Over the last month, the High Court (sitting as a Divisional Court) has promulgated three judgments relating to conditions of imprisonment in France, Latvia and Lithuania. This article will consider each in turn. However, in broad terms, the effect seems to be a (temporary) victory to Lithuanian judicial authorities in the two-year war of attrition. This may be short-lived, however. There are already a series of new challenges being brought at first instance. In respect of France and Latvia, the Divisional Court was sufficiently concerned to seek supplementary information. First, in relation to Fresnes Prison on the outskirts of Paris and, second, the Latvian prison estate in general.
It is also worth noting that litigation continues a pace in respect of Hungary and Romania. The Supreme Court has listed the appeal against Divisional Court’s judgment in Szalai v. Hungary  EWHC 3840 (Admin) at the end of February 2021. Meanwhile, the Divisional Court heard the appeal in Adamescu v. Romania  EWHC 2898 (Admin) over four consecutive days in mid-July and a judgment is expected in the new judicial term.
Article 3 (Art. 3) of the European Convention on Human Rights 1950 (ECHR) establishes an absolute prohibition of torture or inhuman or degrading treatment or punishment. In the landmark case of Soering v. United Kingdom  11 EHRR 439, the European Court of Human Rights (ECtHR) held that Art. 3 imposed a positive obligation on Contracting Parties in respect of ‘future treatment’ of a requested person if extradited to a requesting state. The threshold which must be proven to advance a challenge under Art. 3 is that there are substantial grounds for believing that a requested person will be exposed to inhuman or degrading treatment (see Chahal v. United Kingdom  23 EHRR 413).
The leading authority on material conditions of imprisonment amongst the Contracting Parties to the ECHR isMursic and Others v. Croatia  65 EHRR 1. Mursic addresses the most common complaint under Art. 3, namely overcrowding. The authority establishes various evidential presumptions concerning the acceptable ‘amount’ of personal space per prisoner. Where a prisoner receives anything less than three metres squared of living space, Mursic establishes a strong presumption of a breach of Art. 3 except where this is “short, occasional and minor”. Notably, the measurement does not include the dimensions of any in-cell sanitary facility, which must be properly partitioned from the remainder of the cell and suitably ventilated, but does include other furniture (e.g. the bed). Even where a prisoner is afforded sufficient space, Mursic provides that there may be other material conditions of imprisonment (such as ventilation, cleanliness/pest control, out of cell time/exercise etc.) which could, nevertheless, lead to a violation of Art. 3. Where alleged, each case merits a specific finding of fact in line with the evidential presumptions. Once a credible and reasonably detailed complaint is received, the burden of proof shifts to the Contracting Party to disprove on the basis of information within its possession (e.g. by providing details of cell measurements, occupancy rates or repairs).
Where the ECtHR or a court in the executing state determines that conditions of imprisonment are, per se, so poor within a particular country that there is a prima facie breach of Art. 3, a requesting state may provide the executing state with a diplomatic prison assurance guaranteeing the conditions in which a requested person will be held if surrendered (see Othman v. United Kingdom  55 EHRR 1 for the criteria that such an assurance must fulfil).
Before an order for extradition is made by the Westminster Magistrates’ Court to either Bulgaria, Hungary or Romania, each of these states provides an assurance issued in a requested person’s name. The length/contents of each are different. Some prescribe the prison in which the requested person, when extradited, will be detained. In practice, this does not occur where a requested person gives consent to extradition at an initial hearing or otherwise consents before an assurance is served. This raises the interesting question as to whether a person can consent to detention in conditions which violate an absolute right. Prior to extradition to Lithuania or Portugal, the CPS Extradition Unit serves a generic assurance on behalf of the Requesting State which bind the conditions to which a requested person will be subject on removal. These assurances are ‘generic’ since they relate to all persons surrendered from England and Wales to the respective jurisdictions.
Within the context of Council Framework Decision 2002/584/JHA, which establishes the European arrest warrant, the Court of Justice of the European Union (CJEU) held in Criminal Proceedings against Aranyosi and Caldararu  3 CMLR 13 that where an executing judicial authority receives “objective, reliable, specific and properly updated evidence with respect to prison conditions in the Issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention” which give rise to a real risk of a violation of Art. 3, the executing judicial authority is obliged to seek supplementary information under Art. 15(2) with regards to those conditions of imprisonment.
If the issuing judicial authority provides information “to discount the existence of such a risk”, then a requested person can be surrendered; if supplementary information, however, is not received “within a reasonable time”, the executing judicial authority can refuse surrender. This is known as the ‘Aranyosi procedure’ or perhaps more colloquially ‘going off Aranyosi’.
In Criminal Proceedings against ML  7 WLUK 549, the CJEU clarified that the Aranyosi procedure need only consider the conditions of detention in which “according to the information available to it, it is likely that [the requested person] will be detained, including a temporary or transitional basis”. The assessment must be confined to “the actual and precise conditions of detention of the person concerned” and the executing judicial authority is entitled to take account of any diplomatic assurance received.
Turning now to the first of the three recent judgments. In Gerulskis and Another v. Lithuania  EWHC 1645 (Admin), the Divisional Court (Dingemans LJ; Garnham J) dismissed two linked appeals concerning the sufficiency of the latest prison assurance and evidence of recent breach. The decision follows the Court’s dismissal of the appeal in Bartulis and Others v. Lithuania  EWHC 3504 (Admin) (Irwin LJ; Supperstone J) last December in which it was found that there was insufficient evidence of inter-prisoner violence to meet the Aranyosi threshold within male correction houses (which hold convicted prisoners). As such, the court declined to seek further information about measures to combat inter-prisoner violence or a specific assurance in respect of certain requested persons who alleged that they presented a particular risk of violence due to personal circumstances.
In Gerulskis, the Court summarised the recent case law in respect of Lithuania and considered the latest ‘generic’ assurance of 3rd April 2020. It reached four conclusions: first, the Court held that there was no breach of the duty of candour rehearsed in Bartulis (see paras. 128-134) since it was satisfied that there was no deliberate or undue delay in the publication of the latest Committee for the Prevention of Torture report concerning Lithuania (2019).
Second, with respect to the extradition of Guy Jane (the lead appellant in Jane v. Lithuania (No. 1)  EWHC 1122 (Admin), which was the previous substantive authority concerning prison conditions), the Court found a ‘technical breach’ of the assurance to which Mr. Jane was extradited (7th August 2018). Nevertheless, the Court determined that whilst Jane was detained in a different prison to that prescribed in the assurance, the material conditions of imprisonment did not violate Art. 3 and the Lithuanian authorities had complied with the key elements of the assurance.
Third, the Court rejected the alleged breach of an assurance in relation to another extraditee, Mr. Kmitas (one of the appellants in Bartulis). It considered evidence adduced in a witness statement taken by Mr. Kmitas’ solicitor in England and found the breach unproven.
Fourth, the Court found that the latest assurance, in which the Lithuanian authorities affirmed that each extraditee will be held in conditions compliant with Art. 3 but could not guarantee that each would be held exactly as per the terms of the previous assurance which specified certain prisons “in view of the danger caused by the spread of COVID-19 disease, the work of Lithuanian institutions is encumbered, which might have impact on the implementation of the assurance”. Far from admonishing the Lithuanian authorities, the Court commended their frankness and held this as evidence of the seriousness which with they took their obligations to the United Kingdom.
Nevertheless, the Court gave a word of guidance to the Lithuanian authorities about the various different assurances served in respect of different extraditees in recent years: “Lithuania’s practice of providing general assurances, and then replacing them as prison conditions improve, risks creating problems of technical breaches of assurances. An assurance about an individual prisoner, once given, must be complied with until the expiry of the prisoner’s sentence of imprisonment”. This suggests that the court may not adopt such a benevolent approach to ‘technical’ breaches in the future.
Gerulskis seems to have raised the drawbridge on the latest round of Lithuanian prison litigation. Whilst there are challenges remaining at first instance, in the absence of further evidence of (alleged) breaches of assurances or evidence of a deterioration of the prison estate in general or that particular persons are vulnerable to inter-prisoner violence, requested persons may struggle to get their cases off the ground.
Turning to our attention to events on the either side of the Channel, in Choudhary v. France  EWHC 1966 (Admin) (Popplewell LJ; Jay J) enacted the Aranyosi procedure in respect of Fresnes Prison, located on the outskirts of Paris. In its Art. 15(2) request, the Court sought answers to the following questions:
“1. Please confirm that, if extradited to France, Bilal Hussain Choudhary (“the Appellant”) will be held in Fresnes prison.
