FOURTH SECTION

DECISION

Application no. 14198/20 Muhammad Asif HAFEEZ against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 28 March 2023 as a Chamber composed of:

Gabriele Kucsko-Stadlmayer , President , Tim Eicke, Faris Vehabović, Branko Lubarda, Armen Harutyunyan, Anja Seibert-Fohr, Ana Maria Guerra Martins , judges , and Ilse Freiwirth, Deputy Section Registrar,

Having regard to the above application lodged on 19 March 2020,

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

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the AIRE Centre and Hands Off Cain,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Muhammad Asif Hafeez, is a Pakistani national who was born in 1958 and is at present detained in London. He is currently represented before the Court by Mr E. Ruchat of LEXIAL, Brussels. Previously, he was represented by Mr A. Raja of Quist Solicitors and Mr A. Hanratty of Withers LLP, both lawyers practising in London.

2. The British Government (“the Government”) were represented by their Agent, Mr J. Gaughan of the Foreign, Commonwealth and Development Office.

The circumstances of the case

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

4. The applicant is a sixty-four year old man with a number of health conditions, which include type 2 diabetes and asthma. He was arrested in London on 25 August 2017 pursuant to a request by the Government of the United States of America (“the US”) for his extradition.

5 . The charges in respect of which his extradition is sought are as follows:

6 . According to the respondent State, these charges concern the movement and planned movement of drugs and their constituent ingredients in very significant quantities across Asia, Africa, Europe and North and South America. As such, they involve the transnational movement of drugs on an extremely large scale. Within this operation, the applicant was identified as a figure known as the “big boss”, “the Sultan” and the “number one in the world” for heroin and hashish.

7 . The extradition hearing was conducted by Westminster Magistrates Court in mid-2018. The applicant argued that his extradition would breach his rights under Article 3 of the Convention because there was a real risk that pre-trial and post-conviction detention conditions in the US would be inhuman and degrading; and there was a real risk that he would be sentenced to life imprisonment without the possibility of parole. He further argued that he would be at risk of ill-treatment from his fellow prisoners, as he would be perceived as an informant. Finally, the applicant argued that his trial in the US would constitute an abuse of process and that his extradition would violate Article 6 of the Convention. In this regard, it was his contention that his potential co-accused had been expelled unlawfully from Kenya, the US had been complicit in their unlawful expulsion, and one of the potential co ‑ accused was likely to give evidence against the applicant.

8 . At the hearing a US Attorney (Mr Z.K.) gave evidence on his behalf that he was likely to be held in pre-trial detention in either the Metropolitan Correctional Center in Manhattan (“the MCC”) or the Metropolitan Detention Center in Brooklyn (“the MDC”). If, as seemed most probable, he was held in the MCC, he was likely to be held in the 10 South Unit, where he could be kept in solitary confinement for twenty-three hours a day; remain under constant video surveillance; and have “no view of the outside world”. Z.K. also alleged that there was understaffing and overcrowding throughout the US prison estate. Corruption, violence and gang culture were rife and the applicant would be vulnerable on account of his age. In addition, the lack of staff and appropriate facilities for ageing inmates led to delays in them receiving medical care. Z.K. indicated that, if convicted, the applicant was likely to be transferred to a facility operated by the Federal Bureau of Prisons, where he could be held in post-conviction solitary confinement, at least initially. In Z.K.’s view, there was also a real risk that the applicant could be housed in a Supermax facility, although he believed a “Special Management Unit” (being the next level down from a Supermax facility) to be more likely. Finally, Z.K. indicated that if the applicant were to be treated as a confirmed informant by the US authorities, his life would be in danger from other inmates. He acknowledged, however, that it would be open to him to apply to be placed in protective custody, whereupon his safety concerns would be assessed by the relevant authorities.

9 . A further US Attorney (Ms D.C.), who claimed to be an expert in sentencing law and procedure, also gave evidence on his behalf. She stated that the statutory penalty for each of the charges on which extradition was sought was “ten years to life”. In her view, there were substantial grounds for believing that if the applicant was convicted of these charges, he would face a real risk of being sentenced to life imprisonment. This was based on her analysis both of the current Statutory and Guideline range, and judicial practice in drug cases where the defendant was found to have played an “aggravated role”. D.C. further noted that the US federal system did not provide for parole. She agreed that there was a system of judicial review but she was unable to trace any applicable case-law for guidance and she was unaware of any such applications having been made. US law allowed for Presidential Clemency but such an order was discretionary and in the absence of clearly available or established criteria for granting clemency an inmate could not realistically challenge a refusal.

10 . The District Judge first considered whether the applicant would be detained in inhuman or degrading prison conditions. At the outset, he noted that the US authorities were not seeking special administrative measures, and that no submissions had been made by the parties on that point. Furthermore, while his attention had been drawn to the case of Lauri Love v. the Government of the United States of America and Liberty ([2018] EWHC 172 (Admin) – see paragraphs 32-35 below), he considered that case to be of only limited assistance since each case had to be considered on its own facts. Mr Love had very serious, longstanding and complicated medical conditions and in finding that it would be oppressive for him to be detained in either the MCC or the MCD the court did not find as a fact that the prison conditions in either centre would reach the minimum level of severity necessary to breach Article 3 of the Convention.

11 . Turning next to the applicant’s health conditions, the District Judge, having considered the evidence, was satisfied that (a) while the applicant was detained in the United Kingdom his health issues had been properly catered for by the prison authorities without requiring treatment in the prison hospital or in an outside facility; and (b) the US prison authorities had been alerted to his health difficulties and had confirmed that both of the facilities he could be detained in would be able to cater adequately to his needs. The judge further noted that Z.K., who was the applicant’s expert witness on prison conditions, had no direct experience of the facilities in question. The judge was therefore satisfied that the applicant’s Article 3 rights would be complied with upon extradition.

12 . The judge then considered the possibility that the applicant might be sentenced to life imprisonment without parole. The applicant had relied on Trabelsi v. Belgium (no. 140/10, ECHR 2014 (extracts)); however, the judge rejected his Article 3 challenge on this ground as he found that if he were sentenced to life imprisonment, he would be able to make an application for compassionate release if there were “extraordinary and compelling circumstances” warranting a reduction in his sentence.

13 . As for the abuse of process/Article 6 argument, the District Judge stated that:

“It appears that there did come a time when the Kenyan authorities may well have indicated to the US authorities their intention to have the co-defendants removed from their territory. Accordingly, in this court’s opinion, it would not have been unusual or inappropriate for the US authorities to have then taken measures – such as chartering an aircraft – to assist with the necessary removal arrangements.”

14 . The District Judge was not satisfied on the evidence before him that one, or potentially more than one, of the applicant’s co-conspirators might wish to and/or proceed to give evidence against him.

15 . The US Government had denied that the applicant was an informant and, while he may have had contact with law enforcement agencies, the District Judge did not consider that he had done so out of a sense of moral duty. Rather, he was someone who had brought to the attention of the authorities the criminal conduct of others who he knew to be actual or potential rivals to his substantial criminal enterprise.

16. On 11 January 2019 the District Judge, being satisfied that all of the procedural requirements were met, and that none of the statutory bars to extradition applied, sent the case to the Secretary of State for the Home Department for a decision to be taken on whether to order extradition.

17. On 5 March 2019 the Secretary of State ordered the applicant’s extradition.

18. The applicant sought permission to appeal against the decision of the District Judge. On 27 September 2019 a judge ordered a rolled-up hearing of the application for permission and, if permission were granted, the substantive appeal.

19. The hearing took place before the High Court in December 2019 and judgment was handed down on 31 January 2020. The applicant sought to submit fresh evidence regarding possible detention conditions, including evidence given by an independent prison consultant with direct experience of the facilities in question. However, the High Court declined to admit this evidence on the basis that it had been available at the date of the hearing before the District Judge (see paragraphs 7-9 above).

20 . With regard to the Trabelsi argument (see paragraph 12 above), the court granted permission to appeal but concluded, on a full review of the facts and legal principles, that the District Judge had not erred in finding that the applicant’s extradition would not violate Article 3.

21 . The court first addressed the risk that the applicant would receive a sentence of life imprisonment, if convicted of the charges in respect of which his extradition was sought. On this issue, it said the following:

“The evidence before the District Judge established that there was a real risk that Mr Hafeez, if convicted of the charges in respect of which his extradition was sought, would receive a sentence of life imprisonment. This was by no means the certain outcome. The US Government provided evidence from the US Sentencing Commission demonstrating that life sentences are rare in the Federal System even in cases of serious drug trafficking. The general evidence was supported by specific examples of cases not dissimilar to that of Mr Hafeez where a determinate sentence was imposed. However, the District Judge simply considered whether a life sentence in the US Federal System would involve a violation of Mr Hafeez’s Article 3 rights. It is not appropriate for us to consider whether the evidence established a real risk of a life sentence. We were not invited to do so.”

