Detention Conditions as a Bar to Extradition

Legal basis

Unacceptable detention conditions in the requesting state may constitute a mandatory bar to extradition under Article 3 ECHR and Article 4 of the EU Charter. Both provisions impose an absolute prohibition on torture and on inhuman or degrading treatment. The prohibition of refoulement applies to extraditions as well: a state shares responsibility if it surrenders a person to a state where they face such treatment.

Standards for inhuman detention conditions

The ECtHR and the ECJ have developed criteria against which detention conditions are assessed. Particularly relevant are: overcrowding of detention facilities (less than 3 m² of cell space per prisoner gives rise to a strong presumption of an Article 3 violation), lack of medical care, mistreatment by staff, isolation, inadequate sanitary conditions, and lack of access to daylight.

Sources of evidence

The following are decisive for the judicial assessment: reports by the Federal Foreign Office, Amnesty International and Human Rights Watch, CPT reports (European Committee for the Prevention of Torture), ECtHR pilot judgments against individual states, as well as current expert opinions. The Higher Regional Court (Oberlandesgericht, OLG) is obliged to ascertain relevant findings of its own motion.

ECJ case law: Aranyosi and Căldăraru

In 2016 the ECJ ruled in the case of Aranyosi and Căldăraru: where there are real indications of systemic deficiencies in detention conditions in the issuing state, the executing court must obtain specific information. If that information is not sufficient to rule out a violation of Article 4, the surrender must be postponed or refused.

Diplomatic assurances

In some cases, diplomatic assurances given by the requesting state regarding accommodation can make an extradition possible despite concerns. Such assurances must be specific, credible and verifiable. General assurances are not sufficient.

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