EHRM, 26-01-2010, nr. 9742/07

The Government submitted that the applicant had failed to exhaust domestic remedies since he had raised the argument concerning the possibility of being sentenced to life imprisonment without parole in his representations to the Secretary of State but had not, when seeking judicial review of the Secretary of State's decision to order his extradition, renewed that argument before the High Court. On the merits of his complaint, the Government relied on the information provided by the Australian Government. The applicant's co-accused had all been given non-parole periods in their sentences; any sentence imposed on the applicant would have to be proportionate to the sentences imposed on the co-accused; and the prosecution would not submit that the applicant should receive a life sentence without parole. It was highly unusual for Australian courts not to fix a non-parole period; only two people had been sentenced to life imprisonment with no non-parole period being set and this was for importing 389 kg of heroin with a street value of 620 million Australian dollars. Sentencing practice in Australia indicated that the applicant faced a sentence which would involve serving between 11 and 25 years' imprisonment. Even if a life-sentence with no non-parole period were to be imposed, having regard to all the circumstances of the case and the Court's judgment in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008-…, this would not violate Article 3 of the Convention. Such a sentence would not be irreducible nor would there be no prospect of release. They relied on the 1 May 2007 letter from the Australian Attorney-General's Department, which outlined the ability to petition the Governor-General under the Royal Prerogative and apply for early release under section 19AP of the Crimes Act 1914.

The applicant considered that he had exhausted domestic remedies; before the Secretary of State and the High Court he had argued that the sentence he faced was disproportionate, oppressive and unjust; hence he had put the complaint in substance before the domestic authorities. On the merits of the complaint, before this Court he argued that the sentence he faced was of sufficient severity to fall within the ambit of Article 3, taking into account his age and the effect prison would have in reducing his life expectancy. The risk of a sentence of life imprisonment without parole was a real one; the charges he faced were serious ones and the Australian authorities regarded his level of criminality as higher than that of his co-accused. It was instructive that, even after a guilty plea during his third trial, Henry had received a sentence of 11 years' imprisonment. This made it highly likely that, for the applicant, a sentence of life imprisonment would be regarded as proportionate by the sentencing court, even though the Australian Government did not regard a sentence of life imprisonment with no non-parole period as an appropriate sentencing option. The assurances given by the Australian Government, since they could not bind the sentencing court, were insufficient. He contrasted the information provided by the Australian Government with the express undertakings given by the District Attorney responsible for prosecuting the applicant in Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII. In the present case, there could be no guarantees that such a sentence would not be imposed as the severity of the sentence would depend on the precise nature of the applicant's involvement (if any) which was found by the trial court to have existed.

The applicant also argued that the prospect of a life sentence would be wholly disproportionate to the charges he faced. It was also relevant that, since the evidence against him had been obtained by intercepts in the United Kingdom, he could be prosecuted there. Therefore, there would be no impunity if his extradition could not proceed.

The Court notes the Government's preliminary objection and also recalls its finding in NA. v. the United Kingdom, no. 25904/07, § 90, 17 July 2008 that in expulsion cases (and, mutatis mutandis, extradition cases) judicial review is in principle an effective remedy which applicants should be required to exhaust before applying to this Court. However, the Court considers it unnecessary to rule on whether the present applicant has failed to exhaust domestic remedies in respect of this complaint since, in any event, it considers this complaint to be manifestly ill-founded. The Court recalls its finding in Kafkaris, cited above, § 97, that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3. However, the Court agrees with the United Kingdom Government that a sentence of life imprisonment without parole is unlikely to be imposed in this case and thus there is no real risk of the applicant serving such a sentence if convicted in Australia. The Australian authorities have provided detailed information on general sentencing practice in Australia and, more importantly, the sentences given to the applicant's co-accused. Although they have been careful to state that they regard the applicant's level of criminality to be higher than that of his co-accused, they have also made it clear that the applicant's sentence, if convicted, would need to remain in proportion to the sentences imposed on his co-accused. The Court finds no reason to doubt that the sentencing court would proceed on this basis. Moreover, the Court notes that only two people have been sentenced at first instance to terms of life imprisonment with no non-parole periods being set. The contrast between the level of criminality in that case and the present one is readily apparent; it concerned an attempt to import heroin worth 620 million Australian dollars, over fifty times the value of the ecstasy the present applicant is accused of conspiring to import. Indeed the Australian authorities have distinguished that case from the present one by indicating that, if the applicant is convicted, the prosecution will not submit to the court that a sentence of life imprisonment without parole is an appropriate sentencing option. In light of these considerations, the Court considers there is no real risk that the applicant, if convicted, would be sentenced to life imprisonment with no non-parole period being set. This conclusion makes it unnecessary to consider whether, consistent with the Grand Chamber's judgment in Kafkaris, § 98, cited above, the ability to petition the Governor-General or seek early release under section 19AP are sufficient to make a life sentence de jure or de facto reducible. It also makes it unnecessary to consider the relevance of the applicant's submission that he could be tried in the United Kingdom. Finally, in the Court's view, no significance can be attached to the absence of any diplomatic assurance from the Australian Government that a sentence of life imprisonment with no non-parole period will not be sought and no fault can be attached to the United Kingdom Government for failing to seek such an assurance; both Governments were entitled to take the view that, since such a sentence was highly unlikely, no such assurance was necessary. It follows that this part of the application must be rejected as manifestly ill-founded.

