Don’t try for me, Argentina
23 March 2012
Wright v Argentina [2012] EWHC 669 (Admin) – read judgment
The Administrative Court has just found that a British citizen cannot be extradited to Argentina to be tried for a drug smuggling offence because she would face inhuman and degrading treatment in the Argentinian prison system contrary to her Article 3 rights under ECHR.
Background
The appellant was apprehended at the airport in Buenos Aires with cocaine in her luggage. She was remanded into preventative detention and questioned, but eventually she was granted bail. In breach of her bail conditions, she fled the Argentinean jurisdiction and returned to the United Kingdom via Brazil. The Argentinian government issued a request for the appellant’s extradition to Argentina through diplomatic channels so that she could face a drug smuggling charge. The appellant was subsequently arrested and brought before the magistrate’s court where she argued that extradition would breach her rights under Article 8. The District Judge did not accept that argument and an extradition order was consequently issued.
The appellant, who wishes to be tried in this country, stated first that she admits she would plead guilty to a charge of attempting to import cocaine into the United Kingdom if charged in this jurisdiction. To achieve that aim of being tried in this country, she brought these judicial review proceedings, seeking permission to challenge first the decision of the Commissioner of the Metropolitan Police not to investigate the claimant’s involvement in a conspiracy to import the cocaine into the United Kingdom and second the decision of the Director of Public Prosecution not to prosecute the appellant for that offence.
The task before the Administrative Court was therefore to determine how this appellant would be treated in Argentina in the prisons where she would be detained and whether there is a real risk that the appellant if extradited would be subjected to torture or to inhuman or degrading treatment or punishment in Argentina (Soering v United Kingdom (1989) 14 EHRR 439,468[88]). The thrust of the appellant’s case was that her expert evidence showed a “scenario of systematic human rights violations” in Argentinean penal institutions which proved that she would be at real risk of suffering from first a lack of proper supplies, second systematic abuse from prison staff, including cruel punishment and degrading searches and third violence on inmates by fellow prisoners, which is not prevented by prison staff.
The appeal was allowed on the basis that the extradition of the appellant to Argentina would on the specific facts of this case infringe her rights under article 3 ECHR..
The court’s reasoning
Silber J accepted that the respondent is bound by international treaties on human rights and that Argentinian detention conditions are duly supervised. However, he was more inclined to the evidence adduced by the appellant that the relevant supervisory bodies were “either unable or unwilling” to ensure that proper food and resources are available to prisoners. Further NGO and prisoner campaign group evidence about ill-treatment by prison staff and intrusive body searches led the judge to find that there existed
a disturbing pattern of cruel, inhuman treatment being suffered by female prisoners and especially foreign ones in Argentina.
Therefore in his view, it was “very likely” that the appellant would be subjected to this treatment in the absence of any adequate redress available to her:
the evidence adduced before us demonstrates clearly that there is a systemic abuse of foreign women prisoners in Argentina so that the appellant would if extradited be subject to shortages of basic food and personal hygiene products, frequent physical violence and degrading intimate searches in the presence of men. The evidence shows that there would be inadequate redress available to her and the respondent would be unable to prevent these abuses.
On the other hand, Silber J did not agree that there was anything strikingly unusual or exceptionally compelling about the appellant’s position as she is not currently suffering from any mental or depressive illness or other ailment, so as to enable her to invoke the protection of Article 8 against extradition. In this case, the appellant had admitted to “an extremely grave crime” of being party to a conspiracy to bring into the United Kingdom over 6 kilos of cocaine. That factor militated against precluding the extradition of the appellant on article 8 grounds.
Comment
One might have thought at a time of delicate relations between two countries the UK courts might refrain from throwing spanners into the diplomatic machine, but not a bit of it.
To be fair, Silber J was anxious that his finding should not form any sort of basis for assuming or believing that future attempts by the Government of Argentina to obtain extradition orders will fail for these reasons. He appears to suggest that the outcome of this hearing might have been different if the Argentinian government had given sufficiently firm undertakings with respect to the appellant’s detention, or if an attempt had been made to cross-examine the appellant’s witness on her evidence or otherwise to contradict her “powerful evidence”. But that is doubtful; the judiciary’s anxiety to export Human Rights to the rest of the world, in the tradition set by Chahal v United Kingdom (1996) 23 EHRR 413, appears unstoppable.
Silber J also reassures us that “the reasoning in this case on the article 3 ECHR issue also would not apply to a country which was a party to the ECHR as it could always be assumed that such a country would ensure the article 3 rights of the requested person would be complied with.” But that, too, is to be doubted, since our courts do not hesitate to pass judgment on Convention compliance of other signatory countries if it affects the rights of the individual or individuals before them: see my post on the Naftogaz case.
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Can this case be used to show the relationship between International Law & UK Domestics Law as a case study at all???
What about the other people in the Conspiracy why are they not being prosecuted? Why have the Met failed to investigate the conspiracy? This woman appears, from what I read , to have been a ‘mule’ a low level person in the organized importation of drugs.
She should not be prosecuted at all if the Met refuse to investigate the big players in this organized crime.
Silber J also reassures us that “the reasoning in this case on the article 3 ECHR issue also would not apply to a country which was a party to the ECHR as it could always be assumed that such a country would ensure the article 3 rights of the requested person would be complied with.” But that, too, is to be doubted, …
I agree with that. The real question is whether a State actually adheres to Convention rights and not whether it is merely a signatory. (One of the objections to the European arrest warrant system is that standards in prisons vary enormously throughout Europe).
” … third violence on inmates by fellow prisoners, which is not prevented by prison staff. …”
Regrettably that is not unknown in the UK. Prison impacts harder on certain individuals than others – e.g. those without any previous convictions; those from certain occupations (Police Officers, former magistrates, lawyers) and those convicted of certain types of offences (e.g. involving assaults on children) etc.
This was a 2 part JR – what was the result of the request to be charged with the criminal offence here? Difficulty is that she has already said she would plead guilty if charged, so has been forced to incriminate herself – would an attempt to charge her therefore fail ?
I wonder if this will tone down the debate about the ECHR in the UK a bit. Probably not.