Sabah Zeka v Prosecutor General’s Office in Antwerp, Belgium

Extradition to a Convention state carries a presumption that the state will comply with Article 3. The presumption is rebutted only by objective, reliable, specific and properly updated evidence showing systemic or generalised detention deficiencies, followed by cogent evidence addressing the individual requested person.

Overcrowding alone does not establish a real risk of Article 3 ill-treatment. Evidence that cells designed for single occupancy contain two or three prisoners is insufficient without evidence that each prisoner will have less than 3m² of personal space. Evidence concerning remand prisons does not establish a risk for convicted prisoners serving sentences. The court must conduct its own assessment; the existence or adequacy of a preventative remedy in the requesting state does not determine the extradition issue.

The court determined four related matters concerning extradition to Belgium. Sabah Zeka and Julio Daniel da Silva Ferreira appealed against orders for their extradition. Constantin Bogdan renewed an application for permission to appeal against an extradition order. Thomas Salton applied to reopen a refusal of permission to appeal after evidence that a co-accused had allegedly been detained contrary to an assurance given by Belgium.

Each matter raised Article 3 of the Convention, principally in relation to Belgian prison overcrowding, personal space, prison staff strikes and assurances concerning detention conditions. The central issues were whether new or existing evidence rebutted the presumption that Belgium would comply with Article 3 and, in Salton’s case, whether the alleged breach of an assurance created a sufficient risk of real injustice to justify reopening the refusal of permission.

1. Zeka’s appeal dismissed. The evidence established overcrowding in some Belgian prisons but did not objectively, reliably, specifically and properly update the evidence to show that convicted prisoners would have less than 3m² of personal space. Cells designed for single occupancy, generally measuring about 10m², could accommodate two or three prisoners while remaining above the 3m² threshold. Evidence concerning Antwerp principally concerned remand prisoners, whereas Zeka was a convicted long-term prisoner. The evidence concerning Bruges indicated little or no overcrowding in the relevant long-term prisoners’ unit.
2. The evidence concerning prison staff strikes did not establish a real risk of Article 3 ill-treatment. Belgium had enacted minimum-service legislation, and the latest material indicated that strikes were fewer, shorter and less serious in their consequences. The court applied the reasoning in Tincu and found no basis for departing from it.
3. The court was required to undertake its own assessment of the Article 3 risk. The existence or absence of a preventative remedy in Belgium did not relieve the court of that task. The respondents were not required, as part of their duty of candour, to obtain information about decisions of courts in other states concerning extradition to Belgium.
4. Ferreira’s appeal dismissed. The evidence showed no realistic prospect that he would be detained anywhere other than Haren pending trial. Haren had not reached capacity and its conditions were not criticised. Any later detention following conviction remained subject to the presumption that Belgium would comply with Article 3.
5. Bogdan’s application for permission refused. The district judge had considered the November 2022 CPT report and was entitled to conclude that the presumption had not been rebutted.
6. Salton’s application refused. Even assuming the co-accused’s account was accurate, being required to sleep on a mattress for several days, without evidence of less than 3m² of personal space, did not itself establish an Article 3 breach or a real risk of such a breach. There was therefore no real injustice or exceptional circumstance requiring reopening under rule 50.27 of the Criminal Procedure Rules.

• High Court (Administrative Court): Appeals by Zeka and Ferreira dismissed. Bogdan’s renewed application for permission to appeal refused. Salton’s application to reopen the refusal of permission to appeal refused.
• District judges: Orders had been made for the extradition of Zeka, Ferreira, Bogdan and Salton to Belgium. Permission to appeal had previously been refused in Bogdan’s case and permission to appeal had been refused in Salton’s case.