The High Court has recently suggested, in Serra v Paraguay [2017] EWHC 2300 (Admin), that there could be a different approach to the assessment of prison conditions in requesting states in extradition cases. This “relativist approach” would involve an assessment based on the norms of that particular state.
The violation of the right to freedom from torture and inhuman and degrading treatment, due to prison conditions in a requesting state, is commonly raised as a bar to extradition. A decision of the ECtHR, in Muršić v Croatia (App. No. 7334/13), held that unless a prisoner has three square metres of personal space there is a strong presumption that his conditions of detention would violate Article 3. The decision has been applied to domestic extradition cases (Owda v Greece [2017] EWHC 1174 (Admin) and Grecu v Romania [2017] EWHC 1427 (Admin)) whereby, on the evidence, three square metres of personal space was required in order to comply with Article 3 and, absent that, an assurance confirming compliance was necessary.
However, this approach appeared to be doubted by Burnett LJ, sitting in the Divisional Court with Sir Wyn Williams, in Serra. This case concerned an extradition request from Paraguay. At paragraph 16, the Court approached the case, as agreed by the parties, on the basis that if the requested person could establish that there were substantial grounds for believing that there was a real risk that they would be detained in a cell with less than three square metres of person space, as defined in Muršić, their extradition would be prohibited, unless limited exceptions applied.
However, the Court refused to confirm whether this approach was correct. They observed, at paragraph 17, as follows:
- Muršić involved an application from a serving prisoner rather than a requested person.
- Courts of many countries whose prison conditions have been found to violate Article 3 by the ECtHR have been able to detain prisoners on remand and those sentenced to periods of imprisonment while they seek to improve conditions, even though there is a real risk that those prisoners would be subject to inhuman and degrading treatment.
- There does not appear to be any decisions of the ECtHR dealing with the question of personal space in the context of extradition.
- It might be thought anomalous that a fugitive from justice in a state which is a signatory to the ECHR apprehended in his own country would be returned to prison but the same person who manages to cross the border into another ECHR state would escape return unless assurances were in place.
- The same could be said for the extradition of a person from an ECHR state to a non-ECHR country where conditions may satisfy the International Committee for the Red Cross standards but do not meet the standards in Muršić.
It has previously been suggested by Lord Hoffman, in R (Wellington) v Sectretary of State for the Home Department [2008] UKHL 72, that a relativist approach to the scope of Article 3 was essential if extradition was to continue to function (at paragraph 27) and that following R (Ullah) v Special Adjudicator [2004] 2 AC 323 reliance on Article 3 demands presentation of “a very strong case” (per Lord Bingham at paragraph 24).
The remarks of Burnett LJ are obiter, however it is likely that the issue will be addressed in other extradition cases and ultimately by the ECtHR. This could lead to a more flexible approach to prison conditions in extradition cases and make it (even more) challenging for requested persons to resist surrender in reliance on Article 3.
