A Nasty Judgment from the European Court of Human Rights in a refoulement case

Yesterday, the European Court of Human Rights dismissed an application by two individuals, Harkins and Edwards, who were resisting extradition to the United States. The issue of the death penalty was relatively secondary, because diplomatic assurances had been given by the Americans authorities and the Chamber considered these to be satisfactory, enjoying a presumption of good faith.

The heart of the case was the threat that the two men would face a mandatory sentence of life imprisonment without any hope of release on parole if convicted upon return to the United States. In the trade, this is called ‘LWOP’ (‘life without parole’).

Agreeing that this was a very plausible outcome, particularly in the Harkins case, the unanimous Chamber said it was

prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of Convention (Léger, cited above, § 72), a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that “gross disproportionality” is a strict test and, as the Supreme Court of Canada observed in Latimer (see paragraph 73 above), it will only be on “rare and unique occasions” that the test will be met. (para. 133).

According to the Chamber,

193. … the Court notes that he faces a mandatory sentence of life imprisonment without parole, which, as it has indicated, requires greater scrutiny than other forms of life sentence. However, the Court is not persuaded that such a sentence would be grossly disproportionate in his case. Although he was twenty years of age at the time of the alleged offence, he was not a minor. Article 37(a) of the United Nations Convention on the Rights of the Child demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is under the age of eighteen. It would support the view that a sentence imposed on such a defendant would be grossly disproportionate. However, the Court is not persuaded that Article 37(a) demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is over the age of eighteen. Equally, although the applicant has provided a psychiatrist’s report showing him to be suffering from mental health problems, as the Government have observed, that report stops short of diagnosing the applicant with a psychiatric disorder. Therefore, while the Court accepts that the applicant has some mitigating factors, it is not persuaded that the applicant possesses mitigating factors which would indicate a significantly lower level of culpability on his part.

The Court accepts that the sentence which the first applicant faces would be unlikely to be passed for a similar offence committed in the United Kingdom, particularly when there is no felony murder rule in England and Wales. The Court also notes that the Supreme Court of Canada, in Martineau, has found that the rule is contrary to the fundamental principles of justice. Therefore, the Court would not exclude that a sentence imposed after conviction under the felony murder rule could, in a sufficiently exceptional case, amount to a grossly disproportionate sentence. This would be particularly so if the sentence was one of mandatory life imprisonment without parole but the facts of the case involved a killing in respect of which there was no real culpability on the part of the defendant.

140.  Second, as the Court has stated, an Article 3 issue will only arise when it can be shown: (i) that the first applicant’s continued incarceration no longer serves any legitimate penological purpose; and (ii) his sentence is irreducible de facto and de iure. The first applicant has not yet been convicted, still less begun serving his sentence (cf. Kafkaris and Léger, cited above, and Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010). The Court therefore considers that he has not shown that, upon extradition, his incarceration in the United States would not serve any legitimate penological purpose. Indeed, if he is convicted and given a mandatory life sentence, it may well be that, as the Government have submitted, the point at which his continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the Governor of Florida and the Board of Executive Clemency would refuse to avail themselves of their power to commute the applicant’s sentence (see paragraph 52 above and Kafkaris, cited above, § 98).

Accordingly, the Court does not find that the first applicant has demonstrated that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition.

In a general sense, the Court took the view that issues of disproportionate sentencing do not arise at the moment the sentence is imposed, but much later, when it can be shown that there is no longer any valid penological purpose to continued detention. The problem in an extradition case is that the European Court of Human Rights will no longer be available once the applicants are back in the United States.

The decision includes a discussion of the distinction between inhuman treatment and torture. The Court revisits this old issue, and finds that in the context of extraterritorial application of the Convention the distinction is not of much significance.

The right-wing press in the United Kingdom are ecstatic about this decision, a change from the general pattern of harsh attacks on the European Court