THIRD SECTION

DECISION

Application no . 3325/10 Lee Summerfield RUSHING against the Netherlands

The European Court of Human Rights (Third Section), sitting on 27 November 2012 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Corneliu Bîrsan , Ján Šikuta , Luis López Guerra, Nona Tsotsoria , Johannes Silvis, judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 4 January 2010,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court which was subsequently discontinued and the fact that this interim measure has been complied with,

Having regard to the factual information submitted by the Netherlands Government on 29 January 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Lee Summerfield Rushing, is a citizen of the United States of America (USA), who was born in 1943. He was detained in the Netherlands at the time of the introduction of the application. He was represented before the Court by Mr D.W.H.M. Wolters , a lawyer practising in Hoofddorp .

2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker , of the Ministry of Foreign Affairs .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 28 August 1997 an arrest warrant was issued by the USA federal authorities against the applicant who was suspected of having imported into the USA almost 23,000 kg of marihuana from Pakistan .

5. On 21 November 2008, the applicant was apprehended at Schiphol Airport in the Netherlands .

6. On 7 January 2009, the USA Government requested the extradition of the applicant.

7. On 31 March 2009, the Regional Court ( rechtbank ) of Haarlem considered the applicant ’ s extradition permissible and advised the Minister of Justice ( Minister van Justitie ; “the Minister”) accordingly. It held that the applicant had failed to establish that a mandatory life sentence would be imposed on him.

8. The applicant appealed this decision. The Supreme Court ( Hoge Raad ) accepted the appeal on 22 September 2009, in so far as the Regional Court had failed to set out the applicable domestic law, but dismissed the appeal on all other grounds, considered the extradition permissible and advised in favour of the extradition.

9. On 13 October 2009, the Department for International Legal Aid ( Afdeling internationale rechtshulp in strafzaken ; “the Department” ) of the Netherlands Ministry of Justice ( Ministerie van Justitie ) asked their USA counterpart the following questions:

“The lawyer of Lee Rushing states that extradition would be inhumane since he faces a life time imprisonment (since he will be tried for the third time). Is it correct that due to the third criminal case/conviction against him that the judge will have to apply the life time imprisonment in that state or does he have a choice? The competent judicial authority is the federal district court in Seattle , Washington .”

10. On 15 October 2009, the USA Department of Justice responded as follows:

“In answer to your question about the sentencing options for Rushing, once he ’ s extradited, first, there is NO possibility of a mandatory life sentence. In addition, there is no “3 strikes” rule in the federal system. There is a statutory range of 10 years to life in prison (as stated in the extradition affidavit); there are also federal sentencing guidelines. Below is a brief explanation of the statute and guidelines, which are advisory only.

Statutory Penalty: The First Superseding Indictment charges the defendant, Lee Rushing, with conspiracy to import and distribute hashish in violation of Title 21, United States Code, Sections 841 (a)(1), 841 (b)(1)(A), 846, 952, 960 (a), 960(b)(1) and 963. These statutes provide for a penalty of not less than 10 years and not more than life in prison.

Sentencing Guidelines: In addition, there are non-mandatory sentencing guidelines that will be relevant to the defendant ’ s sentence. In this case, the government would anticipate, based on the facts, that the following adjustments would apply:

Base Offense Level: The base offense level would be 38 under USSG [United States Sentencing Guidelines] 2D1, based on the quantity of hashish.

Leadership: The defendant would likely receive an upward adjustment of four (4) levels under USSG 3B1.1(a), as the defendant was an organizer and leader of a criminal activity involving more than five people.

Acceptance of Responsibility. The United States would recommend a downward adjustment for acceptance of responsibility under USSG § 3E1.1(a)(b) of three (3) levels.

With these adjustments, the defendant ’ s adjusted offense level will be 39. If he has no criminal history, his advisory guideline range would be 262 to 327 months in prison. If the defendant has a criminal history, his guideline range may be higher. Again, this is only suggestive.

