Hafeez v the United Kingdom: a new chapter in the fight between the UK and the European Court of Human Rights over life imprisonment without parole and extradition
Matteo Zamboni, Associate Saccucci & Partners
On 24 March 2020, the First Section of the European Court of Human Rights (ECtHR) gave formal notice to the Government of the United Kingdom of the application filed on behalf of Mr Muhammed Asif Hafeez in connection with his extradition to the United States, where he is indicted for charges of conspiracy to import heroin, methamphetamines and hashish, and aiding and abetting the manufacturing/distribution of heroin.
After his arrest in London, in Summer 2017, the US Government transmitted an extradition request for Mr Hafeez. Following a decision of the District Court of 11 January 2019, the extradition was ordered by the UK Secretary of State for the Home Department on 5 March 2019, and became final on 31 January 2020 when the High Court dismissed the applicant’s appeal. In so doing, the High Court rejected the applicant’s two-fold defence on article 3 ECHR that (i) if convicted in the US he would likely be imposed an irreducible life sentence; and (ii) his conditions of detention in the US, both pre-conviction and post-conviction, were likely to be inhuman.
The applicant’s lawyers then applied to Strasbourg and obtained a rule 39 indication effectively staying the extradition pending examination of the case, which was speedily communicated to the respondent Government with two questions: (i) whether there is a real risk that the applicant would be subjected to an «irreducible» life sentence; and (ii) whether, «having particular regard to the ongoing Covid-19 pandemic», there would be a real risk of breach of article 3 on account of conditions of detention in the US.
The second question has drawn the attention of commentators as a «signal» to states that the ECtHR is ready to look at the risk of infection in prison from the perspective of article 3. But, as it has been noted, the first question is equally interesting since it involves «the assessment of whether the minimum level of severity has been met for the purposes of article 3 is the same regardless of whether the context is domestic or extra-territorial».
Against this background, this post looks at the way in which the matter has been dealt with in the decision of the High Court of 31 January 2020, and advances some considerations on the main points of the dispute before the European Court of Human Rights in light of existing case law on article 3 and extradition.
The Judgment of the High Court of England and Wales
In its judgment of 31 January 2020, the High Court of England and Wales found that the extradition of Mr Hafeez would not involve a violation of article 3 on account of a possible sentence of life imprisonment without parole being imposed on him in the US, nor of conditions of detention in that country.
For the purpose of the first limb of the case, the High Court addressed two general questions:
«First, to what extent is the position different in an extradition context as compared to a national case? Second, how specific are the requirements for review of a life sentence without parole?» (judgment of the High Court, par. 47).
These questions are not explicitly answered in the judgment. It transpires from the decision, however, that, albeit implicitly, the High Court accepted that a heightened standard is to be applied when article 3 is invoked in an extraterritorial context (such as extradition or deportation) vis-à-vis the domestic context.
The High Court then moved on to examine the issue of the compatibility of the penalty that may be imposed on Mr Hafeez, if convicted in the US, with article 3. In so doing, it refrained from deciding «whether – based on the indictment – the evidence established a real risk of a life sentence». Instead, the Court stated that, even if the applicant were to be sentenced to life imprisonment, this would not result in a breach of article 3 since in the US federal system there existed «two routes» by which he «may seek a reduction in his sentence» (ibid, par. 42 and 58).
The first route is an application for compassionate release under title 18 par. 3582 of the US code, which allows a reduction of the sentence for «extraordinary and compelling reasons» such as terminal illness, serious deterioration in health, or a change in family circumstances leading to the prisoner being the only available caregiver to a child or spouse. The defence argued that this procedure did not measure up to article 3 standards, as it «will not allow [the prisoner’s] release purely by reference to his rehabilitation», but the High Court disagreed, holding that, from the point of view of article 3, «[not] any review scheme must permit release purely by reason of the prisoner’s rehabilitative efforts», and that other «legitimate penological grounds’ can be taken into consideration, including ‘punishment and deterrence» (ibid, par. 43-44 and 58).
The second route is a petition for executive clemency. Pursuant to the guidelines published by the US department of State, this is an «extraordinary remedy» for cases of «disparity or undue severity of sentence, critical illness or old age and meritorious service rendered to the government by the petitioner e.g. co-operation». The defence pointed out that the decision on a petition for executive clemency was «not subject to judicial review», but the High Court dismissed the objection «in the light of the weight of ECHR authority to the effect that executive clemency is an acceptable method of review» (ibid, par. 45 and 58).
In essence, the High Court concluded that the sentence of life imprisonment that may be imposed on Mr Hafeez, if convicted in the US, would not breach article 3 for it would not be «irreducible».
In making these findings, the High Court placed weight on the 2008 case of Kafkaris v Cyprus in which a Grand Chamber of the ECtHR held that the possibility to file a petition for pardon or conditional release with the President of the Republic, which was available to every prisoner, including life prisoners, under the law of Cyprus, was in itself sufficient to regard the sentence as not being de jure and de facto irreducible (ibid, par. 49).
In the view of the High Court, Kafkaris thus constitutes direct authority to hold that a life sentence subject to commutation and/or reduction by means of an act of the executive (such as presidential pardon) complies with article 3. The conclusion was confirmed in the case of Harkins and Edwards v the United Kingdom, the circumstances of which «were very similar to those facing Mr Hafeez» (ibid, par. 49). As the High Court points out, Harkins and Edwards were liable to be imposed a mandatory and a discretionary sentence of life imprisonment without parole, respectively, and their only route for reduction and/or commutation of the sentence was a petition for pardon to the Government of Florida under article 4 sec. 8(a) of the Constitution of Florida. The fourth section of the ECtHR ruled that their extradition to the US did not trigger the responsibility of the UK under the Convention.
At this juncture, the High Court recognised that in Vinter and Others v the United Kingdom, which was a domestic case, another Grand Chamber of the ECtHR «was more explicit as to the nature of the review required i.e. one which addressed changes in the prisoner and progress towards rehabilitation», and found that «the whole life order in the UK violated article 3 on the basis that the Secretary of State’s discretionary power in Section 30 of the 1997 Act did not satisfy the requirement in Kafkaris». However, the High Court neutralised these findings by recalling the precedent of McLoughlin, in which the Court of Appel «disagreed with the conclusion of the ECtHR in Vinter» finding «that the term “exceptional circumstances” [set out in Section 30(1) of the 1997 Act] was sufficiently certain to inform the prisoner of the approach that would be taken by the Secretary of State», and that, in any event, «his decision in an appropriate case would be subject to scrutiny by way of judicial review», thus concluding that, contrary to what the Grand Chamber held in Vinter, «a whole life order in UK law did not violate article 3». Moreover, the High Court reminded that, in the subsequent case of Hutchinson v the United Kingdom, the Grand Chamber of the ECtHR validated the judgment of the Court of Appeal in McLoughlin and «concluded that the system of review adopted by the UK in relation to whole life orders did not violate article 3» (ibid par. 50, 51 and 55).
The High Court also discussed Trabelsi v Belgium concerning the extradition from Belgium to the US of an accused that, if convicted, «were […] to be imposed […] a sentence [which] would [have been] subject to the same avenues of review as put forward in the present case». In so doing, the High Court recognised that in Trabelsi the former fifth section of the ECtHR found that (i) «the fact that the ill-treatment is inflicted by a non-Convention state is beside the point», and (ii) «none of the procedures provided for [in the US] amounts to a review mechanism requiring the […] authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether […] the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds» (ibid, par. 54-55).
In Trabelsi, the ECtHR found a violation against Belgium on the ground that the provisions of US legislation governing the possibilities for reduction of life sentences did not fulfil the requirements of article 3. But the High Court refused to follow this precedent. Instead, it noted that while Trabelsi had been mentioned in subsequent ECtHR judgments (including Hutchinson, and Murray v the Netherlands) «[i]n no case ha[d] the ECtHR confirmed the view […] that no distinction is to be drawn between […] extradition cases and cases involving the criminal justice system of a contracting state». Moreover, the High Court diminished the importance of Trabelsi by reminding that, in the subsequent case of R (Harkins) v Secretary of State for Home Department, the divisional court rejected the argument that «Trabelsi had changed the position of anyone facing extradition and the risk of a life sentence without parole» (ibid, par. 55 and 56).
On this basis, the High Court concluded that the test to be applied to article 3 complaints concerning life imprisonment without parole remains the one set out in Kafkaris – i.e. one permitting mechanisms of sentence reduction other than judicial, and not based on «objective, pre-established criteria» including the prisoners’ rehabilitation. It follows, in the view of the High Court, that since the review mechanism available in the US satisfies this test, the applicant’s extradition would not engage the responsibility of the UK under article 3.
Implicitly, this conclusion relies on the distinction in the application of article 3 to the extra-territorial (extradition) context as opposed to the domestic context. The same distinction informs the discussion of the High Court on the second limb of Mr Hafeez’s defence concerning conditions of detention in the US. Indeed, the High Court was mindful in making clear that «[s]trong evidence is required to establish a violation of article 3 by reference to prison conditions when the requesting state is a well-established democratic country». The favour for extradition inherent in this paramount principle was compounded by the High Court’s conclusion that, on the evidence before it, «Mr Hafeez […] is not without medical issues» as he suffers from diabetes and sleep apnoea (which «requires him to wear a CPAP mask»), «[h]owever, his medical condition is unremarkable for a man of his age» (ibid, par. 66 and 62).
Having said that, the High Court went on stating that the applicant’s «pre-trial detention most likely would be at [the 10 South Unit of the Metropolitan Correctional Center in Manhattan]», and that, according to the evidence given by the clinical director of that facility «Mr Hafeez’s medical needs would be met». Moreover, the High Court noted that, in case of conviction in the US, «there is nothing […] which would warrant his transfer to a Supermax facility». That notwithstanding, in the opinion of the High Court, «[e]ven if it were the case that Mr Hafeez were at risk of being kept in solitary confinement at any point or housed at a Supermax facility post-conviction, this does not give rise without more to a violation of article 3» (ibid, par. 63-64).
The case in Strasbourg
While it is obviously impossible to foresee the content of the judgment that will be handed down by the ECtHR in the case, the main points of the High Court’s decision give some indications as to the possible issues of the dispute. In particular, it is to be presumed that the case will revolve around: (i) the purported distinction between the domestic and the extraterritorial (extradition) context in the application of article 3; (ii) the nature of the review in domestic law in order to make life imprisonment compliant with article 3; and (iii) the impact of Covid-19 on conditions of detention in the prisons where the applicant is to be detained in the US.
These three points will be addressed below.
(i) the distinction between the domestic and the extraterritorial context in the application of article 3
The dichotomy between domestic cases and extraterritorial cases, with the proposition that in the latter the Convention standards are heightened, has been asserted by the House of Lords in 2004 in R (Ullah) v Special Adjudicator, where Lord Bingham, writing for the majority, stated that:
«[d]omestic cases […] are to be distinguished from cases in which it is not claimed that the state complained of has violated or will violate the applicant’s Convention rights within its own territory but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person’s Convention rights in that other territory» (Ullah, par. 9).
The issue was further discussed in 2008 in R (Wellington) v Secretary of State for the Home Department, where the House of Lords was called to determine «whether it makes a difference that the sentence will not be imposed by a United Kingdom authority but by the State of Missouri» (Wellington, par. 5). Lord Hoffman, with Baroness Hale of Richmond and Lord Carswell concurring, answered in the affirmative. In his opinion,
«in cases of extradition, article 3 does not apply as if the extraditing state were simply responsible for any punishment likely to be inflicted in the receiving state» (ibid par. 22).
