In a decision announced on the 21st of October 2021 the European Court of Human Rights has “relinquished” the case of Sanchez to the Grand Chamber. BSQ partner Roger Sahota who represents Sanchez comments on the political and legal implications of the case which is due to be heard in February 2022.

In Sanchez v United Kingdom the European Court of Human Rights will revisit one it’s most controversial judgements. The issue at the heart of the case is the application of the European Convention of Human Rights to countries which are not signatories to it - in this case the United States of America.

Sanchez is one of a number of cases currently before the Court – others include Mcallum v Italy and Hafeez v United Kingdom - where Applicants facing life imprisonment if returned to the USA are claiming it is unlawful to extradite them as the arrangements for life sentences in the USA do not meet international human rights standards.

The argument arises because of the European Court’s decision in the case of Trabelsi v Belgium.  Article 3 of the Convention prohibits “degrading and inhuman treatment.” In Trabelsi the Court found that the arrangements for life sentence prisoners in the USA were not Article 3 compliant.  The test for compliance the Court set requires that the sentences should not be “irreducible” i.e. the US should provide a mechanism for review so there was a possibility, even if remote that an offender could be released during the currency of his sentence. At the point the offender was sentenced it should also be clear what he needed to do to be considered for release. None of the procedures available to life sentence prisoners in the US - a presidential pardon or compassionate release – were said to amount to a review mechanism.

For a more detailed discussion of the Trabelsi decision read our earlier blog – BSQ Briefing defending extradition requests from the USA.

Following Trabelsi the ECHR now has to consider a number of cases where Applicants who are by definition accused of the most serious offences because they face the risk of a life imprisonment claim that their extradition to the USA should be barred. In the opinion of the UK and Italian governments - this situation raises a “serious problem’ in the Court’s jurisprudence which strikes at the “heart of the extradition agreements negotiated between friendly states which share a respect for democracy, justice and due process and undermine the effective combating of transnational crime.”

To support their position the UK and Italian Governments rely principally on three main strands of argument.

The first is the contention that contrary to the Trabelsi Court’s findings, the procedures in place in the USA do in law amount to an effective review mechanism and life sentences in the USA are not “irreducible”.

The second is that the Court should take a completely different approach to the question of when a life sentence regime violates Article 3 and reject the “unreasoned decision” in Trabelsi. Instead, the Respondent’s urge the Court to rely on it’s reasoning in a different case – Harkins and Edwards v the UK.  This is not a binding authority as the Court for technical reasons dismissed the Applicant’s appeal. But the points made by the Court in their decision have now been resurrected in Sanchez.  

In Harkins the Court held that test for whether the arrangements for prisoners serving life sentences were Art 3 compliant should revolve around whether an offenders continued detention performed any “legitimate penological purpose”. An Article 3 argument would only arise at the point where it could be shown that an offenders incarceration did not serve a “legitimate penological purpose.” Once this point was reached it would have to be shown that the authorities would refuse to avail themselves of the mechanisms available to reduce their sentences. It is argued that the US does have a review mechanism with pre-established criteria that allows an offenders continued detention to be assessed on penological grounds.

Finally, as a point of general principle the Respondents claim that the European Court should not engage in a detailed analysis of the life sentence regime in the USA to determine whether it is “in full accord” with Convention standards. The US is not a contracting party to the ECHR. As long as the essence of Article 3 rights are protected, the Court should not impose strict standards on non-signatory State. It follows that it will be rare that the Court will find a violation of Article 3 by a non-contracting party.

In reply the Applicants take the opposite view. They maintain that ECHR standards should not be diluted in cases involving alleged Article 3 violations by non-contracting states. Accordingly, the decision of the former Fifth Section in Trabelsi “establishes unambiguously’ that the same standards apply to the question whether a sentence of life imprisonment amounts to a violation of Article 3 regardless of whether the state in question is a signatory to the Convention or not.

From a political perspective It is clear that the inability of member states to extradite suspects accused of offences carrying out offences carrying life sentences to the USA because of Trabelsi is a cause of acute embarrassment. Against this context the decision in Sanchez is one that will be watched closely by both lawyers and lawmakers.