Yasir Afsar Judgement
On 15 August 2013 at Westminster Magistrates Court our client Yasir Afsar was discharged from his extradition proceedings after being subject to a request from the United Arab Emirates.
District Judge Zani said that he was “entirely satisfied that Mr Afsar had amply demonstrated that in the event of his return his Article 3 and 6 rights would be breached and he would suffer prejudice contrary to the provisions of s.81 of the 2003 Act, by reason of his ethnicity.”
Here follows his judgement;
IN THE WESTMINSTER MAGISTRATES COURT
THE GOVERNMENT OF THE UNITED ARAB EMIRATES
Issues: s. 87 Extradition Act 2003: Article 3 ECHR : Article 6 ECHR: Article 8 ECHR. s. 81(b) :s. 84(1) EA 2003 :
The Government of the United Arab Emirates (the Government/ UAE) has submitted a request for the extradition of Yasir Afsar (the Defendant I YA). The Request is governed by the provisions of Part 2 of the Extradition Act 2003 (the 2003 Act), the Extradition Act 2003 (Commencement and Savings) Order 2003 and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. UAE is not designated for the purposes of s.71(4), 74(5), 84(7) and 86(7) of the 2003 Act.
The extradition of YA is sought in respect of the allegation that he published news and photographs of his wife through the information network, thereby violating her right to privacy.
On 16 April 2012 the Secretary of State issued a certificate under s.70(8) of the Act certifying that the Request for Extradition is valid and that it has been made in the approved way.
1) The background and the alleged conduct is as follows :
YA and his wife married in 2005 and it is said that after his business ran into financial difficulties YA deserted her in July 2006. It is alleged that YA made threats to his estranged wife in 2007 and 2008 to the effect that unless she sent him money he would post naked photographs of her on the internet. His wife refused to send the money that he demanded and on 3rd October 2008 her friend Ms Berera contacted her to say that she had received an email from YA with an attachment which was a naked photograph of the complainant.
2) The UAE's Federal Law No. 2 of 2006 on the prevention of Information Technology Crimes, Article 16 provides : "Whoever violates any of the family principles or values, published news or pictures violating the privacy of the private or family lives- even if true- through the information network or any other means of information technology shall be sentenced to imprisonment to a period of one year at least and a fine amounting to AED 50,000 at least, or to other penalties. " The maximum sentence set out in the Request is said to be 5 years imprisonment.
3) The Defendant was born on 2nd January 1977 and does not consent to extradition. At the full hearing on 7th August 2013 the Government was represented by Peter Caldwell of counsel while Ben Cooper of counsel appeared for the requested person. The delivery of my ruling was adjourned until today.
4) The Extradition Request consists of the following material : s.78(2) of the 2003 Act places a duty on the Judge dealing with the extradition request, at the extradition hearing, to decide a number of matters : did the documents sent to him by the Secretary of State include the following:
(i) the documents referred to ins. 70(9) of the 2003 Act, i.e. the extradition request and the accompanying certificate issued by the Secretary of State.
(ii) particulars of the person whose extradition is requested.
(iii) particulars of the offence specified in the request.
5) Having reviewed the documents received, I am satisfied to the necessary standard that the provisions of s.78(2) have been fully complied with.
I must now move to consider the provisions of s.78(4) of the 2003 Act.
6) s.78(4) of the 2003 Act requires me to consider and be satisfied that:
(a) the person appearing before me is the person whose extradition is sought
(b) the offence specified in the request is an extradition offence and
(c) copies of the documents received from the Secretary of State have been served on the requested person.
7) Having reviewed the information and documentation received I am satisfied to the necessary standard that all the provisions of s.78(4) have been fully complied with.
8) Mr Cooper challenges the assertion that a prima facie case is shown from the conduct described in the warrant. The allegation made by the complainant is that she received the unwarranted demand (for money) or else consequences would follow which are tantamount to menaces (naked photographs of her would be sent out on the internet). The fact that the email used may or may not be registered in YA's name and that there may or may not be evidence to show that he personally sent the offending material is not relevant to my decision(s) but is a trial issue. I am satisfied that there is a prima facie case made out on the information provided in the request.
9) I am next required to proceed under s.79 of the 2003 Act which makes it necessary for me to consider whether Yasir Afsar's extradition is barred by reason of :
(a) The rule against double jeopardy (as defined in s.80)
(b) Extraneous considerations (as defined by s.81)
(c) The passage of time (as defined by s.82)
(d) Hostage-taking considerations (as defined by s.83)
10) YA raises a number of challenges to the proposed extradition. I propose taking the Article 3, Article 6 and s.81 challenges together as there is quite a considerable degree of overlap in respect of the evidence relied upon and submissions made in relation thereto. :
11) Article 3 Challenge
Article 3 states : "No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
It is necessary for the requested person to demonstrate that there are strong grounds for believing that, if returned, he will face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment.
R v Special Adjudicator ex parte Ullah (2004) AC is a relevant decision, which albeit in respect of an Immigration Appeal, has equal relevance to extradition cases. There does not have to be proof of such risk on the balance of probabilities but there needs to be a risk that is substantial and not merely fanciful.
