Serra & Anor v The Republic of Paraguay

On 23 November 2016 District Judge Arbuthnot following an extradition hearing concluded that there was no legal impediment to the extradition of the appellants to Paraguay. In accordance with the terms of the Extradition Act 2003 (“the 2003 Act”), she sent the requests to the Secretary of State for her decision. The appellants have been sought to stand trial on charges of breach of trust and money-laundering. The conduct alleged against the appellants, in summary, is that they fraudulently obtained the sum of US$35million from the pension fund of a Paraguayan company and that they have steadfastly refused to return it. The loss suffered by the pension fund, which is one of the largest and most prominent in Paraguay is something of a cause celebre, as is the prosecution of these appellants. Twelve others have been convicted in connection with the loss suffered by the pension fund.

The Secretary of State ordered their extradition on 17 January 2017. There is no appeal against that decision. This appeal is against two aspects of the judge’s conclusions in rejecting the appellants’ contentions that their extradition would be unlawful. First, they argue that their extradition would violate their rights guaranteed by article 3 of the European Convention on Human Rights (“the ECHR”) on account of the conditions in which they would be detained. Secondly, they suggest that the money-laundering charge for which they are sought would not be an offence in this jurisdiction and thus not an “extradition offence” for the purposes of sections 78 and 137 of the 2003 Act. The appellants do not challenge the conclusion of the judge that they would receive a fair trial in Paraguay. The matter comes before this court as a rolled-up application for permission to appeal.

It is a distinct possibility that the appellants will be remanded in custody in Paraguay pending their trial and, if convicted, face a sentence which could be ten years’ detention, or more. They have been in custody pending the resolution of these extradition proceedings.

For the purposes of the 2003 Act, Paraguay is a Category 2 territory to which Part 2 of that Act applies. The United Kingdom has an extradition treaty with Paraguay executed in 1908 but it would appear that these are the first requests for extradition made under its terms. The requests were certified by the Secretary of State on 19 November 2013. Mr Serra was arrested on 23 August 2015 and appeared at Westminster Magistrates’ Court on 24 August 2015. Ms Galino was arrested on 2 September 2015 and appeared the following day.

Paraguay was required to establish a prima facie case against the appellants. That matter was contested before the judge. The issue occupied much time and generated a substantial volume of material. The judge was satisfied that Paraguay had established a prima facie case. Her conclusion was challenged in the original grounds of appeal, and indeed, the appellants made an application for leave to rely upon further evidence in support of that aspect of their case, but the point was not pursued by Mr Hall QC on their behalf.

The judge accepted that were the appellants to find themselves as ordinary prisoners in the Paraguayan prison system, there would be substantial grounds for believing that there was a real risk that the conditions of their detention would violate the standards guaranteed by article 3 ECHR. However, she was satisfied that assurances as to their detention and treatment given by the Paraguayan authorities were such as to negative that risk. They centred on assurances that each would be detained within an identified unit within a specified prison. In short, the assurances could be relied upon. At the heart of the appeal is the contention that the judge was wrong to rely upon the assurances.

Very shortly before the last of the intermittent days over which the extradition hearing was conducted, the Grand Chamber of the Strasbourg Court gave judgment in Muršić v Croatia (App. No. 7334/13), reversing the decision of the First Section, and concluded that there had been a violation of article 3 ECHR on account of the lack of personal space available to the applicant. At this stage it is sufficient to note that the Grand Chamber held that unless a prisoner has three square metres of personal space there is a strong presumption that his conditions of detention would violate article 3. That judgment substantially firmed up the view of the Strasbourg Court, which had previously supported the approach that despite lack of such personal space other mitigating factors could more readily render the detention article 3 compliant. The parties were unaware of this decision at the time of the extradition hearing.

The precise amount of personal space available to the appellants in the facilities in which it is proposed to detain them did not feature in the evidence or argument before the judge. It was not thought necessary because the conditions of detention in the units concerned are relaxed and involve very little, if any, time locked up in a confined space. They are otherwise of high standard. In the face of the existing Strasbourg and domestic authority the liberality of the accompanying regime would have been understood to have mitigated the lack of space sufficiently to avoid being caught by article 3. The appellants understandably rely upon Muršić to argue that the personal space available would be less than three square metres. They now suggest that, even if the judge was right in the light of the Strasbourg jurisprudence as it then stood, their extradition cannot proceed. In response, the Paraguayan authorities have given fresh assurances that each will be detained in more than three square metres of personal space.