The applicant argued that legal aid in Australia was much more limited than in the United Kingdom. The nature of the charges and the complexity of the case against him meant that the legal costs of the trial were likely to exceed 40,000 Australian dollars. Funding of that level was far from certain. At trial he also intended to rely upon the defence of duress and, in order adequately to present that defence, it would be essential that a number of witnesses travel from Europe to Australia to attend the trial since the Australian authorities were only prepared to allow video link evidence for non-contentious testimony. The Australian legal-aid budget would not meet the cost of travel. This would infringe the right to equality of arms, the right to legal assistance and the right to obtain the attendance and examination of witnesses as guaranteed by Articles 6 §§ 1 and 3. Although recognising that these rights were not absolute, their infringement would amount to a flagrant breach of that Article. In his final observations under Article 6, the applicant also referred to the fact that vast quantities of intercept evidence had been obtained by the Australian authorities in the United Kingdom. Similar intercept evidence had been used in the related trial of a drug dealer in Jersey. This drug dealer had been responsible for placing the applicant under duress. The applicant would ordinarily have sought disclosure of this intercept evidence to prove his defence of duress and so invited this Court to postpone its consideration of the case until the intercept evidence could be obtained and placed before it.

The Court begins by observing that in Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 90 and 91, ECHR 2005-I, the Grand Chamber confirmed the principle first laid down in Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161, that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of a fair trial in the requesting country. The Grand Chamber in Mamatkulov also found that, as in the present case, when extradition is deferred following an indication by the Court under Rule 39 the risk of a flagrant denial of justice must also be assessed in light of the information available to the Court at the time when it considers the case.

Proceeding on that basis, and in common with the High Court, the Court considers that the present applicant has failed to demonstrate that his trial in Australia would give rise to a breach of Article 6, still less that it would amount to a flagrant denial of justice of the kind contemplated by the Court in Soering and Mamatkulov. Article 6 § 3 (c) requires free legal assistance ‘when the interests of justice so require’; the seriousness of the offence and the possible sentence faced are two factors that must be considered in determining whether that test is met (Benham v. the United Kingdom, 10 June 1996, Reports of Judgments and Decisions 1996-III; Quaranta v. Switzerland, 24 May 1991, Series A no. 205). However, as the High Court found, if there were unfairness to the applicant arising out of difficulties from legal-aid funding in Australia, the case of Dietrich v. the Queen would allow the trial court to exercise its powers to ensure the trial was fair or to stay the trial in the event of unfairness resulting out of difficulties from legal aid funding. In his submissions to this Court, the applicant has not established any grounds for believing that either the High Court was wrong in this conclusion or that the Dietrich case would not apply to his case. It may well be the case that legal aid in Australia is less generous than the legal aid that would be available to the applicant if he were tried in England and Wales and funding arrangements in Australia may be stricter. However, as the United Kingdom Government have observed, the applicant's co-accused received legal aid for their trials. The applicant has failed to demonstrate that the Australian authorities would not give due consideration to any application for legal aid he might choose to make.

