WHEN – to use the language of the Daily Mail – should courts refuse to extradite a person wanted for a crime committed in another country “because of human rights”?
The question is particularly pertinent to extraditions to other EU Member States, where these are now carried out by using the European Arrest Warrant, a summary procedure whereby Member States are in principle obliged to execute an EAW (as the instrument is usually called) unless one of limited grounds of objection is applicable. In recent months, this question has arisen in three interesting cases. At the risk of superficiality, this note will attempt to deal with all of them together.
In the first, H. (H.) v Deputy Prosecutor of the Italian Republic (Genoa) and F.-K. v Polish Judicial Authority [2012] UKSC 25, [2012] 3 W.L.R. 90, the human rights objection argued before the UK Supreme Court was, in effect, that “it would be unfair to uproot us and send us off to another country.” In the second, Krolik v Regional Court in Czestochowa, Poland [2012] EWHC 2357, [2013] 1 W.L.R. 490, the human rights objection argued before the Divisional Court, was, in effect, “you shouldn't send us off to Poland because we won't be fairly treated when we get there”. In the third, Case C-396/11 (Radu), decided on 29 January 2013, the CJEU was expected to address the general question of how far, as a matter of EU rather than of national law, a national court is free to refuse to execute an EAW on grounds related to the wanted person's human rights.
Under UK law, the door to human rights objections in the context of the EAW is expressly opened by section 21 the Extradition Act 2003, which requires the judge who is otherwise required to proceed to order the surrender of a wanted person to “decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998” (a provision which is mirrored in section 87 in Part II of the Act, by which extradition requests from the rest of the world are regulated).
An ingredient in the package of “Convention rights” is the right to private and a family life guaranteed by Article 8 of the ECHR. But Article 8(2) permits state interference with this right when necessary for “the prevention of disorder or crime”, an ample phrase which covers extradition. And as criminal proceedings are commonly disruptive of a person's private and family life wherever they take place, our courts have hitherto shown little sympathy to Article 8 arguments in the context of extradition. Thus in Norris v US (No 2) [2010] UKSC 9, [2010] 2 A.C. 487, where a retired businessman sought to argue that his extradition would undermine his health and cause his wife depression, the UK Supreme Court rejected his appeal, suggesting that, for an Article 8 argument to succeed, the facts would have to be “exceptional”.
In H. (H.) v Deputy Prosecutor of the Italian Republic (Genoa) and F.-K. v Polish Judicial Authority, however, the wanted persons were not aging businessmen but parents with dependent children. In the first case, the Italian EAWs related to a married couple with three children, aged 11, 8 and 3; and in the second, the Polish EAW related to a mother, the youngest of whose five children were aged 13, 8 and 3. Confronted with these facts, the Supreme Court accepted that the interests of the children also fell to be considered, and with that in mind, departed – at least to some extent – from its previous hard line in Norris. After much discussion, and with Baroness Hale dissenting, the court upheld the decision of the lower courts to order the surrender of both parents in the Italian case, whose return was sought to make them serve long sentences imposed for conspiracy to smuggle large quantities of drugs. But in the Polish case the Supreme Court unanimously reached the opposite result, upholding the non-surrender of the mother, whom the Polish authorities wished to place on trial for fraud. Among the matters which persuaded the court to decide that the interests of the children should in the Polish case prevail were the relatively small scale of the alleged frauds, and the fact that (to quote Lord Judge) the “prosecuting authorities have been dilatory in the extreme” – the most recent of the incidents being over ten years old.
By contrast, in Krolik v Regional Court in Czestochowa, Poland, the Divisional Court took a hard-nosed line with human rights objections based on what the appellants said might happen to them if they reached the Member State that was trying to retrieve them. In this case, a group of Poles resisted surrender on the ground that Polish prisons conditions are so bad that sending them to Poland would put them at risk of “inhuman and degrading treatment” in contravention of Article 3 of the Convention. But Poland, the court pointed out, is a member of the Council of Europe, and as such is presumed to be able and willing to fulfil its obligations under the Convention. To rebut this presumption in a given case, “clear, cogent and compelling evidence to the contrary” must be produced. For this to be derived from general reports about the state of Polish prisons, “something approaching an international consensus is required.” The Divisional Court held that the reports on Polish prison conditions relied on by this group of appellants fell short of this, and their appeals against surrender therefore failed. For the future, said the court, those seeking to resist surrender to Poland in this type of case must clearly identify “some new factual issues not considered in this appeal or earlier cases”; and unless they do, future courts should refuse to consider the evidence relied on and rejected in this case.
But how do these issues play out at the level of EU, rather than of national law? Unlike Part I of the UK Extradition Act 2003, which is supposed to give effect to it, the EU Framework Decision of June 2002 (2002/584/JHA) which created the EAW provides a restricted list of specific grounds for non-execution, and does not expressly say that Member States may additionally refuse to execute EAWs on broader grounds derived from human rights. In the light of this, does EU law permit a refusal on such general grounds, in addition to the grounds expressly listed in the Framework Decision? Or as a matter of EU law, are Member States limited to the grounds of refusal expressly stated?
In her opinion in the Radu case, decided by the CJEU earlier this year, Advocate-General Sharpston had strongly argued that, though silent on the point, the Framework Decision must as a matter of EU law be read as subject to the provisions of both the European Convention on Human Rights and the EU Charter of Fundamental Rights – and hence that EU law does indeed permit a Member State to refuse to execute an EAW if to do so would infringe or violate the wanted person's human rights. But the CJEU, when as a Grand Chamber it eventually decided the case, avoided ruling on the point by finding that the point of principle did not in truth arise. In concrete terms, it said, the point at issue in this case was whether, before issuing an EAW, the authorities of a Member State are obliged to give the wanted person the opportunity to be heard. And the answer to that question is “Of course not”. Neither the Convention nor the Charter would give a suspect have a right to be heard in such a situation, even if they are applicable. And so we shall have to wait until another day for the CJEU to give us the answer to the bigger question.
On principle, it is surely to be hoped that the CJEU will eventually follow the line taken by Advocate-General Sharpston. In a Europe of free movement – which regrettably means free movement for criminals as well as honest citizens – the EAW is a necessary instrument. But if necessary, it is also one which is capable of heavy-handed use. Although invented with serious trans-border crime in mind, it is capable of being used in many cases which are not particularly serious. And in the current absence of any parallel system for enabling less serious trans-border crime to be dealt with by less drastic means, prosecutors are tempted to use it in such cases. If applicable, the Charter and the Convention could provide a safeguard against its over-zealous use. Furthermore, if prison conditions in some Member States are really bad enough to infringe Article 3 of the Convention, the refusal of other Member States to execute EAWs issued by those States would place added pressure on them to improve them. And if the CJEU should decide the case the other way, there would appear to be an uncomfortable dissonance between the Framework Decision and Part I of the UK Extradition Act, which was intended to give effect to it.