The judge was right to conclude that the assurances from the Paraguayan authorities may be relied upon and that in those circumstances the appellants had failed to establish that there were substantial grounds for believing that there was a real risk that they would be detained in conditions that do not meet article 3 standards. Furthermore, the fresh assurances as to space are reliable and so the position has not changed. Given the fresh dimension to the argument available as a result of the decision of the Strasbourg Court in Muršić we give permission to appeal on the article 3 ground, but dismiss the appeal. We discuss article 3 between paragraphs 11 and 45 below.

Moreover, the judge was right in her conclusion on the dual criminality issue. We refuse permission to appeal on that ground. We discuss that issue between paragraphs 46 and 54.

Extradition (or any removal from an ECHR state) is prohibited if there are substantial grounds for believing that the person concerned is at real risk of being subjected by the foreign state to treatment which violates the standards set by article 3 ECHR. The principle was established in Soering v United Kingdom (1989) 11 EHRR 439 in the context of extradition and has often been reaffirmed in the context of all removals, for example in Saadi v Italy (2009) 49 EHRR at paragraph 125. In recent years the focus in extradition cases which raise an article 3 issue has been the condition of the prisons in receiving states, especially those in the relatively new Eastern European members of the European Union, all of whom are state parties to the ECHR. The Strasbourg Court has considered applications from prisoners in many countries complaining that prison conditions are so poor as to cause a breach of article 3. Amongst the main complaints has been that the personal space available to an individual prisoner is grossly inadequate with the result that, without more, it gives rise to a violation of article 3. More often than not, the allegations relating to space have been accompanied by complaints about the condition of the prison, particularly sanitation, ventilation, cleanliness and light.

An analysis of the minimum space requirement was made by the Strasbourg Court in January 2012 in Ananyev v Russia (App. Nos 42525/07 and 60800/08) between paragraphs 143 and 149. The complaints from some countries have been so voluminous that the Strasbourg Court has adopted its pilot judgment procedure, as it did in Ananyev. That enables the court to set standards which the state concerned must achieve over time in accordance with a timetable and plan submitted by the respondent government. In individual cases, if violations are established, compensation might be payable. But for understandable pragmatic reasons the Strasbourg Court has never suggested that a prisoner must be released, or that the criminal justice system of the state concerned should not imprison those whose conduct deserves loss of liberty, despite that there being an obvious risk of detention in conditions which violate article 3.

The Strasbourg Court’s approach to this and other problems over many years has been to drive up the minimum standards in prisons within ECHR states. Muršić represents the latest incremental step in that exercise. The court indicated that it “was appropriate to clarify the principles and standards for the assessment of the minimum personal space per detainee in multi-occupancy accommodation in prisons under article 3 of the Convention” (paragraph 91). In paragraph 114 the court explained that space occupied by an in-cell sanitary facility should not be counted towards the personal space available, but the space occupied by furniture should, so long as the space remaining enabled normal movement. In paragraph 116 the court noted inconsistency in the Strasbourg case law, in particular whether a lack of at least three square metres of personal space gave rise to a presumption of a violation of article 3. Having discussed the case-law it noted that whether there has been a violation of article 3 “cannot be reduced to a numerical calculation of square metres” (paragraph 123). Nevertheless:

“124.

… having analysed its case-law and in view of the importance attaching to the space factor in the overall assessment of prison conditions, the Court considers that a strong presumption of a violation of Article 3 arises when the personal space available to a detainee falls below 3 sq. m in multi-occupancy accommodation.

125.

The “strong presumption” test should operate as a weighty but not irrebuttable presumption of a violation of Article 3. This in particular means that, in the circumstances, the cumulative effects of detention may rebut that presumption. It will, of course, be difficult to rebut it in the context of flagrant or prolonged lack of personal space below 3 sq. m. The circumstances in which the presumption may be rebutted will be set out below.”

In paragraph 126 the court explained that once the lack of space has been established it is for the respondent government to show that other factors mitigate that lack sufficiently to avoid a finding of a violation of article 3; and more generally that once a prisoner has established a prima facie case that he has been detained in conditions which violate article 3 the burden shifts to respondent government. These observations were made in the context of seeking to establish what, as a matter of provable fact, has happened in the past in penal establishments operated by the respondent state. In our opinion, they have no direct application to removal cases where the court is concerned with the question of the evaluation of a future risk, which itself may entail a wide range of possible outcomes, each with a different chance of occurring. In a removal case the mechanistic application of shifting burdens of proof is unrealistic. The article 3 question calls for an assessment of whether the test is satisfied, which takes account of all the information available to the court in question.

