Extradition contrary to the European Convention on Human Rights

Wright v Argentina [2012] EWHC 669 (Admin) (20 March 2012) Summary

The appellant (Wright) appealed her extradition to Argentina under the Extradition Act 2003 (UK) to the High Court of Justice. The appellant contended that her extradition to face drug charges would contravene her rights under articles 3 (inhumane and degrading treatment), 5 (trial within reasonable time) and 8 (respect for private life) of the European Convention on Human Rights.

Justice Silber held that the extradition would contravene the appellant’s rights under article 3 of the Convention, however he confined his decision to the facts. The facts were unique in that: (a) no undertakings were given by the Government of Argentina with respect to the appellant’s treatment in Argentina; and (b) the respondent did not cross-examine the respondent’s expert evidence on article 3.

Facts

The appellant (Wright) was detained at Ezeiza Ministro Pistarini Airport in Buenos Aires when she attempted to leave Argentina on a flight to the United Kingdom with approximately 6kg of an illegal substance stored in her luggage. While on bail, she fled Argentina and returned to the United Kingdom. The Government of Argentina formally sought her extradition to face the charge of drug trafficking.

The appellant admitted that if she were tried in the United Kingdom she would plead guilty to a charge of attempting to import cocaine into the United Kingdom and/or being a party to a conspiracy to import cocaine. She challenged the extradition proceedings brought against her pursuant to the Extradition Act 2003 (UK). She appealed the decision at first instance of the Magistrates’ Court to allow the extradition on the following grounds:

• New evidence not before the Senior District Judge showed there was a real risk that if extradited to Argentina, the appellant would face inhumane and degrading treatment contrary to article 3 of the Convention.
• New evidence not before the Senior District Judge showed that if extradited, the appellant would not face “trial within a reasonable time”, contrary to article 5(3) of the Convention.
• The Senior District Judge failed to attach sufficient weight to the prospect of a serious deterioration in her mental condition as a consequence of serving a sentence away from family and friends, which would infringe her rights under article 8 of the Convention.

Decision

Justice Silber considered that the Court’s approach should be to (a) make factual findings on how the appellant would be treated if extradited to Argentina and then (b) decide, using applicable principles, whether the appellant’s rights under articles 3, 5 and 8 of the Convention would be infringed.

Article 3: Inhumane and degrading treatment

In considering whether the appellant’s extradition to Argentina would subject her to inhumane and degrading treatment, Justice Silber relied heavily on the uncontested expert evidence of an Argentinian human rights lawyers and lecturer.

In assessing this evidence, Justice Silber applied the test in Soering v United Kingdom (1989) 14 EHRR 439 that the evidence must establish “sufficient grounds” to show a “real risk” that if extradited, the appellant would face torture or inhumane or degrading treatment or punishment.

Justice Silber found that the appellant would not receive basic supplies of food and hygiene products if detained in Argentina. Further, Justice Silber found that the appellant would also face widespread and systemic abuse because of her gender and nationality in the form of physical attacks from other inmates and degrading strip searches from prison officials. Accordingly, it was held that extradition would contravene the appellant’s rights under article 3 of the Convention.

Article 5: Trial within reasonable time

Justice Silber held that for this ground to succeed, there must be a real risk of a “flagrant” breach of article 5. Justice Silber held that while there was evidence that the appellant would face a long period of pre-trial detention, there was no evidence that such detention would not count as time already served in calculating her ultimate sentence. On this basis, there was no flagrant breach of article 5.

Article 8: Respect for private life

Justice Silber noted the well-settled principle that “the preservation of mental stability is … an indispensable precondition to effective enjoyment of the right to respect for private life. In this case, however, Silber J said that “there is nothing strikingly unusual or exceptionally compelling about the appellant’s position as she is not currently suffering from any mental or depressive illness or other ailment.” Consequently, the evidence was not sufficient to overcome the threshold test in Norris v Government of United States of America (No.2) [2010] 2 AC 487, in which Lord Philips said that “the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition.”

Commentary

Justice Silber’s reasoning shows systematic consideration and application of established legal principles to the evidence at hand. However, his Honour stated that his conclusion may have been very different had the Government of Argentina given appropriate undertakings, or had the respondent contested the expert evidence relating to article 3 of the Convention.

In the Australian context, undertakings are especially important when the executive and judiciary are considering extradition to countries with the death penalty. For example, the Commonwealth Attorney-General must not surrender a person under section 22 of the Extradition Act 1988 (Cth) unless the death penalty is off the table and the person would not be subjected to torture. In addition, the executive and judiciary are precluded from surrendering a person for extradition if to do so would lead to: prosecution for political offences; prosecution or punishing on account of a person’s race, religion, nationality or political opinions; or being prejudiced at trial, or punished, detained or restricted in personal liberty, by reason of race, religion, nationality or political opinions (see, for example, sections 7, 16, 19 and 22 of the Extradition Act 1988 (Cth)).

The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2012/669.html

Diana Nestorovska is a solicitor in the Human Rights Law Group at King & Wood Mallesons.