EHRM, 10-04-2012, nr. 24027/07, nr. 11949/08, nr. 36742/08, nr. 66911/09, nr. 67354/09

When the case came before the Senior District Judge for his decision as to whether the extradition could proceed, the fourth applicant argued, inter alia, that his extradition would give rise to a real risk of a violation of Article 3 of the Convention since he would be likely to be detained in a ‘supermax’ detention facility such as the United States Penitentiary, Administrative Maximum, Florence, Colorado (‘ADX Florence’). In this connection, he also relied on his poor health, specifically his type-two diabetes, his high blood pressure, the loss of sight in his right eye and poor vision in his left, the amputation of both his forearms (which frequently led to infections through abrasions), psoriasis on much of his body, hyperhydrosis (excessive sweating). A violation of Article 3, he claimed, would also result from the imposition of special administrative measures.

The Senior District Judge, in his ruling of 15 November 2007, rejected all these submissions. In respect of detention at ADX Florence the Senior District Judge found that the fourth applicant's poor health and disabilities would be considered and, at worst, he would only be detained there for a relatively short period of time. The Senior District Judge was also not satisfied that special administrative measures would be applied to the fourth applicant but even if they were, he was bound by the ruling of the High Court in respect of the first and second applicants. Having concluded that none of the bars to extradition applied, the Senior District Judge sent the case to the Secretary of State (Ms Jacqui Smith) for her decision as to whether the fourth applicant should be extradited. She ordered his extradition on 7 February 2008. The fourth applicant appealed to the High Court against the Secretary of State's decision and against the decision of the Senior District Judge.

Before the High Court, the fourth applicant again relied on his submission that conditions of detention at ADX Florence would not comply with Article 3. He also argued that the length of the possible sentence he faced in the United States would be contrary to Article 3 of the Convention.

The High Court gave its judgment on 20 June 2008, dismissing the fourth applicant's appeal. In relation to Article 3, the High Court found that, if convicted, the fourth applicant would be sentenced to very lengthy terms of imprisonment and that, in all likelihood, a life sentence would be imposed. It found that this, of itself, would not constitute a breach of Article 3. On the question of the compatibility of detention at ADX Florence with Article 3, the High Court relied in particular on the understanding of the prison warden, Mr Robert Wiley, to the effect that if, after a full medical evaluation, it was determined that the fourth applicant could not manage his activities of daily living, it would be highly unlikely that he would be placed at ADX Florence rather than at a medical centre. Accordingly, there was no risk of a violation of Article 3 on this ground. However, the High Court added:

The fourth applicant then applied to the High Court for a certificate of points of law of general public importance and for leave to appeal to the House of Lords. On 23 July 2008, the High Court refused both applications.

At his committal hearing before the District Court, the sixth applicant contended that extradition was only permitted within the terms of the 1972 USA-UK Extradition Treaty for offences committed within the jurisdiction of the requesting State, and not when that State exercised jurisdiction over extra-territorial offences. He further argued that there was ‘insufficient evidence’ to prove a prima facie case, which was a requirement for extradition under the Treaty. As part of that submission, he sought to have excluded two anonymous witness statements, which had been provided by two informants, ‘CS/1’ and ‘CS/2’, and which the United States Government relied upon as part of their case against him. It was later revealed that CS/1 was a Mr Al-Fadl who had given evidence against the certain of the applicants' co-defendants during their trial in the United States.

In his ruling of 8 September 1999, the District Judge rejected these submissions. He considered that the proper construction of the Treaty did not prevent the exercise of jurisdiction over extra-territorial offences. The District Judge was also satisfied that there were real grounds for fear if the identities of CS/1 and CS/2 were revealed. Thus, their anonymous witness statements could be admitted as evidence of a prima facie case. He further found that there was a case for the sixth applicant to answer.

The sixth applicant appealed to the High Court by way of an application for a writ of habeas corpus. The application was dismissed on 30 November 2000. The High Court held that it was necessary to show that the crime in respect of which extradition was sought was alleged to have been committed within the actual territory of the United States. The High Court was, however, satisfied that three overt acts alleged by the United States of America could be relied on to found territorial jurisdiction in the United States, namely

The High Court also found that the District Judge had not erred in admitting the evidence of CS/1 or in finding that there was a prima facie case against the sixth applicant. It did not consider it necessary reach any conclusions in respect of CS/2, judging CS/1's evidence to be ‘far the most significant’.

