EUROPEAN COURT OF HUMAN RIGHTS

EUROPEAN COURT OF HUMAN RIGHTS COUR EUROPEENNE DES DROITS DE L'HOMME 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 FINAL 24/09/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. .a4 EFTA00031733 EFTA00031734 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 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 Th6r Bjorgvinsson, Nicolas Bratza, Paivi Hirvelg, George Nicolaou, Ledi Bianku, Nebojga Vuoinie, 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 1. The case originated in five applications (nos. 24027/07, 11949/08 36742/08, 66911/09 and 67354/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). 2. The first application was lodged on 10 June 2007 by two British nationals, Mr Babar Ahmad ("the first applicant") and Mr Haroon Rashid Aswat ("the second applicant"). They were both born in 1974. The second application was lodged on 5 March 2008 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 I August 2008 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 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. 3. The first, second, third and fifth applicants were represented by Ms G. Peirce, a lawyer practising in London with Birnberg Peirce & Partners, assisted by Mr B. Cooper, counsel. The fourth applicant was represented by Ms M. Arani, a lawyer practising in Middlesex, assisted by Mr A. Jones QC and Mr B. Brandon, counsel. The sixth applicant was represented by Mr A. Raja, a lawyer practising in London with Quist EFTA00031735 2 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT Solicitors, assisted by Mr J. Jones, counsel. The Government were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 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. 7. Further to the Court's admissibility decision of 6 July 2010 and the President's decision of 3 September 2010, all six applicants and the Government filed observations (Rules 54 § 2 (b) and 59 § I). In addition, third-party comments were received from the non-governmental organisations the American Civil Liberties Union, the National Litigation Project at Yale Law School, Interights and Reprieve, which had been given leave by the President of the Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to those comments (Rule 44 § 5). EFTA00031736 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 3 THE FACTS I. THE CIRCUMSTANCES OF THE CASES A. The United States indictments 8. The applicants have been indicted on various charges of terrorism in the United States of America. They are the subject of three separate sets of criminal proceedings in the United States federal courts. The first set concerns the first applicant, Mr Ahmad, and the third applicant, Mr Ahsan. The second set of proceedings concerns the second applicant, Mr Aswat, and the fourth applicant, Abu Hamza. The third set of proceedings concerns the fifth applicant, Mr Bary, and the sixth applicant, Mr Al Fawwaz. 9. The details of each indictment are set out below. On the basis of each indictment, the United States Government requested each applicant's extradition from the United Kingdom. Each applicant then contested his proposed extradition in separate proceedings in the English courts. I. The indictment concerning the first and third applicants 10. The indictment against the first applicant was returned by a Federal Grand Jury sitting in Connecticut on 6 October 2004. It alleges the commission of four felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country; and money laundering. On 28 June 2006, a similar indictment was returned against the third applicant, save that the charge of money laundering was not included. For both indictments, the material support is alleged to have been provided through a series of websites, one of whose servers was based in Connecticut. The charge of conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country is based on two allegations: first, that the websites exhorted Muslims to travel to Chechnya and Afghanistan to defend those places; and second, that classified US Navy plans relating to a US naval battle group operating in the Straits of Hormuz in the Persian Gulf had been sent to the website. The plans are alleged to have discussed the battle group's vulnerability to terrorist attack. 2. The indictment concerning the second and fourth applicants 11. The indictment against the fourth applicant was returned on 19 April 2004 by a Federal Grand Jury sitting in the Southern District of EFTA00031737 4 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT New York. It charges him with eleven different counts of criminal conduct. These cover three sets of facts. 12. The first group of charges relates to the taking of sixteen hostages in Yemen in December 1998, four of whom died during a rescue mission conducted by Yemeni forces. The indictment charges the fourth applicant with conspiracy to take hostages and hostage taking and relates principally to his contact with the leader of the hostage takers, Abu Al-Hassan, before and during the events in question. 13. The second group of charges relates to the conduct of violent jihad in Afghanistan in 2001. The indictment alleges that the fourth applicant provided material and financial assistance to his followers and arranged for them to meet Taliban commanders in Afghanistan. In this respect, four counts of the indictment charge him with providing and concealing material support and resources to terrorists and a foreign terrorist organisation and conspiracy thereto. A further count charges him with conspiracy to supply goods and services to the Taliban. 