Radions Brazuks (1st Appellant) v Prosecutor General's Office, Republic of Latvia

Hearing dates: 25 March 2014

These three appeals are brought pursuant to Section 26 of the Extradition Act 2003 against decisions of a District Judge that each appellant should be returned to Latvia to face prosecution for offences. They have been listed to be heard together in order to enable the court to give an authoritative decision on the issue which has been raised in a number of cases involving extradition to Latvia: whether the state of the Latvian prison estate is such as to produce a real risk that there will be a breach of Article 3 of the ECHR if returns are directed. The three appellants were each said to raise particular matters which, independently of any general argument on the shortcomings of the Latvian prison estate, showed that they were especially vulnerable.

In oral argument Mr Alun Jones, Q.C. did not seek to make any generalised attack on the Latvian prison estate. The court has received all relevant evidence which has enabled us to consider this issue and, having regard to the purpose of listing these appeals together, it would be wrong for us not to deal with it. Mr Alun Jones did not make any concessions, but, as will become clear, there can be no doubt that any such generalised attack would be bound to fail.

The special issues said to exist in these three appeals which were argued by Mr Alun Jones are as follows. I shall refer to the appellants by their initials, namely RB, EZ and AS. RB was, he said, threatened by a co-accused with being killed and his fear in that regard was increased because another co-accused had met his death in prison in circumstances which had not been properly investigated and which were entirely consistent with murder by a fellow prisoner. He was thus to be regarded as a vulnerable prisoner and there was a failure to protect such prisoners from inter-prisoner violence. EZ's case concerned prison and detention centre conditions for females and she alleged that she would be a vulnerable prisoner because she had acted as an informant. AS has been diagnosed to be suffering from HIV and Hepatitis C. In his case, the issue whether there is a satisfactory system of treatment for prisoners is material, it being his case that such a system is so deficient as to be a breach of his human rights.

In assessing whether there may be a breach of Article 3, the approach which must be applied has been considered in a number of cases. A very strong case must be established to show that there would be a real risk that the requested person would be subjected to treatment which would breach his or her rights in that he or she would suffer torture or inhuman or degrading treatment. Latvia, in common with all states which can use the EAW procedure, is a signatory to the ECHR and a member of the Council of Europe. Accordingly, it would take very strong and cogent evidence to show that Latvia or any requesting state within the EU was not willing or able to fulfil; its obligations under the Conventions. A number of cases have referred to a presumption that states will comply with their Convention obligations which will have to be overcome by evidence in a particular case. In one of the most recent cases, Aleksynas & Others v Lithuania [2014] EWHC 437 (Admin), Jay J, who was sitting with Moses LJ, said in paragraph 98:-

"Perhaps the better way of expressing the matter is that the Appellants face the legal burden of proving that the requesting state would not fulfil its obligations under the Convention, and that the threshold is a relatively high one ('strong grounds for believing')"

I doubt that there is much if any difference whichever approach is applied. There has been a consistent approach to prison condition cases in this court that what must be shown is an international consensus that a breach may occur. This test was referred to by Mitting J in Tworkovski v Poland [2011] EWHC 1502 (Admin) applying the reasoning of the European Court of Justice in NS v Secretary of State for the Home Department ( case C-411/10 and 493/10). This is in my view properly translated into a need to show a systemic failure resulting in a real risk of treatment contrary to Article 3. Such a failure led the Court in Badre v Court of Florence, Italy [2014] EWHC 614 (Admin) to decide that the appellant should not be returned to Italy since in a pilot judgment the ECtHR had stated, in Torreggiani v Italy, (Application No.43517/09) decided in January 2013, that overcrowding in Italian prisons breached Article 3. Rule 61 of the Rules applicable to the ECtHR provides:-

"1. The court may initiate a pilot judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systematic problem or other similar dysfunction which has given rise or may give rise to similar applications."

While I do not go so far as to say that the absence of such a judgment will inevitably defeat a claim that there is a real risk of a breach of Article 3, it will be very difficult for any requested person to establish such a risk if the ECtHR has not been persuaded that a systemic problem or similar dysfunction exists. There have been a number of cases decided by the ECtHR dealing with the Article 3 claims in relation to treatment in Latvian prisons. Many have resulted from particular assaults or ill-treatment which were, it was alleged, not properly prevented or investigated. The only possible systemic failure has been the lack of an independent investigation into assaults, whether by prison or police officers or other prisoners. But this does not establish that there is a real risk that such assaults or ill-treatment will occur or that there will be no satisfactory means of protecting vulnerable prisoners. It could only show that if such an assault or ill-treatment occurred it might not be investigated by an independent body rather than by persons subject to control by the prison authority.

Apart from recourse to the ECtHR, there is a further protection for prisoners through investigations by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). Latvia has been visited regularly by the CPT which has considered prison conditions there. A number of problems have been identified over the years during which such visits have taken place and we have been provided with copies of the CPT's reports dating back to 1999. However, Mr Alun Jones accepted that what we have to consider is whether now there would be a real risk of a contravention of Article 3 were the appellants or any of them to be extradited. Thus the important report is the latest which was produced following a visit in September 2013. I accept that a continuing failure to act on recommendations made by the CPT where such failure would leave in being a state of affairs which would be likely to breach Article 3 could persuade this court to find that an extradition request should be refused. But much would depend on the response of the requesting state and whether it was taking reasonable steps to remedy the state of affairs and to provide sufficient protection to the individual requested person. It must also be borne in mind that deficiencies identified by the CPT will not necessarily result in a breach of a particular individual's human rights.

In addition to any systemic failures identified by the ECtHR or a continuing failure to take steps to deal with a problem identified by the CPT, a requested person might be able to show that because of particular matters affecting him or her he or she was likely to suffer treatment which breached Article 3. I doubt whether this would be likely to be established save in the most exceptional circumstances which do not apply in any of the appeals before us. But the possibility must not be ruled out.

The approach I have set out is not in my judgment in conflict with the recent decision of the Supreme Court in R(EM Eritrea) v Secretary of State for the Home Department [2014] 2 All ER 192. The case concerned removals to Italy of asylum seekers in accordance with the Dublin II Regulation. There were four appellants all of whom claimed that to send them to Italy would breach their human rights in that they would be treated in a way which breached Article 3. Whether or not a state such as Italy could be regarded as safe for such asylum seekers had been considered by the ECtHR in MSS v Belgium & Greece (2011) 31 BHRC 313 and more importantly since its decision is binding by the CJEU in NS v Secretary of State for the Home Department [2013] Q.B. 102. It had been believed that the effect of these decisions was that only if a systemic failure to provide the...