FOURTH SECTION
DECISION
Applications nos. 43759/10 and 43771/12
Steven WILLCOX and Scott HURFORD
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 8 January 2013 as a Chamber composed of:
Ineta Ziemele, President,
Davíd Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on 2 August 2010 and 29 June 2012 respectively,
Having deliberated, decides as follows:
THE FACTS
1. Mr Steven Willcox (“the first applicant”) is a British national who was born in 1964 and is currently detained at HM Prison Rye Hill. Mr Scott Hurford (“the second applicant”) is a British national who was born in 1975 and is currently detained at HM Prison Full Sutton. Both applicants were represented before the Court by Stevens Solicitors, a firm of solicitors based in Stafford.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The first applicant
(a) The arrest, conviction and transfer
3. In April 2003 the first applicant was arrested and detained in Thailand, the country in which he then resided, on drugs charges. In November 2004 he pleaded guilty to an offence of possession for distribution of 24 grams of pure heroin and 1.4 grams of pure MDMA in the form of ecstasy tablets. Both were Category 1 narcotics under Thai law (see paragraph 36 below). The quantity of drugs gave rise to an “irrebuttable presumption” that they were for the purpose of distribution (see paragraph 40 below). The first applicant was acquitted of a charge of possessing for distribution about 760 grams of pure heroin because there was insufficient proof of possession. He was sentenced to life imprisonment. However, he was given credit for his guilty plea in the form of a one-third reduction in his sentence. Equating the life sentence with fifty years’ imprisonment, the court sentenced the first applicant to thirty-three years and four months’ imprisonment in respect of the above conviction.
4. In June 2007 the first applicant sought a transfer to the United Kingdom to serve the remainder of his sentence, pursuant to a bilateral prisoner-transfer agreement between Thailand and the United Kingdom (“the Prisoner-Transfer Agreement” – see paragraphs 49-56 below). The request was agreed to by both governments.
5. The terms of the transfer were spelt out to the first applicant in a letter from the National Offender Management Service of England and Wales, which explained that the United Kingdom would enforce the sentence imposed, subject to the prevailing parole and early-release provisions of the relevant United Kingdom legislation. It also stated that, after transfer, the first applicant could not challenge his conviction or sentence in the United Kingdom courts: the right to review remained with the sentencing State, and any challenge had to be made before transfer. The first applicant consented to the terms and signed a consent form.
6. On 6 November 2007 the first applicant was transferred to a prison in England having served the required four-year minimum term in Thailand. A warrant authorising his detention in the United Kingdom was issued by the Ministry of Justice under the Repatriation of Prisoners Act 1984 (“the 1984 Act” – see paragraphs 57-63 below).
7. In June 2008 the first applicant’s sentence was reduced by a Thai royal decree to twenty-nine years and three months. This led to a new warrant for his detention being issued, on 9 June 2008, by the Ministry of Justice under the 1984 Act. The warrant authorised his detention in custody for a further period of 8,901 days (just over twenty-four years). The first applicant’s current early-release date, at the halfway point in his sentence, is 5 December 2017.
(b) The judicial review proceedings
8. The first applicant applied for judicial review of the Ministry of Justice’s warrant of 9 June 2008 to authorise his detention. He argued, firstly, that the “irrebuttable presumption” under Thai law that possession was for the purpose of distribution had led to a flagrant denial of justice and that the enforcement of the sentence was therefore arbitrary under Article 5 of the Convention. Secondly, also under Article 5, he argued that the sentence was arbitrary because the effect of the transfer meant that by pleading guilty the time spent in custody was longer than it would have been had he pleaded not guilty. Finally, he argued that the continued enforcement of his sentence in the United Kingdom violated his rights under Article 3 of the Convention because the sentence itself was grossly disproportionate. Although he accepted that he had consented to the terms of the transfer, he claimed that he had had no choice but to agree to transfer on any terms because of the terrible conditions in which he was being held in the Thai prison, and so his consent was not freely given.
9. On 1 July 2009 the Divisional Court handed down its judgment dismissing the claim. Mr Justice Ouseley noted at the outset that it was agreed that the impugned presumption was irrebuttable. He further observed that the Thai court had made no comment about the first applicant’s consistent contention that the drugs had been for personal use because, under Thai law, it was irrelevant.
10. The judge reviewed the provisions of the Prisoner-Transfer Agreement. He considered that their effect was that the part of the sentence imposed by the transferring State which remained unserved at transfer had to be served in the receiving State, subject to the latter’s early-release provisions. In the first applicant’s case, this meant that while he would have been released after serving two-thirds of his sentence in Thailand, he would benefit from release at the halfway point in the United Kingdom. He would also benefit from any royal amnesties or pardons granted by Thailand.
(i) The presumption arising from the quantity of drugs in the applicant’s possession
11. Turning to consider the challenge to the lawfulness of the first applicant’s continued detention based on the trial process in Thailand, Ouseley J agreed that the continued enforcement of a sentence following a trial which involved a flagrant denial of justice would be unlawful, and that the prisoner’s consent to the transfer could not make it otherwise. It was therefore necessary for the United Kingdom to ask before transfer whether there was, in substance as well as in form, a conviction by a competent court. The judge indicated that instances where this was in issue were likely to be obvious and known to the diplomatic representatives of the United Kingdom at the time of trial. He noted that the consequence of the Prisoner-Transfer Agreement, the domestic legislation and the approach of this Court was that the more unfair the trial, the more likely it would be that the receiving State would have to refuse cooperation and the prisoner would have to remain where he was, as in other cases where the prisoner did not meet the criteria for transfer.
12. Turning to the circumstances of the first applicant’s case, the judge observed that he had been granted a transfer which, on his own arguments as analysed above, ought to have been refused on the grounds that a flagrant denial of justice had occurred at trial. However, this did not prevent his challenging the lawfulness of his continued detention once within the jurisdiction of the United Kingdom. The judge explained that the risk of undermining the Prisoner-Transfer Agreement was reduced by the very high threshold which would have to be met before release could be sought and the probability that any trial that met it would already have come to the attention of the United Kingdom authorities and would have resulted in the refusal of a request for a transfer. He continued:
“37. ... Indeed, the court should be astute to avoid lowering the threshold. It would only apply in those cases where the reaction of the court is that a particular prisoner simply cannot be detained in the UK to continue a sentence following such a trial.
38. ... If Mr Willcox is right that his trial was a flagrant denial of justice, he should not have been transferred under the PTA [Prisoner-Transfer Agreement] at all and should have been left in prison in Thailand. There is no provision for his retrial in the UK. Mr Willcox may have benefited from what he must assert to be the want of alertness of the UK authorities, but if so others must not. His actions, if he is right, in highlighting the limitations on the power of transfer under the PTA, and so on his evidence disadvantaging others in life[-]threatening ways to achieve his own release, cannot subvert the law. It can encourage however its careful application.”
