Efraim Fishel Grinfeld v The Government of Israel

General violence in a destination country does not ordinarily establish a breach of Articles 2 or 3 on extradition. A breach arises only in the most extreme circumstances, where exposure to the violence itself creates a real risk of prohibited treatment. A state’s positive duty to protect an extradited person from external actors requires reasonably available protection, but does not necessarily require accommodation in a facility with a purpose-built shelter.

Assurances concerning prison conditions may be accepted where they are given in good faith by a mature state with functioning safeguards, genuine efforts are being made to address overcrowding, and the requested person has access to domestic remedies. The absence of a named prison or international inspection mechanism does not, without more, invalidate the assurances.

The appellant had previously challenged a decision sending his extradition case to the Secretary of State. His appeal, including an Article 3 challenge based on Israeli prison conditions, was dismissed in [2023] EWHC 2023 (Admin) and became final.

Following the attacks beginning in October 2023, he applied to reopen the appeal under CPR 52.30. The requesting authority accepted that reopening was appropriate because prison overcrowding had materially worsened. The appellant also relied on the risk of rocket attacks and alleged violations of Articles 2 and 3 of the European Convention on Human Rights. The issues were whether those risks created a real risk of Convention violations and whether assurances concerning prison space were sufficient.

1. Rocket attacks and general violence. The situation in Israel, although fluid and unpredictable, was materially different from the extreme generalised violence considered in Sufi and Elmi and the principles summarised in Liu. The evidence showed significant state protection, minimal civilian casualties, no direct attack on an Israeli prison and no prison casualties. The appellant therefore failed to establish a real risk of violation of Articles 2 or 3 by reason of conflict with external actors.
2. Positive protective duty. Israel owed a positive duty to take reasonable measures to protect the appellant from violations caused by state or non-state actors, applying R v SSHD ex parte Bagdanavicius. That duty did not require detention in a prison with a purpose-built shelter. In a state with an organised civil-defence system, reasonably available protection could include the measures ordinarily used in institutions without such shelters. Premininy and DF v Latvia did not require a different conclusion; DF concerned a systemic failure of prison order and a failure by the authorities to respond.
3. Prison overcrowding. The evidence arising from the Israeli Supreme Court’s ruling of 20 June 2024 established a real risk that a returned prisoner would not receive the requisite personal space. Absent another factor, that would establish an Article 3 violation.
4. Assurances. The requesting authority’s assurance of at least 3 square metres of personal space, excluding sanitary units, was accepted. Israel was a mature state with functioning democratic institutions, a reputational incentive to comply, no identified history of failing to honour assurances, and continuing domestic judicial oversight. The prison estate had not been shown to be uncontrolled or overwhelmed, and the position differed materially from that considered in AAA (Syria) and others.
5. The absence of a named prison did not undermine the assurance because overcrowding could be managed by transfers. The appellant would retain access to regional district courts, while the Public Defender Office had periodic prison access. The appeal was dismissed and the order made in August 2023 was confirmed.

• High Court (Administrative Court): The earlier appeal was dismissed in [2023] EWHC 2023 (Admin). The present court permitted reopening on the changed prison-overcrowding evidence, reconsidered the substantive issues and dismissed the reopened appeal.