Legal summary
June 2023
Bijan Balahan v. Sweden - 9839/22
Judgment 29.6.2023 [Section I]
Article 3
Extradition
No evidence of a real risk of a life imprisonment sentence without parole or with a 61-year minimum term before parole eligibility, if applicant extradited to, and convicted in, the USA: no violation
Facts – The applicant is a dual national of Iran and the United States of America (USA) and is currently being detained in Sweden. He faces extradition to the USA where he is wanted in the State of California on charges for serious criminal offences, including torture, aggravated mayhem and grand theft.
Under Rule 39 of the Rules of Court, the Court indicated to the Swedish Government not to extradite the applicant for duration of the proceedings before it.
The applicant complained, in particular, that his extradition would violate Article 3 of the Convention because, if convicted on the charges against him, he would risk receiving either an irreducible sentence of life imprisonment without parole, or a minimum term of imprisonment of sixty-one years, which would amount to a de facto irreducible sentence of life imprisonment without parole. He also argued that such a sentence would be grossly disproportionate.
Law – Article 3:
(a) Life imprisonment without parole – In Sanchez-Sanchez v. the United Kingdom [GC], the Court had developed an adapted approach for life sentences without parole in the extradition context of the principles set out in Vinter and Others v. the United Kingdom [GC] which applied to the domestic context. That approach comprised two stages: 1) It must be established whether the applicant had adduced evidence capable of proving that there were substantial grounds for believing that, if extradited, and in the event of his conviction, there was a real risk that a sentence of life imprisonment without parole would be imposed on him. 2) If the applicant established such a risk, it must be ascertained whether, from the moment of sentencing, there was a review mechanism in place allowing the domestic authorities to consider the prisoner’s progress towards rehabilitation or any other grounds for release based on his or her behaviour or other relevant personal circumstances. The availability of procedural safeguards in the requesting State was not a prerequisite for compliance by the sending Contracting State with Article 3.
In the present case, having regard to all the material available, the Court was satisfied that there was no real risk that the applicant would receive a sentence of life imprisonment without parole. At most, he might face the prospect of life imprisonment with eligibility for parole. On the face of it, the applicant had therefore not fulfilled the first stage of the test set out in Sanchez-Sanchez.
The applicant had submitted, however, that a life sentence with eligibility for parole would in his case amount to a de facto life sentence without parole because he would have to serve a minimum term of up to sixty-one years before being eligible for parole, which would exceed his life expectancy.
In the domestic context, although it was not for the Court to determine when a review of a life sentence should take place, it had found that when whole-life prisoners could only be considered for release on parole after they had served forty years of their life sentences, those life sentences could not be regarded as reducible for the purposes of Article 3. In the extradition context, however, in order to comply with that provision, the sending Contracting State was not required to examine the availability of procedural safeguards in the requesting State because, among other reasons, scrutinising its relevant law and practice with a view to assessing its degree of compliance with those procedural safeguards might prove unduly difficult for the domestic authorities deciding on extradition requests, and that would be an over‑extensive interpretation of the responsibility of a Contracting State.
Thus, for example, in McCallum v. Italy (dec.) [GC] the Court had dismissed the applicant’s argument that her life sentence with eligibility for parole could be regarded as de facto life imprisonment without parole on account of the Governor of Michigan’s role in the parole system, since that argument related to a matter that had been more in the nature of a procedural guarantee as opposed to a substantive guarantee.
In the instant case, the applicant had not as such disputed that there had been a parole system in place in California but rather had submitted that that system would not be relevant to him on account of the length of the minimum term that he would have to serve before being eligible for parole. The Court found that it was not necessary to determine whether that argument related to a matter that should be regarded as a substantive guarantee or was more in the nature of a procedural guarantee, since he had in any event not adduced evidence capable of showing that there was a real risk that he would receive such a lengthy minimum term. In this connection his argument was subject to significant uncertainty for the following reasons.
