CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 février 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .s807BA660 { margin-top:14pt; margin-left:24.16pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.34pt; font-family:Arial; font-weight:bold } .sFBC99493 { font-style:italic } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s58277305 { width:28.55pt; display:inline-block } .sDC0B6D6A { width:108.08pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }     FOURTH SECTION DECISION Application no. 34392/21 Jonah HORNE against the United Kingdom   The European Court of Human Rights (Fourth Section), sitting on 13   February 2024 as a Chamber composed of:   Gabriele Kucsko-Stadlmayer , President ,   Tim Eicke,   Faris Vehabović,   Branko Lubarda,   Armen Harutyunyan,   Anja Seibert-Fohr,   Anne Louise Bormann , judges , and Andrea Tamietti, Section Registrar, Having regard to the above application lodged on 12 July 2021, and the interim measure granted the following day to stay the applicant’s extradition, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Jonah Horne, is a citizen of the United States of America who was born in 1995 and is currently detained in HMP Maghaberry in Lisburn, Northern Ireland. He was represented before the Court first by Mr   R. Gillen of Gillen & Co., Solicitors, a firm of solicitors based in Belfast, and then by Mr   R.   Sahota of Berkeley Square Solicitors, a firm of solicitors based in London. 2.     The United Kingdom Government (“the Government”) were represented by their Agent, Mr T. Manley of the Foreign, Commonwealth and Development Office. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. The extradition request 4.     On 13 March 2017 the applicant was arrested in Northern Ireland pursuant to an extradition request from the Government of the United States of America. His extradition was sought in relation to a charge of second ‑ degree murder with a firearm. According to the extradition request, law authorities believed that on 7 June 2016 the applicant, in the course of a drug deal, shot and mortally wounded J.W. at close range while he was sitting in a car at Boca Raton, Florida. 5 .     In Florida, the maximum sentence for second-degree murder with a firearm is life imprisonment. The County Court 6.     Before the County Court the applicant argued that his extradition would not be compatible with his Convention rights because there was a real risk that he would be charged with first-degree murder, which would put him at risk of the death penalty;   there was a real risk that if convicted of second ‑ degree murder he would be sentenced to life imprisonment without any prospect of release or possibility of review; and there was a real risk that he would be subjected to inhuman or degrading treatment on account of the conditions in Florida prisons. 7 .     The County Court judge delivered her judgment on 22 August 2018. She was not satisfied that the applicant’s extradition would be incompatible with his Article 3 rights on account of the likely prison conditions. However, she considered that the rule of specialty would not prohibit the requesting State from charging the applicant with first-degree murder based on the same facts as those grounding the second-degree murder charge, without the United Kingdom’s consent. In the absence of any assurances she was therefore satisfied that there would be a real risk of the death penalty being imposed if he were to be extradited. The County Court judge further noted that this Court’s judgments in Vinter and Others v. the United Kingdom ([GC], nos.   66069/09 and 2 others, ECHR 2013 (extracts)) and Trabelsi v. Belgium (no. 140/10, ECHR 2014 (extracts)) established that an irreducible life sentence would not comply with Article 3 of the Convention, and she was not satisfied that the arrangements within the requesting State were Article 3 compliant. 8 .     The County Court judge indicated that the applicant would be discharged unless adequate assurances were received within fourteen days. The assurances 9.     On 10 September 2018 a diplomatic note was received from the Embassy of the United States, alongside letters from the Office of the State Attorney for Palm Beach County, which would be responsible for prosecuting the applicant. The note and letters gave assurances that the applicant would only be tried for the offence of second-degree murder with which he had already been charged and for which his extradition had been sought. As such, a sentence of death would not be imposed on him in the event of his extradition. 10.     In addition, the note stated that: “The United States notes that the bilateral extradition treaty between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland does not provide a basis for conditioning extraditions on assurances relating to life sentences. While the United States is not, therefore, obligated to provide the assurance requested, in consideration of the request of the Court and given the intervention of the U.S. prosecutor, the United States is prepared in this case to inform the Government of the United Kingdom of Great Britain and Northern Ireland as follows: should Horne be convicted of the charge which carries a potential penalty of life imprisonment, he will not be subject to an unalterable sentence of life imprisonment because, if a life sentence is imposed, he may seek review of his sentence on appeal and he may subsequently seek relief from his sentence in the form of a petition or commutation to a lesser sentence. If pardon or commutation is granted pursuant to applicable US legal procedures this would result in a reduced sentence. The criteria will be made known to Horne at the time of his sentencing.” 11 .     Two letters from the Office of the State Attorney for Palm Beach County, dated 7 and 17   September 2018, provided assurances that a “sentence of no more than 40 years will be sought... against Jonah Horne”, and that the sentencing judge would be informed that such assurances had been made via diplomatic channels. That being the case, the Assistant State Attorney stated that “it is highly unlikely that the sentencing judge would sentence the applicant to a more severe term than 40 years”. She further noted that the applicant would have the de jure and de facto right to apply for commutation, as could be seen from the Florida Clemency Rules and the Commutation of Sentences statistics. 12.     The County Court received a letter from the Crown Solicitor’s Office (“the CSO”) on 1 March 2019 confirming that, as advised by the United States Department of Justice, the “Governor’s Office will not be providing a commutation assurance in this case”. 13 .     The applicant submitted an affidavit sworn by S.P., an Assistant Public Defender practising in Palm Beach County, on 11 October 2018. S.P. stated, inter alia , that the assurance that the prosecutor would not seek a sentence of more than forty years’ imprisonment, even if it had been made in good faith, would not be legally binding on the sentencing judge who would ultimately determine the applicant’s sentence. It was legally possible – and not uncommon – for sentencing judges to ignore recommendations or requests made by the prosecutor. He cited examples of this having occurred in the circuit where the applicant would be tried. He further noted that according to data provided by the Florida Department of Corrections, there were – as of 19 September 2018 – 5,487 offenders serving sentences for second-degree murder. Of that number, 1,410 (approximately twenty-five percent) were serving sentences of life without parole. Addendum to the County Court judgment of 22 August 2018 14 .     On 8 March 2019 the County Court judge handed down an addendum to her earlier judgment (see paragraphs 7 and 8 above). She held that the assurances provided, whilst dealing with the issue as regards the death penalty, were not adequate with regard to the risk of an irreducible life sentence. She accepted that in the event of conviction a sentencing judge would be unlikely to disregard a diplomatic assurance that no more that forty years would be sought, but in her view the absolute nature of Article 3 required a guarantee. 15 .     The County Court judge further noted that while Trabelsi (cited above) had concerned the U.S. Presidential system of clemency and commutation, and the present case was concerned with the Florida system, the requesting State had made no submissions regarding any material differences between the two and the applicant had argued that there were none. In the absence of any evidence to the contrary, she concluded that a life sentence in Florida would similarly not comply with the requirements of Article 3 of the Convention. She therefore discharged the applicant. The Divisional Court 16.     Leave to appeal the Order of Discharge was refused by the Single Judge on 25 March 2019. 17 .     The United States provided a further diplomatic note dated 14 June 2019, confirming that in the event of the applicant’s conviction the prosecutor would not seek a sentence of more than forty years. The note confirmed that the United States and the United Kingdom had a long history of cooperation on law enforcement matters, including extradition. The United States had provided assurances to the United Kingdom in extradition matters on countless occasions and on all of these occasions the United States had fulfilled the assurances. The United States was careful to ensure it was able to honour any assurances given to the United Kingdom and it was not aware of a single instance when the United Kingdom communicated any concerns about an assurance not being fulfilled. Attached to the note was a further letter dated 13 June 2019 from the Office of the State Attorney for Palm Beach County, again providing assurances that a determinative sentence of no more that forty years would be sought and that the State would inform the sentencing judge of that assurance. The Assistant State Attorney reiterated that in her experience a sentencing judge was likely to act in accordance with those assurances; and, if the applicant were sentenced to life imprisonment, she and her office would take all reasonable steps to ensure that the sentence was reduced in accordance with the assurances. 18.     On 20 December 2019 the Divisional Court granted leave to appeal, quashed the order of discharge (see paragraph 15 above) and remitted the case to the County Court judge. 19 .     The Divisional Court concluded that in light of the authorities, which included Trabelsi (cited above) , the appropriate test was whether the applicant “would run a real risk of being subjected to treatment contrary to Article 3”. In assessing real risk it was the duty of the court to take into account and assess the factors that created or increased the risk and the factors that removed or lessened the risk and arrive at a net position. On the one hand, the concession by the Assistant State Attorney that she would only seek at most a sentence of forty years would not be binding on the sentencing judge, if the applicant were to be convicted. There was therefore a possibility that a whole life sentence would be imposed, and the applicant’s “not insignificant” criminal record might “tend to increase the length of a sentence”. On the other hand, S.P. (see paragraph 13 above) had not pointed to an instance in Florida of a judge imposing a whole life sentence where the prosecution had sought a limited sentence only. The prosecutor had averred that it was extremely unlikely that the judge would go against the prosecution in this case, and this was not contradicted by anything adduced on behalf of the applicant. It was therefore likely that both the diplomatic note and the principle of judicial comity would add strength to the prosecutor’s request for a sentence of not more than forty years. That request would not be unreasonable given that some three-quarters of those sentenced for second-degree murder were sentenced to forty years or less. If the sentencing judge did impose a life sentence the applicant could appeal and, if necessary, seek a commutation on the basis that the assurance given by the United States had not been honoured. 20 .     Finally, the court found that the assurances given by the Assistant State Attorney would be binding on all future prosecutors in the State of Florida. As evidenced by the most recent diplomatic note (see paragraph 17 above), there was a long history of cooperation between the United States and the United Kingdom on law enforcement issues related to extradition, and in all of these situations the United States had fulfilled the assurances it had provided. 21 .     The court concluded by stating: “Taking all these factors into consideration we consider the risk of a whole life sentence without possibility of remission being imposed on this citizen of Florida, if convicted of the crime of second degree murder, to be very slight and most unlikely. We consider the possibility of that whole life sentence being maintained on appeal and after consideration by the Governor of Florida and the President of the United States to be wholly negligible.” 22.     The court therefore quashed the order for discharge (see paragraph 15 above) and remitted the case back to the County Court, directing the judge to proceed as she would have been required to do had she decided the question differently at the extradition hearing. The subsequent order of the County Court 23.     The County Court judge, on 24 January 2020, ordered that the case be sent to the Secretary of State for his decision on whether the applicant was to be extradited. On 9 March 2020 the Secretary of State ordered the applicant’s extradition. The High Court 24 .     The applicant sought permission to appeal to the High Court against the decision of the County Court judge and the order of the Secretary of State on the grounds that upon extradition there was a real risk that he would be charged with first-degree murder and sentenced to death, contrary to Articles   2 and 3 of the Convention; there was a real risk that if convicted of second-degree murder he would be sentenced to life imprisonment without any prospect of release or possibility of review, contrary to Article 3 of the Convention; and there was a real risk that he would be subjected to inhuman or degrading treatment on account of the conditions in Florida prisons, contrary to Article 3 of the Convention. Pervading all three grounds of appeal was the applicant’s argument that assurances must be couched in the terms of an “absolute guarantee”. 25.     Judgment was delivered on 28 April 2021. Permission to appeal was granted but the applicant’s appeal was dismissed. 26.     The High Court dismissed the ground of appeal based on prison conditions in Florida as it found no material error of fact or law in the County Court judge’s treatment of this issue (see paragraph 7 above). 27 .     In respect of the risk of an irreducible life sentence the High Court indicated that the combined effect of the decisions in Soering v. the United Kingdom (7 July 1989, Series A no. 161), Kafkaris v. Cyprus ([GC], no.   21906/04, ECHR 2008) and Vinter and Others (cited above) (and other kindred Strasbourg cases) was that the following test had to be applied in determining this ground of appeal: have substantial grounds been shown for believing that the applicant, if extradited, would be at real risk of being punished by a whole life sentence of imprisonment excluding any possibility of reduction or commutation? 28 .     In response to the applicant’s “absolute guarantee” argument, the court said the following: “The court considers that this argument cannot be sustained. We find it impossible to distil from [ Othman (Abu Qatada) v. the United Kingdom , no. 8139/09, ECHR 2012 (extracts)] a requirement that in Article 3 expulsion cases the Requesting State provide an assurance framed in the terms of an absolute guarantee. The starting point is that the evidential matrix in any given case may, or may not, include assurances from the Requesting State. In a case where an assurance falls to be considered by the court of the Requested State, the ECtHR in Othman described this as constituting ‘a further relevant factor’ to be considered. This, we consider, denotes that it must be weighed with all other evidence bearing on the Article 3 issue available to the court. In the next part of paragraph [187] the Strasbourg court in substance exhorts the domestic court to probe the adequacy of the assurance, to peel back its outer layers. It is incumbent on the domestic court to step beyond the written word and to enquire whether at a practical level the protection promised by the Requesting State will