Extradition to the United Kingdom found inadmissible due to insufficient assurances on detention conditions
Decision of the Karlsruhe Higher Regional Court, 10 March 2023 – 301 OAus 1/23
Since 1 May 2021, the TRADE AND COOPERATION AGREEMENT (=TCA) between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, has finally entered into force, and applies to extradition requests between the United Kingdom and Europe.
After the prosecuted person raised objections against his extradition from Germany to the United Kingdom with regard to the prison conditions in the UK and a possible violation of Art. 3 para. 1 ECHR (prohibition of torture), the German Karlsruhe Higher Regional Court ordered further investigation about the prison condition in the UK. The court requested from the UK government binding guarantees that human rights of the prosecuted person will be respected under international law pursuant to Art. 604 paras. a) and c) TCA in conjunction with Art. 30 para. 1 sentence 2 IRG. The corresponding declarations by the United Kingdom were insufficient, the German Karlsruhe Higher Court declared that the extradition of the prosecuted person is currently inadmissible.
The TCA-extradition warrant was revoked. The immediate release of the prosecuted person which was in the prison of Freiburg i. Br., Germany was ordered.
Facts:
The defendant was taken into extradition custody at Freiburg Prison on 28 December 2022, initially on the basis of a provisional extradition custody order of 2 January 2023 and later on the basis of an extradition custody order of 19 January 2023.
The background to this was a TCA arrest warrant (=Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community on the one hand and the United Kingdom of Great Britain and Northern Ireland on the other) issued by the District Court of Westminster on 21 September 2022, which stated that a national arrest warrant had been issued against the defendant by the District Court of Westminster on 16 September 2022 on two counts of conspiracy to supply a Class A controlled drug and four counts of conspiracy to conceal, convert, transfer or remove criminal property under section 1(1) of the Criminal Law Act 1977.
By counsel’s brief dated 13 January 2023, the defendant sought a declaration that his extradition to the United Kingdom was inadmissible. In support of this, objections were raised with regard to the specific conditions of detention to be expected of the prosecuted person in the United Kingdom. The prosecuted person was threatened with inhumane accommodation in English prisons and thus with a violation of Art. 3 ECHR, Art. 1 German Basic Law due to the chronic overcrowding of the prison system, staff shortage and massive problems of violence in the prison facilities in the United Kingdom.
The conditions of imprisonment in this case also depend on the respective prison and occupancy density. In some cases, prison sentences are served in Victorian-era prisons that still do not meet minimum requirements for ventilation, light and space. In addition, a large proportion of prisons were massively overcrowded, and a further proportion were run by private providers with the intention of making a profit (in particular by the security company G4S).
In its decision of 19 January 2023, the Senate stated that, before a final decision on the application for admissibility could be made, further factual information would be required with regard to the objections raised by the prosecuted person and the Senate’s ex officio duty to clarify the situation with regard to the prison situation in the United Kingdom and Northern Ireland to be specifically expected of the prosecuted person after his extradition, as well as a guarantee announced in the arrest warrant pursuant to Art. 604 a) TCA further clarification of the facts through the collection of guarantees binding under international law pursuant to Art. 604 para. a) and c) TCA in conjunction with § 30 para. 1 sentence 2 IRG is required.
In doing so, the Senate pointed out that the factual clarification with regard to the CPT report of 07 July 2021 cited by the legal counsel (cf. “Report to the United Kingdom Government on the periodic visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 21 June 2021” of 07 July 2022), in which overcrowding and partly inadequate general conditions of detention in British prisons are identified, is necessary, even if the report of the CPT Comitee dates back more than one and a half years and the United Kingdom has already made improvements in some points (cf. the response of the United Kingdom from May 2022: “Response of the United Kingdom Government to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its periodic visit to the United Kingdom from 8 to 21 June 2021”).
In order to justify the necessary clarification of the facts – despite the improvements shown in the United Kingdom’s response from May 2022 – the Senate points out that the overcrowding of prisons in England and Wales continues (on 25 November 2022, the British Ministry of Justice [NOMS] determined an overcrowding rate of 106.5%, i.e. 82,176 prisoners with 77,753 prison places, cf. World Prison Brief data at https://www.prisonstudies.org/country/united-kingdom-england-wales (accessed on 18 January 2023).
Then, in the decision of 19 January 2023, the Senate states the following on the required clarification of the facts:
In accordance with the authoritative case-law of the German Federal Constitutional Court (see, for example, BVerfG, order of 04 December 2019 – 2 BvR 1258/19 –, juris), according to which, when determining the indispensable degree of protection of fundamental rights, at least the indispensable guarantees of the ECHR and the case-law of the ECHR – this is an expression of the Basic Law’s friendliness towards international law (see BVerfGE 111, 307 et seq, 128, 326 et seq.; see also ECtHR judgment of 20.10.2016, Mursic v. Croatia; 7334/13; ECJ judgment of 15 October 2019 C-128/18, Dorobantu) – the occupation of a prison cell by several prisoners in a cell sizes of less than 3 m² per prisoner is only possible in rare exceptional cases and between 3 m² and 4 m² only under special conditions. In this respect, a general assurance by the state of destination that is binding under international law does not release the court deciding on the admissibility of an extradition from the obligation to make its own risk prognosis in order to be able to assess the situation in the state of destination and thus the resilience of an assurance (cf. BVerfG, Order of 30 October 2019, 2 BvR 828/19).
