14 September 2010

FOURTH SECTION
Application nos. 66911/09 and 67354/09
by Adel Abdul BARY and Khaled AL-FAWWAZ
against the United Kingdom
lodged on 21 and 22 December 2009

STATEMENT OF FACTS
THE FACTS
1.  The first applicant, Mr Adel Abdul Bary, is an Egyptian national who was born in 1960. He is currently detained at HMP Long Lartin. He is represented before the Court by Ms G. Peirce, a lawyer practising in London with Birnberg Pierce and Partners, Solicitors.
The second applicant, Mr Khaled Al-Fawwaz, is a Saudi Arabian national who was born in 1962. He is also detained at HMP Long Lartin. He is represented by Mr A. Raja, a lawyer practising in London with Quist Solicitors.
A.  The circumstances of the case
2.  The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The United States indictments
3.  In 1999 a Federal Grand Jury sitting in the Southern District of New York returned an indictment against Osama bin Laden and twenty other individuals, including the applicants, inter alia alleging various degrees of involvement in or support for the bombing of the United States embassies in Nairobi and Dar es Salaam in 1998.
4.  The United States Government requested the applicants' extradition from the United Kingdom. The extradition of a third man named in the indictment, Ibrahim Eidarous, was also requested. On 13 March 2006 the Secretary of State for the Home Department decided not to surrender him to the United States because of his serious ill-health; he died in July 2008.
2. The initial extradition proceedings
5.  At his committal hearing before the District Court, the second applicant contended that extradition was only permitted within the terms of the 1972 USA-UK Extradition Treaty for offences committed within the jurisdiction of the requesting State, and not when that State exercised jurisdiction over extra-territorial offences. He further argued that there was “insufficient evidence” to prove a prima facie case, which was a requirement for extradition under the Treaty. As part of that submission, he sought to have excluded two anonymous witness statements, which had been provided by two informants, “CS/1” and “CS/2”, and which the United States Government relied upon as part of their case against him. In his ruling of 8 September 1999, the District Judge rejected these submissions. He considered that the proper construction of the Treaty did not prevent the exercise of jurisdiction over extra-territorial offences.
The District Judge was also satisfied that there were real grounds for fear if the identities of CS/1 and CS/2 were revealed and thus their witness statements could be admitted as evidence of a prima facie case. He further found that there was a case for the second applicant to answer.
6.  The second applicant appealed to the High Court by way of an application for a writ of habeas corpus. The application was dismissed on 30 November 2000. The High Court held that it was necessary to show that the crime in respect of which extradition was sought was alleged to be committed within the actual territory of the United States and that it was not sufficient to allege that a crime was committed within the jurisdiction extraterritorially of the United States which would in similar circumstances be governed by the extraterritorial jurisdiction of the United Kingdom. The High Court was, however, satisfied that three overt acts alleged by the United States of America could be relied on to found territorial jurisdiction in the United States, namely (a) the setting up and operating of a secure telephone line in the United States by the second applicant through an organisation called MCI; (b) the purchase by the second applicant of a satellite phone system in the United States and (c) the issuing in pursuance of the conspiracy of fatwahs and jihads, allegedly prepared with the concurrence of the second applicant in the United States and elsewhere. The High Court also found that the District Judge had not erred in admitting the evidence of CS/1 or finding that there was a prima facie case against the second applicant. It did not consider it necessary reach any conclusions in respect of CS/2, judging CS/1's evidence to be “far the most significant”.
7. While the second applicant's appeal was pending before the High Court, a committal hearing before the District Court was held in respect of the first applicant. The District Judge gave his ruling on 25 April 2000 in which he reaffirmed the rulings he had made in respect of the second applicant and found that there was also a prima facie case against the first applicant.
8.  The first applicant also appealed to the High Court and, on 2 May 2001, a differently constituted court dismissed his appeal. Again the High Court found that the District Judge had not erred in admitting the anonymous evidence of CS/1; that there was sufficient evidence against the first applicant for the extradition to proceed (and the District Judge's reasons had been adequate in this respect); and that the United States had jurisdiction to try the first applicant.
9.  Both applicants appealed to the House of Lords. Their appeals were dismissed on 17 December 2001. The House of Lords found unanimously that the High Court had erred in finding that it was not sufficient to allege that a crime was committed within the jurisdiction extraterritorially of the United States. The 1972 Treaty did not require that the acts alleged by the United States were committed within the territory of the United States of America; it was sufficient that the offence for which extradition was sought was triable within the United States and an equivalent offence would be triable in the United Kingdom. The House of Lords also found that the offences alleged against the applicants would, if transposed to England, be triable in England. Accordingly, the applicants were liable to extradition to the United States if a prima facie case of conspiracy to murder was established. For the reasons given by the District Judge, the House of Lords was satisfied that a prima facie case had been established in respect of each applicant.
Their Lordships also found that the District Judge had not erred or acted irrationally in deciding that the balance of fairness required that the anonymity of the two witnesses be preserved and that their evidence should be admitted.
3. The Secretary of State's decision, the United States' assurances, and the applicants' appeal to the High Court
10.  Between November 2001 and December 2005 there then followed voluminous representations by the applicants to the Secretary of State as to why they should not be extradited to the United States.
11. In course of these exchanges, on 19 April 2002 the President of the United States designated the second applicant as a “specially designated global terrorist”, which had the effect of placing him on a list of persons maintained by the United States Department of the Treasury and available on its website. This was done pursuant to Executive Order 13224 which enables the American assets of any person so designated to be blocked.
12.  Subsequently, on 13 April 2004, the United States Embassy in London issued Diplomatic Note No. 018, which gave assurances that the United States Government would neither seek nor carry out the death penalty against the three men. It also gave assurances that they would be tried before a federal court and that they would not be prosecuted by a military commission or designated as enemy combatants. On 18 January 2008, the United States Embassy issued Diplomatic Note No. 002, which assured the United Kingdom Government that, if either applicant were acquitted or completed any sentence imposed or if the prosecution against them were discontinued, the United States authorities would return the men to the United Kingdom, if they so requested.
13. The Secretary of State (Ms Smith) rejected the applicants' representations on 12 March 2008. She found the assurances given by the United States could be relied upon and thus that the applicants were not at risk of the death penalty, indefinite detention or trial by a military commission. By this point it had been revealed that CS/1 was a Mr Al-Fadl who had given evidence against the certain of the applicants' co-defendants during their trial in the United States; the Secretary of State relied on the findings of the District Judge, High Court and House of Lords that Mr Al‑Fadl's evidence and the other evidence against the applicants amounted to a prima facie case against them. She also rejected the applicants' contention that either the United States authorities or the United Kingdom Security Service had failed to disclose material which was relevant to the extradition proceedings. The applicants also contended that they would not receive a fair trial in the United States owing to the unavailability of defence witnesses and evidence, adverse publicly, the possible imposition of “special administrative measures” before trial and the fact that the second applicant had been publically designated as a global terrorist by the President of the United States. The Secretary of State found none of these claims amounted to a “flagrant denial of justice” such as would act as a bar to extradition.
The Secretary of State accepted that there was a real possibility that the applicants would be sentenced to life imprisonment if convicted but, relying on the House of Lords' judgment in Wellington (see paragraphs 21–27 below), found that this would not amount to a breach of Article 3 of the Convention.
She also considered that the conditions of the applicants' detention in the United States would not violate Article 3 whether they were subjected to “special administrative measures” before trial or detained at ADX Florence after trial. In the first applicant's case, this conclusion was not affected by the fact that he suffered from a recurrent depressive disorder. There was also no risk that either applicant would be tortured or that evidence obtained by torture would be adduced at trial or that they would be at real risk of torture as a result of extraordinary rendition or refoulement to a third State. Finally, there was no evidence that the applicants would be prejudiced by reason of their religion, race or nationality and there was no reason why the passage of time since their initial arrest should prevent their extradition.
14.  The applicants sought judicial review of the Secretary of State's decision in the High Court. Before the High Court the applicants submitted that, if convicted, they would be detained at ADX Florence in violation of Article 3 of the Convention. In rejecting that contention, Lord Justice Scott Baker, delivering the judgment of the court on 7 August 2009, found:
“Although near to the borderline the prison conditions at ADX Florence, although very harsh do not amount to inhuman or degrading treatment either on their own or in combination with SAMs [special administrative measures] and in the context of a whole life sentence.
... Whether the high article 3 threshold for inhuman or degrading treatment is crossed depends on the facts of the particular case. There is no common standard for what does or does not amount to inhuman or degrading treatment throughout the many different countries in the world. The importance of maintaining extradition in a case where the fugitive would not otherwise be tried is an important factor in identifying the threshold in the present case.
Had the claimants persuaded me that there was no prospect that they would ever enter the step down procedure whatever the circumstances then in my view the article 3 threshold would be crossed. But that is not the case. The evidence satisfies me that the authorities will faithfully apply the criteria described by warden Wiley [see Babar Ahmad and others v. the United Kingdom (dec.), nos 24027/07, 11949/08 and 36742/08, § 88, 6 July 2010] and that the stringency of the conditions it imposes will continue to be linked to the risk the prisoner presents. Further, there is access to the US courts in the event that the [Federal Bureau of Prisons] acts unlawfully.”
