LORENC SULA v PUBLIC PROSECUTOR OF THE THESSALONIKI COURT OF APPEAL,

In an extradition appeal based on prison conditions, the court must assess whether surrender would expose the requested person to a real risk of treatment contrary to Article 3. A strong presumption of Convention compliance applies to Council of Europe states, particularly within the European arrest warrant scheme. A clear, specific and reliable assurance guaranteeing at least 3m² of personal space may remove the risk. A court may receive such an assurance on appeal; lateness alone is not decisive, although delay and bad faith are relevant. Fresh evidence is subject to a strict test and must be capable of producing a different result.

The appellant appealed against an extradition order made by Deputy Senior District Judge Ikram on 17 December 2020. The renewed issue was whether detention in Thessaloniki or Nigrita prisons would create a real risk of treatment contrary to Article 3, so that extradition was barred under section 21A(1)(a) of the Extradition Act 2003. Greece later provided an assurance concerning minimum personal space and possible transfer to another prison. The appeal concerned whether that late assurance could be received and whether an expert report should be admitted as fresh evidence.

The appeal was dismissed.

1. The court held that an appellate extradition court may receive and consider assurances whenever they are offered. Applying Government of the United States of America v Assange [2021] EWHC 3313 (Admin), the court considered the reasons for lateness, the possibility of earlier provision, and whether Greece had acted tactically or in bad faith. There was no bad faith, and refusing the assurance would risk fresh proceedings, delay and expense.
2. The substantive Article 3 issue depended on whether the appellant would receive at least 3m² of personal space in whichever prison detained him. Following the approach in Owda v Court of Appeals, Thessaloniki, Greece [2017] EWHC 1174 (Admin), general concerns about staffing, inter-prisoner violence and healthcare did not, on the evidence, create an arguable Article 3 issue.
3. Under Othman (Abu Qatada) v United Kingdom [2012] 55 EHRR 1, assurances had to be assessed by reference to their practical operation, quality and reliability. The Greek assurance was clear, specific and precise. Greece was a friendly state governed by the rule of law, a long-standing extradition partner and capable of monitoring compliance. The assurance guaranteed between 3m² and 4m² of living space, excluding the shared toilet, and required transfer if the minimum could not be provided. It was sufficient to dispel the Article 3 risk.
4. The court refused to receive Dr Tugushi’s report as fresh evidence. Applying the strict approach in Municipal Court of Szombathely v Fenyvesi [2009] EWHC 231 (Admin) and Zabolotnyi v Mateszalka District Court, Hungary [2021] 1 WLR 2569, the report was not decisive. It largely repeated the CPT material, did not address the December assurance and did not reflect a recent visit to Greek prisons.

The appellant was not to be extradited until the application for leave to appeal in Assange, and any appeal if leave were granted, had been determined.

1. High Court (Administrative Court): the appeal against the extradition order was dismissed: [2022] EWHC 230 (Admin).
2. Extradition hearing: Deputy Senior District Judge Ikram ordered extradition on 17 December 2020. Permission to appeal was granted by Holman J at an oral renewal hearing after refusal on the papers.