Extradition, Article 3 and Assurances
The right to protection from inhumane and degrading treatment (Article 3 of the European Convention on Human Rights) is a fundamental and absolute right.
In extradition proceedings an argument can be raised that extradition should be refused because conditions in detention in the requesting state are such that it would breach a person’s protection under Article 3.
The threshold is incredibly high. The law requires substantial grounds for believing that the requested person would face a ‘real risk of being subjected to torture or to inhumane or degrading treatment…’ (Elashmawy v Italy). The test is a relative one, and takes into account the particular circumstances of the requested person.
For the argument to be viable, the evidence would need to be clear and compelling and show ‘something approaching international consensus’. This threshold has arguably been reached in respect of a number of countries, against whom the European Court of Human Rights has issued a pilot judgment for example: Russia (Ananyev v Russia), Greece (MSS v Greece), Italy (Torreggiani v Italy) and most recently Hungary (Varga v Hungary). The pilot judgment procedure was developed as a technique of identifying the structural problems underlying repetitive cases against many countries and imposing an obligation on States to address those problems.
A pilot judgment is not necessarily required to mount an Article 3 argument. For example Courts in Ireland and Northern Ireland have refused extraditions to Lithuania based on written reports and expert evidence regarding prison conditions. Similarly, in 2013, a UK court refused extradition to Ukraine on the basis of prison conditions having considered written country guidance from the UK Asylum and Immigration Tribunal and expert evidence.
Reaching the bar is not the end of the story in mounting a successful Article 3 challenge to extradition. A recent trend has developed which has seen a number of extraditions allowed despite the existence of prison conditions that prima facie breach Article 3. Letters containing assurances are often served on the court by the authorities of the requesting state promising that individuals will not be held in these non-compliant conditions. Generally, one or two prisons are identified as being Article 3 compliant and volunteered as suitable. In some cases, assurances are given simply stating that the requested person ‘would not be held in conditions that breach Article 3.’
In the past two years the authorities in Italy, Lithuania, Hungary, Romania, Ukraine and Russia have provided assurances regarding prison conditions. The UK courts accepted all of these assurances.
In the UK the case law so far suggests that as long as the assurance satisfies the legal criteria set out in Othman v UK (although this is not simply a tick-box exercise) it will trump the Article 3 arguments and extradition will be allowed. Concerns have often been raised over the quality of the assurances that are given. However, currently at least, there appears to be a willingness for the courts in the UK to trust our extradition partners and rely upon assurances where prison conditions are raised. This is a worrying trend particularly since many of these assurances appear to be pro-forma documents which may not event contain the requested person’s name.
Many are concerned that these bare assurances offer little hope that a requested person’s rights will in fact be adequately protected. There are real fears as to whether the assurance is in fact adhered to once the requested person has been returned and there is often anecdotal evidence to suggest that they are not.
The House of Lords Committee on Extradition considered this issue in March 2015. The Committee questioned whether, in the absence of a system for monitoring these assurances, the UK can be confidence that it is meeting its human rights obligations.
In July 2015 the Home Secretary announced a review of how assurances are followed up post-extradition and how supervision might be improved was already in hand.
We understand that this review will be completed in the autumn and may provide a better insight into the current system. Whatever the outcome it is to be hoped that proper monitoring will be put in place to enable the extradition court to better assess the weight it should give to assurances in the future.