September 12, 2014
The Trabelsi case is noteworthy for two reasons. Firstly, because of the blatant disregard by Belgium of the interim measure issued by the European Court of Human Rights. Secondly, because of the application of the reasoning from Vinter v. UK – in which the Court found that life without parole is incompatible with Article 3 ECHR – to the context of extradition proceedings. The Court finds that the applicant’s extradition by Belgium to the USA, where he ran the risk of being convicted to life without parole and despite an interim measure to the contrary, was in violation of Articles 3 and 34 ECHR. This blog post will first highlight the latter violation, before questioning the Court’s reasoning with respect to the former one.
Extradition despite interim measure
In 2001, Nizar Trabelsi, a Tunesian former football player turned Al Qaida terrorist, was arrested in Brussels. In 2003, he was convicted to 10 years’ imprisonment for planning to commit a terrorist attack on the Belgian military basis of Kleine-Brogel, which is infamous for housing – government-denied but Wikileaks-confirmed – US nuclear weapons. Since he was also suspected of plotting a terrorist attack against the US embassy in Paris, the US authorities requested Trabelsi’s extradition in April 2008. The US authorities gave diplomatic assurances that Trabelsi would not run the risk of being convicted to the death penalty, that he would be brought before a court of the ordinary jurisdiction and that he would be detained in the ordinary prison system (compare with the extraordinary rendition cases of Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland). This request was granted by the Belgian Minister for Justice in November 2011. When the ministerial decree was notified to the applicant, on 6 December 2011, the applicant applied for an interim measure, which was granted on the same day by the European Court of Human Rights. On three occasions the Belgian Government tried in vain to convince the Court to lift the interim measure. In September 2013, the Conseil d’Etat rejected the applicant’s application for judicial review of the ministerial decree and subsequently, on 3 October 2013, he was extradited to the USA.
The blatant disregard of the interim measure by a supposedly rule of law abiding country like Belgium is shocking and disgraceful. It puts the Belgian authorities in the same position as a country like Russia, which has disregarded numerous interim measures in cases concerning forcible transfers to authoritarian states like Tadzhikistan or Uzbekistan (for example Nizomkhon Dzhurayev v. Russia and Kasymakhunov v. Russia). In the Court’s words,
“the respondent State deliberately and irreversibly lowered the level of protection of the rights set out in Article 3 of the Convention which the applicant had endeavoured to uphold by lodging his application with the Court. The extradition has, at the very least, rendered any finding of a violation of the Convention otiose, as the applicant has been removed to a country which is not a Party to that instrument, where he alleged that he would be exposed to treatment contrary to the Convention.”
The Court rejected the Belgian Government’s argument that the diplomatic assurances provided for by the US authorities justified non-compliance with the interim measure. According to the Court,
“it was not for the Belgian State, in the wake of the judgment of the Conseil d’Etat, to substitute its own appraisal for the Court’s assessment of these assurances and the merits of the application and decide to override the interim measure indicated by the Court.”
Therefore the Court found a violation of Article 34 ECHR. Based on this finding, the applicant’s wife decided to file a criminal complaint against the former Minister of Justice for abuse of power and arbitrary disregard by a public official of constitutionally guaranteed rights.
Risk of life without parole in the US
While it’s hard to question the Court finding a violation of Article 34, the same does not necessarily hold true for its Article 3 finding. The Court basically applies the rule from the Vinter v. UK – by some labelled “the right to hope” – to the context of extradition. In Vinter, the Court required that
“in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.”
Trabelsi runs the risk of being convicted in the USA to a (discretionary) life imprisonment sentence. In the USA, a sentence can be reduced on the basis of substantial cooperation of the prisoner in the investigation of his case and the prosecution of one or more third persons, as well as for compelling humanitarian reasons. Furthermore, prisoners may apply to the President for a Presidential pardon or a commutation of their sentence. According to the Court, these mechanisms are however not sufficient:
“none of the procedures provided for amounts 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, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds.”
Therefore, the sentence cannot be described as reducible in the sense of the Vinter judgment and, as a result, the applicant’s extradition amounted to a violation of Article 3 ECHR.
I have difficulties with this ruling for a number of reasons. The first reason is brought to the fore in Judge Yudkivska’s concurring opinion. According to Judge Yudkivska, requiring a Vinter-like mechanism to be available in the US is incompatible with the Court’s position that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States (e.g. Al-Skeini and Others v. UK, § 141).
Judge Yudkivska continues by holding that
“in an extra-territorial context the Convention is not aimed to guarantee any special procedure in the receiving State: the Court’s sole task is to ensure that the person concerned will not be subjected to treatment contrary to the Convention requirements.”
Furthermore, according to Judge Yudkivska,
“we cannot impose on the rest of the world the evolution of European standards and the European concept of reintegration as the key aim of incarceration.”
Secondly, contrary to most Article 3 extradition/expulsion cases, the situation complained is far removed from traditional cases of Geneva-Convention-like persecution. In this respect, Judge Yudkivska has argued that
“[t]here is a risk, of course, that in view of the remarkable expansion of the scope of Article 3 and evolving standards of humanity, it becomes harder to set up any clear test under which respect to human dignity would entail ban on extradition or expulsion.”
Indeed, one could wonder whether the risk of being imprisoned in overcrowded circumstances, being exposed to passive smoking or not being provided with glasses in prison – all of which justly give rise to Article 3 issues in a European context – is sufficient in itself to hinder an expulsion or extradition to a non-Council of Europe Member State. The further the (potential) situation complained of in the destination country is removed from the traditional cases of Geneva-Convention-like persecution, the less convincing it is to apply Article 3 standards in exactly the same manner as in European contexts when examining extraditions or expulsions. The Court should definitely have provided more justification for its ruling, since merely applying the Vinter-test by analogy to extradition proceedings is too simplistic to provide a basis for hindering the extradition of terrorists.
Thirdly, Belgium obtained diplomatic assurances to avoid that the applicant would end up in Guantanamo, being convicted by a military court after a mock trial or being convicted to the death penalty. It seems too demanding to expect more from a country before extraditing a terrorist. In this respect, some Belgian politicians have protested that the Court’s ruling may make it impossible to extradite any terrorist from a European country to the USA, since all of them risk life imprisonment.
Fourthly, the Court’s ruling in this case is remarkable in the light of its broader Article 3 jurisprudence. On the one hand, states are prevented from extraditing terrorists because this would be incompatible with their “right to hope”. On the other hand the Court considers it acceptable to deport terminally ill persons, as long as they are not yet on their deathbed. What about their “right to hope” for a longer and better life? Such a striking contrast violates a basic sense of justice.
It is very likely that the Belgian Government will ask for the referral of the case to the Grand Chamber – paradoxically it was the Belgian Government which objected to the Chamber’s intention to relinquish the case to the Grand Chamber. In that case, one could expect the Grand Chamber to either overturn the Chamber judgment, or to provide a more convincing justification for the finding of a violation than a simplistic combination of the Soering– and Vinter-tests.
 See for example the striking recent case of S.J. v. Belgium, which will hopefully be overruled by the Grand Chamber.
 No one shall be extradited/expelled to a country where he or she runs a real risk of being subjected to torture or to inhuman or degrading treatment.
Goeie blogpost! Ze scheren ‘life without parole’ over 1 kam met de doodstraf, wat voor mij ook wel wat veel is. Het onrechtstreeks opleggen van Europese normen in het kader van uitwijzingen doen we met de doodstraf natuurlijk wel. Maar me dunkt dat het wel relevant is dat Vinter zo’n recente evolutie is in de EHRM rechtspraak.
I disagree that the case is ‘simplistically’ merging Soering and Vinter in such a way as to make the basis for finding expulsion contrary to Art.3 ‘unconvincing’. The basis for the finding is Trabelsi is that, according to previous case law:
1) Article 3 protects individuals who are within a Contracting State’s jurisdiction per Article 1 ECHR – here, this State is Belgium – from proscribed treatment regardless of whether the actual treatment occurs in the territory of the Contracting State or somewhere else at a later date;
2) According to the Court, the Contracting State’s ‘liability [is] incurred … by reason of … having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment’; that is, the act of expulsion is what engages the expelling State’s responsibility under Article 3.
There is no untenable transfer of ECHR obligations to a non-signatory State and no jurisdictional overreach as such. Trabelsi faced a real risk of ill-treatment contrary to Art.3 (LWP is contrary to Art.3 as affirmed in the GC ruling in Vinter) and as such, sending him to the US involved subjecting him to the real risk of such ill-treatment.
We can have the more theoretical debate on universality/human rights ‘imperialism’ on another occasion (/via email)…
Lastly, I take your point regarding the terminally ill but I think the issue relates more to the distinction between negative and positive obligations – again, we should continue the conversation…
Hey Natasa, thanks for your contribution to the debate! I consider Vinter as a strange mix of substantive and procedural issues: the lack of ‘hope’ is considered to cause inhuman suffering (substantive issue) as a result of the lack of the possibility of parole (procedural issue). In Trabelsi, the Court found a violation because, in the US, there existed no “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, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds.” In my view it’s far from self-evident to look at procedural issues in the receiving country through exactly the same lens as we would use in Europe. Under Article 6 for example, the Court accepts quite some divergence in procedural protection, only intervening in cases of “a flagrant denial of justice”. In the US there do exist possibilities to apply for an early release, only not as strong as the guarantees that are required in Europe. In my view that’s acceptable. I think it’s difficult to apply Article 3 in these cases in a dogmatic way, by holding that states cannot expose individuals to a risk of what is considered ill-treatment in Europe in exactly the same way as they are prohibited from subjecting them to such treatment on their own territory. Clearly, the Court should be strict when the complementary function to asylum protection of Article 3 is concerned. But what for example about detention conditions, which are rarely compatible with Article 3 within Europe, let alone outside Europe? Does that mean that no individual can be extradited to a country if he or she runs a real risk of ending up in detention conditions that are incompatible with our Article 3 standards? Wouldn’t such a dogmatic approach result in the end of extraditions? I personally don’t feel the Court should go _that_ far.
[…] Contracting States to impose Convention standards on other States (see on this question the recent post on this blog devoted to Trabelsi v. Belgium), its case-law had never limited the jurisdiction of an […]
Thanks for your comment, Laurens! I should say the following, which I consider to be my academic, not just personal, position: I am comfortable with extradition (or other mechanisms of expulsion) both within Europe and beyond being heavily undermined by the absolute nature of Article 3. I don’t consider maintaining an absolute prohibition on expulsions that raise a real risk of Article 3 ill-treatment to be dogmatic, but rather to emanate from Article 3’s absolute nature. As to Article 3’s substantive scope, Article 3 is there to defend those most vulnerable from unacceptable ill-treatment and I am only prepared to engage in criticising the Court if it fails to do that. I think that some of the ill-treatment that you suggest does not merit an absolute prohibition under Article 3 may in fact merit it when the experience of those undergoing it is assessed or where the particular iniquity of the action inflicted is assessed. And whilst Vinter does require a review, that emanates from the requirement of a real prospect of release, which substantively alters the suffering experienced through the sentence and imprisonment. I have mentioned and addressed some of these issues also in this comment (with a link to yours): http://humanrights.ie/criminal-justice/mavronicola-on-trabelsi-v-belgium/
[…] to be in breach of Article 34 of the ECHR in Trabelsi v Belgium (2014) (on which see Lavrysen, here). Obtaining reliable diplomatic assurances would be a long and arduous, or indeed improbable, […]