Neutral Citation No:  [2022] NIQB 60     Judgment: approved by the court for handing down (subject to editorial corrections)*

Ref:                McC11921                        ICOS No:        Delivered:     22/08/2022

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

 

QUEEN’S BENCH DIVISION

(DIVISIONAL COURT)

 

 

IN THE MATTER OF THE EXTRADITION ACT 2003

 

ON APPEAL FROM THE COUNTY COURT FOR THE DIVISION OF BELFAST

 

 

 

BETWEEN:

 

PROSECUTOR’S GENERAL OFFICE OF THE REPUBLIC OF LATVIA

Requesting State/Respondent

 

v

 

VENTIS KILGASTS

 

Requested Person/Appellant

 

 

Representation

 

APPELLANT: Mr Sean Devine, of counsel (instructed by Gillen & Co solicitors) RESPONDENT:  Ms  Marie-Claire  McDermott,  of  counsel  (instructed  by  the Crown Solicitor)

 

 

Before: McCloskey LJ and Humphreys J

 

 

McCLOSKEY LJ (delivering the judgment of the court)

 

Preamble

 

The court has concluded that this appeal against the order of Belfast County Court authorising the surrender of the Appellant to Latvia must be dismissed. This conclusion is driven fundamentally by the lack of sufficient evidential foundation for the cornerstone of the Appellant’s resistance to extradition, namely treatment contrary to the inhuman and degrading treatment prohibition enshrined in Article 3 ECHR, contrary to section 6 of the Human Rights Act 1998 and section 21A of the Extradition Act 2003. This appeal has two particularly noteworthy features. First, based on the information available, this is the first judgment of the Northern Ireland High Court in an extradition appeal in which the post-Brexit arrangements apply. Second, it raises certain issues, essentially of a procedural kind, relating to the judicial role in the formulation and transmission of requests for further information from the court of the requested state to the relevant agency of the requesting state.

 

Introduction

 

[1] The parties to this appeal are the General Prosecutor’s Office of Latvia (the “requesting state”) and Ventis Kilgasts (the “requested person/appellant”). By its decision Belfast County Court ordered the appellant’s surrender to the requesting state. The appellant appeals to this court, permission having been refused by the single judge, McFarland J. The hearing of this appeal was conducted on 26 July and 10 August 2022.

 

Factual Matrix

 

[2] In brief compass, the appellant is a national of the Republic of Latvia, aged 41 years. The European Arrest Warrant (“EAW”), which is dated 07 May 2021, seeks his surrender to the requesting state for the purpose of serving a sentence of 25 months imprisonment, imposed upon him in that jurisdiction on 24 December 2019 arising out of his convictions in respect of drugs offences which he had admitted. The EAW is, therefore, of the so-called “conviction” variety. It was executed on 19 July 2021 when the appellant was arrested. He has remained in custody ever since.

 

[3] The more detailed factual matrix,  in  tandem  with  the  nomenclature,  is agreed between the parties and is the following:

 

The Decision in Aronyosi

 

[4] As will become apparent, the decision of the Grand Chamber of the CJEU in Aronyosi and Caldararu Joined Cases C-404/15 and C-659/15 has been at the fulcrum of the Appellant’s case from its inception. Certain aspects of the Framework Decision, the measure of EU law containing the legal rules to be applied in cases of this kind, provide the backdrop. In summary, within the ambit of one of the main objectives of the TEU namely the creation of an area of freedom, security and justice (sometimes described as the “justice pillar”) there is a series of constituent principles. These were described by this court in Michailovas v Lithuania [2021] NIQB 60 at para [62], in these terms:

“Fiscal (Case C-399/11) and Minister for Justice and Equality v Lanigan (Case C-237/15) at [36].” “The key principles which have been identified are those of a high level of mutual trust and confidence between EU Member States and mutual recognition. Recital (6) of the Preamble to the Framework Decision describes the latter principle as the “cornerstone” of judicial co-operation in criminal matters. Article 1(2) gives effect to this by providing that Member States are in principle obliged to execute an EAW:  see,  amongst  other  cases,  Melloni     ……  (and)

…Lanigan …”

 

[5]     The framework of the decision in Aronyosi is further illuminated by para [63] of Michailovas:

 