22. The High Court then addressed the Strasbourg jurisprudence on the issue of life sentences without parole. It noted that in R(Harkins) v. Secretary of State for the Home Department (No. 2) [2015] 1 WLR 2975 the Divisional Court had declined to follow Trabelsi (cited above) since it considered that in that case the Court had ignored the basic principle set out in Kafkaris v. Cyprus ([GC], no. 21906/04, § 99, ECHR 2008) and Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, § 120, ECHR 2013 (extracts)); namely, that a State’s choice of a specific criminal justice system, including sentence review and release arrangements, was in principle outside the scope of the Court’s supervision, provided that the chosen system did not contravene the principles set out in the Convention. Secondly, in R(Harkins) the Divisional Court had indicated that even if detailed consideration of the review scheme in the US had been appropriate, on this issue the judgment in Trabelsi had been “wholly unreasoned”. The High Court agreed with this analysis. It therefore found that Trabelsi was not of assistance, and preferred the approach taken in Harkins and Edwards v. the United Kingdom (nos. 9146/07 and 32650/07, 17 January 2012). It further rejected the applicant’s submission that any review scheme had to permit release purely by reason of the prisoner’s rehabilitative efforts.

23. In light of this assessment, the court held that there would be no risk of a violation of Article 3 of the Convention on account of the possibility that the applicant would be sentenced to life imprisonment since any prisoner so sentenced would have two routes to seek a reduction of that sentence: compassionate release and Executive Clemency.

24. The court found none of the applicant’s other grounds of appeal to be arguable. Permission was therefore refused on all of those grounds.

25 . With regard to the risk the applicant would face on account of the likely pre- and post-conviction prison conditions, the High Court noted that the applicant’s medical issues were not unusual for a man of his age and in any event they appeared to be controllable. While there was evidence that he had been prescribed anti-depressants, there was no indication that he suffered from any mental health issues. Moreover, the clinical director at the MCC had expressly indicated that his medical needs – including provision of a CPAP machine used to treat sleep apnoea – would be met.

26 . The court further observed that there was no reason to believe that the applicant would be treated as requiring enhanced security measures or that he would be transferred to a Supermax prison. However, even if that were the case the European Court of Human Rights had held this would not, without more, give rise to a violation of Article 3 of the Convention (see Babar Ahmad and Others v. the United Kingdom , nos. 24027/07 and 4 others, 10 April 2012).

27 . With regard to the applicant’s claim to be an informant, the court noted that the US Government did not consider him an informant and therefore he could not “take advantage of a status which he does not have”.

28 . Finally, with regard to the abuse of process/Article 6 argument, the court found there to be insufficient material to support a conclusion that the US Government was complicit in unlawful activity. In any event, whatever the involvement of the US Government, it did not consider that this could amount to an abuse of the extradition process vis-à-vis the applicant.

29 . On 24 March 2020 the Court granted an interim measure to stay the applicant’s extradition for the duration of the proceedings before it.

30. The applicant subsequently sought to re-open the appeal and rely on new evidence which, it was argued, was capable of showing direct involvement of the US in the unlawful rendition of the applicant’s co ‑ accused, and that the case against the applicant was mounted for a collateral purpose and in bad faith. On 26 May 2022 that application was refused. The first point was deemed to be irrelevant, as the appellate court had held that “whatever the involvement of the US Government in the expulsion of the co ‑ accused, this cannot amount to an abuse of the extradition process vis ‑ à ‑ vis Mr Hafeez” (see paragraph 28 above). The second point had not been made out by the proposed fresh evidence, and in any event related to an issue which was known at the time of the original hearing.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

31. The relevant legal framework and practice is set out in Sanchez ‑ Sanchez v. the United Kingdom ([GC] 22854/20, §§ 24-64, 3 November 2022).

32 . The case of Lauri Love v. the Government of the United States of America and Liberty ([2018] EWHC 172 (Admin)) concerned the extradition to the US of a thirty-three year old man with Asperger Syndrome, severe depression, eczema and asthma. In that case, it was accepted that were he to be prosecuted in the Southern District of New York, he would be detained pre-trial either in the MDC or in the MCC. Expert evidence indicated that he would be at high – and permanent – risk of suicide if he were to be extradited because his mental health depended on him being at home with his family.

