Marku v The Nafplion Court of Appeal, Greece

Extradition must be refused where substantial grounds establish a real risk that the requested person will suffer treatment contrary to Article 3 of the ECHR or Article 4 of the Charter. For requests from an EU member state, there is a strong but rebuttable presumption that the requesting state will comply with those obligations. Objective, reliable, specific and current evidence may rebut it. General assurances will not dispel the risk where the evidence shows that prison authorities have lost effective control of accommodation areas to violent or intimidating prisoners. The assessment is specific to the prisons and conditions concerned. A future extradition may become lawful if effective remedial measures remove or sufficiently reduce the real risk.

Gjin Marku and John Murphy appealed against orders for their extradition to Greece. Marku was sought for prosecution for attempted murder and Murphy to serve the balance of a sentence for drug offences. Marku was likely to be detained at Nafplio Prison and Murphy at Korydallos Men’s Prison.

Both appeals were permitted on the issue whether prison conditions would expose them to inhuman or degrading treatment contrary to Article 3 of the ECHR and Article 4 of the Charter. Marku also challenged the risk of ill-treatment by Greek police. The central issue was whether the evidence and assurances supplied by Greece displaced the presumption of compliance and established a real risk requiring extradition to be refused.

The court allowed both appeals and ordered the appellants’ discharge under sections 21 and 27(4) of the Extradition Act 2003.

1. The legal threshold was a real risk of torture or inhuman or degrading treatment. In extradition requests from an EU member state, a strong but rebuttable presumption of compliance applies. Cogent evidence, ordinarily against the background of an international consensus, may rebut it. The approach under Article 4 of the Charter was in essence the same, as explained in Aranyosi and Caldararu C-404/15 and C-659/15 PPU.

2. The 2015 CPT report showed persistent overcrowding, severe understaffing, poor conditions, inadequate healthcare, inter-prisoner violence and intimidation at Korydallos Men’s Prison and Nafplio Prison. The critical feature was the effective loss of control by the Greek authorities over the accommodation areas, which were run by groups of strong prisoners. Living in fear and under threat in such a lawless prison crossed the Article 3 and Article 4 threshold, whether or not the individual became a victim of physical violence.

3. The evidence demonstrated that the situation had materially worsened since Balaei Haris v Greece [2015] EWHC 3702 (Admin). Reduced prisoner numbers and attention to some immediate defects were insufficient because the underlying understaffing and lack of effective control remained.

4. The assurances were given in good faith and were binding on the relevant Greek authorities, but their general nature and the absence of effective remedial measures meant that they did not dispel the real risk. The conclusion applied only to Korydallos and Nafplio prisons. It remained possible that future evidence or sufficiently specific assurances could justify extradition.

5. It was unnecessary to decide the appellants’ individual medical issues or Marku’s allegation of possible police ill-treatment. The latter depended on so many adverse contingencies that it was fanciful.

• High Court (Administrative Court): extradition orders made by District Judge Bayne on 20 October 2015 and District Judge Nina Tempia on 21 December 2015 were overturned; both appellants’ extradition was prohibited and they were discharged.