“While the duty of a requested state to give effect to the execution and surrender provisions of the Framework Decision is very much the norm, it is not absolute. This is so because of, firstly, recital (10) in the Preamble which states that the implementation of the EAW mechanism is capable of being suspended, but only in the event of serious and persistent breach by one of the Member States of the principles enshrined in Article 2 EU and in accordance with the procedure prescribed in Article 7 EU. Furthermore, the jurisprudence of the CJEU has recognised that limitations to the principles of mutual recognition and mutual trust and confidence may be appropriate in “exceptional circumstances”: See Opinion 2/13 (EU:C:2014:2454) at [191]. The Charter of Fundamental Rights of the EU is another limiting measure. Article 1(3) of the Framework Decision provides, in substance, that its procedures and arrangements operate in the context of the unmodified obligation of Member States to respect fundamental rights contained in inter alia the Charter.”

 

Thus, within the Framework Decision there is a series of principles and limitations which fall to be balanced.

 

[6] In Aranyosi the Grand Chamber addressed squarely the issue  of  the  co- existence of these principles and limitations and the interface which they are capable of generating in certain instances. In the two conjoined preliminary references, the essential question raised was the duty of the requested state in any case where there is evidence that detention conditions in the requesting state are incompatible with fundamental rights, in particular Article 4 of the Charter (Article

3 ECHR). The answer supplied by the CJEU had its foundations in one specific provision of the Framework Decision, namely Article 15(2). This provides:

“If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.”

 

This is supplemented by Article 15(3), which empowers the issuing judicial authority to at any time provide “any additional useful information” to the executing judicial authority.

 

[7] At para [65] of Michailovas one finds a convenient exposition of the several interlocking elements of what was decided in Aranyosi:

 

“The following are the main tenets of the decision of the Grand Chamber:

 

(i)              There is, in substance, a presumption that all Member States comply with EU law and particularly the fundamental rights recognised by EU law, save in exceptional circumstances: see [78] and [82].

 

(ii)            There is a “binding” obligation on Member States to comply with the “absolute” provisions of Article 4 of the Charter: [84] – [85].

 

(iii)          “It follows that, where the judicial authority of the executing Member State is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State … [it] 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” [88].

 

(iv)           Where there is such evidence, the first task of the executing judicial authority is to consider “information that is objective, reliable, specific and properly updated” on the detention conditions prevailing in the requesting state: [89].

 

(v)             If, having performed this task, the executing judicial authority finds that there is a real risk in the foregoing terms, this cannot per se warrant a refusal to surrender the requested person: [91].

 

(vi)           Rather, where such a finding is made, a second task for the executing judicial authority crystallises, namely to 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”: [92] – [94].

 

(vii)         In performing this second task, the executing judicial authority “must” invoke Article 15(2) by requesting of the requesting state the provision of “all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State”: [95] – [97].

 

(viii)       “If, in the light of the information provided pursuant to Article 15(2) … and any other information that may be available to the executing judicial authority, that authority finds that there exists, for the  individual (concerned) …. a real risk of inhuman or degrading treatment … the execution of that warrant must be postponed but it cannot be abandoned”: [98].

 

At this stage, two possibilities arise. First, where the executing judicial authority, having considered all available information, discounts the existence of a real risk of a violation of Article 4 it must make a surrender decision: [103]. Second, “if the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end”: [104].”

 

[8]    Aranyosi proved to be the first of three successive decisions of importance of the CJEU in this discrete sphere. The second followed two years later, in ML [2018] EUECJC – 220/18PPU. At para [112] the court said the following in relation to assurances given by the requesting state:

 

“(Where an assurance is) given, or at least endorsed, by the issuing judicial authority ….the executing judicial authority, in view of the mutual trust which must exist between the judicial authorities …………. must rely on that assurance, at least in the absence of any specific indications that the detention conditions in a particular centre (infringe Article 3 ECHR).”

[emphasis added]

 

Significantly, the court then addressed the duty of the executing judicial authority in any case where either (a) there are indications of conditions infringing Article 3 or (b) an assurance has not been provided or endorsed by the issuing judicial authority. In either such case, it is incumbent upon the executing judicial authority to undertake “an overall assessment of all the information available to it”: see para [114].

