Legal summary
November 2022
McCallum v. Italy (dec.) [GC] - 20863/21
Decision 21.9.2022 [GC]
Article 3
Degrading treatment
Inhuman treatment
Extradition
No risk of irreducible life sentence in the event of extradition to the USA, the applicant becoming eligible for parole after reduction of charges: inadmissible
Facts – The applicant is an American national who was detained in Italy when she applied to the Court. In 2020 the Italian courts granted a request for extradition to the United States of America (Michigan), where she is wanted for trial on charges of being the leader and co-conspirator in the homicide of her then husband and the removal and burning of his corpse.
The applicant complains under Article 3 of the Convention that, if extradited, she faces a real risk of life imprisonment without parole (LWOP). She submitted that under Michigan law, a LWOP sentence may be commuted by the Governor in the exercise of unfettered discretionary clemency powers: while a Parole Board makes a recommendation to the Governor, the latter is not bound by a positive recommendation.
Under Rule 39 of the Rules of Court, the Court has indicated to the Italian Government that the applicant should not be extradited for the duration of the proceedings before it.
On 7 September 2021 a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber.
On 3 December 2021 the US Embassy in Rome sent a Diplomatic Note to the Italian authorities informing them that the Prosecuting Attorney had given a commitment to try the applicant on the lesser charge of second-degree murder. The Diplomatic Note clarified that if convicted of this charge, the applicable penalty would be imprisonment for life, or any term of years in the court’s discretion, and that the applicant would be eligible for parole. On this basis, the United States amended its original extradition request, the Minister of Justice had issued a new extradition decree reflecting that change, and the applicant was eventually extradited.
Law – Article 3:
The factual basis of the case had changed with the commitment given by the competent prosecutor in Michigan to reduce the principal charge against the applicant. The Court considered it justified to proceed on the basis that the applicant could now only be tried on the charges indicated in the Diplomatic Note and specified in the new extradition decree. The Court reiterated that Diplomatic Notes carried a presumption of good faith and that, in extradition cases, it was appropriate that that presumption 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 (Harkins and Edwards v. the United Kingdom, the case concerning the same requesting State). Moreover, if, following her extradition, the original charges against the applicant were to be revived, that would not be compatible with the duty of good faith performance of treaty obligations.
Consequently, if convicted of the reduced charges, the applicant faced at most the prospect of life imprisonment with eligibility for parole. However, she had submitted that such a sentence had to be regarded as “irreducible” within the meaning of the Court’s case-law, on account of the role of the Governor of Michigan in the parole system in that State, which she argued was a decisive one. However, this argument related to a matter that could not be regarded as pertaining to the essence of the Vinter safeguard (Vinter and Others v. the United Kingdom [GC]), but rather was more in the nature of a procedural guarantee. The Court referred to the distinction between the substantive obligation and the related procedural safeguards that derived from Article 3 when it came to the issue of life sentences in the extradition context (Sanchez-Sanchez v. United Kingdom [GC]). The availability of procedural safeguards for “whole life prisoners” in the legal system of the requesting State was not a prerequisite for compliance by the requested Contracting State with Article 3.
In any event, having taken note of the relevant legislative provisions, the Court was not persuaded that the applicant’s understanding of the Michigan system was correct. As provided in Michigan Compiled Laws, a prisoner’s release on parole was at the discretion of the parole board. While the Governor of Michigan indeed enjoyed a broad power of executive clemency, he or she was not involved in the parole procedure. Nor did the relevant legal provisions empower the Governor to overrule the grant of parole to a prisoner. Appeal against the grant of parole lied to the competent circuit court.
An applicant who alleged that their extradition would expose them to a risk of a sentence that would constitute inhuman or degrading punishment bore the burden of proving the reality of that risk. In light of all of the above-mentioned factors, the applicant had not discharged that burden. Contrary to her claim, there was no real risk of the applicant receiving an irreducible life sentence, i.e., life imprisonment without eligibility for parole, in the event of conviction of the charges now pending against her in Michigan.
Conclusion: inadmissible (manifestly ill-founded).
(See also Harkins and Edwards v. the United Kingdom, 9146/07 and 32650/07, 17 January 2012, Legal summary; Vinter and Others v. the United Kingdom [GC], 66069/09 et 2 al., 9 July 2013, Legal summary; Sanchez-Sanchez v. United Kingdom [GC], 22854/20, 3 November 2022, Legal summary)
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This summary by the Registry does not bind the Court.
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