Duarte v The Comarca De Lisboa (A Portuguese Judicial Authority)

In an extradition case involving prison conditions, a finding that detention conditions in parts of a requesting state’s prisons create a general or localised risk does not necessarily require refusal of surrender. The court must assess the specific requested person’s prospective detention. A general assurance covering all potential places of detention may suffice where it is given in good faith, can be relied upon, and meets the relevant assurance criteria. In an Article 8 challenge, the public interest in extradition remains weighty, but its strength varies with the seriousness of the offending and may be reduced by culpable delay. On appeal, the question is whether the district judge’s proportionality decision was wrong.

The appellant appealed against a district judge’s order for his extradition to Portugal to serve a six-month sentence for driving without a licence. He relied on Articles 3 and 8 of the European Convention on Human Rights, relying in particular on evidence concerning overcrowding and poor conditions in Portuguese prisons, and on the effect of extradition on his established family life and businesses in England.

The district judge rejected both grounds. Permission to appeal was granted on the Article 8 ground and later on the Article 3 ground. The central issues were whether fresh evidence established a real risk of prohibited treatment despite Portugal’s Declaration of Commitment, and whether extradition was a disproportionate interference with the appellant’s and his family’s Article 8 rights.

1. Article 3. The court admitted fresh evidence under the principles identified in T v Circuit Court in Tarnobrzeg, Poland and accepted that the appeal court had to make its own determination on the material available at the time of appeal.
2. At the first stage of the Criminal proceedings Aranyosi and Caldararu enquiry, the 2016 CPT report supplied objective, reliable and specific evidence of deficiencies affecting a number of Portuguese prisons. It did not establish a systemic problem throughout the prison estate. The Portuguese government’s evidence showed genuine improvement, but the scale of the continuing problems meant that the first-stage risk was not removed.
3. At the second stage, however, the Declaration of Commitment was a sufficient general assurance. It applied to all Portuguese prisons, was accepted to have been given in good faith, and met the criteria in Othman v UK. Mutual trust required the court to assume that Portugal would detain the appellant in conditions complying with the Mursic v Croatia principles. The Article 3 ground therefore failed.
4. Article 8. The district judge had considered the age and seriousness of the offence and the likely prison conditions. Portugal’s sentencing policy had to be respected. Difficult prison conditions could be considered, but were only one factor. The business losses did not form part of the appellant’s or his family’s Article 8 rights.
5. The district judge was entitled to conclude that extradition was proportionate. Applying Polish Judicial Authorities v Celinski, the appellate question was whether that decision was wrong. The appeal was dismissed and extradition was to proceed.

• High Court (Administrative Court): appeal against the district judge’s order dated 7 September 2017 dismissed; extradition to Portugal was to proceed.