 

[9] In the third of the decisions in question, Doborantu  [Case C-128/18], the Grand Chamber addressed inter alia the interface between the principles of mutual trust and recognition and the efficacy of judicial co-operation (on the one hand) and a finding by the executing judicial authority that the “real risk” test is satisfied. See para [85](iv):

 

“A finding, by the executing judicial authority, that there are substantial grounds for believing that, following the surrender of the person concerned to the issuing Member State, that person will run such a risk, because of the conditions of detention prevailing in the prison in which it is actually intended that he will be detained, cannot be weighed, for the purposes of deciding on that surrender, against considerations relating to the efficacy of judicial co-operation in criminal matters and the principles of mutual trust and recognition.”

 

In other words, in any case where the governing test is satisfied, there is no balancing exercise to be carried out. Rather, the absolute prohibition against proscribed treatment enshrined in Article 3 ECHR/Article 4 of the Charter must prevail without qualification. Finally, at para [79] the Grand Chamber identified one specific option at the disposal of the executing judicial authority namely ordering the surrender of the requested person subject to Article 4 of the Charter.

 

Extradition Post – Brexit

 

[10] As this court observed at para [68] of its recent decision in Latvia v Ancevskis [2021] NIQB 116 (promulgated on 10 December 2021), by virtue of the date of execution of the EAW in that case, 18 November 2020, both the Framework Decision and the 2003 Act applied fully to the determination of the appeal. Having referred to the Article 62 of the Withdrawal Agreement, the court added that extradition motivated arrests postdating 31 December 2020 are governed by a different legal regime. This new regime applies in the present case, given that the EAW was executed on 19 July 2021.

 

[11]    The transitional period which followed the  Brexit referendum ended on 31 December 2020. On 24 December 2020 the UK-EU Trade and Co-operation Agreement (“TCA”), one of the major Brexit instruments, was agreed. The subject matter of Part III is law enforcement and judicial co-operation. While the TCA is, of course, an international treaty, these provisions form part of domestic law by virtue of their incorporation in the Extradition Act 2003 by the European Union (Future Relationship) Act 2020 (“EUFRA”). While the new extradition regime largely mirrors its EAW predecessor established by the Framework Decision, there are nonetheless some notable differences. To draw attention briefly to some of these will hopefully be instructive in future cases.

 

 [12] In brief compass, the EAW has been replaced by the Arrest Warrant (“AW”); EAWs issued prior to 31 December 2020 will be treated as AWs; the 2003 Act, unamended, applies to all cases in which pursuant to an EAW a person  was arrested or extradited prior to 31 December 2020 (and see Polakowski v Westminster Magistrates’ Court [2021] EWHC Civ 53 (Admin)); provision is made for diplomatic assurances (Article 84); no distinction is made between accusation and conviction warrants as regards the principle of proportionality (see the amended section 21A of the 2003 Act); the EU27 and Gibraltar remain Part 1 territories; and a specialised EU/UK joint oversight committee has been established.

 

[13]    Specific provision is made for the post-Brexit operation of the jurisprudence of the CJEU. This will no longer apply to the UK in respect of AWs under the TCA. Furthermore, neither the UK’s interpretation of the TCA nor that of the CJEU will be binding on the other: Article 13(3). Thus, the CJEU, representing as it previously did namely the supreme source of authoritative interpretation on the meaning and application of supreme EU law, no longer has any binding decision-making effect in extradition cases in the UK. We shall comment further on this in para [63] infra.

 

[14] Amongst other notable differences between the old and new regimes are: the principle of mutual trust and confidence, a core principle, has evaporated; at a more prosaic level, the UK is no longer a member of Europol or Eurojust; the former mechanism for custody transfer between Member States has not been replaced; ditto the mechanism for the enforcement of pre-trial bail conditions in another territory; and, the Framework Decision no longer applying the UK, ten EU Member States will no longer extradite their nationals to be prosecuted in the UK.

 

[15] Of relevance in the present case is, firstly, [Article 604 (3)/Article LAW.SURR 84], which concerns guarantees to be given by the “issuing state” (formerly the “requesting state”) in particular cases.  It provides in part:

 

“The execution of the arrest warrant by the executing judicial authority may be subject to the following guarantees:

...

(c)    if there are substantial grounds for believing that there is a real risk  to the protection of the fundamental rights  of the requested  person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person's surrender before it decides whether to execute the arrest warrant.”

