Extradition, Article 3 and Assurances.
The right to protection from inhuman and degrading treatment (Article 3 of the European Convention on Human Rights) is the basic and absolute right.
During the extradition proceedings, the argument may be raised that extradition must be refused because the conditions of detention in the requesting country are such that they violate the protection of the person provided for in article 3.
The threshold of this is surprisingly high.
The law requires substantial grounds to believe that the requested person will face “a real threat of torture or inhuman and degrading treatment. “(Elashmawy v Italy http://www.bailii.org/ew/cases/EWHC/Admin/2015/28.html).
The criterion is relative, and takes into account the specific circumstances of the person requested.
In order for the argument to be valid, evidence must be clear and convincing, and also show “something close to international consensus”.
It is not necessary that the pilot decision raise the argument for article 3.
For example, courts in Ireland and Northern Ireland are denied extradition to Lithuania on the basis of written reports and expert opinions on prison conditions.
Likewise, in 2013 the British court refused to extradite to Ukraine on the basis of prison conditions after reviewing a written certificate of the country from the Asylum and Immigration Court of the United Kingdom and expert opinions.
If the extradition is successfully challenged on the basis of Article 3, the prohibition is not the end of the matter.
According to the recent trend, a number of extraditions were resolved, despite the existence of prison conditions, which at first glance violate article 3.
The court is often given letters with assurances from the authorities of the requesting country that persons will not be kept in these conditions that do not meet the requirements.
In general, one or two prisons have been established as meeting the requirements of Article 3.
In some cases, assurances are given in which it is simply stated that the requested person “will not be held in conditions that violate article 3”.
Over the past two years, the authorities of Italy, Lithuania, Hungary, Romania, Ukraine and Russia have provided assurances regarding prison conditions.
The British courts have accepted all these assurances.
In the United Kingdom, case law still states that if the assurance is consistent with the legal criteria set out in the Osman v. The United Kingdom case (http://hobhouse.bailii.org/eu/cases/ECHR/2012/56.html) (although this is not just an assignment where it is necessary to mark the appropriate fields), such assurance will surpass the arguments on article 3, and extradition will be granted.
Fears are often raised about the quality of the assurances given.
However, at least for the time being, it looks like British courts readily believe our extradition partners, and rely on assurances when raising the issue of prison conditions.
This trend is alarming, since most of these assurances appear to be model documents that may not even contain the name of the person sought.
Many are concerned that these empty assurances do not give much hope that the rights of the person sought will be truly protected properly.
There are real fears that assurances will be fulfilled after the return of the person requested, and there are often a number of separate facts indicating that they are not being met.
The Committee on Extradition of the House of Lords considered this issue in March 2015.
The committee questioned, in the absence of a system to monitor these assurances, that the UK can be sure that it is fulfilling its human rights obligations.
In July 2015, the Home Secretary announced a review of how the assurances after extradition are verified and how existing supervision can be improved.
As far as we understand, this revision will be completed in the autumn, and, perhaps, will allow a better understanding of the current system.
Regardless of the outcome, it is to be hoped that proper monitoring will be established to enable courts in extradition cases to better assess future assurances.
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