33. The District Judge acknowledged those factors but did not consider that his mental condition was such that it would be unjust or oppressive to extradite him. On appeal, however, the High Court held that Mr Love’s extradition would be oppressive by reason of his physical and mental condition. It accepted that the fact of extradition would bring on severe depression, and that Mr Love would probably be determined to commit suicide, in the United Kingdom or in the US. Even if the high risk of suicide could be prevented by placing him on suicide watch, if he were to present himself as no longer suicidal for sufficiently long to be removed from suicide watch, he could then commit suicide. Moreover, keeping him on suicide watch, in segregation, with a watcher inside or outside the cell for company, and with very limited activities, would be very harmful for his difficult mental and physical conditions. Outside segregation, his Asperger Syndrome and physical conditions would make him very vulnerable, and he might have to be isolated for his own protection.

34. The High Court also found there to be no satisfactory and sufficiently specific evidence that treatment for his combination of severe problems would be available in the sort of prisons to which he would most likely be sent.

35 . Consequently, the court was satisfied, “in the particular combination of circumstances”, that it would be oppressive to extradite Mr Love.

COMPLAINTS

36. The applicant complained that his extradition to the US would violate his rights under Article 3 of the Convention, due to the risk that he would be sentenced to life imprisonment without parole, the risk of detention in inhuman and degrading conditions, and the high risk of Covid 19 in the US prison estate. Under Article 6 of the Convention, the applicant complained that he would likely be tried on evidence obtained from alleged co ‑ conspirators who had been unlawfully “rendered” to the US from Kenya.

THE LAW

37 . In Sanchez-Sanchez v. the United Kingdom ([GC] 22854/20, §§ 95-97 and 100, 3 November 2022) the Court indicated that a two-stage approach is called for when assessing the risk, upon extradition, of a violation of Article 3 of the Convention by virtue of the imposition of an irreducible life sentence. First of all, a preliminary question has to be asked: namely, whether the applicant has adduced evidence capable of proving that there are substantial grounds for believing that, in the event of conviction, there is a real risk of a sentence of life imprisonment without parole. It is for the applicant to demonstrate that such a penalty would be imposed without due consideration of all the relevant mitigating and aggravating factors, and such a risk will more readily be established if he faces a mandatory – as opposed to a discretionary – sentence of life imprisonment. The second stage will only come into play if the applicant establishes such a risk; only then will it be necessary to consider whether, as from the moment of sentencing, there would be a review mechanism in place allowing the domestic authorities to consider a prisoner’s progress towards rehabilitation or any other ground for release based on his behaviour or other relevant personal circumstances.

(a) The parties’ submissions on the existence of a “real risk”

(i) The applicant

38 . The applicant submitted that if he were convicted of the offences charged, he was likely to receive a discretionary life sentence. In this regard, he acknowledged that two of his co-conspirators had received sentences of twenty-three and twenty-five years imprisonment after pleading guilty (see paragraph 43 below) but submitted that he had an absolute right to contest the allegations against him. Moreover, the US Government’s position appeared to be that he had an organising or leadership role, and there was no suggestion that his co-conspirators played a comparative role. As such, the fact that they received lengthy sentences following guilty pleas was not decisive.

39. Based on the allegations against the applicant and the indictment, his expert, D.C. (see paragraph 9 above), believed that the scale of the operation, and the quantity of drugs involved, would trigger the highest base offence level (the level 38). If the applicant were also to be convicted of conspiracy to import methamphetamine, two levels would be added to the base offence level. In addition, according to the indictment and the allegations against the applicant, he was a major multi-national supplier of narcotics, and the Sentencing Guidelines required the addition of two, three or four levels if the defendant played an aggravating role in the offence. If he was the organiser or leader of a criminal organisation or conspiracy, he would receive a four ‑ level increase. In D.C.’s view, the applicant’s total offence level would likely be no less than 43, at which the Guideline sentence is life imprisonment.

40. D.C. acknowledged that the Sentencing Guidelines were not binding on judges, but submitted that they still influenced the sentences imposed. In her opinion, in drug trafficking cases quantity was routinely cited by judges as a reason for declining to impose a below-Guideline sentence.

41. Finally, D.C. referred to the Report by the US Sentencing Commission, entitled “Life Sentences in the Federal System” (February 2015) (see Sanchez-Sanchez , cited above, § 63), which indicated that the most common type of offence for which life imprisonment had been imposed in the fiscal year 2013 was drug trafficking, with these cases accounting for 41.8% of all life sentences that year.