13. As to whether there was a flagrant denial of justice in the applicant’s case, the judge observed that on the evidence there was a reasonably arguable case that the drugs were for personal use only. He examined the nature and effect of the presumption, and found that it was a “very important irrebuttable presumption on a commonplace issue in drugs cases” which led to markedly increased sentences. However, he concluded that despite the significant diminution of the presumption of innocence, the proceedings in Thailand could not be described as a complete denial or nullification of the right to a fair trial. He noted that a trial had been held in public before two independent judges; that the first applicant had been present and legally represented; that he had been acquitted of some very grave offences; that the court had heard evidence proving his possession of the drugs even though that fact was not contested; that domestic sentencing procedures were followed and a significant discount allowed for the guilty plea; and that a reasoned judgment was provided.
14. Referring to a ruling of the Thai Supreme Court on the compatibility of the “irrebuttable presumption” with the presumption of innocence (see paragraphs 41-42 below), the judge noted that the reasoning behind the “irrebuttable presumption” was that the Thai courts were in effect sentencing for quantity possessed. He emphasised that Thailand faced a scourge from drugs and that courts in the United Kingdom should be slow to pass judgment on the way in which States that were not parties to the Convention grappled with major problems in their countries.
15. Dismissing the Article 5 complaint based on the trial process, the judge concluded:
“51. An overall view is required of the trial. I conclude that it plainly was a trial, fair within the limits created by the local narcotics legislation in relation to one, albeit important, ingredient. Those limits dent the right but do not completely nullify or deny it, nor in my view do they come close to that ...”
16. Mr Justice Davis agreed that the complaint should be dismissed. In respect of the “irrebuttable presumption”, he said:
“91. ... I can accept that, by European law standards, an irrebuttable (not rebuttable) presumption of intent to distribute may well be objectionable. But the relevant Thai statutory provision has been tested in the Thai constitutional court and has been held constitutional in that court and not incompatible with the presumption of innocence applicable in Thailand. I do not think the United Kingdom courts should be astute to seek to impose and substitute their own views of the matter. Moreover, as the Thai constitutional court also pointed out, the practical reality is that such presumption exists in order to have the practical effect that on conviction the resulting sentence is much increased. That reflects the deterrent approach the Thai legislation had adopted to deal with drug problems in Thailand.
92. Further, Mr Willcox undoubtedly had in Thailand what can properly be recognised as a proper trial. He was legally represented; evidence was received and evaluated; the judicially constituted court applied the presumption of innocence; and in fact, in a fully reasoned judgment, the court, having received the evidence, found that the prosecution had not proved the far more grave charge with which he was charged and of which his co-defendant was convicted. Mr Willcox thus was convicted on the lesser count, on his plea, and sentenced by way of due process; and the sentence complied with Thai law ...”
(ii) The effect of the guilty plea
17. The first applicant also argued that his continued detention was arbitrary in light of his guilty plea. He contended that he would have received a life sentence had he pleaded not guilty and, on transfer, a minimum term would have been set by the High Court (see paragraph 63 below). In fixing the minimum term, the High Court would have had regard to the United Kingdom context and it would therefore have fixed a far shorter minimum term than the fixed term imposed in Thailand. Ouseley J found:
“54. There is nothing in this argument. Had he been sentenced to life, and not death, after a plea of not guilty, he would have had to serve a minimum of 8 years in Thailand before his transfer was considered, rather than the 4 which he actually served. After release in the UK, he would remain on licence. The life sentence is intended to have a continuing impact after release and to pose risks of return to custody which would not otherwise exist. It should be regarded as the more severe sentence in principle. The difference in outcomes is not the result of arbitrary action by the Thai Court but of the application of Thai law to his plea, then interacting with UK sentencing practice on transfer.”
18. He therefore concluded that it was not arbitrary for the United Kingdom courts to enforce the sentence after transfer.
19. Davis J added:
“94. ... In Thailand, a life sentence is – generally speaking and subject to amnesties or pardons – just that. It is only because in English law the tariff system is imposed that the alleged arbitrariness can even begin to result. In any event, it is by no means clear-cut that the Thai authorities would have agreed to transfer Mr Willcox as a life-sentence prisoner; in any case, the evidence showed that Thailand requires such a prisoner to serve at least 8 years in a Thai jail before even being considered for repatriation. The evidence also shows that, in practice, by virtue of the general amnesties or pardons frequently granted in Thailand, a life sentence is often reduced to a determinate sentence.”
(iii) The “gross disproportionality” of the sentence
20. Finally Ouseley J addressed the first applicant’s argument that the sentence imposed was so grossly disproportionate as to amount to a violation of Article 3. He agreed that had the first applicant been sentenced in the United Kingdom for simple possession of the relevant quantity of heroin and ecstasy, his sentence could not have exceeded a maximum term of seven years (see paragraph 46 below) and would have been substantially less than that. Even if the first applicant been sentenced in the United Kingdom for possession of such a quantity of drugs with intent to supply, which was equivalent to the offence of which he was convicted, the sentence would not have exceeded about six years, having regard to the sentences imposed in other similar cases (although the offence carried a maximum sentence of life). He continued:
“60. ... It does not seem to me of any value to consider whether a determinate sentence is or may be so grossly disproportionate as to breach Article 3 simply by virtue of its length. That is because there will always be other factors present to affect the judgment. These will include the nature of the offence, the rationale for the sentencing framework, as well as the specific way in which the offence was committed, and the personal circumstances of the offender.”
21. The judge noted that the first applicant had provided evidence which, if accepted, showed his conditions of imprisonment to be very harsh and degrading, and possibly in breach of Article 3 standards. He continued:
“64. ... Success for Mr Willcox could prove very damaging for the interests of other prisoners languishing in the same sort of circumstances he described, and not just in Thailand. He was not convicted of an unusual offence in Thailand. ... [A] Senior Manager in the Ministry of Justice, gave evidence that 33 prisoners had been transferred from Thailand since 1991 under the PTA, most serving sentences for drug offences, ranging up to 50 years. It is not to be supposed that Thailand would be indifferent to the UK releasing someone from detention after transfer to the UK because the sentence to be served was thought to be grossly disproportionate. Thailand did not agree and would not have agreed to a UK court substituting its own sentence for that of the Thai court. Thailand refused to conclude a bilateral agreement with the Netherlands until it abandoned its preference for ‘conversion of sentence’. The good faith of the UK could be put in question in my judgment in the light of the PTA and of what the UK government said at the time of transfer; and the transfer of other prisoners could thereby be inhibited or prevented.”
22. The judge further observed that the attitude towards transfer of other States with which the United Kingdom had concluded bilateral or multilateral prisoner-transfer agreements might be affected by the way in which the United Kingdom dealt with transferred prisoners. He therefore considered that if the first applicant were right that a sentence could be so grossly disproportionate as to make its continued enforcement in the United Kingdom a breach of Article 3 of the Convention, then the United Kingdom would be bound to refuse to accept the transfer on that basis in order to avoid undermining the Prisoner-Transfer Agreement. It would be required to conduct an assessment of proportionality before transfer, in order to decide whether to allow a transfer request. The judge observed:
“66. ... It would mean that fewer prisoners would be transferred, however much they protested that they consented to the transfer on the terms agreed in the PTA. It might well lead to defensive judgments by the UK about who could be transferred, in the interests of upholding the agreed application of the PTA. It is also unlikely that prisoners would say anything which might inhibit their transfer until after return anyway. But keeping their powder dry until return would only delay the problem which this would bring for the PTA, undermining the good faith necessary for its effective and beneficial operation. Mr Willcox, if his arguments are right, would have benefited from a want of legal perspicuity which his arguments would require to be applied to others in the future. There is therefore a considerable dilemma created by the very principle of [the applicant’s] arguments ...”
23. The judge emphasised that the Prisoner-Transfer Agreement as a whole was designed, on transfer, to enforce the sentence of the transferring court and not to go through trial and sentence again, this time adopting the receiving State’s values and judgments. He considered that for the United Kingdom to review sentence after transfer would be to do that which the Prisoner-Transfer Agreement rejected, and that to interpret the agreement as containing such a power would be to misinterpret its terms. He continued:
“69. The solution to this dilemma cannot readily be found either in the short unreasoned obiter sentence of the ECtHR in Drozd and Janousek [v. France and Spain, 26 June 1992, § 110, Series A no. 240], requiring the receiving state not to co-operate with transfers. It did not have to face the problem arising here. It did not have to deal with the problem that, on the basis of his arguments, this claimant should have remained in custody and in very much worse conditions than those from which he has benefited on transfer. Nor did it have to deal with the problem that the consequence of his success in persuading the UK Government to co-operate with Thailand, to his own advantage and in a way which he now says it should not have done, is that others may well be left to languish in Thailand and elsewhere, after trials and for terms and in conditions which could infringe the very principles his arguments would uphold for him. Mr Willcox’s argument if correct necessitates acceptance of the proposition that he should still be in prison in Thailand and, now that the UK Government is alerted to the gross violations of human rights his case involved, others in the like position should stay there so that their human rights are not infringed in the UK. The application of what the ECtHR said in these circumstances could thus be to achieve the very opposite of what it thought would be achieved in Drozd and Janousek. It did not have to deal with the way in which its obiter comment on the obligation to refuse co-operation could require the UK to undermine the intent of its international agreements as the alternative, for what probable short term difference it would make, until the transferring states refused their continued co-operation under the PTA, as they are entitled to do. The ECtHR cannot have envisaged that the obligation not to co-operate should mean that transfers should be agreed on one basis and then given effect on another, in a way which would undermine the good faith of the requesting state. These very real problems were simply not before it and were therefore understandably not addressed.”
24. The judge concluded that in fact the treatment being imposed on the first applicant by the United Kingdom for the purposes of Article 3 was not the imposition of the sentence but the transfer to which the first applicant had agreed for the purpose of the continued enforcement of the Thai sentence in the United Kingdom. Thus, the judge held, the allegedly cruel, inhuman or degrading treatment, which gave rise to the alleged breach of Article 3, was the acting on the request for a transfer, with the necessary consequence that the sentence would continue to be enforced. He continued:
“70. ... It is irrelevant to ask whether this sentence would be so grossly disproportionate as to breach Article 3. Mr Willcox had a choice as to where he served his sentence, Thailand or the UK. He chose to serve that sentence in the UK for the benefits which he knew that would bring him, and on that basis agreed to transfer. He knew that those benefits did not include a review of sentence. The concept of ‘gross disproportion’ in sentence is not a substitute for the language of Article 3 but an illustration of what it could cover; the underlying treatment still has to be cruel, inhuman or degrading. I cannot accept that the operation of this humane provision, which the claimant has benefited from through his own fully informed choice, can be described as, or as capable of leading to, treatment which is cruel, inhuman or degrading. The continued enforcement of the sentence on transfer simply does not breach Article 3, however gross the disproportion in the sentence to UK eyes, or however arbitrary the sentence might have been.”
25. In these circumstances, the United Kingdom was not required to examine before transfer whether the sentence imposed by the court of the transferring State was so severely disproportionate that it would breach Article 3 if enforced.
26. As to the first applicant’s submission that his consent was not freely given and should be disregarded, the judge noted that for prisoners abroad seeking transfer, there would always be some circumstances of hardship which affected their consent; that was why they sought transfer. The mere fact that Article 3 rights were breached in any particular transferring country could not mean that prisoner transfer had to be refused on the grounds that the prisoner’s consent could not be effectively given. Were the court to hold that the first applicant’s consent was vitiated by prison conditions, the same would be true of other British prisoners in Thailand held in the same conditions, who could therefore never give their effective consent. He concluded:
“74. Nothing in the ECtHR jurisprudence requires international agreements, entered into for a beneficial purpose, operating to the benefit of the individual in question, to be undermined in this way, let alone to be characterised as breaches of Article 3 ...”
27. Finally, the judge held that even if the continued enforcement of a sentence were capable of breaching Article 3 because of the length of the sentence, the sentence imposed on the first applicant was not so grossly disproportionate to the offence or so arbitrary that its continued enforcement by the United Kingdom would breach that Article. Although by United Kingdom sentencing standards the sentence was harsh, the first applicant had not committed the offences in the United Kingdom: he had committed them in Thailand, where there was a serious drugs problem and where the government and legislature were entitled to take the view that harsh sentences were legitimate and necessary. The judge noted in this regard:
“77. ... It would be quite wrong to ignore the fact that the sentence was not passed by the UK dealing with a UK drugs problem with the values and standards of the UK. It was passed by another country with its own values, judgments and objectives for dealing with what is recognised internationally as a scourge, and the significance of which to Thailand, Thailand alone is well placed to judge. The judgment as to a disproportion in sentencing so severe as to amount to a breach of Article 3 when enforced in the UK cannot ignore that dimension and proceed as if the offence was committed or sentenced in the UK. Gross disproportion relates to the gravity of the offence and the circumstances of the offender. If disproportion is the key to the analysis it cannot be considered in a vacuum, or as if the whole world shared the same problems to the same extent and shared the same views as to how to tackle them. Still less would it make sense to judge the degree of disproportion by assuming that the sentence was imposed in the UK, when it was not. Disproportion requires account to be taken of the position in the transferring country or it will lead to a false view of disproportion. The problems and outlook of the country where the offence was committed and where sentence was passed are of crucial importance.”
