KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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ANDELKO MIKELIC | Appellant | |
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COUNTY COURT OF ZAGREB (CROATIA) | Respondent |
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Lower Ground, 46 Chancery Lane, London WC2A 1JE
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
MS M MILLER (instructed by Crown Prosecution Service, Extradition Unit ) appeared on behalf of the Respondent.
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Crown Copyright ©
"47. In addressing these issues in respect of this appellant the first point is the question of where the evidence suggests he will be held upon his return to Croatia. This is because the focus of the appellant's case is not a systemic or generalised failure of the Croatian prison system but rather the conditions which have been recorded in Zagreb Prison and, still more particularly, the conditions in the Diagnostic Centre at that prison. The authorities are clear that the court should consider not only deficiencies which are systemic and generalised but also those which may affect certain groups of people or certain places of detention. The appellant is therefore entitled to focus in the way in which he does upon the evidence related to Zagreb Prison and the Diagnostic Centre it includes.
48.Whilst the respondent has submitted that it is not for certain that the appellant would be held at the Diagnostic Centre at Zagreb Prison, it seems to me that the evidence all points to it being the clear intention of the respondent to initially house the appellant in that facility. The three points relied upon by the appellant to prove that this is the intention, in particular the terms of the AW, are strongly probative. It also appears to me to be reinforced by the summons to prison referred to in the Further Information which required the appellant to report to the Diagnostic Centre. Although this has been the basis of the appellant's case since the grant of permission to pursue this ground, no information has been furnished by the respondent to gainsay what is in my view a clearly articulated intention, namely that it is intended that the appellant will, upon return, be held at the Diagnostic Centre in Zagreb Prison.
49. The question which then arises is whether, in the light of that finding, the court can be sure that he would face a real risk of a breach of Article 3 as a consequence of detention. Whilst the respondent is entitled to make the point that the findings in the case of Vukusic are now of some age, the difficulty for the respondent is that it does not appear on the evidence that there has been any material improvement in the circumstances at that facility since those findings were made. Indeed nowhere in the evidence is it suggested that there were improvements made after 2013 but prior to the deficiencies identified in the Report. The authors of the Report are a body of the Council of Europe and therefore an authoritative source of evidence in relation to the conditions in the Diagnostic Centre, and it is clear from the Report that there are significant and persistent problems of overcrowding in that facility. The Report provides evidence that the cells of the facility are occupied to an extent which breaches the space requirements needed to satisfy Article 3, and this deficiency is implicitly acknowledged in the Response which recognises the acute need for change in the conditions at that facility.
50. Although the respondent relies upon the content of the Response to the Report, in my view the appellant is entitled to observe that the contents of the Response in relation to Zagreb Prison are entirely aspirational, without any clear timescales, and without any evidence of what changes have been made to address the unacceptable overcrowding and poor state of repair and hygiene, in particular in the Diagnostic Centre, and with what tangible impact upon the conditions in which prisoners are detained. The observations in footnote 43 to which the respondent draws attention are of no comfort in relation to these concerns. It refers to prisoners spending '30 days and more' in the Diagnostic Centre's overcrowded, poorly maintained and unhygienic cells, with no assurance as to resolution of the evident problems. Against this background in my view there is clear and compelling evidence which rebuts the presumption in this case based on the breach of the Article 3 rights of the appellant upon his return and detention at the Diagnostic Centre at Zagreb Prison".
"Pursuant to the provisions of the Execution of Prison Sentences Act, upon transfer to the Republic of Croatia, Andelko Mikelic, considering the length of his prison sentence, will be placed in the Diagnostic Centre in Zagreb for approximately 30 days. During this period, expert diagnostic procedures will be carried out to assess criminogenic risks and treatment needs, classify the inmate, propose an individual orientation programme for sentence execution and recommend the correctional facility where the inmate would continue serving the sentence.
The final decision on the correctional facility/prison where the inmate (in this case Andelko Mikelic)would continue serving the prison sentence is made by the director responsible for the prison system, following the proposal of the expert team of the Diagnostic Centre in Zagreb and the prior opinion of the Commission for the assignment of inmates of this office. This decision is made in accordance with the framework criteria for the assignment and classification of inmates for the execution of prison sentences issued by the Minister responsible for justice affairs.
During a short stay at the Diagnostic Centre in Zagreb (approximately 30 days), individuals in the rooms where they are accommodated (dormitory) typically spend the majority of their free time during the day (when it is not mealtime, stay in the fresh air in the outdoor are at least two hours daily for engaging in some recreational activities/events for inmates) outside of their dormitories, as they undergo interviews, tests, examinations and other professional tasks carried out by the members of the expert team of the Diagnostic Centre in Zagreb in official rooms.
Generally, the capacities of the Diagnostic Centre in Zagreb, as well as other accommodation capacities in closed conditions, are overcrowded. However, the intake of individuals for serving their prison sentences at the Diagnostic Centre in Zagreb has recently stagnated. According to the agreement with the Centre's warden, a solution will be found to ensure that Andelko Mikelic during his stay at the Diagnostic Centre in Zagreb will be accommodated in a dormitory where he will have at least three metres squared of personal space and the officers will treat him with special attention.
Also, when making the final decision on the penitentiary/prison where Andelko will continue serving his prison sentence (which is made by the Director of this office), particular attention will be paid to ensuring that he is sent to a penitentiary/prison where, upon placement, he will have at least three square metres of personal space, as well as the opportunity to exercise other rights and possibilities available to inmates in accordance with the Execution of Prison Sentences Act".
"44. Prior to the decision of the Divisional Court in the present case there had been no suggestion in the case law in this jurisdiction that any special test of admissibility should be applied to evidence relating to the reliability of an assurance from a nonjudicial authority of a requesting state or, in particular, to evidence relating to an alleged breach of an undertaking given to a third state. On the contrary, courts in this jurisdiction have adopted an open, fact-based approach to the assessment of assurances. In my view the position is correctly stated by Sir Brian Leveson P in Shankaran v Government of India [2014] EWHC 957 (Admin) (at para 59):
'… the scale both of immigration and of extradition decision making have made undertakings and assurances not merely normal but indispensable in the operation of English extradition law. Such undertakings regularly are taken into account, and given whatever weight is appropriate on the facts of the particular case; that is as it should be. Each case will depend on its own facts and, for my part, I would not identify a restriction as a matter of law as to who may or may not give undertakings, nor to prescribe when they will be sufficient to obviate the risk of flagrant breaches of article 5 ECHR.'
This approach is entirely appropriate as the factors relevant to the evaluation of assurances will vary from case to case. Nevertheless, having regard to the decisions of the [European Court of Human Rights] and the [Court of Justice of the European Union] on the subject, it is clear that where the requesting state is a party to the ECHR and a member state of the European Union there is a presumption that it will comply with its human rights obligations and assurances given in support of those obligations, and that cogent evidence will be required to rebut that presumption (see Ilia v Greece [2015] EWHC 547 (Admin), para 40 per Aikens LJ; Georgiev v Bulgaria [2018] EWHC 359 (Admin), paras 8, 61 per Hickinbottom LJ). Even if the requesting state has lost the general presumption that it will comply with its obligations under article 3 in relation to its prison estate as a whole, it will still normally enjoy a presumption that it will comply with specific assurances given in individual cases (see Jane v Prosecutor General's Office, Lithuania [2018] EWHC 1122 (Admin), paras 54-55 per Hickinbottom LJ; Fuzesi [2018] EWHC 1885 (Admin), para 33 per Singh LJ)".
"38. In Othman v United Kingdom, the [European Court of Human Rights] addressed more specifically its approach to the manner of testing an assurance. In that case it was submitted on behalf of the United Kingdom that assurances from the Kingdom of Jordan constituted a safe basis on which to deport the applicant to Jordan. The court observed that assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment.
'There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving state depends, in each case, on the circumstances prevailing at the material time'. (at para 187)
The court considered (at para 188) that it would only be in rare cases that the general situation in a state will exclude accepting any assurances whatsoever. It explained that 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. It then identified some relevant factors, certain of which had particular relevance to the facts of that case:
'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 the 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 concern 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 illtreated in the receiving state; and
(11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State'. (at para 189)
It can be seen therefore that the approach of the ECtHR is a fact sensitive approach under which the weight to be given to any particular feature will vary from case to case. It certainly does not prescribe any preconditions to the admissibility of relevant evidence".
"97. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX; Idalov, cited above, § 91; and also, Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI).
98. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see, among other authorities, Idalov, cited above, § 92; and also, Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III; Ananyev and Others, cited above, § 140; Varga and Others, cited above, § 70). Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity. …"