Babar Ahmad - Strasbourg ruling will be a landmark in international law

Press Release from Scotland Against Criminalising Communities (SACC)>br />Thursday 5 April

A judgement due to be handed down by the European Court of Human Rights on 10 April is likely to be a landmark in the development of international human rights law, says human rights group Scotland Against Criminalising Communities (SACC).

The case involves six men whose extradition the US is seeking following their indictment in the US for various offences related to terrorism. Four of the men - Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan, Mustafa Kamal Mustafa (better known as Abu Hamza) - are British citizens. The other two men are Adel Abdul Bary, an Egyptian citizen, and Khaled Al-Fawwaz, a Saudi Arabian citizen.

The men have asked the Strasbourg court to block their extradition on the grounds that their treatment in the US would violate the European Convention on Human Rights, agreed in 1950 as a step towards the enforcement of some of the rights embodied in the UN's Universal Declaration of Human Rights.

The judges will have to decide whether the prospect that the men would suffer extremely long jail terms and prolonged solitary confinement if convicted in the US amounts to a violation of their rights so severe as to warrant halting the extradition.

Richard Haley, Chair of SACC, said:

"Solitary confinement is torture. Prisoners in the US are subjected to it for years on end. No one, whatever their crime, deserves that. No other country uses solitary confinement in such an intensive and widespread way. If the European Court of Human Rights blocks these extraditions, it will be a key step towards international recognition that prolonged solitary confinement is flat-out wrong and has to stop.

"On the other hand, if the Court allows the extraditions to go ahead it will encourage the view that prolonged solitary confinement is a grey area of human rights law. It will leave policy-makers around the world feeling free to go their own way, without regard for human suffering. And it will be a slap in face for Juan Méndez, the UN Special Rapporteur on Torture, who has made it clear that he thinks that prolonged solitary confinement is unacceptable."

Most of the men would, if convicted, be sure to be subjected to long-term isolation in the Federal supermax prison ADX Florence, in Colorado. Abu Hamza would, according to the US authorities, be spared this treatment because of his poor health and would at most be held at ADX Florence for a short period. The Strasbourg judges have already accepted these assurances and will therefore be considering Abu Hamza's appeal only on the basis of the likely length of his sentence, and not on the basis of the risk of solitary confinement.

A report issued last September by the Committee on International Human Rights of the New York City Bar Association said that "supermax confinement as practised in the United States violates well-established international law." The report says "no other country uses supermax confinement as broadly and systematically as does the United States."

UN Special Rapporteur on Torture, Juan Méndez, has been equally outspoken about solitary confinement. He told the UN last October that "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." He proposed an absolute prohibition on solitary confinement in excess of 15 days.

Although US-style solitary confinement is well outside accepted international norms, next week's decision by the European Court of Human Rights is not a foregone conclusion. In some recent cases Strasbourg judges have ruled that treatment that would violate the European Convention on Human Rights if committed by a country bound by the Convention is not sufficiently severe to be a violation of the Convention in an extradition or expulsion case.

Richard Haley commented:

"These rulings represent a worrying trend towards two-tier human rights. People living in Europe - even European citizens - can find themselves on the lower tier if they happen to be targeted by an extradition request from a non-European country. It's an extraordinary development because the European Convention on Human Rights isn't just an expression of European values. Its provisions are virtually identical to the provisions of the UN's Universal Declaration of Human Rights and they should apply to everyone, under all circumstances, everywhere. The real purpose of the two-tier system seems to be to give Strasbourg judges room for discretion when human rights law comes into conflict with the wishes of powerful governments.

"There shouldn't be much leeway for the judges in relation to solitary confinement. International disapproval of long-term solitary confinement is much stronger and clearer than of many other forms of abuse that have come before the Court.

"In fact, the case against solitary confinement is much clearer than the case against capital punishment. Prohibition of capital punishment is a specifically European interpretation of human rights law. Yet it has been accepted for some years that people should not be extradited or deported from Europe if that would put them at risk of execution. People living in Europe are entitled to at least as much protection from long-term solitary confinement, which is regarded in most of the world as cruel and inhuman."