14. The third group of charges relates to a conspiracy to establish a jihad training camp in Bly, Oregon between June 2000 and December 2001. Two counts charge the fourth applicant with providing and concealing material support and resources to terrorists and providing material support and resources to a foreign terrorist organisation (Al Qaeda); a further two counts charge him with conspiracy to the main two counts. 15. On 12 September 2005, a superseding indictment was returned which named and indicted the second applicant as the fourth applicant's alleged co-conspirator in respect of the Bly, Oregon charges (thus charging the second applicant with the same four counts as those faced by the fourth applicant in respect of the Bly, Oregon conspiracy). On 6 February 2006 a second superseding indictment was returned, which indicted a third man, Oussama Abdullah Kassir, as a co-conspirator in respect of the Bly, Oregon charges. 16. Mr Kassir was extradited to the United States from the Czech Republic in September 2007. On 12 May 2009, Mr Kassir was convicted on five counts relating to the Bly, Oregon jihad camp conspiracy. He was also convicted of a further six counts relating to the operation of terrorist websites. On 15 September 2009, after submissions from Mr Kassir and his defence counsel, the trial judge sentenced Mr Kassir to the maximum permissible sentence on each count. As a life sentence was the maximum permissible sentence on two of the counts, Mr Kassir had effectively been sentenced to a term of life imprisonment. 3. The indictment concerning the fifth and sixth applicants 17. In 1999 a Federal Grand Jury sitting in the Southern District of New York returned an indictment against Osama bin Laden and twenty other individuals, including the applicants, inter alia alleging various degrees of EFTA00031738 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 5 involvement in or support for the bombing of the United States embassies in Nairobi and Dar es Salaam in 1998. 18. The fifth applicant is charged with four counts: conspiracy to kill United States nationals, conspiracy to murder, conspiracy to destroy buildings and property, and conspiracy to attack national defence utilities. 19. The sixth applicant is charged with two hundred and eighty-five counts of criminal conduct, including over two hundred and sixty-nine counts of murder. B. The applicants' extradition proceedings in the United Kingdom I. Extradition proceedings against the first applicant 20. The first applicant was arrested in London on 5 August 2004. On 23 March 2005, the United States Embassy in London issued Diplomatic Note No. 25. Where relevant, the note provides: "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..." 21. Similar Diplomatic Notes were provided in respect of the other applicants in the course of their respective extradition proceedings. 22. At the extradition hearing before the Senior District Judge, the first applicant argued, inter alia, that, notwithstanding the Diplomatic Note, the risk of the death penalty being imposed remained since he could be tried on a superseding indictment. He further argued that he remained at risk of being designated as an "enemy combatant" pursuant to United States Military Order No. 1 and that he remained at risk of extraordinary rendition to a third country. He also argued that there was a substantial risk that he would be subjected to special administrative measures whilst in detention in a federal prison, which could involve, among other measures, solitary confinement in violation of Article 3 and restrictions on communication with lawyers in violation of Article 6 of the Convention. EFTA00031739 6 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 23. In a decision given on 17 May 2005, the Senior District Judge ruled that the extradition could proceed and that, inter alia, the first applicant's extradition would not be incompatible with his rights under the Convention. The Senior District Judge found that, on the basis of the Diplomatic Note, there was no risk that the death penalty would be imposed, that the applicant would be designated as an enemy combatant, or subjected to extraordinary rendition. The Senior District Judge found the application of special administrative measures to be the greatest ground for concern but concluded that, having regard to the safeguards accompanying such measures, there would be no breach of the applicant's Convention rights. 24. The Senior District Judge concluded as follows: "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. 25. On 15 November 2005, the Secretary of State (Mr Charles Clarke) ordered the first applicant's extradition. The first applicant appealed to the High Court (see paragraphs 29 et seq. below). 2. Extradition proceedings against the second applicant 26. On 7 August 2005 the second applicant was arrested in the United Kingdom, also on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003, following a request for his provisional arrest by the United States. 27. The Senior District Judge gave his decision in the second applicant's case on 5 January 2006. He concluded that none of the bars to extradition applied, and sent the case to the Secretary of State for his decision as to whether the second applicant should be extradited. 28. On 1 March 2006, the Secretary of State ordered his extradition. The second applicant appealed to the High Court. 3. The first and second applicants' appeals to the High Court 29. The first and second applicants' appeals were heard together. In its judgment of 30 November 2006, the High Court rejected their appeals. The High Court found that, according to the case-law of this Court, solitary confinement did not in itself constitute inhuman or degrading treatment. Applying that approach, the evidence before it — which included an affidavit from a United States Department of Justice official outlining the operation of special administrative measures — did not "begin to establish a concrete case under Article 3". EFTA00031740 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 7 30. The first and second applicants applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 6 June 2007. 