CONCURRING OPINION OF JUDGE YUDKIVSKA

I voted with the majority for a finding of violation of Article 3, albeit with serious hesitations. The reasoning in the judgment appears to me rather elusive.

The present case marks a welcomed departure from Babar Ahmad and Others v. the United Kingdom , and I am pleased to note that the Court’s previous position to the effect that “treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case” [2] is not followed in these particular circumstances. There 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.

But the case also represents a development of the Vinter and Others judgment. Although the consequences of Vinter for extradition cases were quite clear –suspects are extraditable only if the envisaged life sentence is, in principle, reducible in the requesting State – in my view the Court has missed the opportunity to define clearly the scope of the Court’s review for such cases. It was particularly necessary in the present case, since it concerned an extradition to the United States, in respect of which the Court found in Babar Ahmad that “save for cases involving the death penalty, [the Court] has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law” [3] .

The applicant in the present case was not yet convicted (unlike the applicants in Vinter and Others ). Thus, it appears inevitable that in the extradition context the Vinter requirement that a “whole life prisoner is entitled to know, at the outset of his sentence , what he must do to be considered for release...” evolves into a requirement that a potential whole life prisoner is entitled to know that the whole life term is reducible already as of the moment of facing charges . This represents too remote and abstract assessment of a potential “irreducible life sentence” which may be imposed if (1) the charges against the applicant are proved during the trial (for the moment he is presumed innocent), if (2) he is really sentenced to life imprisonment, and if (3) in some twenty-five or thirty years the legal situation and penal policy in the United States of America have not changed and/or if (4) the future President refuses to pardon him.

Nevertheless, given the irreversibility of extradition one can agree that the whole-life term in the applicant’s case is a “foreseeable consequence in the requesting country”.

At all events the Vinter case goes no further than “the right to hope”, as my colleague Judge Power-Forde so elegantly put in her separate opinion. I am not at all convinced that in the present case there is no such a “right to hope”.

The Court has said that incompatibility with Article 3 arises where domestic law does not provide for any mechanism or possibility for review of a whole-life sentence. It is not the Court’s task to prescribe the form (executive or judicial) which that review should take (see Vinter , paragraphs 120 and 122).

In paragraph 137 of the present judgment the majority considers that “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” whether the applicant would be entitled to a reduction of sentence.

This is a procedural requirement which can hardly be deemed to comply 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 [4] .

This Court has often addressed the matter of the procedures which a member State must introduce in order to satisfy the Convention. We are not in a position, however, to suggest any procedure for a non-member State. All procedural obligations under the Convention remain tools to secure its effective implementation in the national legal systems and real protection of the Convention rights under the domestic law of the States bound by the Convention.

For instance, in Eskinazi and Chelouche v. Turkey (dec.) [5] regarding the obligation of the Turkish authorities to return a child to her father in Israel, the Court held as follows: “The Convention does not require the Contracting Parties to impose its standards on third States or territories, and to require Turkey to review under the Convention all aspects of the Israeli proceedings would thwart the current trend towards strengthening international cooperation in the administration of justice, a trend which is in principle in the interests of the persons concerned, and would risk turning international instruments into a dead letter, to the detriment of the persons they protect”.

Although the case concerned a rather different issue, the message of the Court was clear enough: 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.

It also, perhaps, worth mentioning, that the Vinter judgment stresses a great value of rehabilitation which enables the prisoners’ social reintegration into the society. This position derives from the European consensus on penal policy, which, as the Court has stated, places the emphasis “now on the rehabilitative aim of imprisonment”, as confirmed by the significant number of sources cited. While the same could, to a more or lesser extent, be true for other parts of the world as well [6] , 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.

Nevertheless, what remains important in the context of the present case is that, according to Vinter , Article 3 must be interpreted as requiring sentence reducibility, in the sense of any kind of review which allows the domestic authorities to consider whether or not continued detention is still justified.

In my view, the Presidential power to grant pardons (part 1, Section II of Article 2 of the US Constitution, see paragraphs 81-82) seems sufficient to satisfy the “right to hope” requirement. It follows from the explanations provided by the US authorities that the President of the United States of America has already exercised his power to commute sentences, including those related to terrorist attacks in the 1970s and 1980s. Nothing suggests that this remedy will never be open to the applicant.