28. Davis J observed that it was important to bear in mind that, under English law, the maximum sentence for the offence for which the applicant was convicted was life imprisonment. Although he accepted that in a Crown Court in England the applicant could not have expected, having pleaded guilty, and even assuming intent, to receive much more than around four or five years’ imprisonment, he considered that enforcement of a sentence by a contracting State on transfer was not, for Article 3 purposes, to be equated with putative imposition of the sentence by the contracting State. He agreed with Ouseley J that the relevant treatment by the United Kingdom authorities for the purposes of Article 3 was their agreement to the applicant’s transfer. He continued:
“96. Once it is looked at in that way, as in my view it should be, this argument on behalf of Mr Willcox falls away. Mr Willcox has to serve subject to English law as to early release, which works in his favour, the balance of the sentence just because that is what the PTA requires ... If he does not serve the balance, then the application of the terms of the PTA will have been breached and ... the policy behind the Repatriation of Prisoners Act 1984 will have been frustrated and the PTA itself could soon bec[o]me a dead letter, to the detriment of other prisoners in Thailand in the future hoping for repatriation ...
97. In my view, set in context, it cannot be said that this sentence imposed on Mr Willcox was such that to enforce it would render the United Kingdom in breach of Article 3. Thailand has clearly decided to impose deterrent sentences for drug misuse; a properly constituted court, after a proper trial process, has passed sentence on Mr Willcox, an adult, in accordance with Thai law, the validity of which has been upheld by the Thai Constitutional Court. For good measure, he stands – quite apart from any diplomatic initiatives that may be made – to benefit from the periodic amnesties or pardons that periodically are published in Thailand and he also does benefit from the early release provisions under English law.”
29. On 3 February 2010 the Supreme Court refused permission to appeal the judgment of the Divisional Court.
2. The second applicant
30. The second applicant was arrested in Thailand on 19 March 2005 for crossing the Cambodia/Thailand border with 240 methamphetamine pills. He pleaded guilty to the criminal charge of unlawfully importing 240 methamphetamine pills and was sentenced to thirty years’ imprisonment. A royal amnesty subsequently reduced his sentence to twenty-six years and eight months’ imprisonment.
31. The second applicant requested to be transferred to the United Kingdom to serve the remainder of his sentence. He further requested that his sentence be reduced on transfer to that of the maximum sentence applicable in the United Kingdom for the offence for which he was convicted. At the time of the commission of the second applicant’s offence, methamphetamine was a Class B drug under United Kingdom legislation. Had the second applicant committed the offence in the United Kingdom, his sentence would have been a maximum of fourteen years’ imprisonment. On 18 January 2007 methamphetamine was reclassified as a Class A drug in the United Kingdom. The maximum sentence for importation of Class A drugs was life imprisonment (see paragraph 44 below).
32. On 24 July 2009 the Ministry of Justice agreed to the second applicant’s request to be transferred to the United Kingdom to serve the remainder of his sentence. As regards his request for a reduction in sentence, the Ministry explained:
“As you may be aware, at the time you committed your offence in Thailand a similar offence in the United Kingdom would have constituted an offence of importation of a Class ‘B’ drug. As such it would have carried a maximum sentence of 14 years’ imprisonment. However, under the terms of the Prisoner Transfer Agreement between the United Kingdom and Thailand we are required to enforce the sentence imposed on you by the Thai courts. There is no requirement under English law to adapt or reduce a sentence imposed abroad where that sentence exceeds the statutory maximum sentence where such an adaptation is not provided for by the relevant international agreement.”
33. The second applicant was given the opportunity to withdraw his transfer request. He did not do so and, both States and the second applicant having agreed to the transfer pursuant to the Prisoner-Transfer Agreement, the second applicant arrived in England on 11 November 2009. His current early-release date is August 2020.
34. In February 2010 the second applicant sought a conditional pardon from the Secretary of State for Justice under the latter’s royal prerogative of mercy. On 27 April 2010 the second applicant received a response stating, inter alia:
“The Justice Secretary has concluded that he has no power in the international agreement with Thailand to grant a conditional pardon. To do so would amount to a breach of that agreement as well as being contrary to the UK’s policy as expressed by it.”
35. The second applicant applied for permission to seek judicial review of this decision, arguing that the Secretary of State had wrongly interpreted his powers under the royal prerogative of mercy and that he had failed to disclose material relevant to his decision. On 17 November 2011 permission was refused. The second applicant’s application to certify a point of law of general public importance for the Supreme Court was refused on 2 March 2012.
B. Relevant law and practice
1. Thai legislation on drugs offences
36. Section 15 of Thailand’s Narcotics Act 1979 contains a general prohibition on producing, importing, exporting, disposing of or possessing Category 1 narcotics without a government permit. Heroin, methamphetamine and ecstasy are Category 1 narcotics.
37. Section 65 provides that the punishment for production, import and export of Category 1 narcotics is life imprisonment and a fine. The death penalty applies if the offence was committed for the purpose of disposal.
38. Section 67 deals with simple possession of 3 grams or below of Category 1 narcotics: the required term of imprisonment is between one and ten years or a fine.
39. Section 66 deals with disposal, and possession for disposal, of Category 1 narcotics. Where the pure quantity is below 3 grams, a term of imprisonment is to be imposed within the range of four to fifteen years, or a fine. Between 3 and 20 grams, the term of imprisonment must be four years to life and a fine. In excess of 20 grams, the sentence is life imprisonment and a fine, or death.
40. Paragraph 3 of section 15 provides that the production, import, export or possession of 3 grams or more of Category 1 narcotics is to be regarded as production, import, export or possession for the purpose of disposal.
41. In 2001 the Thai Constitutional Court considered the compatibility of this “irrebuttable presumption” with the constitutional provision that a person charged with an offence was presumed innocent and had to be proved guilty. At that time the presumption applied at 20 grams pure rather than at 3 grams. The court concluded that the “irrebuttable presumption” and the constitutional provision were compatible. It noted that the purpose of the Act was:
“to enable efficient suppression and control of narcotics and to show accordance with the international narcotics convention to which Thailand is a member. This is because nowadays narcotics are an international concern and pose serious risks against human health and life. Therefore, punishments must be harsher than usual and the punitive measures must be absolute.”