While the sixth applicant's appeal was pending before the High Court, a committal hearing before the District Court was held in respect of the fifth applicant. The District Judge gave his ruling on 25 April 2000 in which he reaffirmed the rulings he had made in respect of the sixth applicant and found that there was also a prima facie case against the fifth applicant.

The fifth applicant also appealed to the High Court and, on 2 May 2001, a differently constituted court dismissed his appeal. Again the High Court found that the District Judge had not erred in admitting the anonymous evidence of CS/1; that there was sufficient evidence against the fifth applicant for the extradition to proceed, and that the United States had jurisdiction to try him.

Both applicants appealed to the House of Lords. Their appeals were dismissed on 17 December 2001. The House of Lords found unanimously that the High Court had erred in its finding in respect of jurisdiction: it was sufficient that the offence for which extradition was sought was triable within the United States and an equivalent offence would be triable in the United Kingdom. Accordingly, the applicants were liable to extradition to the United States if a prima facie case of conspiracy to murder was established. This was the case for each applicant.

Between November 2001 and December 2005 there then followed voluminous representations by the fifth and sixth applicants to the Secretary of State as to why they should not be extradited to the United States.

In the course of these exchanges, on 19 April 2002 the President of the United States designated the sixth applicant as a ‘specially designated global terrorist’, which had the effect of placing him on a list of persons maintained by the United States Department of the Treasury and available on its website. This was done pursuant to Executive Order 13224 which enables the American assets of any person so designated to be blocked.

Subsequently, on 13 April 2004, the United States Embassy in London issued Diplomatic Note No. 018, which gave assurances that the United States Government would neither seek nor carry out the death penalty against the fifth and sixth applicants. It also gave assurances that they would be tried before a federal court and that they would not be prosecuted by a military commission or designated as enemy combatants.

On 18 January 2008, the United States Embassy issued Diplomatic Note No. 002, which assured the United Kingdom Government that, if either applicant were acquitted or completed any sentence imposed or if the prosecution against them were discontinued, the United States authorities would return the men to the United Kingdom, if they so requested.

The Secretary of State (Ms Jacqui Smith) rejected the fifth and sixth applicants' representations on 12 March 2008. She found that assurances given by the United States in the Diplomatic Note of 13 April 2004 could be relied upon and thus that the fifth and sixth applicants were not at risk of the death penalty, indefinite detention or trial by a military commission.

The fifth and sixth applicants also contended that they would not receive a fair trial in the United States owing to the unavailability of defence witnesses and evidence, adverse publicity, the possible imposition of special administrative measures before trial, and the sixth applicant's designation as a global terrorist. The Secretary of State found none of these claims amounted to a ‘flagrant denial of justice’ such as would act as a bar to extradition.

The Secretary of State accepted that there was a real possibility that they would be sentenced to life imprisonment if convicted but, relying on the House of Lords' judgment in R (Wellington) v. Secretary of State for the Home Department (see paragraphs 64–72 below), found that this would not amount to a breach of Article 3 of the Convention.

The Secretary of State also considered that the conditions of the fifth and sixth applicants' detention in the United States would not violate Article 3 whether they were subjected to ‘special administrative measures’ before trial or detained at ADX Florence after trial. In the fifth applicant's case, this conclusion was not affected by the fact that he suffered from a recurrent depressive disorder. There was also no risk that either applicant would be tortured, that evidence obtained by torture would be adduced at trial, or that they would be at real risk of torture as a result of extraordinary rendition or refoulement to a third State.

The fifth and sixth applicants sought judicial review of the Secretary of State's decision in the High Court. Before the High Court the applicants submitted that, if convicted, they would be detained at ADX Florence in violation of Article 3 of the Convention. In rejecting that contention, Lord Justice Scott Baker, delivering the judgment of the court on 7 August 2009, found that the decisions of the United States federal courts in Ajaj, Sattar and Wilkinson v. Austin (see paragraphs 109 and 110 below) demonstrated that there was effective judicial oversight of ‘supermax’ prisons such as ADX. The fifth and sixth applicants would also have the possibility of entering ADX's ‘step down program’ (see paragraphs 84–88 below). He concluded:

In respect of the fifth applicant's submission that his recurrent depressive illness would deteriorate if extradited, the High Court considered that, to the extent that this affected his fitness to stand trial, this was a matter for the United States' authorities and, if he were convicted, the fifth applicant's mental health would be an important factor in deciding whether he should be sent to ADX Florence.

The High Court also rejected the fifth and sixth applicants' submissions that they were at real risk of violations of Articles 3, 6 and 14 of the Convention by virtue of the imposition of special administrative measures, relying on its previous judgment in respect of the first and second applicants (see paragraph 29 above). Having regard to the Diplomatic Note of 18 January 2008, the High Court found that there was no real risk of refoulement to Egypt or Saudi Arabia by the United States. The High Court was also satisfied that the United States would honour the assurances it had given in the Diplomatic Note of 13 April 2004. The mere fact that the sixth applicant had been designated as a global terrorist by the President of the United States did not mean he was at risk of a flagrant denial of justice within the meaning of Article 6: the designation added little to what was already known about him; it would be made clear to the jury at any trial what had to be proved as regards the indictment.

The High Court also rejected the applicants' submission that they should be tried in the United Kingdom, finding that this was neither viable nor appropriate and that any connection with the United Kingdom was ‘tenuous indeed’.

Although the High Court refused leave to appeal to the United Kingdom Supreme Court, it certified two questions of general public importance. The first question was whether prison conditions at ADX Florence were compatible with Article 3; the second question was whether the relativist approach to Article 3 adopted by the majority of the House of Lords in Wellington should apply where the issue under Article 3 was one of the compatibility of prison conditions with Article 3.

On 16 December 2009, the Supreme Court refused permission to appeal.

Mr Louis J. Milusnic, the associate warden of ADX, outlined the regime which was in place at the special security unit (H Unit) for inmates who were subjected to special administrative measures. All cells were single occupancy, had natural light and measured 75.5 square feet (approximately 7 square metres). Showers were not in-cell but on a shared range.

Inmates in H Unit were part of the special security unit program, which had three phases that inmates could work through.

In phase one, the ‘baseline’ phase, inmates had two non-legal telephone calls per month, five social visits, access to a commissary list and art and hobby craft items, and escorted shower time three times a week. They had ten hours per week of out-of-cell recreation time (increased from five hours per week in September 2009). As of November 2010, twelve inmates were in phase one.

In phase two, conditions were the same save that three non-legal telephone calls per month were permitted, the commissary list was expanded and inmates were permitted to go to the shower unescorted, five times per week. Eleven inmates were in phase two.

In phase three, group recreation was permitted five days a week (for a minimum of one and a half hours per day, in groups of four) and the number of non-legal telephone calls increased to four. Inmates ate one meal together and engaged in recreational activities together for one and a half hours per day. Access to showers was unrestricted and the commissary list was further expanded. Four inmates, who had all been convicted of terrorist activity, had progressed to phase three.

Advancement through the phases was authorised by a Program Screening Committee, whose six-monthly reviews the inmate attended. The Committee's task was to determine whether an inmate could function with additional privileges without posing a security or safety risk. Advancement was subject to various factors including good conduct, participation in programmes recommended by the Unit, positive behaviour and respectful conduct and positive overall institutional adjustment.

Recreation alternated daily between outside and inside recreation. Outdoor recreation took place in adjacent individual recreation areas, which allow an inmate full visual access to the recreation yard and other inmates.

Conversations could be carried on in a normal tone of voice and most inmates spent the majority of their recreation time talking to other inmates.

Each individual outdoor area measured 12 feet by 20 feet (approximately 3.66 metres by 6 metres) and contained pull-up bars and footballs.

Individual indoor areas measured 14 feet by 10 feet. Recreation had only been cancelled once in thirteen months for security reasons.

There was no limit on inmates' correspondence with family members and special administrative measures could be modified to allow correspondence beyond the immediate family. There were also no limits on correspondence with legal representatives and access to a law library for up to two hours at a time. Inmates received a free, daily copy of USA Today.

They had access to fifty television channels and seven FM radio channels.

They could speak to inmates in adjacent cells using the air ventilation as a voice conduit. They had regular contact with prison staff — a member of the Unit Team visited every inmate every day — and there were visits from medical, education, religious service and psychology staff, including two Arabic speakers. Inmates could request to speak with an officer at any time.

Mr Milusnic also outlined the criteria and procedures for placement at ADX Florence. An inmate either had to:

Referral to ADX was initiated by the staff at the inmate's current institution. If the warden of that institution, the relevant regional director and the Bureau's designation centre all concurred, a hearing took place. The inmate was given written notice at least twenty-four hours prior to the hearing. After the hearing, a report with a recommendation was prepared and given to the inmate. The final decision was taken on the basis of the report by an Assistant Director of the Federal Bureau of Prisons, with the possibility of appeal to the chief of the designation centre and thereafter the Office of the General Counsel.

Ms Patricia Rangel is the Unit Manager for the General Population Units at ADX. She provided two declarations.

Her first declaration outlined the Federal Bureau of Prisons procedures for review of the status of inmates. There was an initial classification upon arrival at a new Bureau institution, which took place at a meeting attended by the inmate and which defined, inter alia, the work and educational programmes the inmate would follow, his or her release plans, and security/custody levels. Thereafter, there were six-monthly program reviews (including progress review reports, which were signed by the inmate and the Unit Manager) and more detailed, three-yearly progress reports, which were also made available to the inmate.

In her declaration Ms Rangel also outlined the different levels of security in ADX units and the step down program. The units followed a ‘stratified’ system of housing from General Population Units to the Intermediate, Transitional and Pre-Transfer Units. It would take an inmate a minimum of thirty-six months to work through the system: the minimum stay in each unit was twelve months in a General Population Unit, six months in Intermediate, six in Transitional and twelve in Pre-Transfer. Specific conditions in each unit were as follows.

General Population Unit cells were 87 square feet (8 square metres) plus a sallyport (exit area) of 17 square feet. Showers were within the cells.

There was a window with natural lighting and inmates could control the lighting in their cell via a dimmer switch. Lights on the range were switched off at night, but, as in all federal prisons, were briefly turned on for three cell counts during the night. Meals were delivered in-cell. Inmates received two fifteen minute telephone calls and up to five social visits per month. It was possible and permissible for inmates to talk to each other in their cells via the ventilation system or during their out-of-cell recreation.

Inmates had ten hours out-of-cell exercise each week in single-cell recreation areas, some of which were grouped together on large recreation yards. Ms Rangel gave the sizes of the two types of outdoor individualised recreation areas as 240 square feet and 315 square feet (22 and 29 square metres). The size of the indoor areas was 389 square feet (36 square metres). Recreation privileges could be restricted for violations of rules and regulations. Restrictions on outdoor recreation were in three-month increments (three months for a first offence, six for a second offence and so on).

Intermediate Unit cells were 75.5 square feet and did not have a sallyport or shower. There was a window with natural lighting; cell doors faced out onto a range. Inmates were assigned to a group of eight inmates with whom they recreated. Meals were provided to inmates one group at a time, meaning each group was allowed out of their cells to collect their meals in the range. Inmates received three fifteen-minute telephone calls and up to five social visits per month. Showers stalls were on the range, where inmates could shower any time they were out on the range.

Transitional Units had similar conditions to Intermediate Units save that inmates were assigned to groups of sixteen inmates. They received twenty-one hours of out-of-cell recreation per week in their assigned group on the range or in a large recreation yard. Meals were consumed in groups on the range. Inmates were unrestrained when out of their cells. They received an extra fifteen-minute telephone call per month and could leave the unit unrestrained but escorted to purchase items from the commissary.

The Pre-Transfer Unit was located at another penitentiary at FCC Florence. As in the Intermediate and Transitional Units, inmates ate their meals and recreated within their assigned group. They received twenty-four and a half hours' out-of-cell recreation time per week, and five visits and three hundred minutes of telephone calls per month.

In the General Population, Intermediate and Transitional Units, access to television, radio and books, contact with prison staff and rules on correspondence were as outlined by Mr Milusnic.

The rules governing the step down program were set out in an ‘institution supplement’, which had been updated in September 2009. An inmate's placement in and advancement through the step down program were reviewed every six months, subject to the minimum periods in each unit, set out above, and other criteria such as participation in defined programmes, positive behaviour and overall institutional adjustment. According to the updated supplement, mitigation of the original reason for placement at ADX Florence was no longer a factor which was considered, but the Step Down Screening Committee, which made decisions on advancement, could have regard to the initial reasons for placement at ADX and other safety and security factors. The final decision was one for the Warden. Any negative decision had to be reasoned (unless providing reasons would pose a threat to individual safety or institutional security) and was subject to appeal through the Bureau's administrative remedy programme. Since the implementation of the updated supplement, there had been a 56% increase in movement of inmates from the four General Population Units to the Intermediate Unit and a 135% increase in movement from the Intermediate to the Transitional Unit. Inmates had also completed the programme and been transferred out of ADX Florence. This included Arab-Muslim inmates.

Mr Christopher B. Synsvoll is the Department of Justice Supervising Attorney at FCC Florence. His declaration outlined the application of special administrative measures. These measures were rare: of 210,307 Federal Bureau of Prison inmates, forty-one were subjected to them; twenty-seven of the forty-one were in H Unit at ADX Florence. Special administrative measures could be challenged through the Bureau's administrative remedy programme, which led to a review of the need for the measures and which involved consultation with other agencies such as the FBI. This process had, on occasion, led to the modification of certain special administrative measures such as allowing greater communication for inmates with the outside world.

The psychologist assigned to ADX Florence, Dr Paul Zohn, outlined the psychological and psychiatric care available at the prison. The preference was to treat inmates with mental health problems in situ rather than in hospitals where this was possible. Care was provided by one psychiatrist and two psychologists who made regular rounds through the housing units at ADX. Various treatment programs were available and inmates who needed psychotropic medication were seen regularly by a psychiatrist. Contrary to assertions previously made by the applicants, video-conferencing was not ordinarily used to assess an inmate's mental health. The main mental health disorders such as bipolar affective disorder, depression, post-traumatic stress disorder and schizophrenia would not preclude a designation to ADX and could be managed successfully there. Conditions of confinement were largely determined by security needs and would be modified based on mental illness only if the inmate's mental status warranted such a change. However, if necessary, inmates could be referred to one of the Bureau's Psychiatric Referral Centers for acute psychiatric care. Inmates who would be considered ‘seriously mentally ill’ would not be housed at ADX but at a Referral Center. All new inmates at ADX received an initial psychological evaluation and, if necessary, follow-up assessment and treatment planning. Thereafter, the psychological department monitored any treatment needs such as medication or modification to an inmate's housing, work or program assignment.

The prison chaplain at ADX, Michael S. Merrill, stated that an imam was available to inmates four days a month and would speak to inmates at their cell door. The chaplain had also significantly expanded the Islamic section of the religious library at the prison, which included 158 Arabic language books. There were also 320 videos and DVDs on Islam. The Religious Services Department provided Islamic-faith programming through its closed-circuit television channel, including four to five days of Sunni Muslim programming on Friday and recitations of the Qur'an on Friday and Saturday evenings. Inmates had access to a halal diet; special arrangements were made for meals during Ramadan. Although there could be no formal congregational prayer for any faith group, Muslim inmates could perform the Azan (call to prayer) and the Salat (five daily prayers) in their cells; they could also have access to prayer rugs, prayer oil, prayer beads and religious headgear in their cells.

Ms Roxana Mack, the Assistant Supervisor of Education at ADX, stated that H unit inmates had access to approximately 900 books with no limit on the number of books an inmate could borrow. They had access to a law library for two hours at a time, including access to electronic databases. There were also educational courses.

In the course of proceedings before the Court, the respondent Government were asked to provide information as to:

The questions were forwarded to the United States authorities. By letter dated 26 September 2011, the Department of Justice stated that there were 252 inmates in ADX's General Population Unit. The Special Security Unit program could house up to 32 inmates. There were 17 inmates in phase I, nine in phase II and six in phase III. For the step down program, 32 inmates were in J Unit, 32 in K Unit and 25 in D/B Unit. The Department of Justice stated that the Bureau of Prisons obligations under United States law prevented disclosure of information as to the length of time inmates had spent at each stage of the two programs.

By letters dated 29 September and 7 October 2011, the Section Registrar clarified that the questions put by the Court were not intended to obtain information on specific inmates but rather to provide meaningful assistance as to: the length of time an inmate was likely to spend at ADX before being admitted to either program; how long he was likely to spend in each phase of either program; and how long he was likely to spend in either program before transfer out of ADX.

On 24 October 2011 the Agent of the Government of the United Kingdom replied, forwarding a letter of the same date from the Department of Justice, which set out the results of a statistical analysis conducted by the Bureau of Prisons. The analysis was based on a random sample of thirty inmates selected from the General Population at ADX and/or each phase of the step down program. On the basis of that sample, an inmate was likely to spend three years at ADX before being admitted to the Step Down or Special Security Unit programs. The likely times in each phase were: nine months in intermediate, eleven months in transition and nine months in pre-transfer. Thus, an inmate was likely to spend three years in General Population followed by two years and five months progressing through either program.

The Department of Justice's letter of 26 September 2011 also stressed that, while generally inmates who were subject to special administrative measures were housed in the Special Security Unit, it was possible for such inmates to be housed at other prisons. Furthermore, if special administrative measure were vacated for an inmate at ADX, he could be transferred from ADX to other prison. This had occurred for seven of the thirteen inmates whose special administrative measures had been vacated.

The Government recalled that the applicants were suspected of terrorism and the Council of Europe Guidelines on human rights and the fight against terrorism had recognised that such persons could be subjected to more severe restrictions than those applied to other prisoners (see paragraph 114 above). The Court had also recognised that prohibitions on contact and communication for security reasons did not of themselves amount to inhuman treatment or punishment. The Government accepted that such restrictions could not amount to complete sensory isolation and could not be imposed indefinitely. However, in assessing the nature of solitary confinement, factors to be taken into account included the physical conditions of confinement and the possibility of visits.

On this basis, and in the light of the evidence provided by the ADX officials and the Department of Justice (see paragraphs 82–96 above), the applicants' complaints were unsustainable. The physical conditions of detention at ADX were compatible with Article 3 as interpreted by the Court. Even in the highest security units at ADX, there were opportunities for communication with other inmates, recreation, education, religious expression and engagment with the outside world. The mental and social needs of inmates were appropriately catered for and inmates could not be described as being detained in conditions that amounted to sensory isolation, still less indefinite solitary confinement, whether total or relative. The evidence, particularly the Department of Justice's replies to the Rapporteur's questions, showed that there were practical and effective opportunities to enter the step down and special security unit programs, which could ultimately lead to transfer to another prison. Moreover, initial placement at ADX was determined by reference to stated, objective criteria, with full procedural protections through the Federal Bureau of Prisons' Administrative Remedy Program.

The Bureau of Prisons had shown itself willing and able to respond to requests for change in conditions, not least the relaxation of conditions in H Unit to allow phase three inmates to eat together, the expansion of Arabic language books in the library, and the discontinuation of strip searches before inmates could leave their cells. All of these factors meant conditions at ADX Florence were distinguishable from G.B. v. Bulgaria, no. 42346/98, 11 March 2004 and Peers v. Greece, no. 28524/95, ECHR 2001-III and, in fact, were much less severe than in Ramirez Sanchez v. France [GC], no. 59450/00, ECHR 2006-IX, where the Court had found no violation of Article 3.

Finally, inmates had recourse to the courts to challenge their conditions of detention (see the summary of relevant Eighth Amendment jurisprudence set out at paragraph 105–110 above). A detailed examination of the federal courts' consideration of the challenges brought by ADX inmates, showed that the allegations made in respect of ADX were unfounded, and that the United States' courts applied a legal analysis which was in reality no different from that applied by this Court. Moreover, these decisions showed that the United States were both able and willing to protect the interests of ADX inmates, assess their claims and uphold them where appopriate. The Government also stated that, within the materials provided by the applicants, the Court could only properly place reliance on the decisions of the United States courts, rather than the untested statements of inmates at ADX or reports based upon them. Among these decisions, the Government placed particular emphasis on the conclusions reached by the Magistrate Judge in Rezaq (summarised at paragraph 112 above). They also continued to rely on the accuracy, fairness and good faith of the declarations which had been provided to the Court by the Federal Bureau of Prisons officials.

The third party interveners (see paragraph 7 above) submitted that there was a substantial gap between the protection offered by Article 3 of the Convention and the protection offered by the Eighth Amendment.

Article 3 did not require an applicant to show deliberate imposition of pain or deliberate indifference to it (Alver v. Estonia, no. 64812/01, § 55, 8 November 2005; Peers v. Greece, no. 28524/95, §§ 74–75, ECHR 2001-III), whereas this was a specific requirement in order to show a violation of the Eighth Amendment (the subjective test set out in Wilson: see paragraph 105 above). Article 3 also provided much greater protection against mental suffering and psychological harm arising from conditions of detention (Mathew v. the Netherlands, no. 24919/03, §§ 197–205, ECHR 2005-IX and Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 121, 29 November 2007); the United States courts did not even consider a significant deterioration of a detainee's mental condition to be sufficient for an Eighth Amendment violation unless there was also a deprivation of basic physical needs such as food, shelter, clothing or warmth (see Hill and Magluta, cited at paragraph 110 above).

Limited protection was provided by the due process clause of the Fifth Amendment (see paragraph 109 above). Indeed, the Tenth Circuit's construction of that clause provided no additional protection to the Eighth Amendment. The Wilkinson case (see also paragraph 109 above) only required the barest administrative review of the decision to place an inmate in a supermax prison and the procedures could be informal and non-adversarial without any requirement for a judge or neutral arbiter. Prison officials could continue to rely on the initial reasons for placement, including the crime for which the inmate was in prison. The wide discretion afforded to officials, the deference afforded by the courts, and the vague criteria for placement at ADX (and for entry to the step down program) meant there was no meaningful review at all.