Between paragraphs 129 and 135 the court discussed the factors which may compensate for “the scarce allocation of personal space” and summarised them in paragraph 138:

“The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met:

(1)

the reductions in the required minimum space of 3 sq. m are short, occasional and minor (see paragraph 130 above);

(2)

such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities (see paragraph 133 above)

(3)

the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the condition of his or her detention (see paragraph 134 above).”

The court made clear in the paragraphs that followed that space remained a relevant factor in considering whether article 3 had been violated in cases where it amounted to between 3 and 4 square metres in multi-occupancy cells. The reference to 4 square metres arose because the European Committee for the Prevention of Torture, whilst carefully not seeking to interfere with the interpretation of article 3, considered that the minimum personal space should be at least 4 square metres in a multi-occupancy cell. In its discussion of international standards between paragraphs 46 and 65 the court recorded that the International Committee for the Red Cross (“ICRC”) recommended 3.4 square meters (including sanitary facilities) but the ICRC considered that “the space factor alone was a limited measurement of the quality of life and conditions of detention.” As we have seen, the Strasbourg Court has taken a different view.

The argument before us proceeded on the basis that there was no difference of approach for the purposes of article 3 between prison condition cases of the sort considered by the Strasbourg Court in which serving prisoners have complained of the conditions in which they are being detained in an ECHR state, and extradition cases. In short, that if a requested person could establish that there were substantial grounds for believing that there was a real risk that he would be detained in a multi-occupancy cell with less than three square metres of personal space, as defined in Muršić, his extradition would be prohibited unless the narrow circumstances identified in paragraph 138 (quoted above) were in play. We were content to approach the case of that basis because this aspect of the appeal turns on the assurances given by the Paraguayan authorities. Nonetheless, we would not wish to be taken as having decided that the approach is necessarily the correct one.

We have observed that it is the reality that the courts of the many countries whose prison conditions have been the subject of pilot judgments in the Strasbourg Court have been able, whilst they seek to improve conditions and reduce prison populations, to detain prisoners on remand and sentence those convicted to imprisonment even though that entails a real risk, even likelihood, of being detained in non-compliant accommodation. We have not seen any decision of the Strasbourg Court (or the Luxembourg Court) dealing with the question of space in the context of extradition. It might be thought anomalous, to say the least, that a fugitive from justice in an ECHR state apprehended in his own country would be returned to prison (with his remedy for sub-standard accommodation being a complaint in the courts and then Strasbourg) but the same person who manages to cross the border into another ECHR state would be immune from return, absent assurances. The same anomaly would be apparent were the countries concerned both in the European Union and subject to the European Arrest Warrant procedure. Similarly, in connection with extradition of a person from an ECHR state to a non-ECHR country, it might be thought anomalous were extradition to be impossible in circumstances where the conditions of detention would satisfy, for example, the ICRC suggested standards but not match the high standards applicable to ECHR states set by the Strasbourg Court in Muršić. No doubt, the Strasbourg Court itself will in time have an opportunity to consider an application which raises these issues.

In the meantime, they may arise in another case in the domestic context.

Assurances have long formed part of the evidence considered in extradition cases, notably in requests for trial for offences that might carry the death penalty in the requesting state. They have become common place in cases where prison conditions have been raised as inhibiting extradition to an ECHR state. The Strasbourg Court considered assurances in a context very different from prison conditions in Othman v United Kingdom (2012) 55 EHRR 1. Othman, or Abu Qatada, was subject to deportation from the United Kingdom on grounds of national security. He had been convicted in his absence of terrorist offices in Jordan. The Home Secretary placed no reliance on that conviction because of the possibility that some of the evidence relied upon within it had been obtained by torture. On his return to Jordan Othman would be retried. He resisted deportation on grounds which included that he was at real risk of torture if returned because of its endemic nature in Jordan and his previous experience. Moreover, he argued that he would be subject to arbitrary detention and could not have a fair retrial. The Jordanian authorities provided assurances in respect of all matters. The Home Secretary contended that the assurances were reliable with the result that no substantial grounds existed for believing that the relevant risks would materialise. The domestic courts ordered Othman’s deportation.