42. The aim of the legislation was to punish the possessors of more than 20 grams pure as if their acts were for the purpose of distribution. Category 1 narcotics posed a great danger to society and their production and possession was not allowed. The more that was produced and possessed, the greater the danger. However, the court explained that the determination by law of the quantity of Category 1 narcotics only served as a benchmark for the offence which would lead to punishment. The law set out the penalties, showing the steps by which they increased with the amounts involved. Regardless of whether the drugs were held in possession for use or for distribution, different penalties would be imposed on the amount in possession as provided by law. A person upon whom a penalty was imposed would have had to be shown to be in possession of the requisite amount.
2. United Kingdom legislation and practice on drugs offences
43. Section 3(1) of the Misuse of Drugs Act 1971 (“the 1971 Act”) provides that the importation or exportation of a controlled drug is prohibited. Pursuant to section 50(3) of the Customs and Excise Management Act 1979 (“the 1979 Act”), a person is guilty of an offence if he imports or is concerned in importing any goods contrary to any prohibition.
44. Section 50(4) and (5) and Schedule 1 to the 1979 Act provide that for the offence of importation of a Class A drug, the maximum sentence is life imprisonment and a fine. For importation of a Class B drug, the maximum sentence is fourteen years’ imprisonment and a fine.
45. Section 5 of the 1971 Act makes it an offence for a person to have a controlled drug in his possession, subject to limited exceptions. It further provides that a person who has a controlled drug in his possession, whether lawfully or not, with intent to supply it to another commits an offence, again subject to limited exceptions.
46. Section 25 and Schedule 4 to the 1971 Act address the punishment and sentencing of offenders. For possession of a Class A drug, the maximum sentence is seven years’ imprisonment and a fine. For possession of a Class A drug with intent to supply, the maximum sentence is life imprisonment and a fine.
47. Heroin, ecstasy and methamphetamine are Class A drugs. Until 18 January 2007, methamphetamine was a Class B drug.
48. The most recent sentencing guideline on drug offences was issued by the Sentencing Council in February 2012. Sentencing courts in the United Kingdom are required to follow the guideline when sentencing anyone after 27 February 2012, unless it would be contrary to the interests of justice to do so. The guideline requires an assessment of the offender’s role and takes into account the weight of drugs involved to provide an appropriate starting-point and sentencing range.
3. Agreement between the United Kingdom and Thailand on the Transfer of Offenders and on Co-operation in the Enforcement of Penal Sentences, 1990
49. The Prisoner-Transfer Agreement between the United Kingdom and Thailand came into force in February 1991. In its recitals, reference is made to the parties’ desire to enhance cooperation efforts in law enforcement and the administration of justice, to cooperate in the enforcement of penal sentences, and to facilitate the successful reintegration of offenders into society.
50. Article 2 provides for the transfer of sentenced persons from the transferring State to the receiving State to serve the sentences imposed on them.
51. Article 3 sets out the scope of application of the Agreement. It imposes a number of conditions, including that the acts for which the sentence was imposed are criminal in both States; the offender is a national of the receiving State; any minimum term has been served; the judgment is final and there are no pending proceedings; and both the States invovled and the prisoner agree to the transfer.
52. Article 5 provides that the transferring State retains exclusive jurisdiction regarding the judgments of its courts, the sentences imposed by them and any procedures for revision, modification or cancellation of those judgments and sentences.
53. Article 6 § 1 provides that the continued enforcement of the sentence after transfer is governed by the laws and procedures of the receiving State, including those governing conditions of imprisonment and those providing for the reduction of the term of imprisonment by parole, conditional release, remission or otherwise.
54. Article 6 § 2 stipulates that, subject to Article 6 § 3, the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State.
55. Article 6 § 3 provides that no sentence of deprivation of liberty is to be enforced by the receiving State in such a way as to extend it beyond the period specified in the sentence of the court of the transferring State. It stipulates that enforcement shall “as far as possible” correspond to the sentence imposed in the transferring State.
56. Article 6 § 6 requires the receiving State to inform the transferring State of any grant of conditional release, of the completion of the sentence or of any escape.
4. Procedure on transfer
57. Section 1(1) of the Repatriation of Prisoners Act 1984 provides that, subject to the other provisions of section 1, the relevant Secretary of State must issue a warrant providing for the transfer of a prisoner to the United Kingdom where, pursuant to a prisoner-transfer agreement, the States concerned and the prisoner (if required) have consented to the transfer.
58. Section 1(2) prohibits the Secretary of State from issuing a warrant where he is of the opinion that it is inappropriate for the transfer to take place.
59. Section 1(4) provides that the Secretary of State shall not issue a warrant unless he is satisfied that all reasonable steps have been taken to inform the prisoner in writing in his own language:
“(a) of the substance, so far as relevant to the prisoner’s case, of the international arrangements in accordance with which it is proposed to transfer him,
(b) of the effect in relation to the prisoner of the warrant which it is proposed to issue in respect of him under this Act,
(c) ..., of the effect in relation to the prisoner of the law relating to his detention under that warrant (including the effect of any enactment or instrument under which he may be released earlier than provided for by the terms of the warrant),
...
(e) of the powers of the relevant Minister under section 6 of this Act [revocation of warrants];”
60. Pursuant to section 3(1) of the 1984 Act, the effect of the warrant is to authorise the bringing of the prisoner into the United Kingdom and his detention in accordance with provisions appropriate for giving effect to the international arrangements in accordance with which the prisoner was transferred.
61. Section 3(3) provides that in determining what provisions are appropriate, the Secretary of State shall, to the extent that it appears to him consistent with the prisoner-transfer agreement to do so, have regard to the inappropriateness of the warrant’s containing provisions which, inter alia:
(a) are equivalent to more than the maximum penalties (if any) that may be imposed on a person who, in the part of the United Kingdom in which the prisoner is to be detained, commits an offence corresponding to that in respect of which the prisoner is required to be detained in the country ... from which he is to be transferred; ...”
62. Section 6 of the 1984 Act authorises the Secretary of State to revoke a warrant and issue a new warrant if at any time it appears to him to be appropriate to give effect to the relevant prisoner-transfer agreement or in a case falling within section 1(2) (see paragraph 58 above).
63. Pursuant to section 273 of the Criminal Justice Act 2003, where a life prisoner has been transferred to the United Kingdom in pursuance of a warrant issued under the 1984 Act, the Secretary of State must refer his case to the High Court for it to set the minimum term which has to be served before eligibility for release on licence.
COMPLAINTS
64. Both applicants complained under Article 3 of the Convention that their sentences were grossly disproportionate to the offences committed.
65. Both applicants also complained under Article 5 § 1 of the Convention that their continued detention in the United Kingdom was arbitrary as by pleading guilty they were effectively required to serve a longer period in custody than they would have had they pleaded not guilty.