15.  In respect of the first applicant's submission that his recurrent depressive illness would deteriorate if extradited, the High Court considered that, to the extent that this affected his fitness to stand trial, this was a matter for the United States' authorities and, if he were convicted, the first applicant's mental health would be an important factor in deciding whether he should be sent to ADX Florence.
16. The High Court also rejected the applicants' submissions that they were at real risk of violations of Articles 3, 6 and 14 of the Convention by virtue of the imposition of special administrative measures, relying on its previous judgment in Ahmad and Aswat v. the United States of America [2006] EWHC 2927 (Admin) (see Babar Ahmad and others, cited above, §§ 25-30). Having regard to Diplomatic Note No. 002 (see paragraph 12) above) there was no real risk of refoulement to Egypt or Saudi Arabia by the United States. The High Court was also satisfied that the United States would honour the assurances it had given in Diplomatic Note No. 018. The mere fact that the second applicant had been designated as a global terrorist by the President of the United State did not mean he was at risk of a flagrant denial of justice within the meaning of Article 6: the designation added little to what was already known about him; it would be made clear to the jury at any trial what had to be proved as regards the indictment.
17.  The High Court also rejected the applicants' submission that they should be tried in the United Kingdom, finding that this was neither viable nor appropriate and that any connection with the United Kingdom was “tenuous indeed”.
18.  Although the High Court refused leave to appeal to the United Kingdom Supreme Court, it certified two questions of general public importance. The first question was whether prison conditions at ADX Florence were compatible with Article 3; the second question was whether the relativist approach to Article 3 adopted by the majority of the House of Lords in Wellington should apply where the issue under Article 3 was one of the compatibility of prison conditions with Article 3.
19.  On 16 December 2009, the Supreme Court refused permission to appeal.
20.  On 21 and 22 December 2009 the applicants lodged applications with this Court and, on 23 December 2009, the President of the Chamber to which the applications were allocated also decided to apply Rule 39 of the Rules of Court and to indicate to the Government of the United Kingdom that the applicants should not be extradited until further notice.
B.  Relevant domestic law and practice
1. R (Wellington) v. Secretary of State for the Home Department [2008] UKHL 72
21.  The United States requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on two counts of murder in the first degree. In his appeal against extradition, Mr Wellington argued that his surrender would violate Article 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole.
22.  The appeal was heard by the House of Lords and dismissed on 10 December 2008. Although all five Law Lords agreed that the appeal should be dismissed, they gave different reasons for this conclusion. Lord Hoffmann, Baroness Hale and Lord Carswell found that, on the basis of Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161, Article 3, insofar as it applied to inhuman and degrading treatment and not to torture, was applicable only in attenuated form to extradition cases.
23.  Lord Hoffmann, giving the lead speech, considered the Court's judgment Chahal v. the United Kingdom, 15 November 1996, § 81, Reports of Judgments and Decisions1996‑V. There, the Court stated that it should not be inferred from its remarks in Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161 that there was “any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State's responsibility under Article 3 (art. 3) is engaged.” Lord Hoffmann stated:
“In the context of Chahal, I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture. I do not however think that the Court was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering and which is paralleled in the cases on other articles of the Convention in a foreign context. If such a radical departure from precedent had been intended, I am sure that the Court would have said so.”
24.  Lord Scott and Lord Brown, on the other hand, considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment. They found no basis in the text of Article 3 for such a distinction. Lord Brown also considered that the Court, in Chahal and Saadi v. Italy[GC], no. 37201/06, 2008‑..., had departed from the previous, relativist approach to inhuman and degrading treatment that it had taken in Soering. There was no room in the case-law of this Court for a concept such as the risk of a flagrant violation of Article 3's prohibition against inhuman or degrading treatment or punishment, particularly given the caution the Court exercises in finding a violation of Article 3 on this ground. Thus if a mandatory life sentence violated Article 3 in a domestic case, the risk of such a sentence would preclude extradition to another country.
25.  However, none of the Law Lords found that the sentence likely to be imposed on Mr Wellington would be irreducible; having regard to the powers of the Governor of Missouri, it would be just as reducible as the sentence at issue in Kafkaris v. Cyprus [GC], no. 21906/04, 2008‑....
26.  All five Law Lords also noted that the Court in Kafkaris had only said that the imposition of an irreducible life sentence may raise an issue under Article 3. They found that the imposition of a whole life sentence would not constitute inhuman and degrading treatment in violation of Article 3 per se, unless it were disproportionate.