(ii) The Government

42 . The Government did not accept that there was a “real risk” that the applicant would receive a sentence of life without parole if convicted of the offences with which he was charged. Statistical information provided by the US authorities suggested that sentences of imprisonment lower than those recommended in the Sentencing Guidelines were imposed in 49% of cases across the US courts and in as many as 71% of cases, including in 52% of drug trafficking cases, within the jurisdiction of the Second Circuit of the US Court of Appeals, where the applicant is charged. Furthermore, while it was correct to say that in fiscal year 2013 the most common type of offence for which a life sentence was imposed was a drug trafficking offence, the report by the US Sentencing Commission, entitled “Life Sentences in the Federal System” (February 2015), also made it clear that life sentences were rare in drug trafficking cases, “having been imposed in less than one third of one percent of all drug trafficking cases” in 2013.

43 . The Government submitted letters from the US Department of Justice dated 20 March 2020 and 11 January 2021. The Department of Justice stated that, if convicted, the applicant’s sentence would be decided by the US District Court. The Judge presiding over his case in the US would be the same Judge who had already sentenced two of his co-conspirators and neither had received a sentence of life imprisonment. Specifically, Mr B.A.A. and Mr I.A.A. had each faced a maximum sentence of life imprisonment and a recommended sentence under the US Sentencing Guidelines of life imprisonment. Both had pleaded guilty and B.A.A. was sentenced to twenty ‑ five years’ imprisonment (despite having received the maximum four ‑ level enhancement under the Sentencing Guidelines that could be awarded for a leadership role), and I.A.A. was sentenced to twenty-three years’ imprisonment. In determining the applicant’s sentence, should he be convicted, the Judge would be guided by US law to “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” (see Title 18, United States Code § 3553(a) – see also Sanchez-Sanchez , cited above, § 57). Thus, the Judge would consider the sentences imposed on B.A.A. and I.A.A. when determining the appropriate sentence for the applicant.

44 . According to the Department of Justice, while B.A.A. and I.A.A. were charged with the same drug importation charges brought against the applicant, they were also convicted of additional charges, including using machine guns and destructive devices in furtherance of their drug trafficking, and bribing public officials to obstruct US court proceedings – charges that the applicant did not face. Moreover, the Judge had determined that B.A.A. and I.A.A. had been involved in extensive violence, including a murder.

45 . If the applicant were to be convicted, the US Department of Justice confirmed that he would have several opportunities to seek leniency or a reduced sentence. Prior to conviction, he could seek to reach an agreement with the Prosecution wherein, for example, he would plead guilty in exchange for certain favourable actions. If he were to plead guilty or be convicted at trial, the Judge would have broad discretion to determine the appropriate sentence after a fact-finding process in which the applicant would have an opportunity to offer evidence. Prior to any sentencing, a probation officer employed by the US courts would conduct an independent investigation and prepare a report containing information about his offences, criminal history (if any), and other background information, as well as a calculation of the recommended sentencing range under the US Sentencing Guidelines. In this regard, the US Department of Justice confirmed that in relation to Mr Hafeez it was not aware of any previous convictions. The applicant and his attorneys would participate in the process of preparing that report, and he would have the right to object to the information and conclusions in it.

46 . After the probation officer completed the report, the applicant and his attorneys would be able to present to the Judge evidence and argument regarding any mitigating factors that might justify a sentence below the range recommended by the US Sentencing Guidelines.

47 . Finally, the Department of Justice stated that the applicant would have the statutory right to appeal any sentence imposed if it were substantively or procedurally unreasonable in the circumstances of the case – including on the ground that the sentence was unreasonably excessive – and such a claim would be reviewed by a panel of three appellate judges.

(iii) The third party interveners

48. Both the AIRE Centre and Hands Off Cain provided information about the routes to obtain a reduction or commutation of the sentence in the US.

(b) The Court’s assessment

49. As the applicant has not yet been convicted and the offences with which he has been charged do not carry a mandatory sentence of life imprisonment, he must first demonstrate that, in the event of his conviction, there exists a real risk that a sentence of life imprisonment without parole would be imposed without due consideration of all the relevant mitigating and aggravating factors (see Sanchez-Sanchez , cited above, § 100).

50. In carrying out this exercise, which, the extradition not yet having taken place, is ex nunc , the Court would normally take as its starting point the assessment by the national courts (see Sanchez-Sanchez , cited above, § 101). However, as in Sanchez-Sanchez , the national courts’ findings for the purposes of the “real risk” assessment were inconclusive (see Sanchez ‑ Sanchez , cited above, § 103). The District Judge did not address the issue directly. On appeal, the High Court indicated that “the evidence before the District Judge established that there was a real risk that Mr Hafeez, if convicted of the charges in respect of which his extradition was sought, would receive a sentence of life imprisonment” (see paragraph 21 above). Nonetheless, it then went on to say that “this was by no means the certain outcome”. It referred to evidence from the US Sentencing Commission demonstrating that life sentences were rare in the Federal System even in cases of serious drug trafficking, before concluding that “[i]t is not appropriate for us to consider whether the evidence established a real risk of a life sentence. We were not invited to do so.” (see paragraph 21 above).

