In the case of Aswat v. the United Kingdom,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
President,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section
Registrar,
Having deliberated in private on 26 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application against the
United Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by Mr Haroon Aswat (“the applicant”)
and Mr Babar Ahmad on 10 June 2007. The applicant’s nationality is not known.
The applicant was represented by Ms G. Peirce of
Birnberg Peirce & Partners, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki
of the Foreign and Commonwealth Office.
The applicant, who was the subject of an
extradition request made by the United States of America, alleged that if
extradited and convicted he would be at real risk of ill-treatment either as a
result of conditions at ADX Florence or by the length of his possible
sentence.
Interim measures under Rule 39 of the Rules of
Court were granted on 12 June 2007 and on 26 June 2007 the application was
granted priority status under Rule 41 of the Rules of Court.
The proceedings in the case of the applicant and
Mr Babar Ahmad were originally conducted simultaneously with the cases of Mr Syed
Tahla Ahsan (application no. 11949/08) and Mr Mustafa Kamal Mustafa (application
no. 36742/08).
On 6 July 2010 the Court declared admissible the
complaints of all four applicants concerning their possible detention at ADX
Florence, the imposition of special administrative measures post-trial and the
length of their possible sentences. The Court also decided to continue to
indicate to the Government under Rule 39 of the Rules of Court that it was
desirable in the interests of the proper conduct of the proceedings that the
applicants should not be extradited until further notice.
On 3 September 2010 the President of the Chamber
decided under Rule 54 § 2 (b) of the Rules of Court to give notice of the applications
lodged by Mr Adel Abdul Bary (application no. 66911/09) and
Mr Khaled Al-Fawwaz (application no. 67354/09) to the Government of
the United Kingdom. Both of these applications raised the same issues regarding
extradition to the United States of America, namely conditions of detention at
ADX Florence and the length of possible sentences.
The six applicants and the Government each filed
further written observations (Rule 59 § 1) on the merits.
On 10 April 2012 the Court delivered its judgment
in the case of Babar Ahmad and Others v. the United Kingdom, nos.
24027/07, 11949/08, 36742/08, 66911/09 and 67354/09. However, as the applicant suffered from mental
health problems of sufficent severity to require his transfer from HMP Long
Lartin to Broadmoor Hospital, the Court considered that it was not in a
position to rule on the merits of his complaints without further submissions
from the parties. It therefore decided to disjoin and adjourn the examination
of the applicant’s complaints and gave his application a new application
number, no. 17299/12.
10 The Court asked the parties to
address the following three questions:
“1. In
determining whether detention at ADX Florence would be compatible with Article
3, what relevance, if any, is to be attached to the fact that Mr Aswat’s mental
health has necessitated his transfer from HMP Long Lartin to Broadmoor
Hospital?
2. Prior to Mr
Aswat’s surrender to the United States, would details of his mental health
condition be provided to the United States’ authorities?
3. After surrender,
what steps would be taken by the United States’ authorities:
(i) to assess
whether Mr Aswat would be fit to stand trial; and
(ii) to ensure
that, in the event of conviction, his mental health condition would properly be
taken into account in determining where he would be detained?”
11 The applicant and the
Government each filed further written observations (Rule 59 § 1) on the merits.
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
A. The procedural background
The applicant was
born in 1974 and is currently detained in Broadmoor High Security Psychiatric Hospital.
The applicant has been indicted in the United States of America as a co-conspirator in respect of a conspiracy to establish a jihad
training camp in Bly, Oregon.
On 7 August 2005 the
applicant was arrested in the United Kingdom on the basis of an arrest warrant
issued under section 73 of the Extradition Act 2003 following a request for his
provisional arrest by the United States.
The
Senior District Judge gave his decision in the applicant’s case on 5 January
2006. He concluded that none of the bars to extradition applied and sent the
case to the Secretary of State for his decision as to whether the applicant
should be extradited.
On
1 March 2006 the Secretary of State ordered his extradition. The applicant
appealed to the High Court on the ground that his extradition would not be
compatible with Article 3 of the Convention because he could be detained in a
maximum security facility such as ADX Florence and subject to special
administrative measures, including solitary confinement.
The
applicant’s appeal was heard together with that of Mr Babar Ahmad. In
its judgment of 30 November 2006 the High Court rejected the appeals. The High
Court found that, according to the case-law of this Court, solitary confinement
did not in itself constitute inhuman or degrading treatment. Applying that
approach, the evidence before it - which included an affidavit from a United
States’ Department of Justice official outlining the operation of special
administrative measures - did not “begin to establish a concrete case under
Article 3”.