4. Extradition proceedings against the third applicant 31. The United States formally requested the extradition of the third applicant on 15 September 2006. The extradition hearing started on 20 November 2006 on which date the Senior District Judge determined that the third applicant was accused of offences for which he could be extradited. The case was then adjourned for evidence and argument, inter alia as to whether the third applicant's extradition would be compatible with his Convention rights. The hearing resumed on 19 March 2007. By now bound by the High Court's judgment in respect of the first and second applicants, the Senior District Judge found that the third applicant's extradition would be compatible with the Convention. He accordingly sent the case to the Secretary of State for his decision as to whether the third applicant should be extradited. 32. On 14 June 2007, the Secretary of State (Dr John Reid) ordered that the extradition could proceed. The third applicant appealed against this decision to the High Court and also sought judicial review of the alleged failure of the Director of Public Prosecutions for England and Wales ("the DPP") to consider whether he should instead be tried in the United Kingdom. He relied on guidance agreed between the Attorney General of the United States and his United Kingdom counterparts for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States (see paragraph 63 below). 33. On 10 April 2008 the High Court dismissed the third applicant's human rights appeal, relying on its ruling in respect of the first and second applicants. In the same judgment, it also dismissed his application for judicial review, finding that the guidance had no application to the third applicant's case. The guidance only applied to cases where there had been an investigation of the case in the United Kingdom and the DPP had been seized of the case as prosecutor. 34. On 14 May 2008 the High Court refused to certify a point of law of general public importance which ought to be considered by the House of Lords and also refused leave to appeal to the House of Lords. 5. Extradition proceedings against the fourth applicant 35. The United States requested the fourth applicant's extradition on 21 May 2004. He was arrested in London on 5 August 2004. 36. The extradition proceedings were adjourned when he was convicted of offences in the United Kingdom and sentenced to seven years' imprisonment (see Mustafa (Abu Hama) v. the United Kingdom (no. 1) EFTA00031741 8 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT (dec.), no. 31411/07, 18 January 2011). The extradition proceedings resumed when the criminal appeals process was concluded. a. The District Court proceedings 37. When the case came before the Senior District Judge for his decision as to whether the extradition could proceed, the fourth applicant argued, inter alia, that his extradition would give rise to a real risk of a violation of Article 3 of the Convention since he would be likely to be detained in a "supermax" detention facility such as the United States Penitentiary, Administrative Maximum, Florence, Colorado ("ADX Florence"). In this connection, he also relied on his poor health, specifically his type-two diabetes, his high blood pressure, the loss of sight in his right eye and poor vision in his left, the amputation of both his forearms (which frequently led to infections through abrasions), psoriasis on much of his body, hyperhydrosis (excessive sweating). A violation of Article 3, he claimed, would also result from the imposition of special administrative measures. 38. The Senior District Judge, in his ruling of 15 November 2007, rejected all these submissions. In respect of detention at ADX Florence the Senior District Judge found that the fourth applicant's poor health and disabilities would be considered and, at worst, he would only be detained there for a relatively short period of time. The Senior District Judge was also not satisfied that special administrative measures would be applied to the fourth applicant but even if they were, he was bound by the ruling of the High Court in respect of the first and second applicants. Having concluded that none of the bars to extradition applied, the Senior District Judge sent the case to the Secretary of State (Ms Jacqui Smith) for her decision as to whether the fourth applicant should be extradited. She ordered his extradition on 7 February 2008. The fourth applicant appealed to the High Court against the Secretary of State's decision and against the decision of the Senior District Judge. b. The High Court proceedings 39. Before the High Court, the fourth applicant again relied on his submission that conditions of detention at ADX Florence would not comply with Article 3. He also argued that the length of the possible sentence he faced in the United States would be contrary to Article 3 of the Convention. 40. The High Court gave its judgment on 20 June 2008, dismissing the fourth applicant's appeal. In relation to Article 3, the High Court found that, if convicted, the fourth applicant would be sentenced to very lengthy terms of imprisonment and that, in all likelihood, a life sentence would be imposed. It found that this, of itself, would not constitute a breach of Article 3. On the question of the compatibility of detention at ADX Florence with Article 3, the High Court relied in particular on the understanding of the prison warden, Mr Robert Wiley, to the effect that if, after a full medical EFTA00031742 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 9 evaluation, it was determined that the fourth applicant could not manage his activities of daily living, it would be highly unlikely that he would be placed at ADX Florence rather than at a medical centre. Accordingly, there was no risk of a violation of Article 3 on this ground. However, the High Court added: "[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." 