51. Consequently, the Court must examine the evidence before it. In this regard, it notes that the facts as submitted by the parties would suggest that the applicant is in all important respects in a remarkably similar situation to that of Mr Sanchez-Sanchez. Both were charged with serious drug trafficking offences with a maximum sentence of life imprisonment (see paragraphs 5 and 9 above; see also Sanchez-Sanchez , cited above, § 8), and both were believed to hold leadership roles in their respective criminal enterprises. In particular, Mr Sanchez-Sanchez was believed to be the joint head of a Mexico-based drug trafficking operation who supervised the work of US ‑ based distributors (see Sanchez-Sanchez , cited above, §§ 7 and 106), while the applicant in the present case was identified as the “big boss” in an operation responsible for the transnational movement of drugs on an extremely large scale (see paragraph 6 above). Both were charged in a jurisdiction where sentences of imprisonment were generally below the recommended range (see paragraph 42 above; see also Sanchez-Sanchez , cited above, § 104); neither had any (known) previous convictions (see paragraph 45 above; see also Sanchez-Sanchez , cited above, § 105); and both had co-conspirators who had also faced maximum sentences of life imprisonment but received lesser sentences after having pleaded guilty (see paragraph 43-44 above; see also Sanchez-Sanchez , cited above, § 106).

52. Consequently, the “risk” of a life sentence being imposed would appear, at least from the Court’s vantage point, to be similar in both cases.

53. In Sanchez-Sanchez the Court acknowledged that a sentence of life imprisonment – while rare – could be imposed in drug trafficking cases in which large quantities of drugs were involved, or where the court applied other sentence enhancement provisions relating to drug trafficking (see Sanchez-Sanchez , cited above, §§ 63 and 106). It further acknowledged that Mr Sanchez-Sanchez’s co-conspirators were perhaps not in an entirely comparable position to him, despite having similar base offence levels, as they did not appear to have been suspected of being at the head of any criminal organisation and, perhaps more importantly, they would have been entitled to a reduction in sentence on account of their guilty pleas. Nonetheless, the Court could not ignore the fact that Mr Sanchez-Sanchez had not adduced evidence of any defendants with similar records to himself who were found guilty of similar conduct and were sentenced to life imprisonment without parole. Moreover, while it did not base its assessment on the likely sentence Mr Sanchez-Sanchez would receive if he were to plead guilty, the Court nevertheless recognised that the length of the applicant’s prison sentence might be affected by pre-trial factors, such as agreeing to cooperate with the US Government (see Sanchez-Sanchez , cited above, § 108; see also Findikoglu v. Germany (dec.), no. 20672/15, § 39, 7 June 2016). Finally, it took into account the fact that, if Mr Sanchez-Sanchez were to plead guilty or be convicted at trial, the judge would have a broad discretion to determine the appropriate sentence after a fact‑finding process in which the applicant would have the opportunity to offer evidence regarding any mitigating factors that might justify a sentence below the range recommended by the Sentencing Guidelines. The sentencing judge would be required to have regard to the sentences given to the co‑conspirators, even if their situation was not identical to that of Mr Sanchez-Sanchez, and the latter would have the right to appeal against any sentence imposed (see Sanchez ‑ Sanchez , cited above, § 108).

54. All of these factors apply with equal force in the case at hand. While the applicant’s situation may not be entirely comparable to that of his co ‑ conspirators, and while those co-conspirators would have been entitled to a reduction in sentence on account of their guilty pleas (see Sanchez-Sanchez , cited above, § 108), he has not adduced evidence of any defendants with similar records to himself who were found guilty of similar conduct and were sentenced to life imprisonment without parole. If convicted, the length of his sentence might also be affected by pre-trial factors, such as agreeing to cooperate with the US Government, and he would enjoy the same procedural safeguards relied on by the Court in Sanchez-Sanchez (see paragraphs 45-47 above; see also Sanchez-Sanchez , cited above, § 108).

