One of the core arguments used in many extradition cases in the UK rests on Article 3 of the European Convention on Human Rights (ECHR) which prohibits torture and inhuman or degrading treatment or punishment. In addition to preventing extradition where there is a risk of torture, this bar can be used to prevent extradition where prison conditions are so poor that holding a person there would amount to a breach of Article 3.
A recent decision of the High Court (in what is believed to be the first ever extradition case from Ecuador) has given further guidance as to the proper approach to be adopted by the Magistrates’ Court when assessing these Article 3 arguments.
The facts of the case are as follows: a national of Ecuador, who was present in the UK on a student visa, was accused of rape and Ecuador requested his extradition in 2017. The substantive extradition hearing took place in April 2019. The requested person opposed the extradition request on several grounds, including that the prison conditions in Ecuador would breach his Article 3 rights.
The judge at first instance dismissed all of his arguments apart from one very specific point related to the prison conditions he would face on return. She ruled to discharge the requested person on the sole basis that the detention centre which he would be sent to was overcrowded and as such would constitute a breach of Article 3. The judge also added that “other concerns about the conditions at the [detention] centre were less significant”. It is interesting that neither Ecuador nor the requested person placed particular importance on the issue of overcrowding, focusing instead on other factors related to the centre’s conditions. The fact of the facilities having more detainees than it was supposed to was openly confirmed by Ecuadorian authorities during the proceedings.
The judge also stated that Ecuador had failed to provide the necessary details regarding prison conditions which would make her believe that Article 3 rights would not be violated. She explained that “very little reliance could be placed on” the evidence provided by the Ecuadorian authorities as to the prison conditions being satisfactory. Ecuador appealed while the requested person brought a cross-appeal asking the Court to reconsider arguments relating to fair trial and the substance of the accusation.
The High Court disagreed with the approach of the judge. It stated that the burden of proof in relation to prison conditions was on the requested person and that it was up to him to produce an expert report regarding the prison conditions he would face, or otherwise show “grounds for believing there is a real risk” that he would be subjected to inhuman or degrading treatment. Only if such grounds were shown would the burden then shift to the requesting state.
The High Court also held that the mere fact that the population of a prison facility might be confirmed to be “over the official capacity” does not show that “insufficient personal space is provided for an individual detainee” and “is not in itself determinative of the existence of a real risk that the detainee will be subjected to inhuman or degrading treatment”. There was no evidence as to how much personal space would be available to the respondent and whether it would be less than the standard set out in the ECHR jurisprudence of 3 square metres. Moreover, the High Court judge noted that the custodial institution in question was a detention centre, not a prison – which means it does not have locked cells but rather rooms that detainees are allowed to leave at their discretion, making the whole issue of restricted personal space much less crucial.
On the basis of the above, the High Court reversed the decision of the District Judge and returned the case to the Magistrates’ Court with a direction that the judge should proceed as she would have been required to do if she had decided the Article 3 issue differently at the extradition hearing – in other words, the requested person’s extradition would be ordered.
While it may be universally acknowledged that many states are notorious for their overcrowded prisons and dubious prison conditions, this decision has once again confirmed that the prison conditions argument, albeit seemingly easy to use in an extradition case, has to be supported by substantial specific evidence in order to be accepted by the courts. This is hard to achieve, as the initial burden of proof lies on the requested person, who often has limited opportunities to provide reliable and compelling evidence demonstrating that the prison conditions they will face in the requesting country amount to degrading or inhumane treatment.
Gherson has extensive experience in handling extradition cases and obtaining and presenting strong evidence in respect of prison conditions. If you have any questions about a current or potential extradition case please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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