Prohibition of Torture in Extradition Law

Legal basis

The prohibition of torture follows from Article 3 ECHR (prohibition of torture and of inhuman or degrading treatment or punishment) and Article 4 of the EU Charter (prohibition of torture and inhuman treatment under EU law). Both provisions apply absolutely — they admit of no exceptions and cannot be restricted through any balancing exercise.

Bar to extradition where a violation is threatened

An extradition is inadmissible where the requested person faces a substantial likelihood of torture or inhuman or degrading treatment in the requesting state. This follows from the prohibition of refoulement: a state that surrenders someone to another state shares responsibility for the human-rights violations that threaten there. The ECtHR established this principle definitively in the Soering judgment (1989).

Detention conditions as a sub-case

In practice, the subject of review is often not physical torture but the detention conditions in the requesting state. Overcrowding, inadequate medical care, isolation, and inhuman accommodation may violate Article 3 ECHR. German courts must conduct an individual review on the basis of current reports from the Federal Foreign Office, Amnesty International, Human Rights Watch, and ECtHR judgments.

Systemic deficiencies

In its judgments in Aranyosi and Căldăraru (2016) and LM (2018), the ECJ made clear that, where there are systemic deficiencies in the issuing state, the Higher Regional Court is required to obtain specific information and, where appropriate, to suspend or refuse the extradition proceedings. Diplomatic assurances may be sufficient in certain cases, but they must be credible and verifiable.

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