To reach this conclusion, Lord Hoffman relied on the passage of Soering v the United Kingdom in which the Grand Chamber clarified that «the Convention does not govern the actions of states not Parties to it, nor does it purport to be a means of requiring the contracting states to impose Convention standards on other states» (ibid, par. 21-22 with reference to Soering, par. 86). In his opinion, this approach is consonant with the one taken by the ECtHR in extraterritorial cases:
«[t]reating article 3 as applicable only in an attenuated form […] in the context of extradition […] is consistent with the ECtHR’s jurisprudence on the applicability of other Convention articles in a foreign context» (Wellington, par. 28-29).
Against this background, and finding that «nothing in the subsequent jurisprudence of the ECHR» contradicted the approach taken in Soering, Lord Hoffman held that
«even if the sentence [that may be imposed on the applicant upon surrender] is irreducible and might therefore contravene article 3 if imposed in the United Kingdom, there remains the question of whether it would contravene article 3 as interpreted in the context of extradition. In my opinion it would only do so if one would be able to say that such a sentence was likely, on the facts of the case, to be clearly disproportionate» (ibid par. 30 and 35).
On this basis, given that «on the facts of this case, it could not be said that a sentence of life without parole would be so grossly disproportionate to the offence as to meet the heightened standard for contravention of article 3 in its application to extradition cases», Lord Hoffman dismissed the appeal (ibid, par. 36).
While the decision to dismiss the appeal was unanimous, two Lords disagreed with the majority as to the existence of the distinction relied on by Lord Hoffman. According to Lord Brown of Eaton-under Heywood,
«if a mandatory life sentence would properly be regarded as violating article 3 in a domestic case, so too […] would the risk of it preclude expulsion of the defendant from this country in a foreign case» (ibid, par. 88).
Lord Scott of Foscote concurring found the conclusion of the majority to be «paradox[ical]» and stressed that «the language of […] article  provides no basis at all for distinguishing between the extradition and the domestic context» (ibid, par. 41).
These arguments notwithstanding, it is no surprise that the position of the majority of the House of Lords in Wellington became the one adopted by the UK government litigating extradition cases in Strasbourg. In two consecutive cases adjudicated by the ECtHR in January and April 2012 – Harkins and Edwards, and Babar Ahmad and Others v the United Kingdom – the government argued that a distinction had to 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 answer of the fourth section of the ECtHR was contradictory. On the one hand, the Court confirmed the absolute nature of article 3 in removal cases, acknowledging to have «departed from the approach contemplated by paragraphs 89 and 110 of the Soering judgment» (Harkins and Edwards, par.124-125, and 127, Ahmad, par. 172-173 and 175). On the other hand, the Court «underline[d] […] 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», and went on stating that
«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» (Harkins and Edwards, par. 129, Ahmad par. 177).
This «opaque» conclusion opened the door to speculations by scholars, especially in the UK, where it has been argued that, while «[the] case law subsequent to Soering established that article 3 protection is absolute, regardless of the form of ill-treatment and the place of past or future commission, [thus] emphasising that Soering on this point is no longer good law», in practice the European Court «went on to follow it».
But be this as it may, there is no doubt that the conclusion reached by the ECtHR in Harkins and Edwards, and Ahmad and Others, was reversed in Trabelsi, where the former fifth section rejected the argument put forward by the Belgian government that «in line with the Court’s approach in […] Harkins and Edwards and Babar Ahmad and Others, the life-sentence issue had to be analysed against the background of an extradition», holding that «[t]he fact that the ill-treatment is inflicted by a non-Convention state is beside the point» (Trabelsi, par.116).
In Trabelsi the Court, thus, stated that the assessment of an article 3 complaint is the same in extradition cases than it is in the domestic context, the only difference between the two types of cases being that, in the former, responsibility under the Convention lies on the requested state (Trabelsi, par. 126).
Interestingly, the conclusion as to the need to enhance the protection of article 3 in extraterritorial (extradition) cases was based on the (quite obvious) assumption that no other remedy would be available to the applicant upon surrender every time the requesting state (like the US) is not a party to the European Convention (Trabelsi, par.120). The issue had already been highlighted by judge Kalaydjena in his concurring opinion in Harkins and Edwards, which noted that «in cases of extradition to a non-member state of the Council of Europe, a post factum assessment will clearly come too late to prevent potential treatment in violation of article 3» (Harkins and Edwards judge Kalaydjieva concurring). The same argument was raised by the applicants in Ahmad (at par. 234), and dismissed by the Court. It is no coincidence, then, that this argument was revived in Trabelsi in order to justify the pivotal change in the Court’s case law on extradition and life imprisonment without parole.
To conclude on the point, the fact that the principles highlighted in Trabelsi have been cited by the Court in the subsequent case of Murray v the Netherlands, regardless that the latter is a purely domestic case, may indicate that the distinction relied on by the High Court between the extraterritorial and the domestic context is no longer taken upheld in Strasbourg. This conclusion seems to be supported by the fact that Trabelsi is expressly mentioned in the questions posed by the Court to the parties in the case of Hafeez, as well as in the cases of Biondo v Spain and Miloš Antić v Serbia, which also concern article 3 complaints in connection with the possible imposition of a sentence of life imprisonment without parole in the US upon extradition, and have been communicated to the respondent Governments in November 2019.
At the same time, the circumstance that Trabelsi had not been adjudicated by a Grand Chamber (as the Belgian Government opposed the relinquishment proposed by the Chamber under article 30 of the Convention, which was accepted by the applicant) makes the conclusions therein reached relatively weaker, and at least to an extent open to re-consideration.
Any such re-consideration will have to start with the concurring opinion appended to Trabelsi by judge Yudkivska. The Ukrainian judge «welcomed [the] departure from Babar Ahmad» , and notably the fact that «the Court’s previous position to the effect that “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” is not followed in these particular circumstances», but warned against «the risk» inherent in the «remarkable expansion of the scope of article 3», criticising the judgment for failing «to define clearly the scope of the Court’s review for [extradition or expulsion] cases». The opinion, then, highlights that, different from domestic cases such as Vinter, in extradition cases «the applicant […] was not yet convicted», which makes any assessment on the penalty that might be imposed «remote and abstract», although necessary ‘given the irreversible nature of the extradition’ (Trabelsi, judge Yudkivska concurring).
Drawing upon these premises, the Ukrainian judge argues that there is no room to examine the procedure to review sentences of life imprisonment without parole in effect in states outside the Council of Europe, as this would not reconcile with the principle that the Convention cannot impose standards on non-contracting states. Instead, she proposes to focus on the assurances provided by the requesting state, meaning that a violation of article 3 will depend on whether the requesting state had made a «clear statement that a mechanism geared to reconsidering, with the passage of time, the justifiability of continued detention does exist […] and can be, in principle, tried by the applicant in future» (ibid).
While the opinion is remarkable in identifying the weakness and lack of clarity in Trabelsi, the solution proposed does not really seem decisive. In particular, it is difficult to understand how the assurances given by the requesting state could allow the requested state to escape responsibility under the Convention when, as a matter of fact, the domestic law of the former does not provide a review mechanism capable to ensure the life prisoner’s right to hope, or, the other way around, the reason why poor assurances would be capable to lead the Court to find a violation, even though the domestic law of the requesting state does, in fact, provide for such a procedure of review. In more general terms, the difference between an examination of the assurances given by a non-contracting state over its domestic legislation and an assessment of the domestic legislation itself escapes in practice, nor does it seem very useful in theory.
Beside the redundant nature of this distinction, also the statement, contained in the opinion, that «[a]ll procedural obligations under the Convention remain tools to secure its effective implementation in the national legal systems», as opposed to the extra-territorial context, appears too broad to resist a careful analysis of the ever-developing case law on positive obligations of a procedural nature.
For these reasons, it will be particularly interesting to see how the matter will be addressed in the case of Hafeez and, notably, whether the first section of the ECtHR will be able to fill the lacunae of Trabelsi, while at the same time ensuring the evolutive nature of the jurisprudence on life imprisonment.
(ii) the nature of the review in domestic law in order to make life imprisonment compliant with article 3
A second major issue is the scope of the review to be undertaken in relation to article 3 claims concerning life imprisonment without parole. The question here is whether, as the High Court maintained, the test is still the one laid down in Kafkaris, or whether this has changed following the development in ECtHR case law with Vinter and Trabelsi.
In this regard, it is to be pointed out that in Kafkaris, albeit accepting that ‘life sentences in Cyprus are […] de jure and de facto reducible’, the Grand Chamber acknowledged that ‘the prospect of release for prisoners serving life sentences in Cyprus is limited [since] any adjustment of a life sentence [is] only within the President’s discretion’ (Kafkaris, par.103). Against this background, the decision not to find a violation was, at least to an extent, based on the assumption that, ‘at the present time there is not yet a clear and commonly accepted standard amongst the member states of the Council of Europe concerning life sentences and […] their review and method of adjustment’ (Kafkaris, par.104). In other words, as «the lack of consensus […] can advocate broader margin of appreciation», Kafkaris can be read as a recognition of the broad margin of appreciation enjoyed by Cyprus as regards the means to be adopted to ensure that a life sentence is compatible with article 3.
This proposition notwithstanding, the test applied in the two last-mentioned cases was still very limited in scope. At the outset, the ECtHR noted that «only […] in very exceptional cases […] 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’ (Harkins and Edwards, par.134, Ahmad, par. 238). Drawing upon this principle, the Court stated that, while «a life sentence with eligibility for release after a minimum period has been served» poses «no issues […] under article 3», the same could not be said of «a discretionary sentence of life imprisonment without the possibility of parole», and «a mandatory sentence of life imprisonment without the possibility of parole», as both of them engage article 3 «when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation); and (ii) […] the sentence is irreducible de facto and de iure» (ibid, par. 135-138 and 239-242).
In the light of this stringent test, the responsibility of the UK under article 3 was excluded on the ground that it was (i) uncertain whether there would come «[a] point at which […] continued incarceration [of the applicants] would no longer serve any purpose»; and (ii) «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» (ibid, par. 140 and 244).
On a more general line, however, it is interesting to note that the self-restraint of the Court was predicated on the «due regard [which] must be had for the fact that sentencing practices vary greatly between states» – that is to say, on the doctrine of the margin of appreciation.
The situation changed with the landmark judgment in Vinter, in which the Grand Chamber stated that
«in the context of a life sentence, article 3 must be interpreted as requiring […] a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds» (Vinter, par. 119).
To reach this conclusion, the Grand Chamber stressed the importance of the «respect for human dignity», which is «the very essence» of the Convention (ibid, par. 113). At the same time, the Grand Chamber clarified that the development in its case law was also made possible by the fact that, by 2013
«there is […] clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved» (ibid, par. 114).
The relevance of Vinter was discussed in Trabelsi, where the former fifth section remembered that, up until Vinter, the existence of a mechanism of executive clemency was sufficient to make life imprisonment in line with article 3. By contrast, after re-examining the problem, in Vinter the Grand Chamber
«pointed out that if a life sentence was to be regarded as reducible, it should be subject to a review which allowed the domestic authorities to consider whether any changes in the life prisoner were so significant, and such progress towards rehabilitation had been made in the course of the sentence, as to mean that continued detention could no longer be justified on legitimate penological grounds. Furthermore, the Court explained […] that a whole-life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence would take place or could be sought» (Trabelsi, par. 115).
On this basis, in Trabelsi the Court accepted that the procedure to review a life sentence in the US did not measure up to article 3 standards as any reduction was «completely at the discretion of the executive» (ibid, par. 133).
As the High Court correctly pointed out, in Trabelsi the ECtHR examined the two routes to reduction of a sentence of life imprisonment in the US that were relied on by the government in the case of Hafeez: compassionate release under title 18 par. 3582 of the US code, and executive clemency under Rule 35 of the Federal Rules of Criminal Procedure (Trabelsi, par. 79-83). It, then, concluded that none of these two routes
«amount[…] to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds» (ibid, par. 137).