in fact be provided. Both theory and practice – de iure and de facto – must be considered. The question for the domestic court is whether the assurance provides a ‘sufficient’ guarantee of protection of the requested person against the risk of the ill treatment asserted. The language of Othman is that of sufficient guarantee, not absolute guarantee. This analysis is reinforced beyond plausible argument by the final sentence in paragraph   [187] where the court states that the weight to be given to assurances from the requesting state will depend in every case on the circumstances prevailing at the material time. If the appellant’s submission is correct, there would be no weighing exercise to be carried out by the court. Rather the sole question for the court would be whether the relevant assurance provides an absolute guarantee that the requested person will not be subjected to the proscribed treatment in question. Furthermore, in Othman and, indeed, all of the other Strasbourg decisions belonging to this territory, the Soering test has been consistently applied. There are no absolutes in this test. Rather, in its entirety, it is infused with predictive evaluative judgment on the part of the court of the requested state. In Othman the court applied this test without qualification: see [185]. The effect of the appellant’s argument, if correct, is that in Article 3 expulsion cases the ECtHR in Othman modified the Soering test. We consider that this is not the correct analysis of Othman .” 29.     That being the case, the court held that the cumulative weight of both the Strasbourg and domestic decisions confounded the cornerstone of this ground of appeal (and the ground concerning the death penalty), namely that the applicant could not be extradited lawfully to the United States in the absence of a cogent guarantee that he would not be at risk of a sentence of life imprisonment (or the death penalty). 30 .     The subsidiary submission on behalf of the applicant was that the assurances provided on behalf of the Requesting State were vitiated on the ground that the State Attorney could not bind his successors to the undertakings provided by him. The High Court noted that the evidence adduced in support of this contention was of questionable strength. Even if it were correct, the court considered it to be of no merit for the reasons given by the Divisional Court (see paragraph 20 above). In the court’s view, this ground of appeal, like that concerning the death penalty, “was confounded by the principle of mutual trust and confidence and an evidentially barren foundation characterised by bare assertion and conjecture”. “At its highest” the asserted risk was “merely theoretical” and fell well short of satisfying the real risk test. 31.     On 11 June 2021, the applicant’s application to certify a question of general public importance and for leave to appeal to the Supreme Court was refused. The Rule 39 indication 32 .     On 12 July 2021 the applicant made an application to the Court under Rule 39 of the Rules of Court for an interim measure to stay his extradition to the United States. On 13 July 2021 the Court granted an interim measure to stay his extradition for the duration of the proceedings before it. RELEVANT LEGAL FRAMEWORK AND PRACTICE 33.     The relevant legal framework and practice is set out in Sanchez‑Sanchez v. the United Kingdom ([GC] 22854/20, §§ 24-64, 3   November 2022). COMPLAINT 34.     The applicant considered that his extradition would contravene Article   3 of the Convention. THE LAW 35.     The applicant complained that, if extradited to the United States of America, he would be subjected to treatments contrary to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 36.     The applicant alleged, in particular, that if he were convicted in the United States there would be a real risk that he would be sentenced to life imprisonment without any effective mechanisms that would allow him to seek a reduction in his sentence, or to seek a review of that sentence with a view to determining whether his continued detention might be justified on penological grounds. He also complained that the assurances given by the State Attorney’s Office and diplomatic note did not meet the clear standards set out by the Court’s jurisprudence. Sanchez-Sanchez v. the United Kingdom ([GC] 22854/20, 3   November 2022) 37.     In Sanchez-Sanchez (cited above, §§ 95-97 and 100) the Court indicated that a two-stage approach was called for when assessing the risk, upon extradition, of a violation of Article 3 of the Convention by virtue of the imposition of an irreducible life sentence. First of all, a preliminary question had to be asked: namely, whether the applicant had adduced evidence capable of proving that there were substantial grounds for believing that, if extradited and in the event of conviction, there was a real risk of a sentence of life imprisonment without parole. It was for the applicant to demonstrate that such a penalty would be imposed without due consideration of all the relevant mitigating and aggravating factors, and such a risk would more readily be established if he faced a mandatory – as opposed to a discretionary – sentence of life imprisonment. The second stage would only come into play if the applicant established such a risk; only then would it be necessary to consider whether, as from the moment of sentencing, there would be a review mechanism in place allowing the domestic authorities to consider a prisoner’s progress towards rehabilitation or any other ground for release based on his behaviour or other relevant personal circumstances. The parties’ submissions The Government 38.     In light of the judgment in Sanchez-Sanchez (cited above), the Government argued that in the present case the answer to the first question (namely, whether the applicant had adduced evidence capable of proving that there were substantial grounds for believing that, in the event of conviction, there was a real risk of a sentence of life imprisonment without parole) was clearly “no”. The High Court had held that the possibility of a sentence of more than forty years’ imprisonment being imposed was “very slight and most unlikely”, and even if such a sentence were imposed the possibility that it would be upheld on appeal and would not be commuted in light of the assurances that had been given was “wholly negligible” (see paragraph 21 above). 39 .     In view of the passage of time the Government submitted a further letter dated 8 February 2023 from the Office of the State Attorney for Palm Beach County. This letter confirmed the validity of those assurances previously provided and reiterated that if the applicant were to be convicted the State of Florida agreed to seek a term of imprisonment of no more than forty years, and to inform the sentencing judge of this assurance. 40.     The Government therefore argued that the information and assurances provided by the United States were sufficient to establish that the applicant would not be subjected to a sentence of imprisonment for life even if he were to be convicted of the offence charged. On this basis the application was manifestly ill-founded and should be declared inadmissible. The applicant 41 .     The applicant argued that the initial burden was on him to establish a “real risk”, such a risk being more than a mere possibility and less than the balance of probability (he cited, in this respect, Saadi v. Italy [GC], no.   37201/06, §§ 131 and 140, ECHR 2008). Once that test was met, the legal burden shifted to the State to dispel any doubts about it (ibid., § 129). The applicant argued that to “dispel any doubts” the State had to satisfy the court, to the criminal standard of proof, that the violation would not occur. 42.     According to the applicant, there was no dispute between the parties as to the possibility that he might receive a life sentence if convicted in Florida of second-degree murder with a firearm. On this point he relied on a further report prepared by S.P (see paragraph 13 above) in October 2023 which indicated that life imprisonment was a common sentence in Florida for second-degree murder. In the applicant’s view, it therefore fell to the Government to dispel any doubts about whether there was a real risk that an irreducible life sentence would be imposed. 43 .     In this regard, the applicant argued that the assurances provided by the United States fell far short of dispelling such doubts, to the criminal standard, as they did not meet the criteria set down in Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, ECHR 2012 (extracts)). The prosecutor could not compel the sentencing judge to impose any particular sentence; in fact, prosecutors were constitutionally prohibited from interfering in the exercise of judicial discretion and decision-making. The assurances provided would therefore not be binding on the sentencing court and according to the applicant it was speculative to suggest that concerns relating to international diplomacy would carry weight with that court. The applicant further argued that the suggestion that the assurances would be binding on all future prosecutors had no apparent legal basis or enforcement mechanism. 44 .     Finally, the applicant argued that Florida courts routinely disregarded prosecutors’ sentencing recommendations. Following the concerns raised by the Divisional Court (see paragraph 19 above), S.P. had heard about a case in Florida in which a judge had imposed a whole life sentence even though the prosecution had only sought a limited sentence. S.P. argued that there would likely be other examples, but they were difficult to find as a prosecutor’s recommendation was not data point tracked in the system and life sentences were “so common in Florida they truly aren’t even newsworthy”. The Court’s assessment 45.     As the applicant has not yet been convicted and the offence with which he has been charged does not carry a mandatory sentence of life imprisonment, he must first demonstrate that, in the event of his conviction, there exists a real risk that a sentence of life imprisonment without parole would be imposed without due consideration of all the relevant mitigating and aggravating factors (see Sanchez-Sanchez , cited above, § 100). 46.     In carrying out this exercise, which, the extradition not yet having taken place, is ex nunc , the Court will take as its starting point the assessment by the national courts (see Sanchez-Sanchez , cited above, § 101). 47.     In the present case the first assessment was by the County Court judge in her judgment dated 22 August 2018. She was not satisfied that the arrangements within the requesting State were Article 3 compliant, but she did not specifically address the risk that a sentence of life imprisonment without parole would be imposed (see paragraph 7 above). 48.     The County Court judge considered the matter again in the addendum dated 8 March 2019. She held that the assurances provided were not adequate with regard to the risk of a life sentence, because the absolute nature of Article   3 required an absolute guarantee. However, she accepted that in the event of conviction a sentencing judge would be unlikely to disregard a diplomatic assurance that no more that forty years would be sought (see paragraph 14 above). 