In the context of article 3, the Strasbourg Court considered that its task was to examine whether assurances obtained in an individual case were sufficient to remove the material risk of ill-treatment (paragraphs 187 and 188). The human rights position in the country concerned was relevant along with the characteristics of the person in question. In paragraph 189 it identified an non-exhaustive list relevant factors when assessing assurances:

“(i)

whether the terms of the assurances have been disclosed to the Court …;

(ii)

whether the assurances are specific or are general and vague …;

(iii)

who has given the assurances and whether that person can bind the receiving State…;

(iv)

if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them …;

(v)

whether the assurances concerns treatment which is legal or illegal in the receiving State …;

(vi)

whether they have been given by a Contracting State …;

(vii)

the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances …;

(viii)

whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers …;

(ix)

whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible …;

(x)

whether the applicant has previously been ill-treated in the receiving State …; and

(xi)

whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State …”

The court concluded that torture was widespread and routine in Jordan but did not consider the fact that a state did not comply with its international obligations necessarily dictated that it would fail to abide by bilateral assurances. The extent to which a state failed to abide by its international obligations was, at most, one factor in determining the efficacy of the bilateral assurances (paragraphs 191 to 193). The court recognised the poor human rights record of Jordan but was satisfied that the assurances were reliable. It was unsympathetic to what might be called nit-picking criticism about the language of the assurances, including as regards the article 6 fair trial arguments, and the failure to follow through on every last point (paragraphs 197 et seq).

The question in any article 3 case is whether on the totality of the information before the court substantial grounds for believing that the real risk exists are made out. In cases where it is established (or often common ground in prison condition cases) that the risk would exist absent assurances, the issue is whether the assurances mitigate the risk to the extent that it no longer passes the article 3 threshold. The list of factors identified by the Strasbourg Court concerned a risk of torture of a high profile alleged terrorist already convicted in the receiving state, who claimed to have been previously ill-treated in an environment where it was accepted all round that torture was endemic and the human rights record of the state concerned (especially its security apparatus) was poor. Many of those factors will have little bearing on a more simple case which concerns the location of detention and the personal space available to a detainee. They should not be read as the equivalent of a statutory lexicon of relevant factors and none is decisive. The court evaluates all the circumstances.

Factor (ii) is directed at a type of assurance which does little more than suggest that the state abides by its international obligations and that rights may be vindicated in domestic courts. Factor (iv) arose in the context of an argument that whatever may be said by the Jordanian government, it would not be honoured by local security services or police who were said to act with impunity and outside central government control. Factor (vi) recognises that ECHR states can be expected to abide by their assurances and hints at a presumption to that effect. But the converse does not apply to non-ECHR states. Factor (x) recognises that if the individual has been tortured or ill-treated in the past there will be particular concern that it might happen again. A parallel concern would not obviously apply if, for example, a requested person had been held on remand in a foreign state before fleeing the country because there would have been no question of making special provision for detention in the absence of an extradition request. Factor (v) – the legality of an assurance - is most unlikely to be relevant in a prison conditions case. In an extradition case in the United Kingdom factor (i) and (xi) will always be satisfied.

Mr Serra was born on 28 November 1963. He is a national of Venezuela and also of Italy and Spain. Ms Galino, who was his wife at the time of the alleged criminal activity, was born on 23 September 1977 is also a national of Venezuela, Italy and Spain. Mr Serra suffers from Type 2 diabetes and high blood pressure, both of which are treated with commonly available drugs. Ms Galino has suffered from both breast and skin cancer. She had a partial mastectomy. She underwent chemotherapy and radiotherapy. She is taking Tamoxifen (and will need to do so until October 2018) together with Vitamin D, Omega 3 and analgesics. Relaxant cream is used to relieve symptoms caused by the Tamoxifen. We mention the medical conditions suffered by the appellants at this stage because Mr Hall submitted that uncertainly about the availability of medication and medical treatment in Paraguay added weight to the article 3 argument. The judge concluded that the drugs needed by the appellants were readily available and that the medical facilities were adequate. The issue had been explored in detail by Professor Rod Morgan on behalf of the appellants, an expert on prison conditions, who went to Paraguay, visited the prisons and had extensive discussions with officials and ministers. Those discussions included face to face meetings with doctors, who confirmed the availability of the drugs and described the medical facilities. The judge herself requested information about the availability of medical treatment for Ms Galino, which was provided promptly by the Paraguayan authorities. The judge’s conclusions on the medical issues were, in our judgment, clearly right on the basis of the evidence she heard.

Fresh evidence from Professor Morgan has drawn attention to a recent report of the Paraguayan National Preventative Mechanism (“NPM”), set up after Paraguay ratified the Optional Protocol to the United Nations Convention Against Torture, to monitor compliance with its provisions. Its six members have power to inspect prisons. He paraphrased the report as suggesting that “the sharing of medical information regarding prisoners’ medical conditions and medications was on this occasion judged by the NPM to be less than adequate.” They were reporting on a small number of allegations of abuse of prisoners. Professor Morgan considered that “this incident does not provide grounds of confidence in the medical arrangements at Buen Pastor.” The report, which was designed to ensure that shortcomings are remedied by the authorities, does not provide any proper foundation for an argument that Ms Galino will not be able to access the continuing treatment she needs if extradited to Paraguay.

