On 20 July 2016, Lord Justice Burnett and Mr Justice Mitting, handed down judgment in the conjoined appeal of Gjin Marku and John Murphy where the appellants successfully argued that their extradition to Greece would constitute a violation of both Article 3 of the European Convention on Human Rights (“ECHR”) and Article 4 of the Charter of Fundamental Rights of the European Union (“The Charter”). The decision is the first High Court ruling against Greece in relation to its ‘appalling record’ of deteriorating conditions of detention pertaining to its prisons.

In previous cases, most recently the case of Balaeiharis v Greece [2015] EWHC 3702 (Admin) – decided on 21 December 2015 – the High Court (Lord Justice Laws and Mr Justice Holroyde) determined that notwithstanding the poor conditions of detention, the assurances provided by the Greek authorities were sufficient to dispel the real risk that the appellant would be held in inhuman and degrading conditions. Balaeiharis was extradited to Greece where he was to serve a significant prison sentence of 22 years in Korydallos prison for a serious offence.

In the instant case, the appellants’ extraditions were ordered on 20 October 2015 (before the decision in Balaeiharis) and on 21 December 2015 (the day the High Court handed down its decision in Balaeiharis). Their extradition was sought for offences of attempted murder and smuggling 11.2 grams of cocaine respectively. On 7 April, Lord Justice Laws (who had dismissed the appeal of Balaeiharis) and Mr Justice Flaux granted the appellants in the instant case permission to appeal, finding that their grounds of appeal were ‘reasonably arguable’ and that the issue of prison conditions in Greece post the decision of Balaeiharis should be revisited as ‘the 2015 CPT report requires the matter to be looked at again.’

It appears that the decision to allow the appellants appeals in the instant case hinged on the inability of the Greeks authorities to properly staff their prisons resulting in serious inter prisoner violence. In allowing the appeal, Brunett LJ and Mitting J stated that ‘It is the effective loss of control by the Greek prison authorities of the running of the prisons and management of the day to day lives of the prisoners which emerges as the most stark conclusion of the CPT 2015 report.’

And so, they concluded that ‘to send individuals into a prison outside the effective control of the authorities which is run by prisoners and gangs in an atmosphere of violence, intimidation and constant threat exposes an individual to inhuman and degrading treatment. It is not a question simply of whether the person concerned will end up as a victim of violence but living in fear and under threat in a lawless prison that crosses the threshold.’

The Judgment comes a day before a report was published by the UK Chief Inspector of Prisons highlighting serious violence in our own prisons, an issue that the new Justice Secretary, Liz Truss, will be keen to address before other EU member states refuse to extradite individuals to the UK because of the concerns over violence in UK prisons

Is the threat of inter prisoner violence due to low staffing levels a new concern only highlighted as a result of the 2015 CPT report?

The concerning issue of staffing levels and the resulting violence that is endemic in Greek prisons was not a new issue raised for the first time in the instant appeal. Indeed, the issue had been forcefully argued in Balaeiharis, before the publication of the 2015 CPT report, and dismissed.

In Balaeiharis, the court at first instance, having considered a plethora of condemning CPT reports (2009- 2013) along with an expert report prepared by Professor Tsitselikis as well as other objective material concluded that:

‘So, serious overcrowding remains. Some prisoners do not have proper beds. Vermin are endemic. Medical facilities are very poor and understaffed. Staffing levels generally mean that control of prisons in some cases ceded to prisoners. A recent deadly riot confirms the fears expressed by CPT, and the evidence about riots referred to in Herdman. Toilet and hot water facilities remain unacceptable………

There is international consensus that prison conditions in Greece are appalling and unacceptable. Bodies such as CPT and ECtHR play a vital role in trying to improve those conditions. However, there is no international consensus that prison conditions in Greece breach article 3, so that extradition should not take place.

The evidence before me leads me to the same conclusion as that reached by the High Court in Herdman. There have been small improvements, but also some things, such as staff levels, are worse. Conditions are deplorable, but fall short of the high barrier required by article 3.”

