The European Court of Human Rights has refused the request of Mustafa Kamal Mustafa (Abu Hamza) and four others to refer their extradition appeal to its Grand Chamber for another hearing. This means that their case, which was decided in the Government’s favour in April (see our post) is now final. There are therefore no remaining barriers to their extradition to the United States to face terrorism charges.
But why has it taken so long to decide the case? The men argued that if extradited there was a real risk that their article 3 (torture and inhumane treatment) rights would be contravened by being held at a ‘Super-max’ prison and by having to face extremely long sentences. The extradition requests were made by the United States in July 1999 (Adel Bary), May 2004 (Abu Hamza) March 2005 (Barbar Ahmad), August 2005 (Haroon Rashid Aswat) and September 2006 (Syed Tahla Ahsan). In other words, a long time ago.
However, the cases were not lodged with the Court until between June 2007 and December 2009 (see the facts section of the ruling). This was because the cases were before the UK courts – the European Court of Human Rights is a court of last resort, which means that applications can only be made once all domestic avenues are exhausted (see our recent post). So it took a while for the cases to be heard here, as is sometimes the case with complex extradition proceedings involving serious offences and human rights.
So the delay before the Strasbourg court was between just over three and just under four years. This is a long time, although the Strasbourg court can only be held responsible for around half of the total delay since the extradition requests were made by the USA.
It should be noted in passing that in the meantime Abu Hamza has had a separate claim rejected relating to his time in prison, and that the five men in this case had many of their initial arguments rejected by the court by the Court’s long and involved admissibility decision.
But this still represents a very significant delay, especially given the subject matter and the importance of trying terrorist suspects as close to the time of their alleged offences as possible. The admissibility decision was made in June 2010, which means it too almost two further years finally to decide the case.
What caused it? To paraphrase Bill Clinton, it’s the backlog, stupid (Update – or perhaps not; see below). The Court has been working hard to reduce its enormous backlog of cases in the last few years, but there is still much work to be done. The backlog is currently at an eye-watering 150,000 applications (see this post). Sir Nicolas Bratza, the outgoing British president of the Court discussed what is being done in a recent speech.
Bratza used the opportunity to remind us of the recent Brighton Declaration (see our post) on Court reform, which continued the Court’s reform programme aimed at addressing its enormous backlog of cases and other concerns such as the ‘democratic deficit’
Bratza was keen to emphasise that the “primary responsibility for respecting human rights rests with States”. If is “for them to act in the first place”, and failing that the Court gets involved. He then went to discuss some of the perennial problems of the court, notably repetitive cases (40,000 pending at the moment). He said of repetitive cases:
[the backlog] creates serious difficulty for the Convention system, placing great strain on the Court and hindering the efficient administration of justice. Faced with such huge numbers of cases, the Court operates a policy of prioritisation, with the highest priority going to the most urgent, serious and significant applications. The consequence of this is that many thousands of applicants have little prospect of seeing their case decided within any reasonable – or foreseeable – timeframe.
Presumably the case involving Abu Hamza et al was prioritised, but it still took a number of years to resolve. Abu Qatada’s case (which he eventually won) took over three years. This is clearly not good enough. It is important to note that domestic proceedings, once they have wound their way through the court system, can also take a number of years. However, that system usually involves a number of tribunals and courts, whereas at the European Court of Human Rights there is usually only one main hearing, as in this case.
This may not be the end of the line for these men, as they may attempt further legal challenges to their imminent deportation orders. But this would probably be dealt with using the Secretary of State’s powers to certify applications as effectively hopeless, subject to any compelling new circumstances arising. But the longer cases are delayed, the more likely that new circumstances will arise.
Leaving cases to fester for years, especially highly sensitive ones such as those involving serious terrorist charges, is good for no one. The Court must do all it can, assisted of course by members states where possible, to clear its backlog and ensure the smooth administration of justice.
UPDATE – I have received the following information from the Court, which suggests they the backlog may not have been to blame, but rather the complexity of this particular case:
“The Court had to make an assessment of the applicants’ likely conditions of detention if extradited to the US and convicted of the offences charged. This involved the parties in gathering evidence from various authorities and experts in the US, and requesting the Court to extend its deadlines to enable them to do this. Following the admissibility decision on 6 July 2010, further questions were put to the parties, principally about coditions in ADX Florence. but also about the possibility of raising Article 3-type complaints in substances in the US courts. The Government filed their response on 7 December 2010, followed by the applicants’ response on 31 May 2011, and the Government’s final reply was filed on 24 October 2011. Having examined all the evidence, the Court delivered its judgment on 10 April 2012.”
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