There were also significant procedural obstacles to prisoners seeking to vindicate their constitutional rights through the federal courts.

The Prison Litigation Reform Act 1996 barred prisoners from bringing court claims if all administrative remedies had not been exhausted, a rule which had been enforced strictly by the courts to prevent otherwise compelling cases from proceeding. The Act prevented prisoners from receiving compensation for mental and emotional injuries unless they also showed physical injury, even in respect of official conduct which was deliberately and maliciously intended to harm. The Act further allowed prison officials to seek to terminate a court order in favour of a prisoner after the order had been in force for two years.

The Government relied on the Court's rulings in Kafkaris and Léger v. France, no. 19324/02, ECHR 2006-…, and the United Kingdom court's rulings in Wellington and Bieber (see paragraphs 64–72 and 144 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.

The Government further submitted that, unless a life sentence was grossly or clearly disproportionate, an irreducible life sentence would only violate Article 3 if the prisoner's further imprisonment could no longer be justified for the purposes of punishment and deterrence (see Wellington, cited above). 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.

In the present cases, none of the six applicants' sentences were grossly disproportionate and all the sentences were reducible, as required by Kafkaris.The Government referred to the four mechanisms for sentence reduction outlined in the Department of Justice's letter of 26 November 2010 (see paragraph 130 above): substantial assistance to the authorities in the investigation of a third party, recommendation for compassionate release by the Director of the Bureau of Prisons, commutation of the sentence by the President or pardon, reduction of the sentence based on the the sentencing guidelines which were subsequently lowered. In the Government's submission, the first three mechanisms separately and all four mechanisms cumulatively, were more than sufficient to establish that any life sentence imposed on the applicants would be both de jure and de facto reducible.

The Government observed that the first, third, fourth and fifth applicants only faced the possibility of discretionary life sentences. In this respect, the Court of Appeal in Bieber had correctly concluded that this Court would not find a violation of Article 3 if an irreducible life sentence was deliberately imposed by a judge, when that judge considered that the offence was so serious that punishment and deterrence required the offender to spend the rest of his days in prison (see paragraph 45 of Bieber, quoted at paragraph 144 above). In the Government's view, this was especially so when a discretionary life sentence by its very nature avoided the risk of arbitrariness of mandatory life sentences. Accordingly, given the serious nature of the allegations made against these applicants, and the full range of protections available in the United States (including the Eighth Amendment's protection from grossly disproportionate sentences), there were no substantial grounds for believing that the imposition of discretionary life sentences would violate Article 3.

For the sixth applicant, the Government submitted that, as a general principle, a mandatory and irreducible life sentence would not violate Article 3, especially if it were imposed on an adult offender following conviction for an offence of the utmost severity. Under United States federal law a mandatory life sentence was reserved for a narrow category of offenders and the most serious criminal conduct. Given, therefore, that any mandatory life sentence (even if, for present purposes, it were irreducible) would only be imposed on the sixth applicant if he were convicted of participation in an act which had caused a massive loss of life, such a sentence would not be grossly disproportionate.

The applicants submitted that a violation of Article 3 would arise, not just because their sentences would in practice be irreducible, but also because the sentences were grossly disproportionate. Their likely sentences were, in effect, mandatory sentences which left no room for consideration of their individual cases. They relied on the views expressed by the House of Lords and Privy Council in Lichniak, Reyes, de Boucherville, as well as the rulings in Dodo, Philibert, and Tcoeib (see paragraphs 142, 149 and 151–154 above). They also relied on academic materials detailing the inhumane and degrading effects sentences of life imprisonment without parole had on prisoners, particularly in the United States.1. In their cases, the effects would be exacerbated by the requirement that they serve the sentences at ADX Florence and by the already poor mental health of some of the applicants.

It was not correct that, as the Government had suggested, no Article 3 issue could arise in respect of discretionary life sentences imposed by a judge. As Ms Barrett's evidence showed (see paragraph 133 above), United States trial judges had a limited sentencing discretion and the sentencing guidelines called for any offence involving terrorism to be punished by the available statutory maximum sentence. Therefore, it was highly likely that, where applicable, life sentences would be imposed.

Moreover, it was not necessary for a life sentence to be mandatory for it to be disproportionate and thus in violation of Article 3. Several of the applicants risked life sentences for non-murder offences; in those circumstances, their sentences would be disproportionate because they could be imposed for non-murder offences without any real judicial discretion.

The applicants did not accept that the four reduction mechanisms relied on by the Government meant that their sentences would be de facto reducible. Proper regard had to be given to the practical realities of their situation. First, they were not in a position to provide ‘substantial assistance’ to the authorities. Second, compassionate release would only arise if they became terminally ill and, even then, the Bureau might not exercise its discretion in favour of release. In any event, hope of release to die of a terminal illness outside prison was not real hope of release. Third, release as a result of a change in the sentencing guidelines was speculative, did not automatically led to reductions, and would not apply if other, consecutive sentences were imposed. Finally, there was no record of any presidential pardon or commutation for a terrorism offence; the pardons issued in respect of the FALN were not comparable.

The extradition context was relevant insofar as any applicant sentenced to life imprisonment in a Contracting State could bring repeated applications to the Court complaining about his or her continued incarceration; by contrast, the present applicants had no means of challenging their incarceration once extradited. It was not correct, therefore, that an Article 3 issue could only arise after a substantial part of the sentence had been served and continued detention served no purpose (cf. Bieber and Wellington, cited above); an Article 3 issue could also arise at the time when the sentence was imposed. Moreover, it was irrelevant at what point a violation of Article 3 would arise in the United States: the principled approach which the Court had always taken to Article 3 meant that, whenever a risk of ill-treatment in the receiving State was clear and foreseeable, there would be a violation of Article 3.

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 64–72 and 144 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 134–136 above, the judgments of the Supreme Court of Canada at paragraph 148 above, and the further comparative materials set out at paragraphs 151– 156 above).

Consequently, the Court is prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of the 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 148 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 177 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 to 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 151 and 152 above). This is no truer than for 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 138 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 74 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: (i) that the applicant's continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure (Kafkaris, cited above).

The Court now turns to the facts of each case. It is convenient first to consider the cases of the first, third, fourth and sixth applicants who face, at most, discretionary life sentences.

First, the Court observes that it is by no means certain that, if extradited, these applicants would be convicted of the charges against them. If they are, it is also by no means certain that discretionary life sentences would be imposed, particularly when none of the charges they face carries a mandatory minimum sentence of life imprisonment. Nonetheless, the Court considers that it is appropriate to proceed on the basis that discretionary life sentences are possible.

Second, it is necessary to consider whether such sentences would be grossly disproportionate. In this connection the Court observes that, while the offences with which these applicants are charged vary, all of them concern involvement in or support for terrorism. Given the seriousness of terrorism offences (particularly those carried out or inspired by Al-Qaeda) and the fact that the life sentences could only be imposed on these applicants after the trial judge considered all relevant aggravating and mitigating factors, the Court considers that discretionary life sentences would not be grossly disproportionate in their cases.

Third, as the Court has observed, in respect of a discretionary life sentence, an Article 3 issue will only arise when it can be shown:

Given that none of these applicants has been convicted, still less has begun serving any sentences which might be imposed upon conviction (cf. Kafkaris and Léger, cited above, and Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010), the Court considers that they have not shown that, upon extradition, their incarceration in the United States would not serve any legitimate penological purpose. Indeed, if they are convicted and given discretionary life sentences, it may well be that, as the Government have submitted, the point at which continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the United States' authorities would refuse to avail themselves of the mechanisms which are available to reduce their sentences (see paragraph 130 above and Kafkaris, cited above, § 98).

Accordingly, the Court finds that these applicants have not demonstrated that there would be a real risk of treatment reaching the threshold of Article 3 as a result of their sentences if they were extradited to the United States. The Court therefore finds no violation of Article 3 in their cases.

Finally, the Court turns to the case of the fifth applicant. He faces two hundred and sixty-nine counts of murder and thus multiple mandatory sentences of life imprisonment without the possibility of parole. The Court does not find a mandatory life sentence would be grossly disproportionate for such offences, particularly when the fifth applicant has not adduced any evidence of exceptional circumstances which would indicate a significantly lower level of culpability on his part. Indeed, if he is convicted of these charges, it is difficult to conceive of any mitigating factors which would lead a court to impose a lesser sentence than life imprisonment without the possibility of parole, even if it had the discretion to do so. Moreover, for the reasons it has given in respect of the first, third, fourth and sixth applicants, the Court considers that he has not shown that incarceration in the United States would not serve any legitimate penological purpose. Therefore, he too has failed to demonstrate that there would be a real risk of treatment reaching the threshold of Article 3 as a result of his sentence if he were extradited to the United States. Accordingly, the Court finds that there would be no violation of Article 3 in his case.