The European Arrest Warrant (EAW), introduced in 2003 to expedite the extradition of suspects accused or convicted of criminal offences within EU member states, has been fiercely criticised during its short life. The first main criticism is that it is used disproportionately to extradite suspects accused of trivial offences. The second is that it prevents our courts from exercising sufficient scrutiny of the criminal justice systems of our EU partners, particularly of their prison systems. These criticisms have led, at least in part, to the coalition’s recent proposal to renegotiate the EAW.

Mutual recognition

The political desire to overhaul the EAW is borne out of the legal difficulty of resisting extradition to an EU member state despite serious concerns about the proportionality or integrity of the allegations, or the risk to the defendant of ill-treatment if imprisoned. This difficulty is the consequence of the EAW being founded upon the concept of mutual recognition of judicial decisions, which presupposes a high (some would say uncritically high) level of confidence in the criminal justice systems of EU member states.

In practice, mutual recognition means that a defendant seeking to resist an EAW on the basis that his detention in the requesting state’s prisons would constitute a breach of article 3 of the European Convention on Human Rights (prohibition of torture or other cruel, inhuman or degrading treatment) needs to be able to point to novel, specific and compelling evidence that they face a real risk of ill-treatment. Indeed, in a series of joined appeals heard in 2012 concerning prison conditions in Poland, the High Court held that evidence of ill-treatment would need to amount to ‘something approaching an international consensus’ to rebut the presumption of mutual recognition.

Can anything be done to resist an EAW on article 3 grounds? How can a defendant overcome the hurdle of mutual recognition and find novel and compelling evidence that demonstrates a specific risk of ill-treatment? One possible answer comes from the European Court of Human Rights (ECtHR), specifically its recent pilot judgments.

Common characteristic

The pilot judgment procedure was developed as a means of identifying a characteristic common to groups of cases pending before the ECtHR (pictured). Where the ECtHR receives several applications that derive from the same alleged violation, it can select one or more of them to serve as a test case and then accelerate them for decision – the pilot judgments. In a pilot judgment the ECtHR not only decides whether a violation of the convention occurred in the specific case, but if applicable it also identifies the systemic problem and gives the contracting state clear indications of the type of remedial measures needed to resolve it.

The pilot judgment procedure is thus based on pragmatism as well as principle. It reduces the backlog of repetitive cases – by ‘freezing’ them until the contracting state has adopted the measures required to satisfy the pilot judgment – and seeks to assist states in solving the structural or systemic problems that have given rise to the finding.

The importance of the ECtHR’s pilot judgments to UK extradition cases was exemplified last year. In January 2012, the ECtHR handed down a pilot judgment in Ananyev and others v Russia. The court described Russian prisons as a ‘recurrent structural problem’ and annexed a list of 90 other judgments finding violations of article 3, commenting that ‘the set of facts underlying these violations was substantially similar: detainees suffered inhuman and degrading treatment on account of an acute lack of personal space in their cells, a shortage of sleeping places, unjustified restrictions on access to natural light and air, and non-existent privacy when using the sanitary facilities’.

Ten months later, Westminster Magistrates’ Court in London refused the extradition to Russia of a businessman facing allegations of fraud. Quoting extensively from the ECtHR’s pilot judgment in Ananyev, the court accepted the defence submission that ‘any person held in a Russian prison is at real risk – indeed at clear risk – of degrading treatment’. Two subsequent Russian extradition requests were rejected by the same court for identical reasons. The ECtHR’s pilot judgment in Ananyev was thus determinative of the UK extradition court’s decisions to discharge the defendants from their Russian extradition requests.

The question is whether a defendant could successfully avail themselves of a pilot judgment in order to defeat an EAW (rather than an extradition request from a non-EU Council of Europe state such as Russia). We may be about to find out.

Two months ago the ECtHR handed down a pilot judgment in Torreggiani and others v Italy. The court observed that the conditions of detention of the applicants, specifically the cramped personal space in their prison cells, coupled with the length of their imprisonment, had subjected them to hardship and suffering which amounted to a violation of article 3. Moreover, the court found that this violation was symptomatic of a structural problem of overcrowding in Italy’s prisons, reflected by the several hundred similar applications pending before the court and by the state of emergency declared by the Italian prime minister in 2010.

By its nature, a pilot judgment is a finding of systemic dysfunction at a national level. It must therefore constitute authoritative evidence that is sufficiently novel, specific and compelling in order to resist an EAW in the UK’s extradition courts. It is precisely the kind of ‘international consensus’ our courts have demanded that defendants adduce in respect of Polish extradition requests. Where, as in Torreggiani, a pilot judgment finds an EU member state to be in structural violation of article 3, it must strike a blow to the mutual recognition that is the founding principle of the EAW and transfer the burden to the requesting state to produce strong evidence that the defendant will not be subjected to ill-treatment.

Nor is Torreggiani likely to be the only pilot judgment against an EU member state. The backlogs at the ECtHR are daunting. By the end of 2012, 3,828 cases were pending against Bulgaria, 3,106 cases against Poland and 8,712 cases against Romania. If pilot judgments were delivered in respect of these three countries, they could seriously hamper the UK’s ability to extradite defendants accused by them. Indeed, all three states are regularly found by the ECtHR to be in breach of article 3 on the basis that individuals have been subjected to inhuman or degrading treatment. In 2012 alone, the ECtHR made six such findings against Bulgaria, seven findings against Poland and 24 findings against Romania.

The tide is turning

Historically, EAWs were only successfully resisted in exceptional circumstances. Increasingly, however, there appears to be a willingness to probe beneath the veneer of mutual recognition and examine the criminal justice systems of particular EU member states. In January 2013 the Northern Ireland Court of Appeal rejected the Lithuanian government’s appeal against the recorder of Belfast’s decision to refuse extradition on article 3 grounds, on the basis of concerns about prison conditions in Lithuania.

The court declined to follow a long line of English decisions which had held that extradition to Lithuania would not involve a violation of article 3 on grounds of prison conditions – and instead referred to the absolute nature of the prohibition on extradition to face inhuman conditions as recently established by the ECtHR. This is a significant judgment and indicates that the tide may slowly be turning in favour of greater judicial scrutiny of at least some EAWs.

This increased scrutiny has been largely encouraged by the case law of the ECtHR. Extradition lawyers should be alert to the use that could be made of the ECtHR’s emerging pilot judgments when contesting extradition requests, including those requests made on the basis of an EAW.

Pilot judgments may come to provide a strong evidential basis for arguing that a defendant’s article 3 rights are at real risk of being violated, notwithstanding the presumption of mutual recognition. It is therefore ironic that the home secretary’s current intention is not only to opt out of the EAW but to abolish the Human Rights Act, which would lead to the UK withdrawing from the ECtHR altogether.