12) In Saadi v Italy (Application 37201/06) the European Court of Human Rights in its judgment dated 28 February 2008 (at paragraph 124) stated that to determine whether there is a real risk of ill treatment, it is necessary to examine the foreseeable consequences of sending the person to the receiving country, bearing in mind the general situation and his personal circumstances.
13) However, in Miklis v Deputy Prosecutor, Lithuania (2006)ECHR(Admin) Lord Justice Latham stated, in dismissing Mr Miklis' appeal, "The fact that human rights violations take place is not of itself evidence that a particular individual would be at risk of being subjected to those human rights violations in the country in question. That depends upon the extent to which the particular individual could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse".
14) ARTICLE 6: (Right to a Fair Trial)
The requested person would need to demonstrate that he risks suffering a 'flagrant denial' of a fair trial in the event of his extradition being ordered.
15) This was considered in Government of USA v Montgomery (No 2) (2004) 1WLR 2241 when the House of Lords emphasized the 'exceptional' nature of this jurisdiction. In order to satisfy the court of this, Lord Carswell at paragraph 26 of his judgment stated that the requested person would need to show 'an extreme degree of unfairness' amounting to a 'virtually complete denial or nullification of his Article 6 rights, which might be expressed in terms familiar to lawyers in this jurisdiction as a fundamental breach of the obligations contained in the article.'
16) This was also considered during the course of the more recent unsuccessful appeals in Rexha v Italy (2012) EWHC 1274 (Admin) and Drew v Poland (2012) EWHC 3073 (Admin) when the Divisional Court in each of those cases considered whether the systems separately operating in Italy and Poland represented a 'flagrant denial of justice' in either a general or systemic sense, capable of having an adverse effect on the respective appellants ability to have a fair trial. In both of these cases the submissions were rejected and extradition was confirmed.
17) The European Court held in Delcourt v Belgium (1970) 1 EHRR 355 that ...."In a democratic society .... the right to afair administration of justice holds such a prominent place that the restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision. "
18) EXTRANEOUS CONSIDERATIONS. (s.81)
A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only it) it appears that-
(a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality,gender, sexual orientation or political opinions. (my highlighting).
19) In this case Mr Cooper submits, in short, that there is a real risk that YA will be subjected to torture and inhuman and I or degrading treatment or punishment within the meaning of Article 3, in the event of extradition being ordered, that he will not be afforded a fair trial and furthermore that he will be prejudiced by reason of his ethnicity.
20) YA was born in the UK of Pakistani origin. Mr Cooper, on his behalf, relies heavily on the Divisional Court decision of Lodhi v Secretary of State for the Home Department (2010) EWHC 567 (Admin) where the High Court considered the case of a Pakistani national wanted by the UAE authorities to serve a life sentence - rendered on absence- for the production, possession and supply of Class B controlled drugs.
21) In Lodhi, the UAE Attorney General had given written assurances in which the requested person's Human Rights were said to be fully protected. Notwithstanding these assurances, Mr Justice Ouseley, in delivering the decision of the Divisional Court said at paragraph 80 .. ... " thefrequency and extent of the breaches of Article 3, the specific problems which have arisen for others involved in this case and the unverifiable nature of the quite general assurances, have led us to the conclusion that they cannot sufficiently diminish the real risk, which we are satisfied would otherwise exist, that, were Mr Lodhi to be extradited to the UAE, his Article 3 rights would be breached, before trial, or during imprisonment after conviction. The specific treatment he would risk would amount to a breach of Article 3. The general conditions of custody heighten the degree of risk that his Article 3 rights would be breached : they encourage harsh treatment especially of foreigners, brutality in punishments, and risk being degrading in themselves. The decision that he (Mr Lodhi) should be extradited is therefore quashed"
22) The Divisional Court in Lodhi had the benefit of a detailed expert's report prepared by Dr Christopher Davidson who was highly critical (inter alia) about the failure I refusal to allow access for objective monitoring systems by the UAE authorities. Dr Davidson is a reader in the School of Government and International Affairs at Durham University. He specializes in the history, political economy and contemporary society of the Gulf Region with a particular interest in the UAE. He has previously lived and worked in Dubai and Abu Dhabi and has spent time in 5 other Emirates. He has written extensively on the UAE.
23) In the present case no assurances have been given by the UAE so far as Mr Afsar is concerned. Additionally they have refused to allow Professor Rod Morgan to visit their prisons to prepare a report in relation to prison conditions and other related matters.
24) It is noted that, perhaps rather surprisingly, that notwithstanding the fact that they have been given ample opportunity to do so, no evidence whatsoever has been provided by the UAE authorities to gainsay any of the expert or other testimony provided by and/ or on behalf of Mr Afsar in support of his various challenges.
25) Mr Caldwell suggests that the fact that Mr Afsar would have the opportunity to have visits from the UK Consular officials would give him the safeguards necessary to thwart the Article 3 and Article 6 challenges. I disagree. Whilst such visits may give some degree of comfort and support, I cannot accept that this would come close to protecting his convention rights in the situation he would find himself in.
