Forum shopping should ultimately lead to prison standards improving across the Union.
I am enjoying one of the pleasures of the EU before the referendum result breaks over our heads.
I have mentioned before that I am working on an EU-funded project on the implementation of the European arrest warrant (EAW) from the point of view of defence practitioners (called EAW-Rights), run by the Council of Bars and Law Societies of Europe (CCBE) and the European Lawyers Foundation.
Detention conditions in EAW cases have become big news.
There was a recent case in the Court of Justice of the European Union which held that, even though there is no express exemption in the EU Framework Decision on the EAW allowing the executing state to refuse to return the requested person on the grounds of poor detention conditions in the issuing state, the executing state can refuse to do so if the fundamental rights of the requested person would be undermined.
The UK had in fact taken the lead in this direction much earlier, before the ECJ decision. For instance, there was a case in 2013 in Northern Ireland where it was held that in the absence of any assurance by the Lithuanian authorities to the contrary, the extradition to Lukiškės remand prison in Lithuania would amount to a violation of rights under Article 3 of the European Convention on Human Rights (torture or inhuman or degrading treatment).
In response to an increasing number of such challenges, the Lithuanian authorities now regularly provide an undertaking that surrendered persons will be detained in Kaunas prison, which has been evaluated as satisfactory by a British expert.
Similar practices have led to ‘prison shopping’ by those subject to an EAW request. Ireland reports that in some cases those who might otherwise be entitled to bail do not even apply, or in other cases those in custody will seek adjournments, so that the greatest possible time is spent in Irish prisons.
This is because credit will then be given for the entire time when they are ultimately surrendered to, and sentenced by, the issuing state. Preference to spend time in Irish prisons is not confined to Irish citizens, but is evident also among nationals of other member states.
And Lithuania reports, in a corresponding turn of events, that those subject to EAW requests are frequently not willing to challenge them, because it would mean that they have to stay longer in Lithuanian detention.
There are a few countries which specifically report that their jails are favoured: Ireland, Denmark, Netherlands and Spain. The superiority of the Dutch prison system is recounted in the following story. The EAW covered a married couple. During two months of detention in the Netherlands, the couple were granted daily phone communication and weekly time together. But, once in Luxembourg, no more communication was allowed, and a total separation was applied.
It doesn’t always work out as one would expect. Although jails in Slovenia are generally considered poor, there was a case of a Slovenian citizen detained in a Paris jail who asked for immediate transfer to Slovenia because of even poorer conditions in the French capital.
The shopper’s guide to prisons is provided by a body run by the Council of Europe - in other words, not an EU organ - the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The CPT organises visits to places of detention, in order to assess how the inmates are treated. CPT members are independent, impartial experts from a variety of backgrounds, including lawyers, doctors and specialists in prison or police matters. A CPT visit has just been carried out to the UK, the eighth periodic visit to the country.
In a few days, we will know whether this system will apply to us in the future
Defence lawyers are often knowledgeable about CPT reports, and use them on their clients’ behalf. One national expert suggests that refusing surrender on the basis of CPT criticisms is the most effective way of bringing international attention to the poor prison conditions in some member states.
The EAW-Rights report I am drafting is not yet completed, let alone approved, but it has been suggested that one of its future recommendations should be to request further resourcing for the CPT and wider dissemination of its materials to defence lawyers and the judiciary.
Forum shopping is an inevitable part of a single market – or, as here, a single judicial area. It has obvious benefits in improving prison standards in the EU. Those with poor jails face the prospect either of seeing their EAW request fail, or having to give a humiliating undertaking that they will house a prisoner only in X or Y jail. That must see standards rise in time.
In a few days, we will know whether this system will apply to us in the future. Some will cheer – but I will miss the UK’s normally wise and constructive contributions to a multi-national experience.
Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs