This is the second of a two-part article in which we explore the effect of the coronavirus pandemic on the operation of the extradition practice in England and Wales. In the first part (here), we noted that the pandemic’s implications on the practice of international human rights law are extensive and that there had been an immediate effect on the conduct of extradition proceedings. We considered practice in London where extradition hearings are being conducted “remotely” and we evaluated recent jurisprudence in which the High Court has ruled on various issues resulting from the pandemic.
This article focuses on the conditions of detention that requested persons face if extradited. These, broadly understood, address many aspects of treatment of detainees ranging from contacts with prison staff to contact with the outside world. This assessment is primarily focused on concerns arising from overcrowding, healthcare and hygiene provision, adequacy of facilities in and ventilation of cells, opportunities for exercise and personal development, and from isolation imposed because of the pandemic. There is a tension between, on one hand, health and safety measures taken to protect the right to life and protection of Article 3 rights through an appropriate prison regime permitting sufficient time outside cells and contact with family and friends for those in isolation. The strain of the pandemic on all public services including the prison service must be recognised.
The legal framework: Article 3 of the European Convention on Human Rights (“ECHR”) 1950
The test applied in determining whether the extradition of an individual would infringe his or her rights to be protected from inhuman or degrading treatment or punishment was established in Soering v UK (1989) EHRR 439. An extraditing court must determine whether there is sufficient evidence of a cogent nature to establish substantial grounds for believing that the requested person would face a real risk of being subjected to such treatment if removed to the requesting State. Extradition practitioners therefore routinely consider whether the conditions of detention in requesting States present a risk of violating Article 3 and the absolute prohibition the Convention imposes on treatment contrary to Article 3. As far it relates to prison conditions, the prohibition contained in Article 3 “enshrines one of the most fundamental values of democratic society” (Muršić v Croatia (Application no. 7334/13), para. 96).
Aranyosi & Căldăraru (C-404/15 and C-659/15 PPU) sets out the correct approach when the issue of Article 3 arises from EAWs issued by EU Member States. Firstly, the court needs to consider, from the evidence adduced by a requested person, whether it is satisfied that there is a real risk of inhuman or degrading treatment by virtue of the general conditions of detention in a requesting State. If the court is so satisfied, it must then make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk by virtue of prison conditions in a requesting state. It is for a requesting State to provide such evidence, for example, via assurances.
The approach to the assessment of assurances regarding Article 3 compliant conditions was considered in Othman v United Kingdom (2012) 55 EHRR 1. There, the Strasbourg Court stated that the sending court should consider first the quality of assurances given and second, whether considering the receiving State’s practices they can be relied upon. It then set out a range of factors which would be considered. Failure to fulfil assurances in the past may be a powerful reason to disbelieve that they will be fulfilled in the future. In Bartulis  EWHC 504 (Admin), the Divisional Court stated that “it is important nevertheless to stress that, once given, [assurances] must be adhered to in respect of any prisoner extradited from the UK … since the terms of the assurances are offered expressly to all such. Breach of such assurances might prove significant in the future” (para. 127).
Soft law in the time of coronavirus
During the pandemic, the World Health Organisation (WHO) has published interim guidance which sets out measures which it advises should be adopted in prisons. The Council of Europe’s Committee for the Prevention of Torture (CPT) has also published its own statement of principles which are informed by the WHO guidance. The CPT’s principles require states:
- to take all possible action to protect the health and safety of all persons deprived of their liberty;
- to ensure respect and full implementation of WHO and national clinical guidelines, which are consistent with international standards;
- to reinforce staffing and ensure their training and protection;
- to guarantee that any restrictive measure taken vis-à-vis persons deprived of their liberty to prevent the spread of Covid-19 has a legal basis and is necessary, proportionate, respectful of human dignity and restricted in time;
- to resort to alternatives to deprivation of liberty;
- to pay special attention to healthcare of the vulnerable, ensure screening and provide additional psychological support;
- to respect fundamental rights of detained persons including maintaining adequate personal hygiene (access to hot water and soap) and the right of daily access to the open air (of at least one hour);
- in cases of isolation or placement in quarantine, to provide the person concerned with meaningful human contact every day;
- to respect fundamental safeguards against ill-treatment of detained persons, and provide masks to those suspected of having symptoms, where appropriate; and
- to guarantee access to places of detention for independent monitoring bodies, including National Preventive Mechanisms (NPMs) and the CPT.
Article 3 of the ECHR and the CPT principles provide the framework for the following assessment of prison conditions and measures adopted during the Covid-19 pandemic in Europe and the United States of America.