 

Article [613/LAW.SURR.93], the subject matter whereof is “Surrender Decision” is

also germane. It provides:

 “1. The executing judicial  authority  shall  decide whether the person is to be surrendered within the time limits and in accordance with the conditions defined in this Title, in particular the principle of proportionality as set out in Article 597.

 

2.      If the executing judicial authority finds the information communicated by the issuing State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Article 597, Articles 600 to 602, Article 604 and Article 606, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits provided for in [Article 615/ART.LAW.SURR 95].

 

3.      The issuing judicial authority may forward any additional useful information to the executing judicial authority at any time.”

 

Pausing, it is at once apparent that this latter provision is framed in terms substantially similar to its Framework Decision equivalent, namely Article 15(2) of the latter. Indeed, these provisions are couched in almost identical terms. It follows that where questions arise under Article 613 of the new regime, the jurisprudence of the CJEU outlined in paras [4]–[9] supra, will arise in appropriate cases. We refer to our observations in para [13] and will comment further on this issue infra.

 

The Underlying Proceedings

 

[16] In the decision of the County Court Judge at first instance it is recorded, at para [3]:

 

“In the course of the proceedings a Request for Further Information was sent to  the Issuing Judicial Authority (IJA) with the approval of the Court to which a response was received dated 17th November 2021. The RP filed an affidavit in January 2022 and this was supported by a skeleton argument filed on his behalf by his then counsel Mr Conn O’Neill on 26th January 2022. Ms Marie-Claire McDermott responded on behalf of the RS on 31st January 2022. Thereafter the RP changed his legal representation with Mr Sean Devine being instructed, who then filed a supplementary skeleton argument on the 8th May 2022 to which Ms McDermott responded on the 10th May. The case came on for final hearing before me on Friday 13th May.”

 

A response dated 17 November 2021 was received. At para [12], the judge recorded the submission of Mr Devine, of counsel, that in this way the “Aranyosi process” had been initiated with the result that the onus was on the requesting state to provide appropriate assurances. At para [13] the judge noted the submission on behalf of the requesting state that this letter did not constitute an Aranyosi request for assurances. Next, the judge observed that he had not been personally involved in the composition or transmission of the letter. Continuing, quoting from one passage of the letter of response, the judge states at para [17]:

 

“Distilling this down to simple terms the IJA has therefore given the clearest possible undertaking that regardless of where the RP would be detained his Article 3 rights would be guaranteed.”

 

The judgment does not resolve the competing contentions of the parties.

 

[17] At para [24] the judge records the specific submission of Mr Devine that the response of the requesting state had failed to address the question of where the Appellant would be accommodated if surrendered, with the result that the concerns underpinning the letter of request had not been assuaged. The judge did not resolve this submission. Rather, he repeated what he had said in para [17], adding that his confidence that there would be no Article 3 ECHR infringements had been fortified by the decision of the English High Court in Danfelds v General Prosecutors Office of Latvia [2020] EWHC 3199 (Admin) 2020. We shall, for convenience, describe the letter transmitted to the issuing judicial authority and its response as the “Article 15(2) correspondence.”

 

The Article 15(2) Correspondence Further Considered

 

[18] This court was troubled by three particular aspects of the Article 15(2) correspondence. First, in the hearing bundle the letter addressed to the issuing judicial authority of Latvia was plainly not the letter actually transmitted but was, rather, a mere lawyer’s initial draft. Second, there was no information, either in the first instance judgment or provided by the parties’ legal representatives, pertaining to the procedure and events at first instance giving rise to the transmission of the letter actually sent. Third, the dispute between the parties about the legal character and status of the letter and the response had not been resolved in the decision of the County Court.   It is appropriate to add  here that  the  appellant’s current legal representatives were not on record for him at the time of the Article 15(2) correspondence.

 

[19] Reflecting these concerns the court gave certain procedural directions. The response which these elicited from the lawyers representing the requesting state yielded the provision of the letter actually transmitted. The letter is dated 29 October 2021 and emanated from the NI Courts and Tribunal Service (“NICTS”). This exercise exposed the disturbing fact that the draft letter contained in the hearing bundle and the letter actually transmitted are couched in differing terms. In short, the NICTS letter to the relevant Latvian agency (but not the version in the hearing bundle) included the following paragraph:

 

“Accordingly, and in compliance with the procedure set out in Aranysoi and Caldararu, this court must now make a specific and precise assessment as to whether there are substantial grounds to believe that the Requested Person will be exposed to a real risk of inhuman or degrading treatment as a result of the conditions of detention within the Requesting State of Latvia.”