(a) The parties submissions

(i) The applicant

56. The applicant submitted that if extradited his conditions of detention would breach Article 3 of the Convention both pre-trial (in either the MCC or the MDC) and, if relevant, post-conviction. The pre-trial period was likely to last from eighteen to twenty-four months and, in his view, having regard to his medical conditions, and the findings in the case of Lauri Love v. the Government of the United States of America and Liberty (see paragraphs 32 ‑ 35 above), the conditions of detention would be inhumane. He further argued that he would likely be held in solitary confinement both pre ‑ trial (in the 10 South Unit of the MCC) and post-conviction (when he was likely to be placed in a Special Management Unit or a Communications Management Unit), and would have inadequate access to medical care. If he were to be held in a high or medium security federal prison, rather than a Restrictive Unit, there would be a risk to his security and health on account of overcrowding.

(ii) The Government

57. The Government pointed out that in Lauri Love v. the Government of the United States of America and Liberty (see paragraphs 32-35 above) the High Court had not found that the conditions at the MDC detention facility in themselves reached the minimum level of severity for Article 3 to be violated. Moreover, as the High Court had observed, the applicant’s medical conditions were unremarkable for a man of his age and the evidence suggested that his medical needs would be met in detention (see paragraph 25 above).

(iii) The third party interveners

58. Both the AIRE Centre and Hands Off Cain gave evidence about detention conditions during the early stages of the Covid-19 pandemic.

(b) The Court’s assessment

59. In Babar Ahmad and Others v. the United Kingdom the Court considered the extradition of a number of men to the US to stand trial on terrorism charges. It considered their likely conditions of detention at two stages: pre-trial and post-conviction.

60. In respect of pre-trial detention, it was not in dispute that they would be subject to special administrative measures (see Babar Ahmad and Others v. the United Kingdom (dec.), nos. 24027/07 and 4 others, § 125, 6 July 2010).

61. The Court had regard to the conditions in the MCC, examining, in particular, the risk of solitary confinement. It considered the evidence in relation to the experiences of three men who, following extradition, were detained there whilst subject to special administrative measures and noted that none of them had been deprived of all human contact. They had enjoyed regular access to their attorneys, and communications with family members were restricted but not completely prohibited. Two were also allowed visits from consular officials. In the Court’s view, such limitations were analogous to those in Ramirez Sanchez v. France ([GC], no. 59450/00, §§ 131-135 ECHR 2006 ‑ IX), Öcalan v. Turkey ([GC], no. 46221/99, § 194, ECHR 2005‑IV), Argenti v. Italy (no. 56317/00, § 22, 10 November 2005), Bastone v. Italy ((dec.) no. 59638/00, ECHR 2005‑II (extracts)), Messina v. Italy (dec.) no. 25498/94, 8 June 1999)), and in these cases it had concluded that the applicants had not been in complete sensory isolation or total social isolation (see Babar Ahmad and Others , decision cited above, § 128).

62. Insofar as the applicants in Babar Ahmad and Others had relied on the adverse impact of special administrative measures on their mental health, the Court was prepared to accept that the imposition of such measures would have a greater effect on all three applicants than on detainees who were in good mental health. However, it was not convinced that any adverse effect would automatically mean that the very imposition of such measures would entail a violation of Article 3. It had not been suggested that, prior to extradition, the United Kingdom authorities would not advise their US counterparts of the applicants’ mental health conditions; that, upon extradition, the US authorities would fail to provide appropriate psychiatric care to them; that psychiatric care in US federal prisons was substantially different to that provided at HMP Long Lartin, where the applicants were being detained; or that the US authorities would ignore any changes in the applicants’ conditions or refuse to alter the conditions of their detention to alleviate any risk of suicide or self-harm (see Babar Ahmad and Others , decision cited above, § 131).

63. The Court therefore rejected the applicants’ complaints in respect of the imposition of special administrative measures before trial as manifestly ill-founded (see Babar Ahmad and Others , decision cited above, § 135).

64. In respect of post-conviction detention, the Government had accepted that there was a real risk the applicants would be housed in ADX Florence, which was a Supermax facility (see Babar Ahmad and Others v. the United Kingdom, nos. 24027/07 and 4 others, § 218, 10 April 2012). The purpose of the regime in those units was to prevent all physical contact between an inmate and others, and to minimise social interaction between inmates and staff. Nevertheless, although the Court declared this complaint admissible (see Babar Ahmad and Others , decision cited above, §§ 146-147), in a separate judgment it found that detention in such a facility would not violate Article 3 of the Convention. Inmates were not kept in complete sensory isolation or total social isolation, and although they were confined to their cells for the vast majority of the time, in-cell stimulation was provided through television and radio channels, newspapers, books, hobby and craft items and educational programming. Those facilities were supplemented by regular telephone calls and social visits and by the ability of inmates to correspond with their families. During recreation periods inmates could communicate without impediment (see Babar Ahmad and Others , cited above, §§ 222-224).

