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Siegfried Walther
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Extradition & Human Rights

23 April 2014, 22:15

There has been much negative reaction by members of the South African public in response to reports that a man, extradited to Cape Town from a European Country to face trial in South Africa, is being held in pre-trial custody in conditions which are superior to the mostly dreadful conditions experienced by the overwhelming majority of awaiting-trial prisoners in this country.

Their objections are, of course, based on the salutary principle that all people should be treated equally before the law. The objection to foreigners accused of committing crimes in this country receiving preferential treatment to those received by South African awaiting-trial prisoners is understandable, but misguided.

Conditions in most South African prisons are generally regarded to be deplorable. Awaiting-trial prisoners in this country are often held in grossly overcrowded facilities. Apart from anything else, the overcrowded conditions make it very difficult, if not impossible, for the authorities in charge of prisons to prevent awaiting-trial and convicted prisoners from becoming victims of serious crime. It is no exaggeration to say such conditions violate a whole host of the human rights of those being held in custody in those facilities.

Whilst Britain also has what it regards as an overcrowding problem in its prisons, the conditions which apply in British prisons are, for the most part, vastly superior and far more humane than those to be found in most South African prisons.

In my view, the above disparity is something which any European Court, faced with an application for extradition of one of its citizens to South Africa, is obliged to consider prior to granting any such application. The human rights of all European citizens are guaranteed and protected by the European Convention of Human rights. No European Court can grant any order which results in the violation of the human rights enjoyed by any of its citizens.

In this regard, if someone wishes to avoid extradition to South Africa from a European Country, they would be perfectly entitled to raise the fact that their extradition to South Africa is likely to expose them to horrendous awaiting-trial or post-conviction prison conditions which are in violation of their human rights.

A European Court faced with any such objection would be compelled to examine the conditions applicable in South African prisons to establish whether there is any merit to such claims. If it is found that that the human rights of the person, whose extradition to South Africa is being sought, would be placed at risk if extradition were granted, the Court would be entitled to refuse the application.

Alternatively, the Court could seek guarantees from the South African authorities that the conditions which the person to be extradited would be exposed to in South African prisons would be in accordance with European or international standards.

To my knowledge, the person whose extradition was recently sought did not pertinently raise the issue of South African prison conditions as a defence to extradition. However, and as I understand it, the South African authorities nonetheless quite rightly guaranteed that the person concerned would receive access to medical treatment of a standard comparable to that he would have received in the United Kingdom.

This is a variation on the theme I refer to above. But for such assurances, the extradition would probably not have been ordered.

If I recall correctly, the issue of whether an accused could expect to receive a fair trial in a South African Court was raised in the English Court and, quite rightly, that objection was dismissed.

There is nothing unusual about the prosecution from a country or state seeking the extradition of a European citizen offering guarantees which make it possible for a European Court to order extradition without compromising the human rights of the accused person involved.

The most striking example of this is where DA’s from American states like Texas, which has the death penalty, have to guarantee that the death penalty will not be sought prior to obtaining an order for extradition from a Court in a European Country, where the death penalty is not permitted on human rights grounds.

Applying this approach, there is nothing to stop a European whose extradition to South Africa is sought from similarly seeking guarantees from South African authorities about both the conditions of his pre-trial custody and about the conditions applicable to his custody in prison should he be convicted and sentenced.

South African authorities applying for extradition could easily offer appropriate guarantees in regard to pre-trial custody. Any number of suitable arrangements which would be acceptable to a European Court could be put in place.

As far as the prison conditions which await a European, whose extradition to this country was successful, after conviction is concerned, the picture is more complicated. As is apparent from recently publicised pictures of two young convicts which were taken in a Gauteng prison, prison conditions in South Africa tend to vary.

There is one easy solution to this problem. The deal the South African prosecution can offer is that any sentence handed down by a South African Court would be served in the prisons of the country from which the extradition order is sought. That, together with appropriated guarantees of safe and humane pre-trial custody, would leave the foreign Court with little or no room to refuse extradition.

Yes, this does lead to a situation where such foreigners will always be entitled to better treatment than locals, but instead of bemoaning this, we should seek to correct this inequitable situation by ensuring that all our prisons meet international standards of human rights for all who pass through them.

And as for the argument that he who chooses to commit a crime here should be prepared to do the time here, this can only apply to those who are also caught while still here.

Once we have to go to a British Court, cap in hand, to ask for their assistance to bring a foreign accused to justice, one cannot expect that Court to close its eyes to the injustices we inflict on our own prisoners.

Nor can we expect a British Court to deprive a British citizen who at the time of the extradition application is on British soil, of that person’s European human rights simply because he is accused of being foolish enough to choose to commit a crime in country where human rights for prisoners are still a work in progress.

After all, the English Court must start from the position, must it not, that all accused persons are presumed to be innocent?

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