Article 19 - Protection in the event of removal, expulsion or extradition
1) The case originated in two applications (nos. 9146/07 and 32650/07 and) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The applications were lodged by Mr Phillip Harkins (“the first applicant”), a British national who was born in 1978, and Mr Joshua Daniel Edwards (“the second applicant”), a United States national born in 1987. The applications were lodged on 19 February 2007 and 1 August 2007 respectively.
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3) The Government of the United States of America has sought the extradition of each applicant. The applicants alleged that, if extradited from the United Kingdom, they would be at risk of the death penalty or of sentences of life imprisonment without parole, which were incompatible with Article 3 of the Convention.
4) Upon the lodging of each application, the President of the Chamber to which they had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to extradite each applicant pending the Court’s decision.
6) On 10 August 1999, in Jacksonville, Florida, Joshua Hayes was killed by a gunshot wound to the head in the course of a robbery.
The first applicant was subsequently arrested for the murder of Mr Hayes and, on 3 February 2000, was indicted for first degree murder and attempted robbery with a firearm. On 7 February 2000 the prosecution filed a notice that they intended to seek the death penalty for the charge of first degree murder; that notice was subsequently withdrawn.
7) On 25 January 2003, the first applicant was arrested in the United Kingdom following a fatal car accident, for which he was subsequently sentenced to five years’ imprisonment. An extradition request was made by the United States’ Government on 7 March 2003. In an affidavit provided in support of the extradition request, Mr Charles Thomas Kimbrel, Assistant State Attorney, confirmed that the notice of intention to seek the death penalty had been withdrawn and that the prosecution sought a life sentence.
23) On 24 October 2006, a grand jury in Washington County, Maryland returned an indictment against the second applicant on eleven counts, relating to the death of a Mr J. Rodriguez, the non-fatal shooting of a second man, Mr T. Perry, and assault of a third man, Mr S. Broadhead. The first count of the indictment is murder in the first degree of Mr Rodriguez. The second count is attempted murder in the second degree of Mr Perry. The third and fourth counts are alternatives to counts one and two, charging the applicant with murder in the second degree of Mr Rodriguez and attempted murder in the second degree of Mr Perry. Counts five to seven charge the applicant with assault in the first degree upon the three men. Counts eight to ten charge him with assault in the second degree upon the men and count eleven charges him with using a handgun in the commission of a crime of violence.
25) On 21 January 2007, the second applicant was arrested in the United Kingdom pursuant to a provisional warrant of arrest issued under section 73 of the Extradition Act 2003. In an affidavit of 14 March 2007, Mr Joseph S. Michael, an attorney of the Office of the State’s Attorney for Washington County, Maryland, outlined the facts of the case and the charges against the applicant. On count one, he stated:
“Although a defendant convicted of first degree murder may, under certain circumstances, be subject to the death penalty, none of those circumstances exist in this case. Consequently, the maximum penalty is life in prison.”
26) On 19 March 2007, the United States Embassy in London issued Diplomatic Note No. 12, which requested the second applicant’s extradition. The note specified that count one, first-degree murder, carried a maximum penalty of life imprisonment and that count two, attempted first-degree murder, also carried a maximum penalty of life imprisonment. Counts three and four each carried maximum penalties of thirty years’ imprisonment. Counts five to seven carried maximum penalties of twenty-five years’ imprisonment; counts eight to ten, ten years’ imprisonment; and count eleven, twenty years’ imprisonment.
127) Instead, the Court considers that greater interpretative assistance can be derived from the approach which the Human Rights Committee has taken to the prohibition on torture and ill-treatment contained in Article 7 of the ICCPR. The Committee’s General Comment No. 20 (see paragraph 46 above) makes clear that Article 7 prevents refoulement both when there is a real risk of torture and when there is a real risk of other forms of ill-treatment. Further, recent confirmation for the approach taken by the Court and by the Human Rights Committee can be found in Article 19 of the Charter on Fundamental Rights of the European Union, which provides that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment (see paragraph 50 above). The wording of Article 19 makes clear that it applies without consideration of the extradition context and without distinction between torture and other forms of ill-treatment. In this respect, Article 19 of the Charter is fully consistent with the interpretation of Article 3 which the Court has set out above. It is also consistent with the Council of Europe Guidelines on human rights and the fight against terrorism, quoted at paragraph 49 above. Finally, the Court’s interpretation of Article 3, the Human Rights Committee’s interpretation of Article 7 of the ICCPR, and the text of Article 19 of the Charter are in accordance with Articles 3 and 16 § 2 of the United Nations Convention Against Torture, particularly when the latter Article provides that the provisions of the Convention are “without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion” (see paragraph 47 and 48 above).