Only after providing the requested guarantees and answering the questions set out below is the Senate in a position to draw up its own risk prognosis in order to be able to assess the resilience of the assurances of the authorities of the United Kingdom (cf. German Federal Constitutional Court, Sustaining Chamber Order of 8 December 2021 – 2 BvR 1282/21 –, juris mwN and Interim Order of 25 November 2021 – 2 BvR 2110/21 – with further notes).
In this respect, the Karlsruhe Public Prosecutor General’s Office is requested, to contact the judicial authorities of the United Kingdom to provide the following supplementary guarantees and notifications pursuant to Art. 604 (a) and (c) TCA:
(1) Guarantee that the physical accommodation and other conditions of detention relating specifically to the prosecuted person in all detention facilities receiving the prosecuted person comply with the European minimum standards throughout the period of his detention and that the prosecuted person is not threatened there with inhuman or degrading treatment within the meaning of Art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (cf. in this regard European Court of Human Rights, Judgment of 20.10.2016, 7334/13, Muric v. Croatia, id. Judgment of 14.02.2017 – 14249/07, Lazar/Romania and Judgment of 30.01.2020 – 9671/15, J.M.B. and others v. France –, juris).
(2) Notification of the prison or prisons in which the prosecuted person will be held in the case of his extradition during quarantine, during pre-trial detention and, in the case of a final conviction, during the period of execution of the sentence?
(3) Information on the specific conditions of detention to be expected by the prosecuted person in all these detention centres mentioned under (2): – How many square metres of floor space are available per person in single or multiple occupancy of the prison cell? – With how many persons will the prison cell be occupied at most? – Does the prison cell have a separate toilet and a washbasin? – Is the prison cell adequately lit, ventilated and provided with heating? – Is the prisoner allowed to walk around the yard once a day for at least one hour? – Are there employment and/or recreational opportunities for the prisoner? – Does the prisoner have access to medical care?
(4) Guarantee that the sentence or measure imposed will be reviewed – at the request of the prosecuted person, but at the latest after 20 years – and/or that the application of acts of clemency to which the person is entitled under the national law or legal practice of the issuing state will be encouraged, with the aim of non-execution of the sentence.
The Karlsruhe General Public Prosecutor’s Office is requested to obtain a corresponding statement from the judicial authorities of the United Kingdom with a deadline of 1 March 2023, 12.00 am, set for the submission (section 30 (1) sentence 2 IRG).
[…]
By e-mail from IP Manchester received by the Karlsruhe Public Prosecutor’s Office on 01 March 2023 before 11.00 am, answers from the judicial authorities of the United Kingdom to questions 1–3 of 1 March 2023 were submitted in English, with the announcement that the German translation would be submitted by 02 March 2023, and to the answer to question 1 in the English original of 27 February 2023 and in German translation.
The letters are worded as follows:
UNDERTAKING TO SURRENDER (…) FROM GERMANY TO THE UNITED KINGDOM.
[…] Where a sentence of life imprisonment (whether mandatory or discretionary) is imposed, the sentencing judge determines what part of the sentence must be served in prison before the offender can be considered for early release on parole; this period is known as the minimum term of imprisonment. Any person convicted on an indictment has the right to apply for a review of this minimum prison sentence by the Court of Appeal. […]
“Re: UK Prison Circumstances – European Arrest Warrant (EAW) – (…) Thank you for your request for further information in relation to the European Arrest Warrant (EAW) for (…) and prison conditions in England and Wales.
You have asked for guarantees about how Mr will be imprisoned.
The EAW for Mr (…) was issued by Westminster Magistrates’ Court and it is likely that a trial would take place at a nearby court in the area. Mr (…) is remanded into custody he would be held in a reception prison associated with that court. It is usual practice to make efforts to accommodate suspects close to the location of their trial. It cannot be discounted entirely, however, that operational requirements, or the behaviour of the individual, may necessitate transfer to another prison. There is always a possibility that an individual may be located outside the geographical region in which they are being tried. […] New prison accommodation being delivered under the Government’s prison expansion programme will meet the standard set by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, that all prisoners in multi-occupancy cells are afforded a minimum of four square metres of living space. Some cells in older prisons – Victorian prisons, for example – may fall short of these recommended minimum standards. In such cases, other alleviating factors are found. […]
Yours sincerely, Director General of Operations”
In its decision of 1 March 2023, the Senate determined that further clarification of the facts was necessary. The deadline set in the decision of 19 January 2023 for 1 March 2023, 12:00 pm, for the submission of the documents required pursuant to Art. 613 para. 2 in connection with Art. 604 para. a) and c) TCA, was extended to 10 March 2023, 12:00 am, at the request of the General Public Prosecutor’s Office in Karlsruhe of 28 February 2023.
