ASWAT v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant, Mr Haroon Aswat, is a British national who was born in 1974 and is detained pending trial in the United States of America. He was represented before the Court by Ms Gareth Peirce, of Birnberg Peirce & Partners, a lawyer practising in London. 2. The United Kingdom Government (“the Government”) are represented by their Agent, Mr Paul McKell, of the Foreign and Commonwealth Office. 4. The applicant was indicted in the United States of America as a co-conspirator in respect of a conspiracy to establish a jihad training camp in Bly, Oregon. The United States’ Government consequently requested his extradition under the Extradition Act 2003. 5. The applicant, along with Mr Babar Ahmed, lodged a first application against the United Kingdom of Great Britain and Northern Ireland with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 June 2007 (see application no. 17299/12). He alleged that if extradited and convicted he would be at real risk of ill-treatment either as a result of conditions at ADX Florence (a “supermax” prison) or by the length of his possible sentence. The proceedings in the case of the applicant and Mr Babar Ahmad were originally conducted simultaneously with the cases of Mr Syed Tahla Ahsan (application no. 11949/08) and Mr Mustafa Kamal Mustafa (application no. 36742/08). Interim measures under Rule 39 of the Rules of Court were granted on 12 June 2007 and on 26 June 2007 the applications were granted priority status under Rule 41 of the Rules of Court. On 3 September 2010 the President of the Chamber decided under Rule 54 § 2 (b) of the Rules of Court to give notice of the applications lodged by Mr Adel Abdul Bary (application no. 66911/09) and Mr Khaled Al-Fawwaz (application no. 67354/09) to the Government of the United Kingdom. Both of these applications raised the same issues regarding extradition to the United States of America, namely conditions of detention at ADX Florence and the length of possible sentences. The Court therefore decided to deal with the six applications together. 6. On 10 April 2012 the Court delivered its judgment in the case of Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09. However, as the applicant suffered from mental health problems of sufficient severity to require his transfer from HMP Long Lartin to Broadmoor Hospital, the Court considered that it was not in a position to rule on the merits of his complaints without further submissions from the parties. It therefore decided to disjoin and adjourn the examination of the applicant’s complaints. 7. The Court delivered its judgment in Aswat v. the United Kingdom, no. 17299/12 on 16 April 2013 wherein it held, unanimously, that there would be a violation of Article 3 of the Convention in the event of the applicant’s extradition on account of the current severity of his mental condition (see in particular §§ 51-57). In particular the Court noted that there was a lack of certainty as to the where the applicant would be detained, either before or after trial; it was unclear how long the applicant might expect to remain on remand pending trial; it was unclear whether the applicant’s legal representatives would be entitled to challenge his competency to stand trial in the United States on account of his mental disorder; there was no information before the Court concerning the potential length of a competency assessment or any subsequent appeals procedure; there was a 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; and there was no guarantee that if tried and convicted the applicant would not be detained in ADX Florence, where he would be exposed to a “highly restrictive” regime with long periods of social isolation. 8. A request for a referral to the Grand Chamber made by the United Kingdom Government was refused on 11 September 2013. The Court’s decision therefore became final and the Rule 39 measure previously in place lapsed. 9. Meanwhile, on 11 July 2013 the Secretary of State received a letter from the United States’ Government, a copy of which has not been provided to this Court. It would appear that this letter stated that on the basis of the trial of other individuals in situations similar to that of the applicant, he would be held in pre-trial detention for no more than eighteen months; that if his competency was at issue, he would be hospitalised for treatment for a maximum period of four months for assessment; that if deemed unfit, he would be committed to the custody of the Attorney General and thereafter referred to a psychiatric referral centre; that the exact timing of the process was difficult to estimate in advance owing to the fact-specific nature of any assessment; that it was not suggested that the applicant, in his current state, was unfit to plead; and that it was highly likely that he would only become incompetent if, as a result of the conditions in which he was detained, he relapsed into an acute psychotic state. In terms of his likely treatment postconviction, the July letter also stated that if “it is determined that he is unable to manage his activities or daily living by himself (including his taking of prescribed medication) it is highly unlikely that he would be placed at the ADX, but rather, at a medical centre.” 10. On 12 September 2013 the Secretary of State advised the applicant of her decision to proceed with his extradition to the United States of America as the information obtained from the United States’ Government on 11 July 2013 had led her to be entirely satisfied that extradition could take place without infringing Article 3 of the Convention. The Secretary of State did not invite the applicant or his legal representatives to make submissions before she made her decision. 11. On 23 September 2013 the applicant sought permission to apply for judicial review of the Secretary of State’s decision. He relied on two principal grounds, namely: (i) that the Secretary of State had been obliged, but had failed, to afford him the opportunity to make representations before making her decision on extradition; and (ii) that the further information provided by the United States Department of Justice was not materially different from that previously placed before the European Court of Human Rights. Therefore it would be impermissible to depart from its conclusion that there would be an Article 3 violation in the event of his extradition. A Psychiatric Court report, dated 26 March 2014, by Dr Dillon, a Consultant Forensic Psychiatrist and the applicant’s responsible clinician at Broadmoor, was prepared and placed before the domestic court. 12. The High Court heard oral arguments on 1 and 2 April 2014 and promulgated its judgment on 16 April 2014. The court stated that: “26. The contentious and determinative issue is: what will happen to the claimant if he is extradited. 27. Approaching that issue in the same manner as did the Strasbourg Court, as it is common ground we should the starting point must be its clearly stated reason for holding that there would be a violation of Article 3: ‘There would be a violation of Article 3 ... in the event of the applicant’s extradition solely on account of the current severity of his mental condition.’ It is the likely impact of extradition and all that it entails on that condition which was central to the Strasbourg Court’s decision and must be to ours.” 13. The court found, on the basis of the evidence before it, that the information provided on 11 July 2013 by the United States Department of Justice (the content of which has been outlined above) had addressed the uncertainties referred to by this Court in paragraph 52 of its April 2013 judgment both in terms of pre-trial and post-conviction detention. In particular, the court noted that the applicant would be admitted to the Metropolitan Correction Centre (“MCC”), a remand prison in New York, upon arrival and his mental health condition would be assessed immediately; that if his condition could be met within the MCC, his detention would continue in that facility; that in the MCC, he would have access to mental health services and would be provided with appropriate, but different, medication from that prescribed at Broadmoor; that if assessed as being “acutely mentally ill”, he would likely be housed in a psychiatric referral centre managed by the Bureau of Prisons (“BOP”); and that if “it is determined that he is unable to manage his activities or daily living by himself (including his taking of prescribed medication) it is highly unlikely that he would be placed at the ADX, but rather, at a medical centre.” 14. Both the applicant’s legal representative and Mr Joel Sickler, a criminologist who had visited and reported upon numerous federal prisons over thirty years, provided a bleak picture of the conditions at the MCC. The court found that their reporting of conditions was controversial and that in any event, it was not necessary to reach a final decision in that regard. The MCC was a prison, the primary purpose of which was to detain those awaiting trial on serious charges. It was not an institution whose primary function was to treat and care for those with serious mental health problems. However the court also observed that there remained some detailed gaps as to the precise circumstances in which the applicant would be detained in the MCC. Particular reference was made to whether the applicant would be housed in a single cell; and what opportunities he would have for contact with others and for undertaking the types of educational and recreational facilities such as those available to him at Broadmoor. 15. Assessing the medical evidence and referring to the previous approach by this Court, the court held that the applicant’s mental health problems were well controlled by the regime as applied at Broadmoor; and that it was established, at a minimum, that removal from Broadmoor (or an equivalent hospital with a similar regime) to a prison, even one with significant mental health provision, would put the applicant at risk of relapse into an acute psychotic state. 16. In light of its findings, the High Court set out what it considered necessary to ensure that the applicant’s extradition would not be in breach of the United Kingdom’s obligations under Article 3. It noted: “38 The only means which I can see by which the basic concerns of the Strasbourg Court can be answered are that the United States offers an assurance to the Secretary of State that, upon arrival in the United States, the claimant will immediately be transferred to a Psychiatric Referral Centre and kept there unless and until the equivalent of his treating clinician, Dr. Dillon, determines that he could be transferred to another institution without compromising his health and safety; and if not, that he will be kept at a Psychiatric Referral Centre until trial. His extradition would have to be preceded by detailed discussions and the exchange of information between Dr. Dillon and the receiving psychiatrist. By those means, the real risk of relapse into an acute psychotic state which formed the basis of the Strasbourg Court’s decision would be removed.” 17. In conclusion, the court found that the Secretary of State was not duty-bound to have given the applicant the opportunity to make submissions before she made her decision to proceed with his extradition. The applicant had, in any event, been afforded full opportunity to present his case on that issue in the current proceedings and the court had to consider for itself whether or not his extradition would infringe Article 3. Moreover, the court adjourned the final decision in the matter for sixty days for the Government of the United States to consider whether or not it wished to give the assurances outlined above. 18. On 12 June 2014 the United States’ Government, by way of Diplomatic Note, submitted a number of assurances in which it undertook as follows: that the applicant would be transported to the United States of America on a flight that would enable him to be processed by the US Marshals Service (USMS) and promptly produced before a judge for purposes of his initial appearance and a detention determination (on the day of arrival if possible); that while awaiting court during business hours, the applicant would be kept in a USMS cellblock and that he would be transported to the hospital for emergency care should such a need arise; that should overnight detention be required, the applicant would be held either at a contract jail facility or at the local Bureau of Prisons (BOP) facility and that he would have access to emergency medical care if required; that the applicant would be advised of the charges against him and represented by counsel at his initial appearance (either self-funded or court- appointed); that the applicant could, without objection, immediately request an assessment as to his competency; that if the evaluation was granted, the applicant would