Therefore, unless Trabelsi is dismissed as bad law, the only possible way for the ECtHR to allow the extradition of Mr Hafeez would entail new and more robust consideration of the US legislation and practice in order to show that, at a more in-depth examination, these procedures actually comply with the requirements stemming from article 3.
On a more general note, however, the case of Hafeez will also mark the opportunity for the European Court to secure the ‘exemplary’ development of its case law on life imprisonment without parole, thus re-affirming the «living» nature of the Convention.
(iii) the impact of Covid-19 on conditions of detention in the US
Finally, the ECtHR will be called to assess whether the impact of Covid-19 on prison conditions in the US poses an issue under article 3. This limb of the case is rather independent from the judgment of the High Court, that was delivered at a time (December 2019) when the emergency was yet to reach Europe, let alone America.
From the judgment of the High Court, however, it transpires that: (i) Mr Hafeez will be detained on remand at 10 South Unit of the Metropolitan Correctional Center in Manhattan; (ii) it is doubtful whether, in case of conviction, he will be placed in a Supermax facility; and (iii) Mr Hafeez suffers from pre-existing medical conditions, including diabetes and sleep apnoea.
While, for the purpose of the second point, it will be for the parties to bring relevant elements as to whether – based on the indictment and sentencing practice in the US – in case of conviction the applicant risks being detained in a Supermax facility, some considerations can be made with regard to the first and the third point.
To begin with, it seems to be common ground that the Metropolitan Correctional Center in Manhattan (MCC) is known as an infamous institution. (Among other things, this is the prison where Jeffrey Epstein was permitted to commit suicide).
Inevitably, the situation has worsened since the outburst of Covid-19, including in prisons throughout the US. Indeed, as it has been reported, while MCC is «at the epicenter of the coronavirus pandemic in New York City» it still lacks the ability to perform comprehensive testing. This is all the more disconcerting considering that it was disclosed in the press that, «[a]ccording to an internal memorandum obtained from a source inside of MCC New York […] an inmate who is housed at MCC New York tested positive for COVID-19 on March 23, 2020».
Faced with the inaction of the authorities, after more than a month from the date the news came out, five MCC inmates filed a «class action petition for release or transfer […], arguing that the prison’s failure to adequately protect them from the spread of Covid-19 inside its walls had violated their constitutional rights». Particularly interesting for the case of Hafeez, is the fact that, among other things, the lawsuit claims that «the prison has failed to test many inmates with symptoms of the virus and has done little to isolate sick inmates from others» in breach of the guidelines set by the Center for Disease Control and Prevention and the Federal Bureau of Prisons. Moreover, it is argued in the lawsuit, «[d]espite a federal order by Attorney General to prioritize the release of inmates vulnerable to Covid-19, the inmates say they don’t know of a single MCC inmate who has been released in line with that directive».
Clearly, this information is highly relevant for the case of Hafeez, even though it is likely that the ECtHR will want to integrate them with first-hand evidence as to the actual circumstances prevailing in the prison. For this reason, it is to be hoped that NGOs and activists in the US will engage in the case before the European Court and bring direct information capable to corroborate the scenario resulting from the general press.
Evidently, this information will have to be read against the background of Mr Hafeez medical conditions – and in particular of his pre-existing respiratory pathologies. While diabetes and sleep apnoea might not in themselves pose an issue under article 3, they may very well meet the severity threshold when compounded by the spread of Covid-19.
In conclusion, it is safe to assume that this is the angle under which the current pandemic may become relevant in the case. Indeed, as it has been noted, while the ECtHR has always proven particularly careful in finding that the situation in the prisons of a specific country constitutes a bar to extradition, «requested persons with pre-existing health concerns, especially of a respiratory or heart nature, would certainly have an argument that it would be oppressive to order their extradition to a state with a serious outbreak, especially if the prison estate in which they are likely to be detained has been badly hit or its medical capacity overwhelmed».