[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM - 24027/07 [2012] ECHR 609 (10 April 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/609.html Cite as: (2013) 56 EHRR 1, [2012] ECHR 609, 56 EHRR 1

[New search] [Contents list] [Printable RTF version] [Help]

Summary

FOURTH SECTION

CASE OF BABAR AHMAD AND OTHERS
v. THE UNITED KINGDOM

(Applications nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09)

JUDGMENT

STRASBOURG

10 April 2012

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Babar Ahmad and Others v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 20 March 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The second application was lodged on 5 March 2008, BAILII: [2009] ECHR 362, by Mr Syed Tahla Ahsan (“the third applicant”), who is also a British national. He was born in 1979.

The third application was lodged on 1 August 2008, BAILII: [2008] ECHR 784, by Mr Mustafa Kamal Mustafa, known more commonly as Abu Hamza (“the fourth applicant”). He is a British national, who was born in 1958.

The fourth application was lodged on 21 December 2009, BAILII: [2010] ECHR 1287, by Mr Adel Abdul Bary (“the fifth applicant”). He is an Egyptian national who was born in 1960.

The fifth application was lodged on 22 December 2009 by Mr Khaled Al-Fawwaz (“the sixth applicant”). He is a Saudi Arabian national who was born in 1962.

4.  The applicants, who are the subject of extradition requests made by the United States of America, alleged in particular that, if extradited and convicted in the United States, they would be at real risk of ill-treatment either as a result of conditions of detention at ADX Florence (which would be made worse by the imposition of “special administrative measures”) or by the length of their possible sentences.

5.  On 6 July 2010 the Court delivered its admissibility decision in respect of the first four applicants.

It declared admissible the first, second and third applicants’ complaints concerning detention at ADX Florence and the imposition of special administrative measures post-trial. It declared the fourth applicant’s complaint in respect of ADX Florence inadmissible, finding that, as a result of his medical conditions (see paragraph 37 below), there was no real risk of his spending anything more than a short period of time at ADX Florence.

The Court also declared admissible all four applicants’ complaints concerning the length of their possible sentences. It declared inadmissible the remainder of the applicants’ complaints.

Finally, the Court decided to continue to indicate to the Government under Rule 39 of the Rules of Court that it was desirable in the interests of the proper conduct of the proceedings that the applicants should not be extradited until further notice.

6.  On 3 September 2010, the President of the Chamber decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the fifth and sixth applicants’ cases should be given to the Government of the United Kingdom. It was further decided that the Rule 39 indications made in respect of these applicants should also remain in place until further notice.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASES

A.  The United States indictments

1.  The indictment concerning the first and third applicants

2.  The indictment concerning the second and fourth applicants

3.  The indictment concerning the fifth and sixth applicants

B.  The applicants’ extradition proceedings in the United Kingdom

1.  Extradition proceedings against the first applicant

“Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States.

The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.

Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President’s Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant...”

“This is a difficult and troubling case. The [first applicant] is a British subject who is alleged to have committed offences which, if the evidence were available, could have been prosecuted in this country. Nevertheless the Government of the United States are entitled to seek his extradition under the terms of the Treaty and I am satisfied that none of the statutory bars [to extradition] apply.”

Accordingly, he sent the case to the Secretary of State for his decision as to whether the first applicant should be extradited.

2.  Extradition proceedings against the second applicant

3.  The first and second applicants’ appeals to the High Court

4.  Extradition proceedings against the third applicant

5.  Extradition proceedings against the fourth applicant

a.  The District Court proceedings

b.  The High Court proceedings

“[T]he constitution of the United States of America guarantees not only ‘due process’, but it also prohibits ‘cruel and unusual punishment’. As part of the judicial process prisoners, including those incarcerated in Supermax prisons, are entitled to challenge the conditions in which they are confined, and these challenges have, on occasions, met with success.

...

We should add that, subject to detailed argument which may be advanced in another case, like Judge Workman [the Senior District Judge], we too are troubled about what we have read about the conditions in some of the Supermax prisons in the United States. Naturally, the most dangerous criminals should expect to be incarcerated in the most secure conditions, but even allowing for a necessarily wide margin of appreciation between the views of different civilised countries about the conditions in which prisoners should be detained, confinement for years and years in what effectively amounts to isolation may well be held to be, if not torture, then ill treatment which contravenes Article 3. This problem may fall to be addressed in a different case.”

6.  Extradition proceedings against the fifth and sixth applicants

a.  The initial extradition proceedings

b.  The Secretary of State’s decision, the United States’ assurances, and the fifth and sixth applicants’ appeal to the High Court

(1)  It is reasonably likely that the claimants will be subjected to [special administrative measures] and will be held in ADX Florence following trial.

(2)  Neither [special administrative measures] (see Ahmad and Aswat) or life without parole (see Wellington) cross the article 3 threshold in the present case. Although near to the borderline the prison conditions at ADX Florence, although very harsh do not amount to inhuman or degrading treatment either on their own or in combination with [special administrative measures] and in the context of a whole life sentence.

(3)  Whether the high article 3 threshold for inhuman or degrading treatment is crossed depends on the facts of the particular case. There is no common standard for what does or does not amount to inhuman or degrading treatment throughout the many different countries in the world. The importance of maintaining extradition in a case where the fugitive would not otherwise be tried is an important factor in identifying the threshold in the present case.

Had the claimants persuaded me that there was no prospect that they would ever enter the step down procedure whatever the circumstances then in my view the article 3 threshold would be crossed. But that is not the case. The evidence satisfies me that the authorities will faithfully apply the criteria [for entry to the program] and that the stringency of the conditions it imposes will continue to be linked to the risk the prisoner presents. Further, there is access to the US courts in the event that the [Federal Bureau of Prisons] acts unlawfully.”

II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW ON ARTICLE 3 AND EXTRADTITION

A.  Extradition arrangements between the United Kingdom and the United States

B.  Relevant United Kingdom law on Article 3 and extradition: R (Wellington) v. Secretary of State for the Home Department [2008] UKHL 72

“The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war; but retributive punishment is never enough to justify it. Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.”

However, and “not without misgivings”, he considered that the relevant authorities, including those of this Court, suggested an irreducible life sentence would not always raise an Article 3 issue.

“.. must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.”

“It should not be inferred from the Court’s remarks [at paragraph 89 of Soering] that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 (art. 3) is engaged.”

Lord Hoffmann stated:

“In the context of Chahal, I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture. I do not however think that the Court was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering and which is paralleled in the cases on other articles of the Convention in a foreign context. If such a radical departure from precedent had been intended, I am sure that the Court would have said so.”

For Lord Hoffmann, paragraph 89 of Soering made clear that:

“...the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the ‘minimum level of severity’ which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.”

He went on to state:

“A relativist approach to the scope of article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers (2005) SC 229 that in Scotland the practice of ‘slopping out’ (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If, however, it were applied in the context of extradition, it would prevent anyone being extradited to many countries, poorer than Scotland, where people who are not in prison often have to make do without flush lavatories.”

“There is, I conclude, no room in the Strasbourg jurisprudence for a concept such as the risk of a flagrant violation of article 3’s absolute prohibition against inhuman or degrading treatment or punishment (akin to that of the risk of a ‘flagrant denial of justice’). By the same token that no one can be expelled if he would then face the risk of torture, so too no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading. That, of course, is not to say that, assuming for example ‘slopping out’ is degrading treatment in Scotland, so too it must necessarily be regarded in all countries (see para 27 of Lord Hoffmann’s opinion)... the Strasbourg Court has repeatedly said that the Convention does not ‘purport to be a means of requiring the contracting states to impose Convention standards on other states’ (Soering, para 86) and article 3 does not bar removal to non-Convention states (whether by way of extradition or simply for the purposes of immigration control) merely because they choose to impose higher levels or harsher measures of criminal punishment.

Nor is it to say that a risk of article 3 ill-treatment, the necessary pre-condition of an article 3 bar upon extradition, will readily be established. On the contrary, as the Grand Chamber reaffirmed in Saadi at para 142:

‘[T]he Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment . . . in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof . . . before . . . finding that the enforcement of removal from the territory would be contrary to article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion.’”

Therefore, for Lord Brown, if a mandatory life sentence violated Article 3 in a domestic case, the risk of such a sentence would preclude extradition to another country.

“Having puzzled long over this question, I have finally concluded that the majority of the Grand Chamber [in Kafkaris] would not regard even an irreducible life sentence—by which, as explained, I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant’s case—as violating article 3 unless and until the time comes when further imprisonment would no longer be justified on any ground—whether for reasons of punishment, deterrence or public protection. It is for that reason that the majority say only that article 3 may be engaged.”

Lord Brown added that this test had not been met in Wellington’s case, particularly when the facts of the murders for which he was accused, if committed in the United Kingdom, could have justified a whole life order. However, Lord Brown considered that, in a more compelling case, such as the mercy killing of a terminally ill relative, this Court “might well judge the risk of ill-treatment to be sufficiently real, clear and imminent to conclude that extradition must indeed be barred on article 3 grounds”.

C.  Relevant Canadian case-law

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Section 12 provides:

“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

D.  Relevant international law on non-refoulement

1.  The International Covenant on Civil and Political Rights

2.  The United Nations Convention Against Torture

“No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

“The provisions of this 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.”

3.  The Council of Europe Guidelines on Human Rights and the fight against terrorism

“XII.  Asylum, return (‘refoulement’) and expulsion

...

2.  It is the duty of a State that has received a request for asylum to ensure that the possible return (“refoulement”) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion.

XIII.  Extradition

1.  Extradition is an essential procedure for effective international co-operation in the fight against terrorism.

...

3.  Extradition may not be granted when there is serious reason to believe that:

(i)  the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment...”

4.  The European Union Charter

“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.”

III.  RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE ON DETENTION AT ADX FLORENCE

A.  Evidence of conditions of detention at ADX Florence

1.  Evidence submitted by the Government

a.  The declarations

In phase one, the “baseline” phase, inmates had two non-legal telephone calls per month, five social visits, access to a commissary list and art and hobby craft items, and escorted shower time three times a week. They had ten hours per week of out-of-cell recreation time (increased from five hours per week in September 2009). As of November 2010, twelve inmates were in phase one.

In phase two, conditions were the same save that three non-legal telephone calls per month were permitted, the commissary list was expanded and inmates were permitted to go to the shower unescorted, five times per week. Eleven inmates were in phase two.

In phase three, group recreation was permitted five days a week (for a minimum of one and a half hours per day, in groups of four) and the number of non-legal telephone calls increased to four. Inmates ate one meal together and engaged in recreational activities together for one and a half hours per day. Access to showers was unrestricted and the commissary list was further expanded. Four inmates, who had all been convicted of terrorist activity, had progressed to phase three.

Advancement through the phases was authorised by a Program Screening Committee, whose six-monthly reviews the inmate attended. The Committee’s task was to determine whether an inmate could function with additional privileges without posing a security or safety risk. Advancement was subject to various factors including good conduct, participation in programmes recommended by the Unit, positive behaviour and respectful conduct and positive overall institutional adjustment.

Her first declaration outlined the Federal Bureau of Prisons procedures for review of the status of inmates. There was an initial classification upon arrival at a new Bureau institution, which took place at a meeting attended by the inmate and which defined, inter alia, the work and educational programmes the inmate would follow, his or her release plans, and security/custody levels. Thereafter, there were six-monthly program reviews (including progress review reports, which were signed by the inmate and the Unit Manager) and more detailed, three-yearly progress reports, which were also made available to the inmate.

In her declaration Ms Rangel also outlined the different levels of security in ADX units and the step down program. The units followed a “stratified” system of housing from General Population Units to the Intermediate, Transitional and Pre-Transfer Units. It would take an inmate a minimum of thirty-six months to work through the system: the minimum stay in each unit was twelve months in a General Population Unit, six months in Intermediate, six in Transitional and twelve in Pre-Transfer. Specific conditions in each unit were as follows.

General Population Unit cells were 87 square feet (8 square metres) plus a sallyport (exit area) of 17 square feet. Showers were within the cells. There was a window with natural lighting and inmates could control the lighting in their cell via a dimmer switch. Lights on the range were switched off at night, but, as in all federal prisons, were briefly turned on for three cell counts during the night. Meals were delivered in-cell. Inmates received two fifteen minute telephone calls and up to five social visits per month. It was possible and permissible for inmates to talk to each other in their cells via the ventilation system or during their out-of-cell recreation.

Inmates had ten hours out-of-cell exercise each week in single-cell recreation areas, some of which were grouped together on large recreation yards. Ms Rangel gave the sizes of the two types of outdoor individualised recreation areas as 240 square feet and 315 square feet (22 and 29 square metres). The size of the indoor areas was 389 square feet (36 square metres). Recreation privileges could be restricted for violations of rules and regulations. Restrictions on outdoor recreation were in three-month increments (three months for a first offence, six for a second offence and so on).

Intermediate Unit cells were 75.5 square feet and did not have a sallyport or shower. There was a window with natural lighting; cell doors faced out onto a range. Inmates were assigned to a group of eight inmates with whom they recreated. Meals were provided to inmates one group at a time, meaning each group was allowed out of their cells to collect their meals in the range. Inmates received three fifteen-minute telephone calls and up to five social visits per month. Showers stalls were on the range, where inmates could shower any time they were out on the range.

