The European Court of Human Rights (Fourth Section), sitting as a Chamber, has found that five men accused of serious terrorist activities can be extradited from the UK to the US to face trial.
They had argued that their article 3 rights (article 3 prohibits torture, inhuman and degrading treatment) would be violated if they were extradited and convicted. A sixth man’s case has been adjourned pending further submissions from the parties to the proceedings.
The applicants are wanted for trial in the US and subject to extradition requests on the basis of extremely serious allegations relating to terrorism, including multiple murder and conspiracy to kidnap. All six applicants were arrested in the UK following the extradition requests and detained. They have brought court proceedings in the UK to contest extradition, which were ultimately unsuccessful.
The applicants argued that their article 3 rights would be violated in two ways:
- If extradited and convicted, they would be held at ADX Florence, a “super-max” prison, and subjected to “special administrative measures” (SAMS). Conditions of their detention, they argued, with or without SAMS would violate article 3.
- If extradited convicted, they would face extremely long sentences without parole and/or extremely long sentences of determinate length, which would violate article 3.
Approach of the Court
The arguments put forward by the UK government
The UK government argued that in this context, it was important to distinguish between torture and lessor forms of ill-treatment:
“…the Government submitted that, in the extradition context, a distinction had to be drawn between torture and other forms of ill-treatment. A real risk of torture in the receiving State should be an absolute bar on extradition. However, for all other forms of ill-treatment, it was legitimate to consider the policy objectives pursued by extradition in determining whether the ill-treatment reached the minimum level of severity required by Article 3….The Government did not accept the applicants’ submission that the possibility of prosecution in the United Kingdom was relevant in determining whether their extradition was compatible with Article 3. The prosecutions were more properly brought in the United States.” (Paragraph 162-3)
The applicants’ arguments
The applicants “…rejected the submission that Article 3 allowed for a balancing exercise of any kind… Even if, in extradition cases, a relativist approach could be taken in respect of ill-treatment which fell short of torture, this was irrelevant to their case because, in their submission, years of solitary confinement at ADX amounted to torture or, at the very least, was at the upper end of the scale of ill-treatment … Furthermore, none of the policy reasons for taking a relativist approach to ill-treatment arising from life sentences could apply to ill-treatment arising from prison conditions.” (Paragraph 164)
They further argued that the UK was the appropriate place for prosecution and that the UK had jurisdiction to try them. This was relevant to the question of whether extraditing them was proportionate.
The Court did not consider that the possibility of trying the men in the UK was relevant to the article 3 questions in this case, because the UK did not intend to try the men for the particula alleged offences.
Distinction between torture and other types of ill-treatment
The Court noted that, particularly in cases where the treatment concerned has not yet occurred, it may not be possible to distinguish between torture and other forms of ill-treatment falling within article 3’s scope. The focus has been on “whether that risk was a real one, or whether it was alleviated by diplomatic and prosecutorial assurances given by the requesting State” (paragraph 173), rather than the distinction between torture and other forms of ill-treatment.
However, the Court stressed that “the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting State… this Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States … This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case.” (Paragraph 177)
At paragraph 178 the Court listed factors in previous decisions which have been decisive in a finding of an article 3 breach.
Conditions at the super-max prison
At paragraph 200-215 the Court examined the general principles from caselaw on prison conditions, including solitary confinement and detention of those with mental illness. Although imprisonment at ADX Florence was not a certainty upon conviction of the applicants in the US, the Court proceeded on the basis that there was a real risk of it. The applicants’ complaints related not to the physical conditions at the prison, but to the “the alleged lack of procedural safeguards before placement at ADX and… at ADX’s restrictive conditions and lack of human contact” (paragraph 219).
The Court was not impressed with the arguments that procedural safeguards prior to transfer to the super-max prison were insufficient:
“…the Federal Bureau of Prisons applies accessible and rational criteria when deciding whether to transfer an inmate to ADX. Placement is accompanied by a high degree of involvement of senior officials within the Bureau who are external to the inmate’s current institution. Their involvement and the requirement that a hearing be held before transfer provide an appropriate measure of procedural protection…Even if the transfer process were unsatisfactory, there would be recourse to both the Bureau’s administrative remedy programme and the federal courts, by bringing a claim under the due process clause of the Fourteenth Amendment, to cure any defects in the process.” (Paragraph 220)
The Court further rejected the arguments that the conditions, including lack of human contact, meant that article 3 would be breached by imprisonment at the prison. It described the isolation as “partial and relative” (paragraph 222), noting that the prison authorities were willing to alter or lift SAMS and that there was nothing to suggest that they would not continually review their assessment of the security risk posed by inmates convicted of terror related offences. It commented,
“Although inmates are confined to their cells for the vast majority of the time, a great deal of in-cell stimulation is provided through television and radio channels, frequent newspapers, books, hobby and craft items and educational programming. The range of activities and services provided goes beyond what is provided in many prisons in Europe…the services provided by ADX are supplemented by regular telephone calls and social visits and by the ability of inmates, even those under special administrative measures, to correspond with their families.” (Paragraph 222)
At paragraphs 235-242 the Court considered the general principles applicable to life imprisonment sentences and article 3. It noted,
“…in principle, matters of appropriate sentencing largely fall outside the scope of the Convention …, a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that “gross disproportionality” is a strict test and …it will only be on “rare and unique occasions” that the test will be met.” (Paragraph 237)
It went on, “in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto [in practical terms] and de iure [as a matter of law].” (Paragraph 242)
With regard to those facing discretionary life sentences, the Court found, given the seriousness of the criminal allegations against the applicants in question, and the fact that aggravating and mitigating circumstances would be taken into account by the sentencing judge, the sentences would not be grossly disproportionate. The applicants had not shown that their imprisonment in the US would not serve any legitimate penological purpose or that the US authorities would not reduce their sentences in due course if such a purpose ceased to exist.
One applicant, facing charges of murder in respect of 269 people and therefore multiple mandatory life sentences without parole, did not persuade the Court that his potential sentence was grossly disproportionate or that either of the two other bases for an article 3 challenge to a life sentence were made out.
The outcome and aftermath
The Court went on briefly to dismiss other complaints brought by some applicants. In respect of one applicant it considered itself unable to come to a conclusion on his complaints, so has required the parties to make further submissions and adjourned its determination.
The parties now have three months to apply to appeal to the Grand Chamber. It is very likely that the five applicants whose cases were decided will take this course. Realistically, this means that the five applicants will not be extradited for some time, although legal commentator Joshua Rozenberg speculates that given the Chamber judgment was delivered without a hearing, it is highly unlikely that a Grand Chamber appeal will be heard.
This is a very important victory for the UK government, coming at a time of increased public unease about deportation and extradition law. It is also a useful decision for clarifying the ECtHR’s stance on detention conditions, particularly with regard to high-security prisons operating strict regimes.
It is also a decision likely to be welcomed in the US, not only because it makes extradition of the applicants more likely but also because of the relative trust in its super-max prison system which the ECtHR has shown and the favourable comparison made between the conditions in ADX Florence and some European prisons.
This chapter of extradition law however cannot be closed until the possibility of any appeals has been explored or the time limit for appealing has expired. Watch this space.
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