Reflecting on the key legal themes of 2019 in Extradition cases, it was apparent that two issues had dominated court time in 2019; 1) prison conditions (as ever) and 2) whether Public Prosecutors are sufficiently independent to be treated as ‘Judicial Authorities’ for the purposes of the Act and the Framework Decision. Having reviewed the jurisprudence Rebecca Hill has produced a summary of key points in respect of each issue.
The Public Prosecutor point arose from a decision of the CJEU in Execution of a European Arrest Warrant against OG (C-508/18) EU:C:2019:456,  5 WLUK 669 which was published in May 2019. The case followed a referral by the Irish Court which asked whether German Public Prosecutors were characterised by sufficient independence to properly qualify as ‘judicial authorities’. The Court had held that the concept of an "issuing judicial authority" under art.6(1) of the Framework decision did not include public prosecutors who were exposed to directions from the executive in connection with the issue of an EAW.
The crux of their decision was elucidated in the following key passages:
73 Thus, the ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, must be capable of exercising its responsibilities objectively, taking into account all incriminatory and exculpatory evidence, without being exposed to the risk that its decision-making power be subject to external directions or instructions, in particular from the executive, such that it is beyond doubt that the decision to issue a European arrest warrant lies with that authority and not, ultimately, with the executive (see, to that effect, judgment of 10 November 2016, Kovalkovas, C 477/16 PPU, EU:C:2016:861, paragraph 42).
74 Accordingly, the issuing judicial authority must be in a position to give assurances to the executing judicial authority that, as regards the guarantees provided by the legal order of the issuing Member State, it acts independently in the execution of those of its responsibilities which are inherent in the issuing of a European arrest warrant. That independence requires that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive.
75 In addition, where the law of the issuing Member State confers the competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, the decision to issue such an arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection.
Unsurprisingly, as a consequence of this decision and the fresh focus it directed onto the bodies issuing EAWs, warrants issued by Public Prosecutors came under scrutiny. This meant cases analysing the structure of judicial systems in Belgium, Bulgaria, France, Germany, Latvia and Sweden. An alphabetical approach seemed a logical way of reviewing the status of these key challenges:
Belgium: In Tincu v Belgium  EWHC 3335 (Admin) the Divisional Court held that the Public Prosecutors who have responsibility for issuing EAWs in conviction cases do satisfy the requirements of firstly, independence and secondly, power to review the proportionality of issuing the warrant. The ECJ recently reached the same conclusion in the decision of ZD ( C 627/19 PPU) published on 12th December 2019. Accordingly, this is no longer an arguable challenge.
Bulgaria: A challenge was unsuccessfully argued by the defence at Westminster and is now subject to appeal. The lead case of VA v Bulgaria was heard by the Divisional Court on 23rd January and interestingly they were sufficiently troubled to refer a question to the ECJ. As such, the Public Prosecutor point remains a live issue in Bulgarian requests.
France: In JR & YC (C 566/19 and C 626/19 PPU) published on 12th December the ECJ concluded that French Public Prosecutors meet the requirements of independence for the purposes of issuing an EAW. This is likely to be determinative from a domestic perspective.
Germany: This was unsuccessfully argued by the defence at Westminster and is now subject to appeal with the lead case being Shirnakhy, which is yet to be heard. As such, this remains a live issue but is likely to be given very short shrift at Westminster.
Latvia: This was unsuccessfully argued by the defence at Westminster and is now subject to appeal in a number of cases. As with German public prosecutors, whilst this argument may be advanced at Westminster it is unlikely to be afforded much time by the Court.
Sweden: In XD (C625/19 PPU) published on 12th December the ECJ concluded that Swedish Public Prosecutors meet the requirements of independence for the purposes of issuing an EAW. This is likely to be determinative from a domestic perspective.
Hungary: Although Fuzesi and Others  EWHC 1885 (Admin) determined that Requested Persons may be extradited to Hungary in light of assurances given by the Hungarian authorities, the reliability of those assurances was recently challenged in Szalai and Zabolotnyi v Hungary  EWHC 934 (Admin). The Court rejected the appeal, refusing to hear evidence of breached assurances, but did subsequently certify a question of public importance to be considered by the Supreme Court. A permission decision is awaited. As such, Hungarian prison conditions remain arguable. The text of the certified question is as follows:
‘Where a Court is obliged to assess an assurance given to the United Kingdom ‘relevant to extradition, is it correct that the Court should exercise very considerable caution before admitting evidence which does not relate to an alleged previous breach of an assurance to the United Kingdom, but rather to an alleged breach of assurance to another EU member state? If yes, is it a correct approach that the Court should satisfy itself that such evidence is manifestly credible, directly relevant to the issue to be decided and of real importance for the decision in question?'
Latvia: The issue of conditions in Latvian prisons is presently the subject of appeal in the case of Jasvins v Latvia in which extradition was ordered by WMC. As such, it is still possible to argue that return to Latvian prisons will breach Article 3, but the argument is unlikely to have much success in the Magistrates’ Court. A hearing in the High Court has yet to take place.
Lithuania: Whilst the adequacy of remand prisons was decisively resolved in the Judicial Authority’s favour in Guy Jane v Lithuania  EWHC 1122 (Admin), the conditions in conviction prisons (Correction Houses) fell to be considered in Bartulis & Ors v Lithuania  EWHC 3504 (Admin). In a judgment handed down on 20th December 2019 the High Court ruled that whilst there are clearly grave concerns in respect of the Lithuanian prison estate, the Action Plan and evidence of its implementation provided by the Lithuanian authorities was sufficient to establish that extradition will not breach Requested Persons’ Art 3 rights.
Romania: Following Grecu v Romania  EWHC 1427 which concluded that Romanian assurances met concerns regarding Requested Persons’ Article 3 rights, defence teams sought to challenge the adequacy of the terms of individual assurances. In Scerbatchi v Romania  EWHC 3612 (Admin) however the Court held that there was no general requirement that every penal institution in which a requested person might be detained must be specified. The strength and scope of assurances depended on the nature of the evidence. What was critical was that they provided a secure and practical guarantee that the person would be protected against the risk of ill-treatment. In practice, this ruling has meant that almost all assurances are now deemed adequate. Nonetheless, some individuals have continued to challenge them due to specific circumstances in their case. As such, careful analysis of the terms of each assurance in the context of a given case is merited.
Rebecca Hill is a highly experienced specialist in extradition and international crime who has worked at the forefront of this niche area for more than a decade. She regularly conducts cases of the utmost gravity including allegations of murder, terrorism and multi-million dollar fraud as well as those with the gravest consequences for their subjects.
Rebecca is ranked in Chambers and Partners as a band 2 leader in the field of Extradition at the London Bar and is also ranked in the Legal 500. It is a mark of her experience and expertise that she has been consistently recognised since 2009.