Transitional Units had similar conditions to Intermediate Units save that inmates were assigned to groups of sixteen inmates. They received twenty one hours of out-of-cell recreation per week in their assigned group on the range or in a large recreation yard. Meals were consumed in groups on the range. Inmates were unrestrained when out of their cells. They received an extra fifteen-minute telephone call per month and could leave the unit unrestrained but escorted to purchase items from the commissary.

The Pre-Transfer Unit was located at another penitentiary at FCC Florence. As in the Intermediate and Transitional Units, inmates ate their meals and recreated within their assigned group. They received twenty-four and a half hours’ out-of-cell recreation time per week, and five visits and three hundred minutes of telephone calls per month.

In the General Population, Intermediate and Transitional Units, access to television, radio and books, contact with prison staff and rules on correspondence were as outlined by Mr Milusnic.

The rules governing the step down program were set out in an “institution supplement”, which had been updated in September 2009. An inmate’s placement in and advancement through the step down program were reviewed every six months, subject to the minimum periods in each unit, set out above, and other criteria such as participation in defined programmes, positive behaviour and overall institutional adjustment. According to the updated supplement, mitigation of the original reason for placement at ADX Florence was no longer a factor which was considered, but the Step Down Screening Committee, which made decisions on advancement, could have regard to the initial reasons for placement at ADX and other safety and security factors. The final decision was one for the Warden. Any negative decision had to be reasoned (unless providing reasons would pose a threat to individual safety or institutional security) and was subject to appeal through the Bureau’s administrative remedy programme. Since the implementation of the updated supplement, there had been a 56% increase in movement of inmates from the four General Population Units to the Intermediate Unit and a 135% increase in movement from the Intermediate to the Transitional Unit. Inmates had also completed the programme and been transferred out of ADX Florence. This included Arab-Muslim inmates.

b.  The Department of Justice’s letters

(i)  how long inmates in the Special Security Unit program had spent at ADX and how long they had been in each phase of the program;

(ii)  how many inmates were in each phase of the step down program;

(iii)  how long each inmate had spent at ADX and how long they had been in each phase of the program; and

(iv)  how many inmates had completed the program, how long they had spent at ADX and how long they had been in each phase of the program

2.  Evidence submitted by the applicants

Contact with staff could be as little as one minute per day. Some prisoners were placed on “single recreation status”, meaning no one else was permitted to be in adjoining recreation cells at the same time. Recreation privileges could be terminated for minor infractions: one prisoner was denied outdoor exercise for sixty days for trying to feed crumbs to birds. When he challenged this sanction through the grievance process, it was increased to ninety days. Upon further appeal he was told that the decision was not punitive but a managerial strategy to impress upon him the importance of adhering to institutional procedures. Indoor recreations were little more than cages with a single pull-up bar for exercise. There was nothing to do in outdoor recreation cages save to pace up and down. There was limited visibility – all that could be seen was the sky through chain linking. Recreation was frequently cancelled owing to staff shortages.

The evidence also showed that, despite the consensus in the medical profession that prisoners with mental illnesses should not be held in solitary confinement, ADX continued to house seriously mentally ill prisoners, including those with severe schizophrenia and bipolar disorder. Several inmates were too sick to communicate properly with their representatives; a report had been received of one prisoner who was too ill to write, but was living a cell that he had covered in six inches of rubbish and faeces. Several prisoners had stated in witness statements prepared for litigation in the United States courts, that there were mentally ill prisoners at ADX Florence who, because of their conditions, screamed all night, making sleep difficult for others. General medical facilities were also inadequate: there were only two doctors for 3,200 inmates at FCC Florence, and only basic healthcare needs were met. There were also reports from Human Rights Watch which indicated that force feeding of hunger strikers took place in an unnecessarily punitive and painful way.

Religious services were extremely limited – one Muslim inmate had only seen an imam three times – and one inmate in a general population unit had received an incident report for intoning the Azan. Books and educational activities were also limited.

For inmates, particularly those subjected to special administrative measures, telephone calls, and social visits were highly restricted and subject to monitoring. Contact with other inmates was generally prohibited and, when they were not, communication between cells could only be carried out by yelling, which was prohibited. Visits were limited to one adult visitor at a time, with no physical contact, and required fourteen days’ written notice. Evidence in cases brought by inmates who had been subjected to special administrative measures indicated that letters could be limited to three sheets of paper per week and certain family members could be refused clearance to write to or speak with an inmate. Special administrative measures could also mean that an inmate was prohibited from watching news channels on television, from receiving recent newspapers or any Arabic publications whatsoever; one inmate received his newspaper with whole sections removed. International telephone calls were expensive and liable to disruption.

Despite the adoption of objective criteria for placement at ADX, it remained the case that all those subjected to special administrative measures or convicted of terrorism offences were liable for placement, regardless of their security risk or their disciplinary record in other institutions. The placement hearing was window dressing: one hearing officer had carried out one hundred hearings and never found an inmate to be unsuitable for placement. There was evidence of hearings taking place post facto, in some cases many years after the transfer to ADX had been carried out. Inmates also received only twenty-four hours’ notice of a hearing and did not have the right to legal representation. There was evidence that hearing officers did not read all of the evidence submitted and based their decisions on unreliable evidence. Inmates did not see all the evidence against them. Professor Rovner also provided declarations by Arab Muslim clients, in which they stated that they had never been told the reasons for their placement at ADX and had been sent there after 9 September 2011, despite years of good conduct in other, much less restrictive prisons, both in the United States and elsewhere.

Although there had been an increase in the number of admissions to the step down program, the fact remained that many inmates were spending significant periods of time in solitary confinement prior to admission, despite having met the criteria for admission for years. Four clients of the Clinic had only been admitted to the program after periods of between seven and thirteen years in solitary confinement and only then after commencing litigation against the Bureau of Prisons. Another two clients had never been admitted, despite their clean disciplinary records and despite periods of eight to nine years at ADX. Even after the changes to procedures governing entry to the program, an inmate’s original crime continued to serve as the basis for placement at ADX; thus it was possible for an inmate to be unable to sufficiently mitigate the original reason for placement and so gain admission to the program. Moreover, if an inmate had never been told the reasons for his placement, he could not know what he had to do to gain admission to the program. The program required three years to complete and a prisoner needed one year of clear conduct in general population before being eligible for step down. Even eligibility for the program did not mean that a prisoner would be allowed into it.

Conditions in the first phase of the step down program did not differ significantly from general population units. According to one inmate, Mr Rezaq, lockdowns occurred frequently in J Unit, which meant inmates were confined to their cells, and could last days or even weeks. Inmates could also be removed from the program at any time without explanation or due process, even for the most minor infractions. Some had been removed from the program without receiving an incident report or were removed after receiving a report for an incident for which they were soon found not guilty. Yet, following such removals, they were either denied re-admission to the program or forced to spend years going through it again. The Bureau itself had estimated that only 5% of inmates progressed though the program in the minimum three years. Even successful completion of the step down program might only result in a transfer to a “communications management unit”, such as those housed at USP Terre Haute or USP Marion, where conditions remained restrictive.

