In an article published in May last year, I suggested that pilot judgments of the European Court of Human Rights (ECtHR) might increasingly provide a fertile basis for resisting extradition. I questioned whether a defendant facing extradition to an EU Member State could rely upon a pilot judgment so as to defeat a European Arrest Warrant (EAW), and thereby overcome the presumption of mutual trust, which is a cornerstone of the EAW system.
My question has been answered in the past two weeks. On 11 March, the High Court blocked the extradition to Italy of Hayle Badre, who was accused of engaging in unauthorised financial activities contrary to the EU Directive on Payment Services 2007/64/EC. On 17 March, Westminster Magistrates Court fell into line, in a much publicised judgment, by reversing its earlier decision to extradite Domenico Rancadore to Italy, who had been convicted in his absence of offences arising from alleged mafia association. At the heart of both decisions was the ECtHR’s pilot judgment in Torreggiani & others v Italy.
For the uninitiated, the pilot judgment procedure was developed as a means of identifying a characteristic common to groups of cases pending before the ECtHR. Where the ECtHR receives several applications that derive from the same alleged violation in the same contracting state, it can select one or more of them to serve as a test case and accelerate it for decision. In a pilot judgment the ECtHR not only decides whether a violation of the Convention occurred in the specific case, but whether it occurred systemically in the contracting state. The ECtHR may also give the contracting state indications of the type of remedial measures needed to resolve the ongoing violation. Therefore, as long as these remedial measures remain unimplemented, the pilot judgment constitutes an authoritative finding of a violation of the Convention at a national level.
In Torreggiani, for example, the ECtHR found that the prison conditions in Italy experienced by 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 ECtHR and by the state of emergency declared by the Italian Prime Minister in 2010.
The recent UK decisions are an acknowledgement that, until Italy produces evidence that conditions in its prison estate have significantly improved, extradition to Italy would almost invariably expose a defendant to a violation of his Article 3 rights, and should be refused. The presumption of mutual trust in an EU Member State’s prisons—that cornerstone of the EAW—has thus been shown to be misplaced.
There is, perhaps inevitably, an important caveat to this conclusion, and one which may ultimately turn Mr Rancadore’s reprieve into a Pyrrhic victory. A judicial decision to refuse extradition is never a guarantee of finality. A requesting state can always try again, with an amended EAW, better evidence or, as is likely here, fresh undertakings.
Undertakings are the extradition defence lawyer’s worst friend. They are a method by which a requesting state can overcome seemingly any problem, often at short notice, and they can prove slippery and inscrutable if the defence lawyer tries to attack them. In Mr Badre’s case, Italy produced an undertaking which, even in the Italian original, was a model of imprecision. A clearer undertaking, promising that a defendant would be given special treatment, in a particular prison not criticised in Torreggiani and in a single occupied cell, may well have been enough to sidestep the Article 3 overcrowding problem. It is now open to Italy to initiate fresh extradition proceedings with this undertaking on the table.
If that happens, the reliability of the undertaking will no doubt be called into question. Recent cases, including those involving Spain and Lithuania, have demonstrated how easily such undertakings can be breached, and explain why defence lawyers are right to be sceptical about how effectively undertakings can be monitored and enforced. However, in the vast majority of extradition cases in which there is good evidence that a defendant’s Convention rights may be violated, achieving an undertaking which seeks to circumvent the violation, rather than blocking extradition outright, remains the likeliest outcome. Undertakings have become, in effect, a concession extracted from the requesting state as a result of fighting their extradition request.