Extraditions allowed as assurances found sufficient to displace pilot judgment re Hungarian Prison conditions
The Administrative Court considered the issue of prison conditions and assurances in relation to number of Hungarian extradition requests in the case of GS and others v Hungary [2016] EWHC 64 (Admin).
We have previously written about the trend in UK extradition proceedings for states that have been found to have systemic failings in their prison estates to provide assurances to the courts in order to secure the extradition of individuals from the UK.
In this case the Administrative Court considered four separate extraditions to Hungary. The appellants argued that there was a real risk that, whether on remand in Hungary or following conviction, they would be detained in conditions that violate article 3 which prohibits torture and inhuman and degrading treatment. They relied upon the pilot judgment of the European Court of Human Rights in Varga and others v Hungary to support that general submission.
In Varga the Strasbourg Court was concerned with the amount of space available to individual prisoners. On that question the Hungarian authorities provided the UK courts with an assurance relating to the space each of the appellants would enjoy if incarcerated.
Hungary is a member of the Council of Europe and also the European Union. It is category 1 territory for the purposes of the Extradition Act 2003. There is a rebuttable presumption that such countries will abide by their obligations under the Convention. The Varga decision rebuts the presumption with respect to article 3 and prison conditions in Hungary. In practical terms it is then for the requesting state to dispel the doubts that have arisen.
An assurance from the requesting state is capable of dispelling doubts about whether removal to that state would involve a violation of the Convention by the removing state: Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1.
The court considered the case of Othman and examined in detail the assurance provided by the Hungarian authorities. The appellants argued that the assurance was deficient for a number of reasons:
· There were no details about how it would be honoured
· It did not say where the appellants would be held
· It did not say that the appellants would not be held in one of the prisons considered by the Strasbourg Court in Varga, when there are institutions which do not suffer from the systemic failing identified
· No new remedies had been created in Hungarian law to enforce compliance with article 3 post-Varga
· There was a lack of any effective monitoring mechanism or remedy for those extradited in reliance on the assurance should it not be honoured
· There was no information about how those already returned with the benefit of the assurance have fared
· There was a lack of evidence of monitoring by the British authorities of the working of the assurances.
There was evidence that 17 individuals had already been surrendered to Hungary under an identical assurance. There was no information regarding the fate of these individuals. The appellants argued that proceedings should be adjourned to obtain evidence as to whether the assurances had been adhered to in their cases. The court recognised the potential relevance of such evidence. However, it made clear that it is inappropriate to adjourn cases to enable extensive and time-consuming investigations to be carried out in the hope that something might turn up of benefit. Extradition cases, particularly with regard to category 1 countries, must proceed as swiftly as possible.
There was no evidence of direct monitoring of the assurance by the British Embassy or any other body on behalf of the United Kingdom. Monitoring has featured as an important factor in cases involving removal to non-Convention countries with abysmal human rights records, where there is no ready access to prisoners and no reliable avenues of complaint available. The court held that was not the case when considering a country like Hungary, both a Convention state and a member of the European Union. There was no risk of these appellants being held incommunicado.
The Administrative Court concluded that the assurance given by the Hungarian authorities, when considered against the decision of the Strasbourg Court in Othman, was sufficient to dispel those doubts. The extradition of these appellants to Hungary would not give rise to a violation of their rights under article 3 of the Convention. There were no substantial grounds for believing that there was a real risk that they would be subjected to treatment contrary to article 3 on account of such time as they might spend on remand or serving any sentence in Hungarian prisons.
This case offers a stark reminder of the power of assurances re prison conditions in extradition cases. Even countries where prison conditions have been found to be systemically in breach of Article 3 are able to bypass these pilot judgments and secure the extradition of individuals on the back of simple assurances. The Administrative Court characterised the assurance as a “a solemn diplomatic undertaking” and was prepared to extradite the appellants despite any effective monitoring as to the reliability of the undertaking. Significant weight was placed on Hungary’s status as a member of the Council of Europe and the European Union. The case demonstrates the difficulty that individuals face in resisting extradition from the UK and underlines the need to ensure as full a defence as possible is presented to the court. Prison conditions are becoming an increasingly difficult bar to successfully raise in extradition proceedings.
Should you wish to speak to a member of our extradition team please do not hesitate to contact us.
GHERSON
22 January 2016