Francis Ebako Ekwoge v Central District Court in Buda (Hungary)

In an extradition case, a general picture of discrimination, racism or inadequate protection does not by itself establish an Article 3 risk requiring a specific assurance. The evidence must be objective, reliable, specific and properly updated. It must provide substantial grounds for believing that the requested person faces a real risk of inhuman or degrading treatment. Where the alleged harm is by non-state agents, the evidence must also support a failure by state authorities to provide reasonable protection. A further tailored assurance is required only where cogent evidence establishes such a risk. Evidence that does not address the actual experience of prisoners, or demonstrate a genuine inability to scrutinise prison conditions, will not ordinarily satisfy that threshold.

The appellant sought permission to appeal an extradition order made by District Judge Baraitser on 15 March 2021. Permission had previously been refused on the papers. A generic Article 3 ground was abandoned following the Supreme Court’s decision in Zabolotnyi v Hungary [2021] UKSC 14, because an Article 3 prison-conditions assurance was available.

Two issues remained. The section 2 and Article 6 ground was to be stayed pending the High Court’s final determination of Bogdan. The court therefore considered only whether the appellant’s specific characteristics as a black African man who did not speak Hungarian gave rise to an Article 3 risk in detention.

1. Section 2 and Article 6. Permission to amend the grounds was granted. The application for permission on this ground was stayed pending final determination in the High Court of Bogdan, with liberty to apply. The appellant was required to notify the court within 14 days of that determination whether he would pursue the application.
2. Article 3 evidential threshold. The court applied the approach discussed in Marku v Greece [2016] EWHC 1801 (Admin). The evidence had to be objective, reliable, specific and properly updated, and had to demonstrate substantial grounds for believing that the appellant would face a real risk of inhuman or degrading treatment. A specific assurance would be required only if cogent evidence established such a risk.
3. Where the alleged ill-treatment was by non-state agents, the appellant also had to show a failure by state authorities to provide reasonable protection against the criminal acts.
4. The open-source materials showed discrimination, racist attitudes, concerns about police and custodial conduct, and difficulties concerning complaints. They did not, however, provide a sufficiently specific picture of serious ill-treatment of black African prisoners, or establish a prison-monitoring blind spot capable of explaining the absence of such evidence. They therefore could not support the necessary inference of a real Article 3 risk.
5. Permission to appeal on the specific Article 3 ground was refused.

• High Court (Administrative Court): The renewed application was partly stayed on the section 2 and Article 6 ground and permission was refused on the specific Article 3 ground.
• District Judge Baraitser: Extradition was ordered on 15 March 2021.
• High Court: Eady J refused permission on the papers on 8 October 2021.