The European Court of Human Rights in Strasbourg ruled on 10 April that Babar Ahmad and four other men can be extradited from Britain to the US to face terrorism charges. It rejected arguments that their rights would be violated as a result of the rigorous jail conditions they would be subjected to if convicted.
The men have 3 months to request a referral of their case to the Grand Chamber of the European Court of Human Rights.
The ruling, if upheld, will be a setback for efforts to end supermax-style isolation in the US and may be interpreted by some as a green light for the spread of supermax prisons to other jurisdictions.
Just as importantly, the ruling represents a missed opportunity to build case law from the growing international recognition that long-term solitary confinement is cruel and inhuman.
An article in the Independent newspaper called the decision "a ruling that indicates the first green light for US top-security prisons."
The court held that no violation of the European Convention on Human Rights would result from the lengthy sentences that could be imposed on the five men in US courts if they were extradited. It also held, in relation to Babar Ahmad and three of the other men, that no violation would result from conditions at the Federal Supermax Prison ADX Florence. It accepted US assurances that a fifth man, Abu Hamza, would be spared lengthy imprisonment at ADX Florence because of his medical condition, and held that arguments that he was at risk of rigorous imprisonment there or elsewhere in the US prison system were inadmissible.
The case of a sixth man, Haroon Rashid Aswat, is also before the court, but has been adjourned pending further submissions. Haroon Aswat was formerly detained in Long Lartin prison but has been transferred to Broadmoor Hospital because of his mental health.
In reaching their decision, the Strasbourg judges took submissions from the US authorities and various other organisations regarding conditions at ADX Florence. They concluded that "the isolation experienced by ADX inmates is partial and relative." They also accepted that there are procedural safeguards in the decision-making process leading to placement at ADX Florence and that prisoners there have access to the Federal courts to contest the conditions of their imprisonment.
These conclusions are disputed by Gareth Peirce, lawyer for some of the men challenging extradition to the US. She writes:
"It will come as a considerable surprise to the inmates of ADX Florence, the prison in question, and their lawyers who struggle fruitlessly to challenge in the US courts their continuing solitary confinement for 8, 10, or 16 years, that the prisoners’ grim isolation could be considered only "relative" and its continuance as justiciable. It will be equally surprising to international lawyers, who may include the UN Special Rapporteur on Torture and the European Committee for the Prevention of Torture, that the view of the European Court as to what constitutes isolation is apparently in conflict with their own."
The court has chosen on this occasion to disregard the growing body of international opinion opposed to long-term solitary confinement in any form. The judges say:
"the Court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for Article 3 (see Madonia, cited above). The Court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely."
Had the judges wished to take a less conservative approach, they could have followed the example provided by the evolving case law on capital punishment. The court's view of that matter has changed over the years in response to the growing rejection of capital punishment in European countries. A 1989 decision (Soering v UK) blocked extradition to the US of anyone at risk of execution on account of the abusive circumstances attendant upon incarceration on death row. Subsequent judgements have widened the court's objection to capital punishment, leading to a 2010 decision (Al-Saadoon and Mufdhi v UK) holding that capital punishment is in itself sufficient reason to block the transfer of a prisoner.
Amongst the evidence pointing to the current unacceptability of solitary confinement is the report produced last year by the UN Special Rapporteur. The judges cite the report, note that it emphasises the importance of procedural safeguards, and note that it sets out principles that states might apply in setting out to minimise their use of solitary confinement. But they seem not to have noticed that the Special Rapporteur proposed a ban on solitary confinement for periods in excess of 15 days, nor do they seem to have noticed the unequivocal and comprehensive terms in which he presented the report to the UN General Assembly, saying:
"Segregation, isolation, separation, cellular, lockdown, Supermax, the hole, Secure Housing Unit (SHU)… whatever the name, solitary confinement should be banned by States as a punishment or extortion technique."
There are signs already that admirers of the US will seek to read more into Ahmad v UK than is actually to be found in it. Law journalist Joshua Rozenberg commented in the Guardian that:
"The court was right to seek details of prison conditions, if only to show how much better they were than in many European countries."
The judges did not themselves take such a strong position. They merely noted that at ADX Florence the range of in-cell activities and services (largely provided by technological means) "goes beyond what is provided in many prisons in Europe."
European governments would do well to note that the somewhat favourable comments the judges permitted themselves about conditions in ADX Florence do not necessarily indicate that the court would accept similar conditions in a European jail. The judges note that:
"treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case."
The language of the judges' decision seems to leave open the question of whether the conditions prevailing in ADX Florence would satisfy Article 3 in all circumstance, or whether they merely fail to of such a severity as to amount to a violation in the context of an extradition.
The Ahmad v UK decision leaves the court's interpretation of the European Convention on Human Rights much closer to the US Supreme Court's interpretation of the US Constitution than might have been expected. Curiously enough, it comes just a few weeks after Strasbourg judges and US Supreme Court judges met in Washington DC, for the first time ever. Most sessions of the meeting were closed to the public.
The decision was disappointing. It can only with some restraint be described as conservative. Media coverage of the decision has been equally disappointing. Most of it has been more concerned with appearing tough on terrorism and tough on unproven terrorism than with the actual issues before the court.
It is to be hoped that the case will be referred to the Grand Chamber European Court of Human Rights and that the larger panel of judges will be less dazzled by US submissions than their brethren have been.
Case of Babar Ahmad and others v the United Kingdom
The judgement was delivered and adopted on 20 March 2012 and handed down on 10 April 2012.
Applicants: Babar Ahmad (a British national), Haroon Rashid Aswat (a British national), Syed Tahla Ahsan (a British national), Mustafa Kamal Mustafa [known more commonly as Abu Hamza] (a British national), Adel Abdul Bary (an Egyptian national), Khaled Al-Fawwaz (a Saudi Arabian national).
Lawyers: Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Adel Abdul Bary were represented by Ms G Peirce, assisted by Mr B. Cooper, counsel. Abu Hamza was represented by Ms M. Arani, assisted by Mr A. Jones QC and Mr B. Brandon, counsel. Khaled Al-Fawwaz was represented by Mr A. Raja, assisted by Mr J. Jones, counsel.
Case of Babar Ahmad and others v the United Kingdom - full text of the judgment