The United States of America
In the United States of America, measures and policies to prevent and address the spread of Covid-19 and treatment of prisoners appear to vary widely between states and correctional facilities (here). Media and NGO reports show that prisons in California, Ohio, Tennessee, Illinois, Texas, Michigan and New York have had a large number of infected inmates and staff and have struggled to cope (here, here, here, here and here). Marion Correctional Institution in Ohio became the most intensely infected institution across the US with more than 80% of its nearly 2,500 inmates and 175 staff testing positive for Covid-19 (here). Some states have tested vigorously, others less so, some not at all, and some that test appear not to publish relevant data (here and here). It seems that factors contributing to this alarming situation are overcrowding, limited early release of detainees, poor hygiene, limited access to healthcare, lack of protective equipment, and the poor health of an aging prison population from underprivileged backgrounds.
London’s extradition courts have considered US prison conditions in a number of recent cases. In Hafeez v USA  EWHC 155 (Admin), it was argued that prison conditions in the Metropolitan Correctional Centre in New York did not satisfy the Article 3 threshold. The Divisional Court held that if it were the case that Mr Hafeez was at risk of being kept in solitary confinement or housed at a Supermax facility this did not give rise without more to a violation of Article 3. The case has been communicated to the European Court of Human Rights (ECtHR).
The Strasbourg Court (Hafeez v UK (Application no. 14189/20)) has asked the UK government, with specific reference to the Covid-19 pandemic, whether there is a real risk of a breach of Article 3 on account of the conditions of detention that the applicant, who suffers from asthma and diabetes, would face on removal to and detention in the US. This case is an important signal that the European Court of Human Rights is abreast of the effect of the pandemic on prisons and that the risk of infection can be considered in the context of arguments grounded in Article 3 (here).
The European Union
EU Member States are taking various measures to fight the Covid-19 pandemic in their prison estates. Many of the developments prejudice prisoners’ rights. Isolation and a cessation of visits occasioned by the pandemic aggravate already negative experiences of detention. A comparative analysis reveals a mixed picture with conditions varying broadly across several Member States.
Finland (here and here) and Austria (here) have been praised inter alia for low rates of overcrowding (here) mitigated by postponement of sentences for those sentenced for crimes of lower gravity (here, page 5) and early release programmes (here, page 4). The effects of isolation are mitigated by technology permitting virtual visits. Austria is reportedly now relaxing restrictions on visits (here).
In Germany,early release has also been adopted (here, page 10). According to the European Prison Observatory (EPO), an NGO, protective masks have been distributed and, in some cases, produced by prisoners (here, page 3). In Berlin, a system of quarantine has been established for vulnerable prisoners. Classification of vulnerability is performed by prison doctors.
In France, prior to the Covid-19 outbreak, overcrowding in prisons was at its highest at 119% (according to Infogram, the third highest in the EU (here)). According to the EPO, early release of prisoners (over 14,000 by the beginning of June) (here, page 3) brought the prison population down to around 100% occupancy. There are still facilities where detainees sleep on the floor, live two or three per cell, and lack basic protection measures (here, page 4).
In this respect, on 30 January 2020 the ECtHR found in JMB and Others v France (Application no. 9671/15 and 31 others) that French prison conditions violated Article 3. The Court noted, for example, that the Fresnes short-stay prison had an occupancy rate of 197% on 1 January 2019, while the Nîmes short-stay prison had an occupancy rate of 205%. Applicants experienced very congested conditions with only 3m2 per person on average. Additionally, all applicants complained about the proximity of their cell’s dining area to the toilets, separated from the rest of the cell by a curtain. They also complained about the state of their cells which were inadequately ventilated and infested by rodents and insects. It might be suggested that conditions which arise from the pandemic occasion an even greater risk of Article 3 violations.
Belgium’s recent problems, such as overcrowding, use of solitary confinement, unhygienic conditions in dilapidated penitentiaries and lack of out-of-cell activities, resulted in criticism in the 2018 CPT Report (calling for improved conditions, better psychiatric care, and decisive action against police brutality) (here; and here, pages 2-4 (in French)). In 2019, according to Infogram, Belgium had the most overcrowded prisons in the EU (120% overcrowded) (here). To deal with the risk posed by Covid-19, by the beginning of May there had been an 11% decrease in the prison population (here). However overcrowding still persisted.
Italy reportedlysuffered from the second highest rates of overcrowding in EU prisons with an average occupancy of 118% percent in 2019 (here). According to the 2020 CPT Report, a large number of prisoners were not afforded the minimum standard of living space in multiple-occupancy cells and in some prisons common shower facilities were unhygienic (here, page 4). Poor hygiene standards indicate a failure to comply with the CPT principles. Despite early release measures (here, page 5), overcrowding persisted at the beginning of June (here, page 6).
In Ireland, the main concern during the pandemic has been overcrowding which has been on the rise since 2017 (here). Ireland reportedly doubled temporary release of prisoners in March (here). Overcrowding in Cloverhill was raised in Murphy v High Court Republic of Ireland  EWHC 1338 (Admin) where the High Court (Fordham J) found no reasonably arguable ground of appeal based on Article 3.
At the end of March 2020, according to the EPO, Poland announced it would release 12,000 prisoners with fewer than 18 months left to serve (here, page 10). It has also been reported that all prisons and detention centres have been provided with disinfectant, sanitary masks, hygiene and medical supplies, protective suits and gloves, and that cells are sanitised several times a day (here, page 12).
According to the 2018 CPT Report,Poland’sprison conditions were satisfactory in some aspects although concerns were also raised about, for instance, not providing the minimum living space of 4m2 in multi-occupancy and 6m2 in single-occupancy cells and, regarding healthcare, about the lack of staff and inadequate health screening of detainees upon arrival (here, pages 31, 36, and 37).
Various export cases to Spain are also pending before the English courts.In Boorman v Juzgado De Instruccion No.4 De Palma De Mallorca EWHC 1331 (Admin), an appeal concerning potential grounds of appeal under Articles 2 and 3 of the ECHR in relation to Spanish prison conditions during the pandemic, Fordham J again found there to be “nothing that can be identified as a proper basis for a reasonably arguable ground of appeal” (para 11). According to the EPO, Spain undertook mass early release (here, page 7) and overcrowding does not seem to be a material issue. Those entering prisons must wear masks and gloves. Prisoners leaving for home visits are provided with masks but need to agree to voluntary quarantine upon return, and new prisoners are also quarantined (here, page 7). Isolation measures are mitigated by provision of free mobile phones to detainees (here).
Cyprus is another jurisdiction which has adopted early release measures but where concerns over overcrowding remain (here). In the recent High Court judgment in BY v The District Court in Paphos, Cyprus EWHC 2637 (Admin), it was stated that had the applicant pursued submissions regarding the non-compliance of Cypriot prison conditions with Article 3 he would have struggled to persuade the Court on that ground (para. 10).
Lithuania has qualified an assurance provided to the UK in support of its case as to compliance of its prison conditions with Article 3. This is an issue which is listed for hearing by the High Court in Zapalskis  EWHC 1267 (Admin) on 16 June 2020. On that occasion, it may be argued that an unqualified, reliable assurance is necessary in order to secure Article 3 compatibility and such guarantees that could be taken as existing without the need for an assurance are undermined by the fact that there is an express and deliberately qualified communication from Lithuania. The position in Lithuanian remand prisons – and the quality of assurances with respect to them – was not considered by the Divisional Court in 2019’s case of Bartulis  EWHC 3504 (Admin) and the position throughout the Lithuanian prison estate appears dynamic.
Romania has adopted strict isolation procedures, for example, regarding the extension of the observation/quarantine period to 27 days and designation of a penitentiary unit for quarantining extradited detainees (here, page 6). Elsewhere, quarantine lasts a maximum of 14 days.
In Hungary, NGOs have no access to penitentiary facilities (here) and the National Preventive Mechanism is unable to visit a sufficient number of prisons. During the pandemic, new arrivals are reportedly quarantined for 14 days and strict lockup applies. To compensate for these restrictions, gym use is permitted and a television is provided in cells. The Prison Service introduced other supportive measures, such as providing information to detainees on an ongoing basis, and the provision of personal protective equipment (here).
