ECtHR / Applications nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09 / Judgment

Babar Ahmad and others v. the United Kingdom
Policy area
Justice, freedom and security
Deciding body type
European Court of Human Rights
Deciding body
Court (Fourth Section)
Type
Decision
Decision date
10/04/2012
ECLI (European case law identifier)
ECLI:CE:ECHR:2012:0410JUD002402707

Carta dos Direitos Fundamentais da UE

Title II: Freedoms

Article 19 - Protection in the event of removal, expulsion or extradition

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  • ECtHR / Applications nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09 / Judgment
    Key facts of the case:
     
    Between 1999 and 2006 all six applicants were indicted on various terrorism charges in the United States of America. Mr Ahmad and Mr Ahsan are 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. Abu Hamza has been charged with 11 different counts of criminal conduct related to the taking of 16 hostages in Yemen in1998, advocating violent jihad in Afghanistan in 2001 and conspiring to establish a jihad training camp in Bly, Oregon (the USA) between June 2000 and December 2001.
    Mr Aswat was indicted as Abu Hamza’s co-conspirator in respect of the latter charges.
    Mr Bary and Mr Al-Fawwaz 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. Mr Al-Fawwaz has notably been charged with more than 269 counts of murder.
     
    On the basis of those indictments, the US Government requested each applicant’s extradition from the United Kingdom. As a result, all six applicants were arrested in the UK and placed in detention pending extradition. They then contested their extradition 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.
     
    Outcome of the case:
     
    Conditions of detention
    Having fully considered all the evidence from both parties, including specifically prepared statements by officials at ADX Florence as well as letters provided by the US Department of Justice, the Court held that conditions at ADX would not amount to ill-treatment.
     
    In particular, not all inmates convicted of international terrorism were housed at ADX and, even if they were, sufficient procedural safeguards were in place, such as holding a hearing before deciding on such a transfer. Furthermore, if the transfer process had been unsatisfactory, there was the possibility of bringing a claim to both the Federal Bureau of Prisons’ administrative remedy programme and the US federal courts.
     
    As concerned ADX’s restrictive conditions and lack of human contact, the Court found that, if the applicants were convicted as charged, the US authorities would be justified in considering them a significant security risk and in imposing strict limitations on their ability to communicate with the outside world. Besides, ADX inmates – although confined to their cells for the vast majority of the time – were provided with services and activities (television, radio, newspapers, books, hobby and craft items, telephone calls, social visits, correspondence with families, group prayer) which went beyond what was provided in most prisons in Europe. Furthermore, according to the US Department of Justice in one of its letters, out of the 252 inmates in ADX, 89 were in the prison’s “stepdown programme”. This showed that the applicants, if convicted and transferred to ADX, would have a real possibility under such a programme of moving through different levels of contact with others until being suitable for transfer to a normal prison. Lastly, as concerned mental health problems, the Court noted that this had not prevented Mr Ahmad, Mr Ahsan and Mr Bary from being detained in high-security prisons in the United Kingdom and, in any case, psychiatric services would be available to treat them at ADX.
     
    Accordingly, the Court found that there would be no violation of Article 3 as concerned the possible detention at ADX supermax prison of Mr Ahmad, Mr Ahsan, Mr Bary and Mr Al-Fawwaz.
     
    The Court also refused Abu Hamza’s request for reconsideration of its decision to declare his complaint concerning ADX inadmissible. The Court observed that the United States authorities would consider Abu Hamza’s detention at ADX impossible because of his disabilities (particularly the amputation of his forearms).
     
    Length of sentences
    Mr Bary faces 269 mandatory sentences of life imprisonment without the possibility of parole. Mr Ahmad, Mr Ahsan, Abu Hamza and Mr Al Fawwaz face discretionary life sentences.
     
    Having regard to the seriousness of the offences in question, the Court did not consider that these sentences were grossly disproportionate or amounted to inhuman or degrading treatment. There would therefore be no violation of Article 3 in the case of any of these five applicants if they were extradited, convicted and given life sentences.
     
    Future procedure concerning Aswat v. the United Kingdom (no. 17299/12)
    The Court decided to adjourn examination of Mr Aswat’s complaints, which it will consider under a new application number (no. 17299/12). It invited the parties to submit further written observations on the three questions below.
    1. What relevance is there, if any, of Mr Aswat’s transfer from HMP Long Lartin to Broadmoor Hospital on account of his mental health?
    2. Prior to Mr Aswat’s surrender to the USA, would details of his mental health condition be provided to the US’ authorities?
    3. After surrender, what steps would be taken by the US authorities: to assess whether Mr Aswat would be fit to stand trial; and, to ensure that, if convicted, his mental health condition would properly be taken into account in determining where he would be detained?
    The British Government have been asked to submit their observations on these questions by 9 May 2012. The applicant will then be given four weeks to respond to those observations after which the Government will be invited to submit its final observations in reply within two weeks. The Court will then give its judgment in Mr Aswat’s case as soon as practicably possible.
  • Paragraphs referring to EU Charter

    175) Instead, the Court considers that greater interpretative assistance can be derived from the approach 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 76 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 80 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 79 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 78 above).