 

(We shall describe this as the “Aranysoi paragraph”.)

 

[20] In contrast, the letter in the hearing bundles at first instance and before this court (the lawyer’s draft noted above) omitted this paragraph. Bearing in mind the Preamble to this judgment, we shall make certain further observations and provide appropriate guidance infra.

 

[21] Analysing the Article 15(2) letter further, the basis for what follows the Aranysoi paragraph, namely 12 specific requests for information and/or assurances, was, firstly, the simple fact that the Appellant was contesting his extradition on the basis of asserted concerns about prison conditions in Latvia “… asserting that his ECHR Article 3 rights will be impinged”. As appears from what follows in the paragraph reproduced above, the request for further information/assurances was also based on the decision of the Recorder of Belfast in Konusenko v Latvia promulgated on 18 January 2019. Elaborating, the letter states that in Konusenko the issue in play was that of judicial concerns about possible inhuman and/or degrading prison conditions in Latvia, the court transmitted four questions to the requesting state seeking four corresponding assurances and the court concluded that the response of the requesting state was inadequate, warranting the assessment that the Article 3 ECHR test was satisfied with the result that the requested person was discharged. The letter also drew attention to the CPT report published in June 2017 and the decision in Danfelds (noted above).

 

[22] Summarising, the NICTS letter sought a combination of  specified information and assurances. These related mainly to specific aspects of the prison conditions in which the Appellant would be accommodated in the event of his surrender to Latvia. In addition, information about the numbers of prisoners detained and prison staffing levels was requested. Furthermore, confirmation that the Appellant would not be detained in the Griva section of Daugavriva Prison (“Griva”) was sought. The eighth of the 12 numbered requests was in these terms:

 

“Please provide an assurance that the conditions at the relevant section of each prison in terms of  prison numbers, staffing levels and inter-prisoner violence would not breach the rights of Mr Kilgasts pursuant to Article 3 of the ECHR.”

 

[23] The letter of response of the requesting state is dated 05 November 2021. The following are its most noteworthy features:

 

(a)   As a convicted person the Appellant, in the event of his surrender, would be detained at one of nine identified prisons: which prison would be a matter for future determination.

 

(b)  The Appellant’s initial detention would be in a specified “quarantine unit” (the features whereof were detailed).

 

(c)   The Griva unit had undergone specified repairs and improvements in 2018 and 2019 and renovations were continuing.

 

(d)  Details of prisoner numbers throughout the prison state were provided.

 

(e)   This was followed by details of – in summary – minimum cell space, illumination (natural and artificial), ventilation (natural and artificial), heating, sanitary and running water facilities, cleaning and hygiene products provided, exercise facilities, provision for access to lawyers and health care services. The letter then refers in general terms to provisions of both the Latvian constitution and an identified Latvian law said to proscribe treatment contravening Article 3 ECHR.

 

The letter is silent on the issue of inter-prisoner violence and the related issue of staffing levels. Furthermore, it does not provide the requested assurance that the Appellant, if surrendered, would not be detained in Griva.

 

[24] As noted at para [10] above, the first instance judge was particularly impressed by one specific passage in the letter. See para [16]:

 

“Near the end of the response the IJA  specifically addresses the question of the relationship between the guarantees and Article 3 ECHR by reference to paragraph 1 of Section 10 of the State Administration Structure Law. This lays down that:

‘State administration shall be governed by law and rights. It shall act within the scope of the competence laid down in law and regulations. It follows from this legal principle that the State Administration, including the Administration and its structural units, is obliged to perform its functions (including those in relation to the imprisoned persons) in accordance with the procedures and to the extent specified in regulatory enactments developed also in compliance with the minimum standards contained in Article 3 of the European Convention of Human Rights, including that regulatory  enactments regulating the accommodation of imprisoned persons in places of imprisonment, the requirements specified in regulatory enactments for the equipment of cells, as well as material provision of the imprisoned persons’ nutritional and household needs, thus the actual circumstances may not differ from the above mentioned requirements.’”

