EHRM, 17-01-2012, nr. 9146/07, nr. 32650/07

Article 7 of the ICCPR where relevant provides that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ The Human Rights Committee's most recent general comment on Article 7 (No. 20, of 10 March 1992) states the Committee's view that: ‘States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.’ (see also Chitat Ng v. Canada, CCPR/C/49/D/469/1991, 7 January 1994; A.J.R. v. Australia, CCPR/C/60/D/692/1996, 11 August 1997).

Article 3 § 1 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘UNCAT’) provides:

Article 16 § 2 provides:

The above guidelines (adopted by the Committee of Ministers on 11 July 2002) contain the following provisions on refoulement and extradition:

Article 19 § 2 of the Charter of Fundamental Rights of the European Union provides:

Further to the second affidavit of Mr Michael set out at paragraph 30 above, section 2-304 of the Maryland Criminal Code provides that where the State has given notice of its intention to seek a sentence of life imprisonment without the possibility of parole, the court shall conduct a sentencing hearing as soon as practicable after the defendant is found guilty of murder in the first degree to determine whether he shall be sentenced to imprisonment for life without the possibility of parole or to imprisonment for life. By section 2-101(b), a sentence of imprisonment for life without the possibility of parole means ‘imprisonment for the natural life of an inmate under the custody of a correctional facility’. A person who receives such a sentence is not eligible for parole consideration and may not be granted parole at any time during the term of sentence (Maryland Code of Correctional Services Article 7-301(d)(3)(i)). The courts of Maryland have no role in determining whether such prisoners should be released on parole; that power is vested in the Governor of the State (Article 7-301(d)(3)(ii) and 7-601). He may pardon any individual convicted of a crime subject to any conditions he requires or remit any part of a sentence of imprisonment without the remission operating as a full pardon. An inmate who has been sentenced to life imprisonment (as opposed to a sentence of life imprisonment without the possibility of parole) is not eligible to be considered for parole until he has served fifteen years’ imprisonment. If eligible, he may only be paroled with the approval of the Governor (7-301(1) and (4)).

On 29 May 2008, the United States Department of Justice, having contacted the prosecutor in Maryland, provided the following information to the United Kingdom Government:

In a letter of 2 September 2008 to the second applicant's representatives, the Department of Public Safety and Correctional Services of Maryland provided the following information on the sentence of life imprisonment without the possibility of parole. The sentence is available for a number of non-homicide offences, including rape, child sex offences, kidnapping and, since 1975, for a fourth conviction of a crime of violence (‘the repeat offender provision’). It has been available for homicide since 1987. Approximately 367 offenders from 1977 onwards have been sentenced to life imprisonment without the possibility of parole. A review of records dating back to 1985 indicated that there had been no releases into the community by a Governor's commutation of a sentence of life imprisonment without the possibility of parole. In 1995, there was one commutation of the sentence to one of life imprisonment. The second applicant maintains that, in that particular case, the person had been sentenced to life imprisonment without the possibility of parole under the repeat offender provision. He had applied unsuccessfully for parole after 30 years' imprisonment.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’) prepared a report on ‘Actual/Real Life Sentences’ dated 27 June 2007 (CPT (2007) 55). The report reviewed various Council of Europe texts on life sentences, including recommendations (2003) 22 and 23, and stated in terms that:

It noted the view that discretionary release from imprisonment, as with its imposition, was a matter for the courts and not the executive, a view which had led to proposed changes in the procedures for reviewing life imprisonment in Denmark, Finland and Sweden. The report also quoted with approval the CPT's report on its 2007 visit to Hungary in which it stated:

The report's conclusion included recommendations that: no category of prisoners should be ‘stamped’ as likely to spend their natural life in prison; no denial of release should ever be final; and not even recalled prisoners should be deprived of hope of release.

Article 77 of the Rome Statute of the International Criminal Court allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Such a sentence must be reviewed after twenty-five years to determine whether it should be reduced (Article 110).

Article 5(2) of Council Framework Decision of 13 June 2002 on the European arrest warrant provides:

In his comparative study entitled ‘Outlawing Irreducible Life Sentences: Europe on the Brink?’, 23: 1 Federal Sentencing Reporter Vol 23, No 1 (October 2010), Professor Van Zyl Smit concluded that the majority of European countries do not have irreducible life sentences, and some, including Portugal, Norway and Spain, do not have life sentences at all. In Austria, Belgium, Czech Republic, Estonia, Germany, Lithuania, Luxembourg, Poland, Romania, Russia, Slovakia, Slovenia, Switzerland and Turkey, prisoners sentenced to life imprisonment have fixed periods after which release is considered. In France three such prisoners have no minimum period but it appears they can be considered for release after 30 years. In Switzerland there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous, although the provisions have not been used. The study concludes that only the Netherlands and England and Wales have irreducible life sentences.

R. v. Lichniak and R. v. Pyrah [2003] 1 AC 903, the House of Lords considered the compatibility of a mandatory life sentence as imposed in England and Wales with Articles 3 and 5 of the Convention. It found that, in its operation, a mandatory life sentence was not incompatible with either Article.

Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at § 8 of the judgment).

The House of Lords therefore held firstly, that the appellant's complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention. Lord Bingham added:

In R. v. Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410, HL and R. v. Anderson [2003] 1 AC 837, HL, the House of Lords found that, under the tariff system then in operation, there was ‘no reason, in principle, why a crime or crimes, if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment’ (per Lord Steyn at pp. 416H). Lord Steyn also observed: ‘there is nothing logically inconsistent with the concept of a tariff by saying that there are cases were the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence’ (p. 417H).

Under the present statutory framework in England and Wales, Chapter 7 of the Criminal Justice Act 2003, a trial judge can impose a whole life term or order on a defendant convicted of murder. Such a defendant is not eligible for parole and can only be released by the Secretary of State. In R v. Bieber [2009] 1 WLR 223 the Court of Appeal considered that such whole life terms were compatible with Article 3 of the Convention.

It found that a whole life order did not contravene Article 3 of the Convention because of the possibility of compassionate release by the Secretary of State. It also found that the imposition of an irreducible life sentence would not itself constitute a violation of Article 3 but rather that a potential violation would only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence. The court stated:

Article 1 of the Basic Law of the Federal Republic of Germany provides that human dignity shall be inviolable. Article 2(2) provides:

The compatibility of a mandatory sentence of life imprisonment for murder with these provisions was considered by the Federal Constitutional Court in the Life Imprisonment case of 21 June 1977, 45 BVerfGE 187 (an English translation of extracts of the judgment, with commentary, can be found in D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2^nd ed.), Duke University Press, Durham and London, 1997 at pp. 306–313).

The court found that the State could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth. Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given ‘a concrete and realistically attainable chance’ to regain his freedom at some later point in time.

The court underlined that prisons also had a duty to strive towards the re-socialisation of prisoners, to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment. It recognised, however, that, for a criminal who remained a threat to society, the goal of rehabilitation might never be fulfilled; in that case, it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself. The court also found that, subject to these conclusions, life imprisonment for murder was not a senseless or disproportionate punishment.

In the later War Criminal case 72 BVerfGE 105 (1986), where the petitioner was eighty-six years of age and had served twenty years of a life sentence imposed for sending fifty people to the gas chambers, the court considered that the gravity of a person's crime could weigh upon whether he or she could be required to serve his or her life sentence. However, a judicial balancing of these factors should not place too heavy an emphasis on the gravity of the crime as opposed to the personality, state of mind, and age of the person. In that case, any subsequent review of the petitioner's request for release would be required to weigh more heavily than before the petitioner's personality, age and prison record.

In its decision of 16 January 2010, BVerfG, 2 BvR 2299/09, the Federal Constitutional Court considered an extradition case where the offender faced ‘aggravated life imprisonment until death’ (erschwerte lebenslängliche Freiheitsstrafe bis zum Tod) in Turkey. The German government had sought assurances that he would be considered for release and had received the reply that the President of Turkey had the power to remit sentences on grounds of chronic illness, disability, or old age. The court refused to allow extradition, finding that this power of release offered only a vague hope of release and was thus insufficient. Notwithstanding the need to respect foreign legal orders, if someone had no practical prospect of release such a sentence would be cruel and degrading (grausam und erniedrigend) and would infringe the requirements of human dignity provided for in Article 1.

As stated at paragraph 43 above, section 12 of the Canadian Charter protects against cruel or unusual treatment or punishment. The Supreme Court of Canada has found that a grossly disproportionate sentence will amount to cruel and unusual treatment or punishment (see, inter alia, R v. Smith (Edward Dewey) [1987] 1 SCR 1045). In R v. Luxton [1990] 2 S.C.R. 711, the court considered that, for first degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for twenty-five years was not grossly disproportionate. Similarly, in R v. Latimer 2001 1 SCR 3, for second degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for ten years was not grossly disproportionate. The court observed that gross disproportionality would only be found on ‘rare and unique occasions’ and that the test for determining this issue was ‘very properly stringent and demanding’.

In Dodo v. the State (CCT 1/01) [2001] ZACC 16, the South African Constitutional Court considered whether a statutory provision which required a life sentence for certain offences including murder, was compatible with the constitutional principle of the separation of powers, the accused's constitutional right to a public trial and the constitutional prohibition on cruel, inhuman or degrading treatment or punishment. The court found none of these constitutionals provisions was infringed, since the statute allowed a court to pass a lesser sentence if there were substantial and compelling circumstances. The court did, however, observe that the concept of proportionality went to the heart of the inquiry as to whether punishment was cruel, inhuman or degrading.

In Niemand v. The State (CCT 28/00) [2001] ZACC 11, the court found an indeterminate sentence imposed pursuant to a declaration that the defendant was a ‘habitual criminal’ to be grossly disproportionate because it could amount to life imprisonment for a non-violent offender. The court ‘read in’ a maximum sentence of fifteen years to the relevant statute.

In Reyes v. the Queen [2002] UKPC 11 the Judicial Committee of the Privy Council considered that a mandatory death penalty for murder by shooting was incompatible with section 7 of the Constitution of Belize, which prohibits torture and ill-treatment in identical terms to Article 3 of the Convention. Lord Bingham observed that to deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate was to treat him as no human being should be treated. The relevant law was not saved by the powers of pardon and commutation vested by the Constitution in the Governor-General, assisted by an Advisory Council; in Lord Bingham's words ‘a non-judicial body cannot decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed’.

In de Boucherville v. the State of Mauritius [2008] UKPC 70 the appellant had been sentenced to death. With the abolition of the death penalty in Mauritius, his sentence was commuted to a mandatory life sentence. The Privy Council considered the Court's judgment in Kafkaris, cited above, and found that the safeguards available in Cyprus to prevent Kafkaris from being without hope of release were not available in Mauritius. The Mauritian Supreme Court had interpreted such a sentence as condemning de Boucherville to penal servitude for the rest of his life and the provisions of the relevant legislation on parole and remission did not apply. This meant the sentence was manifestly disproportionate and arbitrary and so contrary to section 10 of the Mauritian Constitution (provisions to secure protection of law, including the right to a fair trial). It had also been argued by the appellant that the mandatory nature of the sentence violated section 7 of the Constitution (the prohibition of torture, inhuman or degrading punishment or other such treatment). In light of its conclusion on section 10, the Committee considered it unnecessary to decide that question or to consider the relevance of the possibility of release under section 75 (the presidential prerogative of mercy). It did, however, find that the safeguards available in Cyprus (in the form of the Attorney-General's powers to recommend release and the President's powers to commute sentences or decree release) were not available in Mauritius. It also acknowledged the appellant's argument that, as with the mandatory sentence of death it had considered in Reyes, a mandatory sentence of life imprisonment did not allow for consideration of the facts of the case. The Privy Council also considered any differences between mandatory sentences of death and life imprisonment could be exaggerated and, to this end, quoted with approval the dicta of Lord Justice Laws in Wellington and Lord Bingham in Lichniak (at paragraphs 35 and 67 above).

In State v. Philibert [2007] SCJ 274, the Supreme Court of Mauritius held that a mandatory sentence of 45 years’ imprisonment for murder amounted to inhuman or degrading treatment in violation of section 7 on the grounds that it was disproportionate.

In State v. Tcoeib [1997] 1 LRC 90 the Namibian Supreme Court considered the imposition of a discretionary life sentence to be compatible with section 8 of the country's constitution (subsection (c) of which is identical to Article 3 of the Convention). Chief Justice Mahomed, for the unanimous court, found the relevant statutory release scheme to be sufficient but observed that if release depended on the ‘capricious exercise’ of the discretion of the prison or executive authorities, the hope of release would be ‘too faint and much too unpredictable’ for the prisoner to retain the dignity required by section 8. It was also observed that life imprisonment could amount to cruel, inhuman or degrading treatment if it was grossly disproportionate to the severity of the offence. The High Court of Namibia found mandatory minimum sentences for robbery and possession of firearms to be grossly disproportionate in State v. Vries 1997 4 LRC 1 and State v Likuwa [2000] 1 LRC 600.

In Lau Cheong v. Hong Kong Special Administrative Region [2002] HKCFA 18, the Hong Kong Court of Final Appeal rejected a challenge to the mandatory life sentence for murder. It found that the possibility of regular review of the sentence by an independent board meant it was neither arbitrary nor grossly disproportionate and thus it did not amount to cruel, inhuman or degrading punishment.

Section 9 of the New Zealand Bill of Rights Act 1990 also protects against disproportionately severe treatment or punishment.

The first applicant submitted that the House of Lords had erred in Wellington. The Court's rulings in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V and Saadi v. Italy [GC], no. 37201/06, ECHR 2008-… meant there was no possibility of balancing Article 3 rights with other considerations which arose in extradition cases. It was inappropriate for the Court to consider the Canadian case of Burns and Ferris, as the Government had urged (see paragraph 105 below); those cases had been about the qualified right in the Canadian Charter on fundamental justice, not the Charter’s prohibition on cruel and unusual treatment or punishment.

It was also relevant to his case that, as a United Kingdom national, he could be tried in England and Wales for a murder alleged to have been committed abroad. The High Court had been wrong to consider this possibility as ‘wholly unreal’ (see paragraph 20 above); it was no less real than the possibility of Soering being tried in Germany. There was, therefore, no need to follow the relativist approach laid down in Wellington, which had arisen because of the impossibility of trying Wellington in the England and Wales.

The first applicant relied on the fact that he faced a mandatory life sentence, which removed any judicial discretion in sentencing. This was even more arbitrary in his case given that he could be convicted under the felony murder rule, even if it were found that Mr Hayes had been killed accidentally. Contrary to the High Court's view, it was not ‘fanciful’ that the first applicant was at risk of conviction on the basis of a true accident (see paragraph 65 of its judgment, quoted at paragraph 21 above). In fact, it appeared from some of Mr Glover's statements to the police and prosecution that his evidence at trial would be that the gun had gone off accidentally. This was supported by the police and medical reports on the murder (see paragraph 6 above). The first applicant also submitted that, because of the breadth of the felony murder rule, he could also be convicted on the basis that he had lent his car to one of the men who had participated in the robbery of Mr Hayes (see also paragraph 6 above).

The facts of the case also meant that were other avenues of prosecution, such as for second-degree murder, third-degree murder or manslaughter. This underlined that a mandatory sentence of life imprisonment without parole was grossly disproportionate, harsh and unfair. This was even more so in his case given that, according to a psychiatrist who examined him, the first applicant was very immature and suffering from a severe personality disorder. The first applicant submitted a copy of the psychiatrist's report, which concluded that he demonstrated features of Histrionic and Dependent personality disorder together with features of Narcissistic and Borderline personality disorder. This would make him less able to cope with a long period of imprisonment, particularly when systematic bullying and sexual abuse in American prisons were common public knowledge. He also had no previous convictions for violent or drug-related offences. He thus had substantial mitigation available to him but, because of the mandatory nature of the life sentence, he could not put it before the sentencing court.

The first applicant also submitted that the facts of the offence were not ones which would result in a mandatory whole life sentence in any Contracting State or even in the vast majority of the States within the United States. It was also of some relevance that the felony murder rule had been abolished in England and Wales by the Homicide Act 1957. Moreover, even if his offence could be categorised as murder in English law, under present sentencing practices, he would not be eligible for a whole life sentence: there were no aggravating factors which made such a sentence possible and it was, in any event, prohibited for offenders under twenty-one years of age.

The first applicant also relied on the fact that the felony murder rule had been found by the Supreme Court of Canada to be contrary to section 7 of the Canadian Charter in R. v. Martineau [1990] 2 SCR 633 (which prohibits imprisonment except in accordance with the fundamental principles of justice, see paragraph 43 above). The Supreme Court found that the stigma of a murder conviction required that only those who had subjective foresight of death be convicted of and punished for that crime. It was clear from Martineau that the Supreme Court had taken the view that the felony murder rule had no place in a democratic society.

The first applicant further submitted that a further violation of Article 3 would arise because his sentence in Florida would be irreducible: Professor Babcock's evidence showed that his chances of obtaining commutation from the Governor were remote (see paragraph 55 above).

The second applicant considered that, if convicted, his sentence would ultimately be a matter for the trial judge but the prosecution's intention to seek such a sentence and its availability meant there was a real risk of its imposition. That sentence constituted, of itself, inhuman and degrading punishment in violation of Article 3. He relied on the Privy Council's observation in de Boucherville (see paragraph 77 above) that such a sentence was anathema to the principle that life was of inalienable value.

Contrary to the Government's submission (see below), it was of no relevance to the question of reducibility that any sentence imposed by the trial court was subject to review on appeal, since an appeal had to be lodged within thirty days of sentencing. On the question of reducibility he accepted, in the light of Kafkaris, that the existence of the Governor of Maryland's discretion to commute a sentence amounted to a theoretical or de jure possibility of release. He did, however, note that the Governor's decision was attended by none of the procedural safeguards of a judicial decision. It was unreasoned and not guided by any discernible criteria. It was not available as of right and was not susceptible to review.

There was, in any event, no de facto possibility of release. The information provided by the Department of Public Safety and Correctional Services (see paragraph 58 above) showed that of 367 offenders serving sentences of life imprisonment without the possibility of parole, only one person (a repeat offender) had had his sentence commuted but had not been released and no one convicted of first-degree murder had ever been granted a commutation of any kind. The second applicant's case was therefore distinguishable from Kafkaris. It was also distinguishable from Einhorn, § 20, cited above, where the Governor of Pennsylvania had, in the eight-year period from 1987–1994, issued 302 releases and 26 commutations of life-sentenced prisoners. It was also to be distinguished from the position in England and Wales, considered in Bieber (see paragraph 69 above), where the Court of Appeal had taken account of the fact that the Secretary of State had used his power to release life prisoners ‘sparingly’. The complete lack of hope of release in his case was borne out by the prosecution's intention, in the event of conviction, to seek consecutive sentences for the offences for which he was charged.

Even if a life sentence where there was de facto possibility of release did not violate Article 3 per se, the applicant submitted that, because of his young age, such a sentence would violate Article 3 in his case.

He was nineteen at the time of the offences and had no serious criminal record, but the United States’ authorities had confirmed that the Maryland courts would be unlikely to attach much weight to these factors. There was a difference between the imposition of such a sentence on someone of that age and an older person. The time in prison would be longer but, more importantly, the prospects of a young man maturing and reforming whilst in prison were greater, as was the likelihood that the offences were attributable to immaturity. He relied in particular on the Court's observations in Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I that detaining young persons for the rest of their lives might give rise to questions under Article 3 of the Convention (Hussain at paragraph 53; Prem Singh at paragraph 61).

In common with the first applicant, he considered it to be of some relevance that, in England and Wales, whole life orders were not permitted for offenders under twenty-years of age.

The second applicant further relied on Article 37(a) of the United Nations Convention on the Rights of the Child, which prohibits the imposition of life imprisonment without the possibility of parole for offences committed by persons below eighteen years of age, as evidence of a clear statement by the international community that, in the context of such sentences, the youth of the offender was of paramount importance.

Finally, and in common with the first applicant, the second applicant argued that the majority of the House of Lords in Wellington had erred in its relativist approach to Article 3 in the extradition context and that the Canadian cases were irrelevant to the issues before the Court.

The Government relied on the reasoning of the House of Lords in Wellington and the Canadian Supreme Court in Burns and Ferris (see paragraphs 34—42 and 44 and 45 above). On the basis of those cases, the Government submitted that, in the extradition context, a distinction had to be drawn between torture and other forms of ill-treatment. A real risk of torture in the receiving State should be an absolute bar on extradition. However, for all other forms of ill-treatment, it was legitimate to consider the policy objectives pursued by extradition in determining whether the ill-treatment reached the minimum level of severity required by Article 3. This was the appropriate means of resolving the tension that existed between the Court's judgments in Soering, on the one hand, and Chahal and Saadi, on the other. Article 3 could not be interpreted as meaning that any form of ill-treatment in a non-Contracting State would be sufficient to prevent extradition.

The Government further relied on the Court's rulings in Kafkaris and Léger v. France (striking out) [GC], no. 19324/02, 30 March 2009 and the United Kingdom courts’ rulings in Wellington and Bieber (see paragraphs 34—42 and 69 above). In particular, they submitted that, in Wellington, the House of Lords had been correct to find that, while an irreducible life sentence might raise an issue under Article 3, it would not violate Article 3 at the time of its imposition unless it was grossly or clearly disproportionate.

Drawing on the views of the House of Lords in Wellington, the Government further submitted that, unless a life sentence was grossly or clearly disproportionate, Article 3 would only be violated by an irreducible life sentence if the prisoner's further imprisonment could no longer be justified for the purposes of punishment and deterrence. No court could determine at the outset of the sentence when that point would be reached and, in a particular case, it might never be reached at all. Therefore, in the extradition context, unless a life sentence was grossly or clearly disproportionate, its compatibility with Article 3 could not be determined in advance of extradition. Neither applicants' likely sentence was grossly or clearly disproportionate and each of their sentences was reducible, as required by Kafkaris.

In the first applicant's case, the Government stated that there was no possibility of prosecution in the United Kingdom and the case bore no resemblance to Soering, cited above, where the German Government had actively sought to prosecute the applicant.

The Government recalled that the High Court had accepted that, upon extradition to Florida, there was a realistic possibility of prosecution under the felony murder rule. It was not the Government's position that the case against the applicant was one of premeditated killing. It had been accepted by the Government in the High Court proceedings that the case against the first applicant might be put on the basis that he killed Mr Hayes in the course of the robbery without the prosecution having to prove that the first applicant intended to kill Mr Hayes. It was not accepted by the Government that the fact that it was open to the prosecution to put the case on this basis demonstrated that the killing was accidental or that the first applicant did not intend to kill Mr Hayes.

In this connection, the Government recalled that there was evidence that the first applicant planned to rob Mr Hayes at gunpoint and carried an already loaded and cocked weapon for that purpose (see the affidavit of Mr Kimbrel at paragraphs 6 and 7 above). Consequently, the Government did not accept the first applicant's contention that the prosecution's case against him was that the gun which killed Mr Hayes went off accidentally. Nor did the Government accept that deliberate violence inflicted in the course of a robbery with a loaded and cocked weapon could properly be characterised as accidental killing or that such conduct would not amount to murder in English law. Even for an offender aged under twenty-one, murder with a firearm or in the course of a robbery could attract a minimum sentence of thirty years' imprisonment in England and Wales. The first applicant could not derive any assistance from the Supreme Court of Canada's ruling in Martineau. The Supreme Court had accepted that a different approach was required in extradition cases and the ruling had not been universally accepted; for example, it had not been followed by the Privy Council in Khan v. Trinidad and Tobago [2003] UKPC 79.

In any event, these were matters for the jury in any Florida trial and it was clear that conviction under the felony murder rule was reserved only for those offenders who killed in the course of the gravest of offences. Finally, there was also no evidence that the prosecution intended to prosecute the first applicant on the basis that he had lent his car to one of the men who had participated in the robbery: the case against the applicant was that he had shot Mr Hayes in the course of the robbery.

The first applicant's age was not significant. He was just weeks short of his twenty-first birthday when the killing took place. There was no suggestion that he lacked mental capacity. His own psychiatrist's report appeared to indicate that, prior to the killing, the first applicant had been living a violent, criminal lifestyle. The psychiatric report had also stopped short of diagnosing him with a psychiatric disorder such as Narcissistic or Borderline Personality Disorder.

On the evidence provided by the United States' authorities, there was a well-developed system for the granting of executive clemency in Florida and clear practice of commutations. Professor Babcock's evidence did not support the conclusion that there was no prospect of the Governor granting clemency in first degree murder cases in the future. Life imprisonment without parole had only been introduced in Florida sixteen years ago (in 1994) and it was realistic to assume that many of those who had received that sentence would be expected to serve sentences well in excess of that period before being considered for commutation.

For these reasons, the Government submitted that the first applicant's sentence was reducible and, even if it were not reducible, it was not grossly or clearly disproportionate.

In the second applicant's case, the Government did not accept that he faced a real risk of a sentence of life imprisonment without the possibility of parole. All three possible sentences for homicide (the death penalty, life imprisonment without the possibility of parole and life imprisonment) had been imposed in Maryland and, over the past 31 years, 11 individuals per year had been sentenced to life imprisonment without the possibility of parole, which suggested such a sentence was not necessarily typical and by no means mandatory or inevitable. The court in Maryland would not be bound to impose that sentence and, while the prosecutor Mr Michael could not estimate how likely it was that such a sentence would be imposed, he had made it clear that youth and no prior history of serious offending were generally regarded as mitigating factors (see paragraph 30 above). The United States Department of Justice had confirmed this position in its letter of 29 May 2008 (see paragraph 57 above).

If such a sentence were to be imposed it would reducible, given the powers of commutation and pardon of the Governor of Maryland. In Maryland life sentences without the possibility of parole for homicide were relatively recent. It was reasonable to assume that those subject to such a sentence since 1987 had been convicted of murders which would have attracted very substantial sentences if life sentences with the possibility of parole had been imposed instead. It was not surprising, therefore, that no one had been released so far and this did not preclude the possibility of future releases. The relatively few commutations could also be explained by the right of defendants sentenced to life imprisonment without parole in Maryland to have their sentences reviewed by a three-judge panel on appeal. This appellate review was a form of reducibility contemplated by the Court in Kafkaris.

The Government further submitted that the second applicant had been accused of a brutal ‘execution’ style murder of one victim and the attempted murder of another. He was not under eighteen at the time of the offences nor was he suffering from any mental impairment. The UN Convention on the Rights of the Child was therefore irrelevant and only demonstrative of an international consensus against life imprisonment without parole for those under the age of eighteen. The imposition of a sentence of life imprisonment without parole would not be grossly disproportionate in his case.

Finally, and contrary to the second applicant's submissions (see paragraph 100 above), the Mauritian case of de Boucherville was of limited assistance. De Boucherville had been sentenced to death and had his sentence commuted to a mandatory life sentence. He was seventy-eight years of age at the time of his appeal, had spent ten years on death row and then served a further twelve years of his life sentence. The Privy Council had decided the appeal on the basis of the right to a fair trial rather than on the Mauritian Constitution's prohibition on ill-treatment.

The Court begins by observing that the House of Lords in Wellington has identified a tension between Soering and Chahal, both cited above, which calls for clarification of the proper approach to Article 3 in extradition cases. It also observes that the conclusions of the majority of the House of Lords in that case depended on three distinctions which, in their judgment, were to be found in this Court's case-law. The first was between extradition cases and other cases of removal from the territory of a Contracting State; the second was between torture and other forms of ill-treatment proscribed by Article 3; and the third was between the assessment of the minimum level of severity required in the domestic context and the same assessment in the extra-territorial context. It is appropriate to consider each distinction in turn.

For the first distinction, the Court considers 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. The Court's own case-law has shown that, in practice, there may be little difference between extradition and other removals. For example, extradition requests may be withdrawn and the Contracting State may nonetheless decide to proceed with removal from its territory (see Muminov v. Russia, no. 42502/06, § 14, 11 December 2008). Equally, a State may decide to remove someone who faces criminal proceedings (or has already been convicted) in another State in the absence of an extradition request (see, for example, Saadi v. Italy, cited above, and Bader and Kanbor v. Sweden, no. 13284/04, ECHR 2005-XI). Finally, there may be cases where someone has fled a State because he or she fears the implementation of a particular sentence that has already been passed upon him or her and is to be returned to that State, not under any extradition arrangement, but as a failed asylum seeker (see D. and Others v. Turkey, no. 24245/03, 22 June 2006). The Court considers that it would not be appropriate for one test to be applied to each of these three cases but a different test to be applied to a case in which an extradition request is made and complied with.

For the second distinction, between torture and other forms of ill-treatment, it is true that some support for this distinction and, in turn, the approach taken by the majority of the House of Lords in Wellington, can be found in the Soering judgment. The Court must therefore examine whether that approach has been borne out in its subsequent case-law.

It is correct that the Court has always distinguished between torture on the one hand and inhuman or degrading punishment on the other (see, for instance, Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25; Selmouni v. France [GC], no. 25803/94, §§ 95–106, ECHR 1999-V). However, the Court considers that this distinction is more easily drawn in the domestic context where, in examining complaints made under Article 3, the Court is called upon to evaluate or characterise acts which have already taken place. Where, as in the extra-territorial context, a prospective assessment is required, it is not always possible to determine whether the ill-treatment which may ensue in the receiving State will be sufficiently severe to qualify as torture. Moreover, the distinction between torture and other forms of ill-treatment can be more easily drawn in cases where the risk of the ill-treatment stems from factors which do not engage either directly or indirectly the responsibility of the public authorities of the receiving State (see, for example, D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997-III, where the Court found that the proposed removal of a terminally ill man to St Kitts would be inhuman treatment and thus in violation of Article 3).

For this reason, whenever the Court has found that a proposed removal would be in violation of Article 3 because of a real risk of ill-treatment which would be intentionally inflicted in the receiving State, it has normally refrained from considering whether the ill-treatment in question should be characterised as torture or inhuman or degrading treatment or punishment. For example, in Chahal the Court did not distinguish between the various forms of ill-treatment proscribed by Article 3: at paragraph 79 of its judgment the Court stated that the ‘Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment’. In paragraph 80 the Court went on to state that:

Similar passages can be found, for example, in Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I and Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008-… where, in reaffirming this test, no distinction was made between torture and other forms of ill-treatment.

The Court now turns to whether a distinction can be drawn between the assessment of the minimum level of severity required in the domestic context and the same assessment in the extra-territorial context. The Court recalls its statement in Chahal, cited above, § 81 that it was not to be inferred from paragraph 89 of Soering that there was any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State's responsibility under Article 3 was engaged. It also recalls that this statement was reaffirmed in Saadi v. Italy, cited above, § 138, where the Court rejected the argument advanced by the United Kingdom Government that the risk of ill-treatment if a person is returned should be balanced against the danger he or she posed. In Saadi the Court also found that the concepts of risk and dangerousness did not lend themselves to a balancing test because they were ‘notions that [could] only be assessed independently of each other’ (ibid. § 139). The Court finds that the same approach must be taken to the assessment of whether the minimum level of severity has been met for the purposes of Article 3: this too can only be assessed independently of the reasons for removal or extradition.

The Court considers that its case-law since Soering confirms this approach. Even in extradition cases, such as where there has been an Article 3 complaint concerning the risk of life imprisonment without parole, the Court has focused on whether that risk was a real one, or whether it was alleviated by diplomatic and prosecutorial assurances given by the requesting State (see Olaechea Cahuas v. Spain, no. 24668/03, §§ 43 and 44, 10 August 2006; Youb Saoudi v. Spain (dec.), no. 22871/06, 18 September 2006; Salem v. Portugal (dec.), no. 26844/04, 9 May 2006; and Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII). In those cases, the Court did not seek to determine whether the Article 3 threshold has been met with reference to the factors set out in paragraph 89 of the Soering judgment. By the same token, in cases where such assurances have not been given or have been found to be inadequate, the Court has not had recourse to the extradition context to determine whether there would be a violation of Article 3 if the surrender were to take place (see, for example, Soldatenko v. Ukraine, no. 2440/07, §§ 66–75, 23 October 2008). Indeed in the twenty-two years since the Soering judgment, in an Article 3 case the Court has never undertaken an examination of the proportionality of a proposed extradition or other form of removal from a Contracting State. To this extent, the Court must be taken to have departed from the approach contemplated by paragraphs 89 and 110 of the Soering judgment.

Finally, the Court considers that, in interpreting Article 3, limited assistance can be derived from the approach taken by the Canadian Supreme Court in Burns and Ferras (see paragraphs 44 and 45 above). As the applicants have observed, those cases were about the provision of the Canadian Charter on fundamental justice and not the Charter's prohibition of cruel or unusual treatment or punishment. Furthermore, the Charter system expressly provides for a balancing test in respect of both of those rights, which mirrors that found in Articles 8–11 of the Convention but not Article 3 (see section 1 of the Charter at paragraph 43 above).

Instead, the Court considers that greater interpretative assistance can be derived from the approach which the Human Rights Committee has taken to the prohibition on torture and ill-treatment contained in Article 7 of the ICCPR. The Committee's General Comment No. 20 (see paragraph 46 above) makes clear that Article 7 prevents refoulement both when there is a real risk of torture and when there is a real risk of other forms of ill-treatment. Further, recent confirmation for the approach taken by the Court and by the Human Rights Committee can be found in Article 19 of the Charter on Fundamental Rights of the European Union, which provides that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment (see paragraph 50 above). The wording of Article 19 makes clear that it applies without consideration of the extradition context and without distinction between torture and other forms of ill-treatment. In this respect, Article 19 of the Charter is fully consistent with the interpretation of Article 3 which the Court has set out above. It is also consistent with the Council of Europe Guidelines on human rights and the fight against terrorism, quoted at paragraph 49 above. Finally, the Court's interpretation of Article 3, the Human Rights Committee's interpretation of Article 7 of the ICCPR, and the text of Article 19 of the Charter are in accordance with Articles 3 and 16 § 2 of the United Nations Convention Against Torture, particularly when the latter Article provides that the provisions of the 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’ (see paragraph 47 and 48 above).

The Court therefore concludes that the Chahal ruling (as reaffirmed in Saadi) should be regarded as applying equally to extradition and other types of removal from the territory of a Contracting State and should apply without distinction between the various forms of ill-treatment which are proscribed by Article 3.

However, in reaching this conclusion, the Court would underline that it agrees with Lord Brown's observation in Wellington that the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting State. As Lord Brown observed, this Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States (see, as a recent authority, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011). This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case. For example, a Contracting State's negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the Court to find a violation of Article 3 but such violations have not been so readily established in the extra-territorial context (compare the denial of prompt and appropriate medical treatment for HIV/AIDS in Aleksanyan v. Russia, no. 46468/06, §§ 145–158, 22 December 2008 with N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008).

Equally, in the context of ill-treatment of prisoners, the following factors, among others, have been decisive in the Court's conclusion that there has been a violation of Article 3:

The Court would observe that all of these elements depend closely upon the facts of the case and so will not be readily established prospectively in an extradition or expulsion context.

Finally, the Court reiterates that, as was observed by Lord Brown, it has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3 of the Convention. It has only rarely reached such a conclusion since adopting the Chahal judgment (see Saadi, cited above § 142). The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law.

The Court takes note of the parties' submissions as to whether the applicants' likely sentences are irreducible within the meaning of that term used in Kafkaris. However, given the views expressed by the House of Lords in Wellington and the Court of Appeal in Bieber in respect of Kafkaris (summarised at paragraphs 34—42 and 69 above), the Court considers it necessary to consider first whether, in the context of removal to another State, a grossly disproportionate sentence would violate Article 3 and second, at what point in the course of a life or other very long sentence an Article 3 issue might arise.

For the first issue, the Court observes that all five Law Lords in Wellington found that, in a sufficiently exceptional case, an extradition would be in violation of Article 3 if the applicant faced a grossly disproportionate sentence in the receiving State. The Government, in their submissions to the Court, accepted that proposition.

Support for this proposition can also be found in the comparative materials before the Court. Those materials demonstrate that ‘gross disproportionality’ is a widely accepted and applied test for determining when a sentence will amount to inhuman or degrading punishment, or equivalent constitutional norms (see the Eighth Amendment case-law summarised at paragraphs 59—61 above, the judgments of the Supreme Court of Canada at paragraph 73 above, and the further comparative materials set out at paragraphs 76– 81 above).

Consequently, the Court is prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of Convention (Léger, cited above, § 72), a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that ‘gross disproportionality’ is a strict test and, as the Supreme Court of Canada observed in Latimer (see paragraph 73 above), it will only be on ‘rare and unique occasions’ that the test will be met.

The Court also accepts that, in a removal case, a violation would arise if the applicant were able to demonstrate that he or she was at a real risk of receiving a grossly disproportionate sentence in the receiving State. However, as the Court has recalled at paragraph 129 above, the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States. Due regard must be had for the fact that sentencing practices vary greatly between States and that there will often be legitimate and reasonable differences between States as to the length of sentences which are imposed, even for similar offences. The Court therefore considers that it will only be in very exceptional cases that an applicant will be able to demonstrate that the sentence he or she would face in a non-Contracting State would be grossly disproportionate and thus contrary to Article 3.

The Court now turns to the second issue raised by the Court of Appeal and House of Lords. It considers that, subject to the general requirement that a sentence should not be grossly disproportionate, for life sentences it is necessary to distinguish between three types of sentence:

The first sentence is clearly reducible and no issue can therefore arise under Article 3.