The six men whose appeals will be decided next week are linked by their shared risk of ill-treatment in the US and their shared experience of years of detention without charge or trial in the UK while fighting their extradition in the courts. All the men deny any wrongdoing. All their case histories raise serious concerns that the criminal justice process in the US is being misused to punish people whose views the British and US governments dislike.

But there are also some important differences between their cases. The charges against Babar Ahmad and Talha Ahsan are unrelated to the charges against Haroon Aswat and Abu Hamza, the other two British citizens whose appeals are being heard at Strasbourg.

The allegations against Ahmad and Ahsan relate to internet activity carried out in Britain. In 2005, District Judge Timothy Workman said about Babar Ahmad's case:

"This is a difficult and troubling case. The defendant is a British Citizen who is alleged to have committed offences which if the evidence were available, could have been prosecuted in this country."

Last year, over 140,000 people signed an e-petition created by Babar Ahmad's father calling for Babar Ahmad to be prosecuted in the UK. The petition led to a full Commons debate on Britain's extradition arrangements. MPs drew attention to various anomalies both in Britain's extradition arrangements and in the handling of Babar Ahmad's case. The BBC is today broadcasting a ground-breaking interview with Babar Ahmad.

Adel Abdul Bary and Khaled Al-Fawwaz, the two non-British men whose fates will be decided alongside the four British citizens, have endured a sequence of events perhaps even more Byzantine. They are wanted by the US in connection with the bombing of US embassies in East Africa in 1998. Lawyer Gareth Peirce has described the charges against them as "a cocktail of surmise and sensationalised hypothesis." Britain's Crown Office presumably agrees, having chosen not to bring charges against the men. They have nevertheless languished in British prisons for 12 and 13 years respectively.

Whatever decision is reached by the European Court of Human Rights in these cases, SACC will continue to press for the British government to honour its obligation to protect people living in Britain from abusive treatment, to ensure that all the troubling questions raised by these six cases are answered, and to ensure that justice is done. We shall also continue to campaign for a worldwide ban on long-term solitary confinement.

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SACC Briefing

The European Court of Human Rights

The European Court of Human Rights is not an EU institution, but an institution of the Council of Europe, a body that is wider than the EU and distinct from it. The Council of Europe was founded in 1949 and now has 47 member countries, including the Russian Federation, Turkey and the Ukraine as well as Britain and other western European countries.

Cases that are brought before the court and are ruled to be admissible are in the first instance decided by a Chamber of the court, made up of a number of judges from Council of Europe member countries. Either party then has 3 months to request a referral to the Grand Chamber of the court. The admissibility of the referral is decided by a panel of judges. The Chamber judgement becomes final and binding if neither party requests a referral within 3 months, or if the referral is ruled to be inadmissible. If the referral is allowed, the case is heard by a Grand Chamber made up of 17 judges.

Exceptionally, a case may be sent to the Grand Chamber when relinquished by a Chamber. A Chamber can relinquish a case to the Grand Chamber if the case raises a serious question affecting the interpretation of the Convention or if there is a risk of inconsistency with a previous judgement of the Court.

Judgements by the Grand Chamber are final.

Solitary Confinement

Human rights experts joined prisoners, former prisoners and intellectuals in December 2010 in issuing a statement on solitary confinement and isolation that said "we believe that enforced long-term isolation in all circumstances breaches Article 5 of the Universal Declaration of Human Rights, which states 'no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.'" - see Stop Prisoner Isolation... Stop Solitary Confinement

A report issued in September by the Committee on International Human Rights of the New York City Bar Association said that "supermax confinement as practised in the United States violates well-established international law." - see The Brutality of Supermax Confinement

The report of Special Rapporteur Juan Mendez, dated 5 August 2011 and presented to the UN General Assembly on 18 October, can be viewed atReport on solitary confinement

In presenting his report to the General Assembly, Juan Mendez said "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." SeeUN Special Rapporteur on torture calls for the prohibition of solitary confinement

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