European Court of Human Rights to Consider Impact of Covid-19
18 April 2020
On UKHRB we’ve considered a number of the potential human rights implications of the Covid-19 pandemic and the measures put in place to combat it (Alethea Redfern’s round up is the best place to start, there have been a number of posts since, and there will be a podcast coming up on the subject next week on Law Pod UK). It was only a matter of time before some of these issues started to come before the European Court of Human Rights and, on Wednesday, a case involving the UK Government concerning the impact of Covid-19 on conditions of detention in prison was communicated: Hafeez v the United Kingdom (application no. 14198/20).
Communication of a case takes place where an issue is considered to require further examination and the respondent state is invited to submit written observations on the admissibility and merits of the case. It is also an indication that the Court does not consider the case, on its face, inadmissible.
The applicant in Hafeez is a sixty-year old man with a number of health conditions, including diabetes and asthma. He was arrested pursuant to a request by the US Government for his extradition on drugs charges. He challenges the decision to extradite him, arguing that his pre-conviction and post-conviction detention conditions in the US would be inhuman and degrading; and that there is a real risk that he would be sentenced to life imprisonment without the possibility of parole. What makes this case of particular interest is that, to assist in its decision on the case, the court has asked the following question:
Having particular regard to the ongoing Covid-19 pandemic, if the applicant were to be extradited would there be a real risk of a breach of Article 3 of the Convention on account of the conditions of detention he would face on arrival?
Considerations for the Court
As is well known, in the context of deportation or extradition, issues will arise when an individual is at a real risk of suffering treatment in violation of article 3 (Soering v the United Kingdom (07 July 1989, Series A no. 161). In such circumstances article 3 may impose an obligation not to expel the person in question to the receiving country.
The applicability of article 3 to detention conditions was not always a prominent feature of ECHR jurisprudence. However, from the early 2000s, the Court began to find that prison authorities were under a positive obligation to provide appropriate conditions of detention. In Kudla v Poland (no. 30210/96, ECHR 2000-XI), the Court indicated a general expectation that a detainee is held in conditions which
are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance.
These general principles have since guided the Court’s jurisprudence on conditions of detention, including in the context of extradition. For example, in Babar Ahmad and Others v United Kingdom (no. 24027/07, ECHR 2012), the Court examined the detention regime of a maximum security prison in the US, finding that the conditions of detention, including the possibility of solitary confinement and a lack of opportunity to exercise, did not violate article 3.
Given that the applicant in Hafeez suffers from asthma and diabetes, the obligation on the prison authorities to provide the requisite medical assistance will be particularly important. While article 3 does not guarantee a minimum level of medical treatment (N v United Kingdom [GC], no. 26565/05, ECHR 2008), the ability of the US authorities to cater for his health difficulties in light of the Covid-19 pandemic must be a relevant consideration. An indication of the Court’s likely approach can be found in cases such as Catalin Eugen Micu v Romania (no. 55104/13, ECHR 2016), where there was discussion of transmissible diseases as a public health concern in prisons, and Khokhlich v Ukraine (no. 41707/98, ECHR 29 April 2003 (available in French)), where the Court condemned the applicant’s detention in a cell with ten others, while he had a hepatitis B:
la Cour ne peut que déplorer le fait qu’une personne atteinte d’une maladie grave et extrêmement infectieuse a été détenue dans une cellule de 24 m2 en compagnie de dix autres condamnés.
The Court will also take note of the standards of European Committee for the Prevention of Torture (the CPT), a monitoring body whose work to prevent ill-treatment of persons deprived of their liberty has contributed significantly to improved detention conditions across Europe. The CPT has recently issued a statement of principles relating to the treatment of persons deprived of their liberty during the Covid-19 pandemic and observed that:
special attention will be required to the specific needs of detained persons with particular regard to vulnerable groups and/or at-risk groups, such as older persons and persons with pre-existing medical conditions. This includes, inter alia, screening for COVID-19 and pathways to intensive care as required.
The views of this non-judicial body are, of course, not determinative, but the Court has long relied on the CPT’s standards in its article 3 jurisprudence and, at the very least, it suggests the type of measures that may be necessary to prevent detainees from suffering inhuman or degrading treatment during the current pandemic.
The Court’s decision in Hafeez will have implications beyond extradition cases: the assessment of whether the minimum level of severity has been met for the purposes of article 3 is the same regardless of whether the context is domestic or extra-territorial (Babar Ahmad §172). Thus what the Court says about the impact of Covid-19 on detention conditions will likely have ramifications for the prison systems in all 47 member states of the Council of Europe. All eyes will be on the Strasbourg court as it begins to grapple with the consequences of the current pandemic.