Case Summary of Ahmad and others v United Kingdom (2013) 56 EHRR 1
Article 3 of the European Convention on Human Rights (ECHR) states that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment." In Ahmed and Others v United Kingdom,1 the European Court of Human Rights (ECtHR) decided how Article 3 should be applied where:
- the extraditing state is not a signatory to the convention; and
- the individual being extradited could be subject to treatment that breaches their convention rights.2
The six applicants in this case were all indicted on separate terrorism related charges in the USA.3 The allegations were serious, and included "conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country,"4 "conspiracy to establish a jihad training camp" on United States territory,5 and "two hundred and sixty-nine counts of murder" in relation to terrorist attacks on US embassies Nairobi and Dar es Salaam in 1998.6 On the basis of three separate indictments, the USA sought extradition of the six applicants from the UK.7 All contested extradition, and had exhausted their right of appeal before the domestic courts before having their cases heard before the ECtHR.8
At the time, extradition between the UK and USA was governed by the 1972 UK - USA Extradition Treaty. This gave assurances "that the death penalty would not be carried out" but was silent on other issues relating to the treatment of prisoners.9 If convicted, the applicants faced the real prospect of being imprisoned in ADX Florence, a so-called "supermax" prison10 with severely curtailed freedoms. A psychiatrists report concluded that although a "supermax prison regime did not amount to sensory deprivation .... there was an almost total lack of meaningful human communication. This tends to induce a range of psychological symptoms ranging from panic to psychosis and emotional breakdown."11 The real possibility of being subjected to "special administrative measures" risked compounding the affects of this treatment.12 All applicants faced the prospect of receiving mandatory life sentences without the possibility of parole.13 These factors, they argued, would amount to a breach of their rights under Article 3.
The Court began by underlining its commitment to upholding Article 3 - "one of the most fundamental values of democratic society."14 They went on to note that the applicants appeared to agree "that physical conditions at ADX Florence - that is, the size of cells, the availability of lighting and appropriate sanitary facilities and so on - meet the requirements of Article 3."15 As such, the applicants complaints principally concerned "(1) the alleged lack of procedural safeguards before placement at ADX; and (2) .... ADX's restrictive conditions and lack of human contact."16 It dismissed the first point, concluding that placement in ADX's was reserved for the most dangerous of criminals and that it does not necessarily follow that the applicants would automatically be placed at ADX upon conviction.17 This rendered the second point less pressing, although the Court concluded that the USA would be justified in restricting conditions for convicts who posed "a significant security risk," observing that the "Federal Bureau of Prisons has well-established procedures for reviewing an inmate's security classification."18 As such, restrictive conditions were not automatic, and mechanisms were in place to review and remove them if the risk posed by an inmate subject to them reduced.
Where mandatory life sentencing was concerned, the Court concluded that "Article 3 issue will only arise when it can be shown: (i) that the applicant's continued incarceration no longer serves any legitimate penological sic purpose; and (ii) the sentence is irreducible de facto and de jure."19 As the applicants had not yet been convicted of a crime, no breach of Article 3 could yet be considered to have arisen.
The case has wide reaching implications. It marks a radical departure from the courts long standing previous position of strictly upholding the protections afforded by Article 3, allowing little deviation frrm the underlying principle. In Chahal v The United Kingdom,20 the court blocked the extradition of a terrorism suspect where his Article 3 rights were likely to be impinged, even though it accepted that the individual concerned probably posed a domestic security threat. A weakening of this stance was seen in Othman (Abu Qatada) V The United Kingdom,21 where a detailed Memorandum of Understanding (MoU) between the Jordanian and United Kingdom which guaranteed the claimants Article 3 rights was deemed to be sufficient protection to permit extradition (although it must be noted that extradition was blocked it on other grounds).
One could argue that the existence of an extradition treaty between Britain and the USA22 in Ahmad is analogous with the MoU in Othman, and that this is the key feature that distinguishes these decisions from Chahal. Yet, even with the protections afforded by the extradition treaty, the claimants in Ahmad were still at risk of having their rights under Article 3 breached in a territory beyond the jurisdiction of the ECtHR. One must note that the Convention binds the United Kingdom, not the United States (or any other non-signatory extraditing country for that matter). Once they have been extradited, there is little the court can do to uphold their rights.
In light of these observations, it is interesting to compare Ahmad with Vinter and Others v the United Kingdom23, where indefinite detention was found to amount to "cruel and unusual punishment," in breach Article 3 of the convention. The only material difference between these decisions - where indefinite detention is concerned - seems to be the extradition element. There seems to be little logic or consistency in the two. Indeed, some commentators have described this contrast as "disturbing doublethink."24
After extradition, Ahmed pled guilty to the charges against him and returned to the UK just over a year after being convicted.25 However, Abu Hamza (the fourth applicant) was eventually sentenced to life in prison without the possibility of parole.26 According to his lawyers, this sentence violated the terms of the agreement that allowed for this extradition.27 Following the decision in Vinter, there is no doubt that the ECtHR would consider Abu Hamza's sentence to amount to a breach Article 3 if it were imposed within its jurisdiction. However, as he is now beyond the courts territorial reach of the Court, there is little that it can do.
It remains to be seen whether the decision in Ahmad was merely a one-off anomaly, or whether the jurisprudence of the ECtHR is evolving to accommodate new challenges posed by international terrorism in the post 9/11 age.
1 Ahmad and others v United Kingdom (2013) 56 EHRR 1
2 ibid 1, case details & para 4.
3 ibid 1, para 8
4 ibid 1, para 10
5 ibid 1, para 14
6 ibid 1, para 17-19
7 ibid 1, para 9
8 ibid 1, paras 20-61
9 ibid 1, para 62
10 ibid 1, para 81
11 ibid 1, para 99
12 ibid 1, para 89
13 ibid 1, para 69
14 ibid 1, para 200
15 ibid 1, para 219
16 ibid 1, para 219
17 ibid 1, para 220
18 ibid 1, para 221
19 ibid 1, para, 243
20 Chahal v United Kingdom (1996) 23 EHRR 413
21 Othman (Abu Qatada) V The United Kingdom (2009) EHRR 8139/09
22 1972 UK - USA Extradition Treaty
23 Vinter and Others v the United Kingdom 2013 ECHR 645.
24 Markus, (2013) "The disturbing doublethink of the European Court of Human Rights" Social Justice First, here last accessed 4th October 2015
25 Casciani, (2015) "Cyber-Jihadist Babar Ahmed Released," BBC News Online, 15th July 2015, here last accessed 01st October 2015.
26 Woolf, (2015) "Abu Hamza sentenced to life in prison on US terrorism conviction" The Guardian Online, (9th January 2015) here last accessed 3rd October 2015
27 Anon (2015) "Radical cleric Abu Hamza jailed for life by US court" BBC News Online (9th January 2015) here last accessed 03rd October 2015