The recent High Court ruling in the case of Assange  (Government of the United States v Julian Assange [2021] EWHC 3313 (Admin)) has brought the use of diplomatic assurances sharply into focus. But why are assurances required, who obtains them, what type of assurance can be expected and how can a court be satisfied that they will be complied with?

Why are assurances required?

Where there are substantial grounds to believe that a person's human rights are at risk of being breached were extradition to be ordered, the Requesting State (in the Assange case, this is the US) is usually invited to provide an assurance which, if judged to be sufficiently precise, enforceable and adequate, may be accepted as a sufficient guarantee that an individual's human rights will not be violated. The responsibility is on the Requesting State, assisted by the Crown Prosecution Service (CPS), to provide such an assurance. If the court is not satisfied with the assurance, it will discharge the Requested Person on the grounds that extradition would not be compatible with the individual's human rights, in accordance with its obligations under the Extradition Act 2003 (the 2003 Act).

Is there a criteria for assurances?

Assurances should meet the guidance set out in the European Convention on Human Rights case of Othman  (known as the Othman criteria). In particular (this is not exhaustive) that:

  1. Assurances are disclosed to the court
  2. They are specific
  3. The person giving them can bind the Requesting State
  4. Local authorities can be expected to abide by them (if given by a central authority)
  5. The assurance is given by a contracting state of the European Convention on Human Rights (ECHR) or a state with bilateral relations and a history of compliance with assurances
  6. Compliance with the assurance can be objectively verified
  7. There is an effective system against torture and ill treatment in the Requesting State and any previous history of ill treatment of the individual is considered and weighed up
  8. The reliability of assurances has been examined previously in the Issuing State

Assurances relating to human rights concerns and prison conditions have been most commonly relied on in recent years in UK extradition where concerns are raised regarding Article 3 (the right not to be subject to ill treatment and torture) violations. They include guarantees with regards to:

  • The type of prison
  • The size of the prison cells
  • Mental health facilities in prison
  • Overcrowding
  • Protection from state or inter-prisoner violence and the ability to monitor this
  • Generally unsanitary conditions

Assurances are provided in both category 1 countries (the 27 EU states and Gibraltar - see assurances in Henriques v Portugal regarding prison location) and category 2 countries (for example the Russian Federation, India and the United States).

Are all assurances accepted?

Assurances provided are not always acceptable. In Tabuncic v Moldova  [2021] EWHC 1269 (Admin), the High Court held that the Requested Persons' extradition to Moldova would be incompatible with their rights under Article 3 of the ECHR on account of prison conditions. Inconsistent assurances provided by Moldova did not address the real risk that each Requested Person would be subjected to inhumane and degrading treatment if extradited.

In Egorova, Smychovsky and Ors v Russian Federation  December 2019, the Chief Magistrate held that in the absence of effective independent monitoring of prison conditions, any assurances could not be relied on and those subject to extradition faced a real risk of a violation of their Article 3 rights. Their extradition warrants were discharged.

This contrasts with the acceptance of assurances in Chawla v Government of India  2019 and Mallya v Government of India 2020. In these Indian cases, the court held that assurances with regards to (amongst other factors) exclusive occupancy of a cell, cell/ward location that was not housing high risk inmates, specific locations of cell, cell dimensions, sanitary conditions and access to dietary needs and medical care provided sufficient guarantees against Article 3 violations. The UK court has also held in repeated cases that India complies with its assurances.

The High Court appeal of Modi

Article 3 (prison conditions), s91 Extradition Act 2003 (extradition would be unjust and oppressive due to a medical and physical condition), and assurances and the government of India are currently being examined in the High Court appeal of Modi. In August 2021, when granting permission to appeal Modi v India, 2021 WL 03476730 (2021) para 17, Chamberlain MJ highlighted the importance of assurances to mitigate against human rights violations where expert evidence raises concerns about the prison conditions that an extradited person will be subject to:

The judge was correct to find that the conditions would be better in India than they had been at HMP Wandsworth. The conditions in Indian prisons generally were irrelevant given assurances had been provided. There is no reason to believe that the GoI would breach the assurances, and the conditions guaranteed in those assurances are better than those in HMP Wandsworth.

Similarly, in light of the assurances provided, it was wrong to raise concerns about the practical obstacles to the appellant accessing healthcare. The assurance was clear that the appellant will be able to see his own psychiatrist. Were that ability subject to approval by a judge, the assurance would be misleading. The judge was correct to assume that the assurance has been provided in good faith by the GoI and to rely on it in concluding that the appellant will have adequate access to healthcare.

However, permission to appeal was granted for Modi given the 'evidence as to the severity of the appellant's depression, the high risk of suicide and the adequacy of any measures capable of preventing successful suicide attempts in Arthur Road prison.' Modi's particular health difficulties and the ability for these to be managed in detention will be a determining factor in the appeal.

Following a hearing on Tuesday 14 December in the High Court, Modi's lawyers have been given more time to obtain expert opinion and to scrutinise new assurances provided by the government of India with regards to medical treatment available. The government of India have until 23 December 2021 to respond, and a further hearing will be listed in the new year. 

The Assange  assurances

The assurances in the Assange  case are unusual and of interest. They include that Mr Assange would not be subject to 'special administrative measures', or held at a maximum security 'ADX' facility. They also provide guarantees regarding the provision of any clinical and psychological treatment he may require. In addition, the United States provided an assurance that they would consent to a prison transfer for Mr Assange to serve any prison sentence in Australia (in the event of a conviction), although the US and the court accepted they could not bind the Australian government.

The US assurances were described in the ruling by Lord Burnett of Maldon, Lord Chief Justice, and Lord Justice Holroyde as 'solemn undertakings offered by one government to another' and the 'possibility that Australia may not be willing to receive a transfer cannot be a cause for criticism of the USA, or a reason for regarding the assurances as inadequate to meet the judge's concerns.'

Mr Assange's lawyers have already stated that they will appeal to the Supreme Court on a point of law and it will be of interest whether this assurance which is partly conditional on the actions of a non-party to the proceedings will form part of their appeal.

Conclusion

It is therefore clear that assurances are becoming increasingly relied on in extradition proceedings and enable extradition where the court concludes that if it wasn't for the assurances, an individual's human rights would be violated. The reliance that can be placed on assurances, and the extent of any presumption regarding respect for human rights, will depend on a number of different factors, and all assurances will be scrutinised by the courts. One factor which cannot be discounted however, but is rarely voiced overtly in proceedings, is the relationship between the extraditing party and the Issuing State, and the current state of diplomatic relationships. Assurances require mutual trust between the parties. Politics and diplomacy as well as the law, will inevitably play a part.

Originally published 14 December 2021

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