Balaeiharis v The Public Prosecutor, Court of Appeal, Athens

On an extradition appeal, the High Court applies a stringent review standard. An appellate court asks whether the extradition judge made the wrong decision, respecting findings of fact and evaluative judgments unless legal error, irrationality or material procedural error is shown.

For alleged prison-condition violations under article 3, overcrowding below three square metres is a serious factor but does not create an inflexible rule requiring refusal of extradition. The court must assess the cumulative conditions, including the time spent outside the cell. Reliable, specific ministerial assurances may dispel doubts about the risk of prohibited treatment.

Different foreign evidential rules, absence of cross-examination, and heavier sentencing do not establish a flagrant denial of justice without a wider showing that the trial process was fundamentally unfair.

The appellant appealed, with permission from Ouseley J, against Senior District Judge Riddle’s order of 10 June 2015 that he be extradited to Greece to serve a 22-year sentence imposed following conviction in absentia for sexual offences against a child.

He challenged extradition on article 3 grounds based on conditions at Korydallos Prison and the length of sentence, and on articles 5 and 6 grounds based on the use of hearsay evidence and the absence of oral evidence and cross-examination of the child complainant. The appeal also concerned ministerial assurances concerning detention conditions and the scope of appellate review.

1. Appeal dismissed. Under section 27 of the Extradition Act 2003, the High Court proceeds by way of review. The appeal succeeds only if the extradition judge ought to have decided a question differently and that different decision would have required discharge, or if qualifying fresh evidence or a new issue would have had that effect. The focus is whether the decision was wrong, not whether the appellate court would have reached its own conclusion.

2. The article 3 threshold in extradition cases is stringent: there must be strong grounds for believing that return would expose the requested person to a real risk of torture or inhuman or degrading treatment. The assessment must address the actual conditions and their cumulative effect. Personal space below three square metres raises a serious issue and may itself justify a violation, but there is no inflexible rule. Other features, including the duration of confinement and the time prisoners can spend outside their cells, remain relevant.

3. The extradition judge was entitled to conclude that the evidence concerning Korydallos, although bleak and capable of establishing an article 3 breach, did not cross the high threshold in this case. The updated evidence showed a significant reduction in the prison population. There was also no sufficient evidence of a real risk of unlawful violence which the Greek authorities could not reasonably prevent.

4. The Greek Minister’s assurances were specific to the appellant and covered personal space exceeding three square metres for the duration of detention. They were given by a responsible minister of an EU state. In the absence of cogent evidence undermining them, the presumption of compliance applied and the assurances protected the appellant against the asserted detention risk.

5. The articles 5 and 6 challenge failed. The court had incomplete information about Greek evidential and procedural rules, but the material indicated that the decision not to call the child was reasoned and followed an application to depart from the general rule. The fairness of the proceedings had to be assessed as a whole. The appellant had been deliberately absent and the evidence included material bearing on the complainant’s reliability and the appellant’s denial.

6. A sentence substantially heavier than that likely to be imposed in the United Kingdom did not amount to a flagrant denial of justice. Greece was entitled to determine its own sentencing policy, provided it complied with the Convention.

1. High Court (Administrative Court) — The appeal against the extradition order was dismissed.
2. Senior District Judge Riddle — On 10 June 2015, ordered extradition to Greece after finding that extradition would be compatible with the appellant’s Convention rights.