As with Lithuania and Romania, extradition to Hungary typically requires assurances and there is evidence of breach of them. Although Fuzesi and Others  EWHC 1885 (Admin) determined that requested persons may be extradited to Hungary in light of assurances given by the Hungarian authorities, the reliability of those assurances was challenged in Szalai and Zabolotnyi v Hungary  EWHC 934 (Admin). The High Court rejected the appeal, refusing to hear evidence of breach, but it did subsequently certify a question of public importance to be considered by the Supreme Court. The Supreme Court has granted Zabolotnyi permission to appeal on the question of whether the Court should exercise very considerable caution before admitting evidence which relates to an alleged breach of an assurance to an EU Member State. If the evidence is admissible, then the Supreme Court will consider whether the correct approach is that the Court should satisfy itself that such evidence is manifestly credible, directly relevant to the issue to be decided and of real importance for the decision in question. Depending on the answer given to the certified question by the Supreme Court, the judgment will have an impact on the ability of requested persons to rely on evidence of non-compliance with assurances provided to third States. Organisations such as the Legal Experts Advisory Panel (led by Fair Trials International, an NGO) and the Defence Extradition Lawyers Forum (DELF), a professional association, which share information of concern arising in their jurisdictions with their respective networks, will also be paying close attention.
In England and Wales, requested persons remanded in extradition proceedings are generally accommodated at HMP Wandsworth. HM Inspectorate of Prisons examined the situation in Wandsworth prison in a May 2020 Report (here).
The Inspectorate praised the prison management for good communication with prisoners and their families about the pandemic and specific safety measures taken inside (page 9). Regarding healthcare provision, the Inspectorate commended that each prisoner went through health screening on arrival (para. 1.7), access to healthcare remained unaffected by the pandemic, protective wear was provided (para. 2.8- 2.16), and support for those at risk of self-harm was enhanced (para. 1.9). The report highlighted the fact that the Covid-19 outbreak was actively and effectively managed (para. 2.9), including by a programme of extra cleaning of communal areas (para 2.1).
However, shortcomings were also reported (primarily) in four areas. Firstly, although the prison population was slightly reduced, overcrowding persisted (para. 1.6). In this respect, while staff and prisoners agreed with the principle of distancing, they thought it was impossible to implement because of the design of the prison wings. The narrow Victorian-era prison landings were especially problematic in this regard (para. 1.5).
Secondly, with regards to healthcare, the prison’s physical limitations had a severe impact on outcomes for some prisoners (para. 2.2). For instance, a lack of space in the isolation unit, where prisoners shared cells for 14 days upon their arrival, created risks for those sharing with anyone who might had the virus (para. 1.8). In addition, around 100 symptomatic prisoners had been locked in their cells for up to two weeks with no opportunity to come out for a shower (para. 2.2).
Thirdly, regarding out-of-cell time and activities, the Inspectorate found that non-quarantined prisoners had to choose whether to use their 30 minutes either for exercise or a shower, and there were no showers or exercise at all on one day of the week (to enable goods deliveries, change of clothes and bedding) (paras. 3.2 and 3.3).
Lastly, although communication was praised, there are many foreign national prisoners at Wandsworth and those who were not fluent in English were not as well informed as others about the pandemic arrangements (para. 2.4).
Some of the measures put in place at HMP Wandsworth, such as effective communication with prisoners and access to healthcare, appear to comply with the CPT principles. On the other hand, no active steps appear to have been taken to reduce overcrowding, quarantined detainees were confined to their cells for 14 days, and for the rest of the prison population the time spent outside their cells was restricted to 30 minutes. These are measures which appear not to accord with the principles.
What conclusions can be drawn?
From the analysis of prison conditions in various states and responses to the Covid-19 pandemic in prison estates, it is apparent that some countries seem to be doing better than others. In the case of a small number of EU Member States, the current situation presents a higher-risk.
Extradition practitioners will pay close attention to the developments at European level, in Strasbourg and Luxembourg, regarding any developing European jurisprudence and standards. The Strasbourg Court has already been seized of the issue of prison conditions during the pandemic as a bar to extradition in the case of Hafeez and it is just a matter of time before a similar case will be referred to the Court of Justice of the European Union via the preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the European Union. The preliminary rulings procedure is available in the UK until the end of the Brexit transition period, which is 1 January 2021.
Until the European standards are clearly expounded, principles regarding whether prison conditions during the Covid-19 pandemic breach Article 3 remain untested. Extradition courts may struggle to establish the correct approach to this issue in the context of such a diversity of States’ responses, their preparedness, as well as the unprecedented nature of the coronavirus emergency. Practitioners will look to gather evidence capable of satisfying the first stage of the Aranyosi criteria on behalf of their clients but in a fast-moving and dynamic situation matters are complicated still further as information supplied rapidly becomes outdated and disclosure exercises must be properly and fairly conducted. Given the current adjournment periods of up to five months between extradition hearings, there is a risk of a problematic cycle emerging concerning the reporting on conditions of detention in requesting States, which will place further strain on requested persons, their families, and protection of their fundamental rights in English and Welsh extradition proceedings.