Rigabadi v Public Prosecutor Office of the Court of Appeal of Piraeus Greece

On a renewed application for permission to appeal in an extradition case, permission should be granted only where there is a reasonably arguable prospect that the first-instance decision was wrong. A clear assurance that a requested person will be detained at a specified prison may be understood, in context, as excluding detention elsewhere where that was the concern addressed by the assurance. Article 2 and Article 3 risks must be assessed on the evidence concerning the assured place of detention. Under Article 6, the relevant threshold is a substantial ground for believing in a real risk of a flagrant denial, amounting to nullification or destruction of the essence of the right to a fair trial.

The appellant faced extradition to Greece on an accusation European arrest warrant alleging leading involvement in a large-scale drug-trafficking organisation. The District Judge ordered extradition on 27 March 2020, finding that extradition was compatible with Articles 2, 3 and 6 of the ECHR. Permission to appeal was refused on the papers by Johnson J on 18 September 2020.

The appellant renewed his application. He relied on further evidence, including a 2020 CPT report and expert evidence, concerning possible detention at the Athens Transfer Centre, conditions at Korinthos Prison, inter-prisoner violence, deaths associated with the prosecution, and alleged threats to judges. The central issues were whether the assurance concerning detention at Korinthos was sufficiently protective, whether detention there nevertheless created a real risk under Articles 2 or 3, and whether there was a real risk of a flagrant denial of a fair trial under Article 6.

1. Disposition. The renewed application for permission to appeal was refused. The refusal was stayed until 26 October 2020 or further order so that the appellant could receive the approved judgment and accompanying documents before extradition.
2. Detention assurance. The court held that it was not reasonably arguable that the District Judge had erred in relying on the assurance that the appellant “will be detained in the Prison of Korinthos”. Although the assurance did not use the words “only” or “exclusively”, its context was the concern that the appellant might be held at Korydallos Prison or elsewhere. The assurance was therefore understood as a positive and specific assurance that he would be detained at Korinthos and not somewhere else.
3. Articles 2 and 3. The new CPT report and expert evidence did not establish a reasonably arguable case that the appellant would be detained at the Athens Transfer Centre contrary to the assurance. Nor did the evidence disclose a realistic prospect that a substantive appeal would show the District Judge’s assessment of risk at Korinthos to be wrong. The District Judge had considered the prison’s size, the evidence concerning violence and deaths, the respondent’s further information, and the distinction between evidence from the judicial authority and speculation based on media reports.
4. Article 6. The applicable threshold was a substantial ground for believing that extradition created a real risk of a flagrant denial of a fair trial, involving nullification or destruction of the essence of that right. The District Judge had accepted the respondent’s information that no judges had been threatened and that no judge had sought recusal on that basis. The material did not make an opposite conclusion reasonably arguable.
5. The respondent formally confirmed that detention anywhere other than Korinthos Prison, at any stage, would breach the assurance. The court directed that this clarification should accompany the appellant upon extradition.

• District Judge: On 27 March 2020, ordered extradition and found compatibility with Articles 2, 3 and 6 of the ECHR.
• High Court (Administrative Court): Johnson J refused permission to appeal on the papers on 18 September 2020.
• High Court (Administrative Court): On the renewed application, Mr Justice Fordham refused permission to appeal, subject to a temporary stay of the refusal.