The applicant had not yet been tried or convicted and it was difficult to speculate as to whether he would be convicted on any or all charges, and what the possible consequences might be of certain elements being removed from the charge of aggravated mayhem (the Supreme Court had found there to be obstacles to extradition in so far as that charge alleged the infliction of permanent disability and loss of limb or organ for want of evidence). As the Court had recognised in Sanchez‑Sanchez, there were many factors which could contribute to the imposition of a sentence and, prior to extradition, it was impossible to address every conceivable permutation that could occur or every possible scenario that might arise. The applicant had previous convictions for two crimes which might cause California’s Three Strikes Law to be applicable and him facing a potential sentence of life imprisonment with a minimum term of sixty‑one years. Under that Law, individuals with two prior serious or violent convictions who were convicted of a new, non-serious, non-violent felony offence received double the sentence that they would otherwise have received for the new offence; individuals with two prior serious or violent offences who were convicted of a third serious or violent offence received a third-strike enhancement, that is, an indeterminate sentence with a minimum term of twenty-five years. However, prosecutors and judges could exercise discretion in applying the Three Strikes Law. If they decided not to apply that law in his case, the potential minimum term would be significantly shorter, namely seventeen years. The applicant had not provided any evidence that that discretion was rarely exercised, that there was a high risk that the law would be applied in his case or evidence of any defendants with similar records to his who had been found guilty of similar conduct and had been sentenced to life imprisonment with such a lengthy minimum term. According to a declaration provided to the applicant from an attorney at law practising in California, it was very difficult to predict what the outcome of a prosecution of the applicant would be. Furthermore, the applicant would have the right to appeal against any sentence imposed. Lasty, the minimum term that he would be required to serve before being eligible for parole could be reduced by credits earned during imprisonment, regardless of whether the Three Strikes Law was applied or not.
Thus, the applicant had failed to show that there was a real risk that if he was extradited and convicted, he will receive a sentence of life imprisonment with a minimum term of up to sixty-one years. The length of the minimum term would depend on a number of unknown factors and might be significantly shorter.
In the light of all the above, the applicant could not be said to have adduced evidence capable of showing that his extradition to the USA would expose him to a real risk of treatment reaching the Article 3 threshold on account of the risk that he would be sentenced to, de jure or de facto, life imprisonment without parole. That being so, it was unnecessary for the Court to proceed in this case to the second stage of the analysis.
(b) Grossly disproportionate sentence – “Gross disproportionality” was a strict test that would only be met on rare and unique occasions, and it would only be in very exceptional cases that an applicant would 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. A sentence could not be deemed grossly disproportionate simply because it was more severe than the sentence which would be imposed in another State.
The applicant was charged with crimes of a serious nature. He would only be sentenced after a court in California had heard the case, taken into account all relevant factors, and had decided whether to dismiss or maintain any sentencing enhancements resulting from previous convictions. In addition, the applicant had not shown that there was a real risk that he will be sentenced to life imprisonment without parole. Thus, he had not substantiated his claim that, if extradited to the USA, he would risk receiving a grossly disproportionate sentence.
Conclusion: no violation in case of extradition (six votes to one).
The Court decided, unanimously, to continue to indicate to the Government under Rule 39 of the Rules of Court that it was desirable in the interests of the proper conduct of the proceedings not to extradite the applicant until such time as the present judgment became final or until further notice.
(See also Harkins and Edwards v. the United Kingdom, 9146/07 and 32650/07, 17 January 2012, Legal summary; Babar Ahmad and Others v. the United Kingdom, 24027/07 et al., 10 April 2012, Legal summary; Vinter and Others v. the United Kingdom [GC], 66069/09 et al., 9 July 2013, Legal summary; T.P. and A.T. v. Hungary, 37871/14 and 73986/14, 4 October 2016, Legal summary; McCallum v. Italy (dec.) [GC], 20863/21, 21 September 2022, Legal summary; Sanchez-Sanchez v. the United Kingdom [GC], 22854/20, 3 November 2022, Legal summary; Hafeez v. the United Kingdom (dec.), 14198/20, 28 March 2023)
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This summary by the Registry does not bind the Court.
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