Henriques v Judicial Authority of Portugal

In an extradition case involving prison conditions and serious health needs, the requested person must establish substantial grounds for believing that extradition would create a real risk of treatment contrary to Article 3 ECHR. General deficiencies in a requesting state’s prisons do not automatically establish that risk where reliable, specific assurances address the individual’s needs. A general assurance may be sufficient if it guarantees Article 3-compliant detention while allowing operational flexibility. Once an assurance has been given, the requesting state is presumed to have given it in good faith and to intend compliance. An isolated breach does not necessarily displace that presumption where the breach is investigated, acknowledged and remedied. Section 25 of the Extradition Act 2003 had no independent application because the oppression argument depended on the Article 3 case.

The appellant appealed against two extradition orders made by District Judge Crane on 4 July 2018. Portugal sought his extradition under an allegation warrant concerning conspiracy to import hashish and a conviction warrant concerning conspiracy to supply heroin.

The appellant relied on Article 3 ECHR, arguing that prison conditions, combined with diabetes, obesity, post-polio syndrome, frailty and restricted mobility, created a real risk of prohibited treatment. He also relied on section 25 of the Extradition Act 2003, contending that extradition would be unjust or oppressive because of his health. The central issues were whether Portugal’s prison and medical assurances sufficiently discounted an Article 3 risk and whether an admitted breach of a general assurance undermined Portugal’s reliability.

1. Appeal dismissed. Sir Kenneth Parker rejected both grounds of appeal. Lord Justice Flaux agreed.
2. The requested person bears the legal burden of establishing substantial grounds for believing that extradition would expose him to a real risk of Article 3 treatment. In the EU context, general prison deficiencies require the court to obtain further information and assess the specific individual risk under the Aranyosi procedure.
3. The evidence did not justify displacing the threshold presumption that Portuguese prisons generally provide Article 3-compliant health care. The CPT report identified areas requiring improvement, but no fundamental failure. Portugal had accepted the recommendations and taken steps to address them.
4. The appellant’s conditions, although serious, did not require care significantly beyond that reasonably available in an Article 3-compliant prison hospital. The comprehensive assurance of the Portuguese Director General of Prisons addressed accommodation, accessibility, immediate assessment, staffing, medication, diet, medical equipment, external hospital treatment, possible hospital or home detention, industrial action and medical support during surrender.
5. The assurances did not need to prescribe every operational detail or identify the precise prison in advance. An over-prescriptive approach could hinder operational efficiency and generate disputes about whether equivalent adequate measures had been used. The assurances, read collectively, guaranteed care and treatment meeting Article 3 requirements.
6. Assurances are solemn diplomatic undertakings presumed to be given in good faith. The presumption that Portugal would comply was not displaced by one admitted breach concerning an unpartitioned toilet. The breach occurred in exceptional circumstances, was investigated and acknowledged, and Portugal gave a firm assurance that remedial measures would prevent recurrence.
7. The section 25 argument had no independent life because it depended on the Article 3 ground. No error of law was shown in the district judge’s decision.

• High Court (Administrative Court) — The court dismissed the appeal against two extradition orders made by District Judge Crane on 4 July 2018.