Armando Beja Dias Andrade v Central Criminal Court of Almada (Portugal)

Extradition is not oppressive or unfair merely because many years have passed where the requested person knowingly placed himself beyond the requesting state’s reach. A person who fled while subject to criminal proceedings is a fugitive, even if personal safety was also a motivating factor. A genuine lack of choice may amount to an exceptional circumstance, but it must be established on the evidence.

Convention-rights objections require proof of the relevant real risk or flagrant denial of justice. A specific and objectively monitorable diplomatic assurance may rebut a general concern about prison conditions. Article 8 requires a balance between the interference with family life and the public interest in extradition.

The appellant appealed against a District Judge’s order of 11 January 2024 requiring his extradition to Portugal to serve a seven-year sentence for two 2009 robberies. He had left Portugal while subject to criminal proceedings and was convicted in his absence, although represented by a lawyer.

He argued that extradition was barred by the passage of time and incompatible with articles 2, 3, 5, 6 and 8 of the European Convention on Human Rights. He relied on alleged gang threats, family circumstances, Portuguese prison conditions, and the circumstances of his sentencing and appeal rights. The court also considered proposed fresh evidence concerning his daughter and prison conditions.

1. Passage of time. The appellant was a fugitive because he knew of the criminal proceedings, was subject to a prohibition on leaving Portugal, and thereby placed himself beyond the authorities’ reach. That conclusion did not reverse the burden of proof. Personal safety concerns would not negate fugitive status, although a real and unavoidable threat that left no reasonable choice might constitute an exceptional circumstance. The evidence did not establish such a lack of choice. In any event, the delay was not shown to have caused unfairness or oppression.
2. Article 8. The seriousness of the offences, the sentence and the appellant’s fugitive status created a strong public interest in extradition. The disruption and emotional anguish caused to the family were serious but not exceptionally severe. The appellant was not his daughter’s sole carer, and the evidence supported the conclusion that she could be adequately cared for by her mother.
3. Articles 2 and 3. The evidence did not establish a real risk to the appellant’s life, and there was no clear, cogent and compelling evidence displacing the presumption that Portugal would provide reasonable protection. The Portuguese assurance concerning cell space and sanitary facilities could safely be relied on. The general evidence of overcrowding and the absence of an adequate domestic remedy did not establish a real individual risk where the assurance was available and capable of monitoring.
4. Articles 5 and 6. There was no flagrant denial of justice. The appellant had an opportunity to attend, was represented, and had a right of appeal. The apparent failure to place his confession before the sentencing court resulted from litigation strategy, and the sentencing disparity was explained by the materially different conduct of the co-defendant. The expiry of the appeal period resulted from the appellant’s own choice.
5. The fresh evidence would not have affected the result. The application to rely on it was refused, and the appeal was dismissed.

• District Judge Clews: ordered extradition to Portugal on 11 January 2024.
• High Court (Administrative Court): refused reliance on the fresh evidence and dismissed the appeal.