The judge reviewed the evidence provided both by Paraguay and by Professor Morgan relating to the prison conditions in which Mr Serra would be detained. The trial will take place in Asunción. The prison is known as Tacumbu. It was common ground that it is severely overcrowded and has been disorderly; but within in it there is a unit known as “Libertad”, run by a religious group, which Professor Morgan describes as “cleaner and more orderly”.

Professor Morgan was provided with every assistance from the Paraguayan authorities to visit this prison (and Buen Pastor where Ms Galino will be held). He met the Prosecutor General and the Ministers of Justice and for Prisons. The prosecutor in the case, Mr Cantero, also provided assistance to him. He had discussions with three members of the NPM and the governors of the prisons. He noted that Paraguay has a prison’s ombudsman to whom complaints can be made by prisoners. He said that he was received with the utmost courtesy and generosity by the Paraguayan authorities. He was given free access to the prisons, prisoners and any documents he wished to see. He learned that the prosecution is very high profile and his meetings and investigations were covered in the daily press whilst he was there.

The Paraguayan authorities have given an assurance that Mr Serra will go to the Libertad unit. Three others already convicted in connection with the same loss were housed there when Professor Morgan visited. He spoke to one of these who described the unit as “tranquil and safe”. There are shops, workshops, a prisoner run restaurant and weekly live entertainment. The prisoners are encouraged to earn money through their work. Ordinarily, rooms measuring three metres by two metres are shared by two prisoners but they are never locked in. The cells have air-conditioning or fans. The sanitary facilities are good, by contrast with ordinary locations in the prison. There are large yards and sporting facilities. The Libertad unit operates a programme based upon the principle that rehabilitation is best achieved through education, work and spirituality. Prisoners selected for the unit must abide by its rules or risk being returned to an ordinary location if they do not. To that extent Professor Morgan indicated a risk that Mr Serra might not remain there for the duration of his incarceration, that is to say if he deliberately broke the rules of the unit. There is no reason to suppose that would happen and, even if it did, the consequences would be entirely self-inflicted. Professor Morgan encountered one prisoner who had been there for eight years.

Professor Morgan’s view was that outside the Libertad unit (and another run by a different religious group along similar lines) the prison did not meet article 3 standards. It was in that way that the assurances given on that matter were central to the judge’s conclusion. She directed herself by reference to paragraph 189 of Othman.

The assurance that Mr Serra would be held in the Libertad unit on remand and thereafter if convicted, was given by the Director of the National Penitentiary of the Ministry of Justice. There was, in addition, a letter from the director of the unit which described how it operates and explained that he works in co-operation with the Director of the Penitentiary. Assurances were given by many in the Paraguayan authorities up to the acting Minister of Justice. The judge noted that the charity which runs the unit cannot be forced to take Mr Serra, but he fulfilled the criteria for admission and was a practising Christian. There was no reason to suppose that the assurance would not be delivered. Whilst at the time of Professor Morgan’s visit three co-accused were in the Libertad Unit, by the time the extradition hearings concluded eleven out of twelve co-accused linked to the case, who had been convicted of breach of fiduciary duty, were serving their sentences in the Libertad unit. The twelfth, a woman, was held elsewhere. The judge concluded that it was likely that Mr Serra would be held in Libertad even without the assurance. By reference to paragraph 189 of Othman she said this:

“ … the assurances have been disclosed to this court, they are specific and given by a number of different ranks in the Paraguayan justice system, from the prosecutor, to the relevant Prison Governor then by the Director of Prisons, Paraguay and finally by the acting Minister of Justice. Paraguay has long bilateral relations not only with this country but also I would suspect Venezuela. Compliance with the assurance will be assured not only by any lawyer acting on behalf of [Mr Serra] but also by the Prison Ombudsman and the NPM. The Paraguayan authorities showed an openness when dealing with Professor Morgan and the problems with their prison system. I do not anticipate that they would be able to hide or wish to hide where [Mr Serra] is being held from anyone interested. There would be objective verification as above, by lawyers or public bodies. I am conscious that this is the first Paraguayan request and I am sure they will understand that this court will be expecting that assurances be fulfilled and any failure to do so may affect a future extradition request.”

There was no real dispute that Ms Galino would be held at the Buen Pastor prison in Asunción. A series of assurances was given that Ms Galino would be held in that prison. The director of the prison stated that she would held under the “highest-ranking authority of the Ministry of Justice”. That was confirmed by letter from the acting Minister of Justice. It was later said that she would be held in the pavilion wing. That holds 22 women (mostly senior citizens) and has a private back yard separate from the rest of the prison. It has air conditioning, showers, and a kitchen. Photographs were provided. The judge was not able to work out from those photographs how the sleeping accommodation is arranged. Once more the Paraguayan authorities provided prompt further information. Each cell is shared by two women. The judge described it as “clearly small” but each cell has a separate shower and lavatory.

Professor Morgan noted that complaints by three prisoners in the Buen Pastor prison of physical abuse in 2013/2014 had been taken up by the Ombudsman and investigated. In his discussions with the NPM, Professor Morgan learned of its praise for the most recent director of the prison. In its report on Buen Pastor in the summer of 2016 the NPM did not discuss the pavilion wing and Professor Morgan did not look at it when he visited the prison.

He was approaching the article 3 issue on the basis that Ms Galino would be on ordinary location at Buen Pastor. He had extensive discussions with the new director. He described the prison as overcrowded and cramped, in part because the prisoners are allowed to have a lot of personal belongings, including, for example, fridges. He estimated the personal space at between two and three square metres. There is an opportunity for commerce in the prison, with prisoners buying and selling goods and apparently running ten restaurants. There is almost total freedom of movement in the prison, with prisoners being locked in their cells only between 23.00 and 06.00. There are fans to assist in the summer heat. There are yards in which to play games. He provided much more detail but concluded that the prison conditions in Buen Pastor would “not be judged to breach Article 3”. He was “satisfied that [Ms Galino] could lead a secure and relatively civilized existence in the prison”. His conclusion on article 3, it must be remembered, predated the decision of the Strasbourg Court in Muršić. Unusually, the Professor, who had been instructed on behalf of Ms Galino, was challenged by her own counsel (not Mr Hall or Mr Cooper) on an NPM report which had identified a series of problems during a visit in 2015 which the professor had not encountered in early 2016, including that the position of senior citizens was poor.

The judge concluded that the pavilion in which Ms Galino would be located, which is described as being ordinarily for senior citizens, is article 3 compliant. There was a description of its current state from the prosecutor, Mr Cantero, accompanied by photographs. The judge took account of what was said by the NPM about senior citizens following its visit in 2015 but considered that “had either been overtaken by building works or the report was considering another part of the prison”. The key, as the judge described it, was whether the assurances that Ms Galino would go to Buen Pastor and to the pavilion could be relied upon. As we have seen, the assurance that Ms Galino would be held at Buen Pastor and in the pavilion was first given by the director of the prison and was confirmed by the interim head of the Ministry of Justice. The judge carefully considered Othman and concluded, as she had in respect of Mr Serra, that the assurances were reliable.

At the forefront of the article 3 related appeal is Mursic and the rebuttable presumption of a violation of article 3 if a detainee has less than three square metres of personal space. A fresh assurance was given by the Acting Director of the Tacumba National Prison on 5 July 2017 that Mr Serra would be provided with an individual cell within the Libertad Unit measuring nine square metres. Photographs were attached. It was forwarded under cover of a letter from the Minister of Justice. A letter from the director of the Libertad confirms that the bedrooms are each of nine square metres and that if Mr Serra came to the unit he would be given a room of his own. The Minister of Justice forwarded two letters concerning the conditions in which Ms Galino would be detained, one from the Director of Buen Pastor and one from the General Director of the National Penitentiary System. Each confirmed that she would be detained in an individual cell with more than square metres of space in addition to that occupied by furniture. The respondent’s application to adduce this fresh evidence, supported by the presence of the Ambassador at the appeal hearing, was not opposed by the appellants given the circumstances in which it became necessary to respond to the reformulated appeal in the light of Mursic.

Mr Hall submits, whilst accepting that both appellants could be housed in article 3 compliant accommodation in Paraguay, that the evidence and assurances from the authorities were inadequate to provide sufficient comfort that either would be accommodated as is suggested. He submits that the assurances do not meet the “Othman standards”. The judge did not consider the human rights record of Paraguay adequately and that the Paraguayan prison service was “in crisis”, as he put it. He submits that the authorities would be unable to guarantee that the appellants would be appropriately housed for the duration of their sentences, if convicted. There were serious problems in the prisons after Professor Morgan’s visit including a fire in the main part of Tacumbu in which there were fatalities of both prisoners and staff. The judge should have been more sceptical. He draws attention to evidence that ordinarily a prisoner has to wait for between a day and 30 days in the general part of Tacumbu before allocation to the Libertad unit and that the assurances cannot bind the charity that runs it. He submits that although the United Kingdom and Paraguay have had long friendly bilateral relations there is no evidence before the court of significant trade or security links nor of the extent of the two nations’ diplomatic co-operation. Mr Hall suggests that there is an absence of evidence about the availability of privately funded lawyers to keep an eye on the appellants or act for them should things go wrong.

