[2025] EWHC 2783 (Admin)

The test is whether there are substantial grounds for believing that there is a real risk that the person whose extradition is sought will suffer treatment in breach of their article 3 rights: Chahal v United Kingdom (1996) 23 EHRR 413 at [80]. In RB (Algeria) Lord Hope used the phrase “substantial risk” in place of “real risk” at [239] and treated the two as synonymous at [242].

Where there is evidence to meet that threshold, the requesting authority may give an assurance, which will be sufficient if it dispels the doubt about treatment in breach of article 3: Saadi v Italy (2009) 49EHRR at [129]. Inter-governmental assurances have been a feature of extradition law for a very long time, and have regularly been treated in both the domestic and Strasbourg jurisprudence as sufficient to dispel doubts about treatment in accordance with article 3 by reference to prison conditions or torture in extradition cases. See for example Lord Burnett CJ in GS v Central District of Pest, Hungary [2016] 4 WLR 33 at [18]-[27].

In Othman v United Kingdom (8139/09) (2012) 55 EHRR 1 the European Court of Human Rights rejected a submission that assurances could never be sufficient, and gave the following guidance (citations omitted):

“187.

In any examination of whether an applicant faces a real risk of ill-treatment in the country to which he is to be removed, the court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving state, those assurances constitute a further relevant factor which the court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to begiven to assurances from the receiving state depends, in each case, on the circumstances prevailing at the material time.

“188.

In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving state excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances.

“189.

More usually, the court will assess first, the quality of assurances given and, second, whether, in light of the receiving state’s practices they can be relied upon. In doing so, the court will have regard, inter alia, to the following factors:

(1)

whether the terms of the assurances have been disclosed to the court;

(2)

whether the assurances are specific or are general and vague;

(3)

who has given the assurances and whether that person can bind the receiving state;

(4)

if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;

(5)

whether the assurances concerns treatment which is legal or illegal in the receiving state;

(6)

whether they have been given by a contracting state;

(7)

the length and strength of bilateral relations between the sending and receiving states, including the receiving state’s record in abiding by similar assurances;

(8)

whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers;

(9)

whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;

(10)

whether the applicant has previously been ill-treated in the receiving state and

(11)

whether the reliability of the assurances has been examined by the domestic courts of the sending/contracting state.”

There are a number of aspects which deserve emphasis.

First, the starting point is that such an assurance from a friendly foreign government governed by the rule of law is presumed to be given in good faith and is to be taken at face value in the absence of cogent evidence which calls it into question: GS v Central District of Pest, Hungary at [29]-[30] In Giese v Government of the United States of America [2018] EWHC 1480 (Admin); [2018] 4 WLR 103, Lord Burnett LCJ said at [38]:

“…whilst there may be states whose assurances should be viewed through the lens of a technical analysis of the words used and suspicion that they will do everything possible to wriggle out of them, that is not appropriate when dealing with friendly foreign governments of states governed by the rule of law where the expectation is that promises given will be kept”.

In R (Mallya) v India [2019] EWHC 1849 (Admin), Leggatt LJ said this at [23]:

“As this court has made clear in the recent case of Government of India v Chawla [2018] EWHC 1050 (Admin) and [2018] EWHC 3096 (Admin), reliance on such assurances is in principle an entirely proper approach. Indeed, the court is bound, in accordance with the presumption of good faith, to accept such assurances at face value unless there is cogent evidence which calls them into question. In this case the senior district judge considered the assurances given to be clear, binding and sufficient, and on any appeal that assessment is entitled to great respect.”

Secondly, in this context the assurance need not be such as to eliminate any risk of treatment contrary to article 3 before it is to be treated as sufficient: RB (Algeria) at [114] and [242]. In Othman the language used at [186] was whether the assurance was sufficient to remove any “real” risk.

Thirdly, the factors identified in [189] of Othman do not purport to be exhaustive and not all will be relevant or of significant weight in any given case. It is important to keep in mind that although this may be a useful checklist it was given in a case in which the assurance related to physical torture which was endemic, not prison conditions. Moreover the relative weighting of relevant factors involves an evaluative assessment in what remains a single legal inquiry as to whether on all the evidence, of which the assurance forms part, there are substantial grounds for believing that there is and remains a real risk that the extradited person will suffer treatment which breaches their article 3 rights: see RB (Algeria) per Lord Phillips at [114] and Lord Hope at [238]; R (Mallya) v India at [23]

Fourthly, the sufficiency or otherwise of an assurance is a question of fact: RB (Algeria) at [187], [236], [254]. It is a specifically fact driven inquiry in which the focus must be on the practical application of the assurance: Othman at [187] quoted above and RB (Algeria) at [117]. As such it attracts the restrictive approach to appeals against decisions on issues of fact and evaluative assessment.

This applies as much to the question of monitoring compliance, referred to in [189(viii)] as to the other factors. In some cases independent external monitoring may be an important or even decisive factor; in others, as is expressly recognised in (viii) it may be sufficient if defence lawyers are able to monitor compliance. Independent external monitoring will assume greater importance where the assurance is merely of compliance with article 3 generally, in which there will often be room for controversy or doubt about whether conditions are compliant if they are not assessed by a recognised and respected independent body. By contrast, where, as in the present case, the assurance is narrow and specific that a person will be held in a particular cell or block which it is common ground will be article 3 compliant, there will be no room for doubt or interpretation in deciding whether he is there or not. The question of whether the assurances have been complied with is simply and readily ascertainable. Nevertheless every case is fact-specific. RB (Algeria) was a case in which the House of Lords upheld the judge’s assessment that an assurance given in the most general terms was sufficient based largely on it being in Algeria’s national interests to comply with it and notwithstanding that there was no independent monitoring available: see per Lord Hoffmann at [192]-[193].

In this context Mr Smith KC placed particular reliance on the decision in Shmatko v The Russian Federation [2018] EWHC 3543 (Admin), in which the Divisional Court concluded that extradition to Russia was barred by article 3 on the basis of prison conditions. The evidence was that upon return Mr Shmatoko would be held whilst on remand in remand prison “SIZO-1” and after conviction in “Penza IK8”. Assurances were given by the Russian Federation that he would be guaranteed not less than 4 square metres in SIZO-1 and 3 square metres in Penza IK8. These assurances were not credible because there was independent evidence that SIZO 1 had 16 cells with a total area of 30 sq m (ie less than 2 square metres per person) and Penza IK18 was built to a design specification of only 2 square metres per prisoner and was constantly overcrowded, with a substantial volume of witness evidence before the judge suggesting that 3 square metres per prisoner was simply not physically achievable. That was sufficient in itself to undermine the credibility and effectiveness of the assurances and to lead the court to conclude that there was not merely a risk but a very strong probability that if extradited Mr Shmatko would be held in conditions both on remand and after conviction which would involve serious violations of article 3 (see[55]). The Court went on to say that the probability was increased by the lack of any effective independent monitoring of conditions in Penza IK18. In relation to monitoring the court rejected an argument that the gap could be filled by visits from independent human rights organisation or defence lawyers. The Court rejected the former on the basis that there could be no confidence human rights organisations would have access. As to monitoring by defence lawyers, the court said at [54]:

“As to the second, although Othman at paragraph 189(8) indicates that a factor to be considered is whether unfettered access to defence lawyers may be a means of monitoring, we regard it as both unrealistic and contrary to principle to suggest that visits by defence lawyers can be used as a substitute for effective independent monitoring of prison conditions. In any event, there is no evidence that lawyers would be allowed to speak to anyone other than their own clients, and no doubt in respect of their own clients the Russian authorities would say that the lawyers are not independent.”

Despite the expression “contrary to principle”, we do not take this passage to be any more than a statement that monitoring by lawyers in the particular circumstances of that case would provide no comfort. That was in the context of prison conditions which already made it probable that the assurance was not credible or effective and where feedback from such lawyers would be treated as unreliable. It is not a statement of principle that monitoring by defence lawyers can never be relevant as supportive of the sufficiency of an assurance, and such a principle would be inconsistent with the jurisprudence we have set out above, including the terms of [189(8)] of Othman itself.