by
Mary Westcott
The House of Lords Select Committee report on Extradition Law has now been published, alongside the complete written and oral evidence gathered. Perhaps predictably, like begets like, and rather than tangible results, many of the conclusions call for further review and additional guidelines. The Committee concluded that, although the EAW “is a vital tool in fighting crime across the EU … we recognise that it has been in the past overused and, on occasions, misused. We want the government to work with the European commission and other member states to make sure EAWs are used as an instrument of last, rather than first, resort.”
The report is easy to navigate and there is no real substitute for reading the original.
Update: Prison conditions and Article 3
The question of poor prison conditions continues to feature in many extradition cases. In a surprisingly broad submission made last summer, the Chief Magistrate (on behalf of the extradition District Judges) highlighted the “problem”:
“Prison conditions are a problem. Recently attacks have been made on prison conditions in Lithuania, Latvia, Poland, Italy, Romania, Moldova, Russia, the Ukraine, Turkey, South Africa, Kenya, Greece, among others. In most of these countries we do not now order extradition because of prison conditions, or do not do so in the absence of assurances which are not usually forthcoming. This means in effect that we have extradition arrangements with many countries to whom in practice we will not order extradition. … Sooner or later we will decline to extradite somebody who then commits a serious offence in this country.”
The position in relation to Lithuanian “accusation” cases remains much the same. Extradition is only ordered due to the generic and now relatively old “Kaunas assurances” (which state that extraditees will only be held in Kaunas remand prison, as set out in Aleksynas v Lithuania [2014] EWHC 437).
In Elashmawy v Italy [2015] EWHC 28 (Admin), the Divisional Court found that Italian prison conditions had improved in general since Strasbourg’s decision in Torreggiani (Application No, 43517/09).
Meanwhile, a new generic “assurance” has recently emerged in relation to Romanian prisons and the available living space (depending on whether a person will be held in closed or semi-open regimes).
With Strasbourg’s Pilot Judgment against Hungary in Varga & Others (10 March 2015 - see Abigail Bright's article) further litigation in the extradition courts is anticipated, particularly in Horvath v Hungary (listed for hearing on 21 May 2015 in respect of male remand conditions).
The use of generic assurances made by requesting authorities looks set to increase. Elashmawy confirms that facts do not remain static. For the same reason, the life of a generic assurance is not indefinite and should be subject to anxious scrutiny in each case. Obviously prison conditions not only improve, but can unfortunately deteriorate, even within the EU.
The House of Lords Committee concluded that assurances should only be used where there are serious fears of serious human rights violations. Once issued, assurances should be rigorously scrutinised and fully comply with the Othman criteria. Any assurance must be genuine, effective and provide real protection from human rights abuse. [para. 88]
Notably, the Committee also concluded that arrangements for monitoring assurances were flawed. The UK cannot be sure we are fully complying with our human rights obligations as there can be ‘no confidence’ assurances are not being breached. [para 90]
The Committee proposed that details of assurances should be made publically available and that the UK should require details of how assurances will be monitored. [para 93]
Consequently, good practice demands service of assurances in each case where they are relied on (at least until transparency is achieved by the central database idea suggested by the Committee at para 93). In the case of any generic assurance, at least some indication should be given of how that undertaking will be monitored should extradition proceed.
Mary Westcott
