Extradition a violation of the prohibition against inhuman or degrading treatment

Trabelsi v Belgium (European Court of Human Rights, Chamber, Application No 140/10, 4 September 2014)

The European Court of Human Rights (ECHR) has found that the extradition by the Belgian Government of a Tunisian national, Mr Trabelsi, from Belgium to the United States (US), where he was to be prosecuted on charges of terrorist offences and liable to be sentenced to life in prison, was a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). Article 3 prohibits inhuman or degrading treatment. His right to individual petition under Article 34 of the Convention was also found to have been breached.

Facts

Mr Trabelsi is a convicted criminal in both Belgium and Tunisia, having been found guilty of crimes relating to an attempt to blow up a Belgian army base; forgery; conspiracy; and belonging to a terrorist organisation. 

In April 2008, while Mr Trabelsi was part-way through serving a prison sentence in Belgium,  US authorities requested that the Belgian authorities extradite Mr Trabelsi, in accordance with an extradition treaty in place between the countries. The request was based on an indictment and arrest warrant issued against Mr Trabelsi on 16 November 2007 by the US District Court for the District Court of Columbia, charging him with four separate offences relating to acts of terrorism; the first two of which carried maximum sentences of life imprisonment.

On 19 November 2008, a Belgian court declared the arrest warrant issued by the US Court enforceable to the extent that the charges did not overlap with the charges for which Mr Trabelsi had been convicted in Belgium. Subsequent appeals on points of law by Mr Trabelsi were dismissed.

Concurrently with the Belgian proceedings, on 23 December 2009 Mr Trabelsi lodged an application with the ECHR against Belgium. In his application, Mr Trabelsi alleged, among other things, that his extradition to the US exposed him to a risk of inhumane or degrading treatment contrary to Article 3 of the Convention.

Once the US indictment was declared operative, the proceedings relating to the response to the extradition request were commenced. On 10 June 2010, the Brussels Court of Appeal upheld Mr Trabelsi's extradition subject to a number of conditions, including that:

• the death penalty not be imposed or, failing that, not be enforced;
• any life sentence be accompanied by the possibility of commutation of sentence; and
• any request for Mr Trabelsi's re-extradition to a third country must be approved by Belgium.

The US authorities confirmed that Mr Trabelsi was not liable to the death penalty and assured the Belgian authorities that he would not be extradited to any third country without the agreement of the Belgian Government. The US also confirmed that the maximum sentence of life imprisonment was not mandatory, that the US court had discretion to impose a lighter sentence and that US legislation provided a number of means of reducing a life sentence, including through the exercise of executive clemency by way of a Presidential pardon or sentence commutation. On the basis of these assurances, on 23 November 2011, the Belgian Minister for Justice granted Mr Trabelsi's extradition to the US.

Subsequently, on 6 December 2011, Mr Trabelsi lodged a request with the ECHR for the indication of an interim measure under Rule 39 of the Rules of Court to suspend his extradition, pending a decision in relation to his previous application. The ECHR granted Mr Trabelsi's request on the same day and indicated to the Belgian Government that it should not extradite Mr Trabelsi to the US.

Notwithstanding the interim measure indicated by the ECHR, on 3 October 2013, Mr Trabelsi was extradited to the US, where he was immediately placed in custody and now remains detained in the Rappahannock regional prison in Stafford, Virginia.

Arguments

In his application to the ECHR, Mr Trabelsi alleged that his extradition to the US by the Belgian authorities was:

• in breach of Article 3 of the Convention, prohibiting torture or inhuman or degrading treatment or punishment;
• in breach of the interim measure indicated by the ECHR and therefore a violation of his right of individual petition under Article 34 of the Convention;
• in breach of Article 6.1 of the Convention, providing entitlement to a fair trial for all civil and criminal matters;
• in breach of Article 4 of Protocol No.7 to the Convention, prohibiting criminal trial or punishment for an offence which a person has already acquitted or convicted in the same state; and
• in breach of Article 8, the right to respect for private and family life, home and correspondence.

Decision

Article 3 of the Convention

Mr Trabelsi's claim that his extradition to the US breached Article 3 of the Convention was primarily founded on his contention that two of the offences for which his extradition had been granted carried an irreducible maximum life prison sentence, and that if he were convicted he would have no prospect of ever being released. Mr Trabelsi submitted that the possibility of a Presidential pardon or sentence commutation for offences relating to terrorism was de facto non-existent "post 9/11", and that this avenue of relief, which lay solely in the hands of the executive, without judicial supervision, bore no resemblance to a guarantee and was totally non-juridical.

In assessing the allegations in relation to Article 3, the majority decision by the ECHR emphasised that a sentence of life imprisonment was not in itself prohibited by the Convention but that a life sentence that was irreducible de jure and de facto was. The relevant question in this respect was whether a prisoner sentenced for life in the relevant jurisdiction could be said to have any prospect of release. Based on previous cases, this was held to require the determination of whether the applicable national law afforded the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner. A further requirement was identified that the prisoner in question had to be entitled to know, at the outset of the sentence, what must be done to be considered for release and under what conditions.

In assessing these matters, the ECHR noted that, despite the explicit request from the Belgian authorities, the US authorities had at no time provided an assurance that Mr Trabelsi would be spared a life sentence or that, should such a sentence be imposed, a reduction or commutation of sentence would be available. The ECHR also noted that, although US legislation provided the possibility of reduction of a life sentence (including the system for Presidential pardons and commutations), none of the provisions amounted to a mechanism for reviewing the sentence based on objective, pre-established criteria of which the prisoner knew about at the time of imposition of the life sentence.

On these bases the ECHR found that the life sentence was not reducible for the purposes of Article 3 and that therefore Belgium's extradition of Mr Trabelsi exposed him to the real possibility of being subjected to prohibited ill-treatment and was therefore a violation of Article 3 of the Convention.

Article 34 of the Convention

In relation to Article 34 of the Convention, Mr Trabelsi alleged that his extradition to the US had been a breach of the interim measure indicated by the ECHR. Unreceptive to the Belgian Government's arguments that any breach of the interim measure had been justified by the need to mitigate the risk that Mr Trabelsi might escape or be released, the ECHR found that the Belgian Government had deliberately and irreversibly lowered the level of protection of the right set out in Article 3 of the Convention and had failed to honour its obligations under Article 34.

Other Articles

The ECHR dismissed the allegation under Article 6.1 as being incompatible with the provisions of the Convention, as well as the allegations under Article 4 of Protocol 7 and Article 8, as being manifestly ill-founded.

Damages

The applicant claimed EUR 1,000,000 in respect of pecuniary and non-pecuniary damage which he had suffered as a result of his extradition in breach of the Convention. The ECHR dismissed the claim in respect of pecuniary damage for lack of evidence but granted EUR 60,000 in respect of non-pecuniary damage and EUR 30,000 in respect of costs and expenses.

Commentary

Although this case represents a vindication of Mr Trabelsi's formal rights under the Convention, it also demonstrates the extent to which such rights may be rendered effectively nugatory by a state party to the Convention that is unwilling to compromise political expediency in the face of limited or minimal consequences. It was apparent from the judgment that the Belgian Government considered itself to be in an awkward position with respect to the demands of the US authorities; a factor that was clearly considered in their ultimate decision to extradite Mr Trabelsi, despite the interim measure imposed by the ECHR requesting them not to do so.  In this respect an award of damages of EUR 60,000 provides little comfort to a person extradited to a jurisdiction where their Article 3 rights to protection from torture or inhuman or degrading treatment or punishment cannot be guaranteed. Similarly, such a scale of damages provides little disincentive on states to take seriously their commitments under the Convention. 

The decision is available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-146372#{"itemid":["001-146372"]}

Daniel Wiseman is a lawyer at Lander & Rogers.