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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Friday, 5 September 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 36


In the case of Trabelsi v. Belgium the European Court of Human Rights held, unanimously, that the extradition of an individual to a State in which he or she is liable to an irreducible life sentence is contrary to the Convention (a violation of Article 3, prohibition of inhuman or degrading treatment of the European Convention on Human Rights. The case concerned the extradition, which has been effected despite the indication of an interim measure by the European Court of Human Rights (Rule 39 of the Rules of Court), of a Tunisian national from Belgium to the United States, where he is being prosecuted on charges of terrorist offences and is liable to life imprisonment.

The Court considered that the life sentence to which Mr Trabelsi was liable in the United States was irreducible inasmuch as US law provided for no adequate mechanism for reviewing this type of sentence, and that it was therefore contrary to the provisions of Article 3. It concluded that Mr Trabelsi’s extradition to the United States entailed a violation of Article 3 of the Convention. Furthermore, the failure of the Belgian State to observe the suspension of extradition indicated by the Court had irreversibly lowered the level of protection of the rights secured under Article 3, which Mr Trabelsi had attempted to uphold by lodging his application with the Court, and had interfered with his right of individual application.
"112.  It is well-established in the Court’s case-law that the imposition of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see Kafkaris, cited above, § 97, and references cited therein), provided that it is not grossly disproportionate (see Vinter and Others, cited above, §§ 88 and 89). The Court has, however, held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Kafkaris, cited above, § 97).
113.  This latter principle gives rise to two further ones.  First of all, Article 3 does not prevent life prison sentences from being, in practice, served in their entirety. What Article 3 does prohibit is that a life sentence should be irreducible de jure and de facto. Secondly, in determining whether a life sentence in a given case can be regarded as irreducible, the Court seeks to ascertain whether a life prisoner can be said to have any prospect of release. Where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see Kafkaris, cited above, § 98, and references cited therein).
114.  Until recently the Court had held that the sole possibility of adjustment of a life sentence was sufficient to fulfil the requirements of Article 3. It had thus ruled that the possibility of early release, even where such a decision was only at the discretion of the Head of State (see Kafkaris, cited above, § 103) or the hope of Presidential clemency in the form of either a pardon or a commutation of sentence (see Iorgov v. Bulgaria (no. 2), no. 36295/02, §§ 51 to 60, 2 September 2010) was sufficient to establish such a possibility.
115.  In Vinter and Others, cited above, the Court re-examined the problem of how to determine whether, in a given case, a life sentence could be regarded as reducible. It considered this issue in the light of the prevention and rehabilitation aims of the penalty (§§ 112 to 118). With reference to a principle already set out in the Kafkaris judgment, the Court pointed out that if a life sentence was to be regarded as reducible, it should be subject to a review which allowed the domestic authorities to consider whether any changes in the life prisoner were so significant, and such progress towards rehabilitation had been made in the course of the sentence, as to mean that continued detention could no longer be justified on legitimate penological grounds (§ 119). Furthermore, the Court explained for the first time that a whole-life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence would take place or could be sought. Consequently, where domestic law did not provide any mechanism or possibility for review of a whole-life sentence, the incompatibility with Article 3 on this ground already arose at the moment of the imposition of the whole-life sentence and not at a later stage of incarceration (§ 122). 
136.  The Court now comes to the central issue in the present case, which involves establishing whether, over and above the assurances provided, the provisions of US legislation governing the possibilities for reduction of life sentences and Presidential pardons fulfil the criteria which it has laid down for assessing the reducibility of a life sentence and its conformity with Article 3 of the Convention.
137.  No lengthy disquisitions are required to answer this question: the Court needs simply note that while the said provisions point to the existence of a “prospect of release” within the meaning of the Kafkaris judgment – even if doubts might be expressed as to the reality of such a prospect in practice – none of the procedures provided for amounts to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds (see paragraph 115 above).
138. Under these conditions, the Court considers that the life sentence liable to be imposed on the applicant cannot be described as reducible for the purposes of Article 3 of the Convention within the meaning of the Vinter and Others judgment. By exposing the applicant to the risk of treatment contrary to this provision the Government engaged the respondent State’s responsibility under the Convention.
139.  The Court accordingly concludes that the applicant’s extradition to the United States of America amounted to a violation of Article 3 of the Convention."
CONCURRING OPINION OF JUDGE YUDKIVSKA

