Last Updated on November 3, 2022 by LawEuro
Information Note on the Court’s case-law
November 2022
Sanchez-Sanchez v. the United Kingdom [GC] – 22854/20
Judgment 3.11.2022 [GC]
Article 3
Degrading treatment
Inhuman treatment
Extradition
No evidence showing a real risk of a sentence of life imprisonment without parole in the event of the applicant’s extradition to, and conviction in, the USA: no violation
Facts – The applicant is a Mexican national currently being detained in the United Kingdom. He faces extradition to the USA where he is wanted on federal charges of drug dealing and trafficking. If convicted, his sentencing level would be Level 43 in the US Sentencing Guidelines, which has a sentence range of life imprisonment.
The applicant appealed unsuccessfully to the High Court against his extradition order. In its decision, the High Court considered itself bound, by an earlier decision of the House of Lords, to hold that to extradite a claimant to the USA to face, if convicted, a life sentence without parole, would not breach Article 3. The High Court considered that, following the European Court’s judgment in Trabelsi v. Belgium, there was no “clear and consistent” jurisprudence from the European Court about the application of Article 3 to sentences of life imprisonment without parole in the extradition context. It was also satisfied that the life sentence was not irreducible, noting the two routes by which a prisoner could seek a reduction in sentence under the US federal system: compassionate release and executive clemency.
On 19 October 2021 a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber.
Law – Article 3:
(a) General principles concerning sentences of life without parole in the extradition context – In Vinter and Others v. the United Kingdom [GC], the Court, in relation to whole life orders in the domestic context, had held that the penological justification for a life sentence had to be subject to review after the passage of a certain period of time. Subsequently, in Trabelsi v. Belgium, the Court had applied the Vinter and Others criteria to the extradition context, and had found that the applicant’s extradition would violate Article 3 because none of the procedures provided for in the requesting State had amounted to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, he had changed and progressed to such an extent that continued detention could no longer be justified on legitimate penological grounds.
However, Vinter and Others had not been an extradition case. This distinction was important.
Within the domestic context, the applicant’s legal position, having already been convicted and sentenced, was known. Moreover, the domestic system of review of the sentence was likewise known, both to the domestic authorities and the Court. In the extradition context, on the other hand, in a case such as the present where the applicant had not yet been convicted, a complex risk assessment was called for, a tentative prognosis that would inevitably be characterised by a very different level of uncertainty when compared to the domestic context. This called – as a matter of principle, but also out of practical concerns – for caution in applying the principles flowing from Vinter and Others, which had been intended to apply within the domestic context, to their fullest extent in the extradition context.
In this connection, the Court would first observe that the principles set down in Vinter and Others embraced both the substantive obligation on Contracting States to ensure that a life sentence did not over time became a penalty incompatible with Article 3, and also related procedural safeguards (Murray v. the Netherlands [GC]), which were not ends in themselves but served in their observance by Contracting States to avoid a breach of the prohibition of inhuman and degrading punishment. Regarding the substantive obligation, exposing an individual to a real risk of inhuman and degrading treatment or punishment would be contrary to the spirit and purpose of Article 3. On the other hand, the procedural safeguards would appear to be better suited to a purely domestic context and consequently did not arise in relation to an individual whose extradition had been requested by a third State, as this would be an over‑extensive interpretation of the responsibility of a Contracting State in such a context. It followed that Contracting States were not to be held responsible under the Convention for deficiencies in the system of a third state when measured against the full Vinter and Others standard. To require a Contracting State to scrutinise the relevant law and practice of a third State with a view to assessing its degree of compliance with those procedural safeguards might prove unduly difficult for domestic authorities deciding on extradition requests.
Moreover, in the domestic context, in the event of a finding of a violation of Article 3, the applicant would remain in detention pending the application or introduction of a Convention-compliant review mechanism which could – but would not necessarily – lead to his release earlier than initially intended. Thus, the legitimate penological purposes of incarceration would not be undermined. In contrast, in the extradition context the effect of finding a violation of Article 3 would be that a person against whom serious charges had been brought would never stand trial, unless he or she could be prosecuted in the requested State, or the requesting State could provide the assurances necessary to facilitate extradition. Allowing such a person to escape with impunity was an outcome which would be difficult to reconcile with society’s general interest in ensuring that justice was done in criminal cases. It would also be difficult to reconcile with the interest of Contracting States in complying with their international treaty obligations, which aimed to prevent the creation of safe havens for those charged with the most serious criminal offences.
