PUBLIC PROSECUTOR’S OFFICE, COURT OF APPEAL OF THESSALONIKI, HELLENIC REPUBLIC v FLORJAN HYSA

On an appeal against discharge under sections 28 and 29 of the Extradition Act 2003, the relevant question is the issue whose determination caused the discharge, not necessarily the antecedent case-management decision. Where Article 3 risk is established because the requesting state has not provided a required assurance within a reasonable and properly fixed period, the court may refuse further time and discharge the requested person. An appellate court may receive a late assurance, but must consider the reason for delay, whether earlier provision was practicable, and any tactical delay or bad faith. Where fair deadlines have repeatedly been missed despite the known need for an assurance, admitting it on appeal may allow the requesting authority to escape the consequences of non-compliance. The appeal was dismissed.

The Public Prosecutor’s Office of the Court of Appeal of Thessaloniki appealed against orders made by District Judge Sarah-Jane Griffiths on 22 November 2021 discharging three respondents from extradition warrants. The First and Third Respondents were sought under conviction warrants; the Second Respondent was sought under an accusation warrant.

The District Judge found a real risk of treatment contrary to Article 3 because the evidence established that the respondents would receive less than three square metres of personal space at Diavata Prison. The requesting authority had conceded that position but had not provided assurances by the deadline imposed under the Aranyosi procedure. Assurances were provided four days after discharge. The central issues were whether the appeal was properly brought under sections 28 and 29 of the Extradition Act 2003, whether further time should have been allowed, and whether the late assurances should be admitted.

1. Relevant question and route of appeal. The relevant question under section 29(6) of the Extradition Act 2003 was whether extradition was compatible with the respondents’ Article 3 rights to a minimum of three square metres of personal space. That was the decision which resulted in discharge. The appeal therefore lay under sections 28 and 29, although refusal to adjourn was a material antecedent case-management decision.
2. Refusal of further time. The District Judge had a broad discretion under rules 50.3(4) and 50.3(7)(a) of the Criminal Procedure Rules 2020. An appellate court should interfere only for error of principle or law, failure to take account of a material consideration, or a decision so unreasonable that no properly directed District Judge could have reached it. The same standard applied to the time allowed for an Aranyosi response. The District Judge had considered expedition, the respondents’ prolonged detention, repeated missed deadlines, the seriousness of the offences, and the short time limits required by the Framework Decision. Her decision was within the permissible range.
3. The responsibility for supplying information and assurances rested on the requesting state. The fact that the requesting authority was a friendly foreign state did not require an extension. Court orders and deadlines had to be respected, and an indefinite extension was not justified.
4. Late assurances on appeal. An assurance is an issue rather than fresh evidence. The High Court may admit one offered for the first time on appeal, but admission is discretionary. Relevant considerations include the reasons for lateness, whether earlier provision was practicable, and whether delay was tactical or in bad faith. Evidence relevant to that discretion may be admitted on appeal.
5. In these cases the assurances should not be admitted. The requesting authority had known since April 2021 that assurances were essential, had received multiple opportunities to provide them, and had failed to comply with a reasonable Aranyosi deadline without adequate explanation or a reliable date for compliance. The further evidence did not materially alter that position.
6. In the absence of sufficient assurances, extradition would breach Article 3 because the minimum personal-space requirement was not established. The appeal was dismissed and the District Judge’s orders discharging the arrest warrants were upheld. The adequacy and reliability of the assurances, and the scope of any remission, did not arise.

• High Court (Administrative Court): District Judge Sarah-Jane Griffiths discharged the three respondents on 22 November 2021 because extradition would breach Article 3 on personal-space grounds.
• High Court (Administrative Court): The appeal under sections 28 and 29 of the Extradition Act 2003 was dismissed and the discharge orders upheld.