Other statutory factors: Other statutory factors that the court should consider under Title 18, United States Code, Section 3553(a) are: (1) the nature and circumstances of the offenses; (2) the history and characteristics of the defendant; (3) the need for the sentence to reflect the seriousness of the offenses; (4) the need for the sentence to afford adequate deterrence to criminal conduct; (5) the need for the sentence to protect the public from further crimes of the defendant; (6) the need to provide the defendant with educational and vocational training, medical care, or other correctional treatment in the most effective manner; (7) the kinds of sentences available; (8) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct, and (9) the need to provide restitution to any victims of the offense.”

11. By decision of 20 October 2009, the Minister approved the extradition. In his decision the Minister considered that the applicant had not demonstrated that a mandatory life sentence would be imposed upon him.

12. On 23 November 2009, the applicant took interlocutory civil proceedings ( kort geding ) against the Netherlands Government seeking an injunction on his expulsion to the USA .

B. Developments subsequent to the lodging of the application

13. On 5 January 2010, in the context of the hearing in the interlocutory proceedings, which had been scheduled for 11 January 2010, the Department put fresh questions to the USA Department of Justice, namely:

“Rushing has three prior convictions to his name, ( ... ). Supposedly all three convictions are for felony drugs offenses.

Questions likely to be raised in the forthcoming summary proceedings:

1. Will the prior convictions mentioned above (if correct) lead to the mandatory term of life imprisonment without release?

2. Is such a mandatory term of life imprisonment ‘ de jure and de facto reducible ’ , does it leave ‘ any prospects of release ’ or does it not? The European Human Rights Court in Strasbourg (in its Kafkaris ruling, 12 February 2008, no. 21906/04) has ruled that there may be issues under Article 3 of the Human Rights Treaty in the case of an irreducible sentence of life imprisonment. Dutch courts have to take such rulings into consideration.

3. Is a mandatory minimum sentence of 20 years de jure and de facto reducible or not? Since Rushing is born on 22 March 1945 and now 64 years old, such a minimum sentence could be considered a life sentence as well.”

14. The USA Department of Justice, on 6 January 2010, answered as follows:

“1. The defendant is not facing a “mandatory” term of life imprisonment; rather, that is the maximum term that the Court may order. In order for the mandatory life term to be invoked, the U.S. Attorney must file an enhancement information under Title 21, United States Code [USC], Section 851, which provides as follows: ‘ No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous conviction to be relied upon. ’ Historically, the United States Attorney in this district does not file enhancement information under 21.USC.851 unless the United States Attorney specifically finds, after a review of the defendant ’ s conduct and criminal history, that the mandatory sentence is merited. The information is often not filed if the matter results in a plea agreement in which the defendant accepts responsibility for his actions.

2. Once the sentence is imposed, it is reducible under limited circumstances, including: a) under Rule 35 of the Federal Rules of Criminal Procedure, if within one year of sentencing, the government moves the Court to reduce the defendant ’ s sentence based on the defendant ’ s substantial assistance to the government after sentencing; and b) if the President grants the defendant a pardon under Article II, Section 2, of the United States Constitution.

3. The defendant faces a mandatory term of ten (10) years, not twenty (20) years, under Title 21, United States Code, Section 841(b)(1)(B). The Court only has authority to sentence the defendant below the ten year term under the following limited circumstances: a) if the defendant qualifies for safety valve under Title 18 U.S.C. 3553 (f) and United States Sentencing Guidelines [USSG] 5C1.2 (which seems unlikely in this case given the defendant ’ s leadership role and criminal history); and b) if the defendant provides substantial assistance to the government through cooperation prior to sentencing and the government moves for a sentence reduction under USSG 5K1.1 and 18 U.S.C. 3553.”

15. The Department, upon receipt of the above reply, immediately requested clarification regarding the possibility of a Presidential parole.

16. On 7 January 2010, the USA Justice Department replied as follows:

“[ ... ] the power of a President in federal criminal cases, and the Governor in state convictions, to pardon a person convicted of a crime, commute the sentence (shorten it, often to time already served), or reduce it from death to another lesser sentence. There are many reasons for exercising this power, including real doubts about the guilt of the party, apparent excessive sentence, humanitarian concerns such as illness of an aged inmate, to clear the record of someone who has demonstrated rehabilitation or public service, or because the party is a political or personal friend of the Governor.”

