13 February 2009

FOURTH SECTION
Application no. 11949/08
by Syed Tahla AHSAN
against the United Kingdom
lodged on 5 March 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Syed Tahla Ahsan, is a British national who was born in 1979. He is currently in detention at HM Prison Long Lartin. He is represented before the Court by Ms G. Peirce, a lawyer practising in London with Birnberg Peirce & Partners, Solicitors.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 June 2006, a Federal Grand Jury sitting in Connecticut returned an indictment against the applicant alleging the commission of three felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; and conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country.
The applicant is the co-accused of Babar Ahmad who, on 6 October 2004, was indicted by a Federal Grand Jury on similar charges and one further count of money laundering. The United States requested Mr Ahmad’s extradition from the United Kingdom on 15 November 2004. He sought to challenge his extradition in the United Kingdom courts in the same proceedings as Mr Haroon Rashid Aswat, whose extradition is sought by the United States on separate charges. At the conclusion of those proceedings, Ahmad and Aswat lodged an application before this Court (no. 24027/07). On 12 June 2007 the Acting President of the Chamber to which that application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicants should not be expelled until further notice; they remain in detention in the United Kingdom (see the statement of facts prepared in respect of that application). The applicant was formally communicated to the Government for their observations on 26 June 2007.
The United States formally requested the extradition of the present applicant on 15 September 2006. His extradition hearing started on 20 November 2006 at which date the District Judge determined that the applicant was accused of offences for which he could be extradited. The case was then adjourned for evidence and argument, inter alia as to whether the applicant’s extradition would be compatible with his Convention rights. The hearing resumed on 19 March 2007. By now bound by the High Court’s judgment in Ahmad and Aswat (given on 30 November 2006 – see statement of facts in that application), the District Judge found that the applicant’s extradition would be compatible with the Convention. He accordingly sent the case to the Secretary of State for his decision as to whether the applicant should be extradited.
On 15 May 2007, while the Secretary of State was considering the case, the United States Embassy in London issued Diplomatic Note No. 020, which provides:
“The Embassy of the United States of America at London, England, presents its compliments to Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No. 059 dated September 15, 2006, requesting the extradition of Syed Talha Ahsan to the United States of America.
Pursuant to Article IV of the 1972 Extradition Treaty between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Syed Talha Ahsan upon his extradition to the United States.
The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Syed Talha Ahsan will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges. Pursuant to his extradition, Syed Talha Ahsan will not be prosecuted before a military commission, as enabled by the Military Commissions Act of 2006; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant...”
On 14 June 2007, the Secretary of State ordered that the extradition could proceed. He too relied on the High Court’s judgment in Ahmad and Aswat in support of the finding that the applicant’s extradition would be compatible with the Convention and also relied on Diplomatic Note 020 above.
The applicant appealed to the High Court and also sought judicial review of the alleged failure of the Director of Public Prosecutions for England and Wales (“the Director”) to consider whether he should instead be tried in the United Kingdom. He relied on guidance agreed between the Attorney General of the United States and his United Kingdom counterparts for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States (see relevant domestic and international law below).
On 10 April 2008 the High Court dismissed his human rights appeal, relying on its ruling in Ahmad and Aswat. In the same judgment, it also dismissed his application for judicial review, finding that the guidance had no application to the applicant’s case. The guidance only applied to cases where there had been an investigation of the case in the United Kingdom and the Director had been seized of the case as prosecutor.
On 14 May 2008 the High Court refused to certify a point of law of general public importance which ought to be considered by the House of Lords and also refused leave to appeal to the House of Lords.
On 5 March 2008 the applicant lodged an application with this Court. On 23 May 2008, at the conclusion of the above High Court proceedings, the applicant requested an interim measure to prevent his extradition. The same day, the President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicant should not be extradited until further notice.
1. Relevant public international law and domestic law
a. Extradition treaty between the United Kingdom and the United States

At the material time, the applicable bilateral treaty on extradition was the 1972 UK – USA Extradition Treaty (now superseded by a 2003 treaty). Article XII of the 1972 treaty guaranteed compliance with the specialty rule, the requirement that an extradited person may only be tried in the requesting State for the crime or crimes for which he has been extradited. This provides as follows:
“(1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State –
(a) until after he has returned to the territory of the requested Party; or
(b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.
(2) The provisions of paragraph (1) of this Article shall not apply to offenses committed, or matters arising, after the extradition.”
b. Extradition Act 2003
Part II of the Extradition Act 2003 regulates the extradition of individuals to ‘category 2’ territories which, by designation of the Secretary of State, includes the United States. Pursuant to sections 71(4), 73(5), 84(7) and 86(7) of the Act, the Secretary of State has the power to designate certain States as not being required to provide prima facie evidence in support of their requests for extradition. By Article 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (Statutory Instrument 2003 No. 3334) this includes, inter alia, the United States. Article 2 of the same order designates the United States as a ‘category 2’ territory.
Section 73 of the Extradition Act 2003 provides for the issue of a provisional warrant of arrest if certain conditions are satisfied. Section 87 requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. Section 103 provides for the right of appeal to the High Court against the decisions of the judge and against an order for extradition made by the Secretary of State. Section 114 provides for a further appeal to the House of Lords from the High Court.
c. Guidance for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States of Americ
The above guidance was signed on 18 January 2007 by the Attorney General of the United States of America, Her Majesty’s Attorney General and also, for its application to Scotland, by the Lord Advocate. It sets out a series of measures that prosecutors in each State should take to exchange information and consult each other in such cases and to determine issues which arise from concurrent jurisdiction. A case with concurrent jurisdiction is defined as one which has the potential to be prosecuted in both the United Kingdom and the United States.
d. The United Nations Convention Against Torture
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by General Assembly Resolution 39/46 of 10 December 1984 and entered into force 26 June 1987. The United Kingdom and the United States have both ratified the Convention. The Convention provides as follows:

Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Article 15
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.
2. Relevant law of the United States of America
a. Military Order No. 1

On 13 November 2001 the President of the United States of America issued Military Order No. 1 on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”. The Military Order applies to non-citizens of the US with respect to whom there is reason to believe that they are members of Al-Qaeda or have aided and abetted acts of international terrorism (section 2 of the Order, referred to as designation as enemy combatants). Any individual subject to the Order shall be detained at an appropriate location designated by the Secretary of Defence outside or within the United States (section 3 of the Order). They shall, when tried, be tried by military commission for any and all offences triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death (section 4 of the Order). Military tribunals shall have exclusive jurisdiction with respect to offences committed by such persons, who shall not be privileged to seek any remedy in any court of the United States, any court of any foreign nation, or any international tribunal (section 7 of the Order).
COMPLAINTS
The applicant complains that there would be violations of Articles 2, 3, 5, 6, 8 and 14 Convention if he were extradited to the United States. His complaints fall under headings.
First, he alleges that the diplomatic assurances provided by the United States are not sufficient to remove the risk of his being designated as an enemy combatant at the conclusion of the criminal proceedings pending against him in violation of Articles 3, 5, 6 and 8 of the Convention. Second, invoking the same Articles of the Convention, he alleges those assurances are also insufficient to prevent his being subjected to extraordinary rendition. Third, the applicant alleges that designation as an enemy combatant would place him at real risk of being subjected to the death penalty in violation of Articles 2 and 3. Fourth, he complains that there is a real risk that he would be subjected to ‘special administrative measures’ in violation of Articles 3, 6, 8 and 14. Fifth, relying on the same Articles, he complains there is a real risk he will be detained in a “supermax” prison. In respect of his fourth and fifth complaints he places particular emphasis on the fact that he has bipolar disorder. Sixth, the applicant alleges that if extradited he faces a sentence of life imprisonment without parole and/or an extremely long sentence of determinate length in violation of Articles 3 and 6. In respect of Article 6 he alleges that the threat of such long sentences by United States prosecutors will lead to coercive plea bargaining amounting a flagrant denial of justice. Finally, and more generally, the applicant alleges that the failure of the Director of Public Prosecution to consider whether to prosecute him in the United Kingdom in accordance with the guidance on concurrent jurisdiction is of relevance to his complaints, in particular the proportionality of any interference with his Convention rights that would be caused by his extradition to the United States.
QUESTIONS TO THE PARTIES

Would there be a violation of Articles 2, 3, 5 and 6 of the Convention if the applicant were to be extradited to the United States? In particular:

1.  Are the terms of the diplomatic notes sufficient to remove any risk that the applicant would be designated as an “enemy combatant” pursuant to Military Order No. 1 at the conclusion of the criminal proceedings currently pending against him? If not, would such a designation give rise to a real risk of a violation of Articles 3, 5 or 6 of the Convention? In this regard, what, if any, significance is to be attached to the use of the different terms “upon extradition” and “pursuant to his extradition” in diplomatic note 020 of 15 May 2007? The Government are requested to submit a copy of the earlier diplomatic note (number 059 of 15 September 2006) referred to in that note.

2.  Would the extradition of the applicant be compatible with Articles 3, 5 and 6 of the Convention in circumstances where the United States has not undertaken that he will not be subjected to rendition or extraordinary rendition?

3.  Is there a real risk that the applicant would be subjected to the death penalty if charged on a superseding indictment or as a consequence of a trial before a Military Commission at the conclusion of the criminal proceedings against him in violation of Article 2 when taken with Article 6 of the Convention (see Öcalan v. Turkey[GC], no. 46221/99, §§ 166-175, ECHR 2005‑...)?

4.  Is there a real risk that the applicant would be subjected to ‘special administrative measures’ before trial? Would such measures be compatible with Articles 3 and 6 of the Convention?

5. What is the likely length of sentence which would be imposed on the applicant if he were found guilty of any or all of the charges against him? If the applicant’s likely sentence is a life sentence without any possibility of early release on parole, would such a sentence violate Article 3 (see Kafkaris v. Cyprus [GC], no. 21906/04, 12 February 2008; Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII and Einhorn v. France (dec.), no. 71555/01, ECHR 2001 XI)?

6. Is there a real risk that following any conviction the applicant would be detained in “supermax” detention facility? If so, how long is such detention likely to last? Would such detention be in violation of Article 3, having regard (a) to the applicant’s bipolar disorder and/or (b) the likely length of any sentence?

7. What relevance, if any is to be attached to the applicant’s submission that he could and should be tried in the United Kingdom (Soering v. the United Kingdom, 7 July 1989, § 110)?

8. Finally, the parties are request to comment on the relevance, if any, of the Court’s decision in Al-Moayad v. Germany (dec.), no. 35865/03, 20 February 2007.