Hafeez v. the United Kingdom and the operation of Article 3 in the extradition context
The ECtHR miss the chance to clarify the extent of the revised approach to Article 3 issues regarding the imposition of life imprisonment without parole in the extradition context
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On 20 April 2023 the European Court of Human Rights (ECtHR) published the decision adopted by the Fourth section of the Court on the application of Mr Muhammad Asif Hafeez against the United Kingdom (UK). As made clear already by the questions asked to the parties at the time of the communication of the application to the respondent Government, the significance of the case lies in the reasoning regarding the extent of Article 3 obligations when a complaint regarding the imposition of an irreducible sentence of life imprisonment without parole is raised in the extradition context.
Against this background, one would expect the ECtHR to answer the question: is there a difference in the way Article 3 is to be applied in the extradition context as opposed to the domestic context? But the Fourth section did not raise to the occasion. Far from giving a complete and solid answer to (one of) the questions which permeate the difficult relationship between the Court and the UK, it simply stated that it was not established that, following his extradition, Mr Hafeez would face a real risk of being subjected to the penalty of life imprisonment without parole.
The facts of the case
Mr Muhammed Asif Hafeez, who was indicted in the United States (US) for conspiracy to import, manufacture and distribute heroin, methamphetamines and hashish, was arrested in London in 2017 pursuant to a request of the US, which shortly afterwards sought his extradition.
The applicant’s surrender was ordered by the British authorities on 5 March 2019 following a judgment of the Westminster Magistrates Court, confirmed on appeal by the High Court. In the meantime, however, lawyers for the applicant applied to Strasbourg and obtained an interim measure suspending the extradition.
The domestic judgments
Namely, in its judgment of 11 January 2019, the Westminster Magistrate Court dismissed the Article 3 argument put forward by the applicant finding that, in any event (that is to say, even if there were a real risk of a sentence of life imprisonment without parole), he would be able to avail himself of the procedure envisaged in US law to obtain a reduction of the sentence in “extraordinary and compelling circumstances”.
These findings were confirmed on appeal by a judgment of the High Court of England and Wales of 31 January 2020. Like the District Justices thus the appellate court refrained from deciding “whether – based on the indictment – the evidence established a real risk of a life sentence”. Instead, the Court stated that, even if the applicant were to be sentenced to life imprisonment, this would not result in a breach of article 3 since in the US federal system there existed “two routes” by which he “may seek a reduction in his sentence”.
The first route is an application for compassionate release under title 18 par. 3582 of the US code, which allows a reduction of the sentence for «extraordinary and compelling reasons» such as terminal illness, serious deterioration in health, or a change in family circumstances leading to the prisoner being the only available caregiver to a child or spouse.
The second route is a petition for executive clemency, which, according to the guidelines published by the US department of State, is an «extraordinary remedy» for cases of «disparity or undue severity of sentence, critical illness or old age and meritorious service rendered to the government by the petitioner e.g. cooperation».
It was argued that none of these remedies measured up to the standards required in the most recent ECtHR’s case law regarding life imprisonment without parole. But the High Court dismissed these arguments, underlining the contradictions in the ECtHR jurisprudence and relying on the (implicit) conclusion on the different extent of the protection afforded by Article 3 in domestic and extraterritorial cases, with the proposition that in the latter the Convention standards are heightened.
The decision of the ECtHR
The ECtHR addressed the case on the basis of the precedent Sanchez-Sanchez v. the United Kingdom, which was adjudicated by the Grand Chamber prior to the case under review, even though it was communicated to the respondent Government some three months later.
In Sanchez-Sanchez, which was received with criticism as an example of undue political influence, the ECtHR validated the British Courts reasoning granting the extradition of another individual accused of serious drug-related criminal offences to the US and, in so doing, vindicated the argument regarding the different extend of Article 3 obligations in the extradition context, that was advocated by the House of Lords since the 2004 case of R (Ullah) v Special Adjudicator.
To reach this conclusion, the Grand Chamber recapped the developments in the case law concerning life imprisonment without parole, noting that, while in the 2008 case of Kafkaris v. Cyprus it held that “the hope of Presidential clemency in the form of either a pardon or a commutation of sentence was sufficient to establish a prospect of release”, the position was changed in the 2013 case of Vinter v. the United Kingdom, where a different Grand Chamber made it crystal clear that the right of every prisoner, including life prisoners, to hope for a reduction of their sentence cannot be left at the whim of the Executive (see Sanchez-Sanchez v. the United Kingdom [GC], 3 November 2022, § 79-81).
Crucially, however, the Sanchez-Sanchez judgment reminded that “Vinter and Others was not an extradition case” and acknowledged that “this distinction is important”. Different from the domestic context, where “the applicant’s legal position” as well as “the domestic system of review of the sentence” are “known”, the Grand Chamber held that “in the extradition context, in a case such as the present where the applicant has not yet been convicted, a complex risk assessment is called for, a tentative prognosis that will inevitably be characterised by a very different level of uncertainty”. This difference “calls for caution” and bars the application of the Vinter principles “to their fullest extent” (ibid. § 91-92).
The need to come up with an “adapted approach” to the extradition context had the Grand Chamber come up with a two-stage test: “first of all, a preliminary question has to be asked: namely, whether the applicant has adduced evidence capable of proving that there are substantial grounds for believing that, in the event of conviction, there is a real risk of a sentence of life imprisonment without parole”; only if such risk is established the second limb of the inquiry is to be performed (ibid. § 95).
Interestingly, in Sanchez-Sanchez the Grand Chamber stated that the second limb of the test focusses on the “substantive guarantees” highlighted in Vinter and Others and that this is “readily transposable from the domestic to the extradition context” to the extent that it calls for an ascertainment of whether “there exists in the requesting state a mechanism of sentence review which allows the competent authorities there to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds” (ibid. § 96).
However, the judgment does not apply the second limb of the test to the facts of the case. The Grand Chamber examination stops at the preliminary question, namely at the assessment that, in the specific case, “the applicant [could] not be said to have adduced evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold” (ibid. § 109).
Against this background, the extradition community, and certainly eXtradando, was waiting for Hafeez to shed light on the particulars of the second limb of the test, but all expectations were met with disappointment.
Indeed, the Fourth Section concluded that Mr Hafeez had failed to “adduced evidence of any defendants with similar records to himself who were found guilty of similar conduct and were sentenced to life imprisonment without parole” and highlighted that “if convicted, the length of his sentence might also be affected by pre-trial factors, such as agreeing to cooperate with the US Government”.
While there is obviously nothing wrong with the decision to extradite a drug mogul to the Country where he faces charges for his (alleged) criminal conduct, the decision rendered by the Fourth section seems to be problematic in many respects.
To begin with, it is unclear why Sanchez-Sanchez (that was communicated on 12 June 2020) took precedence over Hafeez (communicated on 24 March 2020). The detail is not irrelevant as the case of Hafeez was admittedly adjudicated on the basis of the precedent of Sanchez-Sanchez in light of the “remarkably similar situation” between the two cases (Hafeez v. the United Kingdom, cited above, § 51). Moreover, looking deeper into the decisions, one cannot overlook the fact that, while in Sanchez-Sanchez the conclusion of the Grand Chamber was taken, at least in part, on the assumption that the question as to the likelihood of the imposition of the penalty of life imprisonment without parole was resolved for the negative by the domestic jurisdictions, which, “having regard to the evidence submitted by the Government, noted that life sentences were rare in drug trafficking cases” (Sanchez-Sanchez v. the United Kingdom, cited above, § 101), in Hafeez the domestic courts expressly refused to rule on such question.
Consequently, while Sanchez-Sanchez can be justified under the principle of subsidiarity (the Grand Chamber relied on the domestic jurisdictions assessment as to the unlikelihood of the imposition of the penalty of life imprisonment without parole), the same cannot be said in Hafeez, where the Fourth section was the first jurisdiction to perform the relevant test.
This difference should have prompted the ECtHR to exercise a much more careful scrutiny. But there is more. The conclusion in Hafeez relies on the legal routes available to the applicant in the US to obtain a shortened sentence, “such as agreeing to cooperate with the US Government” (Hafeez v. the United Kingdom, cited above, § 54 and references therein cited). This assessment, however, clearly pertains to the second limb of the test insofar as it calls for an evaluation of domestic legislation concerning sentencing.
What is worse, the anticipation of some elements of the second limb of the test in order to exclude the existence of a real risk of imposition of life imprisonment without parole exposes itself to criticism for being selective. As a matter of fact, the Fourth Section does not take into account all the procedures and rules concerning sentencing in the US, but confine itself to examining those (put forward by the British government) that can be used to close the case at the preliminary question.
All these reasons call for a further consideration of the matter. Unfortunately, this will not be done in the case of Mr Hafeez, as the choice to issue a decision instead of a judgment prevents the applicant from asking for the referral of his case to the Grand Chamber.