BSQ Briefing – Defending Extradition Requests from the USA

BSQ partner Roger Sahota writes about the case of Sanchez which has recently been deemed as admissible by the European Court of Human Rights. This briefing formed the basis of Roger’s recent presentation to the Defence Lawyers Extradition Forum.

The question of how the European Court of Human Rights should deal with extradition requests from non signatory states like the USA for offenders likely to receive life sentences has long been a vexed one. Whether the ECHR should set strict standards for non-member states in the context of extradition requests is a matter of great controversy. A pending BSQ case before the ECHR throws the issues in this debate into sharp relief.

S is sought for extradition on the basis he is alleged to be the head of a Mexican drug cartel involved in trafficking drugs to America. S resolutely denies any involvement in this conduct. A stay against the order for his removal from the United Kingdom by the Secretary of State for the Home Office has been granted pending the resolution of this case by the ECHR.

S’s appeal rests on the argument that it is unlawful to extradite him as the arrangements for life sentences in the USA do not meet international human rights standards. Due to the gravity of the offences he is charged with given the relevant USA federal sentencing guidelines S is likely to receive a life sentence if he is convicted on his return.

The ECHR has previously ruled that the type of life sentences imposed in the US violate article 3 of the European Convention which says:

“no one shall be subjected to torture or to inhuman or degrading treatment or punishment.'

According to ECHR human rights caselaw, life sentences are permissible as long as they are not “grossly disproportionate”. A life sentence that is deemed to be “irreducible” i.e. for which there is e.g. no mechanism for review at any stage (see below) has been determined to be “grossly disproportionate” and in violation of Article 3 of the Convention.

In the leading ECHR case of Trabelsi v Belgium the Court set out a two-stage test for deciding if a life sentence is “irreducible.”

Firstly, the court held that the law should provide a mechanism for review so there was a possibility, even if remote that an offender could be released during the currency of his sentence.

Secondly, the court said that an offender had to know what he needed to do to be considered for release and that this procedure had to be clear to the offender at the point that he/she was sentenced.

Trabelsi concerned the case of a Tunisian national accused of terrorism offences who challenged his extradition from Belgium to the USA. By the time his case was heard he had already been removed to the United States by the Belgian authorities.

In Trabelsi the court applied the two stage “irreducible“ test to evidence presented to it concerning the operation of life sentences in the United States. The Court was told that they were two review mechanisms available to life prisoners in the US - a presidential pardon or compassionate release. Compassionate release was available for any offender over the age of 70 who had served at least 30 years in custody and was not deemed by the Federal Bureau of Prisons to be a risk to the public.

Using uncompromising language, the ECHR held that “none of the procedures provided for amounts to a review mechanism.“

The Trabelsi decision has proved to be highly controversial since it was handed down. Our courts in the United Kingdom have in several cases refused to follow it. For example, in a number of decisions the UK High Court has reached the opposite conclusion to the Strasbourg judges and held that arrangements for a presidential pardon and/or compassionate release do in fact meet the definition of a “review mechanism” and are Article 3 compliant.

In other decisions UK Judges have said that the Trabelsi decision should not be followed as it represents “new and untried jurisprudence” which is “unreasoned” and fails to mention relevant judgments in other cases such as the UK v. McLaughlin. That case concerned whole life orders in this jurisdiction. In their decision in McLaughlin the ECHR held that whether the mechanism for the review of a life sentence lay in the hands of the executive or judiciary was a decision for member states to take particularly in light of the “margin of appreciation.”

The key question raised in criticism of Trabelsi however concerns the general principle that the ECHR should not forensically scrutinise the arrangements made by member states to ensure compliance with Article 3 of the convention. Even greater latitude should apply to a democratic state known that is not a High Contracting Party to the ECHR such as the USA it is argued.

Given the much touted “special relationship” between the two countries the UK’s inability to extradite suspects accused of offences carrying out offences carrying life sentences to the USA because of Trabelsi is a cause of acute political embarrassment. Against this context the decision in S is that one will be watched closely by both lawyers and lawmakers.

Full argument in S is anticipated to take place in 2022.

If you require advice or assistance in relation to an extradition request please contact our London offices for a confidential consultation.

You can read more about how our extradition solicitors work and our expertise in representing individuals who are sought for extradition outside the UK here.