TO: Sir Nicholas Bratza
President of the European Court of Human Rights
Council of Europe
8 July 2012
Dear Sir Nicholas Bratza,
I am writing on behalf of Scottish-based human rights group Scotland Against Criminalising Communities (SACC) to ask that European Court of Human Rights accepts the request that I believe has been made for the Babar Ahmad case to be referred to the Grand Chamber of the court.
In SACC's view, this case raises extremely important questions regarding the interpretation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (prohibiting torture and inhuman or degrading treatment or punishment) in relation to solitary confinement. We believe that the court's eventual judgment will inevitably become an important item in the developing international law on this issue. Accordingly, we believe that the case clearly meets the requirements set out in Article 43 of the Convention for referral to the Grand Chamber.
Our reasons are set out more fully below.
Interpretation and application of the Convention
- The judgment in Babar Ahmad & Others v. United Kingdom notes that the court has never laid down precise rules governing the operation of solitary confinement, and has never laid down the maximum acceptable duration of solitary confinement ($210). The judgment also states that the "circumstances in which the solitary confinement of prisoners will violate Article 3 are now well-established in the Court’s case-law" ($205). The judgment therefore involved an assessment by the court of the specific conditions under which the appellants would be likely to be held in ADX Florence.>
- SACC is not persuaded that the acceptable limits of solitary confinement are as precisely determined by the court's case-law as $205 of the judgment might be thought to imply. But in any case, we believe that there is ample evidence (including evidence submitted to the court in this case) to demonstrate that the prison regime at ADX Florence is, in total, qualitatively different from the various prison regimes in force in Europe. A very considerable interpretative exercise is therefore needed to apply the court's case-law to the ADX Florence regime. It is primarily for this reason that we believe that it is appropriate and necessary for the case to be referred to the Grand Chamber.
- A further concern arises because the court states ($177 of Babar Ahmad & Others v. United Kingdom) 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 court, in holding that there would be "no violation of Article 3 of the Convention as a result of conditions at ADX Florence," has adopted language that makes no distinction between conditions that would be acceptable in a Contracting State and those that are acceptable only in the context of extradition or expulsion. However, we believe that, by introducing the concept of two levels of severity into the judgment, the court has introduced a considerable extra degree of interpretative latitude. We believe that this additional interpretative element is particularly significant in this case because of the seriousness of the issue raised, and that it therefore constitutes a further reason for referral to the Grand Chamber.
Other serious issues
Additionally, we have a number of more specific concerns over Babar Ahmad & Others v. United Kingdom. We believe that these concerns are serious issues of general importance, meriting a referral to the Grand Chamber under Article 43 of the Convention, and that they in any case illustrate and amplify the points made above in relation to interpretation and application of the Convention. These concerns are set out below:
- The judgment makes no reference to the submission made to the court by Juan Mendez, UN Special Rapporteur on torture. I am informed that the court refused to even consider this submission. Nor does the judgment give serious consideration to the report on solitary confinement provided to the UN by Juan Mendez last year – a report that could have been of considerable interpretative assistance to the court.
- I am told that the court refused to consider evidence offered by the appellants in rebuttal of US Government claims about the step-down programme at ADX Florence, saying that it had insufficient time to consider this evidence. This cannot be an adequate reason to reject potentially crucial evidence, and is especially inappropriate in view of the lengthy period that this case was before the court.
- One of the appellants, Talha Ahsan, suffers from Asperger's Syndrome. The judgment does not include any serious assessment of the likely effect of solitary confinement on a person with such a disability, and makes no serious effort to relate his likely suffering to Article 3. It merely asserts ($224) that "it would not appear that the psychiatric services which are available at ADX would be unable to treat such conditions." This is an unacceptably dismissive way of dealing with a significant mental health problem, and raises a serious general concern over the enjoyment of Article 3 rights by people with mental health problems.
- It is clear that the UK Government, through ministerial statements, through the media and by other means, has attempted to exert pressure on the court to decide this case in its favour. This is exemplified by a statement made by Attorney-General Dominic Grieve to the Law Society Gazette on 20 April, saying that the European Court was showing “greater responsiveness” to the concerns of the UK’s national courts, parliament and public opinion. Such "responsiveness", if indeed shown by the court, would be quite improper. This is a matter of the utmost seriousness. Referral of Babar Ahmad & Others v. United Kingdom to the Grand Chamber would be an important step towards restoring confidence in the impartiality of the court.
Babar Ahmad is the longest detained-without-trial British citizen in the modern history of the UK, having been held in prison since August 2004. Besides the injustice already suffered by Babar Ahmad, Talha Ahsan and others, the case raises serious concerns over the use in US Supermax prisons of isolation regimes that are not found elsewhere in the world, and that would undoubtedly cause widespread alarm were they to be adopted in Europe. I urge you, on behalf of SACC, to take the necessary steps to provide the Grand Chamber of the European Court of Human Rights with an opportunity to examine these issues.
(Chair, Scotland Against Criminalising Communities)