According to Professor Rovner, it was difficult to dispute the evidence provided by the Government on special administrative measures (owing to restrictions contained in the measures themselves) but, on the basis of public information, she was able to state that the effect of the measures could amount to solitary confinement, even if an inmate was not detained at ADX. The indefinite prolongation of special administrative measures meant that certain Arab-Muslim inmates had spent between five and thirteen years in solitary confinement both before and after trial. Challenging such measures was impossible for inmates without access to legal representation. Legal aid was not available and, even if pro bono legal representation was obtained, the Department of Justice could still refuse to give the lawyers the necessary clearance; this had happened to her Clinic.

B.  The Eighth Amendment and conditions of detention

C.  Due process of law

Sandin has been interpreted by the Tenth Circuit as requiring prisoners to show that their conditions of confinement deviate substantially from the baseline accepted treatment of prisoners (Estate of DiMarco v. Wyoming Department of Corrections 473 F. 3d 1334 (10^th Cir. 2007)). This test was found not to be satisfied by fourteen months’ solitary confinement in DiMarco because the prisoner in question had been provided with the ordinary essentials of prison life.

D.  Litigation challenging conditions of detention at ADX Florence

A constitutional challenge to the imposition of special administrative measures at ADX was also dismissed by the District Court in Al-Owhali v. Holder 1011 WL 288523 (D. Colo. 2011); the case is now the subject of an appeal.

In Georgacarakos v. Wiley, 2010 WL 1291833 (D.Colo. 2010) the District Court found that detention at ADX for five years did not amount to atypical and significant hardship, given the availability of social visits and phone calls, the opportunity to converse with other inmates in the recreation areas, and the possibility of transfer out of ADX via the step down program. Georgacarakos was recently followed in Matthews v. Wiley 744 F. Supp. 2d 1159 (D. Colo. 2010).

In Magluta v. United States Federal Bureau of Prisons, 29 May 2009, the District Court held that the plaintiff’s allegation that detention at ADX had led to a significant deterioration of his mental condition failed to satisfy the objective test in Wilson cited above. The plaintiff had not shown that conditions at ADX, even if lonely or uncomfortable, failed to provide basic human necessities; ADX was a prison and confinement was “intended to punish inmates, not coddle them”.

E.  Relevant international materials on solitary confinement

1.  Council of Europe

“XI.  Detention

1.  A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity.

2.  The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to:

(i)  the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client;

(ii)  placing persons deprived of their liberty for terrorist activities in specially secured quarters;

(iii)  the separation of such persons within a prison or among different prisons, on condition that the measure taken is proportionate to the aim to be achieved.”

Security

“51.1  The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.

51.2  The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control.

51.3  As soon as possible after admission, prisoners shall be assessed to determine:

a.  the risk that they would present to the community if they were to escape;

b.  the risk that they will try to escape either on their own or with external assistance.

51.4  Each prisoner shall then be held in security conditions appropriate to these levels of risk.

51.5  The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.”

Safety

52.1  As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.

52.2  Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.

52.3  Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety.

52.4  It shall be possible for prisoners to contact staff at all times, including during the night.

52.5  National health and safety laws shall be observed in prisons.

Special high security or safety measures

53.1  Special high security or safety measures shall only be applied in exceptional circumstances.

53.2  There shall be clear procedures to be followed when such measures are to be applied to any prisoner.

53.3  The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.

53.4  The application of the measures in each case shall be approved by the competent authority for a specified period of time.

53.5  Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.

53.6  Such measures shall be applied to individuals and not to groups of prisoners.

53.7  Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.

Requests and complaints

70.1  Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.

70.3  If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.”

“[Solitary confinement] can have an extremely damaging effect on the mental, somatic and social health of those concerned. This damaging effect can be immediate and increases the longer the measure lasts and the more indeterminate it is. The most significant indicator of the damage which solitary confinement can inflict is the considerably higher rate of suicide among prisoners subjected to it than that among the general prison population.”

The report therefore urged States to minimise the use of solitary confinement. It should be proportionate and, the longer it was used, the stronger the reasons for it had to be. It should be lawful and subject to accountability, with the fullest possible reasons given and records kept. It should be necessary and non-discriminatory. It should never be imposed as part of a sentence and, if imposed as a disciplinary sanction, the maximum period should be fourteen days. In that period, a prisoner should have at least one hour’s outdoor exercise per day and other appropriate mental stimulation.

The report also stated that the Committee’s recommended procedural safeguards should be rigorously followed where administrative solitary confinement was used for preventative purposes, including periodical and external reviews which considered, among other things, whether some of the restrictions imposed were strictly necessary. In such situations, prisoners should have an individual regime plan which attempted to maximise contact with others. Resources should also be made available to attempt to reintegrate the prisoner into the main prison community.

For material conditions in solitary confinement, the Committee stated that the cells used should meet the same minimum standards as those applicable to other prisoner accommodation. These included a cell of no less than six square metres, proper cell furnishings, adequate natural and artificial light, heating and ventilation, and sufficiently large exercise areas to allow genuine exertion.

The Committee also stated that medical personnel should never participate in decisions on solitary confinement and should report to the prison director whenever a prisoner’s health was put seriously at risk by solitary confinement.

2.  The Inter-American system

In Montero Aranguren et al (Detention Center of Catia) v. Venezuela, judgment of 5 July 2006, the Inter-American Court of Human Rights stated:

“...solitary confinement cells must be used as disciplinary measures or for the protection of persons only during the time necessary and in strict compliance with the criteria of reasonability, necessity and legality. Such places must fulfil the minimum standards for proper accommodation, sufficient space and adequate ventilation, and they can only be used if a physician certifies that the prisoner is fit to sustain it. (footnotes omitted)”

3.  The United Nations

- solitary confinement be strictly and specifically regulated by law and applied only in severe circumstances, with a view to its abolition (Conclusions and Recommendations in respect of Luxembourg, CAT/C/CR/28/2, at paragraph 6(b));

- there should be adequate review mechanisms relating to the determination and duration of solitary confinement (Conclusions and Recommendations in respect of Denmark, CAT/C/CR/28/1 at paragraph 7(d));

- solitary confinement for long periods of time may constitute inhuman treatment (Conclusions and Recommendations in respect of Switzerland, A/49/44, paragraph 133).

“It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one third and as many as 90 per cent of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.