The
applicant and Mr Babar Ahmad applied for permission to appeal to the House of
Lords. This was refused by the House of Lords on 6 June 2007.
B. The applicant’s mental health
On
27 March 2008 the applicant was transferred to Broadmoor Hospital from HMP Long
Lartin because he met the criteria for detention under the United Kingdom’s
mental health legislation.
On
11 November 2011 the First-Tier Tribunal (Health, Education and Social Care
Chamber) Mental Health considered the applicant’s case and concluded, having
considered the evidence from the applicant’s clinical care team, that he was
suffering from paranoid schizophrenia which made it appropriate for him to
continue to be liable to detention in a medical hospital for his own health and
safety.
In
his statement to the Tribunal, Dr A. Payne, a Consultant Forensic Psychiatrist,
indicated that:
“[The applicant’s] insight into his
illness is limited and if returned to prison he would be exposed to significant
stress given the conditions of his detention, the uncertainty of his case and
his potential extradition and lengthy incarceration in conditions of solitary
confinement. His compliance with medication would be uncertain, particularly in
the medium to long term. These factors would be likely to lead to a relapse
with deterioration in his mental health and the risk of a consequent deterioration
in his physical health due to poor fluid and food intake. I am therefore of the
opinion that his mental disorder is of a nature that requires his detention in
hospital for medical treatment and that such treatment is necessary for his own
health and safety. I do not believe that there is sufficient evidence available
to justify his detention on the grounds of his risk to others.”
Dr
Claire Dillon, a Consultant Forensic Psychiatrist, indicated in a report dated
12 April 2012, that:
“Mr Aswat suffers from an enduring mental
disorder, namely paranoid schizophrenia, which has been characterised by
auditory hallucinations, thought disorder, delusions of reference, grandeur and
guarded and suspicious behaviour. Mr Aswat’s condition is currently well
controlled on amilsulpride (anti-psychotic medication). However, he has only
partial insight into his illness and he would be likely to relapse if he ceased
taking his medication.
Mr Aswat has undertaken psychological
work to enhance his understanding of his mental illness and he is able to
recognise the need for professional support to manage this. In view of the lack
of convictions for violent offences, Mr Aswat has not undertaken any
offence-related work whilst at Broadmoor, as the decision of the European Court
of Human Rights was awaited. Mr Aswat engages in occupational and vocational
activities within the hospital and these, along with his attendance at the
Mosque, have helped to prevent any significant deterioration in his mood.”
C. Expected treatment on
extradition
On
8 May 2012 the United States’ Department of Justice indicated that upon his
arrival in the United States, the applicant would have a full opportunity to
argue that he lacked mental capacity to stand trial there. If he did so, the
trial judge would have to assess his competency before the trial could proceed.
In doing so, he would rely on the reports of medical professionals and on the
applicant’s full medical records, including - presumably - those relating to
his transfer to Broadmoor.
A
competency evaluation could be appealed to the United States’ Court of Appeals
for the Second Circuit. The Second Circuit would need to affirm the district
court’s competency determination before the trial could proceed.
Prior
to and pending trial the applicant would not be housed in ADX Florence as
this institution did not house inmates who were unsentenced and pending trial.
If
the applicant were to stand trial and be convicted of an offence, then
following sentencing the Federal Bureau of Prisons would be responsible for
deciding which institution he should be housed in. Medical, psychological and
psychiatric concerns would be considered by the designation team before a determination
of housing could be made. If a hearing was warranted, it would be open to the
applicant to present evidence and make oral statements as to why he should not
be designated to ADX Florence in light of his mental health.
With
regard to the system and standard of mental health care available within the
institutions, the Department of Justice indicated that:
“Mental health services range from inpatient psychiatric
treatment, to residential treatment programs, to outpatient psychological and
psychiatric services. As in the community, the vast majority of mental health
care in the Bureau is provided on an outpatient basis at the local institution
level by the Psychology Services Department working in collaboration with
either a full-time or consultant psychiatrist.
Mental health services in the Bureau are delivered by
psychiatrists and doctoral-level psychologists. This hiring standard
ensures mental health providers in the Bureau have a minimum of four years of
graduate level, supervised training in the treatment of mental illnesses.
... ... ...
All Bureau facilities are equipped to manage mentally ill
inmates, including those with schizophrenia, as each institution employs
doctoral-level psychologists and has access to psychiatric services. 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. Conditions of confinement are largely determined
by security needs and would be modified based on mental illness only if the inmate’s
mental status warranted such a change (e.g., if his mental status
deteriorated).
The Bureau provides a structured living environment for inmates
with significant staff oversight. This environment allows for prompt
identification of mental health concerns, provides immediate access to mental
health professionals, and facilitates compliance with mental health treatment.
All inmates confined in the Bureau are evaluated by Health Services’ staff within
24 hours of arrival. At that time, their medication regimens are reviewed and
continued, as appropriate. Thus, any mental health medications the inmate may be
taking would be noted and continued as appropriate, upon admission.
Additionally, an inmate’s mental health status is evaluated to determine
whether there is any imminent risk of self-harm or suicide and whether he or
she is stable and appropriate for placement in the designated setting. If
Health Services’ staff has any concerns at the time of admission, a doctoral
level psychologist will be called to consult.
In all cases, regardless of the outcome of the initial
evaluation performed by Health Services’ staff, all new designees are seen
within 14 days for evaluation by a doctoral level psychologist. This evaluation
focuses on collecting a mental health history, as well as identifying any
current symptoms and determining treatment needs. All inmates are classified based
on their mental health treatment needs to ensure appropriate placement,
treatment, and follow-up services to be provided.
Psychologists are a visible presence in the institution - in
the cafeteria, on the compound, and in the housing units. In addition, a
psychologist is on-call 24 hours a day, 7 days a week, with a prompt response
to the institution in the event of a mental health crisis. All inmates have
direct access to psychological services from doctoral level psychologists. Ordinarily,
these services include: crisis intervention, ongoing clinical case management
of mental illnesses, brief counselling focused on a specific issue or problem,
individual psychotherapy, and psycho-educational and/or therapeutic groups.
Inmates may access these services through self-referral or may be referred by
institution staff. In addition, all inmates who need psychotropic medication
are seen regularly by a psychiatrist.
On occasion, despite best efforts to work with mentally ill
inmates at the local institution level, more intensive mental health services
are required. In these cases, an acutely mentally ill inmate is typically
referred to one of the Bureau’s Psychiatric Referral Centres for acute psychiatric
care. Under Bureau policy, acute psychiatric care is defined as care, including
but not limited to, crisis intervention for inmates who are persistently
suicidal, homicidal, or unable to function in the institution without creating
a dangerous situation due to their mental illness. These inpatient services are
generally brief, with the goal of returning the inmate to a level of functioning
that would allow him or her to return to the designated institution.
Alternatively, seriously, but not acutely, mentally ill inmates
may be placed in one of the Bureau’s residential mental health treatment
programs, which provide long-term, intensive mental health care. The
Bureau is committed to providing high-quality, evidence-based residential
treatment programs to all inmates in need of these services. The BOP’s
Psychology Treatment Programs (PTPs) are designed using the most recent
research- and evidence-based practices. These practices lead to a reduction in
inmate misconduct, mental illness and behavioural disorders; substance abuse,
relapse, and recidivism; and criminal activity. These practices also lead to an
increase in the level of the inmate’s stake in societal norms and in standardized
community transition treatment programs. Transition treatment increases the likelihood
of treatment success and increases the public’s health and safety. Inmates are
referred to these programs based on need and appropriateness of the program to
the inmate’s security level.
Decisions concerning the appropriateness of transfer to a Psychiatric
Referral Centre are based on the best judgment of the treating clinicians
(i.e., psychologist, staff psychiatrist, or consulting psychiatrist) and are
typically dependent upon such factors as the severity of the mental illness,
the specific characteristics and resources of the institution, and relevant
patient variables. Inmates who are disruptive to the orderly running of the
institution, but who are not mentally ill, are not generally appropriate
referrals to a Psychiatric Referral Centre.
In the case of schizophrenia, the treatment of choice is
medication, clinical case management, and cognitive behavioural interventions,
with inpatient admissions only as necessary to manage brief psychiatric
emergencies, should they arise. The Bureau attempts to manage and treat the
mental illnesses of all offenders in the least restrictive environment
appropriate to their mental health and security needs. Therefore, an inmate’s
security level would only be adjusted due to schizophrenia should behavioural
issues or a psychiatric emergency warrant such an adjustment. The Bureau
currently incarcerates many inmates diagnosed with schizophrenia, the majority
of whom is managed and treated successfully in general population settings.”
