oversee the jail time as served by Mr. Alisson Soares Pimenta in Brazil, both in its preventive phase or whether he is convicted of his crimes, in order to preserve his fundamental rights as set forth by the Federal Constitution of October 5, 1988, by the Brazilian legislation and the international treaties that Brazil is a party of, such as the 1969 American Convention Human Rights, the 1966 International Covenant on Civil and Political rights and the 1984 Convention against Torture and Other Treatments or Cruel, Inhuman or Degrading Treatment or Punishment.
Attached to this statement the assurances given by the Alagoas State Secretary of Resocialisation and Social Inclusion, where he confirms that the fundamental rights of the extradited shall be abided by should he be extradited to the State of Alagoas.
These are the concrete guarantees that the Office of the Prosecutor-General of the Republic has to provide to facilitate the extradition and surrender of Mr. Alisson Pimenta Soares to the Brazilian Justice."
"The Judge of the Court of Petrolina's Jury informs you that, since the local penitentiary does not meet the requirements laid down by British authorities, an administrative procedure has been instituted in order to indicate a proper location to keep the charged during the trial, in compliance with the recommendations of the European Court of Human Rights." (Federal Prosecutor's letter of 23 June 2016)
"As previously mentioned, the extraditee is not forced to appear before an eventual trial session and may be interrogated through video-conferencing. Should he wish to appear before the court in person, all necessary security measures shall be taken for his well-being and safety while proceedings are taking place." (Federal Prosecutor's letter of 26 January 2017)
"The defendant will appear at the trial only if he agrees to participate, and, in this case, a specialised organ (SERES) will provide his safe transfer." (Judicial letter of 16 January 2017)
"…all security measures will be taken so as to ensure that the defendant's transportation takes place as smoothly and uneventfully as possible." (Federal Prosecutor's letter of 15 February 2107)
"258. It is established in the Court's case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161 and has been subsequently confirmed by the Court in a number of cases (see, inter alia, Mamatkulov and Askarov, cited above, §§ 90 and 91; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010-...).
259. In the Court's case-law, the term "flagrant denial of justice" has been synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006-II; Stoichkov, cited above, § 56, Drozd and Janousek cited above, § 110). Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included:
- conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge (Einhorn, cited above, § 33; Sejdovic, cited above, § 84; Stoichkov, cited above, § 56);
- a trial which is summary in nature and conducted with a total disregard for the rights of the defence (Bader and Kanbor, cited above, § 47);
- detention without any access to an independent and impartial tribunal to have the legality the detention reviewed (Al-Moayad, cited above, § 101);
- deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country (ibid.).
260. It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact, when taken with the examples given in the preceding paragraph, serves to underline the Court's view that "flagrant denial of justice" is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.
261. In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see, mutatis mutandis, Saadi v. Italy, cited above § 129)."
"61. Mr Hawkes is concerned that the RP will be held in lengthy pre-trial custody and that an appearance or trial by video-link would be like being absent from his trial. Whatever happens to other defendants, as stated above, I am satisfied that the RP will not be forgotten about. He is charged with very serious offences and there are a limited number of witnesses who will have to be heard if the RP does not plead guilty. He is the subject of the assurances from a number of officials in the criminal justice system.
62. I find that Brazilian law guarantees trial in the defendant's presence. If preliminary matters are dealt with by video link there will be no breach of Article 6. In the light of the assurance given the RP can be present at trial in Petrolina and be accommodated within an Article 3 compliant establishment. There is no evidence placed before this court which would lead this court to find a total nullification of the RP's right to a fair trial such as would prevent extradition."