On appeal, it was submitted on behalf of Balaeiharis that ‘the evidence shows that the understaffing at Korydallos Prison is such that there is no realistic prospect of controlling violence amongst prisoners. In support of that submission, [Mr Brandon] points to the fact that there was an outbreak of serious rioting at the prison in May 2015, in which 2 men were killed and others seriously injured.’

Holyrode J and Laws LJ swiftly dispensed this point finding that the argument: ‘falls well short of showing that there is a real risk to the Appellant of being subjected to unlawful violence against which the Greek state would fail to protect him’

And yet, the very argument that was dismissed on 21 December 2015 in Balaeiharis as falling ‘well short’ of the threshold required, ended up being the linchpin to the success of the appeal in the instant appeal.

Whilst the instant appeal highlighted that the 2015 CPT report had brought to the fore the issue of low staffing levels and inter prisoner violence, the real risk of inter prisoner violence at Korydallos men’s prison in Athens had been a feature of CPT reports since its public statement – described by Burnett LJ as the CPT’s ‘weapon of last resort’ – in March 2011. The 2015 CPT report highlighted that ‘Indeed the CPT’s public statement of March 2011 was an alarm call for the Greek authorities to act to put in place a prison system that can provide safe and secure custody for inmates.’ That had clearly not been achieved by the time Balaeiharis was determined, as the evidence in that case highlighted the understaffing levels at Korydallos Prison were such that there was no realistic prospect of controlling violence amongst prisoners and this was evidenced by the serious riot in May 2015 that resulted in two prisoners being killed and others seriously injured.

Why were the assurances not sufficient to dispel the real risk concerns?

As in Balaeiharis, the Greek authorities relied upon a number of assurances provided by the Minister of Justice, Transparency and Human Rights as well as assurances provided by the General Director of the General Directorate of Anti-Crime and Penitentiary Policy. None of the assurances provided (in either Balaeiharis or the instant appeal) dealt specifically with the issue of low staffing levels and the resulting inter prisoner violence. Rather the assurances provided in relation to those issues were of a ‘general character’

Despite finding that the assurances were given in good faith and were binding on the relevant Greek authorities, the court in the instant appeal concluded that the assurances ‘for the time being’ did not dispel the grounds for believing there exists at Korydallos and Nafplio prisons a real risk of Article 3 ECHR and Article 4 Charter violations. The court stated that:

Unless and until more trained staff are recruited, the accommodation wings will be under the sway of lawless and intimidating groups of prisoners, unafraid to use violence when necessary. The fact that the single dedicated nurse and Deputy Governor at Nafplio Prison have not entered the accommodation areas because they have been advised that it is unsafe to do so starkly illustrates the point. To require any person to serve a significant prison sentence in such circumstances will inevitably put them in fear of the consequences, even if they do not materialise. There is no evidence that the Greek State has yet done anything effective to remove the circumstances which give rise to that fear.

What does this judgment mean for future extradition requests from Greece?

Notwithstanding the strong presumption that EU member states will abide by their ECHR obligations, this case illustrates that the presumption can be rebutted in the absence of a pilot judgment from the European Court of Human Rights and that judgments from other jurisdictions (although not binding) will be persuasive in demonstrating an international consensus, combined with CPT findings.

However, the Court made clear that the judgment only applies to the conditions prevailing at Korydallos and Naflio prisons. They stated that there may well be other prisons in Greece that do not suffer the same deficiencies as Koydallos and Naflio.

The court indicated that the Greek authorities in the future may be able to provide assurances that address the concerns of the CPT and the issuing of such assurances may remove or reduce the ‘real risk’ which could then pave the way for the appellants in the instant appeal being extradited to Greece.

Until such time that these assurances are given and properly examined by our courts, those facing extradition to Greece where they are likely to be detained in either Korydallos or Naflio prisons are likely to have their extradition requests discharged. Perhaps this change in tide is a consequence of the post Brexit fallout resulting in Judges feeling more liberated not to assume mutual trust and recognition for states on the EU’s perimeter, or rather (more likely), it demonstrates that the courts are more willing to find an international consensus based on the conclusions of CPT visits than perhaps they did previously. None of this will be of any comfort to Mr Balaeiharis who remains in Korydallos prison serving a sentence of 22 years, his appeal having been heard 7 months too early.

Read the article on the CrimeLine website here.