The disturbing doublethink of the European Court of Human Rights

ECHRby Joseph Markus

This comment concerns two recent cases decided by the European Court of Human Rights. Those cases are Babar Ahmad and Others v the United Kingdom (2013) 56 EHRR 1, [2012] ECHR 609 and Vinter and Others v the United Kingdom [2013] ECHR 645. The second of these – Vinter – was decided by the Grand Chamber of the Court on 9 July following a hearing in November last year.

These two cases grapple with starkly similar issues, albeit there is one distinguishing feature. In Babar Ahmad, the applicants faced extradition; in Vinter they did not.

Vinter concerned three applicants each of whom had been convicted of horrific crimes. Each had been sentenced to life imprisonment with what is known as a “whole life tariff”. In other words, these applicants were never going to be eligible for release on licence (or parole). They would remain in prison until they died. The argument they raised was that such a term of imprisonment – without any possibility for release or review – violated Article 3 of the Convention, as it amounted to inhuman or degrading treatment.

In a long, well-reasoned decision the Grand Chamber in Vinter, to the consternation of the “very very, very very” disappointed David Cameron, found that the UK arrangements did violate Article 3. This was because there was no clear legal or practical prospect of review or release: what the court describes as a de jure and de facto “irreducible” sentence. The absence of such a mechanism, in the words of the applicants’ counsel, crushed any hope at the outset and effectively destroyed the possibility and need for any kind of rehabilitation.

Vinter is a good decision. It is a decision in keeping with the prevalent international and European trends on penal policy. It does not mean that whole-life tariff prisoners (of whom there are 49 in the UK) will immediately be eligible for release. What it does mean is that those prisoners must at least have the possibility of review and, thereafter and if appropriate, release. It does not displace the primary role of the state in determining the date of release. It simply requires that the reasons for which the sentence was initially imposed still hold true 25, 30 or more years later.

Babar Ahmad being interviewed

Babar Ahmad being interviewed

Babar Ahmad, by contrast, in reviewing the US penal system, found that extradition to face a life sentence without parole would not violate Article 3 – strange given that the relevant factual matrix in both cases is essentially identical, but for the “extradition context”. That “extradition context”, as it turns out, is crucial to understanding the cases; but, in my view, insufficient to justify the difference in outcome. This is the doublethink.

Babar Ahmad – who had been imprisoned in the UK without charge for around 8 years by the time of his extradition – was accused of setting up and running a “terrorist” website. This was a charge he vigorously refuted and he was all too willing to do so in court in the UK. However the UK wasn’t interested in prosecuting Mr Ahmad – the US was. Extradition proceedings began and, by way of a preliminary issue – although it went on to delay the proceedings by many years – was whether Mr Ahmad, and the others sought, would face torture and/or inhuman and/or degrading treatment or punishment in the US. Among other things, the US, they argued, would imprison them for life without parole, which they said violated Article 3 of the European Convention on Human Rights. (For more information on this case, see my previous post here.)

In the domestic courts, the House of Lords in Wellington [2008] UKHL 72 had developed an argument around the idea of the extradition context. In essence, the Lords held that in extradition-type cases, a relativist approach was necessary: that considerations in favour of the extradition must be “included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment and punishment”. Lord Hoffmann remarked that “[a] relativist approach to the scope of article 3 seems to me essential if extradition is to continue to function.”

The court in Babar Ahmad – luckily – disagreed, finding that “the question whether there is a real risk of treatment contrary to Article 3 in another State cannot depend on the legal basis for removal to that State.

But this is where the court’s commitment to the absolute bar on sending people to face torture seemed to falter.

It then suggested that “it agrees … that the absolute nature of Article 3 does not mean that any form of ill-treatment [in the court’s language, meaning treatment contrary to Article 3] will act as a bar to removal from a Contracting State.” In order to justify this retreat the court observed that “the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States”.

The result? Treatment which when inflicted on a domestic level would amount to torture might not do so when inflicted by a non-European country in the extradition context – precisely the argument the court had just rejected. Here the court brought relativity into Article 3 assessment through a backdoor re-definition of the severity of ill-treatment: torture is very severe when we do it, but less so when done by our occasionally democratic neighbours.

So the first issue is consistency: that the court says one thing here but does another. The second – equally worrying – issue is that the reasoning cannot support the conclusion.

ADX SupermaxThe Convention binds the UK and not the US. When a person within the UK’s jurisdiction complains that being sent out of the jurisdiction presents a real risk of Article 3 ill-treatment, it is the UK that must protect and harbour them. It is the UK that mustn’t send them there. And it is sending them there that would result in the violation – not, crucially, whatever the receiving country later does.

Contrary to what it says, the court would not be “requiring” the UK to impose these obligations on the US. The court simply doesn’t have that power. The US could continue to do what it wanted, subject to the limitation that the UK would be prohibited from extraditing individuals who faced a without-parole sentence. It is already prohibited from extraditing people who could face the death penalty on Article 3 grounds – there is no material difference. You cannot take a human rights court out of this reality: in the field of international terrorism – and almost any other international issue – some effect will be felt by non-Convention states.

It is an unfortunate strand of reasoning and it is one that has led to the applicants in Babar Ahmad being sent – irretrievably – to the US where they face, if convicted, sentences which, if imposed in the UK, would now be considered to violate their human rights. Whatever the reasons for giving it, and whatever the reasons for succumbing to the Contracting States’ call for “relativisation”, it is important that the court is mature enough to recognise mistakes and try to rectify them. It is too late for Babar Ahmad, but possibly not for others.

  1. Again as in your previouse case of extradition to Jordan etc it seems the human rights discussion evades a very basic problem: the nature of sovereignty and the relation of Courts to that sovereignty. You freely state that non-contracting parties ( eg USA, or Russia with regard to the extra-territorialtrial of its own citizens )cannot be bound by “international” decisions; so what claims Courts may effectively make are subsidiary, and in fact dependent, on prior decisions of the relevant Sovereign,- in a democracy that means of the Sovereign People. Suggestions that Courts have a power in fact or law to “instruct” a sovereign country or accuse it of obstruction are it seems tendentious; and if pursued would be at best temporary in law pending the revsions of the underlying State support for the court’s role and ‘powers’ where it as sovereign disagrees. The State can no more be bound by a Court than a Parliament can be bound by a vote in the previously elected chamber – which I suggest makes nonsense of undertakings to hold referendums after the current Parliament terminates – even if such votes were more than a political charade – just as does the claim to have made binding human rights decisions that limit future democratic decisions which may be taken to violate or change them. We seem to be building castles in the air, and need to take care to avoid falling rubbish.

    • josephmarkus said:

      Your comment makes much sense in the context of a world in which an “international” law did not exist. However we do have international law. Traditional positive international law doctrine makes clear that states can bind themselves. (It’s worth mentioning, as well, that states do in fact bind themselves through treaties and regard themselves as bound.) International law also suggests that it is hierarchically superior to municipal law.

      This, of course, relies on a wider constitutional understanding of international law, that is both agreed and can encompass domestic law. Anything else would degenerate into a form of pluralism (which I wouldn’t necessarily exclude). But, in any event, in the highly-formalised field of European human rights law, any sense of pluralism is largely peripheral. That is to say: we agreed to the “sovereignty” of the Strasbourg Court on human rights matters covered by the Convention and there is a “contract” (i.e. the Convention and supplementary Protocols) to prove it.

      • senex72 said:

        well,Agreed, but it then appears the Court’s standing rests on a series of treaty obligations voluntarily undertaken by Sovereigns: there is no Imperial rule that over-rides Municipal rights to vary treaties under its own laws here. A treaty that violated basic constitutional arrangements of a signatory power would be invalid too I am told.

        Since treaties can be revoked, and do not I think can bind successor Parliaments against their will, the Court’s foundation as an unimpeachable fountainhead of impartial justice seems shaky. International court’s powers seem to arise from and be subordinate to the (Municipal)Sovereigns concerned. Thus Blair proceeds round Europe free from arrest for alleged war crimes and alleged lying to Parliament; Bush and associates on the other hand appear to have to be more careful where they tread according to some reports.
        There would seem to be nothing scandalous or illegal about a Sovereign, say by plebiscite, revising or cancelling such a treaty,or excluding certain classes of people from its territory, or exiling them, however much one might deplore this or that instance personally.

        ‘International Law’ – ie law not issued by any Sovereign for its own territory – would seem to be a rather fancifull notion and more matter of political convenience and self-interested practicality (so far as politicians can see that)between nations than a matter of ‘abstract justice’ would it not? One might site the political struggles to expand or limit legal actions and interpretations and apply them concernibng Israel and its alleged improprieties as an exampke.

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