CEDH · CASELAW;CLIN;ENG — 4 septembre 2014

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Belgium - 140/10 Judgment 4.9.2014 [Section V] Article 3 Extradition Extradition to a non-Contracting State where applicant faces risk of irreducible life sentence if convicted: violation Article 34 Hinder the exercise of the right of petition Extradition to United States despite real risk of irreducible life sentence without parole and in breach of interim measure ordered by European Court: violation Facts – The applicant, who holds Tunisian nationality, was extradited from Belgium to the United States, where he is to stand trial for offences of a terrorist nature. The Belgian authorities extradited him even though, under Rule   39 of the Rules of Court, the European Court had indicated that the Belgian State should not extradite the applicant to the US before the end of the proceedings before it. Law – Article 3: The applicant was extradited to the US, where he is under prosecution on charges linked to Al-Qaeda-inspired acts of terrorism for which he is subject to a maximum life prison sentence. This sentence is discretionary to the extent that the court may opt for a more lenient sentence, and decide to imprison him for a term of years. In line with the approach adopted in Babar Ahmad and Others* , and given the seriousness of the terrorist offences with which the applicant is charged and the fact that the sentence might not be imposed until after the court has taken into consideration all the mitigating and aggravating factors, the discretionary life sentence which might be imposed would not be completely disproportionate. Ever since Soering** , in cases of extradition the Court has had to assess the risk incurred by the applicant under Article   3 ex ante – that is to say, in the present case, before his possible conviction in the United States – rather than ex post facto . US legislation does not provide for parole in cases of life prison sentences, whether mandatory or discretionary, but there are several possible means of reducing such sentences. In any case, the explanations given by the US authorities on sentencing and their references to the applicable provisions of US legislation governing sentence reduction and Presidential pardons are very general and vague and can in no way be deemed sufficiently specific. Lastly, regardless of the assurances given, the life term to which the applicant might be sentenced cannot be regarded as reducible for the purposes of Article   3 of the Convention***. By exposing the applicant to the risk of treatment contrary to that provision, the Government had engaged the responsibility of the respondent State under the Convention. Conclusion : violation (unanimously). Article 34: None of the arguments put forward by the Belgian Government justified the non-observance of the interim measure indicated by the Court. For example, the Belgian State should not have replaced the Court’s appraisal of the diplomatic assurances provided by the US authorities and of the merits of the application with its own in deciding to override the interim measure indicated. The effectiveness of the exercise of the right of application, which requires the Court to be able to examine the application in accordance with its usual procedure at all stages in the proceedings before it, has been undermined. The applicant, who is in solitary confinement in a US prison, has been deprived of direct contact with his representative before the Court. The Government’s actions have made it more difficult for the applicant to exercise his right of application, and the exercise of the rights secured under Article   34 of the Convention has consequently been hampered. Therefore, by deliberately failing to observe the interim measure indicated by the Court under Rule   39 of the Rules of Court, the respondent State has breached its obligations under Article   34 of the Convention. Conclusion : failure to comply with Article   34 (unanimously). Article 41: EUR 60,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. * See Babar Ahmad and Others v. the United Kingdom , 24027/07, 10   April 2012, Information Note   151 . ** See Soering v. the United Kingdom , 14038/88, 7   July 1989. *** See Vinter and Others v. the United Kingdom [GC], 66069/09, 130/10 and 3896/10, 9   July 2013, Information Note   165 .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes