by Joseph Markus
The ECHR has spoken: Babar Ahmad, Abu Hamza (and three co-applicants) can lawfully (pending any referral to the Grand Chamber) be extradited to the USA to face various terrorism and murder charges.
Much of the controversy surrounding this case, as was exemplified in the BBC’s Newsnight interview with Mr. Ahmad, arose from the fact that he had been sitting in a prison awaiting extradition for nearly 8 years. During that time he has not been charged.
The issues covered by the ECHR were no less interesting, although considerably less publicised. The first question was whether the extradition to the US would open the applicants to a real risk of ill-treatment contrary to Article 3 of the Convention. This is the right protecting individuals from torture, inhuman and degrading treatment and/or punishment. The complaint focussed on the prison, ADX Florence, arguing that the conditions there violated that provision.
The Court’s conclusions on one of America’s notorious ‘Supermax’ prisons were brief. It found that the US administrative and judicial systems offered sufficient safeguards to ensure that prison placement and solitary confinement were not defective or unlawful. It went on to observe that, while the applicants do not present a physical danger, detention in a highly-restrictive prison environment could be justified, particularly having regard to the use of similar detention in the UK.
Part of the usual problem of this peremptory form of challenge is that it will not always be clear how the term of imprisonment will play out and, as such, whether a human rights issue will arise.
One gets the distinct feeling, reading this judgment, that the Court is giving the US authorities the benefit of the doubt to some degree. Language constructs such as “[t]here is nothing to indicate”  suggest just this.
Some of the justifying reasoning employed is odd. For instance, in relation to whether ADX Florence permitted adequate opportunity for interaction between inmates, it pointed out that this was possible, although “admittedly only through the ventilation system” .
Additionally the Court does appear to contradict some previous case-law to a certain degree. In Babar Ahmad the Court relies on the fact of “a great deal of in-cell stimulation” to help justify the restrictions on inter-personal interaction and outdoor recreation. In a similar case from 2011, Mandić and Jović v Slovenia, cited in the present case , the Court observed that the fact that prisoners were allowed only two hours daily outdoor exercise, and an additional two hours per week in the recreation room, was not balanced by the fact that the prisoners could watch TV, listen to radio and read books. This, moreover, was in the context of shared cells in which—though overcrowded—would have provided opportunity for interaction.
That general feeling is supported by this introductory remark:
“The Court… has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect of democracy, human rights and the rule of law” .
This, to some extent, is right. If it is solely descriptive of the Court’s historic case-law in the area, then it probably accurately describes the phenomenon that the institutionalisation of rule-of-law and human-rights principles is more likely to mean proper safeguards are in place.
On the other hand if this principle informed the Court’s reasoning as a type of presumption, that is less justifiable. That it might have done so is clear from what I’ve just mentioned.
The second complaint alleged that the possibility of discretionary and mandatory life sentences without possibility of parole violated Article 3. Again, the same problem is faced. The Court first concludes that neither of those types of sentence is grossly disproportionate (particularly considering the fifth applicant is accused of 269 murders ). In respect of the discretionary life sentences, they are imposed following a careful assessment of aggravating and mitigating features. The mandatory life sentence was considered justifiable for the grave alleged crimes of the fifth applicant.
The difficulty comes in the proposition that the sentence must be tailored to legitimate ‘penological’ goals. It is difficult to perceive how either of these sentences—both without the possibility of parole—can really be said to be tailored to the circumstances of the offence and offender.
The Court got round this issue by creating an impossible threshold. Applicants must bring evidence to show that their sentence will, at some point, serve no “legitimate penological purpose” . The Court here is requiring an applicant for a peremptory halt to extradition proceedings to bring evidence that, of necessity, cannot be obtained until some point after extradition and part-way through the term of imprisonment. By that point, of course, the individual will be beyond the reach of any European human rights law.
Again, the Court pointed out that it is “still less certain that… the [US] authorities would refuse… to reduce their sentences” .
Inevitably speculation plays a large part in the Court’s role here. And the Court is anxious to make clear that “the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States” .
However I’m left with a lingering impression that the Court could have taken a stronger stance. The idea of an ‘irreducible’ sentence is one rightly at odds with the prevailing (European) view of penal systems. The Court even goes as far as to recognise this fact . The point concerning imposing Convention standards on other states is an example of especially bad (and obliquely political) reasoning. We live in a world of interconnections that exist just as much between national and regional courts as they do within the internet or through networks of transnational companies. What one court thinks about human rights inevitably will, and should, affect how other courts think about them. This is embedded in the very structure of international law. Moreover, the Court would not be “requiring” the UK to impose these obligations on the US. The Court simply doesn’t have that power. The US could continue to do what it wanted, subject to the limitation that the UK would be prohibited from extraditing individuals who faced a without-parole sentence. You cannot take a human rights court out of this reality: in the field of international terrorism—and any other international issue—some effect will be felt by non-Convention states.
The Court’s judgment on conditions at ADX Florence may or may not be justifiable (I’m in no position to know whether or not they do amount to ill-treatment contrary to Article 3). The decision on without-parole sentences does seem to me to be less justifiable, although the case-law and argument can, clearly, cut both ways. But at least from my perspective, I’m not convinced that this was a decision entirely uncoloured by the sensitivity (and the underlying ineffable politics) of the case.