be transported to a BOP psychiatric referral centre for assessment; that should the applicant not make an application for a competency assessment, he would in any event, with the approval of the District Judge, be detained at an undisclosed private detention healthcare facility for a determination of his health needs; that the District Judge’s consent was required to house the applicant outside of New York state (where any trial would take place); that assuming the defense consented, the prosecution believed that judicial consent would be forthcoming on the basis of the current undertakings; that prior to extradition, a psychiatrist would undertake to receive from Dr Dillon, the applicant’s treating clinician in the United Kingdom, all relevant medical information; and that whether the applicant was housed at a psychiatric referral centre or in the unspecified private facility, he would be kept in such a facility unless and until his treating clinician determined that he could be transferred to another institution without compromising his health and safety. 19. Additional information was provided by the United States’ Government on 28 August 2014. This included details of the treating clinician who would take responsibility for the applicant’s case postextradition. Furthermore, it was noted that one of the medications used to treat the applicant was not available in the United States; that other medications were available to treat the same symptoms; and that discussions between physicians in the respective jurisdictions could take place. In addition, the United States’ Government advised that federal law made provision for an individual to participate in pre-trial proceedings via videolink; that any trial would take place in New York city; and that during trial, the applicant would be housed in a local jail facility close to the court house, where he would have access to any necessary medical treatment, including at hospitals within New York city. Finally an estimate of approximately three weeks was given with respect to the applicant’s trial. 20. On 4 September 2014 the High Court, satisfied with the assurances given by the United States’ Government, held that there was no risk of an Article 3 violation in the event of the applicant’s extradition. That judgment was made final on 8 September 2014. Although an official transcript has not yet been made available, Counsel for both the applicant and the Government took notes during oral delivery of the judgment. Counsel for the Government’s note indicated that it had been accepted on the part of the applicant that there was no live issue as to his being unfit to plead and therefore he would be detained pre-trial in a specified private medical facility. Otherwise, it is recorded that the court accepted that the assurances given were sufficient and that the process would not imperil the applicant’s mental health condition; that in considering the placement of the applicant outside of New York state, the District Judge would not deliberately put at risk the applicant’s mental health; that arrangements were in place for discussions to take place between treating clinicians; that during the applicant’s trial in New York, there were facilities available which provided for mental health care and treatment; that the concerns raised by this Court and the domestic court in April 2014 had been eliminated; and that there was no risk of an Article 3 breach. Nothing in the Counsel for the applicant’s note of the hearing contradicted those comments. 21. On 15 September 2014 the applicant made a request for an interim measure under Rule 39 of the Rules of Court to prevent his extradition to the United States of America. On 16 September 2014 the President of the Section to which the case had been allocated decided to apply Rule 39 until the Chamber had been afforded the opportunity to consider the request made. The following questions were asked of the United Kingdom Government: (i) Do the undertakings as provided by the United States’ Government by way of Diplomatic Note, dated 12 June 2014, adequately respond to the concerns raised by this Court in its judgment of 16 April 2013 regarding the extradition of the applicant?; and (ii) Would the extradition of the applicant to the United States of America be in breach of the United Kingdom’s obligations under Article 3? 22. On 19 September 2014 the United Kingdom Government submitted its response. It stated that since the Strasbourg judgment of April 2013, there had been further domestic decisions which demonstrated that the concerns that had given rise to that decision had been comprehensively addressed. Moreover, the Government asserted that those concerns could be summarised as follows: a lack of information concerning the circumstances of the applicant’s detention pre-trial; a lack of clarity as to how long the period of pre-trial detention might last; the implications of a finding in the United States that the applicant was unfit to stand trial; and an on-going concern that the applicant might be subjected to prolonged periods of social isolation in detention at ADX Florence following a conviction. The culmination of the information and assurances received by the Government of the United States had addressed those concerns. Specifically, the applicant would be detained at a private detention medical facility for an approximate period of no more than eighteen months; if a competency assessment was requested and the applicant was found to be unfit to plead, he would be placed in the custody of the Attorney General and detained at a psychiatric referral centre; and if found to be unable to manage his daily activities, including his taking of prescribed medication, it was unlikely that the applicant be detained at ADX Florence, rather he would be detained at a medical centre. The Government concluded that the extradition of the applicant would not be in breach of the United Kingdom’s obligations under Article 3 of the Convention. 23. On 23 September 2014 the Chamber, having considered the applicant’s case based on the new factual information before it, decided to lift the interim measure previously indicated. 24. The applicant was extradited to the United States of America on 21 October 2014. 25. For a general summary of the relevant domestic and international law and practice regarding extradition, see the Court’s judgment in Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, §§ 62 - 80, 10 April 2012.