41. The fourth applicant then applied to the High Court for a certificate of points of law of general public importance and for leave to appeal to the House of Lords. On 23 July 2008, the High Court refused both applications. 6. Extradition proceedings against the fifth and sixth applicants 42. The United States Government requested the fifth and sixth applicants' extradition from the United Kingdom in July 1999 and September 1998 respectively. a. The initial extradition proceedings 43. At his committal hearing before the District Court, the sixth applicant contended that extradition was only permitted within the terms of the 1972 USA-UK Extradition Treaty for offences committed within the jurisdiction of the requesting State, and not when that State exercised jurisdiction over extra-territorial offences. He further argued that there was "insufficient evidence" to prove a prima facie case, which was a requirement for extradition under the Treaty. As part of that submission, he sought to have excluded two anonymous witness statements, which had been provided by two informants, "CS/1" and "CS/2", and which the United States Government relied upon as part of their case against him. It was later revealed that CS/1 was a Mr Al-Fadl who had given evidence against the certain of the applicants' co-defendants during their trial in the United States. EFTA00031743 10 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 44. In his ruling of 8 September 1999, the District Judge rejected these submissions. He considered that the proper construction of the Treaty did not prevent the exercise of jurisdiction over extra-territorial offences. The District Judge was also satisfied that there were real grounds for fear if the identities of CS/1 and CS/2 were revealed. Thus, their anonymous witness statements could be admitted as evidence of a prima facie case. He further found that there was a case for the sixth applicant to answer. 45. The sixth applicant appealed to the High Court by way of an application for a writ of habeas corpus. The application was dismissed on 30 November 2000. The High Court held that it was necessary to show that the crime in respect of which extradition was sought was alleged to have been committed within the actual territory of the United States. The High Court was, however, satisfied that three overt acts alleged by the United States of America could be relied on to found territorial jurisdiction in the United States, namely (a) the setting up and operating of a secure telephone line in the United States by the sixth applicant through an organisation called MCI; (b) the purchase by the sixth applicant of a satellite phone system in the United States and (c) the issuing, in pursuance of the conspiracy of fatwas and jihads, allegedly prepared with the concurrence of the sixth applicant in the United States and elsewhere. The High Court also found that the District Judge had not erred in admitting the evidence of CS/1 or in finding that there was a prima facie case against the sixth applicant. It did not consider it necessary reach any conclusions in respect of CS/2, judging CS/1's evidence to be "far the most significant". 46. While the sixth applicant's appeal was pending before the High Court, a committal hearing before the District Court was held in respect of the fifth applicant. The District Judge gave his ruling on 25 April 2000 in which he reaffirmed the rulings he had made in respect of the sixth applicant and found that there was also a prima facie case against the fifth applicant. 47. The fifth applicant also appealed to the High Court and, on 2 May 2001, a differently constituted court dismissed his appeal. Again the High Court found that the District Judge had not erred in admitting the anonymous evidence of CS/1; that there was sufficient evidence against the fifth applicant for the extradition to proceed, and that the United States had jurisdiction to try him. 48. Both applicants appealed to the House of Lords. Their appeals were dismissed on 17 December 2001. The House of Lords found unanimously that the High Court had erred in its finding in respect of jurisdiction: it was sufficient that the offence for which extradition was sought was triable within the United States and an equivalent offence would be triable in the United Kingdom. Accordingly, the applicants were liable to extradition to the United States if a prima facie case of conspiracy to murder was established. This was the case for each applicant. EFTA00031744 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT II b. The Secretary of State's decision, the United States' assurances, and the fifth and sixth applicants' appeal to the High Court 49. Between November 2001 and December 2005 there then followed voluminous representations by the fifth and sixth applicants to the Secretary of State as to why they should not be extradited to the United States. 50. In the course of these exchanges, on 19 April 2002 the President of the United States designated the sixth applicant as a "specially designated global terrorist", which had the effect of placing him on a list of persons maintained by the United States Department of the Treasury and available on its website. This was done pursuant to Executive Order 13224 which enables the American assets of any person so designated to be blocked. 51. Subsequently, on 13 April 2004, the United States Embassy in London issued Diplomatic Note No. 018, which gave assurances that the United States Government would neither seek nor carry out the death penalty against the fifth and sixth applicants. It also gave assurances that they would be tried before a federal court and that they would not be prosecuted by a military commission or designated as enemy combatants. On 18 January 2008, the United States Embassy issued Diplomatic Note No. 002, which assured the United Kingdom Government that, if either applicant were acquitted or completed any sentence imposed or if the prosecution against them were discontinued, the United States authorities would return the men to the United Kingdom, if they so requested. 52. The Secretary of State (Ms Jacqui Smith) rejected the fifth and sixth applicants' representations on 12 March 2008. She found that assurances given by the United States in the Diplomatic Note of 13 April 2004 could be relied upon and thus that the fifth and sixth applicants were not at risk of the death penalty, indefinite detention or trial by a military commission. 53. The fifth and sixth applicants also contended that they would not receive a fair trial in the United States owing to the unavailability of defence witnesses and evidence, adverse publicity, the possible imposition of special administrative measures before trial, and the sixth applicant's designation as a global terrorist. The Secretary of State found none of these claims amounted to a "flagrant denial of justice" such as would act as a bar to extradition. 54. The Secretary of State accepted that there was a real possibility that they would be sentenced to life imprisonment if convicted but, relying on the House of Lords' judgment in R (Wellington) v. Secretary of State for the Home Department (see paragraphs 64-72 below), found that this would not amount to a breach of Article 3 of the Convention. 55. The Secretary of State also considered that the conditions of the fifth and sixth applicants' detention in the United States would not violate Article 3 whether they were subjected to "special administrative measures" before trial or detained at ADX Florence after trial. In the fifth applicant's case, this conclusion was not affected by the fact that he suffered from a recurrent EFTA00031745 12 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT depressive disorder. There was also no risk that either applicant would be tortured, that evidence obtained by torture would be adduced at trial, or that they would be at real risk of torture as a result of extraordinary rendition or refoulement to a third State. 56. The fifth and sixth applicants sought judicial review of the Secretary of State's decision in the High Court. Before the High Court the applicants submitted that, if convicted, they would be detained at ADX Florence in violation of Article 3 of the Convention. In rejecting that contention, Lord Justice Scott Baker, delivering the judgment of the court on 7 August 2009, found that the decisions of the United States federal courts in Ajaj, Sattar and Wilkinson v. Austin (see paragraphs 109 and 110 below) demonstrated that there was effective judicial oversight of "supermax" prisons such as ADX. The fifth and sixth applicants would also have the possibility of entering ADX's "step down program" (see paragraphs 84-88 below). He concluded: (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 Alunad 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 race. 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." 57. In respect of the fifth applicant's submission that his recurrent depressive illness would deteriorate if extradited, the High Court considered that, to the extent that this affected his fitness to stand trial, this was a matter for the United States' authorities and, if he were convicted, the fifth applicant's mental health would be an important factor in deciding whether he should be sent to ADX Florence. 58. The High Court also rejected the fifth and sixth applicants' submissions that they were at real risk of violations of Articles 3, 6 and 14 EFTA00031746 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 13 of the Convention by virtue of the imposition of special administrative measures, relying on its previous judgment in respect of the first and second applicants (see paragraph 29 above). Having regard to the Diplomatic Note of 18 January 2008, the High Court found that there was no real risk of refoulement to Egypt or Saudi Arabia by the United States. The High Court was also satisfied that the United States would honour the assurances it had given in the Diplomatic Note of 13 April 2004. The mere fact that the sixth applicant had been designated as a global terrorist by the President of the United States did not mean he was at risk of a flagrant denial of justice within the meaning of Article 6: the designation added little to what was already known about him; it would be made clear to the jury at any trial what had to be proved as regards the indictment. 59. The High Court also rejected the applicants' submission that they should be tried in the United Kingdom, finding that this was neither viable nor appropriate and that any connection with the United Kingdom was "tenuous indeed". 60. Although the High Court refused leave to appeal to the United Kingdom Supreme Court, it certified two questions of general public importance. The first question was whether prison conditions at ADX Florence were compatible with Article 3; the second question was whether the relativist approach to Article 3 adopted by the majority of the House of Lords in Wellington should apply where the issue under Article 3 was one of the compatibility of prison conditions with Article 3. 61. On 16 December 2009, the Supreme Court refused permission to appeal. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW ON ARTICLE 3 AND EXTRADTITION A. Extradition arrangements between the United Kingdom and the United States 62. At the material time, the applicable bilateral treaty on extradition was the 1972 UK — USA Extradition Treaty (now superseded by a 2003 treaty). Article IV of the 1972 treaty provided that extradition could be refused unless the requesting Party gave assurances satisfactory to the requested Party that the death penalty would not be carried out. 63. Guidance for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States of America was signed on 18 January 2007 by the Attorney General of the United States of America, Her Majesty's Attorney General and also, for its application to Scotland, by the Lord Advocate. It sets out a series of measures that prosecutors in each State should take to exchange information and consult EFTA00031747 14 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT each other in such cases and to determine issues which arise from concurrent jurisdiction. A case with concurrent jurisdiction is defined as one which has the potential to be prosecuted in both 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 64. The United States requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on two counts of murder in the first degree. In his appeal against extradition, Mr Wellington argued that his surrender would violate Article 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole. 65. In giving judgment in the High Court ([2007] EWHC 1109 (Admin)), Lord Justice Laws found that there were "powerful arguments of penal philosophy" which suggested that risk of a whole-life sentence without parole intrinsically violated Article 3 of the Convention. He observed: "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. 66. Wellington's appeal from that judgment was heard by the House of Lords and dismissed on 10 December 2008. Central to the appeal was paragraph 89 of this Court's judgment in Soering v. the United Kingdom, EFTA00031748 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 15 7 July 1989, § 89, Series A no. 161, where the Court stated that considerations in favour of extradition: ".. 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." 67. A majority of their Lordships, Lord Hoffmann, Baroness Hale and Lord Carswell, found that, on the basis of this paragraph, in the extradition context, a distinction had to be drawn between torture and lesser forms of ill-treatment. When there was a real risk of torture, the prohibition on extradition was absolute and left no room for a balancing exercise. However, insofar as Article 3 applied to inhuman and degrading treatment and not to torture, it was applicable only in a relativist form to extradition cases. 68. Lord Hoffmann, giving the lead speech, considered the Court's judgment in the case of Chahal v. the United Kingdom, 15 November 1996, § 81, Reports of Judgments and Decisions 1996-V, in which the Court stated that: "It should not be inferred from the Court's remarks tat paragraph 89 of Soeringl 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." EFTA00031749 16 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 69. A minority of their Lordships, Lord Scott and Lord Brown, disagreed with these conclusions. They considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment. They found no basis in the text of Article 3 for such a distinction. Lord Brown also considered that the Court, in Chahal and again in Saadi v. Italy [GC], no. 37201/06, ECHR 2008-..., had departed from the previous, relativist approach to inhuman and degrading treatment that it had taken in Soering. He stated: "Them 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 pare 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, pan 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 pan 142: Thhe 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. 70. However, despite these different views, none of the Law Lords found that the sentence likely to be imposed on Mr Wellington would be irreducible; having regard to the commutation powers of the Governor of Missouri, it would be just as reducible as the sentence at issue in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008-.... All five Law Lords also noted that, in Kafkaris, the Court had only said that the imposition of an irreducible life sentence may raise an issue under Article 3. They found that the imposition of a whole life sentence would not constitute inhuman and EFTA00031750 BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM JUDGMENT 17 degrading treatment in violation of Article 3 per se, unless it were grossly or clearly disproportionate. Lord Brown in particular noted: "Having puzzled long over this question, I have finally concluded that the majority of the Grand Chamber fin Kaficaris] 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". 71. Finally, Lord Hoffmann, Lord Scott, Baroness Hale and Lord Brown all doubted Lord Justice Laws' view that life imprisonment without parole was lex tad ionis. Lord Hoffman, Baroness Hale and Lord Brown did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value; there were other, more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect. Lord Scott rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement; once it was accepted that a whole life sentence could be a just punishment, atonement was achieved by the prisoner serving his sentence. 72. Wellington's application to this Court was struck out on 5 October 2010, the applicant having indicated his wish to withdraw it (Wellington v. the United Kingdom (dec.), no. 60682/08). C. Relevant Canadian case-law 73. Section I of the Canadian Charter of Rights provides that the Charter guarantees the rights and freedoms set out in it "subject only to