Therefore, while the principles set out in Vinter and Others had to be applied in domestic cases, an adapted approach was called for in the extradition context. The adapted approach comprised two stages: at the first stage it had to be established whether the applicant has adduced evidence capable of proving that there were substantial grounds for believing that, if extradited, and in the event of his conviction, there was a real risk that, a sentence of life imprisonment without parole would be imposed on him. In this regard, it was for the applicant to demonstrate that such a penalty would be imposed (López Elorza v. Spain, Findikoglu v. Germany (dec.)). Such a risk would more readily be established if the applicant faced a mandatory sentence of life imprisonment.
If it was established under the first limb of the inquiry that the applicant ran a real risk of a sentence of life imprisonment, then the second limb of the inquiry, having regard to the principles set out in Vinter and Others, would focus on the substantive guarantee which was the essence of the Vinter and Others case-law and was readily transposable from the domestic to the extradition context. At the second stage, it had to be ascertained by the relevant authorities of the sending State prior to authorising extradition that there existed in the requesting state a mechanism of sentence review which allowed the competent authorities there to consider whether any changes in the life prisoner were so significant, and such progress towards rehabilitation had been made in the course of the sentence, as to mean that continued detention could no longer be justified on legitimate penological grounds. In sum, it had to be ascertained whether, as from the moment of sentencing, there was a review mechanism in place allowing the domestic authorities to consider the prisoner’s progress towards rehabilitation or any other ground for release based on his or her behaviour or other relevant personal circumstances.
As for the procedural safeguards afforded to serving “whole life prisoners”, the availability of those in the legal system of the requesting State was not a prerequisite for compliance by the sending Contracting State with Article 3. It followed that in an extradition case the question was not whether, at the time of the prisoner’s extradition, sentences of life imprisonment in the requesting country were compatible with Article 3, by reference to all of the standards which applied to serving life prisoners in the Contracting States.
In Trabelsi the Court had not addressed, as a preliminary step, the question of whether there had existed a real risk that the applicant would be sentenced to life without parole. It had also examined, at the moment of extradition, whether the Vinter and Other criteria had been satisfied in their entirety. For those reasons, the Court considered that Trabelsi should be overruled.
The Court would emphasise that the prohibition of Article 3 ill‑treatment remained absolute. In this regard, it did not consider that any distinction could be drawn between the minimum level of severity required to meet the Article 3 threshold in the domestic context and the minimum level required in the extra-territorial context. Furthermore, nothing in the preceding paragraphs undermined the now well-established position that the extradition of a person by a Contracting State would raise problems under Article 3 where there were serious grounds to believe that he would run a real risk of being subjected to treatment contrary to Article 3 in the requesting State.
(b) Application of the aforementioned principles to the facts of the present case – The applicant had not yet been convicted and the offences with which he had been charged did not carry a mandatory sentence of life imprisonment. For the purposes of the first stage of the two-stage test applied by the Court, he had to demonstrate that, in the event of his conviction, there existed a real risk that a sentence of life imprisonment without parole would be imposed without due consideration of all the relevant mitigating and aggravating factors.
The Court took as its starting point the assessment carried out by the national courts. While the Court’s assessment was ex nunc, the extradition having not yet taken place, the national courts had the opportunity to conduct a detailed assessment of the evidence in proceedings to which the US had been a party. Having considered the evidence, the District Judge had found that if the applicant were to be convicted, his sentencing level would be Level 43 in the US Sentencing Guidelines, which had a sentence range of life imprisonment. She had accepted that there had been a “real possibility” he would receive a sentence of life imprisonment, since one of his co-conspirators had died from a fentanyl overdose. However, while she had found that he had been likely to receive concurrent rather than consecutive sentences if convicted of more than one offence, in her view it had not been possible to determine what sentence he would receive if convicted. In sum, the findings of the District Judge were inconclusive, although she had clearly not found it “likely” that the applicant would be sentenced to life imprisonment. It was therefore necessary to examine the evidence submitted to the Court on that issue.
In this regard, according to the February 2015 report of the US Sentencing Commission, entitled “Life Sentences in the Federal System”, life sentences had been imposed in less than one-third of one percent of all drug trafficking cases in 2013. Moreover, according to the US Sentencing Commission’s Interactive Sourcebook, in 2019, in the Northern District of Georgia, where the applicant had been charged, approximately 65% of 507 sentences had been below the range recommended by the US Sentencing Guidelines.
According to the February 2015 report, the drug trafficking guidelines specifically provided for a sentence of life imprisonment for drug trafficking offences where death or serious bodily injury had resulted from the use of the drug and the defendant had been convicted previously of a drug trafficking offence. Although one of the applicant’s co-conspirators had died from a fentanyl overdose, the evidence before the Court suggested that the applicant had no prior convictions.
A sentence of life imprisonment could also be imposed in other drug trafficking cases in which large quantities of drugs were involved, or where the court applied other sentence enhancement provisions relating to drug trafficking. The charges against the applicant were undoubtedly serious, and the US Department of Justice had indicated its belief that he had been the joint head of a Mexico-based drug trafficking operation who had supervised the work of US-based distributors. However, they had provided information about four of the applicant’s co-conspirators, whose sentences had ranged from seven years’ to twenty years’ imprisonment. The two, V-P and H-H, who had received the highest sentences and who had also faced a recommended sentence of life imprisonment, had been charged with the same charges as the applicant, and had also been convicted of additional charges which the applicant had not faced. According to the US Department of Justice, if the applicant had pleaded guilty or had been convicted at trial, he would be sentenced by the same judge who had sentenced his four co-conspirators. That judge would be required to consider the core sentencing principles, including the need to avoid unwarranted sentence disparities among defendants with similar records who had been found guilty of similar conduct.
In López Elorza, the Court had considered relevant the fact that the applicant’s co-conspirators had received sentences lower than those set out in the US Sentencing Guidelines, especially given that the applicant would be sentenced by the same judge, who would be required to consider the need to avoid unwarranted disparities.
The Court would accept, however, that the applicant’s co-conspirators had been perhaps not in an entirely comparable position to him, even though they had similar base offence levels. They did not appear to have been suspected of being at the head of any criminal organisation and, perhaps more importantly, they would have been entitled to a reduction in sentence on account of their guilty pleas. That being said, in the proceedings before the Grand Chamber the applicant had not adduced evidence of any defendants with similar records to himself who had been found guilty of similar conduct and had been sentenced to life imprisonment without parole. Furthermore, while the Court could not base its assessment on the likely sentence the applicant would receive if he were to plead guilty, it nevertheless recognised that there were many factors that contributed to the imposition of a sentence and, prior to extradition, it was impossible to address every conceivable permutation that could occur or every possible scenario that might arise. As the Court had noted in Findikoglu, the length of the applicant’s prison sentence might be affected by pre-trial factors, such as agreeing to cooperate with the US Government. Moreover, if the applicant were to plead guilty or be convicted at trial, the judge would have a broad discretion to determine the appropriate sentence after a fact‑finding process in which the applicant would have the opportunity to offer evidence regarding any mitigating factors that might justify a sentence below the range recommended by the Sentencing Guidelines. The sentencing judge would be required to have regard to the sentences given to the co‑conspirators, even if their situation had not been identical to that of the applicant. Finally, the applicant would have the right to appeal against any sentence imposed.
Having regard to all of the aforementioned factors, the applicant could not be said to have adduced evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold. That being so, it was unnecessary for the Court to proceed in this case to the second stage of the analysis.
Conclusion: no violation in case of extradition (unanimously).
(See also Vinter and Others v. the United Kingdom [GC], 66069/09 et al., 9 July 2013, Legal summary; Trabelsi v. Belgium, 140/10, 4 September 2014, Legal summary; Murray v. the Netherlands [GC], 10511/10, 26 April 2016, Legal summary; Findikoglu v. Germany (dec.), 20672/15, 7 June 2016, Legal summary; López Elorza v. Spain, 30614/15, 12 December 2017; McCallum v. Italy (dec.), 20863/21, 21 September 2022, Legal summary)
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