26) Dr Davidson has prepared a detailed report, dated 04 February 2013, for Mr Afsar' case. In it he relates that in 2012 one of his articles for the Carnegie Endowment for International Peace was used as part of the preparation of a European Parliament policy paper that contributed to the EU's October 2012 resolution condemning the UAE's human rights record.
27) Dr Davidson concludes that ' reports relating to suspected torture, ill-treatment, arbitrary detention and unfair trials in the UAE are frequently published by NGOs and occasionally by UN bodies and now by the European Parliament.' Such reports as are available in a "closed" country in international human rights terms suggest that there exists a 'general risk' that upon return 'if Mr XXXX (sic) is faced with criminal charges in the UAE he could be tortured, ill treated, arbitrarily detained or face an unfair trial in Dubai or any of the other 6 Emirates'.
28) I take notice of the fact that the Constitution of the UAE prohibits torture and degrading treatment absolutely and it also contains a number of conventional civil and political liberties. By March 2009, however, the UAE had decided to reject the recommendation that it sign the Convention against Torture and the main international conventions on human rights.
29) I have also seen a report prepared by Dr Crofton Black. He holds a PhD from the University of London in the History of Philosophy and a BA in Classics and English from Lady Margaret Hall, Oxford University. From February 2010 to February 2012 he worked as an investigator and researcher for the London-based human rights NGO Reprieve, and from early 2012 he has worked as a project based researcher for One World Research, an organization that has worked on a number of immigration/asylum cases providing assessments for clients from, inter alia, the Middle East.
30) Dr Black conducted specific research from 18th to 26th February 2013 so as to provide an objective and neutral report on the likely treatment of YA if he were to be extradited to the UAE. His research reveals that Mr Afsar's ethnicity 'would have a significant negative impact on the treatment he would be likely to receive in Dubai.'
31) Dr Black concludes that on the basis of his research and investigations, despite some variations in the statements of some of the experts that he had interviewed, ' I do not think it safe to conclude that torture, lack of effective representation and coercion are a phenomenon limited to high profile political or security cases in the UAE On the contraiy, although such abuses are especially prevalent in such cases, it appears that they are not absent from non-political criminal cases in Dubai. I note that there have been several cases in Dubai. In the last few years, cited above, and that the majority of interviewees regard such issues as endemic within the Dubai criminal justice system ..... I am compelled to conclude that Mr Afsar would face a real risk of an unfair untransparent trial, prejudiced by a coerced confession, a lack of effective legal representation, the potential for mistreatment during the pre-trial period and possibility an inability to comprehend the process facing him if his Arabic is less than highly competent.'
32) I remind myself that the substantial and impressive expert evidence has not been challenged in any way by the UAE authorities albeit I am told that no concessions are made in respect of any of the challenges raised. In my view, this has left Mr Caldwell in the rather unenviable position of only being able to put forward limited submissions. He suggests that that the UAE would not wish to jeopardize its relationship with the UK by exposing YA to risks of Article 3 or 6 abuses.
33) I also note other written evidence, provided by the defence, from other sources which, again, have not been challenged. These include statements from other UK nationals who have been detained in the UAE in the recent past and who recount their experiences which are tantamount to clear Article 3 violations.
34) It seem clear that, since the decision in Lodhi, the conditions in the UAE do not appear to have improved in relation to Human Rights protection for those accused or convicted of criminal offences. I am entirely satisfied that Mr Afsar's has amply demonstrated that in the event of his return his Article 3 and Article 6 rights would be breached and he would suffer prejudice contrary to the provisions of s.81 of the 2003 Act, by reason of his ethnicity.
35) Article 8 Challenge
The Supreme Court decision in Norris v Government of USA (2010) UKSC has become a landmark judgment on Article 8 challenges.
In that case the 9 man Justices of the Court unanimously held that the public interest in upholding bilateral extradition treaties would be "seriously damaged" if those who faced serious (as opposed to trivial) offences and who had families akin to Mr Norris were to preclude extradition from taking place. They made clear that the requested person would have to demonstrate that the impact of extradition went beyond the normal and often unfortunate consequences of extradition.
36) It was accepted in Norris that the effect on close family members was relevant and could be a "cogent consideration" and indeed Lord Phillips stated in paragraph 65 "... if extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member this combination of circumstances might well lead a judge to discharge per s.87 of the 2003 Act." The threshold in an Article 8 challenge is set very high and there would have to be 'striking and unusual facts' for such a challenge to succeed.
37) The approach laid down in Norris was followed in the recent decision in B v District Court of Trutnov and Another (2011) EWHC (Admin) wherein it was stated that circumstances where an Article 8 claim were likely to succeed would be 'rare'. Having considered the evidence provided and the submissions made, I am not satisfied that this challenge is made out and it therefore fails.
38) I have listened very carefully to the submissions eloquently made by both counsel. For reasons previously stated, in accordance with the provisions of s.79(3)/ s.87 I refuse this request for extradition and Order the discharge of Yasir Afsar from these proceedings.
District Judge (MC) Zani
15 August 2013
Friday, August 16, 2013
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