17. On 19 January 2010, the judge in interlocutory proceedings ( kortgedingrechter ) dismissed the applicant ’ s request to stay his extradition The judge held that the applicant had not established that a mandatory life sentence would be imposed on him or that a Presidential parole was not possible. Therefore, the extradition did not constitute a violation of Article 3 of the Convention.

18. On 20 January 2010, the Acting President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of the Netherlands, under Rule 39 of the Rules of Court, that the applicant should not be extradited to the USA until 3 February 2010. The Acting President also decided to request the Netherlands Government to inform the Court on the scope and the legally binding nature of the information supplied by the USA authorities. They were specifically asked if they could provide clarification concerning the applicant ’ s sentence. The Acting President further decided to give priority to the application under Rule 41 of the Rules of Court.

19. On 29 January 2010 the Netherlands Government submitted the requested information. In reaction to the Court ’ s questions, they had contacted the USA authorities once more. In its relevant part, the information they had received reads as follows:

“Under Title 18, United States Code, Section 3553(a), the sentencing court must consider ‘ the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. ’ The highest sentence served to date in this case was about 12 years in prison and the lowest sentence was one day in jail. In the case of the 12-year sentence, that sentence had originally been 30 years, which was a mandatory sentence under the Federal Sentencing Guidelines. By virtue of a ruling by our Supreme Court, however, the Sentencing Guidelines are now only advisory, which should ensure to Mr Rushing ’ s benefit. Most recently, in March 2009, the court sentenced co-defendant Frank Falco to ten years in prison. Mr Falco ’ s case had notable similarities to Mr Rushing ’ s : both men were leaders and organizers in the same conspiracy and both men transferred large sums of money. In addition, both men were fugitives for many years. Of course, the cases were also different in some respects. Nonetheless, as noted above, under 18 U.S.C. 3553(a), the sentencing judge must consider sentencing disparity when sentencing Mr Rushing. Since the highest sentence to date was 12 years in prison and the lowest was one day in jail, a sentence of life in prison would be a significant leap for the court to make.

Title 21, United States Code, Section 841(b)(1)(A) provides for a sentence of ‘ not less than 10 years or more than life ’ . The decision on the term of imprisonment is not within the government ’ s discretion but rather with the court ’ s discretion. Congress set the mandatory minimum and maximum sentences for this offense and we are bound to follow the statute. In some circumstances, the parties may conclude a plea agreement under Federal Criminal Rule 11 (C)(1)(c) in which the parties agree that ‘ a particular sentence or sentencing range is the appropriate disposition ... [and] such a recommendation or request binds the court, once the court accepts the plea agreement. ’ In this instance, however, the court cannot accept a plea agreement until the defendant is in the district, so this is not an option. Furthermore, there is nothing in the record to suggest that an 11(C)(1)(c) binding plea would be appropriate in this case.”

20. On 2 February 2010, the Chamber considered the information provided by the Government on 29 January 2010 and decided, in view of that information, to lift the Rule 39 indication issued on 20 January 2010.

21. On 16 February 2010, the applicant informed the Court that he whished to pursue his application. On 5 March 2010, he was extradited to the USA .

22. No further information about his situation in the USA has been submitted.

COMPLAINT

23. The applicant complained under Article 3 of the Convention that his extradition to the USA would violate his rights under this provision as a mandatory life sentence would be imposed upon him without any possibility of release.

THE LAW

24. The applicant alleged a violation of his rights under Article 3 of the Convention. This provision reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

25. The Court has held on various occasions that a mandatory sentence of life imprisonment without the possibility of parole is not per se incompatible with the Convention. An Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole when it can be shown: ( i ) that the applicant ’ s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure (see Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008, and Babar Ahmad and Others v. the United Kingdom , nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09 , § 242, 10 April 2012 with further references).

28. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application in admissible.

Santiago Quesada Josep Casadevall Registrar President