The Department of Justice further indicated that
if the applicant were to be detained in ADX Florence, his detention would be
subject to three types of review: classification, program review, and a
progress report. The Department described these reviews as follows:
“Classification and Program Review refer to the procedure whereby
an inmate’s case is formally reviewed by the Unit Team. These meetings are
generally referred to as "team" and the inmate is present. Team
meetings are intended to give staff and inmates the opportunity to discuss
issues in an open format. This is the inmate’s opportunity for individual
attention and he or she should be encouraged to ask questions and discuss
concerns.
Classification is the initial team meeting whereby a careful
review of the case and inmate’s history are discussed and relevant programs are
recommended. The purpose of the meeting is to define clearly for the inmate:
(1) sentence information, including financial obligations; (2) educational
programs; (3) security/custody levels; (4) release plans; and (5) work assignments.
These programs reflect the needs of the inmate and are stated in measurable terms.
Generally, initial classification occurs within four weeks of an inmate’s
arrival at his designated institution.
Subsequent team meetings are referred to as Program Reviews.
These meetings are held at least once every six months (every three months for
inmates with less than one year remaining to serve) and are conducted to
monitor and evaluate the inmate’s progress in all program areas. Program
participation is discussed in relation to the schedule developed at initial
classification. New and/or revised goals are developed as necessary. A progress
report is the principal document used by the Unit Team to evaluate the behaviour
and activities of inmates. The progress report is a detailed, comprehensive
account of an inmate’s case history, prepared by the Case Manager at prescribed
intervals during the inmate’s confinement. Generally, the Case Manager composes
the progress report with input from other unit staff, work detail supervisors, and
education instructors. The progress report reflects the inmate’s past status,
assesses his current status, and offers an indication of anticipated accomplishments.
This could include the inmate’s continued participation in a program; and what
he plans to do at the completion of the program, or if he plans to use what he
has learned upon his release. Information is also provided on the inmate’s
relationship with others (both staff and inmates), particularly with respect to
attitude, punctuality, etc. A progress report is required, at a minimum, once
every three years. At the ADX, the inmates are provided with a copy of the most
current progress report. Upon request, an inmate may read and receive a copy of
any progress report retained in the inmate’s central file.
An ADX inmate’s status is also reviewed under Institution
Supplement FLM 5321.07(1), General Population and Step-Down Unit
Operations. In addition, Mr. Aswat would have access to the Bureau’s
Administrative Remedy Program, which is set forth in Program Statement 1330.16,
Administrative Remedy Program, and, as with any inmate of the ADX, he would be able
to seek review of any issue relating to their confinement before the United
States District Courts. All of these procedures have been described in detail before
and are not repeated here.”
The
Department further indicated that if designated to ADX Florence the
applicant’s mental condition would be subject to regular review. Inmates
designated to ADX Florence underwent a psychological intake evaluation upon
arrival and could, at that time, be referred to the mental health chronic care
clinic, which is an outpatient clinic with services provided by a psychiatrist.
Such an inmate would be seen at least every six months by the
psychiatrist, but could request to be seen more frequently. In addition, he or
she could receive psychological services monthly, weekly or daily (inpatient)
based upon their classification, and more frequently should a crisis situation
arise.
In
Babar Ahmad v. the United Kingdom the Court found that if convicted the
applicant would face a maximum penalty of thirty-five years’ imprisonment. None
of the counts imposed a mandatory minimum sentence.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND
PRACTICE
For a general summary of the relevant domestic
and international law and practice regarding extradition, detention at ADX
Florence, solitary confinement and sentences, see the Court’s judgment in Babar
Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08,
66911/09 and 67354/09, §§ 62 -
165, 10 April 2012.
III. THE
COURT’S FINDINGS IN BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM (CITED ABOVE)
32 In Babar Ahmad the Court began
by re-affirming its statement in Chahal v. the United Kingdom, 15
November 1996, § 81, Reports of Judgments and Decisions 1996-V
that there was no room under Article 3 for any balancing of the risk of
ill-treatment on return against the danger that an applicant posed in the
Contracting State. Moreover, it found that this conclusion applied equally to
extradition and to all other types of removal from the territory of a
Contracting State and should apply without distinction between the various
forms of ill-treatment prescribed by Article 3 (§§ 166 - 176). However, the
Court underlined that the absolute nature of Article 3 did not mean that any
form of ill-treatment would act as a bar to removal from a Contracting State;
on the contrary, treatment which might violate Article 3 because of an act or
omission of a Contracting State might not attain the minimum level of severity
required for there to be a violation of Article 3 in an expulsion or
extradition case (§ 177).
With regard to the facts of the case, the
Government accepted that there was a real risk that the first, third, fifth and
sixth applicants would be detained at ADX Florence if convicted and the Court
proceeded on that basis. It found that the physical conditions there - that is,
the size of the cells, the availability of lighting and appropriate sanitary
facilities and so on - met the requirements of Article 3 (§ 219). Moreover, the
Court did not accept that the applicants would be detained at ADX Florence simply
on account of their conviction for terrorism offences. Instead, it was clear to
the Court that the Federal Bureau of Prisons would apply accessible and
rational criteria, and placement was accompanied by a high degree of
involvement of senior officials within the Bureau who were external to the
inmate’s current institution. Both this fact and the requirement that a hearing
be held prior to transfer provided an appropriate measure of procedural
protection. Even if the transfer process were unsatisfactory, there would be
recourse to the Bureau’s administrative remedy programme and the federal courts
to cure any defects in the process (§ 220).
Moreover, the Court further held that if the
applicants were convicted the United States’ authorities would be justified in
considering them to pose a significant security risk and strictly limiting
their ability to communicate with the outside world. In any case, the Court
found that while the regime in the General Population Unit and the Special
Security Unit at ADX Florence were highly restrictive and aimed to prevent all
physical contact between an inmate and others, that did not mean that inmates
were kept in complete sensory isolation or total social isolation. Although
confined to their cells for much of the time, a great deal of in-cell
stimulation was provided through television and radio, newspapers, books,
crafts and educational programming. Inmates were also permitted regular
telephone calls and social visits and even those under special administrative
measures were permitted to correspond with their families. Furthermore, the
Court found that applicants could talk to each other through the ventilation
system and during recreation periods they could communicate without impediment.
In any case, the Court observed that the figures showed that there would be a
real possibility for the applicants to gain entry to step down or special
security unit programs. Consequently, the Court concluded that the isolation
experienced by ADX inmates was partial and relative (§§ 221 - 223).
With regard to sentencing the Court held that an
extradition would only violate Article 3 if the applicant faced a grossly
disproportionate sentence in the receiving State. However, it would only be in
very exceptional circumstances that the applicant would be able to demonstrate
that a sentence faced in a non-Contracting State would be grossly
disproportionate (§ 238). In this regard, the Court noted that an Article 3
issue would only arise in respect of a mandatory life sentence without parole
and a discretionary life sentence when it could be shown that the applicant’s
imprisonment could no longer be justified on any legitimate penological grounds
and that the sentence was irreducible de facto and de jure (§
242).
Finally, the Court considered the position of
persons with mental health problems. It noted that insofar as the applicants’
complaints concerned the conditions of pre-trial detention, those complaints
were manifestly ill-founded because it had not been suggested that prior to
extradition the United Kingdom authorities would not inform their United States’
counterparts of the applicants’ mental health conditions or that, upon
extradition, the United States’ authorities would fail to provide appropriate
psychiatric care to them. The Court also noted that it had not been argued that
psychiatric care in the United States’ federal prisons was substantially
different to that available at HMP Long Lartin. Moreover, there was no reason
to believe that the United States’ authorities would ignore any changes in the
applicants’ conditions or refuse to alter the conditions of their detention to
alleviate any risk to them. The Court further found that no separate issue
arose with regard to post-trial detention (§ 249).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant submitted that his extradition to
the United States would not be compatible with Article 3 of the Convention,
which provides as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
A. The parties’ submissions
1. The applicant
The applicant submitted that his uprooting for
placement in an as yet unknown and unidentified future environment of which no
detail had been provided to the Court, with a risk of placement in conditions
of isolation, would not be compatible with Article 3 of the Convention.
The applicant submitted that his detention in Broadmoor Hospital was essential for his personal safety and treatment. In particular, he
relied on the decision of the Mental Health Tribunal of 11 November 2011, which
found that it was appropriate for the applicant to remain at Broadmoor rather
than be returned to HMP Long Lartin despite the fact that HMP Long Lartin had
an experienced healthcare department.
The applicant also contended that if extradited
he could remain in pre-trial detention for a number of years and no information
had been submitted by the Government or by the United States’ Department of
Justice concerning the conditions of that detention.
The applicant further submitted that there was
evidence to suggest that mentally ill patients were detained at ADX Florence
and that this was not disputed by the Government. It was therefore likely that if
convicted and sentenced he would be housed at ADX Florence in a single cell,
where at best he would spend a significant part of each day alone. If this were
the case, he submitted that the conditions of isolation were likely to
exacerbate his pre-existing mental illness. The applicant had a history of not
eating and drinking while under stress and immediately after his transfer from
HMP Long Lartin to Broadmoor he had experienced florid psychiatric
episodes and a continuing refusal to take food and drink. He therefore
submitted that there was a real risk that this behaviour would resume were he
to be extradited to a different and potentially more adverse environment in a
different country. Moreover, there was evidence to suggest that force-feeding
was employed at ADX Florence when inmates went on hunger strike and if used on
the applicant it would likely cause him significant pain and distress.
Therefore, although the Court had found in Babar
Ahmad that the conditions in ADX Florence would not violate Article 3 in
respect of the applicants in that case, the applicant submitted that they were
likely to have a much greater impact on him on account of his mental illness.
Finally, the applicant submitted that
prosecution in the United Kingdom could be contemplated and achieved without
the accompanying risks outlined above.
2. The Government
The Government submitted that if the applicant
consented to the communication of his confidential medical records to the
United States’ authorities in advance of his surrender, they would ensure that
the records were so communicated. Consequently, if surrendered to the United
States’ authorities his mental health would be relevant to every decision taken
regarding his placement within the prison system, both while on remand and, if
convicted, following conviction and sentencing. It could also be raised as an
issue in respect of his fitness to plead or competency to stand trial. All
relevant decisions would be taken in circumstances where the applicant would
have a full right of access to the United States’ courts and the full panoply
of protections afforded to him by the United States’ criminal justice system.
With regard to the possible conditions of
detention, the Government principally relied on the information provided by the
United States’ Department of Justice. In particular, they reiterated that while
a diagnosis of schizophrenia would not preclude designation to a maximum
security facility such as ADX Florence, in practice most inmates with this diagnosis
were managed and treated in other facilities.
The Government therefore submitted that the
applicant’s extradition to the United States would not be incompatible with his
Article 3 rights by virtue of his mental health concerns.
B. The Court’s assessment
With regard to the applicant’s submission as to
the appropriate forum for prosecution, the Court notes that the Government have
not disputed that the offences for which his extradition is sought could be
tried in the United Kingdom. In such a case it would be for the competent
domestic court to determine whether or not he was fit to stand trial. It
observes, however, that in their submissions in Babar Ahmad the
Government stated that they do not intend to prosecute the applicant for any of
the offences at issue (see Babar Ahmad and Others v. the United Kingdom,
nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 166, 10 April 2012). Consequently, the
Court does not consider that the question of the appropriate forum for
prosecution, and the relevance of this question to the Court’s assessment under Article 3, arises
for examination in the present case (cf. Soering v. the United Kingdom, 7 July 1989, § 16, Series A no. 161).
With regard to the
substance of the applicant’s complaint, it is now well-established that
Contracting States have the right to control the entry, residence and expulsion
of aliens. However, in exercising their right to expel aliens, Contracting
States must have regard to Article 3 of the Convention which enshrines one of
the fundamental values of democratic societies. It is precisely for this reason
that the Court has repeatedly stressed in its line of authorities involving
extradition, expulsion or deportation of individuals to third countries that
Article 3 prohibits in absolute terms torture or inhuman or degrading treatment
or punishment and that its guarantees apply irrespective of the reprehensible
nature of the conduct of the person in question (see, for example, Ahmed v. Austria, judgment
of 17 December 1996, Reports of Judgments and
Decisions 1996-VI, p. 2206, § 38, and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1853, §§ 73-74).
On many occasions the Court has held that the detention of a person who is ill may
raise issues under Article 3 of the Convention and that the lack of appropriate
medical care may amount to treatment contrary to that provision (see Sławomir Musiał
v. Poland,
no. 28300/06, § 87, 20 January 2009 with further references therein). In
particular, the assessment of whether the particular conditions of detention
are incompatible with the standards of Article 3 has, in the case of mentally
ill persons, to take into consideration their vulnerability and their
inability, in some cases, to complain coherently or at all about how they are
being affected by any particular treatment. The feeling of inferiority and
powerlessness which is typical of persons who suffer from a mental disorder calls
for increased vigilance in reviewing whether the Convention has (or will be)
complied with. There are three particular elements to be considered in relation
to the compatibility of an applicant’s health with his stay in detention: (a)
the medical condition of the prisoner, (b) the adequacy of the medical
assistance and care provided in detention, and (c) the advisability of
maintaining the detention measure in view of the state of health of an
applicant (ibid. and Dybeku v. Albania, no. 41153/06, § 41, 18 December 2007).
The
medical evidence in the present case indicates that the applicant is suffering
from an enduring mental disorder, namely paranoid schizophrenia, which has been
characterised by auditory hallucinations, thought disorder, delusions of
reference, grandeur and guarded and suspicious behaviour (paragraph 22 above).
The last forensic psychiatrist report submitted to the Court indicated that his
condition was well controlled on anti-psychotic medication and that participation
in occupational and vocational activities at Broadmoor, including attendance at
the Mosque, had helped prevent any significant deterioration in his mood.
However, the applicant had only limited insight into his illness and would be
likely to relapse if he ceased taking his medication. In giving evidence to the
First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health a
Consultant Forensic Psychiatrist stated that if he were to be returned to
prison, his compliance with medication would be uncertain, particularly in the
medium to long term, and this would likely lead to a relapse. The Tribunal
subsequently concluded that detention and treatment in a medical hospital were
necessary for the applicant’s own health and safety.
Whether
or not the applicant’s extradition to the United States would breach Article 3
of the Convention very much depends upon the conditions in which he would be detained
and the medical services that would be made available to him there. However, any
assessment of those detention conditions is hindered by the fact that it cannot
be said with any certainty in which detention facility or facilities the
applicant would be housed, either before or after trial. This is particularly
the case with respect to the pre-trial period, about which very little
information has been provided. The United States’ Department of Justice has
given no indication of where the applicant would or could be held, although it
has advised that if he consents to his medical records being provided to the
United States’ authorities on extradition, those authorities would be able to
take his mental health concerns into account in deciding where to house him
while on remand. It is also unclear how long the applicant might expect to
remain on remand pending trial. If extradited the applicant’s representatives would
be entitled to contend that he was not fit to stand trial in the United States
on account of his mental disorder. A District Judge would then have to assess
his competency and, if the applicant was found to be competent, he could appeal
to the Court of Appeals. There is no information before the Court concerning
the potential length of a competency assessment or any subsequent appeals
procedure, but it is reasonable to assume that the length of pre-trial
detention might be prolonged if the applicant were to assert these rights. Finally,
the Court notes with concern the complete absence of any information about the
consequences for the applicant if the District Judge were to find that he was
not fit to stand trial.
The
Court has given its fullest consideration to the submissions of the Government
and the Department of Justice concerning the treatment of mentally ill
prisoners in the United States of America. In particular, it notes that with
regard to detention following a possible conviction, the Department of Justice
has informed the Court that after sentencing the Federal Bureau of Prisons
would decide which institution the applicant should be housed in. The Bureau
would assess the applicant within the first twenty-four hours and if there were
concerns about his mental health at that time a doctoral level psychologist
would be consulted. In any case, he would be referred to a doctoral level
psychologist after fourteen days for an evaluation. If the Bureau held a
hearing, the applicant could present evidence and make an oral statement to the
panel. In deciding which institution he should be housed in, the Bureau would
consider any medical, psychiatric or psychological concerns that had been
identified. While his mental disorder would not by itself preclude his
designation to ADX Florence, the evidence suggested that most inmates with
paranoid schizophrenia were not housed in maximum security facilities
(see paragraph 27 above).
Moreover,
according to the information provided by the Department of Justice, mental health
services were available in all prisons, including ADX Florence, and both
inpatient, residential and outpatient care was available. Conditions of
confinement could also be modified if an inmate’s mental health was to
deteriorate and acutely mentally ill inmates could be referred to a Psychiatric
Referral Centre for acute, in-patient psychiatric care (see paragraph 27 above).
The
Court therefore accepts 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. Indeed, it recalls that in Babar Ahmad
it was not argued that psychiatric care in the United States’ federal prisons
was substantially different from that which was available at HMP Long Lartin (Babar
Ahmad, cited above, § 249). However, the mental disorder suffered by the present
applicant was of sufficient severity to necessitate his transfer from HMP Long
Lartin to a high-security psychiatric hospital and the medical evidence, which
was accepted by the First-Tier Tribunal, clearly indicated that it continued to
be appropriate for him to remain there “for his own health and safety”.
The
question in the present case is not whether the applicant can be returned to
HMP Long Lartin but whether he can be extradited to the United States of America, a country where he has no ties and where he will face an uncertain future
in an as yet undetermined institution. Moreover, there is no guarantee that if
tried and convicted he would not be detained in ADX Florence, where he
would be exposed to a “highly restrictive” regime with long periods of social
isolation. In this regard, the Court notes that the applicant’s case can be
distinguished from that of Mustafa Kamal Mustafa (Abu Hamza). While no
“diplomatic assurances” were given that Abu Hamza would not be detained in
ADX Florence, the High Court found on the evidence before it that his medical
condition was such that, at most, he would only spend a short period of time
there (Babar Ahmad and Others v. the United Kingdom, nos.
24027/07, 11949/08, 36742/08, 66911/09 and 67354/09 (dec.), §§ 144 - 145, 6 July 2010). The Court notes, however, that there is no evidence to
indicate the length of time that the present applicant would spend in ADX
Florence.
While the Court in Babar Ahmad did not accept that the conditions in ADX
Florence would reach the Article 3 threshold for persons in good health or with
less serious mental health problems, the applicant’s case can be distinguished
on account of the severity of his mental condition. The applicant’s case can
also be distinguished from that of Bensaid v. the United Kingdom,
no. 44599/98, (ECHR 2001-I) as he is facing not
expulsion but extradition to a country where he has no ties, where he will be
detained and where he will not have the support of family and friends.
Therefore, in light of the current medical evidence, the Court finds that there
is a real risk that the applicant’s extradition to a different country and to a
different, and potentially more hostile, prison environment would result in a
significant deterioration in his mental and physical health and that such a
deterioration would be capable of reaching the Article 3 threshold (see Bensaid
v. the United Kingdom, cited above, § 37).
Insofar
as the applicant’s complaints concern the length of his possible detention, and
leaving aside his present mental condition, the Court finds that he has not
demonstrated that any sentence imposed would be grossly disproportionate. It
has previously held that while, in principle, matters of appropriate sentencing
largely fall outside the scope of Convention, a grossly disproportionate
sentence could amount to ill-treatment contrary to Article 3 at the
moment of its imposition. However, it has also stated that “gross
disproportionality” is a strict test which will only be met on “rare and unique
occasions” (Babar Ahmad, cited above, §§ 235 - 237; see also Harkins and Edwards v.
the United Kingdom, nos. 9146/07 and 32650/07, § 133 17 January 2012). In the present case the evidence
suggested that the applicant could be sentenced to anything up to thirty-five
years’ imprisonment. There was no minimum sentencing requirement. In view of
the nature of the alleged offences, which included terrorism offences, and the
high threshold required to demonstrate that a sentence would be grossly
disproportionate, the Court does not accept that the applicant’s extradition
would give rise to a real risk of treatment contrary to Article 3 of the
Convention as a result of the length of any sentence imposed.
II. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
59 Article 41
of the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
60 The applicant did
not submit a claim for just satisfaction.
III. RULE 39 OF THE RULES OF COURT
The
Court recalls that, in accordance with Article 44 § 2 of the Convention, the
present judgment will not become final until (a) the parties declare that they
will not request that the case be referred to the Grand Chamber; or (b) three
months after the date of the judgment, if reference of the case to the Grand
Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects
any request to refer under Article 43 of the Convention.
It
considers that the indication made to the Government under Rule 39 of the Rules
of Court (see paragraph 4 above) must continue in force until the present
judgment becomes final or until the Court takes a further decision in this
connection (see operative part).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there would be a violation of
Article 3 of the Convention in the event of the applicant’s extradition
solely on account of the current severity of his mental condition;
2. Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable in the
interests of the proper conduct of the proceedings not to extradite the
applicant until such time as the present judgment becomes final or until further
order.
Done in English, and notified in writing on 16 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David
Thór Björgvinsson
Registrar President