65. In the present case, the US Attorneys have confirmed that they are not seeking special administrative measures (see paragraph 10 above). Furthermore, neither the evidence before this Court nor the evidence before the domestic courts suggested that the applicant would be housed, post ‑ conviction, in a Supermax facility (see paragraphs 8 and 26 above). There is therefore no reason to believe – and in any event the applicant does not allege – that he would be subject to more stringent limitations on contact than the applicants in Babar Ahmad and Others . Moreover, as the High Court pointed out, the applicant’s medical conditions were not unusual for a man of his age and in any event they were being controlled by the prison authorities in the United Kingdom. The District Judge noted that the US prison authorities had been alerted to his health difficulties and had confirmed that both of the facilities he could be detained in would be able to cater adequately to his needs (see paragraph 11 above). The clinical director at the MCC had also expressly indicated that the applicant’s medical needs – including the provision of a CPAP machine used to treat sleep apnoea – would be met (see paragraph 25 above). Furthermore, while the applicant has been treated for depression (see paragraph 25 above), there is no indication that he suffers from any mental health issues comparable to those of Mr Love (see paragraphs 32-35 above), or indeed the applicant in Aswat v. the United Kingdom (no. 17299/12, §§ 19-22, 16 April 2013).

66. Consequently, the Court does not consider that any risk arising as a result of the likely conditions of detention in the US, either pre-trial or post ‑ conviction, would reach the minimum level of severity required by Article 3 of the Convention.

67. While the applicant would appear to have had some engagement with law enforcement prior to his arrest, both the District Court and the High Court observed that the US Government did not consider him an informant (see paragraphs 15 and 27 above). The District Judge found that his engagement with law enforcement had been motivated by self-interest (see paragraph 15 above), and the High Court held that he could not “take advantage of a status which he does not have” (see paragraph 27 above). In any event, even if the applicant were to be considered an informant, his own expert acknowledged that it would be open to him to apply to be placed in protective custody, whereupon his safety concerns would be assessed by the relevant authorities (see paragraph 8 in fine above). There is therefore no reason to believe that he would be at real risk of a breach of his rights under Article 3 of the Convention on this ground.

68. In his application to the Court, which was introduced in March 2020, the applicant also contended that he would be at real risk of exposure to Covid-19 in the US prison estate. He maintained that complaint in his observations to the Court, which were prepared in December 2020. However, in light of the developments since then, in particular the widespread availably of vaccinations, the evolution of the virus itself, and the lifting of restrictions in both the United Kingdom and US, the Court does not consider that any risk under this head capable of reaching the minimum level of severity required by Article 3 of the Convention has been established (see, mutatis mutandis , Fen ech v. Malta , no. 19090/20, §§ 101-108, 1 March 2022).

69. In light of the foregoing, the Court considers that the applicant’s complaints under Article 3 of the Convention must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

70. The applicant further submitted that his extradition would violate Article 6 of the Convention because in the US he is likely to be tried on evidence obtained from co-conspirators who had been unlawfully rendered to the US from Kenya.

71. In the extradition context, an issue under Article 6 of the Convention will only exceptionally arise where an individual risks suffering a flagrant denial of justice in the requesting country. In the Court’s case-law, the term “flagrant denial of justice” has been synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article. The test is therefore a stringent one and cases in which the Court has found it to be satisfied are rare. It is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he were removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice (see Othman (Abu Qatada) v. the United Kingdom , no. 8139/09, §§ 258-262, ECHR 2012 (extracts)).

72. In the present case no such evidence has been adduced. Neither the District Judge nor the High Court found evidence of any unlawful behaviour on the part of the US authorities (see paragraphs 13, 14 and 28 above). In addition, the District Judge was not satisfied on the evidence before him that one, or potentially more than one, of the applicant’s co-conspirators might wish to and/or proceed to give evidence against him (see paragraph 14 above). Even if they did, there is no reason to doubt that the applicant would have the benefit of legal counsel and that it would be open to him to challenge the admissibility of any evidence relied upon by the Prosecution. That being the case, he cannot be said to have satisfied the burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were to be extradited to the US.

73. Consequently, the Court considers that the applicant’s complaints under Article 6 of the Convention must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court (see paragraph 29 above).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 April 2023.

Ilse Freiwirth Gabriele Kucsko-Stadlmayer Deputy Registrar President