49.     The Divisional Court found that the County Court judge had erred in her approach, since the appropriate test was whether the applicant “would run a real risk of being subjected to treatment contrary to Article 3”. In answering this question it was the duty of the court to take into account and assess the factors that created or increased the risk and the factors that removed or lessened the risk and arrive at a net position. Having assessed all of these factors, the Divisional Court concluded that “the risk of a whole life sentence without possibility of remission being imposed” was “very slight and most unlikely”. Furthermore, the possibility of a whole life sentence being maintained on appeal and after consideration by the Governor of Florida and the President of the United States was “wholly negligible” (see paragraphs   19-21 above). 50.     The High Court directly addressed the same preliminary question identified by the Court in Sanchez-Sanchez (cited above, § 95): namely, whether substantial grounds had been shown for believing that the applicant, if extradited, would be at real risk of being punished by a whole life sentence of imprisonment excluding any possibility of reduction or commutation (see paragraph 27 above). On the basis of the evidence before it, the High Court agreed with the conclusion of the Divisional Court that the asserted risk was “at its highest merely theoretical” (see paragraph 30 above). 51.     Therefore, in light of the letters and assurances provided by the United States it appears that none of the domestic courts would have found that the first stage of the Sanchez-Sanchez test was met. On the contrary, they assessed the risk of the imposition of a whole life sentence to be at its highest “unlikely” (the County Court) and at its lowest “very slight and most unlikely” (the Divisional Court) or “merely theoretical” (the High Court). 52.     The applicant, however, appears to take issue with the approach adopted by the Divisional Court and the High Court, both of which treated the assurances as one of the factors to be weighed in the balance in assessing whether or not there existed a “real risk” that a whole life sentence would be imposed (see paragraphs 19 and 28 above). While he no longer contends that the assurances must take the form of an “absolute guarantee” (see paragraph   24 above), he nevertheless argues that in applying the first part of the Sanchez-Sanchez test the courts had to consider whether the applicant had demonstrated the existence of a real risk without reference to any assurances. If the applicant had demonstrated the existence of a real risk, the Government could rely on any assurances to “dispel any doubts”. However, in order to do so the State had to satisfy the court, to the criminal standard of proof, that the violation would not occur (see paragraphs 41-44 above). 53.     In Sanchez-Sanchez the question of assurances did not arise as none had been sought or obtained from the United States. However, in Othman (Abu Qatada) the Court held that in any examination of whether an applicant faced a real risk of ill‑treatment in the country to which he was to be removed, any assurances provided by the receiving State would constitute “a further relevant factor which the Court will consider” (see Othman (Abu Qatada) , cited above, § 187). Furthermore, the correct question was whether the assurances removed any real risk of ill-treatment (see Othman (Abu Qatada) , cited above, § 192) and not, as the applicant suggests, whether they demonstrated to the criminal standard that a breach of Article 3 would not occur. 54.     Therefore, in the present case, in assessing the risk that in event of the applicant’s conviction the sentencing judge would impose a life sentence without parole, the assurance that the prosecutor would not seek a sentence of more than forty years imprisonment falls to be considered together with any other relevant mitigating and aggravating factors the sentencing judge would have to take into account (see Sanchez-Sanchez , cited above, § 100). This is precisely the approach which was adopted by both the Divisional Court (see paragraph 19 above) and the High Court (see paragraph 28 above), and both concluded that the risk of a whole life sentence being imposed on the applicant in the event of conviction was very small indeed (see paragraphs 19-21 and 30 above). For the reasons set out below the Court cannot but agree with their analysis. 55.     If the applicant were to be convicted of second-degree murder, the maximum sentence available to the sentencing judge would be life imprisonment (see paragraph 5 above). According to S.P.’s most recent report, life sentences were “so common in Florida they truly aren’t even newsworthy” (see paragraph 44 above). However, the only statistics before the Court are those provided by the Florida Department of Corrections some five years ago which indicated that approximately twenty-five percent of offenders serving sentences for second-degree murder were serving sentences of life without parole (see paragraph 13 above). These statistics are of limited use. In both Sanchez-Sanchez (cited above, § 104) and Hafeez v. the United Kingdom ((dec.), no.   14198/20, § 42, 28 March 2023) the Court had before it the sentencing statistics for the circuits in which the applicants were charged. In comparison, the statistics relied on in the present case are based