Individuals may react to solitary confinement differently. Still, a significant number of individuals will experience serious health problems regardless of the specific conditions, regardless of time and place, and regardless of pre-existing personal factors. The central harmful feature of solitary confinement is that it reduces meaningful social contact to a level of social and psychological stimulus that many will experience as insufficient to sustain health and well being.”

IV.  RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE ON LIFE SENTENCES

A.  The applicants’ possible sentences, the federal sentencing system and presidential pardons

1.  Evidence from the United States Department of Justice

conspiracy to kill United States nationals – life imprisonment;

conspiracy to murder – life imprisonment;

conspiracy to destroy buildings and property – life imprisonment; and

conspiracy to attack national defence utilities – ten years’ imprisonment. The third count, conspiracy to destroy buildings and property, has a mandatory minimum sentence of twenty years’ imprisonment. Therefore, if convicted on all four counts, the trial judge’s sentencing discretion would range from twenty years’ imprisonment to life.

First, it could be reduced by the sentencing court upon the motion of the Director of the Bureau of Prisons upon a finding that “extraordinary and compelling reasons warrant such a reduction”. This generally involved inmates with terminal illnesses.

Second, if a defendant provided substantial assistance in the investigation of a third party, the Government could move within one year of sentencing for a reduction in the sentence.

Third, if the defendant had been sentenced on the basis of sentencing guidelines which were subsequently lowered by the Sentencing Commission (the judicial body responsible for promulgating the guidelines) then the sentencing court could reduce the term of imprisonment.

Fourth, the defendant could request commutation by the President. While commutation was exercised sparingly, such relief had, on occasion, been granted for serious offences involving national security. For example, in 1999 President Clinton commuted the sentences of thirteen members of the FALN, a violent Puerto Rican nationalist organisation responsible for bombings in the 1970s and 1980s, who had been convicted of conspiracy to commit armed robbery, bomb-making, sedition and other offences.

The letter also underlined the Department of Justice’s view that the federal sentencing guidelines gave the trial judge a broad discretion in sentencing.

2.  Evidence submitted by the applicants

the first applicant, life plus fifty years;

the second applicant, thirty-five years;

the third applicant, life plus thirty years;

the fourth applicant, two life sentences plus ninety-five years;

the fifth applicant, three consecutive life sentences plus ten years;

the sixth applicant, numerous consecutive life sentences.

For the mechanisms for sentence reduction, Ms Barrett noted the following. Compassionate release for the terminally ill or disabled was not automatic and was assessed with reference to additional factors such as the nature of the crime committed and the length of time served. Reduction for substantial assistance to the authorities depended on the initiative of the Government, not the court. Subsequent lowering of the relevant sentencing guidelines could only reduce a sentence if the Sentencing Guidelines Commission made the change retroactive and might not reduce the overall sentence if the person concerned was convicted of other offences and given consecutive sentences. For presidential commutation, the FALN pardons had only been for those who had been convicted of non-violent crimes and had been offered on the condition that the individuals concerned renounce violence. The pardons had nonetheless been very controversial.

B.  Eighth Amendment case-law on “grossly disproportionate” sentences

The first category is a case-by-case approach, where the court considers all the circumstances of the case to determine whether the sentence is excessive. This begins with a “threshold comparison” of the gravity of the offence and the harshness of the penalty. If this leads to an inference of gross disproportionality, the court compares the sentence in question with sentences for the same crime in the same jurisdiction and other jurisdictions. If that analysis confirms the initial inference of gross disproportionality, a violation of the Eighth Amendment is established.

In the second category of cases, the Supreme Court has invoked proportionality to adopt “categorical rules” prohibiting a particular punishment from being applied to certain crimes or certain classes of offenders.

C.  Relevant international and comparative law on life sentences and “grossly disproportionate” sentences

1.  Life sentences in the Contracting States

2.  Council of Europe texts

It noted the view that discretionary release from imprisonment, as with its imposition, was a matter for the courts and not the executive, a view which had led to proposed changes in the procedures for reviewing life imprisonment in Denmark, Finland and Sweden. The report also quoted with approval the CPT’s report on its 2007 visit to Hungary in which it stated:

“[A]s regards “actual lifers”, the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release”.

The report’s conclusion included recommendations that: no category of prisoners should be “stamped” as likely to spend their natural life in prison; no denial of release should ever be final; and not even recalled prisoners should be deprived of hope of release.

3.  The International Criminal Court

4.  The European Union

“if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure...”

5.  The United Kingdom

Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at § 8 of the judgment).

The House of Lords therefore held firstly, that the appellant’s complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention. Lord Bingham added:

“If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights ... as being arbitrary and disproportionate.”

It found that a whole life order did not contravene Article 3 of the Convention because of the possibility of compassionate release by the Secretary of State. It also found that the imposition of an irreducible life sentence would not itself constitute a violation of Article 3 but rather that a potential violation would only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence. The court stated:

“45.  While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies the minimum term to be served by way of punishment and deterrence before the offender’s release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days. For the reasons that we have given, we do not consider that the Strasbourg court has ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, will result in detention that violates article 3. Nor do we consider that it will do so.

46.  It may be that the approach of the Strasbourg court will change. There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible. Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are, in fact irreducible.

...

Under the regime that predated the 2003 Act it was the practice of the Secretary of State to review the position of prisoners serving a whole life tariff after they had served 25 years with a view to reducing the tariff in exceptional circumstances, such as where the prisoner had made exceptional progress whilst in custody. No suggestion was then made that the imposition of a whole life tariff infringed article 3.

...

Under the current regime the Secretary of State has a limited power to release a life prisoner under section 30 of the Crime (Sentences) Act 1997.

...

At present it is the practice of the Secretary of State to use this power sparingly, in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner.

49.  For these reasons, applying the approach of the Strasbourg court in Kafkaris v Cyprus 12 February 2008, we do not consider that a whole life term should be considered as a sentence that is irreducible. Any article 3 challenge where a whole life term has been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contends that, having regard to all the material circumstances, including the time that he has served and the progress made in prison, any further detention will constitute degrading or inhuman treatment.”

6.  Germany

“Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.”

The compatibility of a mandatory sentence of life imprisonment for murder with these provisions was considered by the Federal Constitutional Court in the Life Imprisonment case of 21 June 1977, 45 BVerfGE 187 (an English translation of extracts of the judgment, with commentary, can be found in D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2^nd ed.), Duke University Press, Durham and London, 1997 at pp. 306-313).

The court found that the State could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth. Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given “a concrete and realistically attainable chance” to regain his freedom at some later point in time.

The court underlined that prisons also had a duty to strive towards the re-socialisation of prisoners, to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment. It recognised, however, that, for a criminal who remained a threat to society, the goal of rehabilitation might never be fulfilled; in that case, it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself. The court also found that, subject to these conclusions, life imprisonment for murder was not a senseless or disproportionate punishment.

