Information Note on the Court’s case-law 35
October 2001
Einhorn v. France (dec.) - 71555/01
Decision 16.10.2001 [Section III]
Article 3
Extradition
Extradition to the United States of a person allegedly risking being subjected to "death row syndrome" and liable to be sentenced to life imprisonment without remission: inadmissible
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Extradition of applicant to the United States, where he had been convicted in absentia, following adoption of a US law allowing for the possibility of retrial: inadmissible
Extradition of applicant to the United States, where he claims the members of the jury which will retry him have been subjected to a virulent media campaign: inadmissible
The applicant, an American citizen, was arrested in the State of Pennsylvania after the mummified body of his girlfriend was discovered at his home. While an investigation against him was under way he left the United States. In 1993 he was convicted in absentia by an American court and sentenced to life imprisonment. Appeals by his lawyer were dismissed. In 1997, after the applicant was arrested in France, the United States Government submitted a request for his extradition, which was refused on the ground that he would be unable to obtain a retrial in the United States if he was extradited. By a statute which came into force in January 1998 the Pennsylvania legislature made a change to the relevant procedure so that persons convicted in absentia could, in certain cases, be granted a retrial. The United States Government consequently submitted a further extradition request, stating that the applicant would be granted a new trial if he requested one and that the death penalty would not be sought, imposed or carried out. The Indictment Division of the Bordeaux Court of Appeal ruled in favour of the applicant’s extradition, on condition that he was granted a new and fair trial, if he so requested, and that he was not given the death penalty. In a decree of July 2000 the French Prime Minister granted the extradition on those terms. The applicant applied to the Prime Minister to reconsider his decision; when that application was dismissed, he applied to the Conseil d’Etat. He submitted, in particular, that his extradition would contravene Article 3 of the Convention in that he would be likely to have to serve an irreducible life sentence without any genuine prospect of remission or parole; in addition, as the victim’s body had been found after the death penalty had been restored in Pennsylvania, there was a risk that he might be sentenced to death and thus be exposed to the “death-row phenomenon”. In a judgment of July 2001 the Conseil d’Etat dismissed the application. It held, in particular, that the extradition of a person who faced life imprisonment without any possibility of early release was not contrary to Article 3. It then referred to the assurances given by the American Government in support of their extradition request of July 1998, to the undertaking given on two occasions by the District Attorney of Philadelphia County that the death penalty would not be sought, and to her formal declaration that the death penalty could not be imposed in the State of Pennsylvania if it had not been sought. It concluded that sufficient guarantees had been offered in respect of the applicant’s extradition. The applicant subsequently attempted to commit suicide, but the French Government produced to the Court a medical certificate attesting that his state of health was compatible with his transfer to the United States. The Court lifted the interim measure it had indicated to the French Government under Rule 39 in July 2001, and the applicant was extradited to the United States.
Inadmissible under Article 3: The American authorities had given assurances that the statute restoring the death penalty in Pennsylvania, which had been enacted after the alleged offence had been committed, would not be applied retrospectively, and had provided sufficient guarantees that the death penalty would not be sought, imposed or carried out by the court in which the applicant was retried. Those assurances were such as to remove the danger of the applicant’s being sentenced to death in Pennsylvania; he was therefore not exposed to a serious risk of treatment or punishment (the “death-row phenomenon”) prohibited under Article 3. Furthermore, if the applicant was sentenced to life imprisonment after a new trial, the Governor of Pennsylvania could – subject to certain conditions – commute the life sentence to another one of a duration which afforded the possibility of parole. Although that possibility was limited, it did not appear that if the applicant was sentenced to life imprisonment, it would be impossible for him to obtain parole: manifestly ill-founded.
Inadmissible under Article 6: An issue might exceptionally be raised under Article 6 of the Convention by an extradition decision in circumstances where the fugitive had suffered or risked suffering a “flagrant denial of justice” in the requesting country. In the instant case, the extradition of the applicant to the United States would be likely to raise an issue under that provision if there were “substantial grounds” for believing that he would be unable to obtain a retrial in that country and would be imprisoned there in order to serve the sentence imposed on him in absentia. The statute of January 1998 allowed him in principle to be retried in Pennsylvania for the offence of which he had been convicted in absentia. Admittedly, the applicant had produced to the Court a large number of affidavits which had reached the conclusion that the statute in question was contrary to the constitutional principles of that State and that the court which, pursuant to the statute, was supposed to retry him would be unable to do so. However, in the absence of a finding by the competent courts in Pennsylvania, the documents produced did not prove that the statute was unconstitutional; it could not be inferred from them that there were “substantial grounds for believing” that the applicant would be unable to obtain a retrial in Pennsylvania or that the denial of justice he feared was flagrant. It had not been for France to determine whether the statute was constitutional before granting the extradition. France had fulfilled its obligations under Article 6 in that it had been entitled, in all good faith, to infer from the undertakings given by the appropriate American authorities that, on returning to Pennsylvania, the applicant would not have to serve the sentence that had been imposed on him in absentia. The applicant further complained that the jurors at a retrial in the United States would have been exposed to an extremely hostile media campaign. Where extradition proceedings were concerned, applicants were required to prove the “flagrant” nature of the denial of justice which they feared; in the instant case, however, the applicant had not adduced any evidence to show that, having regard to the relevant American rules of procedure, there were “substantial grounds for believing” that his trial would take place in conditions that contravened Article 6: manifestly ill-founded.
[This decision clarifies the principles laid down in the Soering v. the United Kingdom judgment regarding the compatibility of an extradition decision with Article 6 (right to a fair trial).]
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This summary by the Registry does not bind the Court.
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