Extradition in “disarray”? – Amelia Nice
27 April 2016
Aranyosi and Căldăraru [C-404/15 and C-659/15 PPU].
On 5 April 2016, the Court of Justice of the European Union (CJEU) ruled that the execution of a European Arrest Warrant (‘EAW’) must be deferred if there is a real risk of inhuman or degrading treatment because of the conditions of detention for the person concerned in the requesting state. If the existence of that risk cannot be discounted within a reasonable period, the authority responsible for the execution of the warrant must decide whether the surrender procedure should be deferred or brought to an end.
The cases concerned two totally unrelated and separate extradition requests: a Hungarian accusation warrant seeking the person for trial, the other a Romanian conviction warrant so the person sought could serve a prison sentence. The requested state in both cases was Germany.
In its judgment, the CJEU referred to the absolute prohibition on inhuman or degrading treatment or punishment and that a person resisting extradition on that basis must show substantial grounds of a real risk of such treatment. It then went on to say that if evidence of a real risk is presented to the requested authority, it must assess that risk before deciding on the surrender of the individual concerned. If necessary, it must ask the requesting authority to provide as much information necessary on conditions of detention. If the risk is made out, extradition must be deferred or refused.
The decision is important for the reasons that it is the first time the CJEU has considered this issue.
Hitherto, extradition courts in this country have considered issues of ill-treatment through the prism of Article 3 of the European Convention on Human Rights and the applicable case law arising from the European Court of Human Rights (ECtHR). The ECtHR examines complaints (“applications”) lodged by individuals or States. Where a signatory state has breached one or more of these rights and guarantees, the Court delivers a judgment finding a violation. Judgments are binding on the country concerned. Section 2 of the domestic Human Rights Act (1998) which incorporated into UK law the rights contained in the Convention, obliges any English court or tribunal determining a question relating to a Convention right to ‘take into account’ the jurisprudence of the ECtHR.
The CJEU by contrast, approaches the issue of ill treatment via the Charter of Fundamental Rights of the European Union. The Charter brings together in a single document the fundamental rights protected in the EU and became binding in December 2009 when the Lisbon Treaty came into force (subject to Protcol 1). The Charter has direct effect in the UK by virtue of the European Communities Act 1972. Article 4 of the Charter concerns the prohibition of torture and inhuman or degrading treatment or punishment. The role of the Court is to interpret EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions. Its decisions are binding on courts in all Member States.
The CJEU decision was greeted by politicians and the press with comments that the EAW system is in “complete disarray”. The Times leader article, as an example, concluded that the judgement would make it “more difficult” to extradite under the EAW scheme.
By contrast the Home Office stated that the “ruling is consistent with domestic law.” Unusually perhaps, that is a position most practitioners would be likely to agree with.
The ‘real risk’ test referred to in Aranyosi is entirely in line with well-established case law. The “substantial grounds of a real risk” threshold has been applied in extradition cases for years – and overwhelmingly in favour of the requesting state (such that extradition proceeds).
This seems to have been overlooked by commentators who appeared to use the judgment as an opportunity to heap scorn onto the CJEU (and human rights and the EU, more generally). In fact, the “prison conditions” extradition cases which have been dealt with by the English courts go to show that only in a tiny number of cases has extradition been refused because of a real risk of human rights breaches resulting from prison conditions.
More normally, where a concern is shown to be justifiable, the requesting state will issue an ‘assurance’ that the requested person will be kept in human rights compliant conditions and extradition will proceed. Assurances are used in the context of the transfer of a person from one State to another, and refer to an undertaking by the receiving State to the effect that the person concerned will be treated in accordance with conditions set by the sending State or, more generally, in keeping with its human rights obligations under international law (see the UNHCR Note on Diplomatic Assurances and International Refugee Protection, Protection Operations and Legal Advice Section Division of International Protection Services, Geneva, August 2006, p.2). They represent a pragmatic response where courts are faced with substantial evidence of human rights breaches and have been described as “not merely normal but indispensable in the operation of English extradition law” (Shankaran v India, SSHD (2014) EWHC 957 (Admin)).
Assurances are now assessed against the criteria set out by the ECtHR in the case of Othman (Abu Qatada) v United Kingdom (8139/09) (2012) 55 EHCR 1. However, many criticisms of their use remain, notably that they are only used where serious fears of human rights breaches have already been demonstrated, are often not binding in law, and are difficult, if not impossible, to monitor. The House of Lords Select Committee review of Extradition Law and Practice (2014-15) concluded the arrangements in place for monitoring assurances are flawed, that there can be no confidence that assurances are not being breached and that they do not offer an effective remedy in the event of a breach.
Nevertheless, where “prison condition” arguments are raised on human rights grounds, the arguments are normally either rejected (Poland, Latvia, for example) or have proceeded by way of assurances as to
- Personal space (GS v Hungary  EWHC 64 (Admin); Blaj v Romania  EWHC 1710 (Admin))
- Detention in a specific Art.3 compliant prison (Aleksynas v Lithuania  EWHC 437 (Admin))
- Specific prison, overcrowding and general conditions (Vasilev v Bulgaria 14 April 2016)
- General conditions (Ilia v Greece  EWHC 547 (Admin))
Only in exceptional cases, typically where the person sought has a particular vulnerability, is extradition refused. The CJEU decision refers to the use of assurances and does not suggest their use is to be deprecated.
Where the CJEU judgment may represent a break with the historic manner of dealing with these arguments is in the requirement that the requested state gather information and consider a deferral of extradition. The binding nature of the CJEU decision may mean that the English courts have to look closely at their own procedures in both respects.
In fact, the Framework Decision, which governs the EAW scheme, obliges the requested state which considers it does not have sufficient information to determine surrender, to request further information and to set a deadline for its receipt (Article 15). To that extent, the CJEU judgment simply affirms a long standing principle. What is more interesting however, is that to date, English courts (in practice District Judges sitting at Westminster Magistrates’ Court) have been very reticent to seek out information themselves, choosing instead to rely on the evidence obtained by the CPS (who act for the requesting authority) and/or encouraging evidence to be obtained via the CPS. But the Court itself rarely enters into direct contact or dialogue with of the requesting authority. This judgment may therefore encourage the District Judges to be more active, even inquisitorial, in obtaining further information and preventing both requested and requesting judicial authorities hiding behind the “mutual trust” between states which is so often relied on.
The judgment also makes clear that extradition may be “deferred” until conditions are acceptable. That is an interesting prospect since hitherto the stress has always been on the EAW scheme requiring expediency and is likely to require (eventually) guidance or a new set of criteria for determining deferment. Permission to defer will then offer up new arguments supporting extradition so that in appropriate cases requesting authorities can “buy time”, clean up the relevant prison and pursue extradition. To that extent, not only does the CJEU judgment affirm Article 3 Convention law and procedure, it will positively assist securing extradition in cases where removal would otherwise have to be refused on the basis of a real risk of a human rights breach.
Amelia Nice is a barrister specialising in extradition, international family and public law