"I voted with the majority for a finding of violation of Article 3, albeit with serious hesitations. The reasoning in the judgment appears to me rather elusive.
In cases like the present one, being examined in the light of the Vinter requirements, the risk of ill-treatment derives not from concrete facts such as torture during the applicant’s interrogation or denial of access to a lawyer, but from the mere idea that his life sentence might appear irreducible to him at the time of sentencing, thus depriving him of a “right to hope” inherent in human dignity. Therefore, the only necessary and sufficient assurance is a clear statement that a mechanism geared to reconsidering, with the passage of time, the justifiability of continued detention does exist in the receiving State de jure and de facto, and can be, in principle, tried by the applicant in future. Of course, no concrete assurances that if the applicant is sentenced to life imprisonment in some twenty-five years the President will consider the possibility of pardoning him – no such assurances would look realistically effective. No one can predict what will happen in twenty-five or thirty years, what kind of legislation and policy will exist, so the State authorities cannot be expected to provide any “specific” guarantee for such a distant future. This is why I disagree with the majority view that the explanations provided by the relevant authorities are “very general and vague”; I find them to be adequate in the circumstances of the present case.
Nevertheless, the regrettable uncertainty which transpires from the letter of 11 November 2009 that a Presidential pardon remains “only a theoretical possibility in Trabelsi’s case” could undoubtedly lead the applicant to believe that if a life sentence is imposed there is no mechanism to permit him in future to be considered for release. This unfortunate passage in the specific context of this case compelled me to vote in favour of a finding of a violation of Article 3 of the Convention."
Also read: 

EGMR erschwert Auslieferung von Terrorverdächtigen an die USA:
"Dass die Regierung sich in einer schwierigen Lage gegenüber den amerikanischen Freunden befunden habe, möge schon sein, aber das interessiert den Gerichtshof genauso wenig wie zuvor bei seinen wiederholten Entscheidungen, die einstweilige Anordnung aufrecht zu erhalten.
It was not for the Belgian State, in the wake of the judgment of the Conseil d’Etat, to substitute its own appraisal for the Court’s assessment of these assurances and the merits of the application and decide to override the interim measure indicated by the Court.
Ich vermute, ohne zynisch werden zu wollen, dass die belgische Regierung die Verurteilung und die 90.000 Euro bei ihrer Entscheidung, die Amerikaner zufriedenzustellen, schon eingepreist hat…"
Extradition : La Belgique condamnée pour n'avoir pas su résister aux pressions américaines:
"Le refus de la Belgique d'exécuter la mesure conservatoire indiquée par la Cour trouve, au moins en partie, son origine dans des pressions américaines qui ont dû être considérables. Qui a oublié qu'en 2003 la Belgique a dû renoncer à sa loi de compétence universelle, les Etats Unis menaçant alors de transférer le siège de l'Otan et de dérouter une partie du trafic maritime américain d'Anvers à Rotterdam ? Sur ce plan, la décision Trabelsi montre les difficultés d'une relation triangulaire entre les Etats parties à la Convention européenne, les Etats Unis et la Cour européenne. Si cette dernière peut effectivement sanctionner les Etats européens, elle est complètement impuissante face à une administration américaine qui n'hésiter pas à mettre toute sa puissance au service d'un seul but : écarter les standards européens des libertés lorsque ses intérêts sont en jeu."
Belgium violated the ECHR by extraditing a terrorist to the USA despite an interim measure by the Strasbourg Court: Trabelsi v. Belgium:

"It is very likely that the Belgian Government will ask for the referral of the case to the Grand Chamber – paradoxically it was the Belgian Government which objected to the Chamber’s intention to relinquish the case to the Grand Chamber. In that case, one could expect the Grand Chamber to either overturn the Chamber judgment, or to provide a more convincing justification for the finding of a violation than a simplistic combination of the Soering- and Vinter-tests."

Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

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