Jihadist suspect cannot be extradited to United States because of his mental illness

21 April 2013 by Rosalind English

Aswat v United Kingdom, 16 April 2013 – read judgment

The Strasbourg Court has ruled that a terrorist suspect detained in the United Kingdom’s Broadmoor hospital should not be extradited to the United States because of the risk that his mental condition would deteriorate there.

The applicant was indicted in the US in respect of a conspiracy to establish a jihad training camp in Oregon.  He was arrested in the UK in 2005 and in 2006 the Secretary of State ordered his extradition. He unsuccessfully appealed the High Court and the Court of Appeal on the grounds that his extradition would not be compatible with Article 3 of the Convention because he could be detained in a “supermax” prison. In November 2011 a mental health tribunal determined that he was suffering from paranoid schizophrenia.

After the United States requested his extradition in May 2012, the US Department of Justice indicated that the applicant would have a full opportunity to argue that he lacked mental capacity to stand trial there. If the applicant were to stand trail in the US and be convicted of an offence, then following sentencing the authorities would determine which of the mental health services for sentenced offenders would be appropriate, ranging from  inpatient psychiatric treatment, to residential treatment programs, to outpatient psychological and psychiatric services. According to the US Department of Justice

Many inmates with mental illnesses, including schizophrenia, are managed successfully in mainline institutions through the treatments of choice which include medication, clinical case management, and cognitive-behavioural interventions. While a diagnosis of schizophrenia would not preclude a designation to a maximum security facility, most inmates with this diagnosis are managed and treated in other facilities.

The applicant complained before the Strasbourg Court that the UK government would be in breach of Article 3 if they were to extradite him. He argued that were he to be sent to a potentially more adverse environment in a different country his condition would deteriorate, particularly if held in a single cell in a “supermax” centre like ADX Florence. The government’s case was that, in practice, most inmates with a diagnosis of parahoid schizophrenia were not sent to ADX Florence, but  were managed and treated in other facilities. Even if the applicant were to be sent to ADX, the government pointed out that the Court itself had dismissed an application under Article 3 from other detainees facing a similar future there  (Babar Ahmed and others v United Kingdom, 10 April 2012).

The Court upheld the complaint.

Reasoning behind the Court’s decision

In contrast to the Babar Ahmed applications, the  Court’s conclusion under Article 3 was based solely on Aswat’s mental illness. The Court was particularly concerned with a potentially long period of pre-trial detention and Aswat’s possible placement in a “supermax” prison which would be likely to exacerbate his condition of paranoid schizophrenia, and that this would result in a deterioration that “would be capable of reaching the Article 3  threshold”.

The complaint was upheld even though the Court accepted that if convicted the applicant would have access to medical facilities and, more importantly, mental health services, regardless of which institution he was detained in. And it had not been argued here nor in the Babar Ahmed case that psychiatric care in the United States’ federal prisons was substantially different from that which was available in UK prisons.

The Court has ordered the United Kingdom under Rule 39 of its Rules of Court (interim measures) not to extradite Aswat until the judgment became final or until further order.

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