Practice and Procedure

Human rights

PUBLISHED May 9, 2012

Extradition - Inhuman or degrading treatment - Applicants being accused of terrorist offences by US government

Ahmad and others v UK: ECtHR (Judges Garlicki (president), Bj?rgvinsson, Bratza, Hirvel?, Nicolaou, Bianku, Vucinic and L Early (section registrar)): 10 April 2012

Between 1999 and 2006, the six applicants were indicted on various terrorism charges in the US.

The first and third applicants were accused of various felonies including providing support to terrorists and conspiracy to kill, kidnap, maim or injure persons, or damage property in a foreign country. The fourth applicant was charged with 11 different counts of criminal conduct related to the taking of 16 hostages in Yemen in 1998, advocating violent jihad in Afghanistan in 2001 and conspiring to establish a jihad training camp in the US between June 2000 and December 2001. The second applicant was indicted as the fourth applicant's co-conspirator in respect of the latter charges. The fifth and sixth applicants were indicted, along with Osama bin Laden and 20 others, for their alleged involvement in, or support for, the bombing of US embassies in Nairobi and Dar es Salaam in 1998. The sixth applicant had been charged with more than 269 counts of murder.

On the basis of those indictments, the US government requested each applicant's extradition to the US. As a result, all six applicants were arrested in the UK and placed in detention pending extradition. In each case, following hearings before a district judge, the English secretary of state ordered the applicants' extradition. The applicants appealed in separate proceedings in the English courts, without success, their requests for leave to appeal to the House of Lords and the Supreme Court ultimately being rejected between 2007 and 2009.

The six applicants lodged applications with the European Court of Human Rights between 2007 and 2009 whereby they claimed that if they were extradited their rights under article 3 of the European Convention on Human Rights would be violated. Given their similar factual backgrounds, the applications of the first, third, fourth, fifth and sixth applicants were joined. The proceedings in respect of the second applicant were adjourned.

The applicants contended, inter alia, first, that if convicted in the US, they would be detained at ADX Florence (a 'supermax' prison) and, further, would be subjected to special administrative measures (SAMs). They submitted that conditions of detention at ADX, whether alone or in conjunction with SAMs, would violate article 3 of the convention. The complaints made by the applicants were principally directed at the alleged lack of procedural safeguards before placement at ADX and at ADX's restrictive conditions and lack of human contact. Second, they contended that, if convicted, they would face sentences of life imprisonment without parole and/or extremely long sentences of determinate length in violation of article 3 of the convention. Consideration was given first to the correct approach to article 3 in extradition cases given the tension identified in R (on the application of Wellington) v Secretary of State for the Home Department [2009] 2 All ER 436, between Soering v UK [1989] 11 EHRR 439 and Chalal v UK ECHR 22414/93.

The court ruled: (1) The question whether there was a real risk of treatment contrary to article 3 of the convention in another state could not depend on the legal basis of removal for that state. The Chalal ruling should be regarded as applying equally to extradition and other types of removal from the territory of a contracting state and should apply without distinction between the various forms of ill-treatment which were proscribed by article 3. However, the absolute nature of article 3 did not mean that any form of ill-treatment would act as a bar to removal from a contracting state (see [168], [176], [178] of the judgment).

(2) It was an established principle that, for a violation of article 3 of the convention to arise from an applicant's conditions of detention, the suffering and humiliation involved had to go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures of depriving a person of his liberty might often involve an element of suffering or humiliation.

However, the state had to ensure that a person was detained under conditions which were compatible with respect for his human dignity, that the manner and method of the execution of the measure did not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being were adequately secured. It had been found that the prohibition of contact with other prisoners for security, disciplinary or protective reasons did not, in itself, amount to inhuman treatment or punishment. While prolonged removal from others was undesirable, whether such a measure fell within the ambit of article 3 depended in the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see [202], [208], [209] of the judgment).

In the instant case, there would not be a violation of article 3 of the convention in respect of the applicants in relation to their possible detention at ADX. There was no basis for the applicants' submission that placement at ADX would take place without any procedural safeguards. The applicants had not shown that they would be detained at ADX merely as a result of conviction for terrorist offences. It was clear from the declarations submitted by the US government, that the Federal Bureau of Prisons applied accessible and rational criteria when deciding whether to transfer an inmate to ADX. Their involvement and the requirement that a hearing be held before transfer provided 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 to cure any defects in the process. Further, as to the applicants' second complaint about ADX's restrictive conditions and lack of human contact, the US authorities would be justified in considering the applicants, if convicted, as posing a significant security risk and justifying strict limitations on their ability to communicate with the outside world. However, there was nothing to indicate that the US authorities would not continually review their assessment of the security risk which they considered the applicants to pose.

Although inmates at ADX were confined to their cells for the vast majority of the time, a great deal of in-cell stimulation was provided through television and radio channels, frequent newspapers, books, hobby and craft items, and educational programming. While there were limitations on the services provided, those limitations were necessary and inevitable consequences of imprisonment. The restrictions were, in the most part, reasonably related to the purported objectives of the ADX regime. Inmates, even those under special administrative measures, were able to correspond with their families. There were also adequate opportunities for interaction between inmates. Those factors meant that the isolation experienced by ADX inmates was partial and relative. Further, there was a real possibility for the applicants to gain entry to the step-down or special security unit programs (see [220]-[223] of the judgment).

(3) A grossly disproportionate sentence could amount to ill-treatment contrary to article 3 at the moment of its imposition. However, gross disproportionality was a strict test and it would only be on rare and unique occasions that the test would be met. In a removal case, a violation would arise if the applicant was able to demonstrate that he or she was at a real risk of receiving a grossly disproportionate sentence in the receiving state. In
the absence of any such gross disproportionality, an article 3 issue would only arise for a mandatory life sentence without the possibility of parole in the same way as for a discretionary life sentence, that was when it could be shown that: (i) the applicant's continued incarceration no longer served any legitimate penological purpose; and (ii) the sentence was irreducible de facto and de iure (see [237], [238], [242] of the judgment).

In respect of the first, third, fourth and sixth applicants, given the seriousness of terrorism offences with which the applicants were charged, and the fact that the life sentences could only have been imposed on the applicants after a trial judge had considered all relevant aggravating and mitigating factors, discretionary life sentences would not be grossly disproportionate. In the circumstances, they had not shown that, upon extradition, their incarceration in the US would not serve any legitimate penological purpose. Accordingly, those applicants had not demonstrated that there would be a real risk of treatment reaching the threshold of article 3 of the convention as a result of their sentences if they were extradited to the US. With regard to the fifth applicants, a mandatory life sentence for the charges he faced would not be grossly disproportionate.

Further, he had not shown that incarceration in the US would not serve any legitimate penological purpose. Therefore, he too had also failed to demonstrate that there would be a real risk of treatment reaching the threshold of article 3 as a result of his sentence if he were to be extradited to the US (see [243], [244] of the judgment).

If the applicants were extradited to the US there would be no violation of article 3 of the convention as a result of conditions at ADX or as a result of the length of their possible sentences (see [224], [243], [244] of the judgment).

Join our LinkedIn Human Rights sub-group