2. If not, please specify where the Appellant be held.
3. In relation to Fresnes prison:
(1) How many cells are there in all?
(2) Do the dimensions of the cells vary at all?
(3) Please provide full details of (a) the exact dimensions of the floor space of the cells in each category (assuming that there is individual variation between cell sizes) and (b) the number of cells in each category. For the avoidance of doubt, by “floor space” is meant the total surface area of each cell including sanitary/toilet facilities.
(4) Please provide the same details of the exact dimensions of (a) the sanitary/toilet facilities, and (b) the cell furniture, specifying what that furniture is.
(5) What is the current occupancy or overcrowding rate of Fresnes prison?
(6) In relation to each category of cell (assuming that there is individual variation between cell sizes), what percentage is currently occupied by (a) one prisoner, (b) two prisoners, and (c) three prisoners?
(7) Is it possible to say at this stage (a) what category of cell the Appellant would be occupying (assuming that there is individual variation between cell sizes), and (b) whether he would be sharing a cell with one or more prisoners, if so how many?
4. Please provide as much information as possible as to the steps the French authorities have taken to address the adverse findings made by the European Court of Human Rights in JMB and others: including (a) lack of partitioning of the toilets, (b) bed bugs, (c) lack of light and ventilation, (d) vermin and other pests, and (e) the other matters referred to at paras 106, 108, 151, 152 and 300 of its judgment.
5. Do you have any other comment on the adverse findings of the ECtHR in JMB and others, in particular as to the dimensions of the cells (see the CGLPL report and the ECtHR’s own findings) and the other conditions the subject of criticism?”
The Court invited a response from the executing judicial authority by 7th September 2020.
The Court’s decision to seek supplementary information is unsurprising following the ECtHR’s damning judgment in J.M.B and Others v. France (French only). Promulgated on 31st January 2020, J.M.B held that conditions at Fresnes Prison (as well as other specified detention facilities in continental France and overseas departments) violated Art. 3 and Article 13 ECHR (Art. 13), the latter since the French authorities had failed provide an effective remedy. In relation to Fresnes, the Court found that the occupancy rate approached 200% in 2019 with some inmates receiving less than the requisite three metres squared. In line with the requirements of Mursic, The ECtHR found that the applicants had adduced detailed and credible evidence of overcrowding and unsatisfactory conditions of imprisonment at Fresnes.
This is not the first occasion on which the High Court has adopted the Aranyosi procedure in relation to France. In Shumba and Others v. France (No. 1)  EWHC 1762 (Admin) (Singh LJ; Carr J), the Divisional Court sought supplementary information relating to conditions in which three requested persons would be held. The response provided that persons surrendered from the United Kingdom to France would be detained at Fresnes Prison or Villepinte Prison for at least a few days. Thereafter, the issuing judicial authority provided occupancy rates, all of which exceeded the maximum, but held that each detainee would receive at least three metres squared of living space. In two separate pieces of supplementary information, the issuing judicial authority assured the High Court that conditions of imprisonment would comply with Art. 3. As such, in Shumba and Others v. France (No. 2)  EWHC 3130 (Admin), the same constitution of the Court dismissed the appeal and the appellants were extradited.
It is worth noting that open source media articles suggest that the French Government has taken steps to reduce the overall prison population. In April, 10,000 prisoners were released, seemingly as a response to the COVID-19 Pandemic. Nevertheless, the effect that this may have on Fresnes Prison specifically remains to be seen.
Lastly, on 8th July 2020, the Court of Cassation, one of the courts of last resort in France, ordered French trial courts to afford those remanded in custody an effective remedy where they provided specific, precise, reliable and up to date evidence of a violation of Art. 3. The Court held that individual trial judges were obliged to ensure respect for human dignity and that defendants must be released from custody and made subject to house arrest or bail where a public prosecutor cannot (or does not) rebut the evidence adduced. This ‘emergency power’, which precedes any legislation or executive action, seeks to provide an immediate and effective remedy (and thus respond to the Art. 13 violation). It will be instructive to ascertain whether, in due course, this power is extended to judges who supervise sentences of imprisonment as there does not seem to be a rational basis to distinguish between remand and convicted prisoners.