The applicant argues (see paragraph 133), and it follows from the US authorities’ letter of 11 November 2009 (see paragraph 22), that since the attacks of 11 September 2001 no Presidential pardon has been granted to persons convicted of terrorism. If it is so, it can be obviously explained by the relatively short period of time which has elapsed since the attacks and consequent criminal convictions. There is no obligation under the Convention to review life sentences already in ten years after one is sentenced.

Moreover, reducibility of life sentences is not only a European standard but also a dominant international trend in penal policy. The United States is no exception. The USA National Report released by The Sentencing Project in 2009 “calls for the elimination of sentences of life without parole, and restoring discretion to parole boards to determine suitability for release. The report also recommends that individuals serving parole-eligible life sentences be properly prepared for re-entry back into the community” [7] . Any further changes to the current system of whole life terms will most likely follow this line in the nearest future.

The majority has nonetheless noted that “the US authorities have at no point provided an assurance that the applicant would be spared a life sentence or that, should such a sentence be imposed, it would be accompanied by a reduction or communtation of sentence” (see paragraph 135). As was pointed out in Othman (Abu Qatada) v. the United Kingdom [8] , the Court has an obligation to examine whether diplomatic assurances provide a sufficient guarantee that the applicant will be protected against the risk of ill-treatment, and the Court will assess the quality of assurances given with regard, inter alia , to “whether the assurances are specific or are general and vague”. However, in a standard situation the Court deals with assurances concerning immediate or proximate in time actions required from a receiving State: not to sentence the applicant to the death penalty; to bring him or her promptly before a judge; and to guarantee access to independent legal advice and medical examination. Thus, for instance, in Klein v. Russia [9] , where there were serious grounds to believe that the applicant would be ill-treated on his arrival to Colombia, the Court found assurances by the Colombian Ministry of Foreign Affairs that “Mr Klein shall not be subjected to capital punishment or tortures, inhuman or degrading treatment or punishment” to be rather vague and imprecise.

In cases like the present one, being examined in the light of the Vinter requirements, the risk of ill-treatment derives not from concrete facts such as torture during the applicant’s interrogation or denial of access to a lawyer, but from the mere idea that his life sentence might appear irreducible to him at the time of sentencing, thus depriving him of a “right to hope” inherent in human dignity. Therefore, the only necessary and sufficient assurance is a clear statement that a mechanism geared to reconsidering, with the passage of time, the justifiability of continued detention does exist in the receiving State de jure and de facto, and can be, in principle, tried by the applicant in future. Of course, no concrete assurances that if the applicant is sentenced to life imprisonment in some twenty-five years the President will consider the possibility of pardoning him – no such assurances would look realistically effective. No one can predict what will happen in twenty-five or thirty years, what kind of legislation and policy will exist, so the State authorities cannot be expected to provide any “specific” guarantee for such a distant future. This is why I disagree with the majority view that the explanations provided by the relevant authorities are “very general and vague”; I find them to be adequate in the circumstances of the present case.

Nevertheless, the regrettable uncertainty which transpires from the letter of 11 November 2009 that a Presidential pardon remains “only a theoretical possibility in Trabelsi’s case” could undoubtedly lead the applicant to believe that if a life sentence is imposed there is no mechanism to permit him in future to be considered for release. This unfortunate passage in the specific context of this case compelled me to vote in favour of a finding of a violation of Article 3 of the Convention.

[1] Rectified on 7 October 2014: the text was “On the date of adoption of the judgment, 1 July 2014, the applicant was represented by Mr A. Château, a lawyer practising in Brussels.”

[2] Babar Ahmad and Others v. the United Kingdom , nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 177, 10 April 2012.

[3] Ibid ., § 179.

[4] See Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011.

[5] no. 14600/05, ECHR 2005 ‑ XIII (extracts).

[6] See, for instance, Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011.

[7] http://www.sentencingproject.org/detail/news.cfm?news_id=754&id=167

[8] No. 8139/09, ECHR 2012 (extracts).

[9] No. 24268/08, 1 April 2010.