Babar Ahmad and Others v the United Kingdom
Forum: European Court of Human Rights
INTERIGHTS role: Third party interveners
Keywords: Extradition, non-refoulement, solitary confinement, inhuman and degrading treatment
On 14 December 2010, INTERIGHTS, Reprieve, the American Civil Liberties Union and Yale Law School National Litigation Project jointly submitted a third party intervention to the European Court of Human Rights in the case of Babar Ahmad and others v the United Kingdom. The case concerns the pending extradition of four persons from the United Kingdom to the United States where they are alleged to have committed terrorism-related offences. If convicted, the applicants would be imprisoned at the Florence, Colorado “supermax” prison (“ADX Florence”) and subjected to “special administrative measures”, which include prolonged solitary confinement and arbitrary strip-searches which may have harmful mental effects.
We believe that this case presents the Court with an opportunity to reassert the absolute and indivisible protection against transfer of an individual to a state where they would face the real risk of ill-treatment (non-refoulement) as part of the prohibition on torture, inhuman and degrading treatment or punishment (Article 3 of the European Convention on Human Rights (“ECHR”)), such that the right applies irrespective of the conduct of the applicant or state policy interests.
The applicants argue that they face a real risk of treatment that violates Article 3 ECHR if they are transferred to the U.S. and imprisoned at ADX Florence. The U.K. Government contends that the Eighth Amendment to the U.S. Constitution (“Eighth Amendment”) which prohibits “cruel and unusual punishments” provides sufficient protection against ill-treatment to alleviate the risk of conduct or conditions that would violate Article 3 ECHR.
Our joint intervention provides a comparative law analysis of the protections afforded under Article 3 ECHR and the Eighth Amendment as applied to specific measures that the applicants argued they would be likely to face at ADX Florence. This analysis shows that the U.S. legal protections against ill-treatment in prison fall substantially short of those provided under Article 3 ECHR in several important ways. First, the respective tests applied by U.S. courts and the European Court of Human Rights differ significantly: a violation of the Eighth Amendment requires the showing of a State official’s deliberate indifference, a subjective component, which contrasts with the European Court’s view that Article 3 ECHR may be violated where no subjective component arises. Second, the approach taken by the respective Courts in relation to the specific measures to which the applicants may be subject also reflects distinct scopes of protection.
Our intervention also argues that any protection which the applicants will receive under U.S. law is speculative at best, due to procedural limitations on their ability to assert their rights to substantive protections. The past two decades have seen a strong trend of limiting prisoner access to courts overall and restricting judicial oversight, particularly in the absence of overt physical harm. Moreover, the U.S. Constitution affords little in the way of real protections against the documented harms of prolonged sensory and social deprivation. Only the most egregious cases involving pre-existing mental illness, paired with a showing of the personal wrongdoing of prison officials, are likely to succeed. We contend that the record in cases involving ADX Florence is that administrative review procedures offer little protection to detainees and are largely illusory.
For further information on the case please contact Vesi Vandova, Senior Lawyer, Security and Rule of Law at INTERIGHTS.