Finally, we turn to Latvia. Earlier this week, the Divisional Court adopted the Aranyosi procedure in the joined cases of Danfelds and Another v. Latvia  EWHC 2042 (Admin) (Nicola Davies LJ; Julian Knowles J). It is of note that until Danfelds, the last authority concerning prison conditions in Latvia was Brazuks and Others v. Latvia  EWHC 1021 (Admin) (Moses LJ; Collins J) in which the Court dismissed various linked appeals in rather blunt terms finding the evidence adduced wholly insufficient to muster a challenge under Art. 3.
In Danfelds, the Court accepted that the Committee for the Prevention of Torture Report (2016) provided “objective, reliable and specific evidence” of non-compliant conditions of imprisonment in Latvia, specifically within the Griva section of Daugavgriva Prison, located in the south of the country near to its borders with Belarus and Lithuania. The Court concluded: “In Griva and other prisons, poor infrastructure, lack of staff, inter-prisoner violence and lack of activities were identified in the CPT report as areas of serious concern. Unchallenged is the fact that the building of the new prison has stalled and/or been postponed”.
The Court therefore sought a response to the following questions:
“a) identification of the prison at which each appellant will be detained upon arrival and/or be held in pre-trial custody and/or serve his sentence of imprisonment if extradited;
b) an assurance that neither appellant will be transferred to the Griva section of Daugavgriva Prison;
c) details of the current numbers of prisoners detained in the relevant section of each prison;
d) details of the staffing levels at the relevant section of each prison to which each appellant, if extradited, would be detained;
e) an assurance that the conditions at the relevant section of each prison in terms of:
i) prisoner numbers;
ii) staffing levels;
iii) inter-prisoner violence;
iv) out of cell activities;
would not breach the rights of either appellant pursuant to article 3 ECHR;
f) an assurance of, and details of, the monitoring which will take place to ensure compliance with the appellants’ article 3 rights as set out in (e) above;
g) evidence of the measures being taken in the relevant section of each prison by the appropriate authority to prevent the spread of Covid-19”.
There are various points of note. First, the Court sought supplementary information over and above the evidence which the applicants (now appellants) had adduced before the Westminster Magistrates’ Court. The Court also sought a specific diplomatic assurance that the appellants will not be housed in the Griva Section of Daugavgriva Prison if extradited as well as supplementary information concerning prisoner numbers, staffing levels, inter-prisoner violence and out of cells activities within (seemingly) all Latvian prisons. Furthermore, the Court requested information as to the mechanism which the Latvian authorities propose to enact in order to monitor any assurance given.
The Court also sought supplementary information concerning the measures taken by the Latvian prison estate to counter the COVID19 Pandemic. This is despite little evidence before the Court concerning actual cases of COVID19 within Latvian detention facilities. This final question may serve as a precedent in respect of other countries in which speculative challenges concerning the effects of COVID19 are made. Finally, in coming to its conclusions, the Court attached significant weight to a Committee for the Prevention of Torture Report in which the inspections took place in April 2016, more than four years ago.
Given that the Court sought supplementary information pursuant to Art. 15(2) of the Framework Decision, the CPS is obliged to transmit the questions in full to the Latvian authorities for a response. Accordingly, this is not a situation in which the CPS can proactively decide which questions to ask to meet the evidence adduced. The Latvian authorities must now decide how to respond. In the new judicial term, the Court will analyse whether the response received is sufficient to discount a real risk of an Art. 3 violation.
It will not go unnoticed that the Divisional Court was quick to overturn decisions at first instance where appropriate judges received evidence of potential violations of Art. 3 but declined to adopt the Aranyosi procedure. It remains to be seen whether this will empower more robust decision-making at first instance. This may be a double-edged sword given the plethora of prison conditions challenges before the lower court and the prospect of inconsistent findings of fact and consequent results.
In respect of France, the Court adopted the traditional, narrow approach to the Aranyosi procedure. It invited answers to specific questions concerning the one prison subject to examination at first instance. In respect of Latvia, however, a different constitution made a far broader request, potentially encompassing all prisons in Latvia and sought a diplomatic prison assurance even before the supplementary information is received.
When the Court next considers these cases, 9 Bedford Row will provide an update. All that can be said is that prison conditions across the continent remain very much in flux.
Author: Stefan Hyman, 9 Bedford Row