on prisoner numbers for the whole State of Florida, and there is no way of knowing when those prisoners serving life-sentences were convicted and sentenced, whether their circumstances were in any way similar to those of the applicant, or how their sentences compared to the Sentencing Guidelines. It does not, therefore, follow from the aforementioned statistics that the applicant, if convicted, would have a twenty-five percent chance of being sentenced to life imprisonment, even assuming that such a chance would, in and of itself, reach the threshold of “real risk”. Moreover, the applicant has not adduced evidence of any defendants with similar records to himself who were found guilty of similar conduct and were sentenced to life imprisonment without parole, either within the circuit where he will be tried or elsewhere (see Sanchez ‑ Sanchez , cited above, § 108, and Hafeez , cited above, § 54). 56.     Even if the Court were to accept that in the absence of assurances there would be a “real risk” that the applicant – who’s “not insignificant” criminal record might “tend to increase the length of a sentence” (see paragraph 19 above) – would be sentenced to life imprisonment, it agrees with the Divisional Court and the High Court that the assurances provided are sufficient to remove that “real risk”. 57.     In this regard, the Court takes note of the long history of cooperation between the United States and the United Kingdom on law enforcement issues related to extradition (see paragraphs 17 and 20 above), and observes that the applicant has not pointed to a single occasion where the United States failed to comply with an assurance given to the United Kingdom. On the contrary, the applicant’s principal objection to the assurances provided in the present case is the fact that they will not be binding on the sentencing judge. While that is undoubtedly true, the Assistant State Attorney has stated that if a sentence of no more than forty years is sought, “it is highly unlikely that the sentencing judge would sentence the applicant to a more severe term than 40   years” (see paragraphs 11 and 17 above). Even the County Court judge, who was not satisfied by the assurances, nevertheless accepted that in the event of conviction a sentencing judge would be unlikely to disregard a diplomatic assurance (see paragraph 14 above). In response, the applicant argued that Florida courts routinely disregard prosecutors’ sentencing recommendations (see paragraph 44 above). However, even if that were so, the specific facts of the present case would set it apart from those relied upon by the applicant (see paragraph 13 above) as both the diplomatic note and the principle of judicial comity would add strength to the prosecutor’s request (see paragraph 19 above). Moreover, as the Divisional Court noted, the prosecutor’s request would not be unreasonable given that some three ‑ quarters of those sentenced for second-degree murder were sentenced to forty years or less. If the sentencing judge did impose a life sentence the applicant could appeal and, if necessary, seek a commutation on the basis of the diplomatic assurance given by the United States to the United Kingdom (see paragraph 19 above). In this regard, the Assistant State Attorney has made it clear that if the applicant were sentenced to life imprisonment, she and her office would take all reasonable steps to ensure that the sentence was reduced in accordance with the assurances (see paragraph 17 above). 58.     Finally, the Court considers the applicant’s contention that the assurances would not be binding on future prosecutors (see paragraph 43 above) to be wholly unsubstantiated. The District Court expressly found that the assurances given by the Assistant State Attorney would be binding on all future prosecutors in the State of Florida (see paragraph 20 above). The High Court noted that the evidence adduced in support of the applicant’s contention was of questionable strength and, in any event, it “was confounded by the principle of mutual trust and confidence and an evidentially barren foundation characterised by bare assertion and conjecture” (see paragraph 30 above). Moreover, the Government have since submitted a new letter dated 8   February 2023 from the Office of the State Attorney which confirmed the validity of the assurances previously provided and reiterated that if the applicant were to be convicted the State of Florida agreed to seek a term of imprisonment of no more than forty years, and to inform the sentencing judge of this assurance (see paragraph 39 above). 59.     In light of the foregoing, the applicant cannot be said to have adduced evidence capable of showing that his extradition to the United States would expose him to a real risk of treatment reaching the Article 3 threshold on account of the risk that he would be sentenced to life imprisonment without parole. That being so, it is unnecessary for the Court to proceed in this case to the second stage of the analysis (see Sanchez-Sanchez , cited above, § 109). 60.     Accordingly, the Court considers that the applicant’s complaint under Article 3 of the Convention must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention. Rule 39 61.     In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court (see paragraph 32 above). For these reasons, the Court, unanimously, Declares the application inadmissible and discontinues the application of Rule 39 of the Rules of Court. Done in English and notified in writing on 7 March 2024.     Andrea Tamietti   Gabriele Kucsko-Stadlmayer   Registrar   President