A Chamber of the European Court of Human Rights today rejected an application by a number of prisoners being held in the United Kingdom who challenged their extradition to the United States. Several important issues are addressed in the decision, which concerns article 3 of the European Convention on Human Rights: the prohibition of torture and inhuman or degrading treatment or punishment. The decision, in Babar Ahmad et al. v. UK, is the latest in a series of decisions on the principle of non-refoulement, which prevents a party to the European Convention on Human Rights from sending an individual to another state where there is a real risk of torture or inhuman or degrading treatment or punishment being inflicted. In perhaps the Court’s most celebrated judgment, Soering v. UK, of 7 July 1989, the Court refused to extradite an individual to the United States because of concerns he would be subject to the “death row phenomenon”, defined as a protracted wait in dire prison conditions prior to execution.
Today’s judgment seems to be a retreat from that great day. For the moment, I will comment on only one aspect of the ruling concerning mandatory sentences of life imprisonment without the possibility of parole. Some of the applicants had argued that if extradited to the United States and convicted, they would be subject to a mandatory term of life imprisonment without any possibility of parole. The Court did not think this was necessarily a breach of the European Convention:
242. For the third sentence, a mandatory sentence of life imprisonment without the possibility of parole, the Court considers that greater scrutiny is required. The vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating factors or special circumstances before the sentencing court (see, for instance, Reyes and de Boucherville at paragraphs 151 and 152 above). This is no truer than for a mandatory sentence of life imprisonment without the possibility of parole, a sentence which, in effect, condemns a defendant to spend the rest of his days in prison, irrespective of his level of culpability and irrespective of whether the sentencing court considers the sentence to be justified.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).
The study to which the Court referred, by South African academic Dirk Van Zyl Smit, considered the sentencing practice within Europe. It summarized his study as follows:
138. In his comparative study entitled “Outlawing Irreducible Life Sentences: Europe on the Brink?”, 23: 1 Federal Sentencing Reporter Vol 23, No 1 (October 2010), Professor Van Zyl Smit concluded that the majority of European countries do not have irreducible life sentences, and some, including Portugal, Norway and Spain, do not have life sentences at all. In Austria, Belgium, Czech Republic, Estonia, Germany, Lithuania, Luxembourg, Poland, Romania, Russia, Slovakia, Slovenia, Switzerland and Turkey, prisoners sentenced to life imprisonment have fixed periods after which release is considered. In France three such prisoners have no minimum period but it appears they can be considered for release after 30 years. In Switzerland there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous, although the provisions have not been used. The study concludes that only the Netherlands and England and Wales have irreducible life sentences.
Today’s judgment sends a fearful signal to extremists in national legislatures throughout Europe, who may take it as a blessing for harsher sentencing policies.
Of note is a reference by the Court to article 77 of the Rome Statute of the International Criminal Court (see para. 140), which allows a life sentence in exceptional cases, but with a requirement of review for parole after 25 years’ detention.