European Court of Human Rights

Information Note on the Court’s case-law No. 162

April 2013

Aswat v. the United Kingdom - 17299/12

See Judgment 16.4.2013: [2013] ECHR 322 [Section IV]

Article 3

Extradition

Uncertainty over conditions of detention in the event of extradition to the United States of suspected terrorist suffering from serious mental disorder: extradition would constitute a violation

 

Facts - In August 2005 the was applicant arrested in the United Kingdom on the basis of an arrest warrant following a request for his provisional arrest by the United States in connection with his indictment for conspiring to establish a jihad training camp. In March 2006 the Secretary of State ordered his extradition. In March 2008 the applicant was transferred to a high security psychiatric hospital because he met the criteria for detention under the United Kingdom’s mental health legislation. In November 2011 the First-Tier Tribunal Mental Health considered the applicant’s case and concluded that he was suffering from paranoid schizophrenia which made it appropriate for him to continue to be liable to detention in a medical hospital for his own health and safety.

Law - Article 3: Whether or not the applicant’s extradition to the United States would breach Article 3 of the Convention very much depended upon the conditions in which he would be detained and the medical services available to him there. However, any assessment of those detention conditions was hindered by the fact that it could not be said with any certainty in which detention facility or facilities the applicant would be housed, either before or after trial. This was particularly the case with respect to the pre-trial period, about which very little information had been provided. The United States’ Department of Justice had given no indication of where the applicant would or could be held, although it had advised that if he consented to his medical records being provided to the United States’ authorities on extradition, they would be able to take his mental health concerns into account in deciding where to house him while on remand. It was also unclear how long the applicant might expect to remain on remand pending trial. If extradited the applicant’s representatives would have been entitled to contend that he was not fit to stand trial in the United States on account of his mental disorder. A district judge would then have had to assess his competency and, if the applicant was found to be competent, he would have a right of appeal to the Court of Appeals. There was no information before the Court concerning the potential length of a competency assessment or any subsequent appeals procedure, but it was reasonable to assume that the length of pre-trial detention might be prolonged if the applicant were to assert these rights. Finally, the Court noted with concern the complete absence of any information about the consequences for the applicant if the District Judge were to find that he was not fit to stand trial.

The Court accepted that if convicted the applicant would have had access to medical facilities and, more importantly, mental health services, regardless of which institution he would be detained in. Indeed, it recalled that in Babar Ahmad v. the United Kingdom it had not been argued that psychiatric care in the United States’ federal prisons was substantially different from that which was available at the prison in which Mr Babar Ahmad was being held. However, the mental disorder suffered by the present applicant was of sufficient severity to have necessitated his transfer from ordinary prison to a high-security psychiatric hospital and the medical evidence had clearly indicated that it continued to be appropriate for him to remain there “for his own health and safety”. Moreover, there was no guarantee that if tried and convicted he would not be detained in ADX Florence, where he would be exposed to a “highly restrictive” regime with long periods of social isolation. There was no evidence to indicate the length of time that he would spend in ADX Florence. While the Court in Babar Ahmad had not accepted that the conditions in ADX Florence would have reached the Article 3 threshold for persons in good health or with less serious mental health problems, the applicant’s case could be distinguished on account of the severity of his mental condition. The applicant’s case could also be distinguished from that of Bensaid v. the United Kingdom as he was facing not expulsion but extradition to a country where he had no ties, where he would be detained and where he would not have the support of family and friends. Therefore, in the light of the current medical evidence, there was a real risk that the applicant’s extradition to a different country and to a different, and potentially more hostile, prison environment would result in a significant deterioration in his mental and physical health and that such a deterioration would be capable of reaching the Article 3 threshold.

Conclusion: extradition would constitute a violation (unanimously).

Article 41: no claim made in respect of damage.

(See Babar Ahmad and Others v. the United Kingdom, nos. 24027/07 et al., 10 April 2012, BAILII: [2012] ECHR 609, Information note no. 151; and Bensaid v. the United Kingdom, no. 44599/98, 6 February 2001, BAILII: [2001] ECHR 82, Information Note no. 27)

 

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