Similarly, the Court accepts, as the High Court did, that some difficulties would arise in securing the proper examination of defence witnesses. Article 6 § 3 (d), though, does not guarantee the accused an unlimited right to secure the appearance of witnesses in court: it is for the domestic courts to decide whether it is appropriate to call a witness (Ubach Mortes v. Andorra (dec.), no. 46253/99, ECHR 2000-V (extracts). Moreover, the Australian authorities have also indicated their willingness to consider the use of video linking to enable those witnesses to give evidence and, if the evidence does not require cross-examination, to admit the evidence in the form of written statements. In the Court's view, these steps must be regarded as going some way to mitigating any difficulties the applicant would have in mounting his defence. Thereafter, it must be for the trial court in Australia to determine what prejudice, if any, would be caused to the applicant and the appropriate remedy. In any event, it cannot be said that the United Kingdom Government would be in violation of Article 6 §§ 1 and 3 if they extradited the applicant to face trial in Australia.

Finally, the Court cannot accept that it should postpone its consideration of the applicant's case so as to allow it to consider the intercept evidence to which he refers. To the extent that this evidence is in the possession of the Australian authorities, the disclosure of that evidence could be sought by his Australian defence team and, to the extent that intercept evidence was led in the Jersey trial, appropriate transcripts could no doubt be obtained directly from the Jersey authorities. Whatever course is pursued, this evidence may well be relevant to his defence of duress but it is irrelevant to the question of the fairness of his trial in Australia.

It follows that this part of the application must also be rejected as manifestly ill-founded.

The applicant considered it would impossible for his family to move to Australia if he were extradited. Given the ease with which he could be prosecuted in the United Kingdom, with no disruption to his private and family life, the extradition would be disproportionate to the need to prevent disorder or crime. He provided two statements to the Court. The first was from his mother in which she detailed the regular visits the family paid to the applicant in prison and stated that, because she suffered from scoliosis of the spine, osteoporosis, arthritis and celiac disease and was due to have a total knee replacement, she could not travel to Australia. If the applicant were extradited, she would never see him again. The second statement was from the applicant's wife in which she stated that she would be unable to cope with the raising of their children if the applicant were extradited. The children had regularly visited their father in prison and bonded well with him. The eldest child would find it particularly hard to deal with her father's extradition given her age.

The Court notes that the applicant does not argue that the extradition would not be in accordance with the law and thus the only matter which falls to be considered is the proportionality of the extradition to the legitimate aims set out in the second paragraph of Article 8. At the outset, the Court observes that the Convention does not provide a right to be prosecuted in a particular jurisdiction but considerations as to whether prosecution exists as an alternative to extradition may have a bearing on whether the extradition would be in violation of the one of the rights guaranteed by the Convention (see, for example, Soering, cited above, § 111). Nonetheless, in the present case, the United Kingdom authorities have given convincing reasons as to why they regard it as appropriate for any prosecution to take place in Australia, not least that the applicant's co-accused have all been tried there. Therefore, in deciding to allow the extradition to proceed, the United Kingdom authorities were entitled to conclude that this pursued the legitimate aim of preventing disorder or crime provided for in Article 8 § 2 (Aronica v. Germany (dec.), no. 72032/01, 18 April 2002). In considering whether the applicant's proposed surrender to Australia struck a fair balance between any interference with the applicant's right to respect for his family life in the United Kingdom and that legitimate aim, they were also entitled to have regard to their international obligations to Australia. Mindful of the importance of extradition arrangements between States in the fight against crime (and in particular crime with an international or cross-border dimension), the Court considers that it will only be in exceptional circumstances that an applicant's private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition (see Launder v. the United Kingdom, no. 27279/95, Commission decision of 8 December 1997). In the applicant's case, the Court notes that he relies on the fact that he has a wife, two young children and a mother in the United Kingdom, whose ill-health would not allow her to travel to Australia. This, in the Court's view, is not an exceptional circumstance which would militate in favour of the applicant's non-extradition. Although the long distance between the United Kingdom and Australia would mean the family would enjoy only limited contact if the applicant were extradited, convicted and sentenced to a term of imprisonment there, the Court cannot overlook the very serious charges he faces (see Raidl v. Austria, no. 25342/94, Commission decision of 4 September 1995). Given those charges, and the interest the United Kingdom has in honouring its obligations to Australia, the Court is satisfied that the applicant's extradition cannot be said to be disproportionate to the legitimate aim served. It follows that this part of the application must be also rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.