For the second, a discretionary sentence of life imprisonment without the possibility of parole, the Court observes that normally such sentences are imposed for offences of the utmost severity, such as murder or manslaughter. In any legal system, such offences, if they do not attract a life sentence, will normally attract a substantial sentence of imprisonment, perhaps of several decades. Therefore, any defendant who is convicted of such an offence must expect to serve a significant number of years in prison before he can realistically have any hope of release, irrespective of whether he is given a life sentence or a determinate sentence. It follows, therefore, that, if a discretionary life sentence is imposed by a court after due consideration of all relevant mitigating and aggravating factors, an Article 3 issue cannot arise at the moment when it is imposed. Instead, the Court agrees with the Court of Appeal in Bieber and the House of Lords in Wellington that an Article 3 issue will only arise when it can be shown:

For the third sentence, a mandatory sentence of life imprisonment without the possibility of parole, the Court considers that greater scrutiny is required. The vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating factors or special circumstances before the sentencing court (see, for instance, Reyes and de Boucherville at paragraphs 76 and 77 above). This is especially true in the case of a mandatory sentence of life imprisonment without the possibility of parole, a sentence which, in effect, condemns a defendant to spend the rest of his days in prison, irrespective of his level of culpability and irrespective of whether the sentencing court considers the sentence to be justified.

However, in the Court's view, these considerations do not mean that a mandatory sentence of life imprisonment without the possibility of parole is per se incompatible with the Convention, although the trend in Europe is clearly against such sentences (see, for example, the comparative study summarised at paragraph 66 above). Instead, these considerations mean that such a sentence is much more likely to be grossly disproportionate than any of the other types of life sentence, especially if it requires the sentencing court to disregard mitigating factors which are generally understood as indicating a significantly lower level of culpability on the part of the defendant, such as youth or severe mental health problems (see, for instance, Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I at paragraphs 53 and 61 respectively and the Canadian case of Burns, at paragraph 93, quoted at paragraph 44 above).

The Court concludes therefore that, in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown:

In the first applicant's case, the Court notes that he faces a mandatory sentence of life imprisonment without parole, which, as it has indicated, requires greater scrutiny than other forms of life sentence. However, the Court is not persuaded that such a sentence would be grossly disproportionate in his case. Although he was twenty years of age at the time of the alleged offence, he was not a minor. Article 37(a) of the United Nations Convention on the Rights of the Child demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is under the age of eighteen. It would support the view that a sentence imposed on such a defendant would be grossly disproportionate. However, the Court is not persuaded that Article 37(a) demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is over the age of eighteen. Equally, although the applicant has provided a psychiatrist's report showing him to be suffering from mental health problems, as the Government have observed, that report stops short of diagnosing the applicant with a psychiatric disorder. Therefore, while the Court accepts that the applicant has some mitigating factors, it is not persuaded that the applicant possesses mitigating factors which would indicate a significantly lower level of culpability on his part.

The Court accepts that the sentence which the first applicant faces would be unlikely to be passed for a similar offence committed in the United Kingdom, particularly when there is no felony murder rule in England and Wales. The Court also notes that the Supreme Court of Canada, in Martineau, has found that the rule is contrary to the fundamental principles of justice. Therefore, the Court would not exclude that a sentence imposed after conviction under the felony murder rule could, in a sufficiently exceptional case, amount to a grossly disproportionate sentence. This would be particularly so if the sentence was one of mandatory life imprisonment without parole but the facts of the case involved a killing in respect of which there was no real culpability on the part of the defendant.

However, as Lord Justice Gross observed, the Court must be concerned with the facts of the case (paragraph 66(i) of the High Court judgment quoted at paragraph 21 above). As he went on to observe, it is fanciful to contemplate the first applicant being at risk of conviction for what was an ‘accident’; on any realistic view there was no such accident. The Court shares Lord Justice Gross' view that the fact that the killing took place in the course of an armed robbery is a most serious aggravating factor. This is made yet graver by the fact that, for the gun to have gone off at all, the first applicant would have had to have loaded and cocked the gun before getting out of his car to rob Mr Hayes. Therefore, even allowing for the fact that he may be convicted without the prosecution being required to prove premeditation, the Court does not find that the first applicant's likely sentence would be grossly disproportionate. The Court would add that this conclusion is not altered by the applicant's alternative submission that, although he denies being present at the scene, he could conceivably be convicted under the felony murder rule because he lent his car to one of the men who participated in the robbery of Mr Hayes. There is no evidential basis for this submission: at all times the prosecution's case has been that it was the applicant who had shot Mr Hayes.

Second, as the Court has stated, an Article 3 issue will only arise when it can be shown:

The Court therefore considers that he has not shown that, upon extradition, his incarceration in the United States would not serve any legitimate penological purpose. Indeed, if he is convicted and given a mandatory life sentence, it may well be that, as the Government have submitted, the point at which his continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the Governor of Florida and the Board of Executive Clemency would refuse to avail themselves of their power to commute the applicant's sentence (see paragraph 52 above and Kafkaris, cited above, § 98).

Accordingly, the Court does not find that the first applicant has demonstrated that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition.

The second applicant faces, at most, a discretionary sentence of life imprisonment without parole. Given that this sentence will only be imposed after consideration by the trial judge of all relevant aggravating and mitigating factors, and that it could only be imposed after the applicant's conviction for a premeditated murder in which one other man was shot in the head and injured, the Court is unable to find that the sentence would be grossly disproportionate.

Moreover, for the reasons it has given in respect of the first applicant, the Court considers that the second applicant has not shown that incarceration in the United States would not serve any legitimate penological purpose, still less that, should that moment arrive, the Governor of Maryland would refuse to avail himself of the mechanisms which are available to him to reduce a sentence of life imprisonment without parole (commutation and eventual release on parole: see paragraphs 56–58 above and Kafkaris, cited above, § 98). Therefore, he too has failed to demonstrate that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition.