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  • Matteo Zamboni

Life imprisonment without parole as grounds to refuse extradition

Updated: Jun 9, 2022

As forcefully reminded by the Portuguese judge to the European Court of Human Rights in his dissenting opinion in the case of Öcalan v. Turkey (no. 2) ‘prisons should not be like the gates of Hell, where the words of Dante come true: Lasciate ogne speranza, voi ch’intrate (“Abandon all hope, ye who enter here”)’.

Indeed, in a consistent stream of case law the European Court of Human Rights established that a penalty of life imprisonment irreducible de jure and de facto breaches the “right to hope” enshrined in article 3 of the European Convention on Human Rights. When applied to extradition, this case law has the effect to engage the international responsibility of the requested State under the Convention if it surrenders an individual wherever it knows, or ought to know, that the penalty of perpetual detention will be imposed in the requesting State.

In sum, there is international consensus that the possibility that the requested person might be subjected to the penalty of life imprisonment without parole is an obstacle to extradition – and this is true not only in the case law of the European Court, but also in scholarship (see, for example, here and here) and in the decisions of domestic courts from different jurisdictions (here, we published a decision to this effect of the Hague Court of Appeal).

Now this reasoning is coming once again before the European Court of Human Rights, which has recently communicated three cases concerning the Convention obligations of the requested State in similar cases.

In the case of Biondo v Spain, submitted in connection with an extradition from Spain to the US, and communicated to the respondent Government on 14 November 2019, the applicant complained of a violation of article 3 of the Convention in light of the imposition of a whole life sentence in the requesting State. Interestingly, in that case Spain had requested, and obtained, assurances from the US authorities ’that any life sentence that was handed down would not be irreducible’. The extradition proceeded after the Spanish Court received the assurances sought from the US, but it will be for the European Court of Human Rights to assess whether ‘the provisions of US legislation governing the possibilities for reduction of life sentences and Presidential pardons, and the assurances given by the US authorities in the present case’ are consistent with the requirements of article 3 of the Convention.

Thus, the questions posed to the parties with the communication of the case indicate that formal assurances are not per se sufficient to exonerate the requesting State from its responsibility under the Convention. What is needed, in addition to such assurances, is that the domestic Courts ordering the surrender make an evaluation of the legislation in the requesting State in order to assess its compliance with the rights stemming from article 3 of the Convention.

The same reasoning permeates the case of Miloš Antić v Serbia, that also concerns an extradition to the US and was communicated to the Serbian Government on 18 November 2019. Even in this case, beside the more obvious question on assurances, the Court asked the parties whether ‘the domestic courts or the Government [of the requested State] consider[ed] the sentencing practice in the United States of America for the criminal offences with which the applicant was charged’ and, if so, whether this is ‘consistent with the requirements of Article 3 of the Convention’.

Evidently, a similar assessment is all the more important when the legislation of the requesting State is obscure or intricate. Thus, in the case of Looker v Spain, which concerns an extradition from Spain to Thailand, and was communicated to the Spanish Government on 19 November 2019, the European Court asked the parties not only to elaborate on the compliance with article 3 of the Thai legislation on governing the possibilities for royal pardons and reduction of life sentences, but also to produce documents on it.

We will wait for the publications of the relevant judgments to provide a more complete comment, but two (provisional) conclusions can be drawn as of today:

- The equation between life imprisonment without parole and inhumane or degrading treatment is consolidated in the case law of the European Court of Human Rights, which is now exploring its full implications when applied to extradition cases;

- Formal assurances alone are not in themselves sufficient for the requesting State to escape its responsibility under the Convention; what is needed is the proof that, before granting the extradition, the domestic courts did undertake a full assessment of the applicable legislation in the requesting State and evaluated the compliance thereof with the requirements of article 3 of the Convention.

The last-mentioned point is particularly important, as it witnessed one more example of the Court’s attempt to expand the scope of application of the Convention by placing member States under positive obligations to investigate human rights abuses occurring out of their territory - and precisely in the requesting State, irrespective of the fact that this may not (as the US or Thailand) be a party to the ECHR.

This is a forceful way to reassert that the protection of the Convention and the right to hope it embodies does not stop at the gates of hell – or of the European legal space.

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