Mr Caldwell for the Paraguayan authorities submits that the judge was right to be impressed by the response of the authorities to provide every assistance to both the court and Professor Morgan, with that assistance involving Ministers and the Ambassador. That demonstrates that “they want to get it right” to ensure that the extradition of the appellants will be compliant with our domestic law relating to article 3 ECHR. Paraguay is a stable democracy enjoying friendly relations with the United Kingdom. Whilst recognising the difficulties it has faced, along with other countries including many within the EU, in raising the standards of its prisons, Paraguay is not a country which has a poor human rights record of the sort considered by the Strasbourg Court in Othman and other removal cases. It is a state party to the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture, including its Optional Protocol. It has established a national preventative mechanism (the NPM) which, as professor Morgan recognises, is effective. There is no reticence about monitoring standards and investigation of allegations of abuse.

In our view the judge was entitled to conclude on the totality of the evidence, including the evidence of the arrangements that will be made for their detention and assurances associated with that evidence, that there was no material article 3 related risk in extraditing these appellants. We are satisfied that the fresh evidence and assurances which confirm that each appellant will be accommodated in a single room in their respective units with ample space can be relied upon.

The latest country report from the US State Department for 2016 notes that Paraguay is a multiparty, constitutional democratic republic. It indicates that “the principal human rights problems were generalized impunity and corruption, particularly among the judiciary and law enforcement; harsh and at times life-threatening prison conditions; and police involvement in criminal activities.” On prison conditions it relies mainly on the report from the NPM and expressed particular concern about Tacumba prison and the fire which had occurred there. It noted that a criminal investigation into the fire was underway. The prisons in Paraguay are subject to unannounced visits from the Internal Affairs Office of the Ministry of Justice and also independent monitoring. On that the report records:

“The government granted the media, independent civil society groups, and diplomatic representatives access to prisons with prior coordination. Representative of the media, UNCAT, the ombudsman’s office, and NGOs conducted regular prison visits. Government agencies, such as the [NPM], the Public Defender’s Office, and representatives of the Judicial Branch also conducted independent visits.”

The need to look at the general human rights position in a country, in connection with assurances, informs whether the government in question is both willing and able to deliver on the promises it is making. We do not consider that the human rights position calls into question the good faith of the Paraguayan authorities in giving the assurances or their capacity to deliver them. Indeed, the assurances have been given or endorsed at every level in government and the administration which provides substantial comfort that they will be honoured. We agree with the judge that the prominence of the appellants will provide its own protection. They will be represented by independent lawyers who will have access to them. There will be no inhibition about raising complaints should there be any sign of non-compliance. It is clear that there is a relatively relaxed approach to visits generally and there is no risk that the appellants will disappear, as if into a gulag. They may turn to the prisons ombudsman and have the comfort of the visits made by all the organisations identified by the State Department.

Moreover, Mr Serra will be dealing not only with the prison authorities but the charitable religious organisation which runs the Libertad unit. Taking all the various communications on his position together, the only interpretation is that a decision had effectively already been made that he will enter that unit. There is no need for further assessment.

The appellants are not Paraguayan nationals and may turn to consular support from any of the countries of which they are nationals. Their multiple nationality will provide added protection.

The assurances in this case have been given in the course of ordinary extradition proceedings by the authorities of Paraguay to the courts in this jurisdiction. We do not consider that detailed evidence about the nature of bilateral trade, diplomatic or security relations between the United Kingdom and Paraguay is likely to assist in an ordinary extradition case. In some high profile deportation cases, including Othman, where the assurances have been designed to neutralise a risk of torture at the hands of the person’s home state, such evidence has been relevant to assist in determining how likely the home state is to comply with bilateral governmental assurances. The evidence informs an evaluation of the price that might be paid if an assurance were breached. In Othman, for example, there was a formal Memorandum of Understanding at Government to Government level and it might be thought that the Jordanian authorities potentially had a good deal to lose in the event of non-compliance.

Importantly, as the judge noted, the Paraguayan authorities have approached this extradition request on an open and helpful basis, providing every assistance asked of them. There is no basis for supposing that they will do other than deliver on the assurances they have given.