66. Finally, the first applicant argued that, as a result of an “irrebuttable presumption” applied by Thai law in his case, his trial was flagrantly unfair and his continued detention was therefore arbitrary and unlawful under Article 5 § 1.
THE LAW
A. Joinder
67. Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
B. The second applicant’s compliance with Article 35 § 1
68. The Court notes at the outset that the second applicant was transferred to the United Kingdom on 11 November 2009. He did not challenge the warrant issued by the Secretary of State to authorise his continued detention in the United Kingdom. Instead he sought judicial review of the Secretary of State’s later decision of 27 April 2010 to refuse him a conditional pardon. He lodged an application with this Court within six months of the refusal on 2 March 2012 of his application for a point of law of general public importance to be certified. The Court observes that a question arises in the case of the second applicant as to whether he has complied with the requirements of Article 35 § 1 of the Convention, which provides:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
69. However, it is not necessary for the Court to determine this question, as his application is in any event inadmissible for the reasons set out below.
C. The complaints under Article 3 of the Convention
70. The applicants contended that their sentences were grossly disproportionate and that the continued enforcement of the sentences by the United Kingdom violated their rights under Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
71. The applicants argued that the finding of the Divisional Court that only the decision to accept the transfer was reviewable under Article 3 was incorrect, and that continuing enforcement was equally capable of violating that Article. They considered that a grossly disproportionate sentence could give rise to a violation of Article 3, relying on Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, § 133, 17 January 2012. There was no margin of appreciation in Article 3 and it was accordingly well established that extraneous objectives, albeit legitimate or even laudable, did not affect the absolute nature of Article 3. The fact that the sentence was imposed in Thailand was not relevant to the assessment of whether there was a violation: once a sentence was deemed grossly disproportionate, it could not be saved by deference to an alternative sentencing context. It applied in an absolute way in the context of transferred prisoners.
72. As to the disproportionate nature of the sentences imposed in their cases, they pointed out that their sentences were four to five times as long as the sentences which they would likely have received had they been convicted of the same offences in the United Kingdom. They claimed that their continued detention no longer served a legitimate penological purpose, having regard to the time that they had already spent in detention.
73. The Court notes at the outset that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Léger v. France, no. 19324/02, § 89, 11 April 2006, and Kafkaris v. Cyprus [GC], no. 21906/04, § 95, ECHR 2008). The Court has consistently stressed that the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Thus in cases involving a deprivation of liberty, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kafkaris, cited above, § 96, and Kudła v. Poland [GC], no. 30210/96, §§ 92 and 94, ECHR 2000‑XI).
74. While, in principle, matters of appropriate sentencing largely fall outside the scope of the Convention, the Court accepts that a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, gross disproportionality is a strict test and it will only be on rare and unique occasions that the test will be met (see Harkins and Edwards, cited above, § 133). In Harkins and Edwards, which involved the applicants’ complaint that grossly disproportionate sentences would be imposed by the State which requested their extradition, the Court explained that in a removal case a violation would arise if an applicant were able to demonstrate that he was at real risk of receiving a grossly disproportionate sentence in the receiving State. However, it emphasised that the Convention was not a means of requiring the Contracting States to impose Convention standards on other States. Due regard had to be had for the fact that sentencing practices varied greatly between States and that there would often be legitimate and reasonable differences between States as to the length of sentences which were imposed, even for similar offences. Accordingly, it would only be in “very exceptional” cases that an applicant would be able to demonstrate that the sentence he would face in a non-Contracting State would be grossly disproportionate and thus contrary to Article 3 (ibid., § 134).
75. The Court emphasises that different considerations arise in cases in which a Contracting State is asked to refuse extradition to a jurisdiction where a grossly disproportionate sentence might be imposed; and in cases where that same State is confronted with a request by a prisoner for transfer to serve a sentence imposed by a foreign court, that might have been considered grossly disproportionate had it been assessed in the context of a prior extradition request. In the former case, it is within the State’s power to prevent the offending sentence being imposed. In the latter, the sentence has been imposed and might have to be served in harsh and degrading conditions, subject to limited early-release provisions. When considering the degree of humiliation and suffering inherent in the impugned acts, it is necessary to have regard to the degree of humiliation and suffering inherent in the alternative option. It would in the Court’s view be paradoxical, and anathema to its obligation to interpret and apply the Convention rights in a manner that renders the guarantees practical and effective and not theoretical and illusory (see, among many other authorities, Airey v. Ireland, 9 October 1979, § 26, Series A no. 32, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 175, ECHR 2012), if the protection afforded by Article 3 operated to prevent prisoners being transferred to serve their sentences in more humane conditions.
76. It follows from the preceding paragraphs that when examining whether a sentence violates Article 3 in the context of the continued enforcement of a sentence under a prisoner-transfer agreement, the focus must be on whether any suffering or humiliation involved go beyond that inevitable element of suffering and humiliation connected with the enforcement of the sentence of imprisonment imposed by the foreign court. In assessing the degree of suffering and humiliation, it is necessary to make allowance for the varying sentencing practices adopted by States and the legitimate and reasonable differences between States as to the appropriate length of sentences. The Court must also take into account the fact that the transfer has occurred within the framework of international cooperation in the administration of justice, which is in principle in the interests of the persons concerned (see Drozd and Janousek v. France and Spain, 26 June 1992, § 110, Series A no. 240, and Veermäe v. Finland (dec.), no. 38704/03, ECHR 2005-VII). Prisoner-transfer agreements in particular are generally intended to serve the laudable aims of eliminating the adverse effects of serving a sentence in an environment which is socially, culturally or linguistically unfamiliar and facilitating future reintegration into society (see for example the objectives of the Prisoner-Transfer Agreement, paragraph 49 above). Thus, where a measure of international cooperation is directed at promoting and protecting the fundamental rights of those subject to criminal sanctions abroad, the benefit enjoyed by the applicant as a result of the execution of that measure is an important factor in favour of finding that the manner and method of the execution of the sentence do not subject the applicant to distress or hardship exceeding the unavoidable level of suffering inherent in detention.
77. In the present case, the Court emphasises, firstly, that there is no suggestion that the sentences imposed on the applicants were outwith the range of sentences generally imposed on others convicted in Thailand for similar offences. The sentences imposed on the applicants also fall within the permitted maximum sentences applicable to equivalent convictions in England under the 1971 and 1979 Acts (see paragraphs 44 and 46 above).
