Information Note on the Court’s case-law 209

July 2017

Harkins v. the United Kingdom (dec.) [GC] - 71537/14

Decision 15.6.2017 [GC]

Article 35

Article 35-2-b

Matter already examined by the Court

Development in Court’s jurisprudence did not constitute “relevant new information” for purposes of Article 35 § 2 (b): inadmissible

Facts – The applicant faced extradition from the United Kingdom to the United States, a ccused of killing a man during an attempted armed robbery.

In 2007 he lodged an application with the Court, complaining that his extradition would be in breach of Article 3 of the Convention on account of the risk that if convicted he would face, inter al ia , a mandatory sentence of life imprisonment without the possibility of parole. In January 2012 the Court gave judgment in Harkins and Edwards v. the United Kingdom . It found, that a mandatory life sentence without the possibility of parole would not be g rossly disproportionate. The applicant was not extradited and brought further domestic proceedings.

In his second application to the Court, the applicant complained that his extradition to the US to face a mandatory sentence of life imprisonment without pa role would be in breach of Article 3 since the sentencing and clemency regime in Florida did not satisfy the mandatory procedural requirements identified by the Grand Chamber in Vinter and Others v. the United Kingdom and that the imposition of a mandatory sentence of life imprisonment without parole would be grossly disproportionate. He further complained under Article 6 that the imposition of such a sentence would constitute a flagrant denial of justice.

Law

Article 35 § 2 (b): An application would gener ally fall foul of the first limb of Article 35 § 2 (b) where an applicant had previously brought an application which related essentially to the same person, the same facts and raised the same complaints. Contrary to the applicant’s submission, his Article 3 complaint was substantially the same as that raised in his previous application and the facts upon which his original complaint was based had not changed. The applicant contended that there was relevant new information in the form of the Court’s judgmen ts in Vinter , Trabelsi v. Germany and Murray v. the Netherlands and the reconsideration of his complaints at the domestic level in light of the first two of those judgments.

The new domestic proceedings had been based on the Court’s judgments in Vinter and Trabelsi , both of which had been handed down following the judgment in Harkins and Edwards . Therefore, while the facts of the case had not changed, it could not be said that the arguments raised by the applicant in the new domestic proceedings had bee n the subject of previous examination by the Court. Nevertheless, the sole question before the domestic court was whether those judgments had sufficiently developed the case-law so as exceptionally to permit it under the domestic rules to reopen its final determination. Having answered that question in the negative, the domestic court had declined to reopen the case. As such, the question of whether the recent domestic proceedings constituted relevant new information was inextricably linked to the question of whether the development of the Court’s case-law constituted new relevant information.

The principle purpose of the admissibility criterion laid down in the first limb of Article 35 § 2 (b) was to serve the interests of finality and legal certainty by p reventing an applicant from seeking, through lodging a fresh application, to appeal against previous judgments or decisions. Legal certainty constituted one of the fundamental elements of the rule of law, which required that, when a court had finally deter mined an issue, its ruling should not be called into question. If that were not the case, the parties would not enjoy the certainty or stability of knowing that a matter had been subject to a final disposal by the Court. It was precisely for that reason th at Rule 80 of the Rules of Court restricted the circumstances in which a party might seek revision of a final judgment to the discovery of a fact which might by its nature have a decisiv e influence and which was unknown to the Court and could not possibility have been known to that party at the date of the judgment.

In addition to serving the interests of finality and legal certainty, Article 35 § 2 (b) also marked out the limits of the C ourt’s jurisdiction. In dealing with applications which had already been submitted to another procedure of international investigation or settlement, Article 35 § 2 (b) excluded its jurisdiction in relation to any application falling within its scope. Alth ough the Court had not made specific reference to jurisdiction or competence in its case-law concerning applications which were substantially the same as matters it had already decided, it saw no logical reason for treating the two situations provided for in Article 35 § 2 (b) differently.

The development in the Court’s jurisprudence did not constitute “relevant new information” for the purposes of Article 35 § 2 (b). The Court’s case-law was constantly evolving and if these jurisprudential developments we re to permit unsuccessful applicants to reintroduce their complaints, final judgments would continually be called into question by the lodging of fresh applications. That would have the consequence of undermining the strict grounds set out in Rule 80, as w ell as the credibility and authority of those judgments. In addition, the principle of legal certainty would not apply equally to both parties, as only an applicant, on the basis of subsequent jurisprudential developments, would effectively be permitted to “reopen” previously examined cases. Accordingly, the applicant’s Article 3 complaints were substantially the same as the complaints already examined by the Court in Harkins and Edwards .

Conclusion : inadmissible (matter already examined by Court).

Article 6: It had not been excluded that an issue might exceptionally be raised under Article 6 in an extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of a fair trial in the requesting country. A flagrant denial of justice was a stringent test of unfairness which went beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State. What was required was a breac h of the principles of a fair trial guaranteed by Article 6 which was so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

As to the burden of proof, it was for the applicant to adduce evidence capable of proving that there were substantial grounds for believing that, if he were removed from a Contracting State, he would be exposed to a real risk of being subject to a flagrant denial of justice. Where such evidence was adduced, it was f or the Government to dispel any doubts about it. The applicant had relied solely on the mandatory nature of the sentence of life imprisonment without parole. That sentence would follow from a trial process which the applicant had not suggested would be in itself unfair. The facts of the present case did not disclose any risk that the applicant would suffer a flagrant denial of justice within the meaning of Article 6 in the US.

Conclusion : inadmissible (manifestly ill-founded).

(See Harkins and Edwards v. th e United Kingdom , 9146/07 and 32650/07, 17 January 2012, Information Note 148 ; Vinter and Others v. the United Kingdom , 66069/09 et al., 9 July 2013, Information Note 165 ; Trabelsi v. Germany , 41548/06 , 13 October 2011; and Murray v. the Netherlands [GC], 10511/10, 26 April 2016, In formation Note 195 . See also Othman (Abu Qatada) v. the United Kingdom , 8139/09, 17 January 2012, Information Note 148 ; and Kafkaris v. Cyprus (dec.), 21906/04, 11 April 2006, Information Note 86 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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