AC-2022-LON-003403 AC-2024-LON-000280 AC-2022-LON-002952 |
KING'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE GRIFFITHS
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SABAH ZEKA |
AC-2022-LON-002952 APPELLANT |
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- and – |
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PROSECUTOR GENERAL'S OFFICE IN ANTWERP, BELGIUM |
RESPONDENT |
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And Between: |
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JULIO DANIEL DA SILVA FERREIRA |
AC-2024-LON-002281 APPELLANT |
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- and – |
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TRIBUNAL DE PREMIERE INSTANCE DE BRUXELLES, BELGIUM |
RESPONDENT |
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And Between: |
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CONSTANTIN BOGDAN |
AC-2024-LON-000280 APPLICANT |
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- and – |
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PROSECUTOR GENERAL'S OFFICE IN ANTWERP, BELGIUM |
RESPONDENT |
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And Between: |
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THOMAS SALTON |
AC-2022-LON-003403 APPLICANT |
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- and – |
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ANTWERP COURT OF FIRST INSTANCE, BELGIUM |
RESPONDENT |
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Jonathan Hall KC and Jonathan Swain (instructed by Taylor Rose MW Solicitors) for the Appellant
Joel Smith KC and Amanda Bostock (instructed by Crown Prosecution Service) for the Respondent
AC-2024-LON-002281
Jonathan Hall KC and Jonathan Swain (instructed by Taylor Rose MW Solicitors) for the Appellant
Joel Smith KC and Amanda Bostock (instructed by Crown Prosecution Service) for the Respondent
AC-2024-LON-000280
Jonathan Hall KC and George Hepburne Scott (instructed by Shah Law Chambers) for the Appellant
Joel Smith KC and Amanda Bostock (instructed by Crown Prosecution Service) for the Respondent
AC-2022-LON-003403
Jonathan Hall KC and George Hepburne Scott (instructed by Rustem Guardian Solicitors) for the Applicant
Joel Smith KC and Amanda Bostock (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 21 January 2025
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Crown Copyright ©
LORD JUSTICE LEWIS handed down the following judgment of the court.
INTRODUCTION
THE LEGAL FRAMEWORK
"No one shall be subjected to torture or inhuman or degrading treatment or punishment".
"(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition"
THE FACTUAL BACKGROUND
Mr Zeka
Mr Ferreira
"36. I have considered the evidence carefully. There is evidence of deficiencies in the Belgian prison estate. However, overcrowding has improved and steps have been taken by the Belgian Government to try and guarantee the maintenance of minimum standard which may be threatened by strike action. Covid no doubt did have an adverse impact on conditions during the pandemic, but things are improving. Some of the issues raised in the evidence are the same issues that were before the court in Purcell in 2017. That Court was aware of the European Court decisions of Sylla, Nollomont and Vasilescu. The English High Court was in 2017 of the opinion that there was insufficient evidence before it to rebut the presumption of compliance so the second stage of Aranyosi was not reached. If anything conditions in Belgium have improved since then. It is by no means certain that the requested person will be held in Forest given that it is due to close later this year. The legislation introduced by Belgium has at the very least reduced the duration of any strikes. The evidence before me is not sufficient to rebut the presumption of compliance. I am not satisfied on the evidence that there are reasonable grounds to believe that there is a real likelihood of the requested person being subjected to conditions which would contravene his rights under article 3 of the European Convention of Human Rights. In these circumstances it is not necessary for me to seek an assurance from the judicial authority. The requested person's extradition to Belgium is not incompatible with his rights under Article 3."
Mr Bogdan
"99. The Belgian authorities have provided a full response to the report, have engaged fully and appear to be receptive to CPT's criticisms. There is no suggestion from the CPT that this response is inadequate. In my view, the CPT report does not rebut the presumption of compliance. In my opinion the Belgian authorities are aware of the deficiencies within the running of their prison estate but they are using their best endeavours to deal with and improve them.
100. Having given careful consideration to the submissions made by both parties I find that the evidence received is insufficient to rebut the presumption that Belgium will comply with its obligations under Article 3 ECHR and, accordingly, this challenge must fail."
Mr Salton
"In this case, Belgium ensures that the following general safeguards after surrender with regard to the conditions of detention:
The minimum average dimension of every cell is 9m2. The persons concerned will therefore not be detained in a cell with less than 3m2 of personal space;
The persons concerned will not be required to sleep on a mattress on the floor;
The cell is equipped with sanitary blocks, which include sink and toilet separated but accessible from the rest of the cell. A regular access to the shower is provided for;
The living space includes fixed furniture (bed, wardrobe, desk, seat, phone, television, fridge, and a recycle bin) and sanitary blocks.
Out-of-cell activities are provided for in the regular regime and include different types of activities. These activities include inter alia regular walks in the (open) court (of at last one hour and a half every day), family visits, as well as access to common spaces and extra-activities (sport, education and jobs). These activities afford possibilities to the person concerned to leave his cell and to participate in common activities."
"In any event, as I set out below, I accept the Belgian authorities have confirmed by further information of 14 October 2022 that the requested persons will each be held in a cell in which they have at least 3m2 of personal space and that they will not be required to sleep on a mattress on the floor."
THE APPEAL AND THE APPLICATION FOR PERMISSION TO APPEAL
MR ZEKA'S APPEAL
Discussion
Conclusion
MR FERREIRA'S APPEAL
MR BOGDAN'S APPLICATION
MR SALTON'S APPLICATION TO RE-OPEN
"(3) The application must:
(a) specify the decision which the applicant wants the person to reopen; and
(b) give reasons why –
(i) it is necessary for the court to reopen the decision in order to avoid real injustice;
(ii) the circumstances are exceptional and make it appropriate to reopen the decision, and
(iii) there is no alternative effective remedy available."
ANCILLARY MATTERS
CONCLUSION