27.  Mr Wellington lodged an application with this Court on 16 December 2008 (no. 60682/08) and, on 19 December 2008, the President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government of the United Kingdom that he should not be extradited until further notice.
COMPLAINTS
28.  The applicants complain that there would be violations of Articles 2, 3, 5, 6, 8 and 14 of the Convention if they were extradited to the United States. First, the applicants allege that the diplomatic assurances provided by the United States are not sufficient to remove the risk of their being removed from the federal criminal justice system and designated as enemy combatants in violation of Articles 3, 5, 6 and 8 of the Convention. In particular, they rely on the fact that one of their indicted co-accused, Ahmad Khalfan Ghailani, was detained and brought before a Military Commission at Guantánamo Bay Naval Base (where he was allegedly tortured) only to be later transferred to stand trial in a Federal District Court in New York.
29.  Second, the applicants complain that the diplomatic assurances are not sufficient to remove the risk that they will be subjected to extraordinary rendition.
30.  Third, relying on Article 2 of the Convention the first applicant argues that, as a result of his recurrent depressive disorder, his extradition would carry an extremely high risk that he would commit suicide.
31.  Fourth, the applicants complain that there is a real risk that they will be subjected to “special administrative measures” in violation of Articles 3, 6, 8 and 14.
32.  Fifth, relying on the same Articles, they complained that there was a real risk they will be detained in a “supermax” prison such as ADX Florence.
33.  Sixth, the applicants allege that, if extradited, they would face sentences of life imprisonment without parole and/or extremely long sentences of determinate length in violation of Articles 3 and 8.
34.  Seventh, the applicants allege that there would be a real risk of a flagrant denial of justice in violation of Article 6 § 1 of the Convention because the extensive publicity which the United States Government's counter-terrorism efforts had attracted would prejudice any jury, particularly when they were to stand trial in New York. This would be exacerbated by the public controversy surrounding the President's decision to transfer other high profile terrorist suspects such as Khalik Sheikh Mohammed and Mr Ghailani, from Guantánamo to New York for trial.
35.  Eighth, also under Article 6, the applicants argue that the case against them had been significantly weakened as new evidence has emerged in the course of their extradition proceedings. Notwithstanding this new evidence, their trial would be prejudiced by the fact that any jury would hear evidence linking them to a conspiracy to murder which involved Osama bin Laden and Al Qaeda.
36.  Ninth, the applicants argue that further prejudice would arise if CS/1, Mr Al-Fadl, were to give evidence when it was not clear what pressure had been put on him or inducements had been given to him by the prosecuting authorities in order to secure his testimony.
37.  Tenth, the second applicant alleges that any jury in his case would be further prejudiced by the fact that he had been designated as a global terrorist by the President of the United States.
38.  Eleventh, under Article 8 the applicants allege that there would be a disproportionate interference with their private and family life in the United Kingdom if they were to be extradited. The first applicant relies on the fact that his extradition would result in permanent separation from his wife, children and grandchildren who are all British residents.
39.  Twelfth, the applicants allege that there would be a violation of Article 13 of the Convention if they were extradited as they would have no effective remedy for the violations of the Convention they would suffer in the United States.
40.  Finally, the applicants consider that it is of some relevance that, rather than extraditing them to the United States in violation of the Convention, it would be possible for them to be tried in the United Kingdom. The crimes of which they are accused are justiciable in the United Kingdom; the vast bulk of the evidence against them was obtained by the United Kingdom authorities and the majority of defence witnesses are in the United Kingdom but will not travel to the United States to give evidence for fear of arrest; and, despite their representations as to what would happen to the applicants in the United States, the United Kingdom Government has failed to give proper consideration to prosecuting them in the United Kingdom
QUESTIONS TO THE PARTIES
1. What are the lengths of sentences faced by the applicants if convicted?

2. If those sentences would either life imprisonment without parole or determinate sentences which would be likely to exceed the natural life of each applicant, then would those sentences be reducible (i) de iure and (ii) de facto (Kafkaris v. Cyprus [GC], no. 21906/04, 2008‑...)?

3.  Is there a real risk that following any conviction the applicants would be detained at ADX Florence?

4. If so:
(i) wthe length of time spent at ADX Florence amount to a violation of Article 3?
(ii) would they have any real prospect of entering the step-down programme?
(iii) does the Eighth Amendment to the United States Constitution, as interpreted by the federal courts, provide equivalent protection to Article 3 of the Convention?

5. What relevance, if any, is to be attached to the applicants' submission that they could and should be tried in the United Kingdom (Soering v. the United Kingdom, 7 July 1989, § 110)?