7.  Canada

8   South Africa

9.  Other jurisdictions

THE LAW

I.  JOINDER OF THE APPLICATIONS

Having regard, however, to the nature of the facts and the substantive issues raised by the second applicant, particularly in relation to his complaint concerning detention at ADX Florence, the Court considers that it is not appropriate to join his application but to treat it separately.

II.  ARTICLE 3 AND THE EXTRADITION

158.  The applicants made two complaints in relation to their proposed extradition. First, they complained that, if convicted in the United States, they would be detained at ADX Florence and, furthermore, would be subjected to special administrative measures (SAMS). They submitted that conditions of detention at ADX Florence (whether alone or in conjunction with SAMS) would violate Article 3 of the Convention. Second, the applicants complained 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.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  The Government

B.  The applicants

C.  The Court’s assessment

“The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion ...”

Similar passages can be found, for example, in Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, BAILII: [2005] ECHR 64, § 67, ECHR 2005 I and Saadi v. Italy [GC], no. 37201/06, BAILII: [2008] ECHR 179, § 125, ECHR 2008 ... where, in reaffirming this test, no distinction was made between torture and other forms of ill-treatment.

- the presence of premeditation (Ireland v. the United Kingdom, cited above, § 167);

- that the measure may have been calculated to break the applicant’s resistance or will (ibid, § 167; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 446, ECHR 2004 VII);

- an intention to debase or humiliate an applicant, or, if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority (Jalloh v. Germany [GC], no. 54810/00, § 82, ECHR 2006 IX; Peers v. Greece, no. 28524/95, § 75, ECHR 2001 III);

- the absence of any specific justification for the measure imposed (Van der Ven v. the Netherlands, no. 50901/99, §§ 61-62, ECHR 2003 II; Iwańczuk v. Poland, no. 25196/94, § 58, 15 November 2001);

- the arbitrary punitive nature of the measure (see Yankov, cited above, § 117);

- the length of time for which the measure was imposed (Ireland v. the United Kingdom, cited above, § 92); and

- the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (Mathew v. the Netherlands, no. 24919/03, §§ 197-205, ECHR 2005 IX).

The Court would observe that all of these elements depend closely upon the facts of the case and so will not be readily established prospectively in an extradition or expulsion context.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ARISING FROM CONDITIONS AT ADX FLORENCE

A.  The admissibility of the fifth and sixth applicants’ complaints

180.  The Court recalls that, in its admissibility decision of 6 July 2010, it declared admissible the first, second and third applicant’s complaints concerning detention at ADX Florence and the imposition of special administrative measures post-trial. It declared inadmissible the fourth applicant’s similar complaint, on the grounds that his medical condition meant he was unlikely to spend any more than a short period of time at ADX Florence (see paragraphs 144 and 145 of the decision).

181.  The Court finds the fifth and sixth applicant’s complaints in relation to ADX Florence and the imposition of special administrative measures post-trial to be indistinguishable from those made by the first and third applicants. Therefore, the fifth and sixth applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. The Court notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

a.  The Government

182.  The Government recalled that the applicants were suspected of terrorism and the Council of Europe Guidelines on human rights and the fight against terrorism had recognised that such persons could be subjected to more severe restrictions than those applied to other prisoners (see paragraph 114 above). The Court had also recognised that prohibitions on contact and communication for security reasons did not of themselves amount to inhuman treatment or punishment. The Government accepted that such restrictions could not amount to complete sensory isolation and could not be imposed indefinitely. However, in assessing the nature of solitary confinement, factors to be taken into account included the physical conditions of confinement and the possibility of visits.

183.  On this basis, and in the light of the evidence provided by the ADX officials and the Department of Justice (see paragraphs 82–96 above), the applicants’ complaints were unsustainable. The physical conditions of detention at ADX were compatible with Article 3 as interpreted by the Court. Even in the highest security units at ADX, there were opportunities for communication with other inmates, recreation, education, religious expression and engagment with the outside world. The mental and social needs of inmates were appropriately catered for and inmates could not be described as being detained in conditions that amounted to sensory isolation, still less indefinite solitary confinement, whether total or relative. The evidence, particularly the Department of Justice’s replies to the Rapporteur’s questions, showed that there were practical and effective opportunities to enter the step down and special security unit programs, which could ultimately lead to transfer to another prison. Moreover, initial placement at ADX was determined by reference to stated, objective criteria, with full procedural protections through the Federal Bureau of Prisons’ Administrative Remedy Program.

184.  The Bureau of Prisons had shown itself willing and able to respond to requests for change in conditions, not least the relaxation of conditions in H Unit to allow phase three inmates to eat together, the expansion of Arabic language books in the library, and the discontinuation of strip searches before inmates could leave their cells. All of these factors meant conditions at ADX Florence were distinguishable from G.B. v. Bulgaria, no. 42346/98, 11 March 2004 and Peers v. Greece, no. 28524/95, ECHR 2001 III and, in fact, were much less severe than in Ramirez Sanchez v. France [GC], no. 59450/00, ECHR 2006 IX, where the Court had found no violation of Article 3.

185.  Finally, inmates had recourse to the courts to challenge their conditions of detention (see the summary of relevant Eighth Amendment jurisprudence set out at paragraph 105–110 above). A detailed examination of the federal courts’ consideration of the challenges brought by ADX inmates, showed that the allegations made in respect of ADX were unfounded, and that the United States’ courts applied a legal analysis which was in reality no different from that applied by this Court. Moreover, these decisions showed that the United States were both able and willing to protect the interests of ADX inmates, assess their claims and uphold them where appopriate. The Government also stated that, within the materials provided by the applicants, the Court could only properly place reliance on the decisions of the United States courts, rather than the untested statements of inmates at ADX or reports based upon them. Among these decisions, the Government placed particular emphasis on the conclusions reached by the Magistrate Judge in Rezaq (summarised at paragraph 112 above). They also continued to rely on the accuracy, fairness and good faith of the declarations which had been provided to the Court by the Federal Bureau of Prisons officials.

b.  The applicants

i.  The first, third, fifth and sixth applicants

The first applicant had been diagnosed with post-traumatic stress disorder, which had worsened in the prison unit where he was detained.

The third applicant had been diagnosed with Asperger syndrome, recurrent depressive disorder (with his current episode assessed as “mild” as opposed to previous, severe depressive episodes), and obsessive compulsive disorder in conjunction with other anxiety symptoms. The latter had worsened in detention, though his depressive symptoms had improved. Before his Asperger syndrome had been diagnosed in June 2009, a psychiatrist had predicted a high risk of serious depression leading to suicide if the third applicant were to be extradited and placed in solitary confinement for a long period. The third applicant also submitted a statement prepared by an American criminologist, detailing the heightened difficulties experienced by those with Asperger syndrome in federal prisons and the absence of proper facilities within the Bureau of Prisons to treat the condition.

The fifth applicant had a recurrent depressive disorder and had suffered several mental breakdowns while in detention in the United Kingdom. His most recent psychiatrist’s report assessed his current episode as moderate to severe. The recommended treatment was medication with psychological treatment and support, including productive activity, opportunities for interaction with others and exercise.

ii.  The fourth applicant

c.  The third party interveners

2.  The Court’s assessment

a.  General principles

i.  Article 3 and detention

ii.  Solitary confinement

iii.  Recreation and outdoor exercise in prison

iv   Detention and mental health

b.  Application of the general principles to the facts of the case

i.  The case of the fourth applicant

ii.  The cases of the first, third, fifth and sixth applicants.

It is clear from the evidence submitted by both parties that the purpose of the regime in those units is to prevent all physical contact between an inmate and others, and to minimise social interaction between inmates and staff. This does not mean, however, that inmates are kept in complete sensory isolation or total social isolation. Although inmates are confined to their cells for the vast majority of the time, a great deal of in-cell stimulation is provided through television and radio channels, frequent newspapers, books, hobby and craft items and educational programming. The range of activities and services provided goes beyond what is provided in many prisons in Europe. Where there are limitations on the services provided, for example restrictions on group prayer, these are necessary and inevitable consequences of imprisonment (see, mutatis mutandis, Dickson v. the United Kingdom [GC], no. 44362/04, § 68, ECHR 2007 V). The restrictions are, for the most part, reasonably related to the purported objectives of the ADX regime (cf. Csüllog, cited above, concerning unnecessary restrictions, such as a prohibition on tea-bags and books).

The Court also observes that the services provided by ADX are supplemented by regular telephone calls and social visits and by the ability of inmates, even those under special administrative measures, to correspond with their families. The extent of those opportunities would be of considerable assistance to the applicants who would, by their extradition, be separated from their families in the United Kingdom.

The Court finds that there are adequate opportunities for interaction between inmates. While inmates are in their cells talking to other inmates is possible, admittedly only through the ventilation system. During recreation periods inmates can communicate without impediment. Indeed, as Mr Milusnic indicates, most inmates spend their recreation periods talking (see his declaration at paragraph 85 above).

In addition, although it is of some concern that outdoor recreation can be withdrawn for periods of three months for seemingly minor disciplinary infractions, the Court places greater emphasis on the fact that, according to Mr Milusnic, inmates’ recreation has only been cancelled once for security reasons and that the periods of recreation have been increased from five to ten hours per week.

All of these factors mean that the isolation experienced by ADX inmates is partial and relative (see Ramirez Sanchez, cited above, § 135).

IV.  ALLEGED VIOLATION OF ARTICLE 3 ARISING FROM THE APPLICANTS’ POSSIBLE SENTENCES

A.  The admissibility of the fifth and sixth applicants’ complaints

225.  The first, third and fourth applicants’ complaints under this head were declared admissible by the Court in its decision of 6 July 2010. The fifth and sixth applicants’ complaints are indistinguishable from those made by the first, third and fourth applicants; those complaints are not, therefore, manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. The Court notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

a.  The Goverment

226.  The Government relied on the Court’s rulings in Kafkaris and Léger v. France, no. 19324/02, ECHR 2006 ..., and the United Kingdom court’s rulings in Wellington and Bieber (see paragraphs 64–72 and 144 above). In particular, they submitted that, in Wellington, the House of Lords had been correct to find that, while an irreducible life sentence might raise an issue under Article 3, it would not violate Article 3 at the time of its imposition unless it was grossly or clearly disproportionate.

227.  The Government further submitted that, unless a life sentence was grossly or clearly disproportionate, an irreducible life sentence would only violate Article 3 if the prisoner’s further imprisonment could no longer be justified for the purposes of punishment and deterrence (see Wellington, cited above). No court could determine at the outset of the sentence when that point would be reached and, in a particular case, it might never be reached at all. Therefore, in the extradition context, unless a life sentence was grossly or clearly disproportionate, its compatibility with Article 3 could not be determined in advance of extradition.

228.  In the present cases, none of the six applicants’ sentences were grossly disproportionate and all the sentences were reducible, as required by Kafkaris.The Government referred to the four mechanisms for sentence reduction outlined in the Department of Justice’s letter of 26 November 2010 (see paragraph 130 above): substantial assistance to the authorities in the investigation of a third party, recommendation for compassionate release by the Director of the Bureau of Prisons, commutation of the sentence by the President or pardon, reduction of the sentence based on the the sentencing guidelines which were subsequently lowered. In the Government’s submission, the first three mechanisms separately and all four mechanisms cumulatively, were more than sufficient to establish that any life sentence imposed on the applicants would be both de jure and de facto reducible.

229.  The Government observed that the first, third, fourth and fifth applicants only faced the possibility of discretionary life sentences. In this respect, the Court of Appeal in Bieber had correctly concluded that this Court would not find a violation of Article 3 if an irreducible life sentence was deliberately imposed by a judge, when that judge considered that the offence was so serious that punishment and deterrence required the offender to spend the rest of his days in prison (see paragraph 45 of Bieber, quoted at paragraph 144 above). In the Government’s view, this was especially so when a discretionary life sentence by its very nature avoided the risk of arbitrariness of mandatory life sentences. Accordingly, given the serious nature of the allegations made against these applicants, and the full range of protections available in the United States (including the Eighth Amendment’s protection from grossly disproportionate sentences), there were no substantial grounds for believing that the imposition of discretionary life sentences would violate Article 3.

230.  For the sixth applicant, the Government submitted that, as a general principle, a mandatory and irreducible life sentence would not violate Article 3, especially if it were imposed on an adult offender following conviction for an offence of the utmost severity. Under United States federal law a mandatory life sentence was reserved for a narrow category of offenders and the most serious criminal conduct. Given, therefore, that any mandatory life sentence (even if, for present purposes, it were irreducible) would only be imposed on the sixth applicant if he were convicted of participation in an act which had caused a massive loss of life, such a sentence would not be grossly disproportionate.

b.  The applicants

2.  The Court’s assessment

a.  General considerations

Support for this proposition can also be found in the comparative materials before the Court. Those materials demonstrate that “gross disproportionality” is a widely accepted and applied test for determining when a sentence will amount to inhuman or degrading punishment, or equivalent constitutional norms (see the Eighth Amendment case-law summarised at paragraphs 134–136 above, the judgments of the Supreme Court of Canada at paragraph 148 above, and the further comparative materials set out at paragraphs 151– 156 above).

However, in the Court’s view, these considerations do not mean that a mandatory sentence of life imprisonment without the possibility of parole is per se incompatible with the Convention, although the trend in Europe is clearly against such sentences (see, for example, the comparative study summarised at paragraph 138 above). Instead, these considerations mean that such a sentence is much more likely to be grossly disproportionate than any of the other types of life sentence, especially if it requires the sentencing court to disregard mitigating factors which are generally understood as indicating a significantly lower level of culpability on the part of the defendant, such as youth or severe mental health problems (see, for instance, Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I at paragraphs 53 and 61 respectively and the Canadian case of Burns, at paragraph 93, quoted at paragraph 74 above).

The Court concludes therefore that, in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure (Kafkaris, cited above).

b.  The present cases

First, the Court observes that it is by no means certain that, if extradited, these applicants would be convicted of the charges against them. If they are, it is also by no means certain that discretionary life sentences would be imposed, particularly when none of the charges they face carries a mandatory minimum sentence of life imprisonment. Nonetheless, the Court considers that it is appropriate to proceed on the basis that discretionary life sentences are possible.

Second, it is necessary to consider whether such sentences would be grossly disproportionate. In this connection the Court observes that, while the offences with which these applicants are charged vary, all of them concern involvement in or support for terrorism. Given the seriousness of terrorism offences (particularly those carried out or inspired by Al-Qaeda) and the fact that the life sentences could only be imposed on these applicants after the trial judge considered all relevant aggravating and mitigating factors, the Court considers that discretionary life sentences would not be grossly disproportionate in their cases.

Third, as the Court has observed, in respect of a discretionary life sentence, an Article 3 issue will only arise when it can be shown: (i) that the applicant’s continued incarceration no longer serves any legitimate penological purpose; and (ii) the sentence is irreducible de facto and de iure. Given that none of these applicants has been convicted, still less has begun serving any sentences which might be imposed upon conviction (cf. Kafkaris and Léger, cited above, and Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010), the Court considers that they have not shown that, upon extradition, their incarceration in the United States would not serve any legitimate penological purpose. Indeed, if they are convicted and given discretionary life sentences, it may well be that, as the Government have submitted, the point at which continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the United States’ authorities would refuse to avail themselves of the mechanisms which are available to reduce their sentences (see paragraph 130 above and Kafkaris, cited above, § 98).

Accordingly, the Court finds that these applicants have not demonstrated that there would be a real risk of treatment reaching the threshold of Article 3 as a result of their sentences if they were extradited to the United States. The Court therefore finds no violation of Article 3 in their cases.

V.  THE FIFTH AND SIXTH APPLICANTS’ REMAINING COMPLAINTS

A.  The remaining complaints

245.  In their initial application to the Court, the fifth and sixth applicants made ten further complaints.

Second, they complained that the diplomatic assurances were not sufficient to remove the risk that they would be subjected to extraordinary rendition.

Third, relying on Article 2 of the Convention the fifth applicant argued that, as a result of his recurrent depressive disorder, his extradition would carry an extremely high risk that he would commit suicide.

Fourth, the fifth and sixth applicants complained that there was a real risk that they would be subjected to “special administrative measures” pre-trial in violation of Articles 3, 6, 8 and 14.

Fifth, the applicants alleged that there would be a real risk of a flagrant denial of justice in violation of Article 6 § 1 of the Convention because the extensive publicity which the United States Government’s counter-terrorism efforts had attracted would prejudice any jury, particularly when they were to stand trial in New York. This would be exacerbated by the public controversy surrounding the President’s decision to transfer other high profile terrorist suspects such as Khalik Sheikh Mohammed and Ahmed Ahmad Khalfan Ghailani, from Guantánamo to New York for trial.

Sixth, also under Article 6, the applicants argued that the case against them had been significantly weakened as new evidence had emerged in the course of their extradition proceedings. Notwithstanding this new evidence, their trial would be prejudiced by the fact that any jury would hear evidence linking them to a conspiracy to murder which involved Osama bin Laden and Al Qaeda.

Seventh, the applicants argued that further prejudice would arise if CS/1, Mr Al-Fadl, were to give evidence when it was not clear what pressure had been put on him or inducements given to him by the prosecuting authorities in order to secure his testimony.

Eighth, the sixth applicant alleged that any jury in his case would be further prejudiced by the fact that he had been designated as a global terrorist by the President of the United States.

Ninth, under Article 8 the applicants alleged that there would be a disproportionate interference with their private and family life in the United Kingdom if they were to be extradited. The first applicant relies on the fact that his extradition would result in permanent separation from his wife, children and grandchildren, who were all British residents.

Tenth, the applicants alleged that there would be a violation of Article 13 of the Convention if they were extradited as they would have no effective remedy for the violations of the Convention they would suffer in the United States.

B.  The Court’s assessment

In respect of the former, the Court notes that the first and third applicants complained that the imposition of special administrative measures pre-trial would have an adverse effect on their mental health. Insofar as they related to their possible conditions of pre-trial detention, the Court rejected those complaints as manifestly ill-founded. It found that it had not been suggested that, prior to extradition, the United Kingdom authorities would not advise their United States counterparts of the applicants’ mental health conditions or that, upon extradition, the United States’ authorities would fail to provide appropriate psychiatric care to them. The Court also noted that it had not been argued that psychiatric care in United States federal prisons was substantially different to that provided at HMP Long Lartin (where the first and third applicants were being detained). There was also no reason to suggest that the United States’ authorities would ignore any changes in the applicants’ conditions or that, if they did present any suicidal tendencies or symptoms of self-harm, they would refuse to alter the conditions of their detention to alleviate any risk to them.

The Court finds that similar considerations must apply in respect of the fifth applicant’s complaint concerning his pre-trial detention. Accordingly, insofar as it relates to the risk of suicide before his trial would take place, the complaint must be rejected as manifestly ill-founded. Insofar as the complaint relates to the risk of suicide in post-trial detention at ADX Florence, the Court finds that no separate issue arises from the Article 3 complaint considered above.

VI.  THE SECOND APPLICANT

VII.  RULE 39 OF THE RULES OF COURT

257.  The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.

258.  It considers that the indications made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

2.  Adjourns its examination of the application brought by the second applicant;

3.  Declares admissible the fifth and sixth applicants’ complaints concerning detention at ADX Florence, the imposition of special administrative measures post-trial, and the length of their possible sentences, and the remainder of their applications inadmissible;

4.  Holds that there would be no violation of Article 3 of the Convention as a result of conditions at ADX Florence and the imposition of special administrative measures post-trial if the first, third, fifth and sixth applicants were extradited to the United States;

5.  Holds that there would be no violation of Article 3 of the Convention as a result of the length of their possible sentences if the first, third, fourth, fifth and sixth applicants were extradited to the United States;

Done in English, and notified in writing on 10 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Lech Garlicki
Registrar President