In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.
The European Court of Human Rights this week delivered two important judgments on whole life sentences (mandatory terms of life imprisonment without the possibility of parole), concluding unequivocally that such punishment does not constitute inhuman or degrading treatment under Article 3 of the European Convention of Human Rights.
In Vinter and Others v the United Kingdom the applicants were three convicted murderers who are currently serving mandatory sentences of life imprisonment in the UK. Under UK law, this means that they can never be released from prison unless the secretary of state decides to release them on compassionate grounds (for example, if they are terminally ill or seriously incapacitated).
Previously, the UK High Court had reviewed their terms of imprisonment, and determined that whole life orders were justified for each of the men. The High Court came to this decision taking into account the circumstances of the crimes – in one case the murders involved sexual and sadistic conduct, in another the murder was committed while the applicant was on parole for another murder offence, and in the third, the applicant killed multiple people for financial gain. The UK High Court held that there was no reason to depart from the original decisions that these three men should never be released.
The applicants complained to the European Court of Human Rights that their imprisonment for life with no hope of release was cruel and amounted to inhuman and degrading treatment under Article 3 of the Convention.
The European Court noted that the UK High Court had reviewed the decisions about the length of imprisonment relatively recently and following a fair and detailed consideration. The European Court also noted that each of the three applicants had committed particularly brutal, callous, and premeditated murders. The court held that these sentences were not grossly disproportionate or amounted to inhuman or degrading treatment. There was therefore no violation of Article 3 in the case of any of the applicants.
In the second case, Harkins and Edwards v the United Kingdom, the applicants were Phillip Harkins (a British national) and Joshua Daniel Edwards (a United States national). Both men were indicted in the United States, respectively in 2000 and 2006, for murder and other offences. They were both arrested in the United Kingdom and the United States Government requested their extradition.
In 2006 and 2007, the British secretary of state ordered Mr Harkins’ and Mr Edwards’ extradition. They complained unsuccessfully before the British courts that, if extradited, they risked a sentence of life imprisonment without parole, in breach of Article 3 of the European Convention on Human Rights.
At the European Court, the men argued that if they were extradited to the United States, there would be a real risk that they would receive sentences of life imprisonment without hope of release. They also argued that they may face the death penalty, despite diplomatic assurances from the United States government that the death penalty would not be applied in their case.
On the issue of the potential whole life sentence, the European Court ruled that there would be no breach of Article 3 of the European Convention if these men were extradited to the US.
In Mr Harkins’ case, the court was not persuaded that it would be grossly disproportionate for Mr Harkins to be given a mandatory life sentence in the US. He had been over 18 at the time of his alleged crime, had not been diagnosed with a psychiatric disorder, and the killing had been part of an armed robbery attempt - an aggravating factor. Further, he had not yet been convicted, and – even if he were convicted and given a mandatory life sentence - keeping him in prison might continue to be justified throughout his life time.
As regards Mr Edwards, he faced - at most - a discretionary life sentence without parole. Given that it could only be imposed after consideration by the trial judge of all relevant factors and only if Mr Edwards were convicted for a pre-meditated murder, the Court concluded that such a sentence would not be grossly disproportionate.
On the issue of the death penalty, the court held that the diplomatic assurances, provided by the US to the British Government that the death penalty would not be sought in respect of Mr Harkins or Mr Edwards were clear and sufficient to remove any risk that either of the applicants could be sentenced to death if extradited. Thus, there was no breach of Article 3 of the European Convention.
Meanwhile, the court also currently has before it a case dealing with what kind of prison conditions might be defined as inhuman or degrading under Article 3, which again involves in the United Kingdom and the United States. In Bary and Al Fawaz v the United Kingdom, the court is considering the legality of extraditing people to the United States if they may end up facing solitary confinement in a US “supermax” prison. The case was lodged with the European Court in December 2009, but has not yet been decided.
In 1999, a New York Grand Jury issued an indictment against Osama Bin Laden and 20 other individuals, including the two applicants in this case. The indictment alleged that the applicants were involved in the bombing of the United States embassies in Nairobi and Dar es Salaam in 1998.
The applicants were arrested in the United Kingdom, and the United States requested their extradition. The applicants, after appealing the extradition order through the levels of the United Kingdom courts, eventually applied to the European Court to stop the extradition. They argued, among other things, that there was a real risk they would be imprisoned in ADX Florence, a “supermax” prison in Colorado. The basis of their argument was that the conditions of detention in a supermax prison were inhumane or degrading treatment in violation of Article 3 of the European Convention.
Any decision the European Court hands down in this case will help shape the parameters of what are acceptable prison conditions and what are unacceptable, cruel and inhumane. The Justice Initiative will keep you updated when a decision is published by the court.
In the meantime, the United Nations Special Rapporteur on Torture, Juan E. Méndez, has weighed in on the debate. In a report to the UN General Assembly on 18 October 2011, Mr Méndez stated, “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. […] Considering the severe mental pain or suffering solitary confinement may cause, it can amount to torture or cruel, inhuman or degrading treatment or punishment when used as a punishment, during pretrial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles.”