The recent case of Babar Ahmad and Others v United Kingdom represents the final stage in the European appeal process for Abu Hamza and others against their extradition to the USA on terrorism charges. Thus, the ECtHR’s decision of 10 April 2012, in favour of extradition, stands. This initial decision, addressing the issue of whether extradition proceedings enacted between the UK and US would violate the applicants’ rights under article 3 ECHR, therefore merits some scrutiny.
The judgment may be praised insofar as the ECtHR took upon itself the task of scrutinising both the potential conditions which awaited the applicants (at -), and the characteristics of the sentences themselves (at -), before deciding that they did not violate article 3 ECHR. Despite much UK support for speedy extradition without human rights scrutiny, including purported intervention by the monarch, the Court, at paragraph 173, remained committed to its approach, from Chahal v United Kingdom and Saadi v Italy, of not “balancing” the applicants’ rights under article 3 against other factors. It stated that: “in the twenty-two years since the Soering judgment, in an Article 3 case the Court has never undertaken an examination of the proportionality of a proposed extradition or other form of removal from a Contracting State.”
However, whilst the Court may be praised for this consistency, despite popular pressure to disregard the human rights of terrorist suspects, one aspect of the judgment appears novel and, if unchecked, could lead a lessening in the level of human rights scrutiny that it might be willing to undertake in future cases. In the present case, unlike in the seminal judgment of Soering v United Kingdom, we find, at paragraph 177, the statement that “the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States.” Whilst this is undoubtedly correct, the novel conclusion which the Court draws from this can be found at paragraph 179: it states that “save for cases involving the death penalty, [the ECtHR] has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law.” Two remarks may be made about this pronouncement. First, it appears to envisage a special status for the death penalty, whereby it is exempt from considerations of the characteristics of the receiving state. Why this status is accorded is unclear, especially considering the supposedly absolute nature of the right under article 3. Secondly, it could arguably lead to the introduction of a “privileged” status, or immunity, for some receiving states, as regards the ECtHR’s scrutiny of their treatment of prisoners, according to their track record of conformity with Western political ideals. Care must therefore be taken to ensure that such presumption of a receiving state’s conformity with prisoner rights as envisaged under the ECHR does not preclude independent judicial scrutiny of its practices.
Claire Overman is a BCL Candidate at the University of Oxford