 

We shall return to this passage at a later stage of this judgment.

 

The CPT Report and Related Evidence

 

[25]  It is trite that in every case where a requested person’s surrender pursuant to an EAW is based on Article 3 ECHR the judicial assessment will turn on the quality and adequacy of the evidential foundation of this objection. In the present case it appeared to this court that the evidential foundation had five components, namely the CPT report, the decision in Konusenko, the Latvian evidence which can be distilled from the decision in Danfelds (infra), the Art 15(2) correspondence and the Appellant’s affidavit. Mr Devine helpfully acknowledged the correctness of this assessment. We turn to consider each of these evidential pillars, in tandem with other relevant materials. In doing so we remind ourselves of the core of this appeal. This is helpfully formulated in Mr Devine’s skeleton argument in these terms:

 

“The thrust of this appeal is simple: the [County] court sought specific and precise assurances that Mr Kilgasts would not be kept at a particular institution [RIVA] – that assurance was not forthcoming and the [County Court] was compelled therefore either to seek further clarification or discharge Mr Kilgasts.”

 

[26] As noted above, in June 2017 the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) published a report relating to prison conditions in Latvia. Pausing, this report was not included in the hearing bundle before this court. Nor did it form part of the hearing bundle at first instance. From this it follows that the judge’s assessment of this report was based on secondary sources only (in particular the Danfelds decision). This court received the report, upon direction, following the first day of the hearing of this appeal.

 

[27] It is clear from the text that the CPT had, by a series of separate visits and related processes, been monitoring closely prison conditions in Latvia during a period of several years. Many of the issues highlighted in the report are remote from the case which the Appellant makes to this court. Notwithstanding, it is appropriate to consider the report as a whole as its contents in their totality are capable of bearing on the legal test to be applied (see infra).

 

[28] Having regard to the central thrust of the Appellant’s case, it suffices to highlight specific features of the CPT report. First, inter-prisoner violence and inadequate staffing levels were noted. Second, it found most of the prisoner accommodation in Griva to be in an advanced state of dilapidation and in many places the sanitary facilities were in an appalling state of hygiene. The CPT urged immediate remedial measures and the provision of an action plan in respect of Griva. Subsequently, specific information about actual and planned further improvements was provided by the Latvian Government.

 

[29]     More specifically, the Report noted the following:

 

“The delegation received no allegations of recent physical ill-treatment of inmates by staff in any of the prison establishments visited. However, the delegation’s findings at Daugavgrīva, Jelgava and Rīga Central Prisons indicated that inter-prisoner violence remained a problem. As in the past, this state of affairs appeared to be the result of a combination of factors, including an insufficient staff presence in prisoner accommodation areas, the existence of informal prisoner hierarchies and the lack of purposeful activities for most inmates. The CPT recommends that the Latvian authorities vigorously pursue their efforts to combat the phenomenon of inter- prisoner violence. It also calls upon the authorities to review staffing levels at Daugavgrīva, Jelgava and Rīga Central Prisons, with a view to increasing the number of custodial staff present in the detention areas.”

The  above  passage  is  obviously  germane  to  the  Appellant’s  case,  as  is  the following:

 “The CPT also formulates a number of specific recommendations regarding various other prison- related issues, such as   prison  staff,  prisoners’  contact  with the outside world and discipline. In particular, the CPT calls upon the Latvian authorities to increase the number of custodial staff present in the detention areas at Daugavgrīva,  Jelgava  and  Rīga  Central  Prisons.”

 

[30]     The issue of prisoner ill treatment is specifically addressed in the following section:

 

 

“Ill-treatment

 

3.                The CPT is pleased to note that its delegation received no allegations of recent physical ill-treatment by staff of inmates in any of the prison establishments visited.

 

·        That said, at Daugavgrīva, Jelgava and Rīga Central Prisons, information gathered through interviews with staff and inmates and an examination of registers of body injuries indicated that inter-prisoner violence remained a  problem. As in the past,  this  state  of  affairs  appeared  to be the result of a combination of factors, including insufficient staff presence in prisoner accommodation areas, the existence of informal prisoner hierarchies and the lack of purposeful activities for most inmates.

 

•    The  delegation  gained  the  impression  that efforts were being made by the management of the prisons concerned to prevent incidents of inter-prisoner violence, in particular by segregating prisoners who were vulnerable and/or sought protection and prisoners known for aggressive behaviour towards fellow-inmates. From discussions with staff and consultation of the relevant documentation, it also transpired that all alleged or detected incidents of inter- prisoner violence, as well as any injuries indicative of such violence, were recorded by staff (including health-care staff) and reported to the internal investigation unit of the Latvian Prison Administration.

However, as acknowledged by staff, even the inquiries regarding cases clearly indicative of the infliction of bodily injuries were usually inconclusive, as the victims chose not to denounce the perpetrators (as did any witnesses among the prisoners) and claimed to have sustained the injuries accidentally.

 

·        Further, the CPT is seriously concerned by the very low staffing levels in the above- mentioned prisons (see also paragraph 90). By way of example, in one of the living units at the Grīva Section of Daugavgrīva Prison, one prison officer was responsible for supervising some 130 inmates from 5 p.m. till the following morning. At Jelgava Prison, there was no permanent staff presence within the units for prisoners on the medium and high regime levels after 5 p.m..19 It goes without saying that, with such low staffing levels, it is scarcely possible to tackle effectively the problem of inter-prisoner violence.

 

Staff were said to be carrying out observation rounds every 30 minutes.”

 

The CPT must reiterate that an effective strategy to tackle inter-prisoner violence should seek to ensure that prison staff are placed in a position to exercise their authority in an appropriate manner. Consequently, the level of staffing must be sufficient (including at night-time) to enable prison officers to supervise adequately the activities of inmates and support each other effectively in the performance of their tasks. Addressing the phenomenon of inter-prisoner violence also requires that prison staff be particularly attentive  to  signs  of trouble and properly trained to intervene in a determined and effective  manner,  at  the  earliest possible stage. In this context, the existence of positive relations between staff and prisoners, based on notions of dynamic security and care, is a decisive factor; such relations can help to overcome the habitual reluctance of victims (or witnesses) to denounce the perpetrators of inter-prisoner violence.

The CPT recommends that the Latvian authorities vigorously     pursue     their     efforts    to    combat    the phenomenon of inter-prisoner violence at Daugavgrīva, Jelgava and Rīga Central Prisons (and, as appropriate, in other prison establishments in Latvia), in the light of the above remarks). Further, particular attention should be paid to the problem of inter- prisoner violence in the context of initial and in-service training programmes for prison officers.”

 

[31] Chronologically, the next material source of information is that generated by the Article 15(2) request in Konusenko and the Latvian response thereto. Judgment therein was promulgated on 18 January 2019. In that case, Belfast County Court invoked the Aranyosi procedure and sought of the Latvian authorities an assurance that in the event of surrender the requested person would be detained in Article 3 ECHR compliant conditions and a further assurance that he would not be detained in Griva. The two salient features of the factual matrix were (a) the CPT report documenting details of the dilapidation and other defects in Griva and (b) the Latvian response indicating vaguely that unspecified repair works were “ongoing”. The second of the two assurances was not provided. The court’s conclusion was that its initial concerns had not been assuaged by the Latvian response and extradition was refused.

 

[32] The next material development chronologically was a meeting of  the UNCAT (“UN Committee Against Torture “) on 21 November 2019 at which the CPT report was considered. One month later the CPT published its “Concluding Observations”. While welcoming the replies which had been provided by the Latvian authorities, the CPT had the enduring concern that:

 

“…. the conditions of detention in places of deprivation of liberty continue to fall short of international standards, including with regard to material conditions such as hygiene, sanitation, humidity, ventilation and access to natural light and substandard conditions persist in [Griva], which has the status of historic monument.”

 

The CPT recommended that the Latvian authorities should continue its programme of renovations of all detention facilities.

 

The Decision in Danfelds

 

[33] The next source of material information is found in the response of the requesting state to the Article 15(2) request of the Divisional Court in Danfelds, promulgated on 24 November 2020. The first instance judge attributed considerable weight to it: see paras [19] – [25] of his decision. We would observe that by the doctrine of precedent it is not binding on this court: see Re Steponaviciene’s Application [2018] NIQB 90 at para [24].