Babar Ahmad & Ors v United Kingdom  ECHR 609 (10 April 2012)
The European Court of Human Rights was required to consider applications by six men facing extradition from the United Kingdom to the United States on terrorism related charges. The decision of the Court in the case of Babar Ahmad and Others v The United Kingdom indicates the approach the court is taking to the interpretation of article 3 rights under the European Convention on Human Rights. In this case, the Court confirmed that extradition to the US was not a breach of the suspects’ human rights.
The men, four English Nationals, an Egyptian and a Saudi Arabian, submitted that their right to freedom from torture, inhuman or degrading treatment or punishment would be violated if they were extradited and convicted in the US. More specifically, the applicants alleged that they would be at real risk of ill-treatment in the US either as a result of:
- the conditions in “Super-Max” prisons in the US, including “special administrative measures”; or
- the possible length of sentencing in the US.
The Court’s decision considered a range of issues, including:
- the distinction between torture and other types of ill-treatment;
- the nature of the absolute right to freedom from torture, inhuman or degrading treatment or punishment; and
- the threshold for ill-treatment, including length of sentencing and conditions at “Super-Max” prisons such as the ADX Florence.
Distinction between torture and ill-treatment
The UK Government submitted that it was important to distinguish between torture and lesser forms of ill-treatment in the extradition context and contended that:
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 Court agreed that there is such a distinction. It was noted that it may not be possible to draw such a distinction where the treatment complained of has not yet occurred. In such circumstances, the Court said that the focus must be on whether the risk is “real” or “whether it was alleviated by diplomatic and prosecutorial assurances given by the requesting State”.
Nature of the article 3 right
The applicants sought to argue that, as the rights to freedom from torture or to inhuman or degrading treatment or punishment is an absolute right, the Convention does not allow for a balancing exercise of any kind in relation to article 3.
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”, meaning that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States.
Conditions and length of sentencing
The Court was also required to consider, on the facts, whether the conditions the suspects would face in US prisons would meet the threshold for a violation of article 3. In analysing the applicants’ claims that conditions at “Super-Max” Prisons, and in particular, the imposition of “Special Administrative Measures”, would constitute a violation of their article 3 rights, the Court noted that:
For any violation of Article 3 to arise from an applicant's conditions of detention, the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connection with a given form of legitimate treatment or punishment.
The Court further stated that whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of article 3 of the Convention “depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.”
The applicants had also submitted that the sentences which could be imposed by US courts were grossly disproportionate to their alleged crimes. In this context, the Court considered whether sentences of life imprisonment could give rise to a breach of article 3. It was noted that while “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.” The Court found that it would “only be in very exceptional cases that an applicant will be able to demonstrate that the sentence he or she would face in a non-Contracting State would be grossly disproportionate and thus contrary to Article 3.” Given the seriousness of the criminal allegations against the applicants, and the fact that aggravating and mitigating circumstances would be taken into account by the sentencing judge; the Court found that the sentences would not be grossly disproportionate.
The decision demonstrates the approach that the European Court of Human Rights will take to the interpretation of article 3 rights under the Convention.
This decision comes at an important time for the UK Government, which has been facing increasing public unease regarding deportation and extradition law, particularly in relation to terrorism related offences. It is also a decision likely to be welcomed by the US, not only because it makes extradition of the applicants more likely, but also because of the positive reflections on the US super-max prison system and the favourable comparison made between the conditions in ADX Florence and some European prisons.
Relevance to the Victorian Charter
The Victorian Charter of Human Rights also protects the right to freedom from torture and cruel, inhuman or degrading treatment or punishment under section 10. This decision adds to the body of international jurisprudence about what the right means, particularly what the threshold is for “ill treatment”. This case suggests, for example, that a “grossly disproportionate” criminal sentence imposed by a Victorian court could give rise to a breach of human rights under the Charter, particularly if the sentence was mandatorily imposed.
The decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/609.html
Ashlea Hawkins is a lawyer at Lander & Rogers.