[…]
By e-mail of 10 March 2023, 12:18 am, the Karlsruhe General Public Prosecutor’s Office stated that the Federal Criminal Police Office had just informed them by telephone that no further statements had been received from the authorities of the United Kingdom. The Public Prosecutor General’s Office has also not received any further information.
Reasons:
1. The extradition proves to be inadmissible at this stage already because the judicial authorities of the United Kingdom and Northern Ireland have not complied with the request made by the Senate pursuant to Article 604 a) and c) in conjunction with Article 613 (2) TCA in conjunction with § 30 IRG in the decisions of 19 January 2023 and 1 March 2023 – giving detailed reasons on their relevance for the decision on the basis of the case-law of the ECHR and the German Federal Constitutional Court – have not answered comprehensively (cf. on this Riegel in: Schomburg/Lagodny, internationale Rechtshilfe in Strafsachen, 6th ed. 2020, § 30 marginal no. 21 and EuAuslÜbk Art. 13 marginal no. 1–4).
Since there are valid reasons to assume that there is a real risk to the protection of the fundamental rights of the prosecuted person if he were to be extradited to the United Kingdom and Northern Ireland without corresponding guarantees and notifications on the conditions of detention, the Senate could demand additional guarantees for the treatment of the prosecuted person after the surrender pursuant to Art. 604 c.) TCA before deciding on the execution of the TCA arrest warrant.
The judicial authorities of the United Kingdom and Northern Ireland have – despite the extension of the deadline – not yet provided a guarantee in response to the Senate’s justified requests of 19 January 2023 and 01 March 2023 that the accommodation and other conditions of detention relating to the prosecuted person in all detention facilities receiving the prosecuted person comply with the European minimum standards during the entire period of his or her detention and that the prosecuted person is not subjected to inhuman or degrading treatment within the meaning of Art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (cf. in this regard European Court of Human Rights, Judgment of 20 October 2016, 7334/13, MurÅ¡ić v. Croatia; id. Judgment of 14 February 2017 – 14249/07, Lazarl Romania and Judgment of 30 January 2020 – 9671/15, J.M.B. and others v. France –, juris). In view of the fact that no corresponding guarantee was provided in response to the enquiries of 19 January 2023 and no declaration was received in response to the further enquiry of 1 March 2023, there could not be expected that such a declaration would be provided within the time limits set out in Art. 615 TCA paras. 3 and 4 in conjunction with Art. 613 para. 2 TCA.
2. Moreover, the extradition is currently inadmissible because the judicial authorities of the United Kingdom and Northern Ireland have not complied with the time limits set out in the Senate decision of 19 January 2023 pursuant to Art. 604 c.) in conjunction with Art. 613 para. 2 TCA setting a deadline of more than seven weeks in total, and have also not specifically answered the questions on the specific prison conditions to be expected of the prosecuted person after his extradition in the United Kingdom and Northern Ireland in a prison that is likely to receive him. Since, according to the prosecuted person’s substantiated objections to the current conditions of detention in the United Kingdom and Northern Ireland, as well as the Senate’s clarification of the facts, according to which the overcrowding in prisons identified in the abovementioned CPT report of 07 July 2021 still persists in 2023 (despite improvements made) (according to the information of the Ministry of Justice of the United Kingdom and Northern Ireland in “World Prison Brief data”, there is an over-occupancy of the prisons of 107.5%, cf. https://www.prisonstudies.org/country/united-kingdom-england-wales accessed on 10 March 2023), it cannot currently be assumed with sufficient certainty that the prosecuted person would receive humane conditions of detention there in the case of his extradition to the United Kingdom and Northern Ireland (cf. German Federal Constitutional Court decisions of 01 December 2020, 2 BvR 1845/18 and of 02 February 2021, 2 BvR 156/21, both reprinted in juris), thus the extradition proves to be inadmissible at present. The inadmissibility of the extradition follows from Art. 604 c) TCA, § 73 IRG in conjunction with Art. 3 ECHR.
III. The declaration of the inadmissibility of the extradition requires the release of the persecuted person.
IV. The decision on costs follows from § 77 IRG in conjunction with § 467 (1) German Code of Criminal Procedure.
On the other hand, there is no obligation to pay compensation under the Act on Compensation for Criminal Prosecution Measures for custody pending extradition, because a corresponding application of this Act to custody pending extradition is excluded in principle (BGHSt 32, 221 et seq.) and – as can be seen from the above – there is no case in which authorities of the Federal Republic of Germany would be responsible for unjustified prosecution under German law (OLG Hamm StraFO 1997, 93 et seq.; BVerfG decision of 5 June 1992, 2 BvR 1403/91; Senate decision of 27 February 2003, 1 AK 29/02).