78. The Court also emphasises that the applicants’ sentences were imposed by Thai courts for drugs offences committed in Thailand. In this regard the Court draws attention to the vast differences in the civil, political, economic, social and cultural conditions prevailing in countries across the globe. As a consequence of these significant differences, States have constructed their criminal-justice systems around principles and approaches which are often equally varied. It is in principle for sovereign States to decide how best to tackle the problems which arise in their respective territories, provided always that the responses remain within the range of approaches considered to be acceptable by democratic States. The solutions applied in one State may not be suited to another, and it follows that a sentence cannot be deemed grossly disproportionate simply because it is more severe than the sentence which would be imposed in another State. It is not contested that Thailand faces a serious drugs problem, and that for this reason drugs offences are severely punished. The Court agrees with the judge in the Divisional Court that the Thai government and legislature were entitled to take the view that harsher sentences than those applicable in the United Kingdom were legitimate and necessary (see paragraph 27 above).
79. It is further of relevance that the impugned sentences are being enforced by the United Kingdom pursuant to requests from the applicants for their transfer. It is clear that both applicants expressly consented to the transfer, having been advised of the consequences of doing so in terms of the length of the sentences that they would have to serve and their inability to challenge the convictions or sentences imposed (see paragraphs 5 and 31‑33 above). The Court notes that, had the transfer requests been refused by the United Kingdom, both applicants would have remained incarcerated in Thai prisons where their conditions of detention are likely to have been far inferior to those currently enjoyed, and might themselves have constituted a breach of Article 3. They would have been eligible for early release only at the two-thirds point of their sentences, instead of the halfway point under English law. Their transfers were clearly directed at promoting and protecting their fundamental rights to the greatest possible extent in the particular context, and have achieved that aim.
80. Having regard to all the circumstances, no case has been made out to the satisfaction of the Court that any suffering or humiliation involved in the enforcement of the applicants’ sentences until their entitlement to early release under English law goes beyond that inevitable element of suffering and humiliation connected with the sentences imposed by the Thai courts and, in particular, that the manner and method of the execution of the measure subjects them to distress or hardship exceeding the unavoidable level of suffering inherent in detention. The applicants’ complaints under Article 3 of the Convention are accordingly manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4.
D. The complaints under Article 5 § 1 of the Convention
81. The applicants complained that their continued detention was arbitrary as, had they pleaded not guilty, they would have ended up serving less time in prison. They relied on Article 5 § 1 of the Convention, which provides:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court; ...”
82. The first applicant also argued that an “irrebuttable presumption” was applied in his case which rendered his trial flagrantly unfair, such that his continued detention in the United Kingdom was arbitrary.
1. General considerations
83. It can be seen from the details provided as to the nature of the applicants’ complaints that they do not challenge the compliance of their continued detention with domestic law, nor do they dispute the existence of a causal connection between their convictions and the deprivations of liberty in issue. Their complaints focus instead on the alleged arbitrariness of their continued detention.
84. The Court will therefore examine whether the deprivation of liberty in their cases is arbitrary, within the meaning of Article 5 § 1 of the Convention. It has previously indicated that arbitrariness may arise where there has been an element of bad faith or deception on the part of the authorities; where the order to detain and the execution of the detention did not genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1; where there was no connection between the ground of permitted deprivation of liberty relied on and the place and conditions of detention; and where there was no relationship of proportionality between the ground of detention relied upon and the detention in question (see Krajišnik v. the United Kingdom (dec.), no. 6017/11, § 53, 23 October 2012; see also Saadi v. the United Kingdom [GC], no. 13229/03, § 69, ECHR 2008, and James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, §§ 192-95, 18 September 2012 and the references therein). The applicants have not argued that any of these elements are present in their respective cases, and the Court does not consider them to be so present.
85. It remains to be examined, therefore, whether there are any other indications of arbitrariness in the applicants’ cases arising as a result of the effect of their guilty pleas or, in the case of the first applicant, the operation of the “irrebuttable presumption” as applied in Thailand. In assessing the question of arbitrariness, the Court reiterates that the Convention cannot be interpreted in a vacuum but should so far as possible be interpreted in harmony with other rules of international law of which it forms part (see Al‑Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001‑XI; Csoszánszki v. Sweden (dec.), no. 22318/02, 27 June 2006; and Rantsev v. Cyprus and Russia, no. 25965/04, § 274, ECHR 2010). In the present case regard must therefore be had to the general context of prisoner transfers and to the specific terms of the Prisoner-Transfer Agreement applicable in the present case.
2. The effect of the guilty pleas
86. The applicants argued that their guilty pleas ought to have resulted in a significant reduction of sentence. However, although in Thailand their sentences were reduced from life imprisonment to determinate sentences, the impact of this reduction was inversed by their transfer to the United Kingdom. This was because if they had pleaded not guilty and been sentenced to life imprisonment, it would have fallen to the High Court to determine an appropriate minimum term for them to serve before being considered for release on licence (see paragraph 63 above). In carrying out this exercise, it would have had regard to local sentencing guidelines and the tariffs imposed in each of their cases would have been dramatically lower than the determinate sentences imposed by the Thai courts. As such, had they not pleaded guilty, they would now have the prospect of immediate release.
87. The Court observes that in the case of the first applicant, life imprisonment was not the only sentence available to the Thai court had it convicted him after a plea of not guilty. He was convicted of being in possession of 24 grams of heroin with intent to supply; the two possible sentences for such an offence were a life sentence or a sentence of death (see paragraph 39 above). In so far as his guilty plea reduced a death sentence to a determinate sentence of imprisonment, he has reaped a significant benefit from it.
88. The Court further observes that royal amnesties are common in Thailand and that they may operate to reduce a sentence of life imprisonment to a determinate sentence of imprisonment (see paragraph 19 above). It is to be noted that both applicants have already benefited from a reduction in sentence as a result of a royal amnesty (see paragraphs 7 and 30 above). It has therefore not been established that had the applicants pleaded not guilty, they would still have been subject to life sentences of imprisonment at the point of their transfer, such that the fixing of a minimum term by the High Court would be required.
89. Further, as the Divisional Court noted in the case of the first applicant, had he been sentenced to life imprisonment, he would have been required to serve a minimum term of eight years in Thailand before being eligible for transfer, rather than the four that he actually served (see paragraphs 17 and 19 above). Although no such information has been provided in respect of the second applicant, it is likely that similar limitations would have applied to him. Had life sentences been imposed, the applicants would therefore have been deprived of the possibility of transfer for an additional four years, time which would have been spent in detention in the harsher conditions prevailing in Thai prisons.
90. The Court also agrees with the Divisional Court’s observations that it is not accurate to compare the tariff period under a life sentence with the term of a determinate sentence (see paragraph 17 above). In particular, a life sentence entails obligations and restrictions which extend beyond the mere period spent in detention, both in the form of parole conditions and the risk of being returned to custody in the case of a breach of those conditions. These restrictions make a life sentence the more stringent sentence in principle.
