Worries over US justice system as Abu Hamza extradition delayed

9 July 2010 by Adam Wagner

Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07 [2010] ECHR 1067 (6 July 2010) – Read judgment

The European Court of Human Rights has delayed the extradition of four men, including the notorious Mustafa Kamal Mustafa (Abu Hamza), from the United Kingdom to the United States due to concerns that long prison sentences and harsh conditions in a “supermax” prison could violate their human rights.

In this admissibility application, the four men mounted a wide-ranging attack on the US Justice system to the Strasbourg court, in terms usually reserved for lawless rogue states. The men claimed their extradition would put them at risk of harsh treatment, extraordinary rendition and the death penalty, amongst other draconian penalties. They said that the trial of non-US citizens on terrorism charges would lead to a “flagrant denial of justice”.

Ultimately, the Court rejected all their arguments but two; namely, their complaints concerning detention at ADX Florence and the imposition of special administrative measures post-trial, and the complaints concerning the length of their possible sentences.

Suspected of terrorism

The applicants have been indicted on various charges of terrorism in the United States of America. They are the subject of two separate sets of criminal proceedings. Each applicant then contested his proposed extradition in separate proceedings in the English courts, and had been unsuccessful. The appeal to the European Court was a last roll of the dice for each of the men.

The court had regard to a March 2008 Amnesty International report entitled “To be taken on trust? Extraditions and diplomatic assurances in the ‘war on terror’”. The report set out the organisation’s concerns that the United States Government, in its efforts to counter terrorism, had given broad discretionary powers to the President. It had also failed to observe its international human rights commitments, notably through the torture and ill treatment of terrorist suspects, the practice of “extraordinary rendition”, and the detention of enemy combatants at Guantánamo Bay without trial or access to a lawyer and without any capacity to challenge that detention through the US courts.

The applicants complained that there would be violations of Article 2 (right to life), 3 (inhuman and degrading punishment), 5 (right to liberty), 6 (fair trial), 8 (private and family life) and 14 (anti-discrimination) of the Convention if they were extradited to the United States.

Shopping list of complaints

The men provided a shopping list of complaints which reads as a charge sheet against the United States’ justice system in general and its controversial anti-terrorism policies in particular. In summary (and amongst other things), they argued that:

1. The diplomatic assurances provided by the United States were not sufficient to remove the risk of their being designated as “enemy combatants”
2. Those assurances were also insufficient to prevent their being subjected to extraordinary rendition.
3. Two alleged that designation as enemy combatants would place them at real risk of being subjected to the death penalty
4. There was a real risk that they would be subjected to “special administrative measures”
5. There was a real risk they would be detained in a “supermax” prison such as ADX Florence.
6. They would face sentences of life imprisonment without parole and/or extremely long sentences of determinate length
7. There was a real risk of a flagrant denial of justice due to the possible use at their trials of evidence obtained by treatment or threat of treatment of third parties
8. Three of the men claimed that 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.
9. Abu Hamza alleged that any jury in his case would be prejudiced by the fact that he had been identified as an international terrorist by the United States Government.
10. The first three men alleged that the threat of a long sentence by United States prosecutors would lead to coercive plea bargaining amounting to a flagrant denial of justice.
11. Finally, the first and second applicants alleged that their detention by the United Kingdom authorities pending their extradition was in violation of Article 5 of the Convention as there was no requirement that the United States Government demonstrate a prima facie (at first sight) case against them in its extradition request.

Most rejected, but enough for a delay

The Court found that nearly all of the men’s complaints were inadmissible.

As to whether the men would be designated as “enemy combatants”, the Court was not convinced that the US would go back on its promise to the UK not to do so:

Whatever the breadth of the executive discretion enjoyed by the President in the prosecution of the United States Government’s counter-terrorism efforts, the Court is unable to accept that he, or any of his successors, would commit such a serious breach of his Government’s assurances to an extradition partner such as the United Kingdom; the United States’ long-term interest in honouring its extradition commitments alone would provide sufficient dissuasion from doing so.

In respect of extraordinary rendition, whilst the court was concerned the policy in general, it was unconvinced that the men were likely to be extraordinarily rendered, given the assurances given by the US authorities. The same applied as to the death penalty. An extradition request can be straightforwardly blocked if that person is being extradited to receive the death penalty, but that was not the case here. For similar reasons, the court accepted the US assurances in respect of the imposition of special administrative measures

Serious questions of fact and law

The problems for the court were in relation to the men’s potential imprisonment in ADX Florence, a “supermax” prison in Fremont County, Colorado. The men provided the court with a great deal of evidence in respect of supermax detention, including conditions of detention at ADX Florence, and its effects on prisoners (see paras 87 to 97 of the judgment).

The court found that there was no evidence that detention at ADX Florence would prevent the applicants from properly instructing their legal representatives. The court was also  unconvinced that Abu Hamza’s disability would not be properly catered for in ADX Florence. However, the court was concerned at the “serious questions” raised by the men in relation to conditions at the prison.

The court also had concerns in relation to the potentially long prison sentences which could be imposed upon the men:

The Court considers that, in respect of the first, third and fourth applicants, there is a possibility that life sentences will be imposed if they are convicted. In light of its case-law, particularly Kafkaris, the Court considers that this part of each application raises serious questions of fact and law

The court also found that the second applicant potentially “faces…  fifty years’ imprisonment … The Court notes that the second applicant is thirty-five years of age. If a sentence of fifty years’ imprisonment were imposed, even with the 15% reduction which is available for compliance with institutional disciplinary regulations…  the applicant would be nearly seventy-eight years of age before he became eligible for release. In those circumstances, at this stage the Court is prepared to accept that, while he is at no real risk of a life sentence, the sentence the second applicant faces also raises an issue under Article 3.”

No extradition, for now

The remarkable aspect of this case was the litany of charges made against administration of justice in the United States, usually reserved for less democratic members of the international community. The judgment ultimately ran to 70 pages and rejected almost all of the complaints, save those relating to the potential length of prison sentences which the men would receive, as well as the worrying conditions in US “supermax” prisons in general and ADX Florence in particular.

The decision will worry United States authorities, who have up until now enjoyed fairly smooth (some would say too smooth) extradition machinery . Whilst most of the charges, notably relating to worries of inhuman and degrading punishment, were rejected, the fact is that at present it is difficult to see how any terrorist suspect who would face the risk of detention in a supermax prison could be extradited at all until this case is fully decided.

This was an admissibility decision only, so the case will now go to a full merits hearing. US authorities will be anxiously awaiting the outcome.