For these reasons, which echo those of the judge, we conclude that there is no material article 3 risk.

The letter of request upon which the appellants’ extradition is sought specifies two offences in Paraguay namely “breach of trust” contrary to Articles 192 and 31 of the Paraguayan Penal Code and “money laundering” contrary to Articles 192 and 20 of the Code. Paraguay alleges that the facts which support the conclusion that the appellants committed these offences are as follows. The company registered in Paraguay known as Itaipu Binacionál is the largest hydro-electric power producer in the world. It operates a pension fund for the benefit of its many employees; the fund is known as “Cajubi” for short. From about early 2007 the Applicants are alleged to have made false representations to Cajubi about proposed investments which caused Cajubi to transfer over US$35 million to investment funds managed by companies or firms under the control of the appellants. The transfer took place in 2007. The money so transferred has never been returned to Cajubi despite requests from Cajubi that it should be refunded. The judge sets out in chronological order what is said to have occurred between paragraphs 75 to 98 of her judgment and it need not be repeated here.

The offence of “money laundering” did not exist in Paraguay when the companies controlled by the Applicants obtained the $35 million from Cajubi. However, on 17 July 2009, after Cajubi had first requested the return of that sum, the offence of “money laundering” was created. It should be noted that there were requests for the return of the money following 17^th July 2009 as well as before.

On behalf of the appellants it is submitted that although it may be that following the change in the law on 17^th July 2009 they were committing the offence of money laundering in Paraguay, their conduct did not constitute an offence in English law. Accordingly, it is submitted that they should not be extradited to face the accusation of money laundering. This submission is founded upon the alleged effect of sections 78(4) and 137 of the 2003 Act.

Section 78(4) of the Act requires the court to determine whether the offence for which a person’s extradition is sought is an “extradition offence”. If it is not the person should not be extradited. Whether an offence constitutes an extradition offence is to be determined by reference to section 137. Pursuant to section 137(3) an offence is to be categorised as an extradition offence if the conduct constituting the alleged offence in the requesting state (a) occurred in that state (b) would constitute an offence under the law of England punishable with imprisonment for a term of 12 months (or greater) and (c) was punishable under the law of the requesting state.

There was no dispute before the judge that the appellants’ alleged conduct in retaining the money occurred in Paraguay and that after 17^th July 2009 this conduct was punishable under the law of Paraguay as the offence of “money laundering”. However, it was contended before her and repeated before this court that the conduct never constituted an offence in English law.

The judge found that the appellant’s conduct in retaining the money after 17 July 2009 constituted either concealing criminal property or having possession of it i.e. that their conduct amounted to offences under sections 327 and/or 329 of the Proceeds of Crime Act 2002. Mr Caldwell submits that her conclusions were unimpeachable.

Upon the assumption that it was obtained by fraud (as alleged) there can be no doubt that the $35 million constituted criminal property within section 340 of the 2002 Act. Accordingly, in our judgment, the judge was correct to conclude on the evidence presented to her that the appellants were concealing criminal property and, would in this jurisdiction, also have been in possession of it contrary to sections 327 and 329 of the 2002 Act. On the available evidence, the appellant were concealing it because they knew where it was deposited but they were refusing to disclose that information; they had it in their possession because they exercised the requisite degree of control over it. This state of affairs existed prior to and following the 27 July 2009 and in our judgment as from 17 July 2009 their conducts constituted the offence of money laundering in Paraguay and would constitute the offences described under sections 327 and 329 of the 2002 Act.

Both in writing and orally Mr Hall sought to argue that a person cannot possess criminal property within section 329 of the 2002 Act if all that occurs is that he retains property which it was not unlawful for him to possess in the requesting state until a change in the law. That, in reality, was the base upon which this part of the appellants’ case was constructed. We do not accept that is correct. We see no difficulty with the concept that the possession of property which was not unlawful at a particular point in time may become unlawful by virtue of a prospective change in the law with the consequence that as from the date of the law change a person who retains such property or continues to possess it commits a criminal offence. One only has to think of drugs or various classes of weapons to understand the concept. In any event, that is not this situation precisely. As from the time when the $35 million was acquired its retention would have been an offence in English law under sections 327 or 329 of the 2002 Act. Once the retention of the money was made criminal in Paraguay on 17 July 2009 section 137 of the Act was satisfied.

For these reasons we refuse permission to advance this ground of appeal.

In our judgment there is no substance in the article 3 argument and, having granted permission to appeal on that ground, dismiss the appeal. The dual criminality argument had no prospect of success and we refuse permission on that ground.