Information Note on the Court’s case-law No. 148
January 2012
Harkins and Edwards v. the United Kingdom - 9146/07
Judgment 17.1.2012 [Section IV]
Article 3
Degrading punishment
Inhuman punishment
Extradition
Proposed extradition to United States where applicants faced trial on charges carrying whole life sentences without parole: extradition would not constitute a violation
Facts – Both applicants faced extradition from the United Kingdom to the United States where, they alleged, they risked the death penalty or life imprisonment without parole. The first applicant, Mr Harkins, was accused of killing a man during an attempted armed robbery, while the second applicant, Mr Edwards, was accused of intentionally shooting two people, killing one and injuring the other, after they had allegedly made fun of him. The US authorities provided assurances that the death penalty would not be applied in their cases and that the maximum sentence they risked was life imprisonment.
Law – Article 3
(a) Death penalty – The Court reiterated that in extradition matters it was appropriate for a presumption of good faith to be applied to a requesting State which had a long history of respect for democracy, human rights and the rule of law, and which had longstanding extradition arrangements with Contracting States. The Court also attached particular importance to prosecutorial assurances concerning the death penalty. In both applicants’ cases, clear and unequivocal assurances had been given by the United States Government and the prosecuting authorities. These were sufficient to remove any risk that either applicant would be sentenced to death if extradited.
Conclusion: inadmissible (manifestly ill-founded).
(b) Life imprisonment without parole – The Court began with some general remarks, based on it case-law, concerning the proper approach to Article 3 in extradition cases. It did not accept the three distinctions the majority of the House of Lords had made in the leading domestic case of Wellington[1] (the first distinction being between extradition cases and other cases of removal from the territory of a Contracting State; the second between torture and other forms of ill-treatment; and the third between the assessment of the minimum level of severity required in the domestic context and that required in the extra-territorial context). As to the first distinction, the question whether there was a real risk of treatment contrary to Article 3 in another State could not depend on the legal basis for the removal and it would not be appropriate to apply different tests depending on whether the case concerned extradition or another form of removal. As to the second, since a prospective assessment was required in the extra-territorial context, it was not always possible to determine whether potential ill-treatment in a receiving State would be sufficiently severe to qualify as torture and the Court normally refrained from considering that question in cases where it found a real risk of intentionally inflicted ill-treatment in the receiving State. As for the third distinction made by the House of Lords – the assessment of the minimum level of severity required in the domestic context and that required in the extra-territorial context – the Court noted that in the twenty-two years since its Soering judgment[2], in an Article 3 case it had never undertaken an examination of the proportionality of a proposed extradition or other form of removal from a Contracting State and had, to that extent, to be taken to have departed from the balancing approach contemplated by paragraphs 89 and 110 of that judgment. Nevertheless, it was true that the Court was very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3. In particular, save for cases involving the death penalty, it had only very rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law.
As regards cases concerning a sentence of life imprisonment without the possibility of parole, the Court noted, as in Vinter and Others[3], that unless the sentence was grossly disproportionate, an Article 3 issue would arise for a sentence (whether mandatory or discretionary) of life imprisonment without the possibility of parole only when it could be shown (i) that the applicant’s continued imprisonment could no longer be justified on any legitimate penological grounds and (ii) that the sentence was irreducible de facto and de iure. The Court noted, however, that while not per se incompatible with the Convention, a mandatory sentence of life imprisonment without the possibility of parole was much more likely to be grossly disproportionate than any other type of life sentence, especially if the sentencing court was required to disregard mitigating factors which were generally understood as indicating a significantly lower level of culpability on the part of the defendant, such as youth or severe mental health problems.
The sentences faced by the two applicants were not grossly disproportionate. Although the first applicant’s prospective sentence was mandatory and so required greater scrutiny than other forms of life sentence, the Court noted that he was over eighteen at the time of the alleged crime and had not been diagnosed with a psychiatric disorder; moreover, the killing had taken place in the course of an armed robbery, which was a most serious aggravating factor. As to the second applicant, he faced, at most, a discretionary sentence of life imprisonment without parole that would be imposed only after consideration by the trial judge of all relevant aggravating and mitigating factors, and after the applicant’s conviction for a premeditated murder in which another man was also shot in the head and injured. Further, since the applicants had not yet been convicted, still less begun serving a sentence, they had not shown that, upon extradition, their incarceration in the United States would not serve any legitimate penological purpose. Only if and when they were in a position to show that their continued detention no longer served such a purpose could an Article 3 issue arise and, even then, it was by no means certain that the United States authorities would refuse to use their powers to commute the sentence and order release on parole.
Accordingly, neither applicant had demonstrated that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he was extradited to the United States.
Conclusion: extradition would not constitute a violation (unanimously).
The Court also dismissed the second applicant’s complaint of a violation of Article 5 § 4 of the Convention for the reasons stated in Vinter and Others.
(See also Kafkaris v. Cyprus [GC], no. 21906/04, 12 February 2008, Information Note no. 105; Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010, Information Note no. 133; and Schuchter v. Italy (dec.), no. 68476/10, 11 October 2011, Information Note no. 145)
[1] R (Wellington) v. Secretary of State for the Home Department [2008] UKHL 72. In that case, the House of Lords dismissed an appeal in which Mr Wellington had argued that his extradition to the United States on murder charges would expose him to a risk to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole.
[2] Soering v. the United Kingdom, no. 14038/88, 7 July 1989.
[3] Vinter and Others v. the United Kingdom, nos. 66069/09, 130/10 and 3896/10, 17 January 2012, Information Note no. 148).
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This summary by the Registry does not bind the Court.
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