European court rejects extradition request on basis of acute mental illness

Aswat v The United Kingdom, ECHR 2013 (Application no. 17299/12) (16 April 2013) Summary

The European Court of Human Rights has unanimously held that the extradition of the applicant from the UK to the US would violate article 3 of the European Convention on Human Rights because of the severity of the applicant's mental illness.

Facts

Mr Aswat, the applicant, was indicted in the US as a co-conspirator in a plot to create a jihad training camp in Oregon and was subsequently arrested in the UK in 2005 upon request of the US. The applicant suffers from paranoid schizophrenia. He is currently being held in Broadmoor High Security Psychiatric Hospital, having being transferred from HMP Long Lartin in March 2008 after meeting the conditions for detention under the UK's mental health legislation.

The UK Secretary of State made an order for the applicant's extradition on 1 March 2006, following the Senior District Judge's determination that none of the bars to extradition applied to the applicant's case. The applicant brought this case after having unsuccessfully appealed the extradition order to the House of Lords. The proceedings were initially conducted together with the case of Babar Ahmad and Others v the United Kingdom (application nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09), which concerned similar complaints.

Argument

The applicant argued that his extradition to the US would contravene article 3 of the Convention, which provides: "No one shall be subjected to torture or inhuman or degrading treatment or punishment." The applicant submitted that his detention in Broadmoor Hospital was vital for his personal safety and treatment. He also submitted that, if extradited, it was unknown how long he would remain in pre-trial detention and what the conditions of that detention facility would be. Furthermore, if convicted and sentenced, he would most likely be sent to the “supermax” prison, “ADX Florence”, and placed in a single cell (spending the majority of his time alone). Such isolation would likely exacerbate his paranoid schizophrenia. The applicant argued that these detention conditions would amount to ill-treatment under article 3.

In response, the UK Government contended that the extradition would not be incompatible with article 3, as the applicant's health concerns would be considered during every decision made regarding his allocation within the US prison system, provided the applicant consented to having his confidential medical records communicated to US authorities.

Decision

The Court unanimously upheld the application on the sole basis of the current severity of the applicant's mental illness. In doing so, it underlined the importance of article 3 as enshrining a core value of democratic society, and reinforced its line of authority regarding extradition: "that Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question".

The Court's conclusion as to whether the applicant's extradition to the US would breach article 3 hinged on the conditions of the detention facility the applicant would be housed in and what medical services would be available to him there. It therefore gave full consideration to the submissions of the US Department of Justice on this point and even accepted that the applicant would have access to medical facilities, as well as mental health services, no matter which institution he was placed in if convicted.

Despite this, the Court recognised that any evaluation of those detention conditions was hampered because of the uncertainty surrounding which detention facility the applicant would actually be placed. Consequently, the Court determined that "in light of the current medical evidence [including the Applicant's necessary detention in Broadmoor Hospital] … there is a real risk that the Applicant’s extradition to a different country and to a different, and potentially more hostile, prison environment would result in a significant deterioration in his mental and physical health and that such a deterioration would be capable of reaching the Article 3 threshold".

It was this combination of factors that distinguished the applicant's case from Babar Ahmad, where the Court held that the ADX Florence conditions did not amount to a breach of article 3 for individuals in good health or with less serious mental health problems.

Commentary

Unlike the UK, Australia does not have the benefit of a broad and domestically enforceable human rights instrument at the national level. However, Australia is still bound under international law to uphold human rights principles. In particular, the International Covenant on Civil and Political Rights (including its First Optional Protocol) may be useful in mounting a similar argument to that raised in Aswat.

Article 7 of the ICCPR is the equivalent provision to article 3 of the European Convention. Australia has agreed to be bound by the ICCPR and as such the human rights principles at the core of the Aswat decision also apply to Australia.

The case confirms that international human rights law absolutely prohibits the extradition of a person to a place where they would experience treatment amounting to torture or inhuman or degrading treatment or punishment.

This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-118583

Bianca Parussolo, Pro Bono Graduate – Melbourne, DLA Piper Australia