91. The Court accepts that there may be differences in outcome for prisoners who have been transferred from the State in which they were sentenced to serve their sentences elsewhere. It has previously found that detention was not arbitrary where, as a result of the interaction of the sentencing law of the transferring State and the rules on early release in the receiving State, the transfer of a prisoner resulted in a longer de facto term of imprisonment being served (see Veermäe, cited above; Csoszánszki, cited above; Ciok v. Poland (dec.), no. 498/10, § 26, 23 October 2012; and Giza v. Poland (dec.), no. 1997/11, § 23, 23 October 2012). In the present case it seems likely that had life sentences been imposed on the applicants in Thailand and not been converted to determinate sentences by royal amnesty prior to their transfers, the applicants would have benefited from a significantly reduced period of detention after transfer to the United Kingdom because the High Court would have fixed a relatively short minimum term (see paragraph 17 above). However, the difference in outcome does not arise from the arbitrary application of different rules to different prisoners. Clear rules, set out in the applicable prisoner-transfer agreement, the 1984 Act and the Criminal Justice Act 2003, are applied in prisoner-transfer cases, and were applied in the applicants’ cases. That different outcomes may occur is the result of the interaction between the law of the transferring State on sentencing and the practice of the receiving State on transfer. Such differences are inherent in any prisoner-transfer arrangements, which are essentially based on the principle that the sentence imposed by the transferring State will be enforced by the receiving State. The Court reiterates that the applicants consented to their transfers, in the knowledge of what that entailed in terms of the time they would be required to serve in detention, doubtless to enjoy the many benefits attached to the enforcement of their sentences in the United Kingdom, including more favourable rules on early release and better conditions of detention.
92. In these circumstances, the continued detention of the applicants by the United Kingdom cannot be said to be arbitrary within the meaning of Article 5 § 1 (a) as a result of the effect of their guilty pleas. Their complaints are manifestly ill-founded and therefore inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
3. The “irrebuttable presumption”
93. Although the first applicant pleaded guilty, he maintained that despite the quantity involved, the drugs were for his own personal use. As a result of the “irrebuttable presumption” set out in Thai law, he was not able to challenge the charge that they were for distribution. As a consequence, he argued that his trial was flagrantly unfair and that his subsequent detention was arbitrary, within the meaning of Article 5 § 1 (a) of the Convention.
94. As the Convention does not require Contracting States to impose its standards on third countries, the requirement of Article 5 § 1 (a) that a person be lawfully detained after “conviction by a competent court” does not imply that the Court has to subject proceedings in third countries leading to that conviction to comprehensive scrutiny and verify whether they have fully complied with all the requirements of Article 6 of the Convention (see Stoichkov v. Bulgaria, no. 9808/02, § 51, 24 March 2005, and Drozd and Janousek, cited above, § 110). To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would thwart the current trend towards strengthening international cooperation in the administration of justice, which the Court has already reiterated is generally in the interests of the persons concerned (see Drozd and Janousek, cited above, § 110).
95. However, the Court has also held that if a conviction is the result of proceedings which were a “flagrant denial of justice”, that is, were “manifestly contrary to the provisions of Article 6 or the principles embodied therein”, the resulting deprivation of liberty would not be justified under Article 5 § 1 (a) (see Stoichkov, cited above, § 51, and Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 259, ECHR 2012). The Court has indicated that “flagrant denial of justice” is a stringent test of unfairness. It goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of a fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article (see Othman (Abu Qatada), cited above, § 260). Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included: conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge; a trial which is summary in nature and conducted with a total disregard for the rights of the defence; detention without any access to an independent and impartial tribunal to have the legality of the detention reviewed; the deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country; and the admission of evidence obtained by torture (see Othman (Abu Qatada), cited above, § 259 and the references therein, and § 267). It follows from the examples given and from the nature of the test itself that instances where there has been a flagrant denial of justice will be obvious and known to the diplomatic representatives of the receiving State prior to the transfer taking place.
96. The question in the present case is whether the “irrebuttable presumption” in Thai law led to a breach of Article 6 which was so fundamental as to amount to a nullification, or destruction of the very essence, of the applicant’s right to a fair trial. In this regard, the Court observes that presumptions of fact or of law operate in every legal system and that the Convention does not prohibit such presumptions in principle. However, Article 6 § 2 does not regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (Salabiaku v. France, 7 October 1988, § 28, Series A no. 141‑A).
97. The operation of section 15(3) of the Thai Act in question (see paragraph 40 above), a provision that went to the definition of the particular offence with which a suspected offender could be charged, tried and sentenced, precluded the first applicant from arguing that the quantity of drugs in his possession was for personal use only. The Court further notes the finding of the judge in the High Court that there was a reasonably arguable case on the evidence that the drugs were for the first applicant’s own use (see paragraph 13 above). It cannot be excluded that there may be circumstances in which a provision of the nature of section 15(3) of the Thai Act would be capable of giving rise to an issue under Article 6 § 2. However, as the Thai Constitutional Court explained in its judgment of 2001, the purpose of the Thai Act was to punish more harshly those in possession of more than a certain quantity of narcotics, and the intended impact of the application of section 15(3) of the Act was to increase the penalty that could be imposed on a defendant in possession of such an amount of narcotics. The offence arose essentially from the possession of the narcotics, and this still had to be proved by the prosecution (see paragraphs 41-42 above). In the present case, the first applicant had the benefit of a number of procedural guarantees in the Thai proceedings. He was tried in public before two independent judges; he was present throughout the proceedings and was legally represented; he was acquitted of some of the charges in accordance with the presumption of innocence and, despite the fact that possession of heroin and ecstasy was not contested, evidence was led to demonstrate that the drugs were in his possession; and he was sentenced in accordance with the applicable law and was given a significant reduction for his guilty plea (see paragraphs 13 and 16 above). In any event, it is a material factor, when assessing the impact of the “irrebuttable presumption” on the overall fairness of the trial, that the first applicant did not alert the United Kingdom authorities, either during his trial or when making his request for a transfer, to the alleged flagrant denial of justice in his case.
98. The Court concludes that while the applicant’s defence rights were restricted by the operation of the “irrebuttable presumption” in his case, it cannot be said that the very essence of his right to a fair trial was destroyed. Having regard to all the circumstances of the case, the Court considers that the applicant has failed to demonstrate that there has been a flagrant denial of justice in his case. The applicant’s continued detention therefore discloses no violation of Article 5 § 1 (